II

1.Right of integrity in the sense of Copyright Law means protecting a work from distortion and tampering.The judging criteria for infringing the “right of integrity” is generally to judge whether the infringer has the intention or malice of misinterpreting the work subjectively, and whether his or her behavior has reached the degree of harmful change of the work objectively.Besides, the judgment should be comprehensively determined based on whem the facts of the case.

2.When the copyright owner permits another person to make his or her work into a film work, it is deemed that he or she has allowed others to make necessary changes to his work, but such changes must not distort and tamper with the original work.Whether based on the right of adaptation or the “necessary alteration” of a film work, it should be limited to not infringing the right of integrity.In order to judge whether the changes of the film work have distorted or tampered with the original work, the following three aspects need to be considered.The first is to check whether the film has the same creative intention and subject matter as the original work.The second is to review whether the changes of film’s main plot, background settings and character relationship are necessary.The third is to comprehensively consider the public’s overall evaluation of the changes to the work.

Case 1: Ye is a translator of the works of a Japanese novelist, and is responsible for translating a novel into Chinese.The translation has three forms: hardcover compilation, paperback compilation and separate edition.Company A deleted the foreword, postscript and introduction of the translator when publishing a separate edition of one of Ye’s translations.According to this, Ye argued that the Company A’s act of deleting the foreword, postscript and translator’s briefintroduction in the separate edition infringed his right of integrity.Company A believed that the aforementioned foreword, postscript and translator’s introduction were not the main content of the books involved, and its act would not substantially change the core content of the work, and would not affect readers’ understanding and comprehension of the views and opinions expressed by the original author and translator in the work.Therefore,it did not constitute an infringement on Ye’s right of integrity.During the trial of the case, the court of first instance decided to immediately stop publishing and distributing novels involved in the case; the judgment of second instance revoked the judgment of first instance and rejected all claims of Ye; the judgment of retrial court rejected Ye’s application for retrial.((2018) Hu Min Shen No.1180)

The court held that: The right of integrity refers to the author’s right to protect the content, views, and forms of his work from distortion and tampering.Distortion refers to the intentional change of the truth or content of the work, and tampering refers to modifying or misinterpreting the work through falsification.Generally speaking, the infringer who violates the right of integrity often has subjective performance of distorting the work intentionally or maliciously; at the same time, objectively, the act of infringing the right of integrity often manifests as a substantial change to the meaning expressed in the work and the intention expressed by the author.Such changes generally include vilification or deletion, addition, or other harmful changes to the work that go against the author’s thinking.Therefore, the judgement of whether the alleged infringement infringes the right of integrity generally lies in judging whether the infringer has intentionally or maliciously misrepresented the work, and whether his or her behavior has objectively reached a level of harmful changes to the work.The judgment also should be comprehensively determined based on the facts of the case.

In this case, Ye, as a translator of the books involved in the case, enjoyed the copyright of his translation works, including the right of integrity.The original expressions in Ye’s translated works, as well as the foreword and postscript that condensed his creative efforts and intellectual achievements, should be protected by law, including protecting the right to protect the work from distortion and tampering.Specifically, the editors of Company A told Ye about the amendments and deletions during the publication of the book, for the purpose of publishing.It cannot be concluded that Company A and its editors have subjective intention or malice of misinterpreting the works involved.The foreword and postscript of the dispute were made by Ye for the translation work, not for book involved in the case.Subsequent publication of the book without using the forward and postscript translation is not enough to constitute a harmful change to the translation work involved.

In this case, the parties involved agreed that the publishing unit could change the relevant content of the work involved, but the results of the change should be approved by the author.This type of agreement is not only the declaration of the author’s right to defend his work from distortion, but also the right basis for authors to change the work within reasonable limits to meet the requirements of publishing.In summary, the alleged behavior did not infringe the Ye’s right of integrity.

Case 2: Zhang created a series of novel G and then signed a contract with Company A to transfer all the copyrights of the novel G to Company A, except for the personal rights of the author, which are the exclusive rights according to Chinese law.Company A and Company B signed a Copyright License Agreement to authorize Company B to obtain the production, reproduction rights and distribution rights.Company B then authorized the film adaptation and filming rights of the novel J (a part of G series) to Company C.Company C signed a cooperative investment agreement with Company D and Company E, agreeing to adapt the novel J of the G series into a movie and then this film was subsequently screened in major theaters across the country.However, Zhang, the original author of the novel, believed that the content of the film was severely distorted and tampered with the original, and it differed greatly from the original in terms of the character settings and storyline, which violated Zhang’s right of integrity.Then the case was brought to court.The court held that Company D, Company C, and Company E, as the copyright owners of the movie involved, collectively infringed Zhang’s right to protect the integrity of the work and shall bear joint and several liability.((2016) Jing 73 Min Zhong No.587)(https://www.daowen.com)

China’s Regulation for the Implementation of the Copyright Law stipulates: “Where a copyright owner authorizes another person to make,based on his or her works, cinematographic works or works created in a way similar to cinematography, it is deemed that the copyright owner has permitted the authorized person to make necessary alteration of his or her works.However, such alteration shall not distort or tamper with the original works.”

In this case, Company C, as the adaptor, obtained the legal right of adaptation through authorization, that is to say, it shall be deemed to have obtained the right to make necessary changes to the original work, but such changes shall not distort or tamper with the original work, otherwise the adaptation may infringe the copyright owner’s right of integrity.Therefore, the freedom of an adaptor is not absolute, but limited.

Thus, the court held that: To determine whether the changes to a movie work have distorted or tampered with the original work, the following three aspects need to be considered:

(1) Examine whether the film has the same creative intention and theme as the original work.The film director acknowledged that the movie involved was a sci-fi movie type, and the novel was not a sci-fi theme, so the theme of the two was different.

(2) Examine whether the changes to the film’s main plot, background settings and character relationships are necessary.The defendant maintained that changes to the film were made for the purpose of passing China’s censorship of the film.The court held that film adaptors should correctly understand the requirements of China’s film censorship system and make appropriate adaptations based on the content and spirit of the original work, rather than arbitrarily change the original work.In this case, the court held that the film involved in the case made substantive changes to the main characters and the background of the novel involved, and made essential changes to the views and emotions expressed by the author in the original work, which constituted distortions and tampering of the original work.

(3) Comprehensively consider the public’s overall evaluation of changes to the work.The impact of the adaptation on the author’s reputation is not a constituent element of violating the right of integrity, but a factor in measuring the severity of the infringement.Although the public’s comments on the movie were not aimed at criticizing the novel, the evidence in the case has proved that the reputation of the author was devalued because of the adaptation of the movie.

Therefore, the court found that Zhang’s right of integrity was infringed, and ordered the defendant to immediately stop distributing,broadcasting and disseminating the film and to compensate Zhang for spiritual damages of RMB 50,000 yuan.