[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 copyright are synonymous." Some in the intellectual property field also treat copyright and authorship as equivalent. The author believes that copyright and authorship are two concepts with distinctly different connotations and extensions. Studying the connotation of copyright, establishing the basic framework of copyright content, and correctly understanding the difference between copyright and authorship are necessary for both theoretical research on intellectual property and the handling of intellectual property disputes.

Different understandings of the concept of copyright

Currently, there are different understandings and expressions of the concept of copyright in China's theoretical circles and among the public. In summary, there are three views: First, copyright equals author's rights. According to this understanding, the subject of copyright is the author, and the content includes the personal rights and property rights of the copyright holder. Second, copyright is "the right of the author or publisher to publish or otherwise dispose of the work" (Modern Chinese Dictionary, Commercial Press edition, p. 30). According to this understanding, the content of copyright mainly refers to the right to publish the work, and there are two types of copyright subjects, which may be the author or the publisher. Third, copyright specifically refers to the exclusive publishing right of the publisher.

Regarding the first view, the author explicitly denies it. This article will elaborate on my own views in detail later. The second view is correct from a broad perspective. From the most fundamental sense, the owner of the publishing right can only be the creator of the work. "For example, 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 aspects of the author's publishing right, while the publisher's publishing right is merely a derivative right granted by the author." The third view is a narrow understanding of copyright, but its expression lacks clarity and detail. The author agrees to define 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 publishing right can be fully attributed to the category of author's rights, as it is a manifestation of the author's rights such as the right to reproduce and publish their own work.

Based on the above understanding and considering China's national conditions, the concept of copyright can be defined as follows: So-called copyright refers to the right to publish and distribute corresponding works that the publisher possesses within a certain region and time limit through authorization by the copyright holder. Thus, the basic connotations of copyright include: 1. The subject of copyright is the publisher; 2. Copyright is a derivative right generated through authorization by the copyright holder; 3. The copyright enjoyed by the publisher has certain spatial and temporal limitations; 4. Copyright includes both the right to publish and the right to distribute.

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 early on, and the development of the publishing industry played an essential role in prospering and disseminating human civilization, promoting the birth of the copyright system. Therefore, countries around the world began early to propose and implement protections for publishers' rights and interests. The United Kingdom first implemented a system of特许出版权 (privileged publishing rights). Although this system was merely a patent right for publishing books that protected the interests of booksellers, ignoring the interests of authors, it was the beginning of the protection of publishing rights. In Eastern Japan, the earliest interpretation of "copyright" in the Publishing Regulations of the second year of the Meiji era (1869) referred to the official特许 (privilege) granted to the person publishing a book to have the right to sell the book for a certain period to compensate for publishing costs. Later, countries successively enacted laws recognizing the author's right to reproduce and sell their own works. Author's rights generally became the core protected object of copyright legislation in various countries. Meanwhile, the term "copyright" has increasingly been conflated with author's rights, even equating the two concepts. The author believes that, based on emphasizing author's rights, avoiding the misunderstanding of copyright as merely protecting publishers' rights, and theoretically neglecting or even ignoring publishing rights, actually goes from one extreme to the other. It is a reaction against the early特许 publishing rights protection system that solely considered publishers' rights and interests while ignoring authors' rights. In the current situation, to further prosper the publishing industry, it is necessary to continue vigorously advocating for the protection of author's rights while also raising the banner of protecting publishers' rights and effectively safeguarding publishers' interests. This requires carefully distinguishing between the concepts of "copyright" and "author's rights" and moving out of the misconception 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 right of publishers, with the publisher as the subject. In China, the publishing industry has long been regarded as an important domain of ideology and is state-operated, with state-owned publishing institutions (publishing houses or publishing companies) handling specific operations. Therefore, in China, the subject of copyright can only be state-owned publishing institutions, and natural persons cannot become subjects of copyright. The subject of authorship rights is the author of the work. Objectively, only natural persons are the actual authors of a work; other social organizations and civil subjects besides natural persons can only be considered "legal authors" 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 hold exclusive publishing rights for a limited period over works authorized for publication by authors. The duration is determined through negotiation and contract between the publisher and the copyright holder, with the contract’s validity period not exceeding 10 years. The protection of moral rights is generally unrestricted, and certain rights that are inherently personal should be permanently protected. For property rights, various countries have set specific time limits. China’s Copyright Law stipulates that for works by citizens, the protection period for the right of publication and property rights is the author’s lifetime plus 50 years after their death, ending on December 31 of the 50th year after the author’s death.