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.