Abstract

The creation of works in modern society is becoming more and more impersonal, and the majority of works are created as works made for hire. Reasonable property rules are required to minimize transaction cost and to facilitate smooth dissemination of such works. However, neither the current nor the envisaged amended version of the Chinese Copyright Law provides works made for hire rules, which are fair and predictable enough. Rules with continental European origin and those with Anglo-American characteristics collide with each other, causing confusion in court practice and in research. Awareness of the imperfectness is important for both scholars and practitioners interested in the protection of intellectual properties in China. To bring the status quo into a fairer and more predictable set of rules, colliding rules should be harmonized. In pursuing this goal, the freedom of contract, as strengthened by the envisaged revision of copyright law, is not sufficient. It is also recommendable to make employment a pre-condition of Legal Entities’ Works.


I. Introduction

Few would seriously doubt that, in comparison with pre-modern times when works were often occasional sparks of individual intellectuals, more and more works are not ignited by the creator him- or herself, but created for someone else, whether within an employment or non-employment framework (hereinafter “Works Made For Hire”). It is hardly possible to obtain reliable statistics of the proportion of Works Made For Hire among all works created in China because Chinese Copyright Law requires neither publication nor registration as a pre-condition for the protection of a work. Copyright is established upon completion of a piece of work. Yet the trend that the majority of works in China are becoming more and more commercial and impersonal is too obvious to deny. This social background might explain the legislative ambition to regulate issues related to such works. Rules from both continental European and Anglo-American jurisdictions were transplanted into the Chinese Copyright Law.

Good intention, however, does not always lead to satisfactory outcome. As the Chinese saying goes: “More haste, less speed (yu su ze bu da).” Rules with heterogeneous origins raise confusion that is found neither within the continental European nor the Anglo-American tradition. Realizing that knowledge of possible problems regarding proprietorship of works made for hire is indispensable for the understanding of copyright regime in China, bearing in mind the importance of clear property rules for the development of copyright-based industries, this article serves not only as an information source of facts and issues, but more as a discussion forum for possible solutions. It starts with an overview of Works Made For Hire rules in China (infra Part II), followed by an analysis of the troubles brought on by these rules (infra Part III) and a flashback to the legal transplantation history during which the mismatch emerged (infra Part IV), and ends up by questioning how these problems might be solved (infra Part V).