"Queen's Seal" data collection infringement? the problem is not that simple

Core tip

1. The “Queen’s Seal” as a cultural relic belongs to the “art work” stipulated in Article 3 (4) of my country’s “Copyright Law”. An intellectual achievement expressed in a certain form.

2. The fact that a certain object constitutes a “work” in the sense of copyright law does not mean that it must be protected by our country’s copyright law. As a work of art, the “Queen’s Seal” cultural relic itself has exceeded the copyright protection period stipulated in my country’s “Copyright Law”. Therefore, even if the “Queen’s Seal” constitutes a work of art, its reproduction still does not violate the “Copyright Law”. constitute copyright infringement.

3. Photos that take “The Queen’s Seal” as the subject may constitute “photographic works” in the sense of the “Copyright Law” and are thus protected by the “Copyright Law”, but in more cases, photography of the “Queen’s Seal” The remake may not constitute a “work” due to the lack of originality in the sense of the “Copyright Law”, and will only be recognized as a copy of the original “Queen’s Seal”, which is not protected by the “Copyright Law”. Therefore, it does not constitute infringement.

4. Even though it is difficult to determine that the “Queen’s Seal” is protected by the “Copyright Law”, this does not mean that secondary creation of cultural relics is not subject to legal regulation. When the majority of digital collection platforms conduct secondary creations on cultural relics collected in museums, they must abide by the provisions of the “Law on the Protection of Cultural Relics”, recognize the special cultural value and spiritual connotation contained in cultural relics, and produce NFT digital collections that cannot be maliciously distorted, tampered with, In the act of spoofing cultural relics, the second creation of cultural relics should not be used for improper purposes, so as not to hurt public sentiment and violate public order and good customs.

Recently, a museum in my country issued an announcement accusing a digital collection platform that the digital collection “The Queen’s Seal” was not authorized by the museum, which is an infringement. Subsequently, the platform for the sale of digital collections also issued an announcement, stating that the public can appreciate and reasonably use national cultural relics without special authorization. Therefore, the development of digital collections by the digital collection platform based on the “Queen’s Seal” does not constitute infringement. The incident sparked heated discussions in the field of digital collections. Today, Sister Sa’s team briefly sorted out this issue, and briefly pointed out the copyright ownership and protection of cultural relics, photography, painting, and 3D modeling results based on cultural relics.

**1. **Should clearly distinguish cultural relics, copyright protection of **** photography, painting, 3D modeling results based on cultural relics prototype

When discussing copyright protection issues, the general public is likely to be unclear about objects such as cultural relics, photography based on cultural relics, paintings, 3D modeling results, etc., resulting in vague and complicated cognition of related copyright protection issues. Copyright protection issues must not be confused.

01 As a cultural relic, the “Queen’s Seal” constitutes a work of art in the sense of the “Copyright Law”, but it has exceeded the copyright protection period stipulated in my country’s “Copyright Law”, and is not protected by the Copyright Law.

As a cultural relic, the “Empress’s Seal” is undoubtedly original, and its seal cutting and appearance design also condense the intellectual achievements of the ancients, and undoubtedly constitute a work of art in the sense of copyright law. But the problem is that the “Queen’s Seal” is a Western Han jade, and Article 23 of my country’s “Copyright Law” stipulates that the works of natural persons have the right to publish, and the provisions of Article 10, Paragraph 1, Item 5 to Item 17 of this Law The protection period of the copyright is the life of the author and 50 years after his death, ending on December 31 of the 50th year after the death of the author; it has been more than a thousand years since the Western Han Dynasty, and the “Queen’s Seal” has of course passed the copyright protection period. Protected by copyright law.

It is worth noting that the State Administration of Cultural Heritage’s “Guidelines for the Operation of Museum Collection Resources Copyright, Trademark Rights and Brand Authorization (Trial)” on the copyright of collection resources also assumes that the cultural relics themselves are within the copyright protection period and the museum has the right to dispose of them. as a premise. Therefore, the museum’s claim that the digital collection platform infringes the copyright of “The Queen’s Seal” is obviously groundless.

02 “The Queen’s Seal” itself is not protected by the “Copyright Law”, but the photography and painting works with the “Queen’s Seal” as the object may constitute works in the sense of the “Copyright Law”, and then be protected by the “Copyright Law” .

It is worth noting that my country’s “Guidelines for the Operation of Copyright, Trademark Rights and Brand Authorization of Museum Collection Resources (Trial)” has stipulated this, that is, the museum’s secondary creation of collection resources by means of photography, video, digital scanning, etc. The obtained works are copyrighted.

But the problem is that the premise of the Copyright Law to protect the objects produced by the above-mentioned secondary creations such as photography, video recording, and digital scanning is that the above-mentioned objects constitute “works”. In other words, if the object produced by photography, video, digital scanning, etc. based on cultural relics does not meet the provisions of Article 3 of the Copyright Law and does not constitute a work, it still cannot be protected by the Copyright Law.

Article 3 of my country’s “Copyright Law” stipulates that the works referred to in this law refer to intellectual achievements that are original and can be expressed in a certain form in the fields of literature, art and science. Whether the photography and 3D modeling based on the “Queen’s Seal” is original is the key to the problem. In fact, the current mainstream views in the academic and practical circles believe that pure photography and 3D modeling of cultural relics are not original, and can only be regarded as copies of the original cultural relics, and cannot become independent copyrights protected by the Copyright Law. protected works.

There is also a problem that cannot be ignored, that is, the image of the “Queen’s Seal” has entered the public domain, and we can easily search the appearance of the “Queen’s Seal” from the Internet. The possibility of photography and 3D modeling images based on the prototype is further reduced. In other words, the possibility of casting digital collections based on the “Queen’s Seal” as a prototype is extremely unlikely to constitute copyright infringement.

**Second, ****“The Queen’s Seal” is not protected by the copyright law, **** does not **** mean **** you can cast digital collections with cultural relics as prototypes at will **

The state generally encourages secondary creations based on cultural relics, and the corresponding secondary creations can obtain “originality”, which makes secondary creations subject to the regulation of the “Copyright Law”, which is more conducive to the dissemination and promotion of intellectual property rights. Protect.

However, it should be noted that the secondary creation of cultural relics will be regulated by the “Law on the Protection of Cultural Relics”, and “secondary creation” cannot be done at will. Article 7 of my country’s “Cultural Relics Protection Law” stipulates: All agencies, organizations and individuals have the obligation to protect cultural relics according to law. This requires that the ** platform must recognize the special cultural value and spiritual connotation contained in the cultural relics in the process of casting and issuing digital collections of cultural relics. Improper use, so as not to hurt public sentiment and violate laws and regulations. **

** Be vigilant against some cultural relics and architectural digital collection platforms with special historical significance and special national sentiments. **According to the provisions of Article 2, Paragraph 2 of the “Cultural Relics Protection Law”: modern and modern important historical sites, physical objects, representative Buildings and other cultural relics are protected by the state.

From this perspective, the “Queen’s Seal”, as a symbol of imperial power in the Western Han Dynasty, is an important cultural relic in the history of the development of my country’s feudal society and even the history of world civilization, and has important historical value. At the time of creation, we must avoid malicious distortion, tampering, and spoofing, otherwise there will be extremely high legal risks. **

**Third, **Written at the end

As far as the general environment is concerned, as early as April 11, 2022, at the enlarged party committee meeting and the special meeting on standardizing the authorization of digital collections held by the China Cultural Relics Exchange Center, the director of the China Cultural Relics Exchange Center once clearly pointed out that "it is necessary to digitally reproduce the prototype of the cultural relics. Say no to products, encourage creators to design and develop artistic, unique and rare digital collections of cultural relics based on the connotation of cultural relics, and use new technologies to tell Chinese stories.” In addition, the State Administration of Cultural Heritage will hold a digital collection in Beijing in 2022. At the symposium on the relevant situation, a clear signal was also released: “Encourage social forces to use cultural relics resources to carry out reasonable innovative creation through formal authorization, and use information technology to stimulate the interpretation and dissemination of cultural relics value.”

To sum up, from the perspective of policy orientation, the state encourages the development of second creations based on cultural relics, but as Sister Sa’s team mentioned before, cultural relics, as solidified history, shape national identity and national cultural confidence It is of great significance. Perhaps the secondary creation based on cultural relics as a prototype is probably not just a question of copyright protection, but more of a question of how to tell Chinese stories well and promote China’s excellent traditional culture. Sister Sa’s team here also reminds practitioners in the digital collection industry to establish correct values, be a pioneer in promoting China’s excellent traditional culture, and promote the healthy and orderly development of the digital collection industry.