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Recently, a NFT copyright dispute of Xu Beihong's 8 most representative works brought up discussion among China.
Xu is a very famous artist in the history of modern China: he passed away on September 26, 1953, at the age of 58, but his stallion drawings have been passed down, the original copies of which are worth a fortune.
On May 29, 2022, the operator of the Xu Beihong Museum of Art issued a statement alleging that the NFT collection of Xu provided for sale on the "Huanhe" platform was not authorized. At the same time, Xu Beihong Museum of Art also argued that some of those NFT works sold by Huanhe were manufactured from counterfeits, and publicly commented that only the NFT collections on platforms such as "Shu Zi Mao" and "Jing Tan" had gained its authorization.
The focus of the dispute works is whether the platform constitutes copyright infringement by selling NFT collection of an artist who have passed away more than 50 years. In order to give you a clear hint, we could start from the following questions:
Who has the copyright of those dispute works?
According to Chinese copyright Law, the protection period of the property rights of a work is 50 years after the death of the author. Meanwhile, the protection period of the author's personal rights of attribution, revision and protection of the integrity of the work is not limited. Mr. Xu Beihong's death is more than 50 years, therefore, the platform distribution of the digital collection related to the work has no legal defect in copyright law. Moreover, there is no need to obtain the consent from Peon Generation (Xu Beihong Museum of Art) or Xu’s descendants, as long as the platform does not violate the personal rights of the author.
However, since the original works must be used to create the digital version, it may defect the right of exhibition of the original works' owners. (Article 10.8 Copyright Law RPC), or, in another words, the right to public the original copies or reproduced copies of works of fine art and cinematographic works. Thus, if the platform didn't obtain consent from the original work owner, and distribute the digital version to others, the owner has the right to claim for the copyright infringement.
In addition, due to the original work`s owner only having the right of exhibition (Article 20 Copyright Law RPC), if the NFT works are generate from counterfeiting piece of Xu's works, it is hard for the original works owners to fill a lawsuit by using the copyright infringement as an argument.
Does Xu Beihong Museum of Art have IP rights of those NFT works?
According to the Chinese copyright law, the protection period of a work is 50 years after the death of the author. The Museum is only the owner of the original work and it cannot claim the personal rights of the works. Therefore, the Museum is hard to win by claim for the copyright.
However, they mentioned that they own the trademark of "Xu Beihong", which is likely to be the entry point in the potential litigation against the NFT platform. In this case, if the original works are fake, it is an infringement of trademark law as it will lead confusion to consumers by using Xu's name according to Chinese Trademark Law. What should be the emphasis here is that if the original works are real, it is not infringing the Xu Beihong's trademark owner as it can also be deemed as an indicative use when selling the Xu Beihong's NFT works.
In short, the NFT work is still a very controversial topic as it is not regulated by the laws in most of the countries, but if we understand the nature of intellectual property rights, it is not hard to find solutions via the current laws and regulations. In this case, it can still be protected under the current trademark law and copyright law.
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