My Paper:
Positive Analysis to the ‘Illegal Works’ under China’s Copyright Law: With Comments to the WTO DS362 and Suggestions to the Legal Reform

Abstract:

Abstract: This article reviews the copyright dilemma of illegal works in the context of Chinese copyright system. Under the current law, not merely the works with illegal content, but also the works did not fulfill the procedural requirement will be denied the copyright protection. Article 4(1) may find legitimacy in the domestic level, but does not comply with the WTO law. The three criteria in Article 13 of TRIPS Agreement can be applied to examine Article 4(1). The key problem lies in the uncertainty of the scope of denial of copyright. This leads to the Super-national Treatment. Based on these analyses, the last part of the article proposed some suggestions for the future legal reform.

Keywords: Illegal Works, DS362, TRIPS, Three-Step Test, China, Copyright Reform

The fulltext (in English) can be accessed at SSRN:

http://ssrn.com/abstract=1346325

Let’s see the three versions of English translation to Article 4(1) of Chinese Copyright Law:

Its Chinese orginal wording:

依法禁止出版、传播的作品，不受本法保护。

T1. In official database of the China National People’s Congress, this sentence is translated as:

Works the publication and dissemination of which are prohibited by law shall not be protected by this Law.

T2. In the China’s notification to the Council for TRIPS in 2002 (WT/IP/N/1/CHN/C/1), this sentence is translated as:

Works the publication or distribution of which is prohibited by law shall not be protected by this Law.

T3. In the WTO case DS362, the US and China agreed the following translation:

Works the publication and/or  dissemination of which are prohibited by law shall not be protected by this Law.

• According to T1, only when a work is prohibited publication and dissemination, it will not be protected by Chinese Copyright Law.
• According to T2, either when the publication or when the dissemination of a work is prohibited, it will be excluded the copyright protection.
• According to T3, if a work (1) the publication and dissemination are both prohibited; (2) one of them  is prohibited, it will be denied the copyright protection.

As for the WTO DS362 case, the distinction of these three translations may not be interested by the US negotiators because they might believe any version of such provision would violate the TRIPS obligation as it conflicts to the “automatic protection” principle stipulated in Berne Convention.

However, when we turn back to the domestic level and provided that the censorship would not be abolished in the near future, the distinction might be very significant. For instance, if someone “disseminated” (Alert: the “disseminate” dose not equal to “desseminate to the public”) a self-made movie about the fire at the CCTV (or TVCC, whatever) to his 10 friends privately, whether she would be protected by the current Copyright Law? If you know China, you will understand the movie would never be approved publication – attention! another language mist – “publication” in Article 4 is different from “the right of publication” in Article 10(1) – the former is Chu Ban (出版, printed or duplicated for distribution), the latter is  Fa Biao (发表, decide to make the work available to the public). At the same time, even according to the current censorship regulations, the moive will not be prohibited to be disseminated. Therefore, this movie may belongs to the “works prohibited to be published” AND “can be disseminated lawfully”. In this circumstance, different translations would leads to different answers, and it seems the T1 version would be more reasonable. But why and by what legitimacy?

Yes, the above paragraph may just be stupid crabs. But what I want to say is: We need a long long long long march to archive the so-called Rule by Law – let’s just forget the Rule of Law for a while (or at least lower our estimation to its archivement before used to being Zhetenged by the poor legislation). We have to pay more attention to the meticulous research to the details of our rules, and from my view, we have to Zheteng our legislations and make it being proof of vagueness. There is too much work to be done before (or at least besides) falling into the controversial value-relevant noises.

ps: Don’t ask me what is the official language of China, I have answered it here (in Chinese).

Telecommunication and Communication Signal in Canadian Copyright Act

Easy124, a reader of this blog, sent me some provisions in Canadian Copyright Act, and asked me some questions on the performer’s rights in that law.

Actually I am not among professionals specially in Canadian law. Last time I read the Canadian Copyright Act was two months ago when I was revising my paper on orphan Works. So to me, his questions are opportunities for my study rather than enquires for somehow expertise.

There are three questions raised by Easy. I have mentioned one of them in a former post, which is about the unauthorized fixation of a performer’s performance. Here I’d like to discuss another interesting question: difference between “telecommunication” and “communication signal”. The last question about the Right to Remuneration will be disscussed later.

In Section 15 (1) (a) of Canada Copyright Act, the law noted that, if a performance is not fixed, its performer has the right:

(i) to communicate it to the public by telecommunication,
(ii) to perform it in public, where it is communicated to the public by telecommunication otherwise than by communication signal, and
(iii) to fix it in any material form,

Easy’s question are: What’s the difference between “telecommunication” and “communication signal”? Why the copyright is hereby refined to “perform [the performance] in public, where it is communicated to the public by telecommunication otherwise than by communication signal”?

In fact, these two terms has been legally defined in Sec. 2 of the Canadian Copyright Act:

“communication signal” means radio waves transmitted through space without any artificial guide, for reception by the public;

…

“telecommunication” means any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system;

Therefore, any interpretation to these two terms shall not be out of the above definitions, even if it is of a common understanding in daily life. One may find that the “communication signal” is hereby a sub-concept of “telecommunication”. As to the performer’s right, “communicated by telecommunication” covers any means of transmitting the performance.

In Sec. 15 (1) (a) (i), when a performance is performed NOT in public (ex. perform a song in studio), she has the right to communicate her performance “by telecommunication”. That means, any communication by telecommunication must be authorized by the performer.

However, in case of public performance like a concert, which is regulated in Sec. 15 (1) (a) (ii), the performer owns merely the right to communicate her performance by telecommunication but exclude the communication signal. That means, if a Radio program or a TV station hope to broadcast a public vocal concert, it would not have to get the permission from the performer.

At the same time, the Radio program’s broadcasting must comply with two premises:

(1) NOT outside of the above definition of communication signal. That means its radio waves must float in the air and can be recieved by anyone who wants get them.

(2) NOT fix the performance because this sub-section is under the Sec. 15 (1) (a), which is ONLY dealing with the performer’s right when the performance is not fixed. This requires the radio program must be a live one, which is transmitted instantly and cannot be replayed. According to sub-section (iii) in Sec. 15 (1) (a), either the radio station or the recipient of the radio waves shall not fix the performance unless they get the authorization from the performer.