Pro­fes­sor Dr. Zhou Lin (Peking), The Amend­ment of the PRC Copy­right Law

The Amend­ment of the PRC Copy­right Law

Zeit: Frei­tag, 21. Sep­tem­ber 2001, 9.00 Uhr
Ort: Audi­to­rium Maxi­mum

The Amend­ment of the PRC Copy­right Law

Pro­fes­sor Zhou Lin

The „Copy­right Law of the People’s Repu­blic of China“ having been enac­ted in 1991, it was not until 1998 that it was put on the amend­ment agenda of the Law Com­mit­tee of the Natio­nal People’s Con­gress (the Chi­nese Par­lia­ment and Natio­nal Legis­la­tive Body). Because of dis­pu­tes on cer­tain pro­vi­si­ons at that time, howe­ver, the respec­tive amend­ment was with­drawn.

Yet, in view of China’s anti­ci­pa­ted acces­sion to the WTO an amend­ment to the PRC Copy­right Law was again put on the agenda of the People’s Con­gress. As far as the Draft Copy­right Law Amend­ment Bill is con­cer­ned, three major amend­ments are envi­sa­ged:

1. Several “new rights” will be added in order to remedy short­co­m­ings and to meet pro­blems ari­sing out of the deve­lop­ment of new tech­no­logy

Copy­right has its ori­gin in a time when repro­du­cing tech­no­logy was first deve­lo­ped. In this respect, the move­able clay type prin­ting was one of the four great inven­ti­ons in Anci­ent China because along with increa­sing prin­ting capa­city the notion of copy­right evol­ved. A stamp was found on the back cover of a book of about 1190 to 1194 indi­ca­ting that „This book was publis­hed by the Chen Family of Meis­han, repro­duc­tion without per­mis­sion is for­bid­den“. The text and effect of the stamp are rather simi­lar to the modern copy­right notice – all rights reser­ved. Thus, it is bey­ond doubt that alre­ady about 800 years ago there were some defi­nite noti­ons of the idea of copy­right and intel­lec­tual pro­perty in China.

In the wake of the rapid deve­lop­ment of new tech­no­logy repro­duc­tion and dis­tri­bu­tion of works are beco­m­ing easier and more con­ve­ni­ent. In view of these deve­lop­ments, WIPO has adop­ted two new trea­ties since 1996 – WCT and WPPT. Fur­ther­more, the WTO TRIPS agree­ment had exten­si­vely been dis­cus­sed among its mem­bers before a final ver­sion has been adop­ted. All these trea­ties and agree­ments con­tain pro­vi­si­ons regu­la­ting new issues rai­sed by new tech­no­logy which are now reflec­ted in and taken into account by the amen­ded PRC Copy­right Law:

An express refe­rence to the right of „digi­tal con­ver­sion“ is added to the defi­ni­tion of „repro­duc­tion“.

The “Right of Rent” is added as an inde­pen­dent cate­gory. This right refers to licen­sing for tem­porary use of com­pu­ter soft­ware pro­grams, cine­ma­to­gra­phic works and works embo­died in pho­no­grams. Only the owners of the above rights enjoy the exclu­sive right of aut­ho­ri­zing the com­mer­cial ren­tal of their works to the public. At pre­sent, there are a lot of ren­tal shops for audio-visual pro­ducts in many cities in China ren­ting out discs and tapes without aut­ho­riza­t­ion from the aut­hors of the works. If the right of rent is added to the PRC Copy­right Law, busi­nes­ses and ren­tal shops will be under an obli­ga­tion to pay the rights­hol­der for a licence; if they fail to do so, the ren­tal will be regar­ded as an infrin­ge­ment of the copy­right owners‘ rights and con­side­red ille­gal.

A “Com­pi­led Works” clause is added to the PRC Copy­right Law. Under the revi­sion, com­pi­led works shall mean the crea­tive selec­tion or arran­ge­ment of other aut­hors’ works, frag­ments of works or other data or mate­ri­als not for­ming a work. The copy­right of such works shall belong to the com­pi­ler. This pro­tec­tion does not extend to the data or the mate­rial its­elf and app­lies without pre­ju­dice to any copy­right sub­sis­ting in the data or mate­rial con­tai­ned in the com­pi­la­tion.

The „Right of Com­mu­ni­ca­tion to the Public“ is also added. This right means that aut­hors of literary and arti­s­tic work shall enjoy the exclu­sive right of aut­ho­ri­zing any and all com­mu­ni­ca­tion to the public of their works, by wire or wire­less means, inclu­ding the making avail­able to the public of their works in such a way that mem­bers of the public may access these works from a place and at a time indi­vi­dually cho­sen by them.

The pro­tec­tion of “Copy­right Manage­ment Infor­ma­tion” and the pro­tec­tion of “Tech­no­lo­gi­cal Mea­su­res” is inclu­ded. “Copy­right Manage­ment Infor­ma­tion” means infor­ma­tion which iden­ti­fies the work, the aut­hor of the work, the owner of any right in the work, or infor­ma­tion about the terms and con­di­ti­ons regar­ding use of the work, and any num­bers or codes that repre­sent such infor­ma­tion, when any of these items of infor­ma­tion is atta­ched to a copy of a work or appears in con­nec­tion with the com­mu­ni­ca­tion of a work to the public. Accord­ing to the Draft Copy­right Law Amend­ment Bill, nobody is allo­wed to remove or alter any elec­tro­nic rights manage­ment infor­ma­tion without aut­ho­riza­t­ion. The pro­tec­tion of tech­no­lo­gi­cal mea­su­res means legal pro­tec­tion and legal reme­dies against the cir­cum­ven­tion of effec­tive tech­no­lo­gi­cal mea­su­res that are used by aut­hors in con­nec­tion with the exer­cise of their rights.

1. Arti­cle 43 of the exis­ting Copy­right Law will be amen­ded so as to recognise and allow for Collec­tive Admi­nis­tra­tion

Under the cur­rent PRC Copy­right Law Arti­cle 43 reads as fol­lows: „A radio or tele­vi­sion sta­tion, for broad­cas­ting publis­hed sound record­ings for non-commercial pur­po­ses, need not obtain per­mis­sion from, nor pay remu­n­e­ra­tion to, the copy­right owners, the per­for­mers, or the pro­du­cers of the sound record­ings.“ This arti­cle, has in in prac­tice had deplo­r­able effects which can be seen from sto­ries such as the fol­lo­wing where the rami­fi­ca­ti­ons of such legis­la­tion are evi­dent.

The famous and popu­lar song „Fields of Hope“, which descri­bes the hap­pi­ness and joy of the people, was crea­ted by the young and talen­ted com­po­ser Shi Guangnan for the pay­ment of only RMB 30 Yuan (less than 10 DM). He had crea­ted the song for almost no return. Mr. Shi died at the age of about 40 lea­ving a large collec­tion of songs and music behind as well as a score from a Chi­nese opera with the title Qu Yuan. Howe­ver, since his widow and young daugh­ter did not have enough money to have the opera sta­ged, they had to ask for help to sup­port the per­for­mance.

Inter alia, in view of this case the above-cited arti­cle invo­ked serious cri­ti­cism by many aut­hors. It was not in accor­dance with inter­na­tio­nal rules and did not take account of the real situa­tion in China. Con­se­quently, the word­ing will be be chan­ged as fol­lows „A radio or tele­vi­sion sta­tion, for broad­cas­ting publis­hed sound record­ings, need not obtain per­mis­sion from, but shall pay remu­n­e­ra­tion to the copy­right owners of the sound record­ings.“

Copy­right collec­tive admi­nis­tra­tion is a very effec­tive mea­sure in the pro­tec­tion of copy­rights world­wide. 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;

(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 admi­nis­trate other rights per­mit­ted by laws , regu­la­ti­ons or the Copy­right Admi­nis­tra­tion of the State Coun­cil.

A copy­right collec­tive admi­nis­tra­tion may under­take its busi­ness and bring any law­suit in its name. A copy­right collec­tive admi­nis­tra­tion that signed bila­te­ral trea­ties or mul­ti­la­te­ral trea­ties with simi­lar for­eign or inter­na­tio­nal socie­ties has rights to under­take the busi­ness and bring any law­suit repre­sen­ting said socie­ties.

1. “Inte­rim Injunc­tion” and “Sta­tu­tory Damages” and will be pro­vi­ded for

Inte­rim Injunc­tion” means that if a copy­right owner or the owner of rela­ting rights can prove that others are com­mit­ting or will com­mit acts of infrin­ge­ment against their rights and they shall suf­fer los­ses which can­not be com­pen­sa­ted if these acts are not stop­ped instantly, they may apply to the court to order the alle­ged infrin­ger to stop such acts and to take pro­perty pre­ser­va­tion mea­su­res, before a law suit is filed. This arti­cle can be used by the right owners to stop the infrin­ge­ment in time.

In case there is no way to cal­cu­late the amount of the los­ses of the copy­right owner or the amount of the ille­gal gains of the infrin­ger, the court may make a deci­sion on the amount of damages for the infrin­ge­ment based on the nature, impact and the cir­cum­stan­ces of the infrin­ge­ment wit­hin a cer­tain range pro­vi­ded by law. The range is fixed at RMB 5,000 to RMB 50,000. It is the first time that Chi­nese intel­lec­tual pro­perty law will con­tain a “sta­tu­tory damages” clause – a sign of great pro­gress in the realm of intel­lec­tual pro­perty pro­tec­tion.

Zhou Lin is asso­ciate pro­fes­sor of the Law Insti­tute of Chi­nese Aca­demy of Social Sci­en­ces.