A Talk on “Right of Modification” and “Right of Adaptation”

Yuan Bo,Second Intermediate People’s Court of Shanghai,[Copyright]

 
Moreover, the same idea may be conceptualized differently in different professions. Take the copycat, for example, which under Copyright Law, is the copying of the expression of ideas, whereas copying of the ideas themselves would be a legitimate “classic attribution of respect.” Yet, in the profession of Xiang Sheng (comic talk show), there is an act of copying the point of joke, which is to produce a work based on another’s point of joke. This is referred to as “leaf-stripping,”
and viewed as despicable in the profession. However, in the view of a copyright professional, the “leaf-stripping” act, if merely an imitation of the concept or idea, would not constitute infringement of copyright on the work of joke. In another example, “signing” can be made in practically all walks of life, and customary rules for “signing” exist in visual arts, stage performances, and sculptural arts. These rules are mostly different from the Copyright Law signature. Only when in trouble, and after consulting a lawyer, will people realized that in copyright law practice, “signing” means a whole different set of rules.
 
The differences between “right of modification” and “right of adaptation” will be discussed in this article which produce a lot of disputes even among professionals.
 
What’s the Distinction between “Right of Modification” and “Right of Adaptation”?
 
Author recently had a discussion with a friend in the circle : why in the copyright dispute of  Yanzhikou, the plaintiff sued for infringement of the “ right of adaptation” rather “right of modification”? It suddenly struck me that these two concepts were easily confused.
 
In the current Law of Authorship, the so-called “right of modification” refers to the “right to modify or authorize others to modify a work” which is a personal right under author’s right, i.e., to make modification, refinement , improvement , addition or deletion to the contents or wording; whereas “right of adaptation” refers to the “right to make changes to a work by deriving an original work” which is a property right of authorship. Although one is personal and the other i s property right under authorship, the right of modification and the right of adaptation are not wholly uncorrelated. For instance, if someone without authorization adapts another’s novel into a movie, making relevant changes to the lines of conversation between the characters, there is infringement of the author’s right for adaption as well as for modification.
 
In another example, in the copyright case of A Home Letter, Li Chunbo contended that JF Company, without obtaining consent from the composer and lyrics writer being himself, used the song of A Letter Home to make a video clipping t o be published in its Wechat for promotion of its real estate products, in violation of Li’s right of signature, modification, protection of work integrity, adaptation, dissemination over the Internet and the right to make movies of the song of A Home Letter. The court after trial found that the music and lyrics in the vide clipping constituted adaptation of the song A Home Letter, and that JF Company’s publication of the video in Wechat without permission infringed Li’s rights to sign, to adapt and to dissemination over the Internet. It held that JF must make an apology and be liable for compensatory damages.
 
On the right to modify and right to adapt involved in this case, one view is professed that the modification was on part of the contents, and on the words and phrases. Hence, the distinction between act of modification and act of adaptation lies in whether a new work is derived from the modification. If it is, it falls within the range of adaptation. In this case, the changes made to A Home Letter were not confined to partial simple modification of the music and lyrics, and were therefore not acts of adaptation.1 
 
The author believes that this view is susceptible. As previously stated, though the right of modification and right of adaptation are each personal and property rights under authorship, they are not wholly uncorrelated; moreover, although the right of modification relates to partial and simple modification of a work, it does more so on comprehensive and complication modification (short of the degree yet of mutilation and falsification). For this reason, if an act reaches the degree of “comprehensive and complicated modification” of another’s work (short of distorting, mutilating or violating the integrity of the original work), it is still an act of modification.
 
In such circumstances , the infringer not only violates the author’s right of adaptation, but also that of modification.
 
Why There are Fewer Disputes over Right of Modification that of Adaptation?
 
In leafing through similar cases, it came to this author that there are obviously more cases involving right of adaptation that those of right of modification. Why? Apart from difficulty of distinguishing between “right of adaptation” and “ right of modification , ” there are , according to this author, reasons as follows.
 
First, there are acts of adaptation that indeed infringe on the author’ s right of adaptation, but no necessarily the “ right of modification. ” For instance, if a movie maker converts a popular novel into a TV series, it obviously infringes the author’ s “right of adaptation” (unauthorized modification of the expression of the work). Yet, suppose the conductor is a diehard fan of the novel and makes a 100% true reproduction to the novel story without adding or deleting anything in the contents, and even to the minute details of the characters, scenes or the dialog, which is magnificent. In such a case, even the original author himself is hard-pressed to find even a scintilla of evidence that the movie “transformation” injures his personal “right of modification,” but has to rest his claim on the property “right of adaptation” rather than the personal “right of modification.”
 
Second, it is an undeniable fact that damages for personal identity injuries are assessed l ess t h an property damages in our country. For instance, liability in civil cases for injury to right of portraiture or reputation is in the form of compensatory damages, but it is more to console than to compensate, a typical form of redress for emotional distress, which is usually symbolic, and is hardly commensurate with the infringer ’s illegal gain.
 
An example is Liu Xiang vs. a certain newspaper where the paper used L i u ’s photo i n a magazine cover for which the second instance court awarded 200,000 Yuan, which is a highly symbolic figure compared to the royalty rate for Liu’s licensee fee for using his photos.
 
Similarly, many cases indicate that copyright damages awarded for personal right infringement are apparently less than for property right infringement. The reasons are complicated: on the one hand, the standard, method and precedential cases are abundant and well established for assessing property damages compared t o personal right damages. On the other hand, there is literally little standard to follow in assessing personal right damages, and the only guidance is “discretion,” but a mindful judge is rarely bold enough to use all discretion to decide cases. The reason is that unlike in Anglo-American jurisdictions, reversal of judicial d e c i s ions i s to be avoided, which is nothing but normal for a common law judge, and that’s why foreign courts could award arbitrary amount of millions or billions of damages. This also explains why after introducing the scheme of punitive damages under the Trademark Law in our country, there are still “very few cases,” with “difficulties to apply the law,” and “difficulties to start with” which even become headlines for newspaper or topics for discussion. Then, it is not hard to imagine that extremely conservative amount of damages are awarded.
 
Besides, some copyright authors sue to seek economic redress only without feeling being infringed in the personal aspect of the copyright, and added “right of modification” to “right of adaptation” after consulting their lawyers only to intimidate the other side. But once told of the difficulties in producing evidence and the low amount of damages, they would give up on “right of modification” and concentrate on proving infringement of property aspect of the copyright.
 
Obviously, the above problem needs to be solved. The Supreme People’s Court Interpretation on Several Issues Ascertaining Damages for Emotional Distress in Civil Infringement Cases provides in Article 10, “The amount of damages for emotional distress shall be assessed against the following factors: … (4) the unjust enrichment ….” Based on this provision, the unjust enrichment is a statutory consideration which, if followed in copyright infringement cases so as to increase the amount of damages for infringement of personal rights, it will overcome the short comings of the inclination to symbolic damages for infringement of personal right , by better protect the interest of the copyright owners.
 
1 See, Wang Qiluan, Judicial Determination of Infringement of Right of Adaptation in Musical Works from the Perspective of the Infringement Case of A Home Letter.
 
(This article reflects the author’s view only).
 
(Translated by Zheng Xiaojun)

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