From December 14th to December 20th, 2009, seven new Chinese entries have been posted to the Blawgdog. Here are the brief one-sentence abstracts for the English readers’ reference:

• Top Ten 2009 Copyright News in China
  Chosen by the China Copyright Journal. I added the referral links to those news that had been commented at blawgdog.
• It’s Wrong not because of Burdening the Duty of Carefulness, but because of Providing Joint Liability
  Some Beijing academicians oppose Article 36 of the drafting China’s Tort Law Bill by saying it should not burdens the ISPs the duty of carefulness. I clarified in this essay that the key problem of Article 36 is wrongfully providing a joint liability to the ISPs. 
• Turning Exemption Provisions to the Criterion of Liability
  This article is also about Article 36 of the drafting China’s Tort Law Bill. I noted that, in the legal transplantation in recent years in China, the exemption provisions in foreign legislations are often (intentionally or mistakenly) shifted to be the criteria of liability. For example, Sec. 230 of the CDA in US is an exemption arrangement, while Article 36 is a criterion of liability; another example can be the safe harbour to the ISPs in the DMCA (on the so-called red flag test) was wrongfully transplanted to be a criterion of liability.
• Xinhua News Agency: China will not Resolve the un-recorded Domain Names
  This entry has been translated into English at here.
• I See the Historical Day
  This post mentioned the latest news: the Ministry of Industry and Information is proposing that the foreign enterprises “must register domain names from Chinese registrars if the names are used for business in China. The domain names oversea registered shall not be used in the businesses toward China.” And admitted the state will “supervise the domain names that launches the website oversea, and take measures to control the foreign name registrars”.
• Reprint: Two Articles by Mr Youxi Chen
  Chen is a lawyer, and the vice Chair of the Committee of the Constitutional Law and Human Rights in China Bar Association. He published two articles at his website blaming the newspaper misleading the mass in reporting the news that lawyers are arrested in ChongQin. He argues that the Chinese lawyers are in very hard social environment now.
• China IP Weekly Newsletter
  Writen and edited by Luckie Hong, a co-author of BlawgDog, reporting the latest news in IP Law. This issue includes SNDA Literature (NASDAQ: SNDA’s subcompany) annouced suing Baidu for over one million in infingement of copyright, and the new development of Netac v. Sony, and other 7 latest news.

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?

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.