The list of infringements of the right of authorship in the Copyright Law is incomplete, and it is even more confusing when dealing with the "signature" of computer software in practice.
Author | Bai Fan, Guizhou Provincial High People's Court
Edit | Bruce
1. The list of infringing acts is incomplete
As one of the moral rights of authors, the right of authorship embodies the author's free will and protects the author's personal freedom and independent personality. It is generally believed that the author has the freedom to decide the mode of authorship, including whether the work is a real name, a pen name or no signature, etc., and the method of authorship decided by the author is protected by the right of authorship. However, in practice, the relevant provisions of the Copyright Law are missing. Articles 2 and 3 of Article 52 of the Copyright Law provide:
"Where there are any of the following infringements, civil liability such as stopping the infringement, eliminating the impact, making a formal apology, and compensating for losses shall be borne according to the circumstances:
……
(2) Without the permission of the co-authors, publishing a work created in collaboration with others as a work created by oneself alone;
(3) Signing the works of others without participating in the creation of works for the purpose of seeking personal fame and fortune;
……”
It can be seen that the Copyright Law only enumerates the circumstances of deleting the signatures of other co-authors and signing one's own name on the works of others (as well as the "plagiarism" mentioned below) for infringement of the right of authorship, but does not cover the main circumstances of infringement of the right of authorship, especially the tampering and destruction of the author's decision on the method of authorship. In this regard, it seems that in practice, the catch-all clause of Article 52, Paragraph 11 of the Copyright Law can only be invoked to deal with the catch-all clause of "other acts of infringement of copyright and copyright-related rights".
Second, the understanding of "plagiarism".
Article 52(5) of the Copyright Law refers to the infringement of "plagiarizing the works of others". In his famous book On Plagiarism, Judge Posner held that plagiarism is not only a failure to explain the act of copying, but also creates a false trust of the intended reader, and is a form of "fraudulent plagiarism". [1] According to the interpretation compiled by the legislator of the Copyright Law, plagiarism of another person's work is an infringement of all or part of another person's work. From the perspective of the form of plagiarism, there are not only the acts of copying the works of others as they are or basically unchanged, but also the acts of plagiarizing the original elements protected by others into existing ones after being transformed, such as changing the type of work and treating the work created by others as a work created by oneself independently, or not changing the type of work, but using the copyrighted components in the work and changing the specific form of expression of the work, and treating the work created by others as one's own independently created work. [2] Based on this, it can be considered that the acts of "Zhang Guan Li Dai" of other people's works as one's own works, adapting other people's works without indicating the source, and "washing the manuscript" of changing the work of others are all plagiarism.
Specifically, it is clear that "Zhang Guan Li Dai" has violated the right of authorship by replacing the signature of another person on the work, and in order to distinguish it from the above-mentioned situation where the creator did not participate in the signature of another person's work, it can be considered that there is a difference between the two as to whether the original author's signature is retained. Article 13 of the Copyright Law stipulates that:
"The copyright of a work produced by adapting, translating, annotating, or arranging an existing work shall be enjoyed by the person who adapted, translated, annotated, or arranged, provided that the copyright of the original work shall not be infringed upon when exercising the copyright."
Derivative works must not infringe the copyright of the original author, which includes respecting the original author's right of authorship, that is, the title of the original work and the name of the original author should be indicated on the derivative work. However, originality cannot reach the act of "manuscript washing" of adaptation and formation of new works, which is similar to the act of copying, and can also be classified as "Zhang Guan Li Dai". Plagiarism distorts the source of the work, deliberately conceals the true information and transmits false information to the audience, and the first three specific acts of plagiarism are all infringements of the author's right of authorship.
3. Doubts about the "signature" of computer software
Nowadays, some computer software rights holders have filed infringement lawsuits in large quantities across the country, and there is a view that the infringer's act of copying and modifying the software involved in the case and removing the name of the software manufacturer for sale not only infringes the right of reproduction and modification, but also infringes the right of authorship. This not only reminds me of the question of the identity of the photo company when it was defending its rights in batches earlier, that is, it is believed that the marking © and name on the picture are not the author's signature in the sense of the Copyright Law, but only indicate that he enjoys the property right of the author, and whether the work created by a natural person is a work of a legal person should still be further examined, so the presumption of authorship under Article 12, Paragraph 1 of the Copyright Law cannot be applied. This problem also appears to exist in the current computer software batch litigation.
Article 18, Paragraph 2, Item 1 of the Copyright Law stipulates that:
"In any of the following circumstances, the author enjoys the right of authorship, and other rights to copyright are enjoyed by the legal person or unincorporated organization, and the legal person or unincorporated organization may give the author a reward:
(1) Works of service such as engineering design drawings, product design drawings, maps, schematic diagrams, computer software, etc., that are primarily created by using the material and technical conditions of a legal person or unincorporated organization, and for which the legal person or unincorporated organization bears responsibility;
……”
Accordingly, even if the computer software is a special service work and other rights of copyright are enjoyed by a legal person or an unincorporated organization, the author is still a natural person and enjoys the right of authorship, so it cannot be automatically presumed that the computer software is necessarily the work of a legal person, and the challenge of "infringement of the right of authorship" also arises. In addition, the second paragraph of Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases over Copyright provides that:
"A natural person, legal person, or unincorporated organization that signs a work or product shall be deemed to be the owner of the copyright or copyright-related rights and interests, unless there is proof to the contrary."
Article 8, Paragraph 1, Item 2 of the Regulations on the Protection of Computer Software stipulates that the software copyright owner enjoys the right of authorship, that is, the right to indicate the identity of the developer and sign the software; Article 9 stipulates that the software copyright belongs to the software developer, and if there is no proof to the contrary, the natural person, legal person or other organization that signs the software is the developer. Although the term "right of authorship" is also used, based on the above discussion, the author believes that the connection and distinction between "software copyright owner" and "author", "authorship" and "rights management information" still need to be further clarified.
exegesis
[1] Richard Posner, On Plagiarism, Peking University Press, 2010, pp. 23, 37
[2] Huang Wei and Wang Leiming, eds., Introduction and Interpretation of the Copyright Law of the People's Republic of China, China Democracy and Legal Publishing House, 2021, p. 259.
(This article only represents the author's point of view and does not represent the position of intellectual property)
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