Point of View | A Brief Analysis of the Copyright of Translated Works
Published:
2022-12-15
In recent years, my country's translated and published works have a variety of varieties and rich content, which have made up for the shortcomings of the domestic original market and have had a huge impact on the Chinese publishing industry. With the further deepening of reform and opening up, globalization, informatization and networking have brought opportunities and challenges to translation and publishing. For the process of translation and publication of foreign books, China has made legal requirements: to publish translated works, we must first solve the copyright problem. Translation works usually involve more than one country. The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) is the oldest international treaty on copyright protection, signed on September 9, 1886. The original signatories were ten countries, including Britain, France, Germany, Italy, Switzerland, Belgium, Spain, Liberia, Haiti and Tunisia. On September 5, 1887, the signatories (except Liberia) exchanged instruments of ratification. The Convention entered into force three months later, in December 1887. This was the world's first international copyright convention. All the countries participating in the Berne Convention form a union called the Berne Union. We became a member of the Convention on 15 October 1992. The scope of works protected by the Berne Convention is all literary, artistic and scientific works first published in a Contracting State by a national of a Contracting State. The treaty, centred on the principle of national treatment, requires that the author of a work created in any member State of the Union, or whose work was first published in any member State, shall enjoy the same protection in other member States as that accorded to the work of its own nationals. The legal application of foreign-related copyright in China is basically in accordance with the provisions of the Berne Convention, and the principle of national treatment is adopted for the protection of copyright. According to this principle, nationals who are entitled to national treatment include "nationality of author" and "nationality of works", that is, for Chinese citizens, legal persons and other units, whether they are in the territory or not, whether their works are published or not, they are all works of our country; works of foreigners that are first published in China are regarded as works of our country; works of foreigners that are published in China within 30 days after they are first published in other member states are also regarded as works of our country. Foreigners can also make their works protected by China's copyright law on the basis of signed agreements and international treaties. The author compares the Berne Convention and the the People's Republic of China Copyright Law (2020 Amendment), and briefly summarizes the relevant legal provisions on copyright in translated works as follows: 1. Protection of the Rights of Copyright Owners (I) the protection of the rights of the author in our country's law (II) International Copyright Convention on the Protection of the Rights of Authors Combined with the above terms, the right of translation shall be enjoyed by the copyright owner from the beginning. Only with the authorization of the author can he translate and publish the work, otherwise it constitutes infringement. 2. restrictions on the rights of copyright owners In the international treaties related to intellectual property rights and the intellectual property legislation of various countries, in some cases, the law allows others to freely use copyright works based on legitimate purposes and means without obtaining the consent of the copyright owner, that is, "copyright exception". In addition to protecting the legitimate rights and interests of authors of literary, artistic and scientific works, the law promotes cultural exchanges through exceptions and restrictions on the use of works, protects the public interests of the public, and reflects the pursuit of fairness and justice. (I) the limitation of the rights of the author in our country's law. Corresponding to the protection of rights, the law of our country also makes certain restrictions on the rights of copyright owners. According to Article 24 of the Copyright Law of the the People's Republic of China (2020 Amendment), in some cases, the copyright owner may not be allowed to pay remuneration to the copyright owner without permission, but the name or title of the author and the title of the work shall be specified, and shall not affect the normal use of the work, nor shall the legitimate rights and interests of the copyright owner be reasonably damaged. Listed as follows: Clause 1 is limited to use solely for personal purposes. (2022) in the civil judgment No. 170 of Shanghai 73 min zong, the Shanghai intellectual property court held that the party concerned, as a company engaged in market operation, published the published works of others on Weibo, and the contents published on Weibo can be used for the introduction and promotion of its business matters, which obviously does not belong to the reasonable use situation stipulated in the copyright law, It infringes the copyright owner's right of information network dissemination of the works involved in the case. The court comprehensively considers the relevant circumstances to determine the amount of compensation to be borne by the parties for the infringement. The "reference" in clause 2 must be necessary, that is, the purpose and use of the reference must be limited to introducing, commenting on the work or explaining the problem. Under the premise of necessity, "citation" must also be in line with appropriateness, that is, the number, method and scope of the use of the work should be controlled within a certain limit, so as to avoid unreasonable damage to the interests of copyright owners. (2022) in the civil judgment of Lu 06 min zong No. 2502, the intermediate people's court of Yantai city, Shandong province held that the public number of royal ranch company publishing the alleged infringing article was "royal ranch imported food self-operated pavilion of Canada". as the business entity selling related products, when using its wechat public number to publish the involved article, the advertisement of the relevant royal ranch company was attached to the end of the alleged infringing article, subjectively, it has the purpose of attracting the relevant public to click into its public number with the help of the popularity of the works involved, and at the same time objectively, it will play a role in publicizing and promoting its own products. Secondly, the Royal Ranch Company used 39 comic works of the copyright owner in the articles published by its public number, so that network users can obtain the comic works involved in the case by browsing the public number articles, thus substantially replacing the browsing and access of the personal microblog content of the copyright owner of the works involved and the purchase and reading of related books by network users, which has exceeded the necessary limit. It provides the works involved in the case on the official account, so that the public can obtain the works at the time and place of their choice, which infringes on the information network dissemination right of Tubao Technology Company to the works involved in the case, and shall bear the civil liability of stopping the infringement and compensating for the losses in accordance with the law. Article 6 stipulates that the scope of fair use is limited to classroom teaching or scientific research in schools. (2009) in the civil judgment No. 0014 of Wan Min San Zhong Zi, the higher people's Court of Anhui Province held that this kind of classroom teaching should be limited to on-site teaching between teachers and students in classrooms, laboratories and other places, and it should not exceed the needs of classroom teaching, nor should it bring losses to the market dissemination of the author's works. The restrictions on copyright in China's copyright law set out various situations through exhaustive enumeration of legislation, and the provisions involved apply to authors, publishers, performers, producers of audio and video recordings, radio stations, television stations, and so on. Restrictions on the rights of authors in the (II) International Copyright Convention The restrictions on copyright rights in the Berne Convention mainly focus on the right of reproduction and the right of dissemination (the exception to the use of the right of dissemination is that the copyright owner does not explicitly reserve its re-dissemination behavior), and there are relatively few types. The limitation provisions of the Berne Convention are non-mandatory and the Union member states are free to choose whether to apply them or not. As a factual act, it must be based on the law, taking into account the legitimate purpose and the legitimate means. The restriction on copyright is for the purpose of safeguarding the public interest and does not include commercial purposes. In this case, when using the copyright owner's work, information such as the copyright owner and the source shall be indicated. 3. on the application of copyright protection period Copyright, as an intellectual property right, is time-sensitive. The copyright protection period refers to the time limit when the copyright is protected by law. During the copyright protection period, the work is protected by the copyright law; when the copyright protection period expires, the copyright is lost and the work enters the public domain. Countries usually determine the duration of copyright protection according to their economic level and cultural development. According to Article 23 of the Copyright Law of the the People's Republic of China (2020 Amendment), the term of protection of copyright is the author's life and fifty years after his death, and ends on December 31 of the fiftieth year after the author's death. According to Article 7 of the Berne Convention, the term of protection for property rights in general works is the life of the author and fifty years after his death, and the member states of the Union may provide for a longer period of protection. For example, the EU Directive of the European Parliament and of the Council on the duration of protection of copyright and related rights (Directive2006/116/EC) stipulates that the period of protection of copyright is the life of the author plus 70 years after his death. When there is a conflict of interest between the parties belonging to different Union member states, the principle of the Berne Convention is usually to determine the duration of copyright protection in accordance with the provisions of the law of the country where protection is sought. The works of citizens of EU member states are translated and distributed in China. In case of disputes, the copyright protection period shall be subject to the provisions of China's Copyright Law, that is, the author's life and 50 years after his death, ending on December 31 of the fiftieth year after the author's death. Ownership of Copyright in 4. Translation Works (I) China's provisions on the attribution of the rights of the author. Translation does not list the corresponding translations of each word according to the original text, but a creative labor that converts one language into another, and the result of the labor can be called a work. The rights of authors of translated works are protected by law. The provisions of the (II) International Copyright Convention on the attribution of the rights of the author. How do 5. publishers publish translated works in compliance? In summary, for the publisher, the publication of the translated work should obtain the dual authorization of the original copyright owner and the translator, conclude a publishing contract with it, and pay remuneration, otherwise it will be liable for breach of contract. In addition, the publisher shall register the publishing contract signed with the copyright owner of the original work with the relevant administrative organ. Legal liability of 6. infringers
In recent years, my country's translated and published works have a variety of varieties and rich content, which have made up for the shortcomings of the domestic original market and have had a huge impact on the Chinese publishing industry. With the further deepening of reform and opening up, globalization, informatization and networking have brought opportunities and challenges to translation and publishing. For the process of translation and publication of foreign books, China has made legal requirements: to publish translated works, we must first solve the copyright problem.
Translation works usually involve more than one country. The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) is the oldest international treaty on copyright protection, signed on September 9, 1886. The original signatories were ten countries, including Britain, France, Germany, Italy, Switzerland, Belgium, Spain, Liberia, Haiti and Tunisia. On September 5, 1887, the signatories (except Liberia) exchanged instruments of ratification. The Convention entered into force three months later, in December 1887. This was the world's first international copyright convention. All the countries participating in the Berne Convention form a union called the Berne Union. We became a member of the Convention on 15 October 1992.
The scope of works protected by the Berne Convention is all literary, artistic and scientific works first published in a Contracting State by a national of a Contracting State. The treaty, centred on the principle of national treatment, requires that the author of a work created in any member State of the Union, or whose work was first published in any member State, shall enjoy the same protection in other member States as that accorded to the work of its own nationals.
The legal application of foreign-related copyright in China is basically in accordance with the provisions of the Berne Convention, and the principle of national treatment is adopted for the protection of copyright. According to this principle, nationals who are entitled to national treatment include "nationality of author" and "nationality of works", that is, for Chinese citizens, legal persons and other units, whether they are in the territory or not, whether their works are published or not, they are all works of our country; works of foreigners that are first published in China are regarded as works of our country; works of foreigners that are published in China within 30 days after they are first published in other member states are also regarded as works of our country. Foreigners can also make their works protected by China's copyright law on the basis of signed agreements and international treaties.
The author compares the Berne Convention and the the People's Republic of China Copyright Law (2020 Amendment), and briefly summarizes the relevant legal provisions on copyright in translated works as follows:
1. Protection of the Rights of Copyright Owners
(I) the protection of the rights of the author in our country's law
(II) International Copyright Convention on the Protection of the Rights of Authors
Combined with the above terms, the right of translation shall be enjoyed by the copyright owner from the beginning. Only with the authorization of the author can he translate and publish the work, otherwise it constitutes infringement.
2. restrictions on the rights of copyright owners
In the international treaties related to intellectual property rights and the intellectual property legislation of various countries, in some cases, the law allows others to freely use copyright works based on legitimate purposes and means without obtaining the consent of the copyright owner, that is, "copyright exception". In addition to protecting the legitimate rights and interests of authors of literary, artistic and scientific works, the law promotes cultural exchanges through exceptions and restrictions on the use of works, protects the public interests of the public, and reflects the pursuit of fairness and justice.
(I) the limitation of the rights of the author in our country's law.
Corresponding to the protection of rights, the law of our country also makes certain restrictions on the rights of copyright owners. According to Article 24 of the Copyright Law of the the People's Republic of China (2020 Amendment), in some cases, the copyright owner may not be allowed to pay remuneration to the copyright owner without permission, but the name or title of the author and the title of the work shall be specified, and shall not affect the normal use of the work, nor shall the legitimate rights and interests of the copyright owner be reasonably damaged. Listed as follows:
Clause 1 is limited to use solely for personal purposes. (2022) in the civil judgment No. 170 of Shanghai 73 min zong, the Shanghai intellectual property court held that the party concerned, as a company engaged in market operation, published the published works of others on Weibo, and the contents published on Weibo can be used for the introduction and promotion of its business matters, which obviously does not belong to the reasonable use situation stipulated in the copyright law, It infringes the copyright owner's right of information network dissemination of the works involved in the case. The court comprehensively considers the relevant circumstances to determine the amount of compensation to be borne by the parties for the infringement.
The "reference" in clause 2 must be necessary, that is, the purpose and use of the reference must be limited to introducing, commenting on the work or explaining the problem. Under the premise of necessity, "citation" must also be in line with appropriateness, that is, the number, method and scope of the use of the work should be controlled within a certain limit, so as to avoid unreasonable damage to the interests of copyright owners. (2022) in the civil judgment of Lu 06 min zong No. 2502, the intermediate people's court of Yantai city, Shandong province held that the public number of royal ranch company publishing the alleged infringing article was "royal ranch imported food self-operated pavilion of Canada". as the business entity selling related products, when using its wechat public number to publish the involved article, the advertisement of the relevant royal ranch company was attached to the end of the alleged infringing article, subjectively, it has the purpose of attracting the relevant public to click into its public number with the help of the popularity of the works involved, and at the same time objectively, it will play a role in publicizing and promoting its own products. Secondly, the Royal Ranch Company used 39 comic works of the copyright owner in the articles published by its public number, so that network users can obtain the comic works involved in the case by browsing the public number articles, thus substantially replacing the browsing and access of the personal microblog content of the copyright owner of the works involved and the purchase and reading of related books by network users, which has exceeded the necessary limit. It provides the works involved in the case on the official account, so that the public can obtain the works at the time and place of their choice, which infringes on the information network dissemination right of Tubao Technology Company to the works involved in the case, and shall bear the civil liability of stopping the infringement and compensating for the losses in accordance with the law.
Article 6 stipulates that the scope of fair use is limited to classroom teaching or scientific research in schools. (2009) in the civil judgment No. 0014 of Wan Min San Zhong Zi, the higher people's Court of Anhui Province held that this kind of classroom teaching should be limited to on-site teaching between teachers and students in classrooms, laboratories and other places, and it should not exceed the needs of classroom teaching, nor should it bring losses to the market dissemination of the author's works.
The restrictions on copyright in China's copyright law set out various situations through exhaustive enumeration of legislation, and the provisions involved apply to authors, publishers, performers, producers of audio and video recordings, radio stations, television stations, and so on.
Restrictions on the rights of authors in the (II) International Copyright Convention
The restrictions on copyright rights in the Berne Convention mainly focus on the right of reproduction and the right of dissemination (the exception to the use of the right of dissemination is that the copyright owner does not explicitly reserve its re-dissemination behavior), and there are relatively few types. The limitation provisions of the Berne Convention are non-mandatory and the Union member states are free to choose whether to apply them or not.
As a factual act, it must be based on the law, taking into account the legitimate purpose and the legitimate means. The restriction on copyright is for the purpose of safeguarding the public interest and does not include commercial purposes. In this case, when using the copyright owner's work, information such as the copyright owner and the source shall be indicated.
3. on the application of copyright protection period
Copyright, as an intellectual property right, is time-sensitive. The copyright protection period refers to the time limit when the copyright is protected by law. During the copyright protection period, the work is protected by the copyright law; when the copyright protection period expires, the copyright is lost and the work enters the public domain. Countries usually determine the duration of copyright protection according to their economic level and cultural development. According to Article 23 of the Copyright Law of the the People's Republic of China (2020 Amendment), the term of protection of copyright is the author's life and fifty years after his death, and ends on December 31 of the fiftieth year after the author's death.
According to Article 7 of the Berne Convention, the term of protection for property rights in general works is the life of the author and fifty years after his death, and the member states of the Union may provide for a longer period of protection. For example, the EU Directive of the European Parliament and of the Council on the duration of protection of copyright and related rights (Directive2006/116/EC) stipulates that the period of protection of copyright is the life of the author plus 70 years after his death. When there is a conflict of interest between the parties belonging to different Union member states, the principle of the Berne Convention is usually to determine the duration of copyright protection in accordance with the provisions of the law of the country where protection is sought. The works of citizens of EU member states are translated and distributed in China. In case of disputes, the copyright protection period shall be subject to the provisions of China's Copyright Law, that is, the author's life and 50 years after his death, ending on December 31 of the fiftieth year after the author's death.
Ownership of Copyright in 4. Translation Works
(I) China's provisions on the attribution of the rights of the author.
Translation does not list the corresponding translations of each word according to the original text, but a creative labor that converts one language into another, and the result of the labor can be called a work. The rights of authors of translated works are protected by law.
The provisions of the (II) International Copyright Convention on the attribution of the rights of the author.
How do 5. publishers publish translated works in compliance?
In summary, for the publisher, the publication of the translated work should obtain the dual authorization of the original copyright owner and the translator, conclude a publishing contract with it, and pay remuneration, otherwise it will be liable for breach of contract. In addition, the publisher shall register the publishing contract signed with the copyright owner of the original work with the relevant administrative organ.
Legal liability of 6. infringers
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