(By You Yunting)At first, the author would like to make a digression statement: in the article “Would Tencent Take the Copyright of Contents Published by Users on WeChat?”, the author analyzed the misunderstanding arisen by the Tencent User Agreement, and after its publication, Tencent modified its agreement, by which the original article has been amended into “For the contents created by the user when using the service herein provided, its IPR shall be the property of the user or the related right holder.” The author deeply appreciates their quick acceptation of the advice.
Among the previous posts of our website, you could also see the article “Is It Illegal to Auction off Qian Zhongshu and Yang Jiang’s Letter Manuscripts?”, which has described you the legal issues concerning the letters holders’ property right against the copyright of its creator, namely the dispute between the letter recipient Li Guoqiang and the author Qian Zhongshu, Qian Yuan and Yangjiang. Now we have heard the further progress of the issue:
I. Yang Jiang stated in written against the action off of the letter and the manuscript.
II. The legal experts in the Beijing colleges the held a seminar on which they confirmed the privacy, copyright violation and the damage against the public order and social good faith with the auctioning off the letter and the manuscript, and therefore it shall be prohibited by the law.
For the issue, we also have seen the report on CCTV.
III. The auction company has publicized the letters and the manuscripts. As informed by a reporter friend, the letters and manuscripts to be auctioned have been scanned into electronic formats, and almost every reporter interviewing the issue has copied that in the Email. Nevertheless, as checked with the emailed letters and manuscripts, the author thinks that no privacy violation has been made. To the author’s opinion, the auctioning party’s providing of the letters and manuscripts makes senses in the law. That means the publication of the letters and the manuscripts content. For one hand, that has infringed the copyright of Yang Jiang, which has involved the right of publication and the right of information communication by network. Once the letters and manuscripts involve the privacy and or reputation, it would also infringe those rights. However on the other hand, that publication has made Yang face more difficulty in the following up auction fighting, that is mainly because the content of the letters and manuscripts have been already publicized, and no matter for the copyright, reputation or privacy infringement, that infringement has occurred before the auction.
If Yang would like to stop the auction through lawsuits, she must have solid basis. The original reasons are once the content of the letters and the manuscripts are publicized, that would infringement the right of publication as enjoyed by Yang and the privacy or reputation of the parties involved. Currently the auction has not been carried on yet, while its content has been opened, and therefore the purpose to claim the infringement coming from the publication of the content has lost its basis. As judged from the infringement confirmation, Yang could only claim the worsening of the infringement after the auctioning off of the letters and the manuscripts.
But to see it from the law, Yang could not prevent the auction of the letters and the manuscripts as claiming the infringement against the right of publication. As regulated in the Copyright Law, the right of publication is the right to be exercised for once, and when the work has been showed up to the public, the right is exhausted. Despite the right holder could also claim that the auction of the letters and manuscripts would the enlarge the privacy and reputation damage, but if it came true as judged by the reporter interviewing the author that the court could find no infringement against the privacy or the reputation, then Yang could have no way to stop the auction as claiming the infringement.
In terms of the damage against the communication secret and freedom involved in the opening up of the letters and the manuscripts, as held by the author, the damage against the communication privacy mainly refers to the unlicensed reading of the letter content or to hide or destroy the letters. But in the case, the letter content is opened according to the decision of the letter recipient, who is the lawful holder of the letter, and for this reason, the publication of the letter content would not involve the damage against the communication privacy and the communication freedom.
In terms of the damage against the public order and the social custom as discussed on the Beijing college’s seminar, that problem is more related to the ethnics instead of law issues. For the author his ethnics’ senses, he has fully agreed with Yang’s statement: the letters between the friends could only be communicated among the friends, and shall not be auctioned off; the personal privacy, dependence among the people and years of emotion shall not be the articles to transact. But the law has its boundary with the ethnics, although the auction has damaged the personal feeling of yang, Li is the lawful holder of them. For the author’s opinion, he agrees no substitution to the law with the ethnics.
Through the above analysis, the author tends to believe that the auction would not violate the law. Yet, for the publication of the letters during the process of auction, the author still feels it difficult to understand. For Qian and Yang couple dislikes the auction of their letters, it is widely known in the academic circle. They once reported against Dalian Press Company in the Copyright Office for the unlicensed publication of their letters and manuscripts, which was supported by the Office. For this auction, those who would like to sell out the letters are the close friends of Qian’s, and they shall be aware of the