30 May, 2013

Chinese Intellectual Property Law (Part 1) - Copyright

With China having become a huge economic power in the last few decades, I thought it'd be about time to write a short overview of the different aspects of intellectual property law in China. These posts will be split into three parts, each discussing a different area. We'll kick things off with copyright law. Often the more disputed topic in the area, when close to a third of all counterfeit imports to Europe were from China in 2009.

The Chinese copyright legislation has been an issue for most of the 1990s and early 2000s, as other nations saw their laws as inadequate and their enforcement of the provisions lax at best. The first iteration of their copyright law was enacted in 1990; the Copyright Law of the People's Republic of China (English translation can be found here, Chinese here). 

The aim of the legislation is simple: 
"This Law is enacted, in accordance with the Constitution, for the purpose of protecting the copyright of authors in their literary, artistic and scientific works and the rights and interests related to copyright, encouraging the creation and dissemination of works conducive to the building of a socialist society that is advanced ethically and materially, and promoting the progress and flourishing of socialist culture and sciences". 
One key difference has to be noted; the Chinese law actively encourages the dissemination of works. Often omitted in especially common law nations, the notion of dissemination of works is more often than not left on the back burner, as a hand-down in the form of "fair dealing" or "fair use". While still being a part of the given legislation, it seems it's not as intrinsically embedded in the laws as it seems to be in the Chinese equivalent, at least on the face of it.

The law provides protection for the typical assortment of subject matters that most legislatures seem to have offered, such as written, oral, photographic and graphic works. The protection is also offered to foreign nationals who are subject to treaties to which China and their nation are signatories to, such as the Berne Convention and TRIPS. The legislation is heavily modeled after the Berne Convention and thus all aspects of the law need not be expanded upon further, as they mirror most national legislations in common law countries, and possibly civil law countries as well.
Copying taken to an extreme

Terms for copyright are, again, very similar to ones found in, for example Australia and the UK, where protection is offered for life and 50 years after death, aside from cinematographic works which are given 50 years of protection from its first publication. The latter differs from Australia for example, where the duration is 25 years after initial publication.

Some issues are presented in the Chinese "fair dealing" provisions or situations where works may be used without permission or payment to the creator of the work. Several of the categories, such as the permission to rebroadcasting or publishing of speeches or content published by other newspapers or news outlets, are opt-out provisions. By default there is an assumed ability to reuse your content, even by competitors. Secondly, there is a provision allowing the live performances of works for free. This provision allows for a very wide and open-ended ability to utilize content at any events which don't charge an entrance fee, such as conventions or festivals. Not really the biggest of issues, but does leave a gaping hole when it comes to the protection of a performer's right to their content. Most of the "fair dealing" provisions in the legislation are standard ones found in most common law countries, either in express categories or through the common law.

Overall the legislation follows Berne very closely, and should sound familiar to those who've dealt with it before. Not being entirely familiar with the starting point of the Chinese legislation it is hard to say just how far they have come in the last few decades, but surely the standard of protection has gotten better as the country has become more and more "capitalist".

There has been contention over the legislation since its inception. China has been dispute settlement through the instigation of other countries at the WTO 30 times since 2002, after it became a member of the organisation in 2001. There have been noted issues in especially the enforcement of the protection of intellectual property rights, where China has been lacking for years.

Even with its shaky emergence into the wider intellectual property regime, China has made strides towards a more universally accepted standard of protection given to intellectual property rights. The National Copyright Administration of China released its Draft Proposal only a few months ago, which would bring about much needed amendments to the current legislation. The aim of the amendments is to extend the scope of copyright, to encourage its registration, include resale royalties and to amend restrictions applying to certain types of copyright. When and how the law is finally amended remains to be seen, but it should bring China closer to a more international standard.

(Part 2 discussing Trademarks can be found here, Part 3 discussing Patents here)

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