The auction of Qian Zhongshu's personal letters took a new turn on June 6. The Beijing-based auction company Sungari announced a decision to stop public auction of Qian's personal letters on its website. According to the decision, out of respect for Yang Jiang, Sungari decide to stop the auction which would be held on June 21, 2013.

The controversial auction was announced by Sungari on its website and involved 66 of Qian's personal letters to Li Kwok-Keung, former editor-in-chief of Hong Kong's magazine Wide Angle in the 1980s, manuscripts in pen of Qian's collected works Ye Shi Ji, the original copy of Six Stories in the Cadre School and their late daughter Qian Yuan's letters. A collection of letters and manuscripts that reveal extensive life details and literary views of renowned writer Qian Zhongshu will go under the hammer in June, despite Qian's 102-year-old widow, Yang Jiang, saying it is "very inappropriate" to publicize the family's private communications. Then Yang triggered vehement protest by denouncing the auctions as an infringement of privacy and copyright to the court. The court voiced support for Yang to halt the upcoming auction involving private missives written by her and her late husband, Qian Zhongshu, a renowned Chinese literary scholar.

How many types of right involved in letter auction?

Letters and manuscripts, as the channel for people to communicate thoughts and emotions, have been replaced by typing on computer and cell phone. However, manuscripts and letters of prominent literary scholars and writers have recently become sought-after in the art market. How many types of rights of these rare and valuable handwriting and manuscripts actually involved in this auction?

"Auctioning Qian's private letters may lead to infringement of the rights of property, authorship, privacy and reputation. Those composing the missives are their copyright owners, and auction groups should not make any copyright-related use of such missives without the consent of copyright owners," said Yu Cike, a senior official with the National Copyright Administration, adding that publicizing the letters' contents may result in publicizing right infringement.

"While Yang does not own the letters - they belong to Li Kwok-keung, a long-time friend of the author in Hong Kong - she has the publishing rights for Qian's collected works. The violators who sold works without the consent of their copyright owners would infringe the rights of publicizing, exhibition，privacy and reputation," You Yunting explained, a partner at Shanghai Dabang Law Firm.

Meanwhile, Yu Guofu, a lawyer specializing in copyrights at the Shengfeng Law Firm had different opinion. Under China's laws, letters could be classified as personal property, and while Yang does not own the letters - they belong to the recipient Li Kwok-keung. The copyright should belong to the writer and the recipient enjoyed the real right of movables. The copyright owner could protect his rights of publicizing, copy, publishing and communication through information network in accordance with the copyright law. In parallel, selling letter materials belonged to the transfer of the movable property," he pointed out.

Whether auctioning letters and manuscript infringing publicizing right or not

Auctioning private letters may lead to infringement of many types of rights. What about the publicizing right? Tao Xinliang, Director of IP School of Shanghai University, took a view that auctioning letters and manuscript showed an intersection of real rights and authorship. Its ownership of property and exhibition would be transferred through auction. However, the right of other authorship, personal and property were still belonging to the copyright owners. Given the circumstances, the violators who publicized works in the auction without the consent of their copyright owners would infringe the publicizing right.

"Under China's laws, the copyright of letter's content should belong to the writer and recipient merely enjoyed the real right of movables. It is generally understood that real right was an absolute right and the owner could freely exercise their right. However, in the handwritten letters, most in calligraphy, included two aspects –the letter was both an object and the work carrier," said Dong Meigen, from East China University of Political Science and Law.

However, in Lu Zhiyong's opinion, the president of the International Auction Company of China, it should be considered that the writer had authorized the recipient to deal with the letter since the writer sent it without indicating the strictly forbid to the public. The recipient could deal with the letters without writer's permission.

How to avoid legal risk in auction

"Both client and auction agency ought to verify the copyright status of auction items and keep an eye on the auction of such handwritten letters especially whether it led to infringement of the rights of authorship, privacy and reputation or not," Tao stressed.

Auction house should not copy, publish and distribute people's private materials ahead of the sale which might cause the infringement of the copyright. However, it was not a violation of privacy that the letter holder displayed the letter in the pre-exhibition of the auction," Yu added.

(Source: China IP News)