The Qunzhong Publishing House published From Emperor to Citizen, written by the last emperor Pu Yi in 1964. The fate of the book, like its author, has experienced great turmoil. Early in the 1980s, Li Shuxian, Pu Yi's widow, instituted a lawsuit over the copyright ownership and sought confirmation from the court that Pu Yi was the sole author of the work. The legal battle lasted nearly 10 years when she finally emerged victorious.

Prior to Li Shuxian's death in 1977, the publishing house had remunerated her for reprinting the book. Shortly after she died, to whom should the remuneration go? Nobody seemed to be concerned until 2007 when things changed. On September 25, of that year, a public notice appeared in People's Court Daily on bona vacantia, which stated simply: "The Court (Beijing Xicheng District People's Court), per request of Qunzhong Publishing House for bona vacantia on the book, From Emperor to Citizen written by Pu Yi, upon the death of his heir Li Shuxian, hereby issues an announcement for claiming the same, and shall make a default judgment by law within one year if no one claims it." This short notice stirred quite a turmoil.

Why did the Qunzhong Publishing House bring this action 10 years after Li Shuxian died? It probably had something to do with another publication of the same book, From Emperor to Citizen under the same authorship, by Tongxin Publishing House in 2007. Tongxin claimed that it is authorized by Pu Ren, brother of the late Pu Yi, which ended Qunzhong's exclusive right of publication over the past 40-some years. The timing of Qunchong's request for bona vacantia is apparent. In its words, the request is to prevent various kinds of "piracy."

Simple as it is on the face of it, this case has aroused heated debates among the concerned. Scholars, judges, lawyers, and officials convened on November 23, 2007, at an academic symposium over copyright issues, some of whom were closely connected with the case one way or the other, such as the judge who presided over the Li Shuxian case, copyright officials, and reputable intellectual property specialists who paid much attention to the book. The size of the attendance says it all. The impact of this case upon the academia and the complexity of the legal issues had caused great controversy then, and even though the case had been adjudicated, criticism never subsided, and ripples are still felt in the heatedness of this symposium. Still others made it verbally that they had to get it out of their chest. One thing, however, they all agree on, is that law and reality can be so different.

I. Legal Issues on Bona Vacantia

Presently, the court notice is still effective. If no one claims the book within the duration, the court is likely to rule for bona vacantia, under which the property will escheat to the state. If, however, opposition is raised to bona vancatia over the book, the court does not by law have to go to the merits, but rule directly to dismiss the case. The opponent may have to file a separate lawsuit, on causes and parties of the litigants' own choosing.

The court procedure may be relatively simple; the legal issues over the copyright in From Emperor to Citizen are anything but, and the problems in the law of succession and property are no less complex.

Pu Yi died in 1967 without issue, and Li Shuxian was the only surviving next of kin, which has been evidenced by the fact that no one ever questioned her status as such from the beginning of the lawsuits until this day. Thus, Li may theoretically inherit everything of Pu Yi, including the copyright and other economic rights associated with From Emperor to Citizen, mainly in the form of authorizing reprinting and receiving remuneration therefrom. Li died in 1977, without children to public knowledge, and therefore, without next of kin. But it is unclear whether she had siblings as collaterals. The Law of Succession provides that in the absence of next of kin, the estate goes to collaterals. Suppose Mrs. Li has no next of kin. Then under the relevant provisions of the Law of Succession, the estate, in the absence of successors or legatees, escheats to the state.

This is considered the first case on bona vacantia in China concerning copyright; moreover, there has been no precedent as to how these kinds of properties may be protected once bona vacantia is announced by court. Luckily, Pu Yi, who turned from an emperor to an ordinary citizen, successfully avoided the fate of the last Russian Czar Nicholas, and therefore had the chance to write his legendary autobiography. From Emperor to Citizen has been labeled, "the most interesting and outstanding biographical writing of the 20th century China." In the introduction by the Qunzhong, the book has been reprinted 22 times since its first publication in 1964. Circulation has reached an estimated 1,870,000 copies.

By law, a copyright term expires in the fiftieth year on December 31 following the death of the author. Therefore, From Emperor to Citizen will fall into the public domain on December 31, 2017. From then on, anyone can use the work freely. Even if there is an heir to the author, he cannot enforce any demand for remuneration.

Suppose Qunzhong prevails in its bona vacantia request, which will mean state ownership of the copyright.Not only shall the remuneration be remitted to the exchequer, but also, anyone who wants to publish the book will have to petition the government for permission. It is the opinion of this author that this proposed solution might work jurisprudentially before December 31, 2017. But what about after that? Will it be contrary to the provisions of Copyright Law? Qunzhong did not bring the action to quiet title by bona vacantia until 10 years after Li Shuxian's death, which obviously indicates that it not only wants to solve the problem of to whom the remuneration for republication should be paid. More importantly, Tongxin Publishing House challenges its so-called exclusive right of publication. If other publishing houses follow the lead of this practice in succession, it shall become a fight for the throne, and the whole country shall be in chaos. However, there exists one situation which might be impossible for Qunzhong Publishing House to control. That is, shall Qunzhong Publishing House naturally possess the exclusive right of publication of the book after it is determined as ownerless? It deserves to be discussed.

The purpose of the law setting a time frame for copyright is simply to enable the works to fall into the public domain, and make it easier to disseminate the works and to serve the general public. Is it advantageous for the dissemination of the book after application for determination of ownerless property? The authors take a different view.

II. Disputes over Two Versions of From Emperor to Citizen

This is traced back to the republication of the book by Qunzhong in 2006. In a statement made by Qunzhong in its Publication Instruction, it accidentally found the first and second manuscripts when it was cleaning up the files and materials in March, 2004. Hence, it decided to publish the "complete version" with the title of the book unchanged. The so-called "complete version" added some chapters, such as Pu Yi's ragged verses, the hexagram statements of divination, as well as the story of the infant borne by Wan Rong being thrown into the boiler to be cremated among others. A great deal of information came to light for the first time and therefore it was nicknamed the "revelation edition." Compared with the 1964 version, the complete version added about 160,000 words of new content, which aroused great discontent among the family members of Aisin-Gioro. Pu Ren, Pu Yi's brother, was the first person who condemned the complete version both in speech and writing, and claimed that the newly-added contents greatly tarnished the reputation of Pu Yi and the Aisin-Gioro family. Under this resentful mood, Pu Ren authorized Tongxin Publishing House to publish the book From Emperor to Citizen on September, 2007. What Tongxin Publishing House published was the 1964 version of From Emperor to Citizen, which was said to have neither added nor deleted a word. At least three legal problems are involved between the so-called "complete version" of the book published by Qunzhong Publishing House and the 1964 version of the book published by Tongxin Publishing House and originally published by Qunzhong Publishing House.

1. The publication of the 1964 version by Qunzhong was made before Pu Yi died, apparently under the authorization or approval of Pu Yi. But was the complete version also under Pu Yi's authorization?

Wang Yadong, one of the co-authors of this writing and counsel to Li Shuxian, possesses some knowledge of the background to the 1964 version. Because the autobiography of Pu Yi was of very strong significance to the "United Front" and propaganda, the Ministry of Public Security instructed Qunzhong to formally publish the materials and also selected Editor Li Wenda to participate in completing the task. In the publication process, Qunzhong assumed a lot of supplementary creative work, and therefore it is not an ordinary publishing house. Under the historical conditions at that time, it was clearly impossible for Pu Yi and Qunzhong to have any contract in the sense that we know today because there was no such law or copyright at that time, let alone legal authorization of the so-called "complete version." So this writer can say affirmatively that it is very difficult for Qunzhong to produce specific authorization by Pu Yi for the newly-added contents in the complete version.

Hence, adding and modifying of the complete version relate to the personal rights under the copyright law, i.e., the right to modification and the right to the integrity of the works, such rights being unlimited without a term of duration. The law provides that publishers must acquire the approval of the author so as to be able to modify and abridge the works. Even if the author dies, the publishing house cannot modify the works arbitrarily.

But once the author dies, who shall it be to exercise such rights? As a matter of fact, the law provides that, "after the author dies…, where the copyright is not subject to succession or gift inter vivo, the rights of authorship, alteration, and integrity of the works shall be protected by the copyright administrative authorities." At present, such authorities are the State Copyright Office or the General Administration of Press and Publication. We know that the right of the person pertaining to copyright is a right not in the sense of property. Then will the state take initiative to protect the rights of the decedent?

We can imagine that after several decades, there shall be innumerable works of this kind that are not inherited or taken as legacy by any person. Even if the copyright administration department is willing to intervene, is it possible for it to manage them well?

2. Is Pu Ren in any position to authorize the Tongxin publication of the book?

The authorization by Pu Ren to Tongxin to publish the book From Emperor to Citizen shall inevitably involve the source of his right. Is his right based on succession or based on state license?

In accordance with the provisions of the aforementioned Law of Succession, we can draw the conclusion that Pu Ren, as Pu Yi's brother, is a collateral, because at the time Pu Yi died, Li Shuxian was still alive. That is to say, because Li Shuxian was a next of kin who took possession of the copyright in the book, there was nothing to inherit for Pu Ren as a collateral. At present, even the succession problems concerning the property right of the copyright of the book occur, they are the problems concerning the succession of the estates of Li Shuxian caused by her death. There is no legal succession relation between Li Shuxian and Pu Ren, the brother of Pu Yi. Therefore, there exist no problems of Pu Ren having the right to succeed the property right of the copyright of the book. Many people are sympathetic to Pu Ren, and they think it somewhat unfair to deprive Pu Ren of his right of succession in accordance with the provisions of the Law of Succession. But the author found that except Pu Ren and the attorney for Tongxin Publishing House, almost all the legal experts make their positions clear: Pu Ren is sure not to have the right of succession, and under the provisions of the Law of Succession currently in effect, there is no space at all to discuss Pu Ren's right of succession.

Thus, Mr. Pu Ren was in very embarrassing circumstances. It is obvious that he has no right to authorize Tongxin Publishing House to publish the 1964 version of From Emperor to Citizen. In accordance with the present legal provisions, Mr. Pu Ren has only one way to go, that is, as the brother of Pu Yi, he has the right to bring a lawsuit for the tortuous action in order to protect Pu Yi's right of reputation. But this right has nothing to do with the succession of the property right of the copyright of the book From Emperor to Citizen.

3. Whether Tongxin has proper authorization to publish the 1964 version of From Emperor to Citizen?

Tongxin was on a shaky foundation to publish the 1964 version because Pu Ren was not really in a position to authorize it. As previously noted, even though Pu Yi had no written agreement with Qunzhong, they had a de facto contract which, by operation of law – where the contract does not, or does not expressly, stipulate – would exclude all others from using the work.

With this understanding, Qunzhong has every right to sue Tongxin for an injunction or even collect damages, in this writer's view, with considerable likelihood of success. Yet, they chose to act on bona vacantia, which is beyond comprehension. The lawsuit brought by Qunzhong has presented challenging problems to both lawmakers and the judiciary as well. It is not a simple piece of property without an owner, nor a technicality of succession. To give, or not to give, that is the question! Many an eye, including those of this writer, are fixed upon the Xicheng District Court and the trend-setting outcome shall be interesting to all.

The Emperor was dead – 40 years ago. Long live the People's Republic. Pu Yi had lost almost everything, including his throne; yet he was transformed into a law-abiding citizen of our society. Couldn't the law give him an answer to settle his only legacy so that he may rest in peace? What a life for this poor Emperor!
                         
About the authors:

Wang Yadong and Gao Song are lawyers of Beijing Runming Law Firm, and Wang Yadong once acted as Li Shuxian's lawyer.

                                                                                             (Translated by Ma Jing)