[author: Bo Xieng]

Under the patent law system, the issue of reward and remuneration for service inventions has always been a hot issue that has attracted widespread attention, and enterprises will also pay special attention to the compliance of the reward and remuneration system for service inventions in their daily intellectual property management.

Similar to service inventions, there are also service works in the copyright law system, and in service works, the issue of rewards for service works will also be involved. However, compared with the issue of reward and remuneration for service inventions, the issue of reward for service works is rarely controversial, and the number of relevant precedents in judicial practice is also very small. Fundamentally, the reward for service works is not a mandatory obligation of the enterprise, and the enterprise may not give the author a reward. Since enterprises have the right not to give rewards to authors, in judicial practice, there are very few authors (employees) suing enterprises for payment of rewards. This article will briefly discuss this issue from a legal and judicial perspective.

I. Definition of service works and ownership of copyright

To discuss the issue of awards for service works, it is first necessary to clarify the definition of service works and the ownership of copyright.

According to Article 18 of the existing Copyright Law, works created by natural persons to complete the work tasks of legal persons or unincorporated organizations are service works.

The requirements for a service work include: (1) The work created must be a work task proposed by a legal person or unincorporated organization according to the nature of its entity. (2) The author of the service work is usually an employee of the entity, and the staff seconded or recruited to complete the work tasks of the entity can also become the author of the service work. (3) The work is basically created by the author's own will, not according to the will of the entity. If the creation is carried out under the auspices of the entity and in accordance with the will of the entity, it is the work of a legal person or an unincorporated organization, and is not a service work ¹.

Chinese Copyright Law divides service works into general service works and special service works. The second paragraph of Article 18 of the Copyright Law stipulates three types of special service works, including: (1) engineering design drawings, product design drawings, maps, schematic diagrams, computer software and other service works mainly created by using the material and technical conditions of legal persons or unincorporated organizations, and for which legal persons or unincorporated organizations assume responsibility; (2) service works created by staff members of newspapers, periodicals, news agencies, radio stations, and television stations; (3) service works provided for by laws, administrative regulations, or as stipulated in contracts, where copyright is enjoyed by legal persons or unincorporated organizations. Except for the above three types of special service works, other service works are general service works.

The copyright of general service works is enjoyed by the author (employee), and legal persons or unincorporated organizations only enjoy the right of priority use within the scope of business within 2 years after the completion of the work. The copyright of special service works, except for the right of authorship, is enjoyed by legal persons or unincorporated organizations, and the author (employee) only retains the right of authorship ².

II. Rewards for special service works

For special service works, the second paragraph of Article 18 of Chinese Copyright Law clearly stipulates that "legal persons or unincorporated organizations may give rewards to authors". The law uses "may" in this clause instead of "shall" in the clause on reward and remuneration for service inventions. Therefore, from the literal meaning of the law, it is not a mandatory obligation of the enterprise to give a reward to the author of a special service invention, and the enterprise can choose to give the reward or not.

In the case of Fan v. Shenzhen Tongxin Technology Co., Ltd. over infringement of the authorship right and the right to reward, the court of first instance held that for special service works, legal persons could reward the author for developing the software. However, the above provision of reward is not mandatory. According to the confidentiality agreement signed between Fan and Shenzhen Tongxin Technology Co., Ltd., if Fan completes technical achievements and commercial achievements, Shenzhen Tongxin Technology Co., Ltd. shall give Fan corresponding material rewards according to the income obtained from the use and transfer of the achievements. There is no evidence to prove that Shenzhen Tongxin Technology Co., Ltd. obtained income from the use and transfer of the computer software involved in the case, so Fan's claim to Shenzhen Tongxin Technology Co., Ltd. to pay its development reward of RMB 100,000 is insufficient and cannot be supported. The court of second instance upheld the view of the court of first instance.

In this case, the court made it clear that the provisions on awards for special service works were not mandatory. The case also pointed out that if an enterprise signs a written contract with an employee stipulating the conditions and methods for giving reward for special service work, the agreement shall prevail. Assuming that in the above case Fan can prove that the conditions for paying him reward for the special service work have been fulfilled, the enterprise should give the reward to him in accordance with the agreement.

III. Rewards for general service works

Chinese Copyright Law does not clearly stipulate whether rewards should be given to the authors of general service works.

In the case of Long, Ma v. Chongqing Municipal Chuan Theater over copyright ownership and infringement³, the court of second instance discussed in detail the issue of whether rewards should be given to the author for general service works, which is worth learning.

The court of second instance discussed it mainly from three points. First, the script of "Gold" involved in the case was originally within the scope of the author's work, and the salary paid by the entity was the consideration for the author to complete the duties within the scope of his work, and the entity provided the author with the basic conditions for creation, so there was no need to pay reward other than the salary, otherwise it would be unfair. Second, the system of priority use rights of entities in general service works is the result of a balance of interests for the law is tilted in favor of the author, and requiring the entity to compensate for its use of service works within the scope of business not only violates the original intention of the legislation, but also has a negative impact on the full use and sustainable development of service works. Third, the Copyright Law only stipulates that in the case of special service works, legal persons or other organizations "may" give rewards to authors, and since this provision is an advocacy norm and is not a mandatory obligation borne by legal persons or other organizations, they may also not give rewards to authors. For special service works for which the copyright belong to a legal person or other organization, the legal person or other organization may not give rewards to the author, while for general service works, the law has made institutional arrangements that the copyright belongs to the author, and compared with special service works for which the copyright belongs to a legal person or other organization, the legal person or other organization should have more grounds not to give reward other than salary to the author. At the same time, the Copyright Law only grants the entity "priority right to use the work within a two-year period", and once the two years have passed, Long and his heirs can still license a third party to use the script of "Gold" in the same way as the entity and get paid, which will not affect the interests of the author and his heirs.

Summary

For service works (including general service works and special service works), the entity may or may not reward the author, which is not a mandatory obligation of the enterprise. If an enterprise signs a written contract with an employee in advance, stipulating the conditions and method of giving rewards for service works, the agreement shall prevail. When the conditions for giving reward for a service work are fulfilled, the enterprise shall give the employee an award in accordance with the agreement.