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 – "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 – 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)
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.
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.
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)
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.
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.
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 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.
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.
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
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.
(5) William P. Alford, To Steal a Book is an Elegant Offense: Intellectual
Property Law in Chinese Civilization, Stanford University Press, 1995, pp.
(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
(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
(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:
(18) The Supreme People's Court regularly publishes case-reports. The
cases reported are thought of important with some kind of influence on the
(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
(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.