Who can grant authorization, how to carry out adaptation, and to whom should the fees be paid? The rules for copyright transactions are being supplemented.
To what extent can producers modify a novel after it is sold to a film and television company?
When an enterprise pays to commission a design for a logo, does it automatically obtain the copyright?
When a shopping mall plays background music, who exactly should the fees be paid to?
Can a copyright registration certificate prove that the holder is the ultimate rights owner?
These long-standing issues plaguing copyright transactions are now being incorporated into the Implementing Regulations of the Copyright Law.
On July 13, the National Copyright Administration publicly solicited opinions on the *Revised Draft for Comments of the Implementing Regulations of the Copyright Law of the People's Republic of China* (hereinafter referred to as the "Draft for Comments"), with the deadline for feedback set on August 12.
This is a systematic revision of the supporting implementing regulations after the third amendment to the Copyright Law was completed in 2020 and came into effect in 2021. The current regulations have 38 articles, while the Draft for Comments expands to 49 articles, focusing on rules such as ownership of rights, interpretation of authorization, boundaries of adaptation, remuneration for statutory licensing, technical measures, and administrative law enforcement.
The First Interface: Who Has the Right to Conduct Transactions
The first problem in copyright transactions is often not how much a work is worth, but who has the right to sell it.
A film and television work, a game, a piece of software, or a set of commercial images may involve multiple subjects such as authors, entrusting parties, producers, performers, and producers of audio and video recordings. Any unclear link in the rights chain may affect project investment, content procurement, platform launch, and subsequent financing.
The first issue that the Draft for Comments attempts to address is the identification of transaction subjects.
Authorship Attribution Can Serve as the Starting Point for Ownership Presumption
Article 9 of the Draft for Comments proposes to stipulate that natural persons, legal persons, or unincorporated organizations whose names are indicated on a work shall be presumed to be the copyright owners of the work, unless there is contrary evidence.
Subjects that attach rights identifiers to performances, typographic designs, audio and video recordings, as well as radio and television broadcasts, can also obtain corresponding presumptions of being rights owners.
The significance of this rule is to provide a transaction with an ownership basis that can initiate review.
In the past, authorship attribution on works has long been important evidence for judging authors and rights owners in judicial practice. The Draft for Comments further clarifies this rule, which helps reduce the initial burden of proof on rights owners and provides transaction counterparties with a relatively clear starting point for review.
However, "presumption" does not equal final confirmation.
Once contrary evidence emerges, such as a commissioned creation contract, work-for-hire materials, a copyright transfer agreement, or authentic creation records, the presumption formed by authorship attribution may still be overturned.
The Registration Certificate Is Only Preliminary Evidence, Not a Rights Confirmation Judgment
Article 10 of the Draft for Comments proposes to stipulate that the registration documents issued by registration agencies recognized by the competent national copyright department are preliminary evidence of the registered matters.
The phrase "preliminary evidence" is of great importance.
Copyright registration can prove that a certain subject registered the work and its ownership status at a specific time, but registration agencies usually do not conduct substantive examinations on the originality of the work, the authentic author, and the complete rights transfer process. Therefore, a registration certificate can improve transaction efficiency, but it cannot automatically prove that the registrant is the ultimate rights owner.
In other words, a registration certificate can serve as the starting point for transaction due diligence, but not the end point.
When purchasing, investing in, or accepting copyright authorization, enterprises still need to review creation drafts, formation time, commission contracts, labor relations, payment records, transfer agreements, and upstream and downstream authorization documents.
Paying the Fee Does Not Automatically Grant Copyright
A common misconception in the daily operations of enterprises is: since the logo, promotional video, photographic work, or software interface was produced with my funding and commission, the copyright naturally belongs to me.
However, commissioning payment and copyright transfer are not the same thing.
Article 15 of the Draft for Comments proposes to stipulate that where the copyright legally belongs to the trustee, the entrusting party may use the work within the scope agreed in the contract; if there is no agreement on the scope of use, the entrusting party may use the work for free within the specific purpose of the commissioned creation.
This means that if an enterprise only agrees to "design a logo" or "produce a promotional video" without clarifying the copyright ownership, the entrusting party may only obtain the right to use the work for a specific project. Disputes may still arise over whether the work can be modified, sub-licensed, used across media, or even registered as a trademark.
Therefore, for commissioned creation, the contract must at least answer two questions respectively:
First, who owns the copyright;
Second, how exactly can the entrusting party use the work.
Payment, delivery, and project acceptance cannot automatically replace the rights transfer clause.
The Draft for Comments also proposes to further clarify the "work task" and "material and technical conditions" in works made for hire. Among them, "work task" refers to the duties that a natural person shall perform in a legal person or unincorporated organization; "material and technical conditions" refer to the funds, equipment, or materials specially provided by the unit for the completion of the creation.
This also means that judging whether a work is a work made for hire cannot simply depend on whether it was completed during working hours or in the office, but also on whether the creation is part of the job duties and whether the unit specially provided conditions for the creation.
Who the rights owner is cannot ultimately be resolved by simply saying "this is the company's project".
The Second Interface: To What Extent Can the Work Be Used After Obtaining Authorization
The second difficult problem in copyright transactions is the boundary of authorization.
Many copyright contracts state "agree to adapt", "authorize use" or "exclusive license", but do not further specify the extent of allowed modifications, the media platforms where the work can be used, or whether sub-licensing to third parties is permitted.
When the contract has no agreement or the agreement is unclear, how to interpret it often determines whether a transaction can proceed.
Film and Television Adaptation Authorization Does Not Mean That Every Modification Requires Re-Consent
Article 12 of the Draft for Comments proposes to stipulate that if a copyright owner permits others to adapt their work into an audiovisual work and there is no agreement or unclear agreement in the contract, it shall be deemed that the copyright owner has agreed to make necessary modifications to the work to adapt to the expression form of audiovisual works, provided that the original work is not distorted or tampered with.
This provision directly targets the film and television development of IPs such as literary works, comics, and scripts.
From text to camera inherently means adaptation. Producers need to adjust characters, plots, and scenes according to the duration, narrative rhythm, shooting conditions, and audience acceptance habits.
If every necessary modification must be re-authorized by the author, the communication cost and performance risk of film and television projects will increase significantly. The presumption of authorization for "necessary modifications" helps improve the efficiency of IP development and reduces disputes caused by insufficiently detailed contracts.
However, this does not mean that producers can arbitrarily "radically alter" the work after obtaining film and television adaptation authorization.
There Remains a Boundary Between Necessary Modifications and Substantial Changes
The Draft for Comments also proposes to stipulate that any substantial modification that fundamentally changes the author's aspirations, thoughts, and emotions shall still obtain the consent of the copyright owner of the original work.
This forms two levels:
Necessary modifications made to adapt to audiovisual expression can in principle be presumed to be included in the film and television adaptation authorization; substantial modifications that fundamentally change the author's aspirations, thoughts, and emotions require separate consent.
This proposed rule does not unilaterally expand the rights of producers, but draws a boundary between "adaptation efficiency" and "protection of the work's integrity".
Of course, what constitutes a "necessary modification" and what constitutes a "fundamental change" still strongly depends on factual judgment. Deleting some characters, changing the ending of the story, reconstructing character relationships, or altering the value stance of the work may lead to completely different legal evaluations.
Therefore, even if this provision is finally implemented, it is still necessary to clarify in film and television adaptation contracts:
To what extent characters, plots, and endings can be adjusted;
Whether the author has the right to review the script or propose modification suggestions;
Whether sequels, prequels, spin-offs, and game development are included in the scope of authorization;
How to handle situations where the two parties have disagreements over "major adaptations".
The law can provide rules for contract interpretation, but it cannot replace a truly complete contract.
"Exclusive License" Also Requires Clarification of the Exclusivity Scope
Article 27 of the Draft for Comments proposes to stipulate that the content of the exclusive right to use shall be agreed in the contract; if there is no agreement or unclear agreement, it shall be deemed that the licensee has the right to exclude anyone, including the copyright owner, from using the work in the same way.
This article also has important transaction significance.
In reality, many contracts only state "exclusive authorization" or "exclusive license", but do not clarify whether the copyright owner can continue to use the work themselves, whether the licensee can sublicense, and the regions, media, and usage methods covered by the exclusivity scope.
The Draft for Comments attempts to provide a set of default interpretation rules for contracts with unclear agreements. However, for transaction subjects, the safest practice remains to clearly specify the type of rights, usage methods, region, term, media, and sub-licensing authority of the exclusive license.
The most dispute-prone part of copyright contracts is often not the absence of a contract, but the fact that the contract only contains four words: "authorized use".
The Third Interface: How Fees Can Reach Rights Owners After the Work Is Used
Copyright transactions must not only address "whether the work can be used", but also "how to pay after using it".
The statutory licensing system allows users to use works in advance without separate authorization from the copyright owner under conditions that comply with legal provisions, but they shall pay remuneration in accordance with regulations.
The problem is that in scenarios such as textbook compilation, newspaper reprinting, audio recording production, and radio and television broadcasting, the number of rights owners is large and scattered, making it difficult for users to find and pay each of them one by one. As a result, the law stipulates the obligation to pay remuneration, but lacks an efficient settlement channel.
Further Moving from "Permitted to Use" to "Centralized Settlement"
Article 37 of the Draft for Comments proposes to extend the remuneration payment period for statutory licensing from 2 months to 3 months, and clarify that usage fees shall be paid to copyright owners through copyright collective management organizations.
According to the design of the Draft for Comments, users no longer need to look for scattered rights owners one by one, but complete centralized payment through collective management organizations.
The core of this institutional adjustment is to reduce copyright transaction costs.
In the past, statutory licensing addressed the question of "whether you can use it first", and now it needs to further solve the problem of "how the money can truly reach the rights owner after use".
For Shopping Malls Playing Background Music, the Payment Path Is Expected to Be Clearer
The Draft for Comments also proposes to stipulate that the remuneration for publicly disseminating others' audio recordings shall be implemented with reference to the centralized payment mechanism for statutory licensing.
This is directly related to commercial places such as shopping malls, restaurants, hotels, and gyms.
The background music played in these places involves not only the copyright of lyricists and composers, but also the right to remuneration enjoyed by audio recording producers in accordance with the law. If the Draft for Comments is finally implemented, relevant commercial entities may obtain a clearer institutional basis for who to pay and through which channels to pay.
For commercial operators, this means that the compliance cost of background music, which was easily ignored in the past, will become more explicit; for rights owners, it means that statutory rights may obtain a more realistic revenue channel.
However, even with the centralized payment regulation, it does not mean that all problems have been solved.
The effective operation of the collective management system still depends on whether the charging standards are clear, whether the music library and rights owner list are transparent, whether the fee distribution is verifiable, and whether users can avoid duplicate payments.
From "stipulating that payment is required" to "ensuring that fees accurately reach rights owners", a complete set of transparent settlement mechanisms is still needed.
The Fourth Interface: How Far Can Technical Protection and Administrative Law Enforcement Go
Transactions of digital content are increasingly dependent on technical measures.
Encryption, access control, copy restrictions, digital watermarks, and device verification can help rights owners control the dissemination of works, but they may also affect consumers' normal use, teaching and research, accessible reading, and network data security.
Therefore, technical measures need both protection and boundaries.
Technical Measures Are Not Automatically Protected by Copyright Law Simply Because They Are Implemented
Article 43 of the Draft for Comments proposes to further clarify the definition and scope of technical measures, and Article 44 sets up a channel for subjects that meet the statutory fair use circumstances to apply for circumvention of technical measures.
If the relevant subjects meet the statutory circumstances and indeed have difficulty accessing the work, they can apply to the rights owner to bypass the technical measures; third parties can also provide corresponding technical support under conditions that meet the legal requirements.
This reserves space for legitimate usage scenarios such as teaching, research, and accessible services.
At the same time, Article 45 of the Draft for Comments proposes to stipulate that technical measures used to damage users' network and data security, as well as other technical measures that harm public interests and are unrelated to copyright protection, are not protected by the Copyright Law.
This means that technical measures must truly serve copyright protection, and cannot automatically obtain legal support just because they are wrapped in the cloak of "copyright protection".
For software, games, streaming media, and digital content platforms, the design of technical measures is not only a product issue, but also a copyright compliance issue.
"Harming Public Interests" Is Beginning to Obtain More Specific Judgment Criteria
Copyright administrative law enforcement must be premised on the fact that the infringing act simultaneously harms the social public interests. However, in practice, what constitutes "harming public interests" has long faced the problem of unclear boundaries.
Article 47 of the Draft for Comments proposes to list four specific circumstances, including harming national image or public safety, undermining the socialist market economic order, disrupting the cultural market order, and committing infringing acts for profit or making a living from infringement, with a catch-all clause set up.
On the one hand, this provision provides a clearer basis for administrative law enforcement, and on the other hand, it should also draw a boundary for administrative power to intervene in ordinary civil disputes.
Among them, the scope of "committing infringing acts for profit" may still be worthy of further discussion.
If the interpretation of "for profit" is too broad, a large number of individual, small-value infringing acts committed by ordinary commercial entities may be included in the scope of administrative law enforcement. How to distinguish general civil infringement from infringement that truly harms public interests still needs further clarification in the final text or law enforcement practice.
Clear rules are not only for strengthening law enforcement, but also for constraining law enforcement.
IP Power Judgment
What the copyright industry really needs is not just stronger rights, but a set of rules that can facilitate transactions.
There should be preliminary proof of who the rights owner is; interpretation rules are needed when authorization is not clearly stated; rights boundaries are required for how to adapt a work; after statutory licensing occurs, there must be a channel for fees to reach the rights owner.
Only when these interfaces are opened one by one can copyright not only be a right in litigation, but also become an asset that can be identified, valued, and circulated in the market.
Of course, this revision mainly implements the system already established in the 2020 Copyright Law, and cannot directly answer new issues such as the use of artificial intelligence training data, the work nature of AI-generated content, and the liability of relevant platforms.
This also shows that the revision of the implementing regulations is not the end of the improvement of copyright rules.
But a clear change has taken place: in the past, the copyright system paid more attention to "whether there is a right and how to compensate for infringement", but now it is beginning to pay