Do we know if there are even copyright infringement laws in the P.R.C.?
Have a read through this,it may clear things up as far as your question goes.............
INTERNET COPYRIGHT PROTECTION IN CHINA
1. Legislative Structure in China
China follows a socialist continental legal system. The Constitution, statutes and regulations serve as the sole legal authorities in China. The Constitution, which was promulgated by the NPC in 1982, is the foundation of the Chinese legal system13. Along with the progress of economic reform14, numerous laws, regulations and decisions have been made by legislative and administrative organs. Currently, in the run-up to its entry into the WTO, China is introducing new legislation and also amending some existing legislation to eliminate perceived conflicts with international conventions or agreements15.
2. Legislative Hierarchy in China
The National People's Congress (thereafter "the NPC"), together with its Standing Committee, is the highest organ of the state's power16. It has the sole power to amend the Constitution and enact and amend basic laws17.
The Standing Committee18 may enact and amend all laws except those only enacted by the NPC19. The current Copyright Law was enacted by the Standing Committee20.
The State Council may enact administrative regulations (xingzheng fagui) in accordance with the Constitution and laws21. Since the Copyright Law was promulgated, several regulations in the area of copyright protection have been issued by the State Council22. In addition, the Constitution provides that the ministries and local governments may enact regulations within the sphere of their authorities23.
3. Judicial System in China
Under the Constitution, the People's Courts are the judicial organs of the nation24. The adjudicative power is exercised by the courts at four levels: the basic People's Court, intermediate People's Court, higher People's Court and the Supreme People's Court. There are also military court and other special courts25.
The People's Courts are composed of several divisions (shenpan ting), including criminal, civil, economic and administrative divisions, which hear the corresponding cases26. In the level of Intermediate People's Court, a specialized intellectual property division will try copyright infringement cases27. The Higher People's Court will hear copyright infringement cases on appeal28.
The Supreme People's Court is mainly responsible for supervising the administration of justice by Local People's Courts at various levels and special courts29. It may interpret the statutes in accordance with the Constitution30. Its interpretation has legal authority for the Local People's Courts.
G. Copyright Protection in China: In General
After the establishment of People's Republic of China, China had no statutory copyright law until 1990 when the long-awaited copyright law was promulgated by the Standing Committee of the NPC and became effective in June 199131. Currently, legal authority for copyright protection in China can be found in three sources: the Constitution and basic laws, the 1990 Copyright Law and related regulations, and international conventions and agreements.
1. Copyright protection in the Constitution and other basic laws
The word "Copyright" does not appear in the Constitution. The Central government then was reluctant to give copyright express protection at that time. Such ambiguity was probably owing to the fact that "private property" was an alien concept to socialist China in 198232. Therefore, scholars usually rely on Articles 13, 20 and 47 as some constitutional authority regarding copyright protection33.
The reluctance reflected in the Constitution no longer exists in the General Principles of Civil Law (thereafter "the GPCL")34. Article 94 of the GPCL provides that Chinese citizens and legal entities are entitled to copyrights and related rights35. In addition, the amended Criminal Law provides that in the case of serious copyright infringement, infringers may be subject to criminal penalties36.
2. Copyright protection by the 1990 Copyright Law and related laws
Just a couple of days before the Copyright Law became effective, the State Council promulgated the Implementing Regulation of the Copyright Law in which many detailed provisions were included to interpret the Copyright Law and try to align it with international conventions37. The Copyright Law and the Implementing Regulation became the main legal authority of protecting copyrights, although they are criticized as having many shortcomings38.
a. Overview of the Copyright Law and the Implementing Regulation
The Copyright Law does not provide a straightforward definition of "Copyright"39. Its objective is provided in Article 1. The Copyright Law contains 56 articles, which are divided into six chapters40. The Implementing Regulation itself contains seven chapters and fifty-six articles41.
b. The Subject Matter of the Copyright Law
The works protected under the Copyright Law must be original and capable of being reproduced in a tangible form42. Article 3 of the Copyright Law provides a list of copyrightable works which essentially match the subject matter of the Berne Convention43. The Copyright Law protects literary works, oral works, musical, dramatic and choreographic works, works of fine art, phonographic works, cinematographic works, television and video works, engineering and product designs and their descriptions, maps, sketches, and other graphic works, computer software and other works as provided for in laws and administrative regulations44. Illegitimate works, which are banned from being published and distributed, are not entitled to protection under the Copyright Law45.
c. The Rights of Copyright Owners
Copyright owners include authors, other citizens, legal entities, and entities without legal personalities. They enjoy both moral rights46 and economic rights47.
(1) Moral rights
The Copyright Law provides four kinds of moral rights: the right of publication48, the right of authorship49, the right of alteration50 and the right of integrity51.
(2) Economic rights
The Copyright Law granted two kinds of economic rights to copyright owners: the right of exploitation52 and right of remuneration53.
d. Ownership of Copyright works
As a general matter, the copyrights in a work belong to the author54. People acquire copyright when the work is created55. The Copyright Law provides special provisions in the case of adaptation, translation, annotation and compilation, joint work and work for hire56.
e. Limitations on copyright
The Copyright Law provides certain limitations on the rights of copyright owner57, which are similar as "fair use" provision in the 1976 U.S. Copyright Act58.
3. Copyright Protection by International Conventions or Bilateral Agreements
In January 1992, China and the United States signed a Memorandum of Understanding on Copyright Protection (thereafter "the MOU1")59. As required by the MOU1, China acceded to the Berne Convention and Universal Copyright Convention60. In 1995, in order to strengthen copyright enforcement in China, China and the U.S. signed another Memorandum of Understanding (MOU2)61. To coordinate these bilateral agreement and international conventions, China issued the International Copyright Treaties Implementation Rules (thereafter the ICT)62. The ICT extends protection to "unpublished" works of foreign authors. At the same year, Chinese government promulgated special regulation to protect computer software63. Thereafter, China enacted a couple of other provisions to bring China's law in compliance with the two MOUs and the international conventions64. These copyright treaties and provisions significantly strengthened the protection of foreign copyright owners in China65. With the promulgation of these treaties and provisions, China's copyright protection system substantially meets international standards66. Currently, in order to be a member of the WTO, China is revising its copyright laws to comply with the TRIPS67.
4. The Enforcement of Copyright Protection
According to the Copyright Law and the Implementing Regulation, there are two types of enforcement for a copyright holder: administrative enforcement and legal enforcement.
a. Administrative Enforcement68
The National Copyright Administration (thereafter "the NCA") is the copyright administration department under the State Council and is responsible for the nationwide administration of copyright69. The provinces, autonomous regions, and municipalities set up copyright administration offices70. As a general rule, the administrative agencies are granted the quasi-judicial power71. The main duties of the NCA are to keep the order of copyright protection, to settle dispute, to investigate and prosecute copyright infringement cases72. Administrative enforcement has proven quicker, cheaper, and generally more effective than judicial enforcement73. Besides the NAC, the General Administration of Customs (thereafter "the GAC") is authorized to protect copyright against imported or exported goods infringing copyrights74.
b. Judicial Enforcement
The first instance of copyright infringement case is tried by the intellectual property trial division at the level of the Intermediate People's Court75. In the majority of cases, decisions by administrative bodies are reviewable by the courts. Besides civil sanction, the courts could potentially impose criminal penalties upon infringers76. Judicial enforcement is better than administrative enforcement in terms of the general applicability of the law77. Another advantage judicial enforcement enjoys over administrative enforcement is that the court may award damages to the victim, which are not available in the case of administrative actions78. However, the judicial enforcement has long been criticized as ineffective because of inexperienced judges, limited resources and understaffered situation79. Since it is often uncertain exactly how administrative proceedings will operate in China, more and more foreign companies begin to seek judicial enforcement80.
5. Remedies and Liabilities for Copyright Infringement
a. Remedy by parties themselves--Mediation and Arbitration
According to the Copyright Law, victims of copyright infringement may seek the assistance of mediation to resolve the dispute81. If this is unsuccessful or if one of the parties fails to carry out the agreement, judicial proceeding will be available. Arbitration is another way of dealing with copyright dispute82. An arbitration award is enforceable by the courts. However, if the award is set aside or the court refuses to enforce it, the parties are entitled to resort to litigation83.
b. Remedies available by enforcement institutions
Under the Copyright Law and the Implementing Regulation, civil remedies, civil sanctions, criminal penalties and administrative penalties are available to the victim of copyright infringement.
(1) Civil Remedies
Civil remedies include public apology, cessation of infringement, removal of obstacles, elimination of effect of acts, compensations for damages or subject to a fine84. For those who fail to fulfill their contractual obligations, civil remedies shall be those included in the GPCL85. These remedies may be applied exclusively or concurrently86.
(2) Civil Sanctions
In accordance with the GPCL, a court may, in addition to applying civil remedies, serve civil sanctions against copyright infringers. Of these measures of civil sanction, confiscation of the infringing copies and imposition of a fine are the most frequently used in copyright infringement cases87.
(3) Criminal Penalties
The amended Criminal Law provides crimes of intellectual property infringement88.
(4) Administrative remedies
The Implementing Regulations of the Copyright Law provides administrative liabilities against copyright infringers89.
H. Copyright Protection in Cyberspace
1. The Internet in China Today
The Internet has become popular in China recently. It grows at an extraordinary rate at this biggest developing and the most populated country. A Chinese web site reported that China's Internet population and its infrastruture capacity will double each year90. It has been estimated that in a few years, the Internet population in China will become the largest one in the world91. Apart from the increase in the number of users, the nature of Internet usage has greatly broadened92. People use the Internet not only for collecting information, but also for advertising commercial information, shopping and doing academic research93. Along with the rapid development of the Internet in China, huge commercial opportunities become available to the world.
While the Internet has generally been hailed as a turning point in economic development and a breakthrough in communication, Chinese government has found itself confronting a dilemma in dealing with this advanced technology: potential benefits the Internet will provide and its negative impacts on Chinese legal and politic system94. As far as the legal environment is concerned, Chinese Internet entrepreneurs and foreign investors are faced with a heavy set of regulations95, which are often vague, confusing, and inconsistent96. Many uncertainties and questions are still waiting for resolution97.
b. The Main Authorities Managing the Internet in China98
Systematic management of the Internet in China did not really commence until 199699. Current regulations on the Internet can be found at several web sites100. The main authorities issuing regulations include the Ministry of Information Industry (the MII), the Ministry of Electronic Industry (the MEI), the Ministry of Radio-Film-Television (the MRFT) and the Ministry of Public Security (the MPS)101.
2. Legislation of Copyright Protection in Cybespace
China has not yet promulgated new copyright law or amended the Copyright Law or regulations to protect copyright over the Internet, even though officers have said that online copyright should receive the same protection as other ones as early as 1999102. Presently, the Copyright Law and related regulations are still the controlling laws for the People's Courts to deal with copyright infringement on the Internet103. When confronting the Internet copyright infringement cases, the People's Courts always interpret the existing laws in a very constructive way and give them new meanings104. Facing the challenges from the high technology, it should be said that Chinese judges did a great job in extending copyright protection to the new technology and remedying lagging-behind legislation.
With more and more online copyright disputes and the rapid development of the Internet at cities other than Beijing and Shanghai105, the Supreme People's Court issued the Interpretation of the Supreme People's Court on Laws For Trying Cases Involving Internet Copyright Disputes (the Interpretation) on December 20, 2000, which became effective one day later106. The Interpretation clarifies copyright issues involved in Internet cases that have not been specifically addressed by the Copyright Law or other laws. The Supreme People's Court said the Interpretation aims at guaranteeing the uniformity of court decisions across China in cases of online copyright infringement107. Since there is only a couple of months from the effective date of the Interpretation, it is hard to tell how effective it may be in solving online copyright dispute. One thing is certain that the Interpretation will be the main legal authority for the People's Courts to deal with online copyright disputes before an amended or new copyright law is promulgated.
a. The Interpretation explicitly provides that the People's Courts have jurisdictions over Internet copyright infringement cases.
Article 1 of the Interpretation provides that online copyright infringement cases are subject to the jurisdiction of the court in the place where the infringement occurs or where the defendant resides108.
b. The Interpretation specifically provides that works protected by the Copyright Law include digital forms of the protected works.
Article 2 of the Interpretation provides that works under the Copyright Law include the digital form of all works and all digital forms of protected works should be protected under Article 10 of the Copyright Law109. Any works, if not be included in Article 3 of the Copyright Law but original in literature, science and arts areas and can be duplicated in tangible, should be protected under the Copyright Law.
c. The Interpretation addresses the issue of when the use of protected works on web site will constitute infringement.
Article 3 of the Interpretation provides that an Internet Access Provider ("IAP") can transmit works which have been published on web site or in other forms except those explicitly indicated otherwise. Transmission beyond the scope will constitute infringement110.
d. The Interpretation also contains very detailed rules on when an Internet Access Provider will be regarded as taking part in infringing activities and when copyright holders can have cause of action.
If an IAP infringes, instigates or helps other people to infringe online copyright, they will be liable under Article 130 of the GPCL. If having knowledge of infringement by its subscribers and warned by the copyright holders about the infringement, the IAP will be jointly liable with the subscribers under Article 130 of the GPCL if it did not take actions in removing infringement111.
e. The Interpretation also addresses the amount of compensation to be awarded where there is infringement.
Article 10 of the Interpretation provides that the amount of compensation to the victim should be direct economic losses plus anticipated profits, or profits acquired by the infringers. The maximum amount of compensation is 500,000 RMB (approximately $36, 250)112.
2. Online Copyright Infringement Cases Reported by the People's Court113
The first Internet copyright infringement case the People's Court tried occurred as early as 1998. Since then, more than 20 Internet copyright infringement cases have been tried by the People's Courts at all levels114. This paper will summarize some important cases to illustrate the judicial perspectives on Internet copyright infringement.
a. Meng Wang, et al v. Century Internet Communication Technology Co115.
The plaintiffs are 6 famous writers. The defendant was one of China's earliest IAPs. The defendant created a novel section on its web site from which subscribers can read many novels, including some authored by the plaintiffs. The plaintiffs sued the defendant for displaying their works on web site without their authorization, therefore, infringing their copyrights. The defendant asserted that no provision in the Copyright Law or other related regulations provides that dissemination of other's works over the Internet needs prior consent from authors or pay remuneration to authors. The court held that the defendant's conduct was covered by Article 10 of the Copyright Law. The court considered the language in the article and determined that the section 5 of Article 10 did not exhaust all ways of exploiting works. The language "the like" implies other ways of exploiting works which the Standing Committee of the NPC could not anticipate when it promulgated the Copyright Law. Although disseminating works over the Internet is somewhat different from the traditional dissemination described in the section 5, it is still a means of disseminating works. The difference in ways of disseminating works should not affect the copyright holder's right of exploitation under the section 5 of Article 10. Therefore, the court concluded that the defendant infringed the plaintiffs' right of disseminating works and the right of remuneration. The defendant appealed the court's judgment but the appeals court affirmed it.
The Meng Wang et al case is the first intellectual property case in which the People's Court creatively interpreted the law on its own initiative. The court's judgment caused a wide discussion among Chinese scholars. Legal enforcement authorities began to pay attention to the case of online copyright infringement.
b. China Economic Information Publishing House v. China Science and Technology Information Institute116
The plaintiff was a subset of a government-owned news agency ("Xinhua Agency"). It was authorized to engage in the commercial collection, distribution and sale of economic information that is authored by Xinhua Agency. The defendant was an entity without legal personalities117. The defendant had contracted with Beijing Hongxun Information Consultation Center (Hongxun Center), who would provide some economic information to the defendant and receive fees from the defendant. From January 1st of 1999 to January 1st of 2000, the defendant uploaded some 48 categories of economic information they received from Hongxun Center to its web site. Among those information, 16 categories of them were identical to those owned by the plaintiff. The plaintiff sued the defendant for copyright infringement. The defendant's argument can be summarized as two points: first, information is not works covered by the Copyright Law; second, even if the plaintiff owned the copyright on the information, the defendant had no fault in infringing the plaintiff's copyright. The court held that those information was edited by the plaintiff. The conduct of editing itself represented sufficient creative effort required by the Copyright Law. Therefore, the information is the work covered by the Copyright Law. Owner of the information enjoys copyright protection. Since the defendant did not check up the ownership of copyright, its conduct is with fault. Therefore, the court concluded that the defendant infringed the plaintiff's right of exploitation and right of remuneration118.
One important feature of this case is that when the People's Courts are dealing with online copyright infringement cases, they prefer to interpret relevant concepts in the Copyright Law, like "editing" in this case, to favor the owner of copyright. In addition, the People's Court put a less strict requirement on the defendant's fault.
c. Ruide Group v. Yibing Dongfang Information Service Co119.
In February 1998, the plaintiff began to update its web site which it created two years ago. The plaintiff added some new functions, like search engine, to its web site. In December 1998, the plaintiff found that a web site, owned by the defendant, an information trade company located in Yibing, Sichuan Province, had identical or resembling functions and pictorial signs as those in the plaintiff's web site. The plaintiff brought the suit at Beijing, the residence of the plaintiff. The defendant argued that, first, the court in Beijing did not have jurisdiction; second, the plaintiff was not able to substantiate that the web site concerned belonged to the defendant. The court held that in the case of copying materials from web site, the conduct of copying must occur on the plaintiff's computer, which, in this case, located in Beijing. The court at Beijing should have the jurisdiction. In addition, since the defendant did not prove that there was another company which had the same telephone number, fax number and location as that on the web site. Therefore, the defendant did not sustain its burden of proof on its second argument. The court concluded that since special arrangement on the plaintiff's web site was the work covered by the copyright law, the defendant infringed the plaintiff's right of integrity, right of exploitation and the right of remuneration.
This case indicates that while the court continues to favor the copyright owner by interpreting the concepts in the Copyright Law, a significant portion of the burden of proof is also shifted to the defendant. The plaintiff has already met the burden of proof if it told the court that its copyright is infringed by a web site. The defendant will not meet the burden if it can not prove that the web site concerned is owned by others. The shift of burden of proof makes it very difficult for the defendant to defend itself.
d. Weihua Chen v. Chengdu Computer Business Daily and Xiaohui Zhang v. China Procuratorate Daily120
These two cases have similar facts: the plaintiffs sued the defendants for infringing their copyrights because the defendant reproduced the plaintiffs' works from the web sites and published them on the newspapers. Both defendants argued that they prepared to pay the work's author but just did not know who the author is. They argued that since the plaintiffs could not prove their authorship, they did not infringe the plaintiff's copyright. The court held that since the plaintiffs were in control of the web site access, they should be assumed to be the true authors of the articles unless the defendants can provide reasonable evidence to the contrary121. The second case later was settled between the parties. The court ruled in the first case that the defendant's conduct did infringe the plaintiff's right of exploitation and right of remuneration.
Strictly speaking, these two cases are not online copyright infringement. The courts in these two cases stick to strict liability which gives the plaintiff more protection than that in regular copyright infringement case. In addition, the plaintiff's burden of proof is only to prove that he has access to the web site.
3. Summary
Presently, Internet copyright protection enforcement occurs only in the People's Courts. When there is an online copyright dispute, the court preferred to hear the case. Facing the dilemma that there are no applicable provisions in statute, the court always acts in the spirit of law and according to basic principle of Chinese civil law. Nevertheless, in a civil law country, the judge's enthusiasm can not last long without legislative backup. The Internet copyright protection must be tackled through the joint efforts of legislature, judicial authority and the jurisprudence circle122.
