Is It Illegal to Auction off Qian Zhongshu and Yang Jiang’s Letter Manuscripts?

(By You Yunting) Recently, we noticed that a Beijing-based auction company was interested in selling letters and manuscripts, including those from the couple Mr. Qian Zhongshu and Ms. Yang Jiang (it should be noted both Mr. Qian and Ms. Yang are noted scholars in China). In addition, we have also seen letters from their daughter Ms. Qianyuan to Li Guoqiang, the chief editor of Hong Kong based magazine Guang Jiao Jing, and a manuscript of Mr. Qian’s work. In the meantime, some of the letters’ content has been disclosed to the media; in fact, following these disclosures there was apparent dissatisfaction from Mr. Qian’s widow, Yang Jiang, alleging that these public disclosures were in fact a violation of one’s private communication, and any public disclosure, by the media or otherwise, would be considered improper.

A reporter interviewed the author about the issue, and his primary question was whether the auctioning of these letters and manuscripts would be in violation of any laws. To judge the issue in detail, that question appears to be rather complicated. The general focus of the issue is despite Li Guoqiang holding the relevant manuscripts and some of Qian’s letters, which under the relevant laws means the former holds property right to the articles, the author still retains copyright over the articles. In the event these letters are auctioned off, there would be a direct conflict between property and copyright, as well as issues regarding privacy, commenting on others’ works, and the reputations of the individuals involved. The author would like to share his opinions regarding these aforementioned issues in the hopes that it may trigger more dialogue and discussion surrounding the issues involved here.

I. What types of rights and who are the rights holders in regard to letters and manuscripts?

In terms of the letters and manuscripts as discussed above, Li Guoqiang is the holder of the original letter and manuscript, and accordingly Li has the property right over the articles. However, the copyright of the letter and the manuscript does not normally belong to the recipient, but rather the author, namely Qian Zhongshu. That being said, his family should retain copyright over the implicated articles, and any copyrights implicated do not under any circumstances transfer with the original copy to the recipient; in this case Li Guoqiang. The literary content in the letters and manuscript constitute an original literary work as provided for in the Copyright Law. On the other hand, the hand writing in the letters and manuscripts also retains a value of its own in terms of aesthetics, which could reasonably be considered a work of fine art under the Copyright Law Due to the fact that both Qian Zhongshu and Qian Yuan have passed away, the current copyright holder is the heir of the letters and the manuscripts, Yang Jiang.

II. What rights may be implicated when publicizing the contents of private letters and manuscripts?

At least four rights immediately come to the author’s mind, including the right of publication, the right of exhibition, the right of privacy, and the right of reputation. The first two rights described are clearly a form of copyright, and the latter two rights are what can be considered personal rights. The content of the letters and manuscripts has not been fully released, and therefore the right to publicize such information would be an exercise of the right of publication, which is an exclusive right that only the holder of the copyright may enjoy, namely the author (or in this case, the author’s heir). As for the exhibition of the letter and the original manuscript itself, such acts would implicate the right of exhibition, which is an exclusive right that only the owner of the property may enjoy and exercise, much like the owner of a piece of fine art. In addition, publicizing the content of the letters and manuscript may violate privacy rights, because the content of such articles may contain information the public is not privileged to know. Furthermore, when the content of the letters and manuscript are commented on and critiqued by others, the reputations of those involved may be besmirched.

If the author or his/her successor’s lawyer would like to prevent the articles from being auctioned, the main points and allegations in such an action should include: the auction of the letter would inevitably lead to publication of the articles, and that would infringe the right of publication as enjoyed by its holder. Taking into consideration the likeliness that some of the letter’s content would be publicized without permission from Yang Jiang, such an act could infringe Yang’s right of publication. The showing of the letters and the manuscript on one hand would not infringe the right of exhibition of the articles, but the letter content involves the author or third parties’ privacy, and could damage the right of privacy of its creator. With the publication of the letter, the public comment would also be seen, which may jeopardize the social value of the letter’s creator or any third parties, which would in turn damage the right of reputation.

III. Would the auction of the letter and manuscript necessarily lead to publication of their contents?

As provided for in the Auction Law, an auctioneer is required to first display and make available for viewing the subject of the auction, and for this reason, the letter creator could stop the auction of the letter, claiming display of the letter would damage the rights of the creator and any affected third parties. But if the auctioneer doesn’t disclose all the content of the letter or only a very little part of it, then this would not violate the right of privacy or reputation, including such parts which may have been disclosed to the media, and any serious legal risks would be thusly avoided.

Why is this? First, the recipient is accepting the letter through lawful methods, and the sender could only base his/her claims on the reasons that the publication of the content would damage the rights. Once the auctioneer chooses not to sell the letter, all the claims will fail. As for the parts that have been publicized, the copyright holder could not claim the right of publication, because according to the Copyright Law, the right of publication is a right that can only be exercised once, even if a previous publication is made against the willingness of the copyright holder. But the law does not consider that, once the content has been publicized, the right of publication vanishes. In terms of the right of privacy or reputation, since the content of the letter is not disclosed, the legal risk could also be prevented.

IV. Could the author of a letter or manuscript stop an auction with the claim that the auctioneer would inevitably disclose the content of said articles?

In the personal opinion of the author, if the author of a letter or manuscript attempts to stop the auctioning of his or her writings on this legal basis, the court will not support such a lawsuit. The main reason is that the letter recipient has assumedly obtained the letter through lawful methods, and therefore holds the letter legally, and enjoys the right to occupy, use, and profit from his/her holding of the article. Disposal of such an article would not damage the right of the author, and that disposal would be considered lawful and protected under the law. For these reasons, the author of a letter or manuscript shall have no rights to prevent the auction of articles he or she has written. Even if arguendo the purchaser in the auction subsequently released the letter to the public, which would damage rights of publication, privacy or reputation, that would only be considered a violation of the law in the purchase itself, and the recipient of the disclosed articles would have no legal connection therewith. The suggestions from the author may be that the letter holder shall demand all the subjects participating in the auction to sign a confidentiality agreement, pursuant to which the signing party promises that they would also require any third parties purchasing the letter complying with the non-disclosure obligation, and thus the legal risk of content releasing could be prevented.

In closing, the issues concerned in the event are far more than the legal issues. The letters and the manuscript of Qian couple as well as those from their daughter are prominent to in the study of traditional culture in China, and the publication of such literature would benefit China’s cultural development; but on the other hand, the right of publication, privacy and reputation of the letter writer should also be protected. The opinions of the author are that the letter and the manuscript shall be kept well, but as for their publication, any publisher should first acquire a license from the author, or the publication shall be made after the expiration of the copyright protection.

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You Yunting86-21-52134918

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