My Paper:
Positive Analysis to the ‘Illegal Works’ under China’s Copyright Law: With Comments to the WTO DS362 and Suggestions to the Legal Reform

Abstract:

Abstract: This article reviews the copyright dilemma of illegal works in the context of Chinese copyright system. Under the current law, not merely the works with illegal content, but also the works did not fulfill the procedural requirement will be denied the copyright protection. Article 4(1) may find legitimacy in the domestic level, but does not comply with the WTO law. The three criteria in Article 13 of TRIPS Agreement can be applied to examine Article 4(1). The key problem lies in the uncertainty of the scope of denial of copyright. This leads to the Super-national Treatment. Based on these analyses, the last part of the article proposed some suggestions for the future legal reform.

Keywords: Illegal Works, DS362, TRIPS, Three-Step Test, China, Copyright Reform

The fulltext (in English) can be accessed at SSRN:

http://ssrn.com/abstract=1346325

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).

It is widely reported (in Chinese) that Beijing Haidian District People’s Court has given its decision on the copyright disputes between CTrip and Qunar.com.
Qunar’s search engine crawls CTrip’s website, as well as other similar sites, and search the customers’ comments to hotels, then list the thumbnails of those comments in Qunar’s own pages. According to the news, CTrip sent lawyer’s letter to Qunar three times in June and July. Then it sued Qunar in November.
According to the news (now the judgment still can not be obtained through the Internet), the court seems confirmed that CTrip “owns the copyright to the content and resources in its website”. I wish it would just be a new wrongful or half-baked quotation by the journalists. If the court really ruled the case in this way, the court’s tender attitude to the database would create the new regulations in Chinese copyright law (no matter how illegal of this creation in Chinese legal system).
The defendant seems willing to appeal the case to the higher level court, according to the news, again.
Looking forward to read the full text of the judgement. Before that, I will not comment the case in details.

Fixation of the performance without the performer’s authorization will infringe the copyright. However, the questions follow: shall those unauthorized phonograms totally be discarded? Who can use them, and in what extent?
Easy124, a reader of this blog, sent me some provisions in Canadian Copyright Act. Among them, Section 15 (1) (b) noted that a performer has a copyright to:

… reproduce any fixation that was made without the performer’s authorization.

According to this provision, the unauthorized phonograms can be utilized (at least in terms of reproduction) by the performer. Obviously, this is not an “author’s right”, while it is distinct to traditional so-called “related right” in the Civil Law System. The object of reproduction is unauthorized phonogram, which is originally produced not by the subject of reproduction but an infringer. Without further research,  I cannot provide the Canadian legislator’s initial aim of granting performers this right. But I’d applause this arrangement because it saved a good many of records of the live culture. Nowadays, the recording facilities are more and more afordable by ordinary people. Many memorable moments may be recorded by layman who may not be authorized by the performer. This provision provide  those recordings opportunities to be legally reproduced.
There are more questions should be answered: who is the exact owner of these unauthorized fixation of the performance? In our Civil Law System logic, what kind of right should this reproduction belong to? When they are reproduced by the performer, can the copies be distributed  by the performer? If distributed, should the unauthorized phonogramers share the possible incomes? I cannot discuss these here for the time. But they do worth to be think again.

Can the Moral Right be Transferred and Waived?
A Positive Research to the Chinese Copyright Law

DONG Hao

(Law School, Yunnan University, Kunming 650091, China)

Abstract: This article reviews the possibility of the transferring and / or waiving the moral rights stipulated in Chinese current Copyright Act. The premise of this discussion is: copyright in Chinese legislation is by nature a kind of statuary right but not natural right. Based on this precondition, this article positively analyzes the moral rights in Chinese copyright law and draws the following conclusion: (1) the right of publication can neither be transferred nor be waived; (2) the right of revision cannot be transferred but can be waived; (3) the right of integrity can neither be transferred nor be waived; (4) the right of attribution can be waived, and when the law accept the conception of transferability, it can be transferred then.

Keywords:

Copyright, Right of Attribution, Right of Publication, Right of Revision, Right of Integrity

This paper has been accepted by the Journal of Yunnan University – Law Edition, the full-text will be provided after the publication. Please visit the following page later and see the update.

http://www.blawgdog.com/article.asp?id=772

Orphan Works in the Context of Chinese Copyright Law:
A Comparative Research

DONG Hao

Abstract: “Orphan Works” means works whose copyright (if not expired) owners can hardly be located, hence the users may not exploit the works lawfully with the licenses issued by right owners. Discussions to this topic in the U.S. and Britain have been raised for years, and the Bills for orphan Works have been introduced to the U.S. congress several times. The dilemma of orphan works and abandon softwares also exists in the context of Chinese copyright system, and this phenomena may be more widespread because the history of Chinese copyright law in the recent 100 years are inconsistent, unsteady and intermittent. Furthermore, the current Chinese copyright system is of not mature enough. It not merely lacks solutions for  the orphan work problem, but also exists unreasonable provisions that may worsen it. Four factor should be considered when one is about to solve the problem: (1) comply with the three-step test; (2) based on existing legal system of the country; (3) minimize the cost of both right owners and users; (4) guarantee the predictability of the benifits and the obligations. Based on these four premises, this article critically reviewed the solutions in the U.S., Canada and Japan,  and then proposed a set of multi-method and integrated suggestion that suit to the features of Chinese copyright regime.

Keywords:
orphan Work, statutory license, compulsory license, authorship, public domain

The paper (in Chinese, 21,000 words) has been accomplished in Nov. 2006, and it is continuously updating before the formal publication. If you need it, please conatct the author (donnie [at] blawgdog.com)