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Intellectual Property and Commercial Court


2009 Xing Zhi Shang Su No. 44

Decision No. 2009 Xing Zhi Shang Su No. 44
Date August 27, 2009
Decision Highlight

Petitioner asserted that in 1988 he registered his work in the copyright agency. Since then, the period of the registration has made him acquire copyright protection. According to Art. 4, para. 1, cl. 7 and Art. 6, paras. 1, 2 of the Copyright Act amended July 10, 1985, our country protects the copyrights of a work when the work is finished, and the author is not required to register his work, though he would choose to do so. Without examination or registration, an author begins to enjoy copyright protection as long as he finishes his creation. “Work” and “copy” have different concepts. The protected subject matter of the Copyright Act is “work” defined in Art. 3, para. 1, cl. 1 that states, “’Work’ means a creation that is within a literary, scientific, artistic, or other intellectual domain.” Copyright protection is limited to the expression of such work. Although the expression is often associated with a medium or carrier, it is sufficient to express a creation by a certain method or format. The key is to let others see and feel the existence of the work and the content thereof. Attachment or fixation is not an element for rendering protection. On the other hand, a copy is a physical object that is attached by the expression of the work. Then, a copy is an object subject to the property law. Thus, after the content of a work is expressed through a specific format, any user could use the work without the author’s assistance. Copyright is non-exclusive, non-rivalrous, and shareable. These characteristics are different from a subject matter under the property law, which is exclusive, rivalrous and of natural scarcity. A copyright owner cannot exclude others from using his work as a property owner does by merely possessing an object with a specific body. If a third party other than the original owner acts as a possessor with an intent of acquiring copyright to enforce or practice any rights granted to a copyright owner (e.g., what Art. 4, para. 2 of the Copyright Act mentions, that is, reproduction, public recitation, public broadcasting, public presentation, public performance, public display, editing, translation, renting and adaptation) in continuously five years so as to get the copyright by the prescription, then everyone can acquire copyright though that way. Additionally, if more than two persons assert ownership acquired by prescription, then the issue of who is the copyright owner of the work would cause the chaos of the copyright law practice, where the status of copyright ownership cannot be resolved immediately, and we cannot reach the goal of efficiently utilizing and allocating the social resources so as to optimize the total social benefit. If ownership acquired by prescription is recognized, doubtlessly it will encourage people, instead of creating a work, to await works created by other people and to acquire such works by possessing the physical object as well as waiting for five years. That will devastate the incentives for authors to create their works. Then, how can we possibly keep the continuous development of the mental and cultural assets of human beings? Therefore, the ownership acquisition by prescription, which means that ownership is acquired by possessing others’ property for a certain period of time so as to keep the status of the long existing possession, is different from copyright which aims at “protecting the rights and interests of authors with respect to their works, balancing different interests for the common good of society, and promoting the development of national culture.” The issues regarding copyright are not governed by Article 772 of the Civil Code.

Related Provision Copyright Act: Art. 3, Para. 1, Cl. 1; Art. 4, Para. 1, Cl. 7; Art. 4, Para. 2; Art. 6, Paras. 1 and 2
Civil Code: Art. 772
  • Release Date:2020-11-13
  • Update:2020-12-03