On The Civil Protection Of The Right Of Publicity In The Era Of Knowledge Economy

The establishment of the liability that the providers of internet service may incurin the Chinese Tort Liability Law unveils the brand new research field, the majorsubject of which is how to handle the challenges brought about by the advent of theera of knowledge economy proportionately. Accordingly, especially when it comes tothe cyber events like the “Mr. Incisive” incident, the traditional civil protection suchas privacy and defamation may fail to offer the corresponding remedy, with which thevictims could be made a whole. Then it comes to the special right of publicity fromthe U.S.There is an independent cause of action from privacy and defamation in theAmerican tort law, that is, the right of publicity, the core and essence of which is toprotect the individual self-control of one’s identity and persona. The right of publicityis different from privacy and defamation in the certain respective. To be accurate, theright of publicity concentrates itself on the economic interest stemmed from one’scontrol and use of his identity, which follows loyally the classic logic system of CivilLaw. The unique merit of adopting the right of publicity lies in the cases where thetraditional remedies fail to serve the best interest of the whole society.Because of the inherent openness of Civil Law’s traditional system of remedy,there is no such thing as the violation of the existing logic system and institution,when the right of publicity is recognized. Just oppositely, the adoption of the right ofpublicity itself operates as a complement to the better protection of one’s interestsrelated to the personality. The use of publicity is comprised of two paralleled methods,prevention of other’s misuses and one’s own commercial use. The remedy of the rightof publicity adopts exactly the same mode of traditional civil protection of otherimportant interests related to the personality. Once the harm was done the right ofpublicity, hardly would it be reversible. The only possible remedy the victims mightturn to is the pecuniary damages, which still functions far from satisfactory. The adoption of the right of publicity might as well be included in theforthcoming Chinese Personality Rights Law, in which the right of publicity shouldbe recognized as equal enforceable as the right to privacy, the right of reputation aswell as the right to portrait. The scope of the right to publicity may range from one’sname, nickname, accent, portrait, picture or voice, to one’s virtual identity created inthe cyber space. There is no public interest that trumps over the right of publicity, andnot only the celebrity but also ordinary people may enjoy the right of publicity aswell.This article will compare the right of publicity with the right to privacy, the rightof reputation and the right to portrait by the criterion of which is the best remedy forthe victim in the “Mr. Incisive” incident, in order to manifest the outstandingadvantage of the right of publicity in the era of knowledge economy. On the premiseof the feasibility of adopting the right of publicity to the existing civil law system, thisarticle will provide the specific institutionalization of the right of publicity.