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Global Artists' Issues: focus on China

in cra-briefings29 · September 15, 2005

China’s first Copyright Act was enacted in the 1990’s shortly before, and as a necessary precursor to, joining the World Trade Organization. There is very limited information available on the status of the creator in China prior to the development of the first copyright act. However as the express intention of the government in introducing copyright legislation was to protect domestic enterprises that are mostly state owned, we can presume that the status of the creator was of minimal concern. The Copyright Act was substantially amended in 2001, and is now a tool that offers some useful protection to Chinese creators. However, these protections do not go beyond the minimum levels required by the Berne Convention, and therefore, for example, do not include moral rights. Despite this progress, the legislation still has a number of problems. Revisions currently being contemplated include anti-piracy measures and steps that would allow creators to organize collective societies for the administration of their rights. The text of the Chinese copyright act can be found at UNESCO’s site.

The Chinese government has acknowledged that it is facing an up hill battle with respect to intellectual property protection and enforcement within its boarders. This problem is ever increasing as China embraces the Internet at a phenomenal speed. To respond to piracy on the Internet, the government has indicated that it will establish a notice and takedown regime, similar to that of the US in order to address issues related to ISP liability. See: www.chinadaily.com.cn.

Creators in China have been pressing for reasonable and effective copyright law for many years. Their lobbying effort predates the first copyright legislation. As things stand, there are three levels of government involved in the administration of copyright, federal, provincial and municipal, the consequence being inconsistent practices in the enforcement and administration across the country. Recently there has been some movement on the part of the Chinese government to centralize administration of copyright law.

Some progress that has obviously been made in the direction of recognizing and protecting Chinese creators’ rights as is evidenced in the government’s White Paper on IPR Protection released in April 2005. The paper highlights regulations that have already been introduced that comply with the Berne Convention and other international copyright law treaties such as the TRIPs. as well as new regulations, which, for the first time, allow collective organization and the collective administration of copyright rights in China. The Music Copyright Society of China has begun this process in music and is working toward the licensing these rights in China. (See www.mcsc.com.cn.)

FREEDOM OF EXPRESSION

Despite increased clarity and relevance of the law, organizations such as Reporters Without Borders remain concerned about the status of the journalists and journalistic freedoms in China. Fears about the freedom expression were raised recently by a new requirement that individuals and organizations communicating on the web register with the Government and refrain from using profanities or making anti-government statements. There remains a degree of defiance on the part of the creative community in China, as only approximately 10% of those presumed to be posting, blogging and hosting on the web have actually registered.

Expatriate and exiled Chinese artists are also working to protect freedom of expression in their home country through the Chinese Centre of International PEN (ICPC) www.penchinese.net . ICPC also strives to publish the works of writer resident in China whose works cannot otherwise be published because of alleged political suppression.

PIRACY IN INTELLECTUAL PROPERTY

Perhaps the greatest issue facing Chinese artists hoping to sell their work internationally is piracy. Some estimates indicate that of all the commercial goods sold in China, 90 percent are pirated. All governmental and commercial parties dealing with China are aware of this. In fact, China has long been a prominent figure on the American watch list of countries involved in piracy of intellectual property. (The list is kept pursuant to Section 301 of the US Trade Act, 1974.) During a June visit to Beijing, the US Commerce Secretary, Carlos Gutierrez, commented that the US would like to see greater anti-piracy efforts from China. In conversations with Chinese government officials, Gutierrez indicated that “now is the time to see some results”.
See: http://tinyurl.com/dyuzq. For more information on Gutierrez statement see www.washingtonpost.com.

The Chinese government is beginning to respond to international pressure. In addition to offering rewards of up to $36,000 for people who report piracy, the Chinese have also created courts that are specifically designated to deal in intellectual property issues. See: www.businessweek.com.

The Court recently concluded the first prosecution of copyright infringement case occurring on the Internet. http://www.chinatechnews.com/index.php?action=show&type=news&id=2611

INTERNATIONAL INVASION

Business has readily recognized the vast potential of the Chinese market for intellectual property goods and Internet marketing. As trade barriers have fallen, foreign corporations have partnered with Chinese companies, or opened new businesses in the country hoping to serve its population and increase their market exposure. For example, Google has recently opened an international office in China to facilitate international meetings and services to the Chinese community. http://www.siliconvalley.com/mld/siliconvalley/news.editorial/11624249.htm

ORGANIZATIONS DEALING WITH CREATORS RIGHTS AND COPYRIGHT IN CHINA

Litigation