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 Because of disputes on certain provisions at that time, however, the respective amendment was withdrawn.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:
- 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.
- 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.
- “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.