Archive for the 'censorship' Category

The License to Domain Name Resolution – this time not only .CN

To control the pornographic websites, China’s Minstry of Industry and Information annouced today five measures that the registrar (CNNIC) and domain name registration service providers shall do, .

1. Establish a blacklist of the the domain name holders whose website has been shut down by the government.

2. The  applicants of domain names must provide all the informaiton for the name registration.

3. If a website is not approved to “record” by the telecommunications administration bureau, the affiliated domain name shall not be resolved.

4. Once a website is found “pornographic or illegal”, the resulution of the affliated domain name shall be stopped, and all other domain names that the same registrant has held will be suspended to be resolved. And the registrant will be listed in the blacklist.

5. Investigate the way of coorporation, modes of advertisment and the way of connection between the regsitra/domain name registration servicer providers and their cooporative partners.

 

This time, based on this announcement, not only .cn, but also all the domain names registrated/managed in China will not be reolved unless the corresponding website is “recorded” (actually approved) by the government. And if one’s webstie has been shut down, she may not be permitted to registrate new domain names.

"Map of Internet Encirclement Compaign in China"

A “Map of Internet Encirclement Compaign in China” was released by some Chinese netizens yesterday. It is very interesting and has been switfly spreaded to BBS and weblogs in Chinese Internet sphere.

fanweijiao 

Here is an English translation of the map (click the picture for a better view):

map

 

[Background] “The Wars of (anti-)Encirclement Compaign” were a series battles between China Communist Party and the KMT‘s Nanjing Gorvernment in 1930s. At the time the CCP established a government in south-central China (mostly in Jiang Xi Province). The KMT’s army tried five times to attack and encircle the territory of CCP’s regime. And The CCP’s Red Army was almost defeated in the Fifth Encirclement War in 1934. The Long March followed the war and rescued CCP and its army.

Access Controlled is Controlled before Accessible

November 15th, 2009, at Internet Governance Forum (IGF) 2009 in Egypt, United Nations (UN) security took down banner / poster (as follows) of the forthcoming book Access Controlled: The Shaping of the Power, Rights and Rule in Cyberspace (MIT Press, 2010).

See Youtube: http://www.youtube.com/watch?v=d-kxYt2LwKc

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Rule of Moral or Rule of Law?

Rule of Moral or Rule of Law? Contending Passions of China’s Information Control in the New Round of Metropolis Development

DONG Hao

This is an outline of my presentation prepared for a Symposium.

Lust, Caution is a movie telling a story in Shanghai and Hong Kong in 1940s. I personally like it because it has not only good scenery but also some artistic, as well as sexy episodes. From the law perspective, the interesting thing is: This movie, especially those episodes with nude bodies may not be protected by China’s copyright law because Article 1 of that Law said that it aims to promote the development of ‘spiritual civilization’ but not indecent content, and Article 4 of the Law excludes the copyright protection to ‘illegal works’.

Therefore, if someone uploaded the movie to a website in China, the copyright holder might not eligible to sue the uploader for the copyright infringement. On the other hand, if the copyright holder licensed a website to provide the online watching, both the holder and the website might confront with criminal penalty no matter what warning signal had they placed on the website before the visitor could see the movie. The worse thing is no instruction in China’s law revealing what is obscene or indecent.

The history of China’s endeavour on controlling the information can be described as a contending between rule of law and rule of moral. Until currently, the controlling is mainly based on the judgement of the officer’s moral feelings (this includes the traditional moral or the so called Socialist Spiritual Civilization). Why? Because the law is very vague and uncertain.

The more complicated thing is: Some local government tends to carry out the Rule of Moral in name of Rule of Law. In Hangzhou, a new regulation has just promulgated, it says basically anyone who wants to post a thread onto BBS or any public discussion system must register her real name and citizen ID card number to the ISP beforehand.

Why do they believe this controlling will be useful? Not only because they don’t understand the technology (if one want, he may break any firewall), but also because of the Chinese legal tradition. Traditional Chinese social controlers used to embedding, or implanting literary or even passionate wordings into the legislation or policy. For example, many officers use ‘Internet violence’ to support their suggestion to the above real name system. However, the Internet Violence is just a metaphor. There is no possibility to conduct a legal prohibited real ‘violence’ through the Internet. The only things that may happen are defamation, invasion of privacy or leaking the state secrets, which are far away from the ‘violence’ in the legal sense, such as battery, trespass or body harassment.

As Aristotle had said, ‘the law is free from passions’. Good information governance should be under rule of law. The rule of moral might be efficient in some circumstances, but may also lead to many arbitrary administrations.  For example, there is a 2007 case in Shanghai on the blocking of the website. The plaintiff made a website hosting at a US web server. The website was purely lawful under Chinese law. However because the whole server was blocked afterwards, his website cannot be accessed from China. (Brief the case)

Contrasting to the mainland, the passions or pure moral doctrines are scarcely written in Hong Kong’s legislations directly. Comparing with Mainland, Hong Kong has a more precise and value-neutral law on the information controlling. In the Edison Chan’s obscene photo case, Hong Kong government firstly tried to determine, in accordance the fixed procedure, whether the photos were consistent with the definition of ‘obscene’ or ‘indecency’ regulated in Obscene and Indecent Articles ordinance (Ch. 390 of HK ordinance). The moral criticisms to the author or the uploader of those photos always stayed in the media, and are not concerned by the judges.
The bright aspect on mainland China is: now the controlling is gradually stepping into the pace of rule of law. A good result of recent campaign of attacking indecent content in China is that a semi-governmental organization published 13 standards for distinguishing the indecencies from other contents. It has its defects because the most important thing: procedure of determination is still lacking. However, it is a good start (while the future may still a contending of rule of moral and rule of law).

Between the mainland and Hong Kong, the most essential distinctions are not the buildings, human resources and industries, but the distinction between rule of moral and rule of law. Either of them has advantages for specific cases, while I think as for a general environment, stressing the rule of law would be crucial  for China’s new round of development in metropolis. If Shanghai wish to be a financial centre or regain its glorious status that we can see in the movie Lust Caution, it has to be a safe harbour for everyone with clear and stable rule of law.

They Just had not Noticed the Censorship

screen-capture.pngRebecca Mackinnor brought an interesting talk at the Berkman Center on China’s Internet culture. See the video here, and see the notes by Ethan Zuckerman here, and notes by David Weinberger here.

In her presentation, Rebecca figures out the Back-Dorm Boys (后舍男孩), Premier Wen Jiabao’s 2-plus hour net chatting, rivercrab(河蟹), “alpaca sheep(草泥马)”, blocked blogs and so on. These are very familar to Chinese netizens, at least those Chinese netizens who are working on the social development of the cyberspace and the cyberlaw. While what the most important observation of Rebecca, in my view, appears at the Q&A session. She said that for many people living in the mainland China, they  just not noticed the censorship.

Why? Becuse they just have many other concerns about their life, and

(1) for Chinese mainlander students, there are so much interesting stuffs IN the Chinese Cyberspace, including “alpaca sheep”;

(2) for foreigners (and actually some Chinese white collars either, I think) in mainland, they can get anything if they can read English, unless one’s job focuses on the human rights issues specifically.

Yes, they just had not noticed the censorship. This is a very curcial and of course accurate description. Some may worry about this, but I’d say the contrary hereby.

Yes, the so-called cyber authoritarian may not be comfortable when someone meets it. However in most circumstance, one doesn’t have to knock into the wall. I mean, as a matter of fact, Chinese netizens just don’t HAVE TO notice it because comparing with the off-line world, the cyberspace itself, even in a firewalled intranet, have had brought so much fun to the people. It is the distributed network itself that provides the possibility of freedom of express, the freedom of knowledge sharing, the freedom of fun, the freedom of “lower taste” (低俗) – if not the freedom of obscene, and the freedom of piracy. This nature of the network is important, not only for the Internet controllers working for the regime, but also for the fighters of cyber democracy.

If there must be some value in the networked society, the best choice may not be, at least not only be the norm of freedom, but rather the Value of Value-neutral – not only for the technology, but also for the attitude to the cyber-society.

Actually, based on the same concern, in the cnbloggercon 2008, I proposed that a Chinese blogger conference may invite more bloggers who might never care about the social development, such as homosexual bloggers, Shebloggers, gourmets, and so on. They are making their own fun and create their own special information into the cyberspace continuously. In some sense, it is these various bloggers making the Chinese cyberspace being pluralistic, and then survived itself from a world of monopolization – of the money, power, resouce, and the thought.

Rebecca quotes the proverbs in Tao-te Ching (道德经) at the beginning of her talk (see slides here): 

The Kingdom is a spirit-like thing, and cannot be got by active doing. He who would so win it destroys it; he who would hold it in his grasp loses it.

天下神器,不可为也,为者败之,执者失之。

I’d echo the following sentence at the end of the same paragraph:

Hence the sage puts away excessive effort, extravagance, and easy indulgence.

是以圣人去甚,去奢,去泰。

The Translation Mist of Chinese Legislation: Too much to be done before value-relevant quarreling

Let’s see the three versions of English translation to Article 4(1) of Chinese Copyright Law:

Its Chinese orginal wording:

依法禁止出版传播的作品,不受本法保护。

T1. In official database of the China National People’s Congress, this sentence is translated as:

Works the publication and dissemination of which are prohibited by law shall not be protected by this Law.

T2. In the China’s notification to the Council for TRIPS in 2002 (WT/IP/N/1/CHN/C/1), this sentence is translated as:

Works the publication or distribution of which is prohibited by law shall not be protected by this Law.

T3. In the WTO case DS362, the US and China agreed the following translation:

Works the publication and/or  dissemination of which are prohibited by law shall not be protected by this Law.

  • According to T1, only when a work is prohibited publication and dissemination, it will not be protected by Chinese Copyright Law.
  • According to T2, either when the publication or when the dissemination of a work is prohibited, it will be excluded the copyright protection.
  • According to T3, if a work (1) the publication and dissemination are both prohibited; (2) one of them  is prohibited, it will be denied the copyright protection.

As for the WTO DS362 case, the distinction of these three translations may not be interested by the US negotiators because they might believe any version of such provision would violate the TRIPS obligation as it conflicts to the “automatic protection” principle stipulated in Berne Convention.

However, when we turn back to the domestic level and provided that the censorship would not be abolished in the near future, the distinction might be very significant. For instance, if someone “disseminated” (Alert: the “disseminate” dose not equal to “desseminate to the public”) a self-made movie about the fire at the CCTV (or TVCC, whatever) to his 10 friends privately, whether she would be protected by the current Copyright Law? If you know China, you will understand the movie would never be approved publication – attention! another language mist – “publication” in Article 4 is different from “the right of publication” in Article 10(1) – the former is Chu Ban (出版, printed or duplicated for distribution), the latter is  Fa Biao (发表, decide to make the work available to the public). At the same time, even according to the current censorship regulations, the moive will not be prohibited to be disseminated. Therefore, this movie may belongs to the “works prohibited to be published” AND “can be disseminated lawfully”. In this circumstance, different translations would leads to different answers, and it seems the T1 version would be more reasonable. But why and by what legitimacy?

Yes, the above paragraph may just be stupid crabs. But what I want to say is: We need a long long long long march to archive the so-called Rule by Law – let’s just forget the Rule of Law for a while (or at least lower our estimation to its archivement before used to being Zhetenged by the poor legislation). We have to pay more attention to the meticulous research to the details of our rules, and from my view, we have to Zheteng our legislations and make it being proof of vagueness. There is too much work to be done before (or at least besides) falling into the controversial value-relevant noises.

ps: Don’t ask me what is the official language of China, I have answered it here (in Chinese).

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