The right of divulgation, also known as droit de divulgation, is a moral right in copyright, which originated from droit d'auteur, or the author's right, in the copyright system both in theory and practice. It is universally acknowledged that the right of divulgation means the author's right to decide whether or how to make a work available to the public, and that the right of divulgation is commonly seen in national legislations in favor of the author's right (usually in civil law jurisdictions).

I. Conceptual origins and judicial practice

The right of divulgation is not a bestowed gift of God. Its place in the copyright law landscape is mainly based on the long, profound and rich tradition of cultural and artistic creations on the European continent, and the natural philosophy of protection and encouragement of creative concepts. During the late 13th century until the Renaissance, artistic creations had burgeoned on the European continent, with continuously rising uniqueness and economic status of artistic creations by painters and sculptors. They not only got economic remunerations from their sponsors and patrons, but also, to some extent, won protection of their moral rights for their own works of art. In the eighteenth century, the philosophy of Kant and Hegel began to lay philosophic foundations for the protection of moral rights; Kant believed that the arrangement of word and ideas of a work reflected the inherent personality of the artist, and distinguished the work’s physical medium from expression of ideas.

The judicial origin of the right of divulgation was derived from cases of French courts since the 19th century. In the late 19th century in France, the famous Whistler v. Eden case first introduced the confrontation of the right of divulgation against other rights into the judicial landscape. In this case, the artist Whistler and Lord Eden agreed that Whistler made a portrait of the wife of Lord Eden and got corresponding payments. Later, Whistler modified the portrait and refused to deliver it; Lord Eden then sued and requested the court to order delivery of the portrait from Whistler. The first-instance court held that in accordance with the agreement between the parties, Whistler was obliged to restore the painting to its original and deliver it to Lord Eden. Whistler was dissatisfied with the ruling and appealed. The French Court of Cassation (the Cour de Cassation) reaffirmed the artist’s right to remain the master of his work, and to refuse to deliver it so long as he was not satisfied with it. This right was unaffected by contractual agreements, and the artist still had the right to decide whether or not to divulge the work.

Subsequent cases, such as Carco v. Camoin and Rouault v. Consorts Vollard, further enriched the right of divulgation and demonstrated the courts’ positions over the confrontation. In Carco v. Camoin, painter Camoin slashed and threw away a certain number of paintings with which he was not content. Carco subsequently found, restored and offered for sale the paintings. The dispute ensued. The court held that the author had the right to surrender his work to the public only in such a manner and under such conditions as he saw fit; that Carco became the owner of the paintings restored, but this ownership did not deprive the painter of the moral right which he always retained over his work. In Rouault v. Consorts Vollard, Rouault agreed to turn over several hundred of his paintings to Vollard’s gallery, where they remained at Rouault’s disposition in a room to which he had a key. The artist went there from time to time to put finishing touches upon the paintings. After Vollard’s death, his heirs claimed ownership of these canvases and intended to put them for sale. Therefore, Rouault brought a suit before the court and claimed that it was he alone that could decide when to finish and sell these paintings. The first-instance court ruled that Rouault had all the rights over his works and had the right to finish, modify or destroy the works. Vollard’s heirs appealed, the appellate court upheld the first-instance ruling in favor of Rouault and held that ownership of these unfinished works had never been transferred to Vollard or his heirs. The Paris Court of Appeal ruled as follows: Whereas, one who negotiates with an artist for an uncompleted work which the author retains in his possession, reserving the right to finish it, contracts for future goods whose ownership can be only transferred by delivery without reservation after completion; Therefore, until final delivery the painter remains master of his work, and may perfect it, modify it, or even leave it unfinished if he loses all hope of making it worthy of himself; This inalienable right, an attribute of the artist’s moral right, persists notwithstanding any agreement to the contrary. Based on the above, the French courts held that the artist is not forced to make his works available to the public. In cases relating to commissioned works, if the artist thinks the work is not satisfying or unfinished and decides not to deliver, the artist will be exposed to damages for such non-delivery, not to the actual fulfillment of delivery. It can be said that the series of cases in France have laid the judicial foundation for the right of divulgation. From the perspective of social environment and cultural roots, France has always shown respect for the author’s right, and the courts adhere to such principle in their handling of the confrontation between the right of divulgation and other rights. After several years of development, the 1957 French Copyright Law officially granted legal protection for the right of divulgation. Article L121-1 of the current French Intellectual Property Code stipulates that the author alone shall have the right to divulge his work. He shall determine the method of divulgation and shall fix the conditions thereof, subject to Article L132-24.

Conversely, countries like the U.S. and the U.K. adhering to the traditional copyright theories have been silent in the right of divulgation due also to discrepancies in social and legislative concepts, and the U.S. has held a pragmatic attitude towards copyright. According to Section 8 of Article 1 of the U.S. Constitution, “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” it can be seen that the purpose of granting the exclusive copyright is to “promote the progress of science and useful arts,” benefiting the society in its entirety, while protection of the author’s moral rights is not considered in this section. Therefore, the U.S. copyright law has long been silent in the legislative protection of moral rights. Although the U.S. copyright law has provisions over “publication,” which is, however, different from the right of divulgation in the authors’ rights law. Before the introduction of divulgation right to comply with the Berne Convention, 14 states (such as California, New York and other states) passed special legislations to protect the author’s moral rights, but on the whole the U.S. still protects the author’s rights, such as rights of authorship, alteration and integrity, by means of contractual agreements, and determination of fraud, misleading, defamation, privacy and unfair competition. Even after the U.S. joined the Berne Convention and passed the Visual Artists Rights Act of 1990 (VARA), VARA is also silent in protection of the right of divulgation and only provides certain protection for the rights of authorship and integrity simply to comply with Article 6 of the Berne Convention (which does not concern the right of divulgation). Moral rights in the U.K. are also considered exotic. Although the U.K. has incorporated provisions of moral rights into its Copyright Designs and Patents Act 1988 (effective in August 1989) simply to comply with Article 6 of the Berne Convention, the act does not concern the right of divulgation either.

II. Right of divulgation in China's legislation and judicial practice

China’s Copyright Law follows the tradition of the system in favor of the author’s rights both in structure and concepts, and places protection of the author’s copyright atop the legislative intent. Article 1 of China’s Copyright Law states that this Law is enacted, in accordance with the Constitution, for the purpose of protecting the copyright of authors in their literary, artistic and scientific works and the rights and interests related to copyright, encouraging the creation and dissemination of works conducive to the building of a socialist society that is advanced ethically and materially, and promoting the progress and flourishing of socialist culture and sciences. As far as the legislative intent of this article is concerned, China’s copyright law has prioritized protection of the author’s rights and interests. Meanwhile, China’s legislation has followed the civil law tradition and put more emphasis on personal rights. Based on the above factors, China’s Copyright Law, in particular, has set forth a series of moral rights, including the right of divulgation.

Both the legal concept and judicial practice of China’s copyright law deem the right of divulgation as a personal right closely related to the author’s personality right and pay more attention to the protection of the right of divulgation. Take a dispute in 2011 as an example. A writer surnamed Wang signed a contract with a publishing house (A), agreeing to turn over an unfinished novel to A for publication. After the novel was completed, the writer changed his mind, turned over the novel to another publishing house (B), and expressly told A that he would not turn over the novel to A and would rather assume liabilities for the breach. A was furious and published some manuscripts of the novel as Part 1, and B later published the whole novel. Then the dispute ensued. A brought a lawsuit against Wang alleging breach of the contract, while Wang also sued A alleging copyright infringement. In terms of the principle and provisions of the copyright law, Wang was under contractual obligations to deliver the work, but as an author, Wang had the right to determine whether and how to make the work available to the public. Where Wang has expressly told A that he was reluctant to turn over the work to A for publication, A was not allowed to publish his work and therefore A had committed infringement upon Wang’s right of divulgation. In the meanwhile, Wang should bear corresponding liabilities for his breach of the contract.

Similarly, Beijing Second Intermediate People’s Court issued a preliminary injunction against Sungari International Auction Co., Ltd. (Sungari) over its auction of letters of Qian Zhongshu from infringing the copyright of the authors in its auction and pre-auction exhibitions, demonstrating emphasis on protection of the right of divulgation in China’s judicial practice. As far as the property right is concerned, if the sender sends out a letter, the recipient will take possession of the letter and has the appertinent right of disposition. However, in accordance with China’s Copyright Law, the author of the letter is still entitled to the copyright of the content of the letter, and the recipient is obligated to respect, and not to infringe, the copyright of the author when the recipient decides to dispose of the letter. Specifically, the analysis goes as follows: Firstly, the relevant letters shall be protected by copyright law. Qian, Yang and their daughter are authors of the letters, and their right over the letters shall be protected by the copyright law so long as the right has not gone beyond the prescribed protection period since the implementation of China’s Copyright Law. Secondly, the authors have not exercised their right of divulgation. The actual letters have special attributes in that the recipient is intended. Unless the authors expressly authorized that the recipient may divulge the letters to public in general, it must be concluded that the authors did not intend to divulge the letters since they were sent to an intended recipient, and the letters, therefore, were deemed divulgedas unpublished. Meanwhile, Article 17 of Implementing Regulations of Copyright Law provides that with respect to a deceased author’s unpublished work, if the author did not clearly indicate that the work should not be published, the right of divulgation for that work may, within 50 years of the author’s death, be exercised by an heir or a devisee; or otherwise by the owner of the original version of the work, if heirless or intestate. Therefore, under the existing circumstances, Yang was an immediate heir and had the right to decide whether to divulge the above works. Because Yang had clearly stated her intent not to divulge the works, Beijing Second Intermediate People’s Court has sufficient legal basis to make a preliminary injunction, ruling that anyone, including the recipients and others who legally obtained manuscripts of the letters, from infringing the legitimate rights and interests of the copyright holders in their disposition of the manuscripts. However, as mentioned above, the recipients still have the right to dispose of the letters, the medium of the copyright, on the condition not to infringe the authors’ copyright.

In summary, if the right of divulgation, a form of moral rights in copyright, conflicts with other property rights, it will be fully in compliance with the conceptual origins and judicial practice of China’s copyright law to prioritize protection of the right of divulgation out of respect for the author’s personal rights.

III. Other issues relating to right of divulgation

1. The exhaustion of right of divulgation

The right of divulgation is the right of first publication; therefore, it also faces the issue of the exhaustion of the right. In general, if an author exercises this right and the work has been actually divulged, the right of divulgation will be exhausted; if, however, the work has been divulged without the author’s permission, then the author’s right of divulgation will not be exhausted. If the author only agrees to divulge the work in the future or intends to divulge the work, such form of exercise of the right will not lead to exhaustion of the right of divulgation. This leads to a problem: in the case of new means of communication and various expressions of works, will any change to the expression constitute a fresh divulgation? France, as the originating jurisdiction for the judicial protection of moral rights, does not have clear provisions in its copyright law over the issue. Some hold that the right of divulgation is exhausted once the work is first divulged. Others hold that the French Intellectual Property Code has implied provisions in favor of several times of “initial right of divulgation;” French courts sometimes tend to think that a new type of divulgation (such as through a different form, media or background) may constitute a new divulgation with the view of protecting the right of divulgation. In one case, the defendant used a musical work in advertising without authorization, and the court held that the use had infringed upon the right of divulgation, because when the author initially divulged such work, the author did not intend to have the work used in such a manner, and the right of divulgation had not been exhausted.

As regards the exhaustion of the right of divulgation, Germany, like France, has two views: Firstly, as long as an author has agreed to have his work divulged, the author’s right of divulgation has already been exhausted. People who hold this view believe that the existence of the right of divulgation is to prevent works from being made available to the public without the author’s consent; and the work carries the author’s personality and should be divulged only when the author sees fit, otherwise the author’s rights and interests will be impaired. Judging from the above reasons, it can be logically inferred that the author’s right to divulge can be exercised only once. Another view is that the author may be entitled to the right of divulgation for each divulgation of the work in a fresh form. If the work is divulged in print, the author’s right of divulgation will not be exhausted when the divulgation takes the form of a movie. According to this view, “the initial divulgation” refers to the first time divulgation for a specific purpose.

The second view also has its backing in judicial cases in Germany. In Portraitbild case, the author agreed to exhibit his paintings in a gallery, thus the paintings had been legally divulged to the public. The defendant later used the paintings on television screens, whereby the author brought a lawsuit against the defendant alleging infringement upon his right of divulgation. The Berlin court ruled in favor of the plaintiff’s claims and held that the right of divulgation was not limited to the first time divulgation of the work and that divulgation of the work in some specific manners and media only led to the exhaustion of such particular type of the right of divulgation. If the work was divulged in a manner and domain different from that set by the author, then the author’s personal rights and interests would be harmed. The court also cited another example: an author agreed to have his work published in a journal congenial to his political views, but another journal which had contrary views with him published his work. Although the journal complied with provisions of statutory licensing and did not infringe the author’s economic rights, the court held that the domain and background of the divulgation was also very important and the journal should get authorization from the author.

The above two approaches differ over the emphasis on rights protection. The former takes a relatively restricted and strict approach in understanding the right of divulgation, to a certain degree limiting the author’s right of divulgation, while the latter allows the author to have a more discretionary power over his own work. Which approach to take relates to the fundamental concept and balance of interests in a country’s copyright law. If the copyright law puts protection of the author’s interests (including personality rights) in the first place, the second approach may be taken; if the copyright law tends more to strike a balance between the author’s interests and social interests, the first approach may be a better choice. The Author believes it may exorbitantly expand the scope of the right of divulgation if a work has a new right of divulgation each time it changes its manner of divulgation. Although China’s copyright law is silent in this regard, the right of divulgation should be deemed to have been exhausted after the initial divulgation and the author will not be entitled to a fresh right of divulgation on the ground of changes in manners of divulgation.

2. Scope of the divulgation

One of the important prerequisites for the exercise of the right of divulgation is that a work needs to be made available to unspecified persons. According to the German copyright law, public publication means “made accessible to the public” whose mainstream standard means anyone should have an unrestricted access to the work in principle (not necessarily in practice). If the people who have access to the work have individual relationship, then these people will not be deemed to be the “public.” If the work is kept in the archives, only people who are particularly interested in the work may have the chance to view it, thus it will not constitute a divulgation. Accordingly, if the work is uploaded in the network or posted on the website, it will surely constitute a divulgation; however, the email correspondence between individuals will not constitute a divulgation. In Botho Strauss case in Germany, the author wrote to an editor of a magazine (addressed to the editorial department), and made it clear that the letters could not be divulged, but the magazine still published them. The editorial department held that the letters had already been divulged to the four members of the editorial department, namely the public, therefore, the letters had been already divulged, and that the fact that the author sent the letters to the editorial department indicated that the author had impliedly agreed to disclose them. The court held that the members of the editorial department were colleagues and had close individual relationship, therefore, they were not the public; and that even though the author had impliedly agreed to have the letters divulged, he had clearly withdrawn the implied agreement before the divulgation. Therefore, the court ruled that the divulgation of the letters by the editorial department had constituted infringement upon the author’s right of divulgation.

Based on the above, the “public” divulgation shall mean a work is made accessible to unspecified people. If the work is only made accessible to individuals with specific relationship, or people having access to the work are obliged to keep it confidential, then such “public” divulgation shall not constitute a divulgation in the sense of copyright.

IV. Conclusion

In summary, the right of divulgation, as a moral right, originated from the cultural traditions, philosophical concepts and judicial practice of jurisdictions in favor of the author’s rights in the copyright law (similar to civil law jurisdictions). China’s copyright law is closer to jurisdictions in favor of the author’s right both in legal theory and judicial practice, paying more attention to protection of the right of divulgation both in theory and practice; but it is worthy of further exploration into issues such as the exhaustion of the right of divulgation and the scope of divulgation.

(Translated by Wang Hongjun)