from the concept of copyright, it is a right obtained by "creating a work", which is generated by the work, while rights such as neighboring rights are based on the dissemination of the work, which cannot be considered as "writing". Therefore, neighboring rights are not considered in the content of copyright.
1. Personal rights
1. Overview
Personal rights in copyright law are different from those in civil law. This right is inseparable from the author's personal life. From the origin of personal rights, at the end of the 18th century, under the influence of the bourgeois ideology of natural human rights, the famous German philosopher Kant and others put forward the view that works are an extension of personality rights and personal rights. This view was adopted by the national legislation of the civil law system and advocated the protection of the author's personal rights. Throughout the legislation of various countries, the personal rights of copyright generally include: the right to publish, the right to sign, the right to modify, the right to protect the integrity of works, and the right to recover published works.
the national legislation of civil law system and common law system take completely different positions on the protection of personal rights. All countries in the civil law system advocate the recognition and protection of the author's personal rights. For example, the German copyright law has provisions to protect the author's personal rights from the beginning, and stipulates that the personal rights cannot be transferred. Countries in the common law system did not recognize the author's personal rights at first, and then included this content in the copyright law.
as for the content of personal rights in copyright law, there are still the following problems to be discussed in theory and practice:
(1) whether a legal person can enjoy personal rights.
China's copyright law stipulates that a legal person or an unincorporated entity can become the subject of copyright, which naturally recognizes that a legal person or an unincorporated entity can enjoy personal rights. However, this issue is very different in the copyright laws of various countries in the world. Most countries that protect the author's personal rights stipulate in the copyright law that only natural persons can become authors, that is, only natural persons can enjoy personal rights. Because the personal right is a reflection of the author's personality, it is a recent thing to admit that a legal person has the will. The personal rights mentioned above come from the theory of "natural human rights". Obviously, this refers to the rights of natural persons, not unincorporated persons. On this issue, the International Union of Writers and Composers pointed out in Article 6 of the Charter of Authors' Rights that only natural people can enjoy personal rights if they become authors. With the development of society, it is more and more widely stipulated that a legal person becomes the subject of legal relations, which can be described as a development trend. Since it is recognized as a fictional person, the legal person's right to enjoy the personal rights of a natural person in the copyright law can also be regarded as a fictional personal right. Although there are still many unsatisfactory explanations in this respect, the reality that legal persons enjoy copyright is undeniable, which needs to be further improved in theory.
(2) Whether personal rights can be transferred or inherited.
generally speaking, personal rights are personality rights. From this we can deny the transfer and inheritance of personal rights. The copyright laws of most countries stipulate that personal rights are inalienable, non-compulsory and non-transferable. However, in theory and practice, the transfer and inheritance of some personal rights seems to have undeniable reasons and facts. We say that personal rights and the author's person are inseparable, but some rights in personal rights are also inseparable from property rights, such as the right to publish and the right to get paid. If you want to get paid, you need to publish, and the publication of works usually gets paid. Under normal circumstances, only the author (copyright owner) has the right to exercise the right of publication, and most of them are one-time use. However, there is a practical problem. Some works have not been published for various reasons during the author's lifetime. Who will enjoy the right of publication after the author's death? According to the principle of inheritance of property rights, in order to obtain property rights, it is necessary to publish works, so it should be presumed that heirs have the right to publish works. If the heir decides not to publish, then no one else has the right to publish the work, which will not lead to the result that the work is buried with the author. This is contrary to the social significance of the work creation and the author's own creative purpose. If the author has already made a final decision on the publication of the work in his lifetime, then the right to publish the work can only follow the author's will.
Let's look at the provisions of China's copyright law on the right to modify. The so-called right to modify refers to the right to modify or authorize others to modify a work. Authorizing others to modify here means that the right to modify can be transferred and separated from the author's personal rights.
With regard to the transfer of personal rights, Article 6 of the French Copyright Law stipulates that the personal rights in copyright can be transferred to his heirs as an inheritance after the author's death, or the exercise of personal rights can be transferred to a third party who is not an heir according to his will. The same is true of German copyright law. Of course, no matter how personal rights are transferred, the right of signature cannot be transferred.
(3) the difference between personal rights in copyright and personal rights in civil law.
Personal rights in civil law mainly refer to the right to life, health, freedom, personality and portrait. It can be seen that the personal right in civil law is an inherent right of human beings, and the difference between it and the personal right in copyright lies in the following aspects: first, from the perspective of the basis of the generation of rights, the personal right in civil law is based on the birth of people, and once people are born, they have life and personal rights. The personal right in copyright is based on the creation of the work, that is, on the condition of the birth of the work. This is the fundamental difference between the two. It is also the root cause of the following differences. Second, the personal rights in civil law are born to everyone, and the personal rights referred to in copyright are limited to authors, that is, those who create works are entitled to enjoy them. Third, the personal rights in civil law are limited to natural persons, while the personal rights mentioned in copyright law can be natural persons or legal persons according to the provisions of copyright law. Fourth, the personal rights in civil law, as far as most rights are concerned, disappear with the death of human life (some personal rights are inviolable after the death of the right holder, such as the right to portrait). Personal rights in copyright law can exist alone even if the subject dies, such as the right of signature. Fifth, personal rights in civil law cannot be inherited and transferred, and some rights in personal rights in copyright law can be transferred and inherited. Sixth, the infringement of personal rights in civil law is mostly a direct infringement of the subject itself, while the infringement of personal rights in copyright is manifested in the illegal use of works.
2. Right of publication
Right of publication refers to the right to decide whether a work is made public. There are two meanings here: one is to decide to publish, the other is to decide not to publish.
The right of publication specifically includes the following contents: when to publish; In what form, such as book form, serial form, broadcast form, etc.; Where is it published? The published work should be the original or copy of the work that has not been published. If the work has been published or exhibited, there will be no problem of publication. What is public? It mainly refers to preaching or exhibition to an unspecified majority in public, which is known by most people. If the work is only circulated among the author's friends, it is not published.
in most cases, the right of publication is combined with the right of use, and the author's publishing works means using them. Moreover, when the author transfers the property right of unpublished works, it is often accompanied by the transfer of the right to publish.
The publication of a work is of great significance, which shows the time and place of publication of the work and plays an important role in applying the provisions of the term of copyright protection.
There are different regulations on the right of publication in different countries around the world, and many countries do not recognize the right of publication, because the heirs of the right may go against the author's wishes whether they publish or not. In the Berne Convention, there is no provision to protect the right of publication.
3. Right of signature
Right of signature means the right to show the identity of the author and sign his name on the work. The identity of the author can be confirmed by signing.
China's copyright law stipulates that unless the contrary is proved, the citizen, legal person or other organization who signs the work is the author. The right of signature is the core of copyright, and only with the right of signature can the subject of copyright be confirmed.
generally speaking, the author's right of authorship cannot be transferred, and the right of authorship cannot be changed no matter how the work is used or other rights of the work are transferred. There is a problem here, that is, if the contract stipulates that the copyright belongs to the entrusting party in the copyright law of commissioned works, does the author as the entrusted party have the right of signature? There is no special provision in the law, so we can only think that the entrusted party has no right of signature, but is signed by the entrusting party. Here, the signer of the work is not the author, which is also a case of "proof to the contrary" stipulated in Article 11 of the Copyright Law.
there is another problem in the right of signature, that is, signing pseudonyms and not signing names. Most pseudonyms are pseudonyms, which is common in works. This has brought some difficulties to the confirmation of the author's identity right. In some countries, such as Japan and Germany, the author's identity registration system has been implemented. Otherwise, it is not conducive to court evidence collection in case of disputes.
another problem is signing other people's names. Some authors publish their own works under the names of others (usually celebrities) for various reasons. This does not belong to the exercise of the author's right of signature, but a use or infringement of the name right of others.
4. The right to modify and the right to protect the integrity of a work
The right to modify and the right to protect the integrity of a work are essentially two aspects of the same thing. On the one hand, the author has the right to modify the work, on the other hand, he has the right to prohibit others from tampering with or distorting the work.
the right to modify refers to the right to modify or authorize others to modify a work.
Article 33 of the Copyright Law stipulates that "a book publisher may modify or abridge a work with the permission of the author". The second paragraph of this article also stipulates that "a newspaper or periodical agency may modify or abridge a work in words, and the modification of the content shall be subject to the permission of the author". What is actually stipulated here is that the author authorizes others to modify the work. Because of the complexity of the ideological content embodied in books, it is difficult for others other than the author to fully understand their intentions, so they cannot be modified at will to avoid distorting the works. You don't need the consent of the original author for the textual modification of articles published in newspapers and periodicals, because newspapers and periodicals are limited by the size of the page, it is allowed to make appropriate modifications and adjustments to some works, but it can't involve changes in content.
one of the most difficult problems in the right of revision is the revision of the sold works of art. If an author wants to modify a sold painting, he must obtain the consent of the owner of the painting. In fact, the author's right to modify has been restricted with the transfer of the work, because the buyer is interested in the original work when buying the work.
the right to protect the integrity of a work refers to the right to protect the work from distortion and tampering. Different from the above rights, the author of the above rights can exercise them directly, while the right to protect the integrity of works depends on the judicial organs, which can be called indirect exercise of rights.
ii. property rights
the property rights in copyright refer to the rights that can bring economic benefits to the copyright owner.
the realization of this economic benefit depends on the use of the work by the copyright owner. From this, we can see that the property rights in copyright are different from those in civil law, which are mainly manifested in the following aspects:
(1) The forms of expression of rights are different.
the property right in civil law is directly manifested as the owner's right to possess and dispose of things. On the other hand, the property right of copyright is based on the creation of works, and the author can get economic benefits through the use of works, which can be called a kind of expectation right. Of course, sometimes you can sell your works at one time and get economic benefits. Our country does not advocate selling works at one time.
(2) The property rights law in the civil law shall be permanently protected, even if everyone is still protected by law after death, which can be passed down from generation to generation.
There is a time limit for the protection of property rights in copyright. In China, the author is an individual citizen, and the time limit for the protection of his rights is 5 years after his death. The period of protection of the rights of a work by a legal person or an unincorporated entity is 5 years after the first publication of the work. After the above-mentioned protection period, the work will enter the public domain and no longer have the right to receive remuneration.
(3) The law does not impose too many restrictions on the exercise of property rights, while it imposes more restrictions on the exercise of property rights of copyright, such as fair use without paying remuneration.
according to the provisions of China's copyright law, the property right of copyright refers to the copyright owner's right to use a work by copying, distributing, renting, exhibiting, performing, screening, broadcasting, information network dissemination, filming or adaptation, translation and assembly, and the right to license others to use the work in the above ways and get paid accordingly. Therefore, the use of a work can be for one's own use or for the permission of others. The copyright owner may or may not get paid for his own use. This kind of use is based on the author's right to dispose of the work personally. As far as the above-mentioned use methods are concerned, the author's right to use will also be restricted due to the limitations of practical conditions, and it is not that the copyright owner can use it in any way he wants. As far as the legal provisions are concerned, there are not too many restrictions on the author's own exercise of rights, so long as it does not affect the interests of the public, it can be used. This is a common way to use a work by licensing others. Due to the limitation of economic conditions and the author's own energy, the author often cannot exercise these property rights in person, but relies on the favorable conditions of others (including legal persons) in order to make full use of his works. Of course, this kind of use is within the scope of the law, and it should comply with the relevant provisions of the law, such as paying remuneration to the author.
1. Reproduction right
Reproduction right is the right of the copyright owner to decide whether to implement the above-mentioned copying behavior or prohibit others from copying his protected works, which is the most important, basic and universal right among copyright property rights.
Copying refers to the act of making one or more copies of a work by printing, copying, rubbing, recording, video recording, copying and remaking.
The characteristic of copying is that the copied work has no change in content and form compared with the original work. Here, the form has not changed, which means that the expression form of the work has not changed, just like being a novel or a poem, but not that the form of the carrier of the work has not changed. For example, the same novel is copied when it is printed in 32 format, and it is also copied when it is printed in 16 format, and it is also copied when it is serialized in newspapers and periodicals. The means of copying can be manual or machine.
According to Berne Convention, copying includes copying from plane to three-dimensional. However, China's copyright does not clearly stipulate copying from plane to three-dimensional or from three-dimensional to plane. Paragraph 2 of Article 52 of the Copyright Law of 1991 stipulates: "Construction and production of industrial products according to engineering design and product design drawings and their descriptions do not belong to reproduction as mentioned in this Law." However, in 21, the Copyright Law deleted this clause. Therefore, this is still a controversial issue.
2. The right of distribution
The right of distribution refers to the right to provide the original or copy of a work to the public by way of sale or gift.
distribution is an important channel to spread works and realize the economic rights of copyright owners. Only through distribution can it be accepted by the public. The combination of reproduction and distribution is publishing. The publishing right shall be enjoyed by the copyright owner.