Right to Integrity and the Proposed Resale Royalty Right and Notification Right in the PRC Copyright Law

By Ma, David S. W. | Stanford Journal of International Law, Summer 2013 | Go to article overview

Right to Integrity and the Proposed Resale Royalty Right and Notification Right in the PRC Copyright Law


Ma, David S. W., Stanford Journal of International Law


This Note discusses the enforcement of the right to integrity by PRC courts and compares the Resale Royalty Right and Notification Right in the proposed amendment to the PRC Copyright Law to the laws of the United Kingdom and the United States. PRC courts have not consistently enforced the right to integrity. In order to secure international confidence in the PRC legal system and art market, China should implement detailed regulations governing the enforcement of the Resale Royalty Right and Notification Right and the courts should consistently enforce such rights.

I. THE PRC COPYRIGHT LAW THIRD AMENDMENT
     A. Amended Personal Rights
    B. A New Resale Royalty Right
    C. A New Notification Right before Destruction

II. BACKGROUND TO THE PRC COPYRIGHT LAW THIRD AMENDMENT
    A. The Resale Royalty Right
    B. The Notification Right

III. MORAL RIGHTS ORIGINS AND THEIR RECEPTION IN THE UNITED KINGDOM
AND THE UNITED STATES

IV. THE PRC APPROACH TO MORAL RIGHTS AND THE RIGHT TO INTEGRITY
    A. The Right to Integrity--Modification
    B. The Right to Integrity--Contextual Treatment

V. RESALE ROYALTY RIGHT AND NOTIFICATION RIGHT IN THE UNITED
KINGDOM, UNITED STATES, AND THE PRC
    A. The Resale Royalty Right
    B. The Notification Right

VI. CONCLUSION

I. THE PRC COPYRIGHT LAW THIRD AMENDMENT

On October 30, 2012, the General Administration of Press and Publication and the National Copyright Administration of the People's Republic of China (PRC) held a conference in Beijing to discuss the third draft of the proposed third amendment to the PRC Copyright Law, which in due course will be submitted to the Central People's Government for approval. (1) Unlike the two preceding drafts that were released for public consultation, the text of this third draft is not available to the public. (2)

The PRC Copyright Law, first promulgated on September 7, 1990, was previously amended on October 27, 2001 and February 26, 2010. (3) The first amendment came about as a fulfillment of the prerequisites to the PRC's entry into the World Trade Organization (WTO), and the second amendment was made in compliance with the recommendations made by the dispute settlement body of the WTO in a dispute between the PRC and the United States. (4) Instead of using the more common approach of "marking-up" the existing statute, the present third amendment is a major overhaul that will replace the entire text of the current Copyright Law. The new draft is based on the existing statute but displaces the numbering of most articles.

This Note outlines and discusses the background to selected sections of the proposed amendments, examines how the PRC courts inconsistently enforced the right to integrity, and compares the proposed Resale Royalty Right and Notification Right in the second draft of the third amendment to their counterparts in the United Kingdom and the United States. In order to secure international confidence in the PRC legal system and art market, China should implement detailed regulations governing the enforcement of the Resale Royalty Right and Notification Right and the courts should consistently enforce such rights.

A. Amended Personal Rights

Article 11 of the second draft of the proposed third amendment revises the definition of the right of attribution from "the right to be identified as the author of a work and to mark the same on the work" (5) to "the right to decide whether to and how to disclose the identity as author."(6) The definition of the right of alteration (7) is collapsed into that of the right to integrity, (8) which now includes both "the right to authorize others to modify the work" and "the right to prevent any distortion or mutilation of the work." (9)

B. A New Resale Royalty Right

Article 12 creates a right to resale royalties (Resale Royalty Right) for the original of an artistic work and photographic work as well as the original script of a literary and musical work. …

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