The Right Choice: A Special Dispute on Work Made for Hire

The Right Choice: A Special Dispute on Work Made for Hire

Li Dongtao

Keyword: copyright law, work made for hire, US, China, choose

The Facts

Between brother and boy friend

it is difficult to choose one.

This is a case about “choose”.

At the beginning of 1997, an agreement for technology and maintenance services was made by two corporations: a branch company of an American computer giant in China (hereinafter referred to as A), and a much smaller Chinese computer corporation (hereinafter referred as B).

According to A’s offer, B would build a China Internet presence for A. All of the items prepared for and submitted to A by B under this agreement should be deemed to be “works made for hire”. The agreement would be construed, and the legal relations between parties hereto would be determined, in accordance with Chinese laws.

Although A had signed lots of agreements like this in the past, this time, B refused to sign, the reason is simple: “work made for hire” is a legal term in the United States, but not in China. Since the copyright laws of the two countries are different, an agreement drawn on the basis of American laws could not be implemented in accordance with the laws in China.

To state the point a little more directly, there is no “work made for hire” term in the Copyright Law of China.

       As a result, A’s offer had to be modified: the term “work made for hire” had to be replaced by the term “commissioned work” which is coded in the copyright law of China.

Analysis

        There is no doubt that in the modern economy that intellectual property is fast emerging as a new source of wealth and power. Lots of countries, including China and the United States, have created their legal systems and justifications for protecting their intellectual property.

In addition, lots of international treaties in this field, such as TRIPS, have been signed. Because of diverse historical and cultural backgrounds, laws are still not the same everywhere in the world, and copyright laws are no exception.

As more and more foreign companies penetrate the Chinese market and compete with Chinese businesses in international markets, legal problems inevitably occur. This story is only a tiny reflection of such problems. People can only solve their problems by adopting pragmatic attitudes and understanding each other.

       In short, between CN and US, it is easy to choose one.

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