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					Copyright System in China and Comparison with US System
Dr. Lulin GAO East IP
John Marshall Law School Chicago, US September 1-5, 2008
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Copyright Law in China and Comparison with US System

Summary of Contents
  

Evolution of Chinese Copyright Law Legal Framework of Chinese Copyright Law

Major Content (including 2001 amendment) of Chinese Copyright Law
Difference in Several Aspects with US System

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Copyright Law in China and Comparison with US System

Evolution of Chinese Copyright Law

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Copyright Law in China and Comparison with US System

Evolution of Chinese Copyright Law (1)


The first Chinese Copyright Law by Qing Dynasty in 1910, not implemented before its collapse  In 1928, Kuomintang government issued Copyright Law, abolished in 1949  1949-1978, no copyright protection in China
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Copyright Law in China and Comparison with US System

Evolution of Chinese Copyright Law (2)


In 1986, the General Principles of the Civil Law of the PRC: Copyright Protection



In 1990, the first Copyright Law by the PRC (new China)
In 1992 China accede Berne Convention and Universal Copyright Convention
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

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Copyright Law in China and Comparison with US System

Evolution of Chinese Copyright Law (3)
  

In 2001, China accede the TRIPS Agreement In 2001, China amended its Copyright Law On December 29, the Standing Committee of the People’s Congress of China made a decision to accede the WCT and WPPT China has Submitted the instruments for accession to WCT and WPPT March 6, 2007. WCT and WPPT took effect in China 9, 2007
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

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Copyright Law in China and Comparison with US System

Framework of Chinese Copyright Law

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Copyright Law in China and Comparison with US System

Framework of Chinese Copyright Law
 Laws

by People’s Congress

 Administrative

Regulations by the State Council and Copyright Administration Interpretations by the Supreme Treaties
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 Judicial

Court;
 International
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Copyright Law in China and Comparison with US System

Laws by People’s Congress


General Principles of Civil Law Promulgated in 1986
Copyright Law of the People's Republic of China promulgated in 1990 Copyright Law of the People's Republic of China amended in 2001
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

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Copyright Law in China and Comparison with US System

Administrative Regulations(1)
1.Regulation on the implementation of the Copyright Law of the People’s Republic of China (2002) 2. Regulations on the Protection of the Computer Software Copyright (2001) 3. Measures for the Registration of Computer Software Copyright (2002) 4. Measures for the Administrative Protection of Internet Copyright (2005)
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Copyright Law in China and Comparison with US System

Administrative Regulations(2)
5. Rules for the Implementation of Copyright Administrative Punishment (2003) 6. Regulation on the Collective Administration of Copyright (2004) 7. The Regulations on the Implementation of International Copyright Treaties (1992) 8. Regulations on the Protection of the Right of Communication through Information Network (draft, not promulgated, September 8, 2005)
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Copyright Law in China and Comparison with US System

Judicial Interpretations by Supreme Court
1.

Interpretations Concerning the Application of Laws in the Trial of Civil Disputes over Copyright (2002) Interpretations on Several Issues concerning the Application of Law in the Trial of Cases in Relation to Copyright Disputes over Computer Network (2000, amended in 2003);

2.

3 The Interpretation of Some Issues Concerning the Concrete Application of Laws in the Handling of Criminal Cases of Infringing Intellectual Property Rights (by the Supreme People's Court and the Supreme People's Procuratorate (1),2004, and (2), 2007
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Copyright Law in China and Comparison with US System

International Treaties
  

  

1. Berne Convention for the Protection of Literary and Artistic Works; (1992) 2. Universal Copyright Convention; (1992) 3. Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms; (1993) 4.Agreement on Trade-related Aspects of Intellectual Property Rights (2001) 5. WIPO Copyright Treaty; 6. WIPO Performances and Phonograms Treaty
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Copyright Law in China and Comparison with US System

Main Content (including 2001 amendment) of Chinese Copyright Law

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Copyright Law in China and Comparison with US System

Scope of Copyrightable Works Increased (1)


written works;  oral works;  musical, dramatic, quyi, dance and choreographic and acrobatics works;  artistic and architectural works;  photographic works;  cinematographic and audio-visual works
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Copyright Law in China and Comparison with US System

Scope of Copyrightable Works Increased (2)


graphic works and models related to engineering designs, product designs, maps; computer software;
other works specified by laws and regulations


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Copyright Law in China and Comparison with US System

Scope of Copyrightable Works Increased (3)
1) Acrobatic works,which are
important for China

2) Architectural works which are of
aesthetical significance

3) Models
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Copyright Law in China and Comparison with US System

Exclusive Rights Retained by Copyright Owners (1)
 Right
 Right  Right  Right

of publication;
of authorship; of alternation; to integrity of the work;

 Right
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of reproduction;
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Copyright Law in China and Comparison with US System

Exclusive Rights Retained by Copyright Owners (2)
  

Right of distribution; Right of lease; Right of exhibition;




Right of performance;
Right of show;



Right of broadcast;
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Copyright Law in China and Comparison with US System

Exclusive Rights Retained by Copyright Owners (3)


Right of information network dissemination; Right of production; Right of adaptation; Right of translation; Right of compilation;

   



Other rights
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Copyright Law in China and Comparison with US System

Exclusive Rights Retained by Copyright Owners (4)
 

Right of leasing
Right of show

Meet TRIPS requirement

to show, by virtue of such technical equipment as film or slide projector, a painting, photographic or cinematographic work or a work created by virtue of the analogous method of film production



Right of broadcast

in the form of cable dissemination or relay or by megaphone or other similar means for transmitting symbols, sounds or images



Right of distribution over an information network
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Meet the requirement of digital environment
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Copyright Law in China and Comparison with US System

More Measures for Copyright Protection in Digital Environment


Major Principles in the WCT and WPPT Incorporated Separate Administrative Regulations
Liability of ISPs




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Copyright Law in China and Comparison with US System

Major Principles in the WCT and WPPT Incorporated
 

Reproduction right extends to digital environment

Right of Communication through information network
Intentionally circumventing or destroying the technological measures Intentional deletion or alteration of the electronic right management information





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Copyright Law in China and Comparison with US System

Separate Administrative Regulations (1)


Article 58 authorizes the State Council to enact regulations for the protection of computer software and network

distribution rights


the Regulations on the Protection of Computer Software, in 1991, later replaced by 2001 version

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Copyright Law in China and Comparison with US System

Separate Administrative Regulations (2)


Measures for the Administrative Protection of Internet Copyright (2005) Regulations on the Protection of the Right of Communication through Information Network (draft, not promulgated, September 8, 2005)
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

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Copyright Law in China and Comparison with US System

Liability of ISP


Several Issues Concerning the Application of Law in Hearing Computer Network Copyright Dispute Cases issued by Supreme People’s Court of China
Joint and several liability

 

Safe Harbor: remove after receiving proper notice
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Copyright Law in China and Comparison with US System

Protection of Database



Compilation works
Originality in respect of selection and arrangement of their contents

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Copyright Law in China and Comparison with US System

Collective Management of Copyright
 Collective

management is important especially after the growth of Internet industry  Regulations on Collective Administration of Copyright effective on March 1st, 2005  Currently mainly in music industry
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Copyright Law in China and Comparison with US System

Re-enforcement of Administrative Action (1)


The Administrative Authorities: NCA and local Copyright Office Order the infringer to cease the infringing acts, ; Confiscate unlawful incomes Confiscate and destroy infringing reproductions Impose fines;

     

Confiscate the materials, tools, and equipment;
Hand the case to public security for criminal charge
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Copyright Law in China and Comparison with US System

Re-enforcement of Administrative Action (2)


In 2004, copyright administrations at all levels have accepted 9,691 cases and decided on 9,499 cases.  7,986 cases resulted in administrative penalty, 1,363 were mediated  101 were transferred to the public security authorities for further criminal charge.
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Copyright Law in China and Comparison with US System

Preliminary Measures
 Provisional
 Evidence  Property

injunction,

preservation

preservation

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Copyright Law in China and Comparison with US System

Comparison with US Copyright Law

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Copyright Law in China and Comparison with US System

Fixed in Tangible Medium(1)
 US:

original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device
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Copyright Law in China and Comparison with US System

Fixed in Tangible Medium (2)
 China:

the nature of originality and can be reproduced in a tangible form in the fields of literature, arts and sciences
works and acrobatic works are copyrightable in China
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 Oral

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Copyright Law in China and Comparison with US System

Different Specific Exclusive Rights in Copyright
 US

have less provision on moral rights;  China: Right of information network dissemination while US includes it in all traditional rights  US has a right of display  China: right of show and right of exhibition
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Copyright Law in China and Comparison with US System

Copyright Registration


China and US: prima facie evidence, Lawsuit be filed in court, registration is necessary for works of U. S. origin; If made before or within 5 years of publication, prima facie evidence; If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. For U. S. Customs Protection
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While US:
  



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Copyright Law in China and Comparison with US System

Enforcement Routes
 US

: Court procedure and customs protection;  China: Mainly administrative actions by Copyright Administration and Customs Authority Court procedure
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Copyright Law in China and Comparison with US System

US Practices
 US
 US  US

has the earliest and most developed Internet industry
has the most developed copyright law including DMCA has landmark cases: from Napster to Grokster
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Copyright Law in China and Comparison with US System

Chinese Practice
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Chinese courts has decided on some typical cases regarding Internet  in 1999: six writers case, digital reproduction be protected;  In 2000: Sohu case, liability of the search engine  In 2005, baidu.com MP3 case, still in the appeal;  In 2005: Flying Music Software P2P cases, not decided in the first instance.

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Copyright Law in China and Comparison with US System

Conclusion
 China

has short term of copyright protection;
system basically complies with International Treaties; copyright system needs to be further improved
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 Copyright  Chinese

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Copyright Law in China and Comparison with US System

Thanks!
lulin.gao@eastip.com www.eastip.com
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