The other day the Beijing Intellectual Property Court finally decided and closed the case brought by Zhang Muye (pen name: Tianxia Bachang) against the Chronicles of the Ghostly Tribe for infringement of the right to protect the integrity of a work. The second trial court reversed the judgment from the first trial court and found that the original defendants including the China Movie Co. Ltd. by Shares infringed the Zhang Muye’s right to protect the integrity of a work. The Chronicles of the Ghostly Tribe had been widely criticized for its sacrificing IP contents for its popularity like sailing under false colors since its launch. It’s a good news for people who are agonized over so-called popularity regardless of origional works for a long time. I feel the case involves a lot of copyright related issues that need further discussing after carefully reading the second trial court’s judgment.

This article does not focus on discussing whether the alleged infringement of the right to protect the integrity of the work was true. The accent of this article is on discussing the reasonableness of the decision making rules reflected by the judgment based on which the second trial court found that the alleged infringement of the right to protect the integrity of the work was true. Therefore, I only comment on reasons for the judgment.

1.Is “loss of reputation” an essential condition of a tort?

The most remarkable part of the judgement from the second trial court is its explicit statement that loss of reputation is not an essential condition of infringement of the right to protect the integrity of a work.

The right to protect the integrity of a work under Article 10 of the Copyright Law of China means to “protect works from being distorted or falsified”. The judgment stated that “the right to protect the integrity of a work” under the existing Copyright Law of China was not limited by the “author’s loss of reputation” and “should not have the right limited by the “author’s loss of reputation” unless explicitly specified by the Copyright Law”. It is not necessary to consider the author’s loss of reputation when deciding an infringement of the right to protect the integrity of a work. Author’s loss of reputation arising out of a tort is only considered when deciding the severity of the tort.    

The direct source of Chinese rules relating to the right to protect the integrity of a work is the second item of Article Six of the Bernie Convention stating that authors “can file opposition to any distortion, division, change or harm of their works that will damage their reputation”. To make the judgment more reasonable, the court described the background of the provision of the Bernie Convention which was to balance positions of different countries in the common law system (copyright), giving the “least protection of moral rights”, in which “laws of member states can amend or remove all the provisions against damage to the author’s reputation or fame under the convention”. Chinese laws are made under principles of the civil law system (author’s rights) and give more protection of the right to protect the integrity of a work, usually without requiring the author give proof of their loss of reputation arising from alteration of their work.

This part of the convention gives an accurate and concise description of the background of the international treaty and differences between personal interests under the common law system and moral rights under the civil law system and is worth reading. The conclusion, however, is that in the countries in the civil law system authors “do not usually need to present evidence of their loss of reputation arising from alteration of their works”, which I think need further explanation. For example, in France, Germany, Italy, Switzerland and Japan, relevant provisions include the following.  

You could see that provisions relating to the issue of whether “loss of reputation” is an essential condition of infringement of the right to protect the integrity of a work varies in different countries in the civil law system. In Italy essential conditions of the infringement include loss of reputation. In France and Switzerland moral rights are firmly supported with exceptions explicitly stipulated by law. “Moral” and “personal” interests are equally important in Germany, but the word “rightful” makes it possible to explain the principle of balancing interests in different ways. Moreover, the right to protect the integrity of a work is too rigid and discussed a lot in Germany over recent years.  

The author’s personal rights in Japan are protected to the world’s best degree. By the criminal law of Japan the mild crime of damaging a person’s reputation is punishable by less than three years’ imprisonment, detainment or a penalty of less than JPY 500,000 and the crime of infringing an author’s personal rights is punishable by less than five years’ imprisonment, a penalty of JPY 5,000,000 or both. Article 20 of the Japanese copyright law states that “the author has the right to maintain the consistency between their work and its title and no person can alter, abridge or otherwise change their work or its title in a way that is contrary to its author’s intentions”. Article 113.7 thereof further states that use of a work in a way that damages its author’s reputation or fame should be deemed as infringement of the author’s personal rights. This is completely different from the above provision and distinguishes the acts of “altering, abridging or otherwise changing their work or its title in a way that is contrary to its author’s intentions” and “using a work in a way that damages its author’s reputation or fame”. Based on the above, it is all right to exclude loss of reputation from essential conditions of the right to protect the integrity of a work in Japan. However, even in places where protection is given to the same degree as in Japan, in general, adaptation of a work with prior permission should not be found as infringement of the right to protect the integrity of the work unless the adaptation damages the author’s reputation or fame because the original author’s permission for the adaptation precedes over the author’s original intention. In practice legal authorities are very lenient towards explanations for causes of prevented infringement.

I have noticed that evidence provided by the defendant included prints of questions and answers about legal issues on the website of the National Congress of China, mainly stating that “protecting the integrity of a work mainly means preventing other people from changing a work in a distorting way that damages the author’s reputation in order to protect the author’s personality and dignity” and “the right to protect the integrity of a work can protect the author’s reputation”, which accords with the current generally accepted legal opinions on infringement of the right to protect the integrity of a work. Considering clear intentions of the lawmakers, the second trial court’s decision is a breakthrough in giving almost the world’s best protection to the right to protect the integrity of a work. For artists happiness is coming surprisingly quickly.

2. The adaptation right

The judgment stated that loss of reputation was not an essential condition of infringement of the right to protect the integrity of a work and discussed the issue of whether to lower the criteria for deciding infringement of the right to protect the integrity of a work with the adaptation license.   

The judgment stated that the protection scope of the adaptation right could not cover that of the right to protect the integrity of a work because the former was to protect interests in property while the latter was to protect personal interests. “Unauthorized adaptation done without distorting or falsifying the original work is not infringement of the right to protect the integrity of the work but is infringement of the adaptation right; unauthorized adaptation could not infringe the adaptation right but could infringe the right to protect the integrity of a work if involving distortion or falsification. The adaptation right in an infringing work does not affect the effect of the right to protect the integrity of the work on the author’s physical rights.

The adaptation right is to protect the author’s “creative expressions” from being imitated, while the right to protect the integrity of a work is to protect expressions the author insists not changing (regardless of their creativity) from being changed. The two rights are to protect different people in different ways. This part of the judgment is correct but does not deal with the issue of whether the adaptation right will restrict the right to protect the integrity of a work. Some people believe that the right to protect the integrity of a work should be restricted by the adaptation right because permission for adaptation should be deemed as waiver of part of the author’s right to prevent change of their own expressions, not because the scope of protection of the adaptation right overlaps with that of the right to protect the integrity of a work. It was unconvincingly argued in the judgment that the two rights did not overlap.

The judgment described personal interests and moral rights protected by the right to protect the integrity of a work to explain why they did not overlap, which made the inconsistencies in reasons for the judgment even more obvious. The judgment stated that “a work adapted by distorting or falsifying the original work would cause the public to misunderstand ideas and feelings in the original work including its author and infringe the author’s moral rights”. The judgment also “certain content or concept changes were in contrary to the author’s original intention”...“distorting or willfully changing an original work will make the public misunderstand ideas and feelings in the work and its author and infringe his/her moral rights”. It can be seen that the judgment connects the harm of the author’s moral rights with the adverse effect of comments of the relevant public on “the author’s reputation” and “the public misunderstanding of the author”, which I don’t think is substantially different from “loss of reputation”. So there is a conflict between “loss of reputation” which is not an essential condition of infringement of the right to protect the integrity of a work and the author’s “reputation” which is protected by the right to protect the integrity of a work.

“Moral rights” protected by the right to protect the integrity of a work are included in not only views, ideas and feelings the author wants to express in the work or the public’s accurate understanding of the author’s views, ideas and feelings, also known as “reputation”, but also a special affinity the author has with his/her own works, also known as “preference” and “obsession”, which means the author has the right to like and insists on and prevent other people from changing his/her own way of expression without a good reason, purely deriving from the author’s personality reflected by expressions of the work, its value not being affected by what other people think of it. The audience understands the author’s personality based on their understanding of views, ideas and feelings expressed in the work, just like personal rights (“reputation”) stated in the judgement that are included in the civil law and common law systems despite differences between the two systems discussed in the judgement, not moral rights in the existence of a work that are only included in the copyright law in the civil law system, not the common law system.

The original author should have moral rights in the original work used in deduction without due permission to strictly prevent any change of the work. Licensees with the adaptation right are people who are legally invited by the original author to perform recreation. Giving personal explanation of the original work is contained in the definition of adaptation. To be exact all works in the world are adaptations of prior works. Recreation performed in personal ways is the root of arts and literature to thrive. The adaptation right is the right to create a new work of originality by changing another work. An adaptation is a new work containing views, ideas and feelings of its author, not the author of the original work. It is a misunderstanding of the adaptation that views, ideas and feelings contained in an adaptation are restricted by those of the original author even if it does not infringe reputation of the original author.     

Therefore, if China is in the civil law system, “moral rights” protected by the right to protect the integrity of a work in China contains personal rights connected with reputation included in the common law and civil law systems and moral rights in the existence of a work only included in the civil law. Authors can exercise their moral rights in whole to adaptations of their works without due permission. The author’s grant of the adaptation right should be seen as waiver of the right to have preference for and obsession with the relevant part of his/her own work although personal interests connected with the public opinions remain valid because “loss of reputation” is an essential condition of infringement of this right. Is it more reasonable?   

3. “Necessary” alterations for screen adaptations

Article 10 of the Implementation Rules on the Copyright Law of China (“Rules”) states that “if the copyright owner grants a license to adapt its work for a movie or a movie work equivalent, it has agreed to make necessary alterations to its work without distorting or falsifying the original work”. The judgement explains that “necessary alterations” mean “ones without which the original work could not  be filmed or creation and propagation of the movie work would be affected and in case of which the alterations can only be made to “general elements” “to the necessary extent” without altering “key elements”.

The provision of screen adaptation equivalents under the Rules obviously strengthens the right to protect the integrity of a work based on the special process of creating a movie work equivalent and were originally intended to allow more alterations for a screen work adaptation than others, which was accepted in the judgement. However, the “necessary alterations” are almost construed as “forced alterations”. If it meant “force alterations” in the Rules, the clause would not be needed at all because any “forced alteration”, I think, are free from infringement of the right to protect the integrity of a work, whether a movie adaptation equivalent or not.

I agree that “key elements” cannot be altered because change of general and key elements altogether is very likely to be beyond the necessary scope and in no relation with the original work, not involving the adaptation right or the right to protect the integrity of a work.

What the judge noticed during the trial is definitely different from what I have learned only by reading the judgement. The second-trial court must have had adequate reasons for its decision made after lawyers of the two sides and the first-trial court had fully expressed their opinions well enough, but other people can only learn the court’s decision making rules by reading the judgement. Considering the great influence of the parties involved and the work in question, it can be expected that the decision in effect will have great effect on legal practices in the future.

The impact of the original author’s right to protect the integrity of their work to the world’s best degree on the Chinese TV and movie industry looks like a legal issue but may be easier for people from the TV and movie industry to deal with. As a legal professional I am more interested in the logic of the decision making rules with the hope that my analysis of the defects in the second-trial decision can help to improve the understanding of the right to protect the integrity of a work in the TV and movie industry.