More is Less: A Critical Review of Works Made For Hire Rules in China

• Author: Jiang Ge
• Pages: 172-190

JIANG (DO NOT DELETE) 15/12/9 10:45 AM

172 TSINGHUA CHINA LAW REVIEW [Vol. 7:171

MORE IS LESS: A CRITICAL REVIEW OF WORKS MADE FOR

HIRE RULES IN CHINA

JIANG Ge

Abstract

The creation of works in modern society is becoming more and more impersonal, and the

majority of works are created as works made for hire. Reasonable property rules are required

to minimize transaction cost and to facilitate smooth dissemination of such works. However,

neither the current nor the envisaged amended version of Chinese Copyright Law provides

works made for hire rules, which are fair and predictable enough. Rules with continental

European origin and those with Anglo-American characteristics collide with each other,

causing confusion in court practice and in research. Awareness of the imperfectness is

important for both scholars and practitioners interested in the protection of intellectual

properties in China. To bring the status quo into a fairer and more predictable set of rules,

colliding rules should be harmonized. In pursuing this goal, the freedom of contract, as

strengthened by the envisaged revision of copyright law, is not sufficient. It is also

recommendable to make employment a pre-condition of Legal Entities’ Works.

I. INTRODUCTION

Few would seriously doubt that, in comparison with pre-modern

times when works were often occasional sparks of individual

intellectuals, more and more works are not ignited by the creator

him- or herself, but created for someone else, whether within an

employment or non-employment framework (hereinafter “Works

Made For Hire”). It is hardly possible to obtain reliable statistics of

the proportion of Works Made For Hire among all works created in

China 1 because Chinese Copyright Law 2 requires neither

publication nor registration as a pre-condition for the protection of a

work. Copyright is established upon completion of a piece of work.3

Yet the trend that the majority of works in China are becoming more

1 As a rough indication to the importance of Works Made For Hire in modern times, see MANFRED

REHBINDER, URHEBERRECHT, 4 (2010) (indicating that only about 22% of people working in

copyright-based industries in Germany are self-employed).

2 Zhonghua Renmin Gongheguo Zhuzuoquan Fa (著作权法) [Copyright Law of the People’s

Republic of China] (“Chinese Copyright Law”), (pro mulgated by the Standing Comm. Nat’l People’s

Cong., Sept. 7, 1990, effective June 1, 1991) (all three versions referred to as C hinese Copyright Law

1990, 2001 and 2010 respectively) (Chinalawinfo). English translation thereof can be found in the

online database of laws and regulations of the National People’s Congress [hereinafter “NPC”], the

highest legislative body in China, http://www.npc.gov.cn/englishnpc/Law/Integrated_index.html (last

visited Oct. 11, 2013).

3 Zhonghua Renmin Gongheguo Zhuzuoquanfa Shishi Tiaoli (中华人民共和国著作权法实施条

例) [Regulations for the Implementation of the Copyright Law of the People’s Republic of China]

(“Implementation Regulations”), (promulgated by St. Council, Aug. 2, 2002, effective Sept. 15, 2002)

art. 6 (Chinalawinfo). English version can be fo und in e.g., 71 CHINA PAT. & TRADEMARKS 95 (2002)

(translation of Chinese laws and regulations in this article made by the author with reference to

pre-existing translations).

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and more commercial and impersonal is too obvious to deny. This

social background might explain the legislative ambition to regulate

issues related to such works. Rules from both continental European

and Anglo-American jurisdictions were transplanted into the Chinese

Copyright Law.

Good intention, however, does not always lead to satisfactory

outcome. As the Chinese saying goes: “More haste, less speed (yu su

ze bu da).” Rules with heterogeneous origins raise confusion that is

found neither within the continental European nor the

Anglo-American tradition. Realizing that knowledge of possible

problems regarding proprietorship of works made for hire is

indispensable for the understanding of copyright regime in China,

bearing in mind the importance of clear property rules for the

development of copyright-based industries, this article serves not

only as an information source of facts and issues, but more as a

discussion forum for possible solutions. It starts with an overview of

Works Made For Hire rules in China (infra Part II), followed by an

analysis of the troubles brought on by these rules (infra Part III) and

a flashback to the legal transplantation history during which the

mismatch emerged (infra Part IV), and ends up by questioning how

these problems might be solved (infra Part V).

II. DEFINITIONS AND RULES

As a general rule, the natural person4 having created a work is its

author (hereinafter “Natural Person Author”) (Art. 11 (2)5) and

holds its copyright6 (Art. 11 (1)). The Natural Person Author enjoys

4 Chinese Copyright Law uses “citizen” instead of “natural person”, which is correctly criticized by

e.g., Li Mingde, Guan Yuying & Tang Guangliang (李明德，管育鹰，唐广良), Zhuzuoquan Fa

Zhuanjia Jianyi Gao Shuoming (著作权法专家建议稿说明) [Proposals for the Amendments of the

Copyright Law of China], 80 (2012) (stating that the concept “citizen” is a concept normally used in

public law which refers to someone with a certain nationality); see XIANFA art. 33,§1 (1982) (China).

Since Chinese Copyright Law acknowledges stateless persons to be eligible copyright holders, the term

“citizen” is improper. See also Yong Wan, Moral Rights of Authors in China, 58 J. COPYRIGHT SOC'Y

U.S.A. 455, 457 (2011-2012).

5 Articles and sections without reference to the name of the codification are those of the Chinese

Copyright Law 2010.

6 There are two Chinese terms referring equally to copyright: one is “author’s right” (zhuzuoquan)

and the other is copyright (banquan). The former is said to stem from the droit d’auteur tradition, while

the latter to be traced back to the Anglo-American tradition. According to available documents at the

beginning of twentieth century, “copyright” was widely used in private correspondence and newspaper

articles, see Zhongguo Banquan Shi Yanjiu Wenxian (中国版权史研究文献) [Documents For

Research of Chinese Copyright History] 18-23 (Zhou Lin et al. (周林等) eds., 1999) [hereinafter Zhou

et al.]. But see Daqing Zhuzuoquan lü (大清著作权律) [Copyright Act of Great Qing] (1910) (the first

copyright codification in China promulgated by the last Emperor of Qing Dynasty in 1910, using the

term “author’s right”). F or history of Chinese copyright law, see Feng Xiaoqing, Yang Lihua & Huang

Xianfeng Frank, Awakening of Sleeping Dragon: The Evolution of Copyright Conception in China, 51

J. Copyright Soc’y U.S.A 615, 632-635 (2003-2004) [hereinafter Feng et al.]. The Chinese Copyright