Archive for the 'public domain' Category

What will happen when two utilitarian giants meet

This is the outline of my talk at Berkman Fellow’s Hour on 17 Nov. 2009. Needs improvement, just post for commentaries.


1. Copyright protection is justified in a utilitarian way in the US. Contrary to many people’s granted thought, my study find that although it is deeply affected by the Germeneric-japanese form of civil code system, China’s current copyright law is also based on utilitarian philosophy.


2. Pros and cons of the utilitarian justification to the copyright law, as well as some of cyberspace law.

Advantage: that’s the sourse of various thinking to the legal reform.
Disadvantage: when the understandings of “progress” (US Constitution Art. 8; China’s Constitution Art. 19, 20, 47, Copyright Law Art. 1) in different countries conflict with each other, conflicts of the law will be inrooted and hard to be coherent.


3. When the US is a giant but China is a dawf in the matters of either economy or civilization, US can impose its understanding of “progress” and the corresponding detailed copyright law to China, as it has been for many years. While if China becomes a giant also, what will happen? No matter how do people celebrate it or demonize it based upon different values/ideologies, the unique “socialist regime with Chinese characteristics” is an existence, and has developed a more and more complicated legal system.


4. The first formal head-on confrontation happened at the WTO dispute on the provision of denying copyright protection to the “illegal works” (either content-illegal or procedure-unlawful) in China’s copyright act.


5. There is a trend of the isolation of the Internet. The isolated and respectively utilitarianized legal system may enlarge the differences of copyright/information law among countris in future. (example (1) firewalled but flourishing Chinese “Intranet”; example (2) differentiated treatment to the books in the latest Google book settlement because of the needs to comply with the territorial copyright law).


6. What would be a uniform legal justification for the future reformed copyright law (or law on “creation in commons”)? Or, in what level, that justification is possiblly uniformed in such a utilitarian world?

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:


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).

What is the Public Domain?

When I am presenting my research today, I find I have to clarify the Public Domain for myself and others in brief and clear sentences. Here it is.

Basically, Public Domain means the Domain that is out of the Private Right. It has many definitions such as the strict legal definition, broader definition and the multi-discipline ones.

The Strict one, and it is a traditional one in the context of copyright law, is: A domain that any works falling Into it can be freely used by the public, and this domain should be able to logically derived from the regulation of copyright law.

The broader one is: A domain that contains anything that should not be controlled by the private owners, not just literary and music works, but also the facts, ideas, public owned lands and other properties and non-properties.

The multi-discipline ones are relevant to many aspects. For example: the public domain in the context of Jürgen Habermas’ political philosophy, the public goods in the sense of institutional economics, and others.

I had reviewed most of the relevant conceptions on this issue before and proposed my own definition either from the law or from the fact of the contemporary digitalized world. It is a combination of the de facto public domain and the de jure public domain. When I am doing legal interpretation, I will focus on the de jure public domain (It is mostly the strict legal one, but at the same time, the theories of the other definitions are included). When I am analyzing the reasons and obstacles of the legal reform, I will observe the de facto public domain. Then compare them, then look for the reasons why the de jure and the de facto has distinctions from each other.

\My version of Public Domain is of cource standing on the Giant’s shoulders, and at the same time focusing on my research theme of Copyright Reform and Social Development … not my dissertation, but a longer and bigger plan of my research in the future.