On Commissioned Works In Chinese Copyright Law

It is a common phenomenon that a work is created according to the instructions of a commissioning party. Such a work is called a commissioned work in the copyright theory. Although there are some provisions in the 1990 Copyright Law on the ownership of copyright of a commissioned work in principle, the difficulties will still arise due to the ambiguity of the statutory provisions. The following pages contain an attempt to discuss and analyse the provisions on commissioned works. Therefor the writer did a thorough examination of the relevant theories and their application, gave his comments on them by means of logically analytical method, interests measurement method and method of comparative law as well in the thesis. Besides the Introduction and the Conclusion, the thesis contains four chapters. In Chapter One, the writer analysed the commission relationship between the commissioner and the author. At the beginning of this chapter, the writer indicated that the commission relationship is generally a contract for work in the context of the civil law. Afterwards the writer studied the forms and contents of the contract, especially the standard of the quality of the work, the author's liabilities for breach. Finally, the writer discussed certain issues concerning the work submitted in response to an advertisement, and came to a conclusion that such a work is also a kind of commissioned work. In Chapter Two, the writer compared commissioned works with several concerned concepts. The writer held the opinion that it is necessary in practice to differentiate commissioned works from joint works, works made for hire and the works that copyright belongs to the legal entity or other entity. Chapter Three focused on the agreement on ownership of copyright between the commissioning and the commissioned parties. The nature of the agreement is defined as a contract of transferring future copyright, that is to say, economic rights will be transferred to the commissioner upon the creation of the commissioned work. The moral rights, however, cannot be transferred because they are the inherent rights, and are a part of authorship itself. In addition, Chinese Copyright Law requires the agreement be concluded in writing. Chapter Four considers certain legal issues in the absence of the agreement on ownership of copyright. Under this circumstance, the seemly rational conclusion is that the copyright in the commissioned work shall belong to the commissioned party with the commissioning party having a licence to use the work for a particular purpose. Several issues involved in the conflict of rights are discussed at the end of this chapter.