The Legal Properties of Film

This article focuses on the manner in which the law of copyright in the UK has made sense of a particular cultural artifact – film – in the process of figuring it as an object in which property rights can subsist. It traces the history of legislative and judicial attempts to circumscribe the boundaries around this object, noting that two approaches have emerged and now co-exist: a 'physicalist' approach which treats a film as co-extensive with its recording on some medium; and a 'formalist' approach which treats a film as an expressive form exceeding this physical manifestation. It explains why each approach is reductive and impoverished when considered in relation to how films are figured as aesthetic objects; and concludes that a modified version of the available Marxist explanations of film copyright reveals the latter's understandings of film to be closely articulated with the purposes and values of the mainstream film industry. More generally, it suggests that a reappraisal of Marxist theory may be timely at this juncture, not least because it draws attention to law's role in exemplifying the entwinement of culture and economy at a number of levels.     

To share is fair: The changing face of China's fair use doctrine in the sharing economy and beyond

Copyrighted works are greatly entwined with the concept of the sharing economy because of their status as informational public goods. Unlike commercial sharing models that address tangible goods such as bikes and houses, the sharing of which is limited by their physical nature, sharing models for intangible copyrighted works such as Google Books and live game webcasting must account for the comparatively unfettered ability for these to be shared. Accordingly, these models are more focused on exploiting such works to their full commercial potential. However, these sharing models are to a large extent based on the unauthorised exploitation of copyrighted works and will be unworkable if the related copyright issues cannot be solved. The interest that copyright owners have in exclusivity must thus be balanced with the public's interest in further exploitation of copyrighted works. Article 22 of the Copyright Law of China outlines an exhaustive list of copyright exceptions; such a restrictive list is incompatible with the sharing economy. The Chinese courts have realised this problem and have gone beyond the law in their judgments, taking a cue from their US counterparts. However, many of these decisions appear to be inconsistent with one another.To address the aforementioned problems, this paper examines the latest proposed amendment to the Copyright Law of China and proposes several legislative and judicial actions that could help promote the sharing economy. At the legislative level, enacting legislation based on a refined open-ended fair use model is necessary to promote the development of the sharing economy. At the judicial level, Chinese courts should employ the concept of transformative use to correctly interpret legislation based on the proposed open-ended model. With transformative use as the cornerstone of copyright policy, the public gains the freedom to share others’ works, participate in the innovation process, and create works with new value. Moreover, authors would retain an incentive to create works under such a legal regime because market substitution will not occur if a work is used for a different expressive purpose than that for which the work was originally created. Thus, a balance can be achieved between promoting the sharing economy and protecting the exclusivity of copyright in China.     

试析法人作品与职务作品的区分标准

如何区别法人作品与职务作品已成为理论与实务的难点。应从作品所体现的意志加以判定,具体表现在三个方面:作品署名;作品内容;作品的性质与用途。同时,为激发作者的创作热情,保护作者的合法权益,应严格解释法人作品。     

Plays,Performances and Power Struggles – Examining Copyright's ‘Integrity’ in the Field of Theatre

This article explores the notion of ‘integrity’ under copyright law by analysing examples of 'integrity‐based objections' in the field of theatre. These objections typically involve playwrights objecting to changes being made to their copyright works by other parties, such as directors and actors. This analysis is deepened by the use of two concepts from the field of art theory – ‘aura’, as put forward by Walter Benjamin, and ‘trajectory’, as outlined by Bruno Latour and Adam Lowe. Finally, to shed further light on the issues raised, the work of Pierre Bourdieu is used to present new empirical research recently undertaken by the author in the field of UK theatre. This research demonstrates that ‘power struggles’ are a common feature of theatrical collaboration; that copyright is deeply implicated in the way such power struggles are conceived; and moreover, that resolving these power struggles successfully – including taking account of ‘integrity‐based objections’ – is crucial to theatrical practice.     

Legal protection of software—a global view from Japan

An investigation of legal measures for the protection of software reveals a number of important insights into the scope and nature of copyright. Rather than something unique for legal purposes, software and recorded media is actually familiar information. Hence, it is protectible by regular copyright. Regular copyright has two relatively distinct branches, in published and unpublished works. Despite the notion that copyright covers only mode of expression, it is actually applied to protect certain types of information content. As it is so applied, copyright in unpublished works transferred subject to restrictions on the use and disclosure of their information content is equivalent to trade secrecy in the American sense. The nature and scope of copyright is intrinsic and universal wherever it applies. It provides an ideal basis for a much needed international consensus on legal measures for protecting software program interests. It would be needlessly provocative for the USA to attempt to induce Japan or any other country to adopt trade secrecy in the American sense. Japanese support for a new program right as an alternative to copyright probably arose largely out of a lack of understanding of the scope and nature of copyright, especially in unpublished works. As it is applied, copyright generally is unfair competition law in the American sense. Applying it in that light, rather than as traditional copyright, provides wiser treatment of new phenomena that involve software programs, such as copying the structure and format of software programs.     

Copyright protection for AI-generated outputs: The experience from China

Artificial intelligence (AI) is involved more frequently in the creative process nowadays, which raises debates associated with copyright protection for its outputs across the globe, China included. On 25 April 2019, the Beijing Internet Court released the first decision in relation to the copyrightability of the output automatically generated by computer software in China. In this case, the Beijing Internet Court held that copyrightable works should be created by natural persons, and therefore denied copyright protection for the output intelligently generated by computer software although it possessed originality. In another case decided on 24 December 2019, the Nanshan District Court of Shenzhen approved that the output automatically generated by computer software was copyrightable, holding that the review generated by an intelligent writing software conformed to the formal requirements of written works and it could be granted copyright protection.This article analyses these two cases in detail and describes the experience of China in copyright protection for AI-generated outputs. As the first two cases about copyrightability of AI-generated outputs in China, the two cases play a significant role in future copyright protection of such outputs nationally and internationally. The two cases indicate that some of AI-generated outputs are eligible for copyright protection in China. Instead of challenging the existing doctrines of modern copyright regime, the two decisions provide a mechanism for copyright protection of AI-generated outputs within the current human-centered copyright law realm.     

Is it a fair deal to tell tales on the tabloids?

Legal context. A recent High Court judgment, Fraser-WoodwardLimited v BBC and Brighter Pictures Limited, is of key interestto those that use or advise upon the use of copyright materialfor the purposes of criticism or review. Key points. This case involved the use of newspaper photographsof David and Victoria Beckham in a television documentary aboutthe relationship between celebrities and the press. The programmeillustrated its theme using screenshots of tabloid newspaperpages, which inevitably included a number of photographs. Theclaimant was the copyright holder in respect of a number ofthe photographs, and alleged that their reproduction in theTV programme was an infringement of copyright. The defendantssuccessfully relied upon the fair dealing and incidental inclusiondefences to copyright infringement. Practical significance. Although each fair dealing case willultimately turn on its own facts, Mann J gave a very usefulreview of the state of copyright law in this difficult area.     

Hyperlinks citations, reproducing original works

A hyperlink (or simply a link) is a citation of an electronic address where further information can be found but, additionally, navigates the surfer almost instantaneously to material hosted anywhere on the Internet at a mere click of a mouse. Controversy arises because either the composition or functionality of the hyperlink can potentially infringe property rights of the claimant. Many have written about the hyperlink as a navigation tool authorising or contributing to infringement of copyright by a third party.¹This article concentrates on the composition of an external hyperlink, as a citation. Part 2 outlines the nature of Internet communication and explains why hyperlinks are often controversial. Part 3 asserts when copyright subsists in original literary works, but because a hyperlink may incorporate diverse formats, this part also addresses the protection of other works including the issue of composite works covered under section 1(1) of Copyright, Design and Patents Act, 1988. Applying copyright principles, it suggests that a hyperlink reproducing an identifiable part of a web page capable of standing apart from its context can infringe copyright in the web page containing the part. That said the claimant might face difficulty in demonstrating that the work is substantive or, where the hyperlink consists of diverse inputs, in categorising the subject matter. Part 4 acknowledges the significance (electronic) collections and therefore defines a database falling within the Databases Directive.² It then highlights challenges presented by copyright and sui generis right relating to databases concluding that reproducing an identifiable part of author compiled work can infringe copyright and/or sui generis right therein but the same is not true of search engine generated returns. Part 5 concedes that, in practice, subsistence of copyright and/or sui generis right is open to challenge because the part reproduced in a hyperlink may not be substantive, may not easily fit into the category of protected subject matter or lacks ‘substantial investment.’ Nevertheless, it argues that proving infringement in an identifiable part of a web page reproduced in a hyperlink remains the most viable option for indirectly controlling access to the target page, which may itself be unprotected by copyright.     

《著作权法》修改:关键条款的解读与分析(下)

修改后的《著作权法》将视听作品分为"电影作品、电视剧作品及其他视听作品",并分别规定了不同的著作权归属规则,但两类视听作品分类标准不明,且对其他视听作品采用约定优先的著作权归属规则,不利于此类视听作品的许可与传播。当一名合作作者无正当理由反对对合作作品的特定利用时,其他合作作者不能发放专有许可,这可能给合作创作的学术论文和专著的出版带来负面影响。修改后的著作权法将电台、电视台和报刊通讯社员工的职务作品定为特殊职务作品,可能产生其员工离职后无法获得出版其职务作品文集所须授权的问题。新增的有关职务表演的规定合理地解决了长期以来将"演出单位"作为"表演者"的问题。对传播录音制品获酬权的规定并不是法定许可,因为《著作权法》并没有为录音制作者规定除信息网络传播权之外的传播权专有权利。修改后的《著作权法》的一大亮点是将广播组织的转播权以技术中立的方式拓展至网络环境。有关用作者的署名推定权利存在的规定,被诉侵权人应证明其使用涉案作品已获许可的规定,以及法院有权没收和销毁侵权复制品的规定,均直接来源于《中美经济贸易协定》,其中有些仅具有形式意义。修改后的《著作权法》为摄影作品享受新的保护期(作者有生之年加50年)所设定的条件与《世界知识产权组织版权条约》不一致,可能需要再次修改。     

中美实用艺术品著作权保护比较研究——兼论我国实用艺术品著作权保护的路径

实用艺术品的著作权保护问题实质上是如何确立著作权保护范围及标准的问题。我国现行《著作权法》并未将实用艺术品作为受保护客体,但也并未将其排除在著作权保护范围之外。而美国在实用艺术品的著作权保护上于立法层面是非常清晰的,在《1976年版权法》中已明确将其列为受保护客体,美国法院的诸多判例也影响了实用艺术品著作权保护研究的方向。本文梳理了中美两国实用艺术品的著作权保护问题的历史沿革及现状,总结归纳了两国具有代表性的判例,以求通过对比提炼出两国著作权法及司法实践中存在的问题。美国的相关立法及其司法裁判经验对于我国实用艺术品的著作权保护具备重要借鉴价值。     

Creative Commons Licences,the Copyright Regime and the Online Community: Is there a Fatal Disconnect?

Creative works on the Internet (online works) present challenges to the traditional copyright model. Creative Commons licences are one response to these challenges. Despite the many positive features of Creative Commons licences, certain aspects have attracted criticism. The flaws in Creative Commons licences are a symptom of a broader failure of the copyright system itself to engage with the community. Creative Commons licences operate within the traditional copyright model, despite having some resonance with a developing copyright paradigm. Yet many concepts of copyright are not understood by the wider community; indeed, some remain a source of ongoing debate within the legal academy. Furthermore, there is evidence that community norms and expectations in relation to online works conflict with the legal environment provided by copyright law. The author argues that until these issues are addressed, an attempt to reconceptualise the legal environment by working within its constraints is unlikely to be successful.     

论续写作品的著作权保护

分析了续写作品的特性:对原作品的依附性,包括对原作内容和篇名上的依附性、名气上的依附性;自身的独创性:独创性是其最本质的特征,是续写者独立思考独立创新的结果,续写作品与原作品之间有实质性差异,与原作品是可以分离的。并在此基础上指出,续写作品是对原作品的合理使用,并没有侵犯原作者的著作权,应当受到著作权法的保护。     

Defending intellectual property: State efforts to protect creative works

We examine state efforts to protect intellectual property. In particular, we assess two alternative hypotheses relating to these efforts: the intellectual property protection argument, which predicts an increasing amount of law aimed at protecting intellectual property from unauthorized use; and the intellectual property access argument, which predicts little growth in law aimed at protecting intellectual property but considerable growth in law aimed at providing access to it. Focusing on copyright law, we consider legislative action dealing with copyright between 1949 and 1992, efforts to enforce copyright law as a whole between 1955 and 1993, and efforts to enforce copyright law in one sphere between 1985 and 1994. Our analysis provides mixed support for the intellectual property protection argument. Federal legislators increasingly sought to pass laws protecting creative works, and their efforts intensified over the last decade. On the other hand, federal officials were less than aggressive in enforcing the law; although the courts were diligent in processing cases of copyright infringement, officials exhibited diminished initiative in bringing such cases to court. Local officials, however, seemed to become far more active in prosecuting cases.     

论作品的独创性——以滑稽模仿和后现代为视角

作为著作权的客体,作品是一个重要的概念,而作为作品灵魂的独创性可谓著作权法的核心概念之一。独创性概念伴随着著作权理论的产生而创立,构成了著作权制度的基础,是作品获得保护的根本理由。后现代主义却对传统的独创性观念提出了挑战,源于文学理论本身的滑稽模仿在某种程度上回应了这种挑战,这究竟是著作权法对后现代主义的无奈妥协还是作品本性的彰显?也许,有时抛开法律进行思考有助于我们重新审视独创性本身,并藉此对著作权制度有更深入的认识。     

由一起官司看网络环境下数字作品的著作权保护问题

信息技术的飞速发展,使得网络环境下的数字作品创作和传播方式相对于传统方式发生巨大变化,与之俱来的是数字作品的著作权保护问题形成了对传统著作权的巨大挑战。从一起相关案件入手,分析了产生数字作品著作权问题的原因,并提出网络环境下的数字著作权保护问题应从法律及信息技术两方面寻求解决的出路。     

South African Supreme Court rules on copyright in software and computer-generated works

The South African Supreme Court of Appeal considers a numberof fundamental issues concerning copyright protection of computerprograms and computer-generated works; in doing so, the courtanalyses a number of basic copyright principles, notably themeaning of originality and the meaning of ‘substantialtaking’ in infringement cases.     

论境外影视作品版权的二元保护

原《著作权法》第4条规定＂依法禁止出版、传播的作品,不受本法保护＂。该规定对境外影视作品未予以充分保护,不仅违背了＂版权自动取得＂原则,而且招徕版权国际纠纷。中美争端案让我们开始反思境外影视作品的保护模式,并加快了对境外影视作品保护的研究进程。本文对一元版权保护模式作出了反思,并以二元理论为视角对境外影视作品的版权及其保护作出论证。希冀在二元保护模式下提高对境外影视作品法律保护的能力,减少版权国际纠纷,促进我国版权国际化的发展。     

论汇编作品的著作权

汇编作品是对现有作品和资料在不改变原作内容的情况下进行选题、筛拔并加以编排组合而成的作品，受我国著作权法的保护。汇编作品与其他作品有着不同的创作方式，编辑人员是汇编作品的组织者和策划人，编辑人员为汇编作品而创作出新的作品，编辑人员对汇编作品的版面编排付出了匠心。汇编作品中各篇独立文章享有著作权，而作为整体的汇编作品的著作权由汇编人享有。汇编作品的著作权源于汇编人的创造性，汇编作品之汇编者的著作权主要有发表权、署名权、版式、装帧设计专有使用权、取得经济报酬权等。     

《著作权法》修改:关键条款的解读与分析(上)

修改后的《著作权法》将"作品类型法定"模式改为"作品类型开放"模式,可能将导致作品与其他智力成果的界限变得模糊不清。法院应避免为"创新"而不当扩张著作权的保护范围。广播权被重新定义为可规制任何以非交互式手段向公众传播作品行为的专有权利,具有实质意义。"三步检验标准"的纳入是对法定权利限制的适用进行再限制,并非允许法院自行创设新的权利限制。有关制作和向视障者及其他阅读障碍者提供无障碍格式版的权利限制意义重大,其扫清了我国批准《马拉喀什条约》的障碍。对涉及课堂教学和免费表演的权利限制的修改形式意义大于实质意义。对有关复制公共场所艺术品的权利限制的修改可能造成误解。删除"播放以录音制品体现的作品的法定许可",并不意味着广播电台、电视台今后播放录音制品时须经过其中作品著作权人的许可,对其行为应适用"播放已发表作品的法定许可"。     

Does private copying need an update in the UK?

Legal context: Most European legal systems have limited the ‘exclusive’reproduction right of authors in their works to enable usersto copy, for private purposes and without the authorizationof the authors, legally acquired protected material. In exchange,authors receive compensation for their loss of control of theircreations. The UK Copyright Act does not generally permit privatecopying, but it does exempt a few acts from the exclusive rightsawarded to authors through copyright. Key points: The article examines the limitations to the reproduction rightprovided by IP law in the UK, such as time-shifting, in thelight of relevant case law—GEMA (1964), Sony v UniversalStudios (1984)—the European Copyright Directive and aEuropean sector inquiry. Many countries have established levieson copying-friendly media where their proceeds are distributedto authors as compensation. This article argues for the needto reform the IP law in the UK, arguing that time-shifting andother reproduction acts authorized by the statute are privatecopying in disguise. The paper only considers legal privatecopying, which should not be mistaken with piracy or file-sharingin P2P networks. Practical significance: Copying another's works in the privacy of one's home has becomeincreasingly popular on account of the fast-developing paceof technology and its supporting platform: the internet. Althoughlevies have often been imposed on physical media (CDs, CDRs),new technologies such as MP3 and MP4 players and USB flash drivesare often exempted, despite their widespread use as tools forprivate copying. The private copying trend is bringing greaterbenefits to the users than to the creators of protected workswho understandably would like to obtain a share of the overallprofits.