At the end of March, the National Copyright Administration published a draft for the upcoming revision of the Copyright Law. It also issued an accompanying explanation as to which changes were made in the Copyright Law and why. Mainly, these changes are to be found in consolidating the copyright law regime, by including a number of provisions which were present only in administrative regulations; bringing the law in line with the WIPO treaties to which China acceded in 2007; instituting new requirements on copyright-related contract registration; and expanding the role of collective copyright management organizations. Also, the draft provides a safe haven for technological network service providers.
I, The basic situation of our country’s copyright law
The basic framework of our country’s copyright legal system is composed of laws, administrative regulations, local regulations, departmental rules, local government rules, normative documents, judicial interpretation, as well as corresponding international treaties, etc. After 20 years of efforts, our country has shaped a relatively complete copyright law system. In this, the “Copyright Law of the People’s Republic of China” (hereafter simply named “Copyright Law” is the most important and most basic law in our country’s copyright legal system, and has a commanding function in standardizing copyright activities. According to corresponding provisions of the “Copyright Law”, the State Council has respectively formulated the “Regulations on the Implementation of International Copyright Treaties” (promulgated on 25 September 1992, took effect on 30 September 1992), the “Computer Software Protection Regulations” (promulgated on 20 December 2001, took effect on 1 January 2002), the “Implementation Regulations for the Copyright Law of the People’s Republic of China” (promulgated on 2 August 2002, took effect on 15 September 2002), the “Collective Copyright Management Regulations” (promulgated on 28 December 2004, implemented on 1 March 2005), the “Information Network Dissemination Right Protection Regulations” (promulgated on 18 May 2006, took effect on 1 July 206), the “”Provisional Radio and Television Station Broadcasting Audio Recording Remuneration Payment Rules” (promulgated on 11 November 2009, implemented on 1 January 2010). The above “one laws and six regulations” (meaning one Law, and six administrative regulations” is the basic content of our country’s copyright law system. Furthermore, provisions have been made in the “Criminal Law of the People’s Republic of China” concerning the question of criminal copyright infringement, the State Council administrative copyright management department has formulated 9 administrative regulations and 44 normative documents, corresponding judicial departments interpreting the “Copyright Law” have formulated 6 judicial interpretations or guiding opinions on concrete application questions in civil and criminal judicial practice, a number of provincial, autonomous region and municipal People’s Congress Committees of governments have formulated local regulations or local government rules on the basis of the local situation. At the international treaty level, at present, our country has respectively acceded to 6 international copyright treaties: the “Berne Convention on the Protection of Literary and Artistic Works”, the “World Copyright Treaty”, the “Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms”, the World Trade Organization “Agreement on Trade-Related Intellectual Property Rights”, the “WIPO Copyright Treaty” as well as the “WIPO Performances and Phonograms Treaty”.
Our country’s “Copyright Law” was passed on 7 September 1990 at the 15th meeting of the 7th National People’s Congress, and officially took effect on 1 June 1991. On 27 October 2001, in order to perfect our country’s copyright legal system, stimulate the flourishing and development of the economy, science and technology, and culture, and to adapt to the process of our country’s accession to the World Trade organization, the 24th meeting of the 9th National People’s Congress passed the “Decision concerning Revising the ‘Copyright Law of the People’ Republic of China'”, which revised the 1990 “Copyright Law”. After the revision, the “Copyright Law” changed from the original six chapters and 56 articles into 6 chapters and 60 articles. On 26 February 2010, in order to further perfect our country’s copyright legal system, and in order to realize the requirements of implementing the ruling of the World Trade Organization Sino-US intellectual property rights dispute, the 13th meeting of the 11th National People’s Congress passed the “Decision concerning Revising the ‘Copyright Law of the People’s Republic of China'”, which took effect on 1 April 2010. This revision involved two articles, the “Copyright Law” in total having six chapters and 61 articles after revision.
The abovementioned two revisions to the “Copyright Law” are both related with the World Trade Organization, the first revision was to satisfy the direct requirements for World Trade Organization accession, and the second revision was to realize the requirements of implementing the World Trade Organization’s ruling in the Sino-US intellectual property rights dispute. Because of this, these two revisions of the “Copyright Law” have the characteristics of passivity and partiality, and have not made active and complete adjustment of the “Copyright Law” adapted to realizing the requirements of our country’s economic and social development and technological progress.
II, The necessity of revising the “Copyright Law”
Since entering the new century, the knowledge economy has deeply developed, the progress of economic globalization has clearly accelerated, high and new technology represented by information technology changes everyday, and the function of intelligence and creativity in material production and cultural production is ever larger, intellectual property rights, including copyright become more of a strategic resource and core factor in international competitiveness every day. The Party Centre and the State Council put forward that, under new circumstances, it is necessary to raise indigenous innovation capacity to become a central segment in adjusting economic structures and transforming economic growth models, and indigenous innovation capacity construction is inseparable from intellectual property rights system guarantees. The 17th Party Congress clearly put forward the strategic objective of ‘raising indigenous innovation capacity, constructing an innovative country”; accordingly, the State Council promulgated the “National Intellectual Property Rights Strategy Outline” in June 2008, making intellectual property rights into a national development strategy to move forward. After some years of effort, the position of intellectual property rights work in the larger picture of the entire Party and country work has been further elevated. As a basic intellectual property rights law, the revision of the “Copyright Law” perfects the basic change of implementing the scientific development view and promoting economic development methods; raises our country’s levels of creation, utilization, protection and management, implementing the national intellectual property rights strategy outline; it provides legal guarantees for stimulating the grand development and grand flourishing of Socialist culture, implementing the spirit of the 6th Plenum of the 17th Party Congress, and has a major significance in further moving opening up to the outside world forward, making our country enter into and participate in international competition even more broadly and deeply, and raising the country’s international influence, without wasting any time.
(1) Revising the “Copyright Law” is an objective requirement for perfecting the present system
As it was the first “Copyright Law” of the new China, during the drafting period in the Eighties of the previous century, our country was still in the period of the planned economy, and lacked native legislation experience, because of this, this law inevitably had the mark of the planned economy. Although there were two revisions after this, as indicated earlier, these two revisions were not indigenous or complete, and did not resolve the real problems of our country’s economic and social development, and especially those faced by social transformation and economic shifting, very well. Because of this, completely revising the “Copyright Law” is an objective requirement for adapting to our country’s economic and social development.
(2) Revising the “Copyright Law” is an objective requirement for responding to science and technology development
In the 21st century, humanity has already entered the age of the knowledge economy, and future global competition will be mainly reflected in intellectual property rights competition. Following the swift development of high and new technology, and especially of digital technology and network technology, our country’s copyright protection faces enormous changes that have occurred in the real environment. The trends of swift development of science and technology and incessant change of the social environment, extremely prominently conflicts with the comparative stability of the copyright legal system, the copyright legal system has encountered with severe challenges. In order to adapt to new circumstances and new situations, legal revision work must be timely and completely moved forward.
(3) Revising the “Copyright Law” is an objective requirement in adapting to international circumstances
Following the deep development of economic globalization and global integration, all countries and regions of the world have incessantly perfected copyright laws, international copyright protection rules are in continuous adjustment. Because of the different development stages, the divergence between developed countries and developing countries in the copyright sphere will exist for a long time, and all sides are vigorously vying for the initiative in international copyright rule adjustment in order to safeguard their economic interest and international competitiveness. The international copyright protection environment faced by our country is ever more grim. In order to adapt to the new international circumstances and safeguard the national interest, legal revision work must be timely and completely moved forward.
(4) Revising the “Copyright Law” is an objective requirement for perfecting the intellectual property rights system
In the intellectual property rights sphere, the social relationships of copyright adjustment are much more complex, the contradictions more prominent and the problems more in number, in comparison with the “Patent Law” and the “Trademark Law”, and it is the law that is subject to the largest influence of technological progress and social development. At present, the third revision of the “Patent Law” has been completed, and the third revision of the “Trademark Law” has already entered into the State Council examination phase. The legal revision work of the “Copyright Law” is lagging by comparison. In order to further perfect our country’s intellectual property rights legal system, legal revision work must be timely and completely moved forward.
(5) Revising the “Copyright Law” is an objective requirement for responding to the concerns of all walks of society
In recent years, following the our country’s economic and social development, and especially the swift development and broad utilization of high and new technology, revising the “Copyright Law” has become a major concern in the intellectual property rights sphere for all walks of society. These appeals do not only come from judicial, administrative, education and scientific research departments, even more come from copyright holders and the industrial world. Every year during the “two meetings” period, the National People’s Congress and the People’s Political Consultative Conference put forward large quantities of opinions, motions and proposals concerning revising the “Copyright Law”. Because of this, in order to respond to the concerns of all walks of society, legal revision work must be timely and completely moved forward.
III, The basic line of thought for “Copyright Law” revision.
According to our country’s present legislative system, the National Copyright Administration undertakes basic work in the process of this “Copyright Law” revision of preparing and drafting a revision draft. After comprehensive consideration and weighing of elements from all sides, we decided that the basic line of thought for this legal revision is: persisting in one concept, following three principles, pursuing three effects.
What is called “persisting in one concept”, means persisting in the concept of pooling wisdom to resolve problems. Pooling wisdom means that when beginning legislation, and in the process of law revision, it is necessary to broadly and fully hear the opinions from all walks of society, and guarantee the openness and transparency of legal revision work at the mechanism level; resolving problems means that it is necessary to start from reality, find out problems, look for problems, deeply analyze them, repeatedly expound them, and fix eyes on resolving the prominent problems in reality.
What is called “following thee principles” means following the principles of independence, balance and internationalism. The principle of independence means that it is necessary to be based on China’s national circumstances, reflect Chinese characteristics, integrate the Chinese reality and resolve Chinese problems. At present, our country’s copyright legal system faces a series of complex domestic and international environments of the consciousness of rights holders being widespread and raised, copyright-related industries growing quickly, high and new technology developing swiftly, the acceleration of our country’s social transformation process, the daily increase of pressure domestically and abroad, etc. This legal revision must start from the Chinese reality, take root in and not exceed or be separated from these basic national conditions. We are willing to learn from the successful experiences of other countries or regions in copyright legislation aspects, but must stress the real national circumstances and real needs of China even more.
The principle of balance means that it is necessary to appropriately deal with the basic balance between the interests of creators, disseminators and the social masses. The copyright legal system is basic law in adjusting the relationship chain between the interests of creation, dissemination and consumption, which means that it is necessary to protect creation and encourage dissemination, and must also stimulate consumption and satisfy the knowledge and culture requirements of the broad masses. The revision of the “Copyright Law” must closely grasp balancing of interests, this basic spirit of modern copyright legislation, and earnestly evaluate whether or not the interest balancing mechanism of our country’s present “Copyright Law” is appropriate, whether or not it is feasible in practice, and whether or not it fully combines the rights and interests of all related sides. It is necessary to fully understand the characteristics of copyright protection balancing trends under the present technological conditions, absorb useful historical experiences, broadly hear and deeply research the appeals of interests from all sides, and appropriately deal with the relationship between copyright protection and guaranteeing dissemination, it is necessary to both protect copyright according to the law, and stimulate dissemination and use, giving rein to the social effect of knowledge products.
The principle of internationalism means to move legal revision work forward from international copyright system adjustment change trends and raising the international image of us as a large responsible country. It is necessary to earnestly search for differences between our country’s current “Copyright Law” and the international treaties to which our country acceded, making our country’s “Copyright Law” conform to the provisions of corresponding international treaties; it is necessary to closely follow and pay attention to discussions in international organizations concerning treaties related to copyright, grasp their development orientation, and internalize them into domestic law at the right time, it is necessary to carefully analyze and research copyright legal system development trends in all important countries, absorb, attract, transform and use them, and strengthen internationalized common understandings.
What is called “pursuing three effects” means pursuing the effects of high efficiency, high quality and high levels. High efficiency means that it is necessary to strive to complete legal revision work in the shortest possible time with a spirit of making good use of time. The key of high efficiency means resolving organizational guarantee, communication and coordination problems. High quality means that it is necessary to stress the applicability of the law, to be able to resolve prominent problems encountered at present in our country’s copyright protection, and to make copyright law reach a new platform of quality through untiring effort. The key of high quality is that it is necessary to look for problems existing in copyright law at present, and on the basis of broadly hearing opinions from all walks of society and hearing them, producing methods for resolving problems. High level means that it is necessary to appropriately look forward, and it is necessary to have a correct judgement of international and domestic economic, social, scientific and technology development trends, making legal revision work face modernization, face the world, and face the future, and making due contributions to the further perfection of the international intellectual property rights system
IV, The basic process of “Copyright Law” revision
According to the State Council leading memo and the State Council legislative work plan for 2011, “Copyright Law” revision work is listed in the third rank of the State Council legislative work plan for that year, programmes that must be vigorously researched and elaborated. On 15 July 2011, the National Copyright Department called together corresponding departments and exports, and organized the “3rd “Copyright Law” Revision Starting Conference and Expert Engagement Ceremony” in Beijing, symbolizing the official start of the work on the 3rd revision of the “Copyright Law”.
In order to move legal revision work forward smoothly, the National Copyright Administration has especially established to “National Copyright Administration “Copyright Law” Revision Work Leading Small Group” (hereafter simply named the leading small group) and the “National Copyright Administration “Copyright Law” Revision Work Expert Committee” (hereafter simply named expert committee), General Administration of Press and Publications director and National Copyright Administration Director Comrade Liu Binjie has assumed the office of head of the leading small group, and members come from the Central Propaganda Department, the National People’s Congress Education, Science, Culture and Hygiene Committee, the Supreme People’s Court, the Ministry of Industry and Information Technology, the Ministry of Culture, SRFT, the State Council Information Office as well as the China Writer’s Association, etc; the expert committee is composed of 30 people, members come from all corresponding departments, rights holders’ organizations, the industrial world, the practice world, social groups as well as scientific research institutes, etc.
In order to broadly hear opinions and suggestions from all walks of society, the National Copyright Administration issued a notice in the beginning of July 2011, inviting nearly 200 work units and individuals from all walks of society including administrative organs, People’s Courts, social groups, scientific research organs, the industry world, expert scholars, etc., to put forward opinions concerning the “Copyright Law” revision work. At the same time, in order to guarantee legal revision work quality, the National Copyright Administration specially entrusted the education and scientific research work units (the Renmin University of China Intellectual Property Rights Research Institute, the Chinese Academy of Social Sciences Legal Studies Department Intellectual Property Rights Research Centre and the Zhongnan University of Finance, Economics, Politics and Law Intellectual Property Rights Research Centre) with a relatively large influence in the area of copyright to draft expert proposal drafts for “Copyright Law” revision. On 31 December 2011, the three drafting work units submitted their “Copyright Law” revision expert proposal drafts on time. On 13 January 2012, the National Copyright Administration convened the members of the expert committee and corresponding legislative departments to organize the first meeting of the expert committee in Beijing, the tree expert proposal draft work units reported on the drafting work situation, and the participating experts were invited to discuss them.
On 1 February 2012, the State Council Secretariat promulgated the “Notice Concerning Printing and Issuing the State Council Legislative Work Plan for 2012″ (GBF No. 12), in which the “Copyright Law” revision was raised from the third rank to the second rank: programmes of which work needs to be grasped, and which must be put forward at a suitable time. General Administration of Press and Publications director and National Copyright Administration Director Comrade Liu Binjie clearly required the acceleration of moving legal revision work forward, and to complete the earlier elaboration and drafting tasks as soon as possible. According to this new situation, in early February 2012, the National Copyright Administration began to set to drafting the “Copyright Law” revision draft. In the later part of February 2012, the preliminary drafting work was completed, and the text of the “Copyright Law” revision draft was formed. Soon afterwards, the National Copyright Administration speedily conducted small-scale internal opinion seeking concerning this draft. On 19 March 2012, the National Copyright Administration convened the expert committee members and corresponding departments to organize the second expert committee meeting, to conduct discussion of the draft. According to the opinions and suggestions of the experts, the National Copyright Administration conducted many revisions of the draft, and the present text was ultimately shaped.
V, The main method and content of “Copyright Law” revision
Based on the basic line of thought described above, the main methods we adopted in this revision process are: (1) general issues that are at present stipulated in administrative regulations and should be stipulated in copyright law are raised into the law – this mainly is content from three administrative regulations, the “Copyright Law Implementation Regulations”, the “Computer Software Protection Regulations” and the “Information Network Dissemination Right Protection Regulations, such as the time at which copyright comes into being, the “three-step test”, technological protection measures and rights management information, etc.; (2) on the basis of basic requirements of international treaties, necessary content has been added to the copyright law, making it consistent with corresponding international treaties – such as the author’s rental rights, performers’ rental rights, technological protection measures and rights management information, etc.; (3) provisions corresponding judicial interpretations which have proved to be effective in practice are brought into the law – such as copyright and related right registration, the use of entrusted works, etc.; (4) content that the business world repeatedly appealed for and is urgently required in practice, and on which a consensus was reached during the preliminary opinion-seeking process was written into the law – such as collective copyright management organizations’ extended collective management, applied artworks, the definition of information network dissemination rights and broadcasting rights, entitlement of audiovisual works, entitlement of professional work, exclusive copyright licensing and transferring of registration, administrative mediation of copyright disputes, etc.
The main content of this legal revision can be briefly explained as follows;
(1) Concerning the structure and layout of the chapters
Our country’s current “Copyright Law” in total has six chapters and 61 articles. According to the basic situation of more than 20 years of “Copyright Law” implementation, considering our chapter structures and layout of country’s other intellectual property rights laws, and at the same time learning from the copyright laws of other countries and regions worldwide, we adjusted the chapter structure and layout of the draft, the draft in total has eight chapters and 88 articles, the content of the main revisions is: the first chapter, general provisions, is preserved unchanged; in the second chapter, copyright, the section on “limitations to rights” is deleted; the current law’s fourth chapter, “publishing, performance, audio and video recording and broadcast” is brought forward to chapter three after deletion of content on licensing, use, etc., and the name is changed into “related rights”, in the current law’s second chapter, the section on “limitations to rights” is listed as Chapter IV, the reason being that the limitations of rights relate both toe copyright and to related rights, and it is impossible for the chapter on copyright to include this completely; the third chapter of the current law, “Copyright licensing, use and transfer contracts” is changed into “use of rights” and becomes the fifth chapter; technological protection measures and rights management information’s are listed by themselves in the sixth chapter, the reason being that other chapters cannot contain its content; the current law’s fifth chapter “legal responsibility and law enforcement measures” is changed into “rights protection” and becomes the seventh chapter; Chapter VIII, on supplementary provisions is preserved unchanged.
(2) Concerning works
A definition of works is added to the draft, and the definitions of all concrete categories of work in the “Copyright Law Implementation Regulations” are raised into the law. In comparison with the current “Copyright Law”, the main differences are: (1) “film works and works created in a manner similar to film production” is revised into “audiovisual works”, which is in relatively widespread use in international society, at the same time, the provisions on “video products” in the part on related rights is deleted, the main reason being that the description of audiovisual products is more concise, and it is not common to have video products as one single object of related rights in legislation, in the majority of circumstances, video works can be considered as “audiovisual works” for protection; (2) provisions concerning applied artworks are added. Our country’s current “Copyright Law” contains no provisions on applied artworks, but in the “Regulations on the Implementation of International Copyright Treaties” contained protective regulations for 25 years. This sort of provision on super-national treatment has been called into question for a long time by the academic world and the practitioning world, and there is no uniform understanding about whether applied artworks of our country’s citizens are to be protected as fine art works or are not protected. Because of this, the draft lists applied artworks as a single category of works to be protected, according to the provisions of the “Berne Convention”, of which the term of protection is 25 years. (3) computer software is changed into computer programmes, the main reason being that files may be directly protected as literary works, and do not require special provisions
(3) Concerning the registration of copyright and related rights
The principle of “automatic protection” applies to the creation of copyright and related rights, and there is no requirement to implement any formality. But in practice, two aspects exist in which applying the principle of “automatic protection” is insufficient when copyright and related rights act as intangible property: first is that if the state of the right is unclear, it does not beneficial to the rights holder, especially when it concerns copyright holders of unpublished or anonymous works exercising their rights; second is if it is hard for trading partners to determine the state of the rights, it does not benefit market trading, and overly large trading risks or overly high trading costs may inhibit the flourishing and development of the trading market. In order to effectively resolve these questions, many countries and regions have successively established copyright registration systems. These systems do not influence the application of the “automatic protection” principle, and have a preliminary evidence function for rights holders enjoying copyright, and are important systematic guarantees guaranteeing copyright trade security, reducing copyright trade costs, and lowering copyright law risks. As far back as December 1994, our country’s National Copyright Administration formulated the “Trial Rules on Voluntary Registration of Works”. 17 years later, work registration systems have made beneficial explorations and trials in stimulating the development of copyright-related industries, and promoting the development and flourishing of Socialist literature, art and science undertakings. The establishment of work registration systems has not only gained the welcome and approval of copyright holders, cultural dissemination enterprises as well as the industry world, it has also been affirmed by all levels’ judicial organs and administrative law enforcement organs. For example, the Supreme People’s Court “Supreme People’s Court Interpretation Concerning Some Issues on Application of Law in Correctly Hearing Civil Copyright Cases”, the General Administration of Customs “Implementation Rules Concerning ‘Intellectual Property Rights Customs Protection Regulations of the People’s Republic of China'”, etc., have all clarified the provisions on the legal position of work registration certificates, and in the practice of public security organs’ handling of criminal copyright infringement cases, work registration certificates are important evidence in proving the rights of rights holders. Because of this, the draft starts from our country’s national conditions, learns from the methods of international society, refers to the provisions of the “Computer Software Protection Regulations”, and has clarified issues such as the legal basis, the legal effect of registration documents as well as fee standards of copyright and related right registration systems.
(4) Concerning copyright content
The draft draws a clear distinction between the personal rights and the property rights in copyright. The main reason being textual conciseness, in later texts, it is permitted to replace the wording of Article *, Paragraph (*) to (*) of this Law in the current “Copyright Law” with property rights in copyright.
The draft has adjusted the personal rights: (1) revising the definition of the rights to signing and alteration – the right to decide whether or not the identity of the writer is displayed and how to display the identity of the writer, the main reason being that the provisions on “signing the work” in the current law is only one way to indicate the writer; (2) concerning the right of revision, in the process of opinion-seeking, the majority opinion is that the right of revision and the right to protect the integrity of the work are two aspects of the same right, and it is suggested to lean from the provisions of the copyright laws of Japan, Germany, etc. To this end, the draft deletes the right of revision and brings it into the right to protect the integrity of the work, reducing the personal rights of copyright to three: the right to publish, the right to sign a name and the right to protect the integrity of the work.
The draft has adjusted the property rights: (1) the right of reproduction has been revised to include any form of digitalization; (2) other means of transferring proprietary rights have been added the right of distribution; (3) according to the provisions of Article 7 of the “WIPO Copyright Treaty”, audio products have been added to the objects of rental rights (4) content broadcast through cable has been added to transmission rights, and at the same time, in order to avoid confusion with broadcast, its name is changed from broadcasting rights to transmission rights; (5) information network dissemination rights are expanded from the interactive manner to means such as live broadcast, relaying, etc., in order to resolve problems put forward in practice on fixed time transmission and relaying, etc; (6) considering that in reality, the right of compilation may be controlled by the right to reproduction, the right to compilation is deleted; (7) considering the current fast growth and huge scale of our country’s’ artwork market, provisions on the right of pursuit have been added; (8) the right of revision in the “Computer Software Protection Regulations” concerning computer programmes is moved into this Law. Furthermore, considering that the content of the information network dissemination right and the right of pursuit is relatively complex, the State Council is authorized to make separate provisions.
(5) Concerning copyright entitlement
The draft adjusts the copyright entitlement: (1) concerning works of legal persons, it adds the condition of investment by legal persons or other organizations, and published under the name of by legal persons, other organizations or their representatives, making legal persons’ works more clear, and easier to determine in practice; (2) concerning cooperative works, the right of action has been added to creators of cooperative works, ensuring that any creator of a cooperative work may raise a lawsuit concerning the complete cooperative work, but at the same time, it provides that compensation obtained by them shall be appropriately distributed or allocated to the other cooperative creators; (3) concerning audiovisual works, the entitlement of copyright over audiovisual works has been revised, and provisions that copyright over audiovisual works should first be agreed upon in contracts are added, if there is no contract, they revert to the producer, but creators such as playwrights, lyrics writers, composers, etc., enjoy the right to remuneration over the later use of the work; (4) concerning professional works, in comparison with the current “Copyright Law”, the draft simplified the regulations on copyright entitlement of professional works, so that first and foremost the parties are to agree upon them in contract, if there is no contract, they revert to the employee, and the work unit may use it free of charge in their scope of business, but the copyright of works such as engineering design drawings, product design drawings, etc., reverts to the work unit, and the employee enjoys the right to sign a name.
(6) Concerning “orphan works”
What is called “orphan works” refers to works of which the identity of the creator is unclear or, although the identity of the creator is clear, they are not to be found. In recent years, in the wake of the development of digital network technology, the use of this category of works is a focus discussion point at the global level, especially following the moving forward of the Google Company’s “Digital Book Library Plan”, the United States, Europe, etc. have discussed this extremely intensely. In order to respond to technological development and the renewal of commercial models, exploratory principle provisions have been made in the draft concerning “orphan works”, and users may apply with the State Council administrative copyright management department, and use the works after depositing a use fee. Concerning concrete examination, approval and management work, the draft provides that the State Council administrative copyright management departments will make separate regulations.
(7) Concerning the rental rights of performers
The rental rights of performers are provided in Article 9 of the “WIPO Performances and Phonograms Treaty”, when our country acceded to this treaty in 2007, there were no regulations in domestic law on the rental rights of performers, this right has always continuously been a difference between our country’s “Copyright Law” and the said international treaty. Because of this, the draft added provisions on performers’ rental rights, making our country’s “Copyright Law” consistent with the said international treaty.
(8) Concerning the rights of audiovisual performers
In June 2012, the World Intellectual Property Organization will hold a diplomatic conference in Beijing concerning concluding an audiovisual performers’ rights treaty. Because of this, our country’s government should hold a positive attitude concerning the rights of audiovisual performers as well as the said treaty. Based on this sort of consideration, in this legal revision, the draft has drawn lessons from Article 12 of this treaty (draft text), and stipulated that audiovisual performers enjoy the right to entitlement of audiovisual work as agreed upon in contract, if there is no contract, it reverts to the producers, but the performers enjoy the right to obtain remuneration from later use of their performances.
(9) Concerning the transmission rights of performers and record producers
In 2007, when our country acceded to the “WIPO Performances and Phonograms Treaty”, a reservation was made concerning its Article 15. This article concerns performers and record producers enjoying the right to obtain remuneration from other persons’ transmitting or disseminating to the public of audio works. In recent years, the music industry represented by record companies has strongly appealed for transmission rights and performance rights concerning record producers to be added to our country’s “Copyright Law”, the reason being that following the development of digital technology and network technology, the record world’s traditional commercial model of distributing tangible records is close to dying out, because of this, granting transmission rights to record producers is an urgent requirement for the music industry’s sustainable development. The draft has added provisions concerning performers and record producers’ right to obtain remuneration, making our country’s “Copyright Law” consistent with the corresponding international treaty.
(10) Concerning radio stations and television stations
In the part on the rights of radio stations and television stations, apart from relaying being expanded into the two methods of wireless and cable, the draft has also added that radio stations and television stations have the right to prohibit other persons from relaying their radio and television programmes using network means, the main reason being that at present, the problem of other persons relaying radio and television programmes through networks is relatively prominent in practice, if the law does not make clear provisions, there is no way to deal with this in practice, but as to the information network distribution right, considering that the present “WIPO Broadcast Organization Treaty” is still under discussion, no final conclusion is made yet, because of this, no provisions have been made in the draft.
(11) Concerning computer programme reverse-engineering
Computer programme reverse engineering is an essential segment of computer programme compatibility, and for many years, this question has not been reasonably resolved. The draft has drawn lessons from methods in copyright laws of Europe and Germany, and clearly provided that the lawfully licensed users of computer programmes may reproduce and translate that programme’s compatibility information, but at the same time, it is provided that they may not use that information for other objectives or infringing activities.
(12) Concerning statutory copyright licensing systems
Our country’s current “Copyright Law” has provided for five sorts of statutory copyright licensing systems: textbook compilation and publishing, periodical reprinting, audio production, radio and television station broadcast, etc. The statutory copyright licensing system allows other persons to use works and not obtain permission from the rights holder, and is essentially a limit to the rights of the rights holder. If the right to remuneration of the rights holder cannot be guaranteed, this system as a matter of fact may become an expropriation of the rights holder’s rights. But from the 20 years of practice of statutory copyright licences, it can be seen that there are no rights holders implementing their duty to pay remuneration, and it also rarely happens that users bear civil responsibility for failing in their duty to pay remuneration, and the rights of rights holders have not been realistically guaranteed, and legal provisions exist in name only. During the process of soliciting opinions for the legal revision, in view of the real effects of this system, some experts suggested to cancel the statutory licensing system. After analysis, we are of the opinion that the value orientation of the statutory copyright licensing system and its systemic function conform to our country’s basic national circumstances (such as textbooks using works), and the present reasons why this system is not successful are located in deficiencies of the remuneration payment mechanisms and the legal relief mechanisms. Because of this, the draft has adjusted and perfected this by stressing two aspects, it has added provisions concerning the duty that statutory licences have to be filed in advance, timely remuneration payment through collective copyright management organizations and indication of source, etc., also, when users do not timely implement the abovementioned duties, administrative copyright management organs may impose administrative punishment according to the concrete circumstances. Such adjustments have both satisfied the objective needs of using users’ works, and guaranteed the basic rights of rights holders. Furthermore, the draft cancelled the statutory licensing provision’s exception of a statement that the work may not be used, meaning that rights holders’ statement on works that may not be used does not influence the statutory licensing use, expert where periodicals state they have exclusive rights; graph works have been added to the textbook statutory licensing; exclusive publishing rights statements have been added to statutory licenses for reprinting; audio work statutory licences have been adjusted to be three months after the lawful publication of the audio product; statutory licences for the radio transmission of audio works has been merged into statutory licences for radio and television transmission.
(13) Concerning collective copyright management organizations’ extended management.
The collective copyright is an important symbol of weighing a country or region’s copyright protection level, and is an important channel for resolving the broad users’ lawful use of works. In recent years, our country established a series of collective copyright management organizations, but the understanding and knowledge of all walks of society concerning collective copyright management remains to be raised, many works have not yet been added to corresponding collective management organizations, and situations often occur in reality whereby it emerges that users are willing to lawfully use works but, however, cannot find the rights holder. In order to resolve the predicament of users in using works, the draft, based on our country’s national conditions, and leaning from the collective copyright management systems of northern European countries, provides in principle for an extended collective management system, being that the State Council administrative copyright management department may permit collective copyright management organizations with broad representativeness to represent non-members and develop extended collective copyright management business.
(14) Concerning collective copyright management organizations authorization and use fee standard objections
In our country’s collective copyright management system, collective copyright organizations may conduct collective management according to the authorization of the rights holders, may conduct collective management over statutory licences, and may conduct extended collective management after permission by the State Council administrative copyright management department (content added in this revision). Within that, the statutory licensing remuneration standards touch upon social and public interests, and have a public policy element, therefore, they must be formulated by government departments, authorization-type use fees are provided on the basis of the “Collective Copyright Management Regulations”, formulated by collective management organizations and announced by the National Copyright Administration. But in reality, if users have objections against the use fee standards, laws have not clearly provided how to deal with this. Because of this, the draft provides that, where there are objections against collective copyright management organizations’ authorization and use fees, the State Council administrative copyright management department may organize an expert committee to conduct adjudication.
(15) Concerning exclusive licence contract and transfer contract registration systems.
In recent years, cases of “selling one good twice” or “one bride, two weddings” often happened in market trade in copyright and related rights, engendering a large menace to copyright trade security, all walks of society also repeatedly put forward the necessity to establish an exclusive licence and transfer registration and filing system. The draft, taking into consideration elements from all sides, provided for a copyright and related right exclusive licence and transfer registration system, and has adopted the doctrine of “registration antagonism*” in terms of legal effect, and at the same time provided that statutory licence compensation must have registration as precondition (a different precondition for statutory compensation is registration copyright and related rights.)
(16) Concerning technological protection measures and rights management information
Technological protection measures and rights management information are provided by the “WIPO Copyright Treaty” and the “WIPO Performances and Phonograms Treaty”, and at the time of the 2001 “Copyright Law” revision, provisions have also been made on legal responsibility, but it is not perfect from a logical point of view, because in the higher text, there is no provision on the definition of and duties relating to technological protection measures and rights management information. Although technological protection measures and electronic rights management information were provided for in the “Information Network Dissemination Right Protection Regulations” promulgated in 2006 by the State Council, because that regulation only applies to the network environment, there are no provisions concerning technological protection measures and rights management information in a non-network environment. Because of this, when our country acceded to the above treaties in 2007, certain inconsistencies in fact exist with the two abovementioned international treaties concerning provisions on technological protection measures and rights management information. Based on the abovementioned reasons, the following adjustments have been made in the draft: (1) the term for technological measures in the current “Copyright Law” is changed into “technological protection measures”, and electronic rights management information is changed into “rights management information”, to conform to the treaty; (20 considering that technological protection measures and rights management information do not belong to the content of copyright or related rights, but are closely connected to these two categories of rights, an individual chapter with special provisions is set up; (3) the content in the “Information Network Dissemination Right Protection Regulations” concerning technological protection management and rights management information is expanded into the non-network environment, and the duties as well as limitations and exception of the corresponding sides are provided for, at the same time, apart from the provisions on civil liability in the chapter on “protection of rights”, an article is provided for specially concerning administrative liability when violating duties related to technological protection measures and rights management information.
(17) Concerning civil liability
The main revisions of the draft in the part on civil liability are: (1) civil liability provisions have been simplified, the main reason being that, as the higher texts provided for clear demarcation of rights, infringement is constituted so long as there is use or intrusion without the permission of the rights holder, and it goes without saying that civil responsibility must be borne, because of this, the concrete situation of bearing civil responsibility does not need to be listed; (2) it clearly provides that network service operators providing purely technological services for not bear a duty of examination for copyright or related rights, and essentially provides for a notice and takedown procedure, of which the concrete content is also provided in the “Information Network Dissemination Right Protection Regulations”; (3) the draft provides for exempting users from the duty to compensation where in reality, use fees have already been paid in the past to collective copyright management organizations but they are sued in court, but they must cease the infringement and pay fees; the main reason being guiding rights holders to use collective copyright management systems through integrating carrots and sticks, encouraging lawful use of works, reducing parties’ malicious lawsuits, and stimulating the lawful dissemination and use of works; (4) the provisions on compensation have been adjustment, in the current “Copyright Law”, these are based on actual loss and unlawful income, learning from the provisions of the “Patent Law”, provisions on rights trade expense multipliers have been added, and at the same time restrictive conditions are added to statutory compensation – namely that copyright or related right registration, exclusive licence contract registration or transfer contract registration must be conducted, furthermore, provisions on punitive compensation of one to three times have been added for repeated instances of wilful infringement.
(18) Concerning administrative copyright law enforcement organ management methods
Our country’s copyright protection system implements the two tracks of administrative protection and judicial protection, but in the current “Copyright Law”, there are no provision on any administrative coercion method, especially under conditions of the swift development of network technology and the widespread phenomenon on piracy on the Internet which is even extremely rampant in some regions, areas and segments, this sort of legislative insufficiencies and shortcomings have gravely influenced and restrained the effectiveness and deterrence of administrative copyright protection, which is not beneficial to attacking infringing and piracy activities, administrative copyright management departments and especially the first-line law enforcement departments have strongly reacted against this in real law enforcement and social supervision. In order to effectively attack infringing and piracy activities, perfect our country’s administrative copyright protection system, the draft draws lessons from methods in other intellectual property rights laws (Article 55 of the “Trademark Law” and “Article 64 of the “Patent Law”), and provisions on administrative copyright management department law enforcement methods have been added, and especially powers of sealing up and detainment have been added.
19: Concerning administrative mediation of copyright disputes
According to the requirements of the State Council concerning moving rule by law government construction forward, and integrating the real situation of the copyright sphere (the fastest case growth, the largest scale, at present, copyright cases occupy more than half of the total amount of intellectual property rights cases the nationwide judicial system accepts), the draft contains exploratory provisions for an administrative mediation system. The main reason being to fully give rein to the superiority of administrative copyright management organs’ specialization, give rein to the characteristics of administrative mediation, being high efficiency and convenience, reducing parties’ litigation costs, and relieving case pressure on the judicial system. Considering that administrative mediation systems involves many procedural procedures, the draft only contains principle provisions, concrete matters will be provided separately.
(20) Other content
The draft has also clarified a number of other matters on the basis of the many years of practice of the “Copyright Law” and questions put forward in reality, such as the time in which copyright and related rights come into being, the basis for calculation of the copyright protection term, the “tree-step test”, current affairs news, the deletion of enjoyment from reasonable use, the number of copies for individual study and research, the definition of format design and radio or television programmes, substituting “destroying Socialist market economy order” for “at the same time damaging the public interest” as a constitutive element for administrative liability, etc.
The above explanation is provided for reference.
* This refers to the principle of publicity, meaning that an exclusive licence or transfer cannot be invoked or relied upon against third parties if it is not registered.