The Role of Copyright Registration in the Protection of Works of Calligraphy and Painting

By Kevin Nie, China IP,[Copyright]

Painting and calligraphy works belong to works of fine art under China’s Copyright Law. They have various means and an extensive extent of dissemination. In practice, it is common to see lawsuits caused by copyright infringements upon artworks. One of the effective means to avoid such disputes is to register the copyright of the artwork previously. As an authority in copyright registration, Mr. Suo Laijun, the Deputy Director of China Copyright Protection Center (CCPC), has a through understanding on this issue.
Mr. Suo repeatedly stressed in the exclusive interview with China IP that it was necessary to give full play to the role of copyright registration for the protection of works, including painting and calligraphy.
China IP: Would you please give us a brief introduction of copyright registration in terms of historical development, current conditions, and trends in the future?
Mr. Suo: In the field of intellectual property, it is well known that copyright is different from patent and trademark in its automatic generation of copyright as soon as the work is completed, which requires no examination and confirmation from any governmental departments. There was a period of required compulsory registration of copyright when copyright protection entered modern times. However, i t has become accepted as a general principle for international copyright protection that there should be no registration procedure before protection with the development of idea eligible for copyright protection and internationalized protection.
There are only a few countries, such as several Latin American countries, which stipulate that registration is the precondition for protection, and the United States (during the time of this interview) insisted that registration shall be established before the copyright owner to bring a lawsuit or to get statutory compensation. The vast majority of countries and regions have accepted the principle that copyright is automatically generated and protected by the law without limitation. China has also followed suit. The owners have been very happy that it has been very convenient to obtain the right according to the automatic generation of copyright.
However, they have also found that many inconveniences have also resulted from the principle, including their lack of valid evidences to establish their copyright where their works are published anonymously or under pseudonyms and it is necessary to ascertain the time for the completion of works. Therefore, these countries also adopt the policy of voluntary registration of copyright, providing copyright owner with registration in real name, of completed time and other matters concerned.
According to incomplete statistics, nearly 70 percent of the nations across the world stipulate the voluntary registration system. The NCAC promulgated rules for voluntary registration of works in 1994. More and more attention has been paid to evidence of copyright registration in judicial interpretation and practice in China since then. However, there is still room for improvement in terms of the correct understanding of the role and significance of copyright registration, and the copyright legal system as well. It has become an international concern about how to enhance such registration and establish relevant legal system to keep abreast of communication technologies development, especially in the digital networked era.
WIPO has conducted surveys and researches on copyright registration across the world in recent times, and held a special seminar last year to sum up various conditions related to copyright, hoping to achieve a better registration in the future. It may be safe to say that copyright registration is of greater significance for the protection of owner’s rights in digital networked era. However, more observation and studies need to be conducted in the future to explore the binding force of copyright registration and appropriate legal systems for such registration.
China IP: What’s your opinion on the effect and significance of copyright registration?
Mr. Suo: I think we should evaluate it from two aspects. Firstly, we should value copyright registration because it is a fundamental and essential system for copyright protection. As mentioned above, the registration focuses on the issues related to the creation of works, such as the time of the completion of the work, whether to make a work available to the public, the first publication of such work, etc. Recording these matters is of great significance to determine the ownership of copyright. It serves as an objective record of the corresponding relations between copyright owners and the work and his prior creation of such works. It is used as evidence from time to time to infer the copyright holder's identity and determine whether there is plagiarism in registration. It also helps the owner reduce litigation costs related to gathering evidence and risks undertaken by the authorized party in business.
Copyright registration will play a more important role where there is a transfer of copyrights and other changes in the copyright contents. It is common knowledge that copyright does not require the possession of the original work because it is a kind of intangible property. Therefore, the law stipulates that there shall be a record and registration where there is a change of copyright. It is hoped that registration and recording can serve as effective evidence to protect the legitimate rights of the innocent assignee in the event of a multiple transfer of copyright.
However, there are still many areas to be improved in China's legal system for copyright registration at present. Apart from the administrative rules, no basis for copyright registration can be found in the Copyright Law itself. There is also no basis in the implementing regulations in terms of the legal system. Many questions have never been clarified and settled in copyright administrative regimes, although the NCAC issued a notice addressing the need to strengthen copyright registration. The Implementing Regulations of the Copyright Law of the People's Republic of China stipulates that “The licensing to use contract, contract of copyright transfer with the copyright owner may be subject to copyright administration department for recordation”. However, it has no provisions about the binding force of such contracts, and there is still chaos between and among other areas of copyright registration. It is expected that attention may be paid to these issues in the amendment of Copyright Law in the future.
Secondly, the role of copyright registration is limited and no exaggeration should be encouraged. Copyright registration shall never surpass or substitute the automatic generation of copyright, which has been a basic principle of copyright law. Registration shall never serve as the prerequisite for copyright protection. The copyright owner shall not be misled by authorities in the implementation of the copyright registration system. There should be proper interpretation and guidance in the copyright registration. We should bear in mind that copyright registration is essentially different from the registration of patent or trademark because of its special characteristics; that there is no direct connection between the quantity of copyright registration and the creation and dissemination of literary and artistic works; that copyright registration has nothing to do with the collection of a work’s information; that there should be no worship of quantity in copyright in comparison with patent and trademark; and that the normal dissemination of works shall never be affected by copyright registration under any circumstances.
China IP: What copyright registration can do for the protection of painting and calligraphy works?
Mr. Suo: Painting and calligraphy works belong to works of fine art under China’s Copyright Law. It is a kind of dimensional work with a huge quantity of authors, various means and an extensive extent of dissemination of works. There is usually a considerable proportion of works of fine art among all the registered works. Disputes on the copyright of works of fine art have been heard from time to time, including unauthorized publication of pictures and other publications; unauthorized inclusion of outdoors sculptures in trademark design, plagiarism of other’s works in the design of textile patterns, having the author’s name mentioned in connection with a work without permission, etc.. There are many reasons for such disputes related to the copyright of works of fine art, including infringement in bad faith, the user's misunderstanding of copyright law, and the feature of works of fine art where there is a tendency and custom for the creators to learn from and imitate each other. In addition, the original of a piece of fine art is often transferred to a third party. This sometimes creates obstacles for the creator who later seeks to exercise his rights as the owner of the copyright. Therefore, it is a relatively effective choice for the parties concerned to have a copyright registered in advance of the transfer in order to avoid copyright disputes in the future.
Many issues and work samples are recorded and preserved through copyright registration, including the name of the copyright holder or author, the time of the completion of the work, whether to make a work available to the public, the first publication of such work, the time of publishing, and other matters. All these issues shall be used as primary evidences to ascertain whether the acts of an illegal user constitute plagiarism and whether he should bear infringement responsibilities. They have no adverse effect on the owner of the creator of the works of fine art to exercise his rights where the original copy is transferred.
China IP: Can you tell us the specific steps for the painting and calligraphy copyright registration? Is there anything that registrants should pay special attention to in the registration process?
Mr. Suo: The documents for copyright registration including: (a) The application form. The form should be filled out completely and provide all the basic information, including the name of the works, the name of the copyright holder, the authorship, the completion time of creation, whether to make a work available to the public, the first publication of such work, the time of publication, the ways of creation, how to contact the applicant, etc.. It is required that the applicant provide all the required information accurately. (b) Evidence. The applicant is required to fill in the form and provide relevant documents consistent with the information that is written on the form, including his ID card, business license, corresponding contract and other materials where there is a joint, commissioned, employed or legal entity’s work involved, and the power of attorney where the registration is conducted by an agent. (c) Work samples. The applicant is required to provide work samples which are consistent with the work that is being registered when he fills in the form. Specific requirements have been formulated for the registration agency to check when accepting the form and during the review procedure. The registration agency must order the applicant to make corrections where the formal requirements are not satisfied. The registration agency shall issue the registration certificate to any applicant who has met all the requirements. The certificate shall include the registration number, registration time and other major elements necessary for evidence of registration. The registration agency has no obligation to ascertain the authenticity of the material submitted by the applicant. However, it may revoke the registration where it knows there is unauthenticated information, or a violation of requisite provisions under the administrative regulations.
The CCPC has made continuous efforts to popularize and improve the copyright registration form and process in recent years. Various registration norms have been formulated; cooperation with many partners has been conducted through various forms; a registration information system has been developed and operated; a business hall for registration has been completed; and other steps have been taken. In one word, the CCPC has done its best to provide applicants with effective services through the improvement of working methods and efficiency.
Mr. Suo Laijun, former Director of Copyright Management Division of National Copyright Administration of the People’s Republic of China (NCAC), is currently the Deputy Director of China Copyright Protection Center (CCPC) in charge of works and software registration. He has done in-depth researches on the theory and practice of copyright registration by making use of his experiences in legal research and administration in the fields of copyright, including participation in the drafting, amendment, and implementation of copyright laws, administrative regulations and rules. Mr. Suo has thus become an authoritative expert on copyright registration in China.

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