The interview of Chief Lawyer Xu Xinming on “the copyright ownership in the parody time” by Global Intellectual Property Business

There are lots of parody works on the internet in recent years, mostly are the “secondary creation ” on the basis of the original works. But Beijing Treaty on Audiovisual Performances Article 5. Section 1 requires:“to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his
 reputation, taking due account of the nature of audiovisual fixations”.

In 2014, Hong Kong Government’s the Copyright (Amendment) Bill 2014 expands the scope of copyright immunity to “for the purpose of parody, irony, funny and copy”. At the same time, it determines the criminal responsibility main consideration is “economic damage”. The regulation ensure that Hong Kong copyright system keep up with the times, close to the science and technology and the overseas development.

The Global Intellectual Property Business reporter interviewed the Beijing Lawyers Association Company Law committee Yuan Sentai , professional committee of the original sen tai corporate lawyers, chief lawyer Xu Xinming of China Intellectual Property Lawyers Net on the “parody” question.

Rights Protection problem in the parody time 

A Murder Caused By A Steamed Bread is the signal of film and TV works parody time. But after that, there seems no disputes and discuss on the parody problem. Why they disappeared? Yuan Sentai says that not because of the parodists realizing the copyright, but because of the high cost for rights protection and low compensation.“In my acting cases, the tort compensation of one film is only thousands of yuan. If they use only the works fragments, the amount may be lower, which directly leads to low enthusiasm of the copyright owner protecting their rights”, Yuan Sentai said.

Chief lawyer Xu Xinming agrees that maybe the real factor causes the holder of a negative rights protection point of view. It is difficult for us to protect rights in the situation, and it demands to invest time and energy to collect evidence and spend time and money in the lawsuit. The long-time lawsuit and low compensation and the huge contrast between intention and result are the consideration of copyright owner. According to “No judge without plaintiff ”principle, the protection depends on the right owner. There also are different solutions: a) Parody works getting the permission of the copyright owner before using; b) The two sides reaching a certain income through negotiation. 

Chief lawyer Xu Xinming also thinks that with relevant laws as guides, the development of the market would lead the chain gradually form a benign mechanism. The mechanism involving in the process of copyright works trade, deduction and distribution will be the development trend of the future. Lawyer Xu Xinming said:“Because there is no absolute opposition between the parties in second creation, it will form a reasonable market mechanism to make each subject obtain proper interests eventually.” 

The pyramid of works copyright protection 

Chief lawyer Xu Xinming told the reporter copyright protecting the works expression. A work is similar to a pyramid, spire is the work′s central idea, may be only a few words; the bottom is a very specific expression, which is a section of texts in the writing and specific images formed by the character, concrete image, plot, lines, clues, venation, classic scene, structural framework and so on in the film and TV works. At the bottom of the pyramid are the most intuitive and superficial, the higher are the more abstract. Copyright protects the expression of works not the ideas, which means the scope of protection from the bottom upwards and down by the spire, and there is a vague boundary as a transition depending on the specific work judgment. The original things in the work are also protected by copyright laws, such as the classic lines, images, portrayals of the characters, the classic scenes, and ingenious plots, etc. 

“The key to judge a work infringement is not the same name of the protagonist, but if there is a substantial use of the original works in the second creation.” Xu Xinming emphasized “If there is only same name but not other correlation plot, it is not the infringement. Remaking the secondary work using mass familiar characters will make the audience accept quickly and easy to arouse relevant audience watching interests. If the work is very different from the original work with strictly analysis in the perspective of copyright law, the ‘use’ of original work will not constitute infringement .” 

Chief lawyer Xu Xinming added that the work through the video clip-dubbing, which images using all of the original works not like non-commercial nature of parody and irony in the A Murder Caused By A Steamed Bread , is a substantial use of original work. If there is no prior authorization of the original copyright owner, the use will constitute infringement .


Interests distribution has a reasonable basis 

One hundred thousand cold joke is one of the hottest parody cartoon recently, which contents mostly are disruptive new classic cartoons. These parody works also become films and many characters coming from the classic cartoons and movies, such as Calabash Brothers, Snow White and Huang Feihong. Who should own the copyright of these parody works? 

Xu Xinming think that as long as the image of the characters exist similarities between the origin and second creation, and people will see the similarities at first sight, this also constitute the classic characters of the original image use for reference; if the plot has the substantial use of the origin without the permission of the original copyright owner, it will still constitute infringement. 

On the question of interests distribution, the two layers have the same idea. If the secondary creation gets permission of the original copyright owner, the two parties can negotiate a proper allocation proportion. If they does not get the permission, the compensation is the illegal income. 

Protecting the source will spread further 

Yuan Taisen thinks in the situation of public copyright protection consciousness obviously deficiencies, on one hand we need to strengthen the protection of copyright, including the strengthening of legislation, law enforcement and judicial power, on the other hand, we cannot restrict too much on the recycling work using new technology under the network environment, otherwise it may contain film innovation and development. 

Xu Xinming says that only the protection of the original copyright can encourage innovation. Copyright laws certainly encourage innovation, and the secondary creation running within the orbit under the rule of law is also a kind of cultural inheritance. Xu Xinming emphasizes:“Only the source protecting well, the secondary creation and third creation will appear and the culture will spread better. ”