I. A general idea
of China Copyright Law
It is said that copyrighting is the child of the printing press.
Thus, perhaps it is the great, German inventor, Gutenberg, who can be
considered its father. As most Germans should recall, it was Gutenberg's
printing press, in 1450, which made it possible for large volumes of
literary work to be reproduced in Europe. An estimate at the time of
Gutenberg claims that in Continental Europe there existed 30,000 volumes
of literary works. By the end of 1500, there were 300 printing presses,
not in Europe, but in Venice alone. Moreover, the number of books had
increased 500 times, from 30,000 to 15 million. It is believed that
copyright law actually developed in Venice around 1500 as a set of
monopolies or patents. One early example is that of Ludovico Ariosto,
who was granted the exclusive lifetime right to print his famous novel
Orlando Furioso. It was from these early laws in Venice that sprung up
the very first official copyright law in England, commonly known as the
Act of Anne.
While Europe may stake claim to the first printing press, the
technology that allowed it to come about -- movable-letter-printing --
was actually invented in China by Mr. Bi Sheng more than 400 years
prior, in 1041. Just as Gutenberg's press lead to certain copyright
laws, Bi Sheng's technology lead to the formation of a stamp that was
placed on the cover of books. The stamp, first appearing between the
years 1190 to 1194 would read: this book was published and distributed
by the Cheng Family of Meishan, any reproduction without permission is
forbidden. (2)The notice is strikingly similar to the modern copyright
notice ¨C "All rights reserved". Thus, it is quite obvious that as early
as 800 years ago China had some definitive notions regarding the idea of
copyright, or, intellectual property. The question might be raised,
then: why has there been no copyright law in China for such a long time?
Copyright law was still being resisted in China as recently as the
1970s.(3) One explanation for this is a quote from a Chinese scholar,
translated into English in 1903: "[For a Chinese writer], if his views
are copied out and passed around, he is delighted....if they are seized
upon, printed, and scattered to the furthest
corners of the Empire, he folds his hands and dies triumphant. He
has said what was in him to say, and men have listened."(4) In another
attempt to explain this discrepancy, another scholar has argued that,
for the Chinese, the past was so indispensable that common access to it
overrode concerns for private or state ownership of texts.(5) These two
explanations might be part of the reason that China did not pass her
Copyright Law until September 7, 1990. There had been certain claims for
copyright from the Cheng Family and other individuals during the past
800 years, but they were rare, separate and granted on an individual
basis. Throughout Chinese history, authors and publishers never formed
an independent interest group nor consolidated their power to pressure
the powers that be. This latter point is perhaps a key reason why formal
copyright laws were never issued; For it is hard to imagine that an
individual could fight for and gain his own copyright.
Copyright law is neither natural nor universal.(6) About 130 years
ago when the door of China was forced open by foreign gunboats, the
Chinese government found itself far behind the rest of the world.
Therefore, the government promptly made it a priority to send students
abroad to assist in the drafting of new laws. In 1910, there arose the
very first copyright law in China, The Great Qing Copyright Law, which
was virtually a copy of Japan's Copyright Law at the time. At around the
time the Law was passed, the Qing Dynasty was ending. Before the Law,
there were heavy negotiations between China and the US concerning
American citizens' intellectual property right protection. After dozens
of rounds, the final agreement was to allow protection only for books,
maps, and sculptures that were specially prepared for certain Chinese
citizens.(7) The Law contained five chapters and fifty-five articles.
It, however, left no legacy and never specifically mentioned foreign
right holders. A Chinese translator could translate any foreign works
free of charge and own the copyright of the translation.(8) In 1928, the
government at that time passed another Copyright Law, which contained
five chapters and forty articles. This law has been amended several
times over the years and it is still used now by Taiwanese authorities.
In 1949, the founders of the P.R.C. declared that all existing laws
and legally constituted authority should be abrogated. Articles that
confirmed rights and freedoms of art and literature can be found in the
new PRC Constitution as early as 1954. However, the first law to protect
artists' substantive rights did not come into being until 1990 when the
Copyright Law of the People's Republic of China was passed. Negotiations
concerning the substance of the law took 11 years, but, its passage
merely a day. China's new policy of reform and opening up combined with
foreign concerns regarding intellectual property played a large part in
the decision to form such a Law. The stimulus to create such a law can
be traced back to 1979 when an American delegation visited China. At a
meeting on a bilateral trade treatise, the question of copyrighting was
raised. The American side insisted that without an article on copyright,
the treaty could not be signed. But what was copyright? Who knew? The
Chinese negotiators were strongly influenced to ponder the creation of
such a law. Soon after, a copyright group was set up to draft a formal
Chinese Copyright Law.(9)
Generally speaking, China's Copyright Law followed the world trend
in the protection of author's rights. The purpose of the Law focused on
protecting the copyright of authors' literary, artistic and scientific
works and the rights related to copyrighting. The spirit of the law was
to encourage the creation and dissemination of works which would
contribute to the spiritual and material well being of society as well
as the promotion of culture and sciences.(10) The protected works
include both written, oral and musical works, works of fine art and
computer software.(11) The rights protected can be sub-divided into two
categories: personal rights and property rights.(12) Personal rights
include the right of publication, the right of authorship, the right of
alteration and the right of integrity. Property rights include the right
of exploitation and remuneration, that is, the right to exploit one's
work through reproduction, live performance, broadcasting, exhibition,
distribution, cinematographic mediums, television or video production,
adaptation, translation, annotation, compilation and the like, and the
right of authorizing others to exploit one's work by the above-mentioned
means and of receiving remuneration therein. The primary limits on
artists' copyright are: allowances for a person to use a published work
for his own private study, research or self-entertainment; allowances
for an educational or scientific institution to reproduce a published
work in small quantities for teaching or scientific purposes (although
not for publication); allowances for a library, museum or art gallery to
reproduce a work in its collection for display; and it is deemed
reasonable for people to copy or to take pictures of an artistic work
located or on display in outdoor public places.(13)
In comparison, the rights of foreign right holders were very limited
within China's first Copyright Law of 1910, then what they are in the
new Copyright Law of 1990. According to Article 2, works of foreigners
first published in the territory of China shall be eligible for
copyright in accordance with this Law. Any work of a foreigner published
outside the territory of China which is eligible for copyright under an
agreement concluded between the country to which the foreigner belongs
and China, or under an international treaty to which both countries are
parties, shall be protected in accordance with this Law. Since only one
year after the Copyright Law came into effect on June 1, 1991,China
joined the Berne Convention (Oct.15, 1992) and Universal Convention
(Oct. 30, 1992), in order to link the international copyright protection
and eliminate the gaps between China's Copyright Law and those agreed to
in the two Conventions, China passed rules for implementing
International Copyright Treatise. Under these Rules, the protection for
a foreigner would be in fact higher than that for a Chinese citizen. For
example, foreign works of applied art could be protected for 25 years
(14) while Chinese works of applied art receive no protection. As for
software, a regulation was passed on June 4, 1994 ensuring Computer
Software Protection in order to fulfill an obligation included in the
Sino-US Memorandum on the protection of software. The intention of the
Software regulation was to erase the limitation of foreigners' rights
from the old system that required prior registration. Article 24 of the
Regulation reads: The registration of the copyright of a piece of
software with the organ for software registration and administration is
a prerequisite for submitting a request for the administrative
intervention in, or to instituting legal proceedings for a software
right dispute. In short, one was granted software protection only upon
previous registration of such software. In the Rules, this limitation
was eliminated by Article 7, which states: Foreign computer programs
shall be protected as literary works and, therefore, shall not be
subject to registration. Moreover, there are several more articles that
ease limitations on foreign right holders based on China's Copyright Law
for foreign copyright holders.(15)
This brief, historical introduction allows an insight into China's
Copyright Law. One can see that the notion of "copyright" it is not so
new. Roughly 800 years ago, before even the Act of Anne had come into
being, some Chinese authors had developed the notion of copyrighting
material; However, in respect to being a formal law, it is quite new ¨C
having only been enforced for nine years. It is interesting to note that
the old Copyright Law laid more limitations on foreign right holders
while the new one lays more limitations on its nationals. This point
shall be discussed in part four.
II. Some new cases relating to the Internet
Before talking about the cases, there are two basic things that
should be kept in mind. The first thing to consider is the fact that
China's Copyright Law contains no articles concerning the Internet;
Secondly, is the tremendous growth rate and development of the Internet
in China. Internet service in China started in March 1994, yet users
were few at that time. In October 1997, user estimates reached 620,000.
One year later, the number doubled, and now it is estimated that
Internet users in China have topped 8 million. It has been estimated by
local experts that the number of Internet users will continue to double
every six months. (16)
Early in September and November of 1998, Mr. Jiang Zhipei, the
deputy chief judge of the Intellectual Property Chamber of the Supreme
People's Court declared to the Chinese media that copyrights on the
Internet would be protected by the courts. However, China's present
Copyright Law has not yet had any definite provisions concerning
copyrighting in cyberspace.(17) According to Mr. Jiang, unauthorized
digitalizing of copyrighted works would be deemed the same as infringing
upon the right of reproduction provided by Article 10 of the China
Copyright Law. Though this was, from my point of view, only the
individual opinion of a judge from the Supreme Court, it does serve as a
guide for other judges and has been welcomed by lawmakers.
China is not a case-law country,(18) its legal system follows the
continental legal tradition. In other words, every case is judged
according to the statute of law. A Chinese judge cannot decide a case
without a definite provision of law. Thus, lawmakers need to continue to
create applicable principles for specific cases.
Case One: Read-on-line Company v. Orient Information Company(19)
The facts
This is the very first case relating to the Internet in China and is
relatively straight forward: On February 8 of last year, the plaintiff,
Read-on-line Company, which is located in Beijing, found that the
defendant, Orient Information Company, which is located in Yibing City,
Sichuang Province, imitated the display of Read's homepage -- layout
design, color, pattern, logo, division and titles of the columns, etc.
As negotiations between the two parties failed, Read brought a suit
against Orient Info in Beijing, alleging that the defendant infringed
upon its copyright. Read requested that Orient Info stop the
infringement immedialty, publish an apology on their medium, pay
punitive damages totaling 199,900 Chinese Yuan (about 45,000 DM), and
bare the expense of the proceedings. In April, the defendant sent a
letter to the court arguing that according to the Civil Procedure Law,
an infringement case should be brought at the court where the
infringement occurred or the court where the defendant is located. Since
the Internet is quite different from traditional forms of media, the
present laws had no regulations relating to such a case. Hence, Beijing
courts had no jurisdiction. In response to this argument the plaintiff
thought that since the homepage in dispute was downloaded in Beijing, a
Beijing court should have jurisdiction in dealing with the case. The
first court to rule on the case, Beijing Haidian District People's
Court, ruled in favor of the plaintiff. The second court to rule on the
case, Beijing First Intermediate People's Court, upheld the decision.
This was the very first opinion given by Chinese Judges in regard to
Internet jurisdiction. It was held: 1. Read-on-line accomplished its
homepage, stored on its specific hardware, and distributed it to the
public through its www service machine. As Read-on-line's claim was
based on infringement of the copyright of homepage, Beijing should be
considered as the place of enforcement for the infringement; 2. In light
of the tremendous presence of Internet computer related businesses and
users gathered in Zhongguancun (considered to be China's high-tech
capital, or, "silicon-valley", where Haidian District People's Court is
located), this area should be considered the place for hearing such
cases.
In its arguments, the plaintiff claimed they suffered a lot from the
infringement of the defendant, injured its fram, and caused substantial
loss of visitors. The defendant argued that the display of Read-on-lines
homepage, its layout design, color, pattern, logo, division and title of
the column, etc., fell under public domain and, thus, contained no
exclusive rights or forbiddance from others using the same expressions
and the claims should be rejected by the court.
The decision
Since the plaintiff rejected the terms of mediation, the court gave
the following decision: Firstly, the color, characters and picture
designs were digitalized in a unique way by the plaintiff, had some
sense of aesthetic value, and were not simply arranged according to
objective law based on objective facts. Thus, the object in question
should be considered an expression of a unique idea with originality.
Secondly, parts of the defendant's display of its homepage constituted
similarities in substance with that of the plaintiff, though the
homepages were not the same, and there was no proof that the defendant
created the homepage himself; Thirdly, the defendant's actions, for
commercial purposes and with no authorization nor payment, constituted
an infringement on the right of ntegrity, the right of exploitation and
the right of remuneration to the plaintiff. Finally, the defendant
should bear its liability, publish an apology in a relevant scope to the
plaintiff, and compensate the plaintiff for reasonable osses. However,
the claim for such a large compensation was not supported. So, based on
the Article 45 (4), (8) of China Copyright Law, the court held: 1. The
defendant should publish an apology for the plaintiff on the omepage
-http://www.computerworld.com.cn. 2. The defendant should compensate the
plaintiff for 2,000 Yuan (about 700DM); 3. Reject all other claims by
the plaintiff. Since both parties kept salience for 15 days after the
decision, the decision went into effect.
Comments
Questions raised in this case are: 1. The jurisdiction of cases
relating
to the Internet; 2. The nature of works digitalized and installed in
a
computer; 3. Evaluating compensation for
Internet-copyright-infringement.
As for the jurisdiction of the case, the opinion from the Chinese
judges was that Read-on-line accomplished its homepage, stored in its
specific hardware, and distributed it to the public through its www
service machine. Since Read-on-line's claim was based on the
infringement of the copyright of its homepage, Beijing should be
considered as the place for enforcement of the infringement. The fact
that Zhongguancun is considered the hub for computer-related activity in
China, played a part in the decision to choose it as the place to hear
the case.(20) The judges who held the opinion decided that the place to
hear the case was also decided by the following factors: 1) the place of
the www service machine distributing the copyrighted work; 2) the
location of the plaintiff; 3) where the infringement happened.
The nature of the digitalized work, according to the judge of the
court, fit the description of a work that exists in digital form and,
thus, should be protected by China's Copyright Law. The work fit the
following criteria provided by the Law: a kind of original, intellectual
creation in a literary, artistic or scientific field, which can be
reproduced in a tangible form. In short, the argument is that since
there has not been any question regarding copyrights of works in the
form of CDs, MDs and LDs, why should there be any question about the
rights existing for other digital forms?
It is in evaluating the compensation, however, which poses a bit of
a problem. For an infringed book, we could evaluate the compensation
according to its copies and the scope by which the copies were
distributed. But it is hard to know how many of the infringed copies the
defendant made when the subject matter is an Internet site. What will be
the base for evaluation? In this case, the plaintiff asked for 199,900
Yuan, but only received 2,000 Yuan compensation. It does not seem fair.
Case two: Wang Meng et al. v. Century-on-line Company(21)
The facts
On May 28,1999, there were six well-known Chinese novelists - Wang
Meng, Zhang Jie, Zhang Kangkang, Bi Shumin, Liu and Zhang Chengzhi
who
found their works appeared on the website of the Century-on-line
Company
without authorization nor payment. They brought a suit in Beijing
Haidian District People's Court, proposing that the defendant
terminate its
infringement immediately, publish a public apology and compensate
the authors for their losses for the sum of 3,000, 3,000, 3,150, 21,900,
12,000, and 31,500 Yuan (a total of 100,290Yuan), respectively, and
further compensate them 5,000 Yuan, each, for moral damages (a total of
30, 000) incurred. Upon receiving the file on June 4, the defendant
pulled the relevant content from its homepage. Before the court, there
was a heated argument between both parties on the following point:
Should this really be considered an infringement of the author's
copyright. The defendant argued that there were no definite rules or
regulations concerning infringement on the Internet, since the
transformation from print words into digital words was quite different
from the traditional concept of reproduction. The defendant also
presented the fact that they used two other resources to gather the six
authors' works -- one from fan e-mails on the homepage of one of the
three authors and the other from a graduate students' group supported by
the company who set up and sustained
a special column named "Novel Lovers" which quoted the disputed
works of
another three authors downloaded from other websites. The defense
noted that there did exist a note on the homepage: All the contents of
this website were downloaded from other websites, please send a message
if you regard anything as inappropriate. This note can be considered a
bulletin to the public. The defendant intended to convince the court
that it was not at all at fault, and should not bear liability of
copyright infringement. Again, the defendant stressed that the listed
exploitation manners of works on Article 10 (5) of China's Copyright Law
were just concerning the traditional uses of works, the Internet (often
regarded as the fourth medium for media) should not be included. Since
there is such a plethora of data and information on the net, it is hard
to image that every Internet Service Provider (ISP) could obtain
authorization from each individual right holder. Moreover, as ISPs in
China are not profitable at the moment, the means for paying the right
holders according to the payment standard of
literary works was an issue. If the court made a decision laying
liability on ISPs, this would hinder the development of the Internet in
China.
The Decision
On September 18, the first court to hear the case refused the
defense and held: the transformation from literary words to digital
words on the Internet did contain originality in the sense that they are
protected by copyright. The author had the right of exploitation and the
right of compensation on the Internet based on copyright law.
Distribution over the Internet maintains the same protections as works
distributed in other, more orthodox manners. Hence, as an Internet
service provider, the defendant who distributed the works of the
plaintiffs constituted an infringement of copyright. The Court decided
that the defendant should terminate the infringement and publish an
apology on the homepage of its website, and compensate 1,680, 720,
1,140, 5,160, 4,200, and 12,380 Yuan (a total of 26,580 Yuan),
respectively, as well as an additional 140 Yuan (a total of 424 Yuan) to
each of the parties, and refuse other claims of the plaintiffs. The
defendant appealed to Beijing First Intermediate People's Court. This
second court refused the appeal and confirmed the decision of the first
court. The judges of the second court held: claiming that the works
infringed upon came from e-mail and other notes as a bulletin could not
be a reasonable explanation to deny the fault of the appellant. Article
10(5) ("the ways...etc") lists the ways in which a work can be exploited
and thus leaves space for judicial explanation. The infringement could
not be denied only for the fact that no regulations relating
specifically to the Internet exist. In the case, since the appellant had
the ability to control the distribution of the works of the six authors,
it should bear the relevant responsibility and liability. It was
possible to affect the works
distributed in other media after they had been distributed on the
Internet,
and thus affect economic interests. Due primarily to reasons
regarding supporting and encouraging the development of the Internet,
the court felt it was necessary to regulate the copyright issues
involved in this case.
Comments
This case raises the issue of the liability of ISPs and the
application
of the law by the court in the background that there are no specific
regulations relating to the Internet.
The liability has been causing much attention among the
international
copyright world. The problems presented from the Chinese judges are
not unique. There are two legal philosophies typified when deciding such
a case: one is applicable if the liability contains fault, the other one
is applicable if the liability is without fault. In this case, I
believe, the defendant should bear the liability with fault. Since, Wang
Meng and the other five authors are well-known authors, the defendant,
as an Internet service provider should know that, and should often check
its homepage to see if there exists any materials that infringe upon
copyright laws. They should consequently delete such material or seek
appropriate permission to post it. Omitting such steps can be considered
the fault of negligence. However, in practice, there does exist the
possibility of an ISP truly not knowing whether its website contains
infringing materials or not. If it is brought to court, should it bear
the liability of the infringement? If so, what should that liability be?
There are no provisions in China's Copyright Law relating to the
Internet. Thus, it is left to the judges to interpret the law. It was
said that the reproduction forms listed in Article 10 of the Copyright
Law is an unlimited list. The legislators left an explanation space to
allow for judicial interpretation. Though the defendant expressed its
regret over the decision, the final result is acceptable. It should be
noted that the judges determined the compensations for the authors based
on the official payment standard of literary works.
Case three: Chen Weihua v. Computer Commercial Press(22)
The facts
The plaintiff Chen Waihua, a manager of an electronic company, is a
computer
amateur, who, using the pseudonym Wu Fang, launched his own
homepage, 3D Zhima Stree,t on the internet. The homepage contained a
series of articles with the name "Wu Fang", looking like a
mini-magazine. His special columns' subject was concerning three
dimensional design, which aroused great interest from other computer
amateurs. On May 10, 1998, Chen wrote an article The Story of MAYA that
gave a vivid description about the technique of three-dimensional design
and put it on his homepage. A note: "copyrighted,
no reprint without permission", was put at the end of the article.
On June
16, he found this article was reprinted on the 40th Home Computer of
Computer Commercial Press, which was published in Chengdu, Sichuang
Province. Chen consequently brought a suit to court.
The defendant admitted it did publish this article in its newspaper
and agreed to pay the author according to a standard payment for
literary works. However, it did not agree to publish an apology to Mr.
Chen. The defendant did not regard their actions as an infringement due
to the fact that the article in dispute was sent by readers through
e-mail. They viewed the article similar to that of a contribution to a
newspaper and sent a corresponding letter in order to find out the
contributors' true name and detailed address in order to send him or her
payment and a sample newspaper. However, with no reply from the
prosecutor, the payment and the sample could not be sent out. The
Computer Commercial Press, therefore, was not at fault. Another question
that arose was how the plaintiff could prove that he indeed was the
named author, Wu Fang.
On March 23 and 26, 1999, with both parties present, the court made
it
clear that there was a personal homepage named 3D Zhi Ma Street on
the
Internet and the article The Story of MAYA with the name Wu Fang.
Since
Mr. Chen proved he could go on the Net, change the pin number, and
delete the document it was agreed that he was the author, Wu Fang.
The decision
On March 28, 1999, the court tried the case publicly. The court
held: The
article, the story of MAYA, is considered literature with a
description of
three-dimensional design technique with originality, which could be
fixed, in
digital form and stored on computer hardware. It could be put up on
the
Internet through a www service machine and maintain a stable state.
People
could access it and reproduce it with link machines. It should be
considered a copyrightable work as it fits the definition of such a work
in the Copyright Law. At present, only the website master could change
the pin number and add or delete the contents. The plaintiff was capable
of performing all these functions, while the defendant had no proof to
the contrary. So, it was decided the plaintiff was the Webmaster and
also the copyright holder of the article. The defendant reprinted the
article for commercial purposes and hence enlarged the distribution
scope of the article. It constituted an infringement of the plaintiffs'
copyright, and thus the defendant should bear the responsibility of
stopping the infringement, publishing an apology, and compensating the
plaintiff for a reasonable loss. The defendant's argument that it was
not at fault and, therefore, should not bear liability, was not accepted
by the court.
Comments
This case raised the issue of the liability of a paper media using
downloaded
materials and how to determine the actual author or the copyright
holder of said materials.
The defendant in this case should bear the liability of fault for
using the
copyrightable article before maintaining who was the right holder
and receiving permission. But the question still remains: how could it
have determined the rightful author? This seems a more difficult
problem.
Supposing that the plaintiff in this case sent his article to the
defendant, saying he was the author. What would happen? In my opinion,
the user, at this time, just as would happen on traditional media,
should establish a contract with the contributor with a provision that
the contributor should bear all liability for the article. Moreover, as
a professional publisher, it should run a check on the article to find
out if reproducing it can be considered infringement. On the other side,
a copyright protection system could also be introduced, such as digital
encryption, and copyright management information. There also may exist
further measures that enable one to deal with the appraisal of such
works more easily.
III. The gap between TRIPs and China's Copyright Law
TRIP is an abbreviation of The Agreement on Trade-Related Aspects of
Intellectual Property Rights, which was signed at Marrakesh in April
1994 as
an annex to the Agreement establishing the World Trade Organization.
It is probably the most significant development in international IP law
in the last
century. As one author pointed out, the IP regime which was created
in the
1880s (based on provisions from the Berne and Paris Conventions
under the administration of the WIPO), has been replaced by a
provision based on the TRIP Agreement under the supervision of the WTO.
On November 15 of last year, China and the United States finally signed
an agreement regarding China's entry into the WTO. As a result of this
landmark agreement, China and the European Union have been involved in
heavy negotiations. The WTO should be a stage for fair competition,
which requires all participants to follow certain rules. For the IP law
field, it remains to be seen what are the gaps between TRIP and China's
IP law?
In 1996 the WIPO adopted two treaties: the WIPO Copyright
Treaty and the WIPO Performances and Phonograms Treaty (hereinafter
referred to as the WCT and the WPPT), frequently referred to simply
as the Internet treaties. When China became a member of the Berne
Convention, she adopted International Copyright Treaties Implementing
Rules for making up
the gap between existing laws and those agreed to at the conventions
(mentioned earlier). China has reported that it will not sign the
Internet treaties in haste, but also realizes she ultimately cannot
avoid facing the WTO. Compared with TRIP, the three defects that remain
in China's Copyright Law are in the following areas: the protection of
rental rights (Article 11 of TRIP), computer programs and the
compilation of data (Article 11 of TRIPs). According to TRIP, in respect
to computer programs and cinematographic works, a Member
shall provide authors and their successors, in title, the right to
authorize or to prohibit the commercial rental, to the public, of
originals or copies of their copyright work. In fact, in Article 10(5)
of China's Copyright Law, there is a form of exploitation-distribution
which is explained in Article 5(5) of the Implementing Regulations of
the Copyright Law: distribution is the provision of a certain number of
copies of a work to the public through selling, renting or other means,
insofar as the said number of copies satisfy the reasonable needs of the
public.(23) This could fulfill the requirements of the protection of
rental rights in TRIP. As for the Compilation of data, Article 5(11) of
the Implementing Regulation has an explanation of compilation which
recognizes the creation of a work by assembling a number of selected
preexisting works in whole, or, in part, according to an arrangement
designed for a specific purpose. There are also provisions on computer
programs on the Regulation of Computer Software Protection, but computer
programs are protected based on a specific law. While all the above
explanations and provisions can be found in China's Copyright Laws, this
fact does not mean that China's Copyright Law does not need adaptation
or amendment. As we know from part two, the Chinese judges explained the
new concepts based on the original laws or regulations, and implemented
these new ideas into their new decisions. However, not all the new
provisions could be explained based on the original laws or regulations.
For instance, if a publisher were to put the materials published years
ago on the Internet, whether a judge can find a legal provision and draw
a new explanation from it remains to be seen. It is hard to give an
answer. Essentially, in order to close the gap with TRIPs, keep pace
with the development of the international copyright protection trend,
and adapt itself to the circumstances of Internet, China's Copyright Law
should be amended.
IV. The amendment of China's Copyright Law
China's Copyright Law of 1990 has been put on the amendment agenda
of
the Law Committee of the National People's Congress (the Chinese
parliament
and the national legislative body) in 1998. However, as a matter of
the Legal
Office of the State Council, the draft was withdrawn from the
Committee last year. It is expected that the draft will be presented to
the Committee again late this year.
Up to September 18, 1998, the Copyright Administration together with
the
Legal Office had distributed three different versions of the
amendment to
collect opinions within China and abroad. Nationally, opinions will
be collected from Composers Association, from the Authors' Society, from
China's Computer
Association, from broadcasting organizations and so on.
Internationally, opinions will come from the WIPO, from the IFPI, and
from individual companies, such as Microsoft.(24) The main purpose for
the amendment is as I just mentioned, namely, to close the gap with
TRIPs, keep pace with the development of the
international copyright protection trend, and adapt itself to the
circumstances of the Internet. Following are the main contents of the
amendment.
1. To shorten and eliminate the gap between China's present
Copyright Law
and international treaties, especially the Bern Convention,
bilateral treaties
and the TRIPs.
2. The practical problems raised through Law enforcement agencies:
to make clear
the legal position of the copyright collective society and its
obligations; to strengthen the enforcement of the Law by enlarging the
scope of the administrative sanctions; to make it clear if the economic
rights in copyrights
can be transferred; the relationship between copyrighting and
industrial
property rights; rights and liabilities of performers; fair use in
editing
and publishing teaching materials; and the protection of computer
programs.
3. Problems raised by new technologies.
4. Modifications for the text of the Law itself.
The amendment in the first part mainly deals with the so-called
super-treatment of nationalities. That will eliminate the unequal
treatment on the Copyright Law between a foreigner and a Chinese and
give the Chinese citizens the same protection as foreigners. The
legislators clearly recognized the gaps compared with the Berne
Convention when China declared she would become a member of it soon
after she passed her Copyright Law. The International Copyright Treaties
Implementing Rules was the outcome of this recognition, which sets a
higher protection for foreigners while remains lower protection for her
citizens. This is a shame for the legislators and those people with
breadth of vision. The most
debatable issue is Article 43 of China's Copyright Law. It reads: A
radio
station or television station that broadcasts, for non-commercial
purposes,
a published sound recording needs not obtain permission from, or pay
remuneration to, the copyright owner, performer or producer of the
sound
recording. In fact this article was argued bitterly during the
period of
drafting the Law. The opinions at that time from national
broadcasting
organizations argued that they were non-commercial stations, were
the
mouthpieces of the Chinese Communist Party, and lacked the funds to
pay. This
article, in practice, caused many disastrous effects. There is a sad
story that personifies the ramifications of such legislation, or, lack
thereof:
a very famous and popular song, Hope In The Field by a young and
talented composer, Shi Guangnan, for the payment of only 30 Yuan (less
than 10 DM). Mr. Shi contributed a lot but received a little. He died at
the age about 40. He left plenty of music and songs. Among them was a
score from China's opera, Qu Yuan. His widow and young daughter had no
money to get it onto a stage, though. They had to ask a tobacco company,
which Mr. Shi despised, to support the performance. Again, because his
copyright received no protection, a famous composer, Mr. Liu Ming Yuan,
was forced to put one of his scores Xi Yangyang ("beaming with joy") up
for auction for about 500,000 Yuan (about 120,000 DM). After the
auction, because performances were restricted, the public had no chance
to enjoy the music. Recently, a composer, Mr. Bao Yuankan, sold one
piece of his work to a company in Hong Kong for about 15,000 USD. Since
then, more composers have put their works up for auction. These cases
caused much public attention and, I believe, open a chapter in the
history of Author's Rights in China.
Conscious of their copyright, the authors urged the legislators to
abolish Article 43 of the Law while only the national broadcasting
organizations insisted on the abolishment. The main objection was that
the financial allocation received from the government was not enough.
This problem should have been counterbalanced by the government. This
might be the reason why the State Council withdrew the draft of the
Copyright Law Amendment last year.
The second problem of the amendment is relating to the above
problem, that
is, the provisions of the copyright collective administration. Since
there
is no tradition and no history of the administration of such rights,
the
legislators seek the opinions from the public on the nature of such
a
society, the supervision of such a society and its legal position in
a lawsuit. The proposed amendments are as follows:
1. (Article 44 (4)) Copyright owners and owners of the rights
relating to
copyright may exercise their rights through collective
administrations.
The establishment of such a copyright collective administration
should receive permission from the State Council and its work should be
under the
supervision of the Copyright Administration of the State Council.
The
payment standard should be discussed and agreed between the said
society
and the users, which should receive permission from the Copyright
Administration of the State Council.
2. (Article 44(5)) Based on the authorization from the copyright
owners and owners of the rights relating to copyrighting, the
administrative scope of a copyright collective administration are
mainly: (1) to administrate the right of remuneration based on Article
22; (2) to administrate the right of permission and right of
remuneration for public performance; (3) to administrate the right of
permission and right of remuneration for producing sound recordings and
video recordings; (4) to administrate the
right of permission and right of remuneration for broadcasting the
published works; (5) to administrate the right of permission and right
of remuneration for newspapers and magazines reprinting works of other
newspapers and magazines; (6) to administrate the right of permission
and right of remuneration for producing multimedia, database, etc.,
compilation works; (7) to dministrate other rights permitted by laws ,
regulations or the Copyright Administration of the State Council.
3. (Article 44 (6) ) A copyright collective administration may
undertake
its business and bring any law suit in its name.
4. (Article 44 (7) ) A copyright collective administration who
signed
bilateral treaties or multilateral treaties with similar foreign or
international societies, has rights to undertake the business and bring
any law
suit representing said societies.(25)
The third main part of the amendment concerns new information
technology.(26) Information technology has profoundly effected many
aspects of human society and resulted in a lot of new problems in
copyright protection. Because of digital technology, the means for
reproduction of copyrighted works has changed significantly and
electronic databases and multimedia works have emerged. The Internet
also dramatically changed the way to communicate copyrighted works to
the public. Among most scholars in the IP field in China, they believe
that the right of communication to the public, the protection of
technological measures, and the protection of copyright management
information should be inserted into the Amendment of China's Copyright
Law. The three points are the main provisions in the WCT and the WPPT in
response to the digital technology and Internet. But, unfortunately,
these solid suggestions have not been reflected in the draft of the
Amendment. It is said that the recent draft only provides the right of
communication to the public but contains no obligations to protect
the
technological measures and the rights of management measures.
Without the
latter two measures the right of communication to the public will be
diminished, and possibly even made meaningless.
Some scholars believe that the Amendment should properly specify the
liability of ISPs. They suggest that in order to encourage ISPs to
engage in the activities concerning the development of the Internet, it
is necessary for ISPs to bear the liability only for known infringements
on others¡¯ rights. If an ISP is aware, or is informed by the copyright
owner, that his server is being used to violate others, it must take
steps to avoid the violation. If the ISP continues to provide service
and infringement results, the ISP shall be considered as a contributory
infringer and shall bear contributory liability. In contrast to this
opinion, some other scholars believe that although the liability of an
ISP is an important subject, they have not reached a clear idea on this
topic. It seems that throughout the world there are differing opinions
regarding this topic. Thus, further analysis and consideration is
needed.
There are different views on the fair use of copyright law in the
environment of digitalization and the Internet. As a result of the
development of digital technology, it is very simple and convenient
for a
person to reproduce a work today. Some scholars take the position
that
because of the prevalence of the Internet and the ease of
downloading a
work from the Internet, the marketing of the works may be greatly
impacted by
the reproduction of works for private use allowed by the theory of
fair
use, and the commercial interests of the copyright owners may be
greatly
reduced. Some other scholars believe, however, that the fair use
should be
expanded with some kinds of works on the Internet so as to encourage
the
dissemination of information and reduce infringement. It is not good
for there to exist so many obstacles for disseminating information on
the Internet. This will be a crucial consideration of the legislators
for the proposed amendment. It is crucial to find a new balanced point.
* Visiting professor at the Institute of Information,
Telecommunication and
Media Law, Muenster University, Germany, on a grant from the
EU-China
Higher Education Cooperation Programme. Research on EU copyright
law. This
article is based on a speech presented at the Seminar of China's
Copyright
Law at ITM of Muenster University in February 28, 2000.
(1) Jon Bing, "Copyright in Electronic Commerce and Private
International
Law". In Information und Recht, Band 6, p.35.
(2) The copy of the stamp can be found in the book: The Historical
Documents of China's Copyright Law, edited by Zhou Lin and Li
Mingshan,
published by China Fang Zheng Publishing House in November, 1999.
(3) Hillel Schwartz, The Culture of the Copy, p.243, ZONE BOOKS,
1996.
(4) Id.
(5) William P. Alford, To Steal a Book is an Elegant Offense:
Intellectual
Property Law in Chinese Civilization, Stanford University Press,
1995, pp.
19-20.
(6) See note (3), p. 243.
(7) Article 11 of Sino-US Trade Agreement of 1903.
(8) Article 28 of Great Qin Copyright Law of 1910.
(9) Cf. Zhou Lin, Some Clues in Research of China's Copyright Law
History,
in The Historical Documents of China's Copyright Law, edited by Zhou
Lin
and Li Mingshan, published by China Fang Zheng Publishing House in
November, 1999.
(10) Article 1 of the Law.
(11) Article 3 of the Law.
(12) Article 10 of the Law.
(13) Article 22 of the Law.
(14) Article 6 of the Rules.
(15) For example, Article 13 of the Rules says: Prior permission of
the
copyright owner shall be required for newspapers and periodicals to
reprint
a foreign work...; Article 16 of the Rules says: In the case of
public
performance, recording and broadcasting of foreign works, the
provisions of
the Berne Convention shall apply. This means some limitations laid
on the
right holders in Article 43 of the Law are no longer suitable for
foreign
right holders.
(16) Li Dan, "To Keep Security of the Net by Law", a report about
the Seminar
of the Strategies of the Development of China's Digital Library, in
China
Culture News, December 8, 2000.
(17) The opinion can be found at Mr. Jiang Zhipei's website:
www.chinaiplaw.com
(18) The Supreme People's Court regularly publishes case-reports.
The
cases reported are thought of important with some kind of influence
on the
local courts.
(19) For more details see Lu Jie, The final result of the first
net infringing case in China, Beijing Youth, September 22, 1999; Xin
Shamming, Homepage of a Website cannot be Copied without Permission,
Beijing Daily, October 16, 1999.
(20) Id. Cf. Xin Shangming's article.
(21) For more details see Wang Hong and Qian Weihua, "The Chinese
Authors Say No to the Infringement on the Net", China Readers, June 30,
1999.
(22) For more detail see Xin Shangming, "The Author Has Copyright of
His
Works on the Net", Beijing Daily, May 15, 1999. Cf. Ma He, Several
Issues
relating to Copyright Protection of Digital Works on Internet,
Intellectual
Property Studies, Number 8, China Fangzheng Publishing House,
November
1999.
(23) It was thought that the National Copyright Administration of
China
gave an expansive explanation of the word 'distribution?
(24) Zheng Chengsi, "The Development of Intellectual Property in
China in
1998", Intellectual Property Studies, Number 7, China Fangzheng
Publishing
House, May 1999.
(25) The draft of the amendment of August 15, 1997.
(26) See Intellectual Property Forum ( newsletter), No. 1, May 1999,
hosted
by Intellectual Property Centre of China Academy of Social Science. |