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.