[Shenzhen Lawyers Association] A Brief Discussion on the Connotation of Copyright and Its Distinction from Author's Rights

Jia Runlian, Lawyer at Guangdong Zhiming Law Firm

Article 5 of China's current Copyright Law stipulates: “Copyright and the right of authorship are synonymous.” Some in intellectual property circles also treat copyright and the right of authorship as equivalent. The author believes that copyright and the right of authorship are two concepts with distinctly different connotations and extensions. Examining the connotation of copyright, establishing the basic content framework of copyright, and correctly understanding the distinction between copyright and the right of authorship are necessary both for theoretical research in intellectual property and for the handling of intellectual property disputes.

Different understandings of the concept of copyright

Currently, there are varying understandings and expressions of the concept of copyright in China's theoretical circles and among the general public. In summary, there are three perspectives: First, copyright is equivalent to author's rights. Under this understanding, the subject of copyright is the author, and its content includes both the moral rights and economic rights of the copyright owner. Second, copyright refers to "the right of an author or publisher to publish a work or otherwise dispose of it" (Modern Chinese Dictionary, Commercial Press edition, page 30). According to this understanding, the content of copyright mainly refers to the right to publish a work, and there are two possible subjects of copyright: the author or the publisher. Third, copyright specifically refers to the exclusive publishing right of the publisher.

The author explicitly rejects the first view. This article will subsequently elaborate on the author's own perspective in detail. The second view is correct from a broad perspective, but in its most fundamental sense, the holder of the right of publication can only be the creator of the work. "Whether to publish one's own work, deciding when to publish one's own work, and licensing which publishing institution to publish one's own work can all be regarded as different contents of the author's right of publication, while the publisher's right of publication is merely a right derived from the authorization of the author." The third view reflects a narrow understanding of copyright, but its expression suffers from a lack of clarity and thoroughness. The author agrees with defining copyright from a narrow perspective, because defining copyright from a broad perspective will inevitably lead to confusion between the concept of copyright and other categories in the field of intellectual property, causing unnecessary chaos. Moreover, the author's right of publication can fully fall within the scope of copyright, as it is a manifestation of the author's rights of reproduction, publication, and other copyrights in relation to their own work.

Based on the above understanding and grounded in China’s national conditions, the concept of copyright may be defined as follows: copyright refers to the right of publication and distribution that a publisher possesses, upon authorization by the copyright owner, with respect to the corresponding work within a certain territory and time limit. It thus follows that the basic connotations of copyright include: 1. The subject of copyright is the publisher; 2. Copyright is a derivative right arising from authorization by the copyright owner; 3. The copyright enjoyed by the publisher is subject to certain spatial and temporal limitations; 4. Copyright encompasses both the right of publication and the right of distribution.

The necessity of distinguishing between copyright and author's rights

The author believes that copyright and author's rights are two concepts with distinctly different connotations and extensions. Accurately distinguishing between copyright and author's rights is necessary both for theoretical research on intellectual property and for handling intellectual property disputes.

First, from a semantic perspective, copyright and author's rights are two concepts with completely different meanings.

The Chinese language originally had no concepts of "版权" (copyright) or "著作权" (author's right); both came from Japan. The term "版权" is widely recognized in Japan as having been coined by Fukuzawa Yukichi based on the English word "Copyright." Its original meaning emphasized the rights of book publishers. The term "著作权" is also not a native Japanese word; according to historical records, it was coined by Doctor of Laws Mizuno Rentaro as a translation based on the Western concept of the author (Author's right). Its original meaning was "author's right" or "right of the author." China successively introduced the terms "版权" and "著作权" from Japanese and assigned them clear meanings. According to current authoritative Chinese dictionaries, "版权" means "the right of authors or publishers to publish or otherwise dispose of works" (Commercial Press *Modern Chinese Dictionary*, p. 30), while "著作权" means "the right of authors to

Secondly, distinguishing between copyright and author's rights is necessary to respect and protect the rights and interests of publishers and to further prosper and develop the publishing industry.

In the course of world historical development, publishing became an industry at a very early stage. The growth of the publishing industry played an indispensable role in flourishing and disseminating human civilization and facilitated the emergence of the copyright system. Consequently, countries around the world began early on to propose and implement protections for publishers’ rights and interests. England was the first to establish a system of chartered publishing rights. Although this system was merely a patent for publishing books that protected publishers’ interests and had the shortcoming of disregarding authors’ interests, it nonetheless marked the beginning of publishing rights protection. In Japan in the East, the earliest explanation of copyright appeared in the Publishing Regulations of the second year of Meiji (1869), which defined it as the exclusive right granted by the government to a person who published a work, conferring upon that person the right to sell books for a specified period as compensation for publishing costs. Subsequently, various countries enacted statutes recognizing that authors possess the right to reproduce and sell their own works. Authors’ rights generally became the core protected subject matter of copyright legislation in various countries. The term “copyright,” however, became increasingly conflated with “author’s right,” to the point where the two concepts were even treated as equivalent. In my view, emphasizing author’s right and avoiding the misunderstanding of copyright as merely protecting publishers’ rights, while theoretically belittling or even ignoring publishing rights, is in fact moving from one extreme to the other. It is a reaction against the early system of chartered publishing rights protection, under which publishers’ interests alone were considered while authors’ rights were disregarded. Under current circumstances, in order to further prosper the publishing industry, it is absolutely necessary, while continuing to vigorously advocate copyright protection, to hold high the banner of protecting publishers’ rights and to effectively safeguard publishers’ interests. This requires carefully distinguishing between the concepts of “copyright” and “author’s right” and stepping out of the mistaken zone of conflating or even equating the two.

Differences between copyright and author's rights

Based on the author's definition of the concept of author's rights above and grounded in social practice, the author believes there are five clear differences between copyright and author's rights:

First: Different subjects.

In a narrow sense, copyright refers to the publisher’s right, with the publisher as its subject. In China, the publishing industry has long been treated as an important domain of ideology and monopolized by the state, operating specifically through state-owned publishing institutions (publishing houses or publishing companies). Therefore, in China, the subject of copyright can only be a state-owned publishing institution, and a natural person cannot be the subject of copyright. The subject of authorship right, by contrast, is the author of the work. Objectively, only a natural person is the sole factual author of a work; social organizations and civil subjects other than natural persons can be regarded as “statutory authors” only under specific circumstances.

Second, the objects differ.

The object of publisher's rights is books, periodicals, and audio-visual publications. The object of authorship rights is the work, and copyright law only protects the work, not the carrier of the work, because the carrier of the work can take many forms, while the work itself is singular.

Third, the formation mechanisms differ.

Copyright is a derivative right subordinate to authorship rights, and the publisher's copyright can only arise from authorization by the copyright holder. Authorship rights are rights arising from literary, artistic, and scientific works in accordance with the law. In China, once a work is created and possesses the attributes of a work, authorship rights automatically arise in accordance with the law.

Fourth, the content differs.

Taking China as an example, the copyright that publishers enjoy over the works they publish includes exclusive publishing rights, edition rights, and the right to modify or delete the form and content of the published work. China’s Copyright Law stipulates that copyright includes both moral rights and property rights. Moral rights include the right of publication, the right of authorship, the right of modification, and the right to protect the integrity of the work. Property rights include reproduction rights (publishing rights, distribution rights, reproduction rights, adaptation rights, translation rights, adaptation rights), communication rights (performance rights, broadcasting rights, display rights, recitation rights), and other rights.

Fifth, the duration differs.

In China, publishers enjoy a certain period of exclusive publishing rights for works authorized by the authors. The duration is determined through negotiation and contract between the publisher and the copyright owner, with the contract term stipulated not to exceed 10 years. The protection of moral rights of authors is generally not subject to time limits, and certain rights with a personal and exclusive nature should be protected permanently. As for economic rights of works, all countries have set certain time limits. China's Copyright Law stipulates that for works of citizens, the protection period for the right of publication and economic rights shall be the author's lifetime plus 50 years after death, ending on December 31 of the 50th year after the author's death.