Research On Registration Antagonism In The Case Of Multiple Transfers Of Copyright

In practice,multiple transfers of copyright,or so-called “double sales of one right”,often occur.In order to secure transaction security,the “Copyright Law”(draft revision for review)explicitly adds a provision stipulating that the “unregistered right cannot be against a bona fide third party”.How to understand the provision concerning registration antagonism is the core of this thesis.This thesis is divided into five parts.Part One briefly discusses the relevant laws and regulations of copyright transfer and transfer registration in its evolution in China.The first Chinese Copyright Law was with a grain of salt about the transfer of copyright.Then the first amendment of Chinese Copyright Law clearly stated for the first time that copyright could be transferred.The difference in legislative attitude reflects the change in legislators' understanding of transfer of copyright and changes in the social practice of life and.From the tradability of copyright to the security of copyright transactions,further transformation and consideration of legal understanding have been reflected.The third amendment of Copyright Law is based on the needs of our country's practice,and the adding provision stipulating registration antagonism for copyright transfer has obviously become mainstream consensus.Although there is an overall consensus,there is still some confusion in terms of specific understanding and design.It requires us to return to the source ofregistration antagonism to explore its true features,and then transplant it to the local.Part Two and Part Three explore the change of property rights and registration antagonism that are used as the base of copyright registration.France and Japan are typical countries that stipulate registration antagonism in real estate.In the case of one thing sold for times,there are two aspects worthy of attention: the relation between registration antagonism and transfer of the thing;the relation between registration antagonism and doctrines of publication and public trust.On the aspect of the relation between registration antagonism,firstly,registration antagonism works based on the logical premise that the property has been subjected to multiple transfers.The main reasons are as follows: the concept of “right ad rem” provides a historical foundation for the multiple transfer of ownership;the privilege to dispose is not limited to being exercised once from the angle of analytical jurisprudence;the spirit of equality of claims should also be reflected under the integration principle in order to optimize the use of resources.Secondly,registration antagonism provides each transferee with equal rights and priority.The ownership acquired by each transferee under the integration principle is formal ownership.Each transferee may claim against any third party except other transferees based on his quasi-ownership,and any third party shall respect the quasi-ownership.However,each transferee has a right against each other,which means that he can negate the existence of any other quasi-ownership that is also unregistered.Consequently,each quasi-ownership is equal.The "registration" gives priority to the quasi-ownership in the same order and fulfills it to be complete and perfect ownership.At the same time,other unregistered quasi-ownerships vanish.On the aspect of the relation between registration antagonism and doctrines of publication and public trust,registration as a publicity method for real estate is a manifestation of the principle of publication.The principle of publication means that real rights should be known to outsiders.Once publicized,it is presumed that outsiders are aware of the change of real rights and thus have negative duties of respect.Without publicity of changes of real rights,third parties do not have duties of respect.Publicity does not necessarily render public trust.The principle of public trust means that all people believe that the right publicized is true.The publicity under the German-styleseparation principle will inevitably bring about public trust.In the area of real estate in France and Japan,publicity is generally not considered to result in public trust.Because registration is not an effective element in the change of rights and the competent authority merely and formally examines the documents that are applied for registration.In short,the registration of real estate in France and Japan can only enable it to be known while it cannot acquire public trust.Part Four analyzes the feasibility and rationality of registration antagonism for copyright transfer which is designed to guarantee the security of copyright transactions.It is mainly based on three reasons: firstly,the features of copyright transfer in China and the multi-transfer of ownership are compatible,because the integration principle of copyright transfer makes the multiple transfer of copyright can in fact be established multiple times.Secondly,registration of copyright transfer in China is only a method of publicity.It does not have public credibility and does not violate the provisions of the Berne Convention regarding the prohibition of setting up formal requirements for the “existence and exercise of rights”.On the one hand,the principle of public trust mainly applies to the change of rights under the principle of separation and does not apply to the change of rights under the principle of integration which copyright transfer abides by.On the other hand,the actual status of copyright registration in China is merely a formal examination.It does not ensure the authenticity and accuracy of the content of the registration and it naturally cannot generate public trust.The failure to generate credibility means that there is no presumption that the right of appearance is in conformity with the real right,and there is no restrictive condition for the “enjoyment and exercise” of rights.Thirdly,there are legislative experiences in stipulating registration antagonism for copyright transfer.At the international legislation level,Japan and Italy,both of which adopt civil law systems,implement the “no registration,no confrontation” system in the transfer of copyright;in terms of domestic legislation,there are examples of “registration antagonism” in Chinese property law and the "Trademark Law" also stipulates the recordation system for trademark licensing.Part Five analyzes how to apply and improve registration antagonism system forcopyright transfer in our country.Under the premise that multiple transfers are valid,each transferee obtains one quasi-copyright.In the event that all quasi-copyrights are not registered,a quasi-copyright owner,in their own name,is able to file a complaint of infringement against anyone other than any other quasi-copyright owner.However,each quasi-copyright owner is equal in rights and cannot sue each another,otherwise he will lose the case.As a result,the status of each quasi-copyright owner is equivalent to a non-exclusive license holder.For such results,the first transferee may claim for continued performance,requesting the transferor to assist in the registration,as well as requesting liability for the breach of contract.Or he may request the termination of the contract and other liabilities the transferor should undertake based on the fundamental breach of contract.The solutions for second transferee are as follows: he may choose to withdraw or change the contract due to the transferor's fraud,or requests to continue performance in assisting registration,and at the same time asks the transferor to assume the liability for the warranty.As long as any transferee has completed the registration,the registrant will enjoy the substantive copyright and the other quasi-copyrights will vanish.If the vanished quasi-copyright owner is not registered due to the transferor's reasons,he can still seek liability for breach of contract.In addition,the provision in the draft version for review has some areas for improvement.The “unregistered rights cannot be against a bona fides third party” should be changed to “where there is no registration,there is no effectiveness against a bona fides third party”.On the one hand,in terms of the existing legislative examples,France and Japan stipulate that the object of registration is legal act,rather than right.“Registration Antagonism System” in Chinese property law is also expressed in the same manner;on the other hand,the status quo of the registration of copyright transactions in China does not ensure the validity and authenticity of the transfer relationship.Registration as a method of publicity only provides relevant information of copyright transactions to people who concern about it.