Drake IP 2013: Seagull Haiyan Song: protection of AV works in China

Liveblogged from Drake IP Roundtable 2013.

Seagull Haiyan Song presents a study of IP in films in China.

The creator of films does not necessarily own the copyright. This might be problematic. Issues: definition of AV works; identifying an author (for moral rights particularly); ownership (in the US, it’s quite straightforward – based on the work for hire doctrine, studios own the work; elsewhere, it’s much more complicated); compensation scheme: a balanced compensation scheme can sometimes make up for the pros and cons of different models – this might be particularly important for the Chinese system.

The current Chinese IP system is primarily modeled on German law. Authors are directors, producers, script writers, etc. Ownership vests in studios. No formal compensation scheme has been developed. In the face of risk, studios were unwilling to provide compensation up-front, and contributors were not in a position to benefit from ongoing royalties.

Recommends a hybrid model. Authorship should be defined as a non-exhaustive list, including director, producer, script writer, etc. Draws example from Pixar – character designers in animation films should be entitled to some authorship recognition (& rights?)

Also recommends reforming compensation scheme in China. Recognising copyright as separate rights – so that scriptwriters can sell the rights piecemeal – plays, etc. Suggests that China needs to develop a more complicated compensation scheme including residuals, bonuses, etc. Allows creative professionals to weather the ups and downs of risky creative production.

The US resolves all these issues through collective bargaining power of guilds – screenwriters, actors, etc. Recommends that China move from a formal law based on German model, but develop a fairer compensation scheme based on US approaches.

Q: how does compensation work? Authors first or studios first?

Germany has a very detailed compensation scheme, with percentages and rules about priorities. Prefers a private agreement model, where guilds with bargaining power work out compensation in a long process. It would be too difficult for the government to be able to step in and define a formula to work out who gets what proportion and in what priority? Suggests instead that China clearly set out that there is a compensation scheme, and suggest several examples of working schemes – residuals, piecemeal approaches, etc, leaving the details to the parties.

Q: with so many (and non-exhaustive) authors, wouldn’t moral rights be a problem?

A: Doesn’t think that moral rights would be problematic. The right to attribution is not a problem; all authors should be listed. The right to divulge is not a problem; everyone involved in the creation of an AV work knows that the movie will be made, so there must be express or implied consent. The right to intregity is more complicated, but it doesn’t provide a right to object to all changes, just changes where the reputation is at stake. In reality, integrity always works out because original authors always use contractual language to ensure that changes are subject to prior approval. So even though the US doesn’t have moral rights, it has been addressed through contractual frameworks. There will be cases where authors are upset by revised script – it will not be perfect, but it’s not a huge concern that changes the fundamental idea about the model.

Q: What about the right of retraction?

A: China did not follow France’s model – so some of the extremes of French law don’t exist in Chinese law, and China is not likely to recognise a right of retraction. So this isn’t going to be a problem.