Research On The Legal Problems Of Consignor’s Right To Use In The Commissioned Works

Compared with ordinary works, commissioned works has particularity and complex. Works consignor is the financial investor of commissioned works. The consignee of works is the intelligent investor of commissioned works. It’s vital to deal with the relationship between works consignor and consignee. However, the provision of Copyright Law and its judicial interpretation on commissioned works in our country is very simple. It only states that when the copyright of commissioned works belongs to consignor, consignor enjoys the right to use commissioned works. If both parties don’t mention the use scope of works, consignor can use the works free of charge in the scope of specific purpose created by commission. It doesn’t mention many specific contents about consignor’s right to use. For example, both parties don’t mention the right to use commissioned works, so consignor still enjoys the right to use the works, then how does the right to use come from? For another example, how to define the nature of consignor’s right to use? How big does the scope of right to use? How to protect consignor’s right to use better? These problems must be clear in theory as well as the urgently needed problems to be solved in judicial practice.Under the condition that the commission contract does not specify the right of use of both consignors, they still possess the right of use and the obtainment of their rights also possess legitimacy. The basis of legitimacy lies in balancing of interests, the acquiescence of right of use as well as the theory of benefit maximization. At this time, the right of use of consignors shall specify the following aspects:Firstly, whether the category scope of consignor’s right to use includes human right or not is the biggest controversial problem at present. Traditional theory thinks that the scope of licensed use is only limited to property right, but with social development and technological advance, personal right of works and property right of works are difficult to be classified. Some personal right of works has the nature of property, which causes that if consignor only enjoys the property right but don’t have personal right, so the exercising of consignor’s right to use may be affected greatly even cannot be kept. Therefore, publication right and revision right closely related to property right of consignor shall be permitted to use, but we should take cautious attitude. Secondly, the range of application of consignors is determined by “specific purpose of commissioned creation”, while the specific purpose of commissioned creation is a kind of subjective judgment. The consignor as well as the trustee is often inclined to explain towards a more beneficial aspect of themselves based on their interests. A rational expectation of a rational person is required to judge the range of application of consignor and to limit the right into a necessary range. Once the necessary range of application is exceeded, the consignor needs to take the burden of proof on the intended use. At last, consignor’s right to use shouldn’t ignore time limit scope. If the contract doesn’t define the time limit of right to use clearly, copyright owner’s right time limit of works, period of validity of contract and nature of works are the important factor to judge consignor’s right to use. In addition, the case that many consignor’s copyright is damaged in practice makes us have to reflect that how to seek for a new way on the basis of protecting copyright of consignee so as to maintain the exercising of consignor’s right to use better and promote the development of commissioned works and prosperity of the whole literature art field.