For well-known works, let’s not take it lightly
Recently, eight paintings on the theme of galloping horses by Mr. Xu Beihong, a master in the painting world, were produced by a large domestic NFT platform as NFT digital collections for public limited sale. Some people criticized him for deceiving consumers and damaging Mr. Xu Beihong’s reputation; some people argued that Mr. Xu Beihong’s paintings could be commemorated forever in the form of NFT, and had obtained exclusive authorization, so how could he infringe?
The tip of the needle is against the Maimang, and they do not give way to each other. Regarding this incident of Mr. Xu Beihong’s digital collection, Sister Sa’s team believes that it mainly involves issues related to the copyright of NFT digital collections. In addition, it is also related to information network crime and the pre-review obligation of NFT platforms.
1. Will it infringe copyright?
Regarding this incident, some commented that Mr. Xu Beihong died in 1953, more than 50 years ago, and Mr. Xu Beihong has lost the copyright of his works. This statement is inaccurate in the eyes of Sister Sa’s team. According to Articles 22 and 23 of the Copyright Law, the protection period of the publication rights and copyright property rights for works of natural persons shall be the author’s life and fifty years after his death, and the term of protection shall end at the fifty-year period after the author’s death. On December 31st, the author’s personal rights other than the right of publication, that is, the right of authorship, the right to modify, and the right to protect the integrity of the work, are not limited.
To correctly understand the 50-year protection period stipulated in my country’s “Copyright Law”, it is necessary to understand the purpose of legal protection of intellectual property rights such as copyrights, patents, and trademarks. Specifically, the Copyright Law, the Patent Law, and the Trademark Law protect intellectual property rights in order to promote the diffusion and dissemination of knowledge and skills that are beneficial to human society. But the dissemination of knowledge cannot be unlimited. From the perspective of balance of interests, if we blindly focus on the dissemination of knowledge without rewarding those who create knowledge, then new knowledge will no longer be created; from another perspective, if we overprotect rights holders, it may form Knowledge monopoly increases the cost of acquiring knowledge, which is also detrimental to the dissemination of knowledge. Therefore, it is crucial to determine a reasonable period of protection of rights to achieve the purpose of legislation.
At present, the laws of various countries stipulate the copyright protection period, but the duration varies. In my country and most Western European countries, the author’s lifetime plus 50 years after his death is regarded as the effective period of copyright protection. Austria and Germany are the author’s lifetime plus 70 years after death, Spain is the author’s lifetime plus 80 years after death, and is the country with the longest copyright protection period; while many developing countries, the former Soviet Union, and Eastern Europe stipulate that the author’s lifetime plus 25 years after death. year. According to the Universal Copyright Convention, which China joined in 1992: “The term of copyright protection shall not be less than 25 years from the date of publication.”
According to the provisions of the Copyright Law, until now, since Mr. Xu Beihong has passed away more than 50 years ago, his works have become public domain works, and anyone can use them, including but not limited to copying, distribution, rental, exhibition, Filming, editing, etc. In theory, it is currently believed that the information network dissemination rights, reproduction rights, and adaptation rights that need to be obtained for the production of NFTs and digital collections have been included, so the act of making NFT digital collections does not constitute an infringement of copyright property rights.
2. Will it infringe the personal rights of the author?
From the statement issued by a cultural and art center, we can see that it accuses the so-called works of Mr. Xu Beihong on some digital platforms as counterfeit works and has nothing to do with Mr. Xu Beihong. There is no way to verify this. If there is such a situation, since the personal rights of the copyright other than the right of publication are not limited by the term of protection, it may still constitute infringement.
Although there is still controversy in the academic circles as to whether counterfeit works infringe upon the authorship rights of others, according to Article 53 of the Copyright Law, the production and sale of works that counterfeit the authorship of others will infringe upon the authorship rights of others. Or distorting, tampering, or splitting the work to the extent that it damages the author’s reputation, and also constitutes an infringement of the right to modify or protect the integrity of the work.
In addition, since Mr. Xu Beihong is a famous patriotic artist in modern my country, his works have special social and cultural value. If he arbitrarily adapts his works when producing and distributing NFT digital collections, it may hurt the public’s feelings.
3. Is there a risk of criminal offences?
Regarding this incident of Mr. Xu Beihong’s digital collection, Sister Sa’s team believes that in addition to copyright-related laws, there is also a risk of criminal offenses. If the digital collection of Mr. Xu Beihong involved in the digital platform is a counterfeit work, the individual and the NFT issuer may be at risk of committing fraud, that is, the fictitious digital collection of Mr. Xu Beihong makes consumers fall into a wrong understanding and purchase the NFT collection, causing damage to the property of consumers Losses, and in this case, the digital collection platform is also difficult to be immune.
Because according to the provisions of Article 287-2 of the Criminal Law [the crime of helping information network criminal activities], knowing that others use information networks to commit crimes, providing Internet access, server hosting, network storage, communication transmission, etc. for their crimes If the circumstances are serious, it will constitute the crime of helping information network criminal activities and bear corresponding criminal responsibility.
Regarding the crime of helping information network criminal activities, Sister Sa’s team has conducted a lot of research before, so I won’t repeat it here. Interested readers can refer to the previous articles on the official account.
4. The pre-review and compliance system of the NFT digital collection platform is imperative
Whether it is the digital collection incident of Mr. Xu Beihong this time, or the previous case of “Fat Tiger Vaccination”, they all send a signal to the major digital collection platforms that digital collection platforms need to pay more attention to the protection of intellectual property than ordinary platforms. It is not enough for major digital collection platforms to agree in their contracts with users that they shall not infringe on the intellectual property rights of others, because according to Article 1197 of the Civil Code, the Internet Service providers who know or should know that network users use their network services to infringe upon the civil rights and interests of others, but fail to take necessary measures, shall also be jointly and severally liable.
For more well-known works, it should not be taken lightly. For the review of works uploaded by users, it is necessary to review not only its form, but also its substance, to guard against counterfeit and pirated works, and at the same time, it is necessary to expand the scope of review, including but not limited to offline tangible works and works that are publicly published and disseminated on the Internet. Perfect pre-review mechanism and compliance system, only by exhausting all kinds of measures to fulfill the corresponding duty of care, can we avoid the burden of lawsuits.
The above is today’s sharing. The opinions in the article are only the words of one family. I hope it will be beneficial to all readers. Thank you readers.
Posted by:CoinYuppie，Reprinted with attribution to:https://coinyuppie.com/how-does-xu-beihongs-nft-digital-tibetan-dispute-look-at-the-law/
Coinyuppie is an open information publishing platform, all information provided is not related to the views and positions of coinyuppie, and does not constitute any investment and financial advice. Users are expected to carefully screen and prevent risks.