Dec 11, 2007

Neighboring Right Owners' Rights to Communicate to the Public through Information Networks in China Copyright Law

Neighboring Right Owners' Rights to Communicate to the Public through Information Networks in China Copyright Law

DONG Hao

LLB, LLM, PhD Cand., Teaching Fellow in YNU, Member of China Bar

Fulltext is published in Journal of Yunnan University - Law Edition, Vol. 20 No. 5 (2007).

Abstract:

The Copyright Law of People's Republic of China ("The Law" hereinafter) authorizes neighboring right owners (performers, sounds recorders and video recorders) some "Rights of Communication to the public through Information Networks". This article notes the following arguments:

(1) According to The Law, these rights are different to copyright owner's "Right of Communication of Information on Networks".

(2) A performer is incapable to enjoy the right of communicate his own performance to the public on information network, but can merely authorize others to communicate his performance to the public on information network.

(3) The sounds recorders and video recorders should have the "right of communication to the public on information network by themselves", but The Law neglected it wrongfully.

(4) The distinction between "distribution" and "communication to the public on information network" should be clarified by the way of understanding the differences among "works", "medium of works", "tangible medium" and "intangible medium".

(5) It is reasonable to restrict the Radio and Television Stations from enjoying the right to communicate to the public on information networks.

Keywords: information network, neighboring right, performance, recording, medium of works


Reason of not using "Phonograms" in this abstract: I don't think it is equal to "recording" described in Chinese Law.

Dec 1, 2007

Adults Only

Warning: This page CONTAINS MATERIAL WHICH MAY OFFEND, ADULTS ONLY.





Killing monks?! FUCK YOU.



Photo Description: Burma monks use this kind of umbrella.

HONG KONG Legal Resources on the Internet

  • The Laws of Hong Kong (BLIS)
    This has been the Bilingual Laws Information System (BLIS) on the Internet prepared and hosted by the Department of Justice of Hong Kong for free public access since November 9, 1997. BLIS contains the Laws of Hong Kong in both Chinese and English. Users can search and retrieve the ordinances and Sub-Legislation from BLIS. This service is free of charge.
  • Hong Kong Judiciary (Courts) Homepage Judgments delivered by various Hong Kong courts since 1993 are available on this web site

Government Information on the Internet


Background Information and News Resources on the Internet

Information R/Evolution, Are You Ready?




are we ready?

Nov 12, 2007

Revisit the Nature of Copyright Law

Revisit the Nature of Copyright Law: Distinctions between Distribution and Making Available, between Civil Liability and Criminal Liability

[This is an assignment for the IP Law course in CityU of HK]

DONG HAO

I. Introduction

Mr. Chan Nai-ming might not forecast himself being such a well known name among copyright lawyers when the officers of customs raid his home in the morning of 12 January 2005.[1] Exhausted the litigating process,[2] still, Chan was sentenced in jail for attempting to “distribute” an infringing copy of a copyright work “to such an extent as to affect prejudicially the owner of the copyright”.[3] This case not merely sets “a surprisingly low level” test which is commented as being “counter-intuitive to the goals of curbing the problems piracy poses”,[4] but also interprets “distribution” and “copy” in a broad way which overlaps the conducts of transmitting the digital file through the Internet. Based on the principle of stare decisis, the case, at least in the jurisdiction of Hong Kong, will deeply affect the system of the copyright protection. Nevertheless, this paper will question the rationale of the judgment, and analysis the reasonable outcome in the context of civil law system. Then I will briefly revisit the nature of copyright to illuminate the border between civil liability and criminal prosecution which should be set in coping with the infringement of the copyright in the Internet age. After this explanation, the “parental liability” for copyright infringement by minors will be relatively clearer out of the controversial debates on the issue.

II. “Intangible Medium” and the Distinction between “Making Available” and “Distributing”

Great thinker Jeremy Bentham had distinguished “a book of expository jurisprudence” and “a book on the art of legislation” in the legal discussions.[5] I do not agree with the rationale of Chan Nai-ming case because the judges ignored this distinction and involved themselves into a controversy of legislative choice.[6] In the first instance of the case, because the Magistrate Mackintosh deems that the provision “uses ordinary language”,[7] he ignored the language used in statutes shall not be interpreted in ordinary imagination but has to be restricted in compliance with an integrally self-satisfactory logic, so he audaciously, if not wrongfully, integrate Chan Nai-ming’s “uploading” conducts into the “downloading” conception.[8] Furthermore, left the provision along, he, with the art of legislation, condemn Mr. Chan’s conduct constituting a “prejudicial effect” since “widespread existence of counterfeits tends to degrade the genuine article and undermines the business of copyright owners”.[9] In the second instance of the case, the court, creatively again, included the situation in Section 26 of Copyright Ordinance as a part of Section 24.[10] Moreover, Hon Beeson J, like a legislator, endorse the criminal sentence without consideration of the rationale of “prejudicial effect” test. In the final judgment, the court dismissed the appealing, but, selectively like a legislator, “leave open” the pivotal question on whether “distribution of a copy” necessarily requires the transfer of a copy.[11]

According to the principle of nullem crimen (poena) sine lege, i.e. no crime (punishment) without a law, a court shall not exceed the existing law when considering the criminal cases - that is legislators’ job. So if the “distribution” can not be constituted without the transferring of the copies from the uploader’s possession to that of the downloaders, the criminal shall not be found because the statute provision had clearly restricted the punishment to the conduct of distribution, plus the satisfaction of the requirement of “judicial effect”. This is the key issue in the Chan Nai-ming case.

Although Hon Beeson J is right on the opinion of “the Ordinance does, and was intended to cover, copies in digital format”,[12] he and other judges in this case not clearly analyze the nature of this kind of “copies in digital format”. This new format of the copy is distinct to the traditional conception in its medium. In the United States, copyright law's fixation requirement included a test of “tangible medium”,[13] however this test has been widely questioned.[14] The development of technology increased digital files which can still be regarded as a kind of the “fixation” of the “ideas” because copying of these file will not affect the “expression of the ideas”, i.e. “works”, which is the object of copyright protection. To illuminate the distinction between the act of distributing and the conduct of “making available”, one shall understand the relationship between “intangible medium” and “tangible medium”.[15]

From the technological perspective, even in the so-called digital age, intangible medium and tangible medium of the same work may exist at the same time - A CD disk is tangible medium, the digital files stored in the disk is intangible medium. The only difference is: the intangible medium can be separated from the tangible medium. This is actually not a new phenomenon in the digital age, in the age of broadcasting, the transmitting of intangible medium became possible but that is costly. With the emergence of the personal computers, copying of the intangible medium became familiar to ordinary people. But attention, it is still “copying” because the copies, no matter tangible or intangible they are, are duplicated. The revolution happens in the Internet age: the less costly transmitting technology makes the digital files can be easily “moved” from one tangible medium to another – the premise is: the original copy of the digital file is erased at the same time of “moving”.

From the legal perspective, however, this revolution was ignored and the law interpreted the transmitting of the digital files by “temporary copying”. Furthermore, in most digital transmissions, the original file will not be deleted, which also happens in the Chan Nai-ming case, so legally speaking, any transmitting is a conduct of duplication. The act of transmitting copies without authorization is infringing author’s and / or copyright owner’s right of duplication, which is clearly a branch of copyright in civil law system. However, this approach still can not fulfill the requirement of copyright protection since the subjects of “duplicating” are those “downloaders”, so by this approach, if a person share a intangible medium, which is licensed to him, through the Internet, his liability will at most the secondary liability of the copyright infringement. To find the secondary, or adjuvant liability, the direct conduct of the downloading should be proved firstly. To strengthen this weakness, the right of “making available” is emerged and finally be accepted by both international treaties and domestic legislations. This right is reasonable because the nature of copyright is a kind of “exclusive right” which can be developed by the law. In other words, as a legal but not “ordinary” term, the right of “making available” is by its nature differentiating to the right of duplication, the right of distribution and any other branch of the copyright.

As to the “distribution”, as a legal term, it can not be interpreted arbitrary. Seem to the right of “making available”, the reason of prohibiting “unauthorized distribution” is to supplement the right of duplication in another aspect. For instance, if a printing manufactory duplicated a great amount of copies of a book with permission of the copyright owner, then it distributes these copies without the copyright owner’s permission, it is the infringement of right of distribution. This term by its nature is based on the tangible medium because only in the circumstance of transferring “hard copy” of a work, it can be distinct to the right of duplication.

III. The “Prejudicial Effect”

As a refraining of the abuse of the copyright in its “distribution” branch, the copyright ordinance employed “prejudicial effect” as a premise. I think it reasonable because it can avoid the conflict between the provisions of exhaustion of rights, i.e. the first sale principle. Hence as a refraining, it shall not be so broad. However, on interpreting prejudicial affect, Magistrate Colin Mackintosh found that:

“It was a distribution in a public open forum where anyone with the appropriate equipment could obtain an infringing copy from the defendant. The technology has developed to such a point that the prejudice to the copyright owners when their films are distributed in this fashion is, in my judgment, manifest. And these were attempts to commit offences even if the completed offences had not been committed.”

This argument was supported by the appealing courts and no more substantial narration of this issue since the appellant did not questioned this issue. Nevertheless, even forget the misunderstanding of the term distribution, this reasoning is still inappropriate. From my opinion, this argument will find its legitimacy only when the following facts are proved: firstly, how many people (normally) visit the forum; secondly, how many authorized copies of the films have been sold in the market; thirdly, how much percentage if these movies are for sale the downloaders will still buy it;[16] fourthly, how long were Mr. Chan connecting the line, etc. Before these de facto situation are confirmed, how can a court find the conduct of placing a seed in the open forum would, even possibly, causes the prejudicial effect to the copyright owner? Do not forget it is in a criminal procedure, in which if the evidence is not clear, the principle of the Presumption of Innocence will prevent the finding of guilty.[17] In his article,[18] Michael Filby has estimated that after “an uncomfortable and ongoing battle between the law and cyberspace”, and after the passing of many years, litigation and expense, eventually result in the industries recognizing the new opportunities for e-commerce. However, in my opinion, this battle could be avoid if the courts insist on the basic principle of criminal law.

IV. The Nature of Copyright and the Parental Liability

What is the nature of copyright? Three distinct school has discussed it for years. The first school, based on the system of natural law,[19] derivates the theory from the Locke’s notion of the right from labor.[20] The second believes that the law copyright is mostly emerged from the demanding of the intellectual products, and publication and obtaining reward is the ultimate aim of copyright owner.[21] The third is a positive and historical approach; it believes the copyright is by its nature a kind of statute right transforming from the right of the printing manufactures and can is continuously being adjusted by the development of the social circumstance.[22] I argue for the third one because it is simply telling the real story of the evolution of copyright law. Positively speaking, the copyright is a kind of exclusive right, which means if some right is given to the right owner, right owner may preclude obstacles of exploring the right. So in the civil aspect, the parental right is reasonable because the minor’s behaviors may reverse the owner’s purpose, and the nature of the copyright is to preclude this obstacle.

Some scholars suggest that Courts should extend the doctrine of parental liability for the tortious acts of children to copyright infringement committed by minors in order to curtail such illegal acts.[23] A more sensible solution would be to impose a rebuttable presumption of parental liability. Others suggest that it is possible that parents could still be held liable if the child engaged in the infringement under the doctrine of contributory infringement.[24] These solutions are reasonable in the civil procedures since it dose not exceed the right owner’s own exclusive right. From the “art of legislation”, some scholars questioned this idea since they said that there is little evidence that parental liability laws have affected juvenile delinquency,[25] I can not comment to this argument because the correction of it can only be proved by the empirical research.

Nevertheless, the important thing lies in the criminal liability. As it has been said above, the copyright by its nature is just a kind of exclusive right. So it can not be compared with the real property unless the statute clearly provides the criminal responsibility to the parents. Why

V. Conclusion

The Chan Nai-ming case, the discussions on the parental liability and other issues in copyright law is controversial. To clearly answer these questions, the key approach is distinguishing the “legal interpretation” and the “art of legislation”. Chan Nai-ming case has been rule as law in the common law system, but the reason of it is actually not a persuasion. The distinction between “right of making available” (for intangible medium) and “right of distribution” shall be kept in mind especially when a court is considering the criminal case. Because of the same reason, the reasonable parental liability for copyright infringement by their children, especially via the internet, should be restricted in the civil perspective. For the criminal liability, as what shall be considered to the “prejudicial effect”, the fact and empirical research can support or oppose the idea, but the ultimate decision shall still not be provided by the judicial organs because the nature of copyright is a statute exclusive right.
[1] HKSAR v. Chan Nai Ming TMCC 1268/2005, para 6.
[2] Chan Nai Ming v. HKSAR FACC No. 3/2007.
[3] Section 118(1)(f) of the Copyright Ordinance, Cap 528 HKSAR 2001, which was replaced by 15 of 2007 s. 31 as s. 118(1)(f) of the Copyright Ordinance, Cap 528 HKSAR 2007.
[4] Michael Filby, Big Crook in Little China: The Ramifications of the Hong Kong BitTorrent Case on the Criminal Test of Prejudicial Effect, Working Paper, February 2007, available at http://www.bileta2007.co.uk/papers/images/stream_6/WeinsteinS_WildC.pdf.
[5] Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (London: Printed for W. Pickering, 1828), p. 256.
[6] Although, at least in the common law tradition, the judicial branch often produce somehow legislative outcomes in their decisions, a decision not complying with the existing statute provision should be avoid prudentially. In my opinion, when reasoning a case decision, the “art of legislation” shall be given place to the positive legal interpretation, or the arguments will be easily confused into economic, religionary and even ideological controversy.
[7] HKSAR v. Chan Nai Ming TMCC 1268/2005, para 30.
[8] Ibid, para 33.
[9] Ibid, para 38.
[10] HKSAR v. Chan Nai Ming HCMA 1221/2005 HKSAR, para 75.
[11] Chan Nai Ming v. HKSAR FACC No. 3/2007, para 58.
[12] Ibid, para 82.
[13] 17 U.S.C. § 102 (2000).
[14] See Kelly M. Slavitt, Fixation of Derivative Works in a Tangible Medium: Technology Forces a Reexamination, 46 IDEA 37 (2005).
[15] I have written an essay including this issue in details. See DONG Hao, The Right of Communication of Information on Networks: An Analysis to the Text of Copyright Law of People's Republic of China, pending for publication.
[16] It has been proved that the “lost” of the film and recording industries are not so huge because in many situations, the downloader will not buy the authorized copy.
[17] See James Cooper Morton, Scott C. Hutchison, The Presumption of Innocence (Carswell, 1987).
[18] Michael Filby, Confusing The Captain With The Cabin Boy: The Dangers Posed To Reform Of Cyber Piracy Regulation By The Misrepresented Interface Between Society, Policy Makers & The Entertainment Industries, Journal of International Commercial Law and Technology, Vol. 2, Issue 3 (2007).
[19] Peter Drahos, A Philosophy of Intellectual Property (Dartmouth Pub. Co. Ltd. 1996), pp.41-42.
[20] John Locke, Two Treatises of Government (China Social Sciences Publication House, 1999), pp.287-290.
[21] Ronald V. Bettic Copyright Culture, the Political Economy of Intellectual Property (Westview Press 1996), p.33.
[22] L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of User’s Right (The U. of Georgia Press, 1991), pp. 22-26.
[23] Chad Silver, Censure the Tree for Its Rotten Apple: Attributing Liability to Parents for the Copyright Infringement of Their Minor Children, 3 Cardozo Pub. L. Pol'y & Ethics J. 977, p. 979.
[24] Janelle A. Weber, Don't Drink, Don't Smoke, Don't Download: Parents' Liability for Their Children's File Sharing, 57 Fla. L. Rev. 1163, p. 1179.
[25] Amy L. Tomaszewski, From Columbine to Kazaa: Parental Liability in A New World, 2005 U. Ill. L. Rev. 573, p. 587.

Sep 14, 2007

If a Law Itself Disobey the Principle of Law, It is A Bad Law

China has promulgated many provisions on the Internet cotrolling. According to these regulations, not only commercial organs but also any of the personal website shall "record" the owner, the IP address, the domain name to the governmental agencies. However, this provision of "recording" is acctually a kind of licensing policy since if any of the above information is changed, the site owner shall record again. Violation of this regulation will lead to a punishment of termination of website. Furthermore, according to another provision, if a website provides any function of interactive communication including message board, BBS, comment box and so on, the web owner shall get a seperate license beforehand. To obtain this license, the web owner shall take part in a workshop of "network security management" held by the government and get a certificate from it.

In accordance with the above regulations, the new storm of banning Chinese individual websites is appeared lawful since most of the owner of the personal website can not afford time and money to obtain the licenses. I will not blame the enforcement of these regulation impulsively. From the legal perspective, my doubt is firstly on the legitimacy and the rationale of the legislation. Comparing to other communication systems, the feature of the Internet is interactive. It is hardly to find a website without the interactive functions. Requiring all websites "recording" seperately is not a good regulation because it ignored the basic character of the Internet.

As for the requirement of participating the "network security worksop", I can't find any reasonable excuse -- Regardless the arrangement of substantive rights and duties, the rule of law is at least based on the due process. Even from the very utilitarian and positive perspecitve of legal theory, if a procedural regulation is impossible to be fully enforced, this procedure is unreasonable. I can hardly imagine that in the era of web 2.0, in the era of anyone who has a computer can easily creat his/her own blog, the government can provide enough workshops for all "webmasters".) So the only way of implementing the regulations is selecting specific time (for example, before some important events like the national meeting of the party) and choosing specific objects. This way is bad because it violate the basic requirement of a "harmonious" society - EQUALITY. From the basic knowledge of jurisprudence, if a law itself disobey the principle of law, it is a bad law.

In fact, even "recording" is not as easy as it seemed should be. Government website for "recording" is so slow that can not be registered in easily; the time of "permitting the recording" is unlimited. So even those abiding the provision of "website recording" will encounter many obstacles. (if you can read Chinese, click here to read a webmaster's complaint).

Bad News - Some One Proposed to Deny Accesses from Governmental Network in A BBS

Yesterday, a post calling for a joint blocking of IP addresses belonging to governmental networks, copyright organizations and national gateways was published in "V2EX.com". V2EX is a famous web 2.0 Chinese community, which is believed to be blocked by G.F-W recently. This website, built by Livid Torvalds (Liu Xin), an excellent programmer born in Kunming, provides discussion boards service in a creative way. This new "BBS" attracts a great amount of visitors in a short period.

V2EX is believed to be blocked on 5 September under a storm of Internet Controlling. It remains not clear that which department of China's government is in charge of the whole action, while perhaps the storm is mainly for "creating a stabilization" before the 17th National Congress of Chinese Communist Party.

The author of the post suggest Chinese individual webmasters collect IP addresses of governmental networks, copyright organizations, judicial organs and other networks or servers may be employed to operate the so called "G-F.W".

THIS IS A BAD NEWS. Because this implies a possible upgrade of the tension between government and netizens. The similar upgrades have happened before in China, and some of them led to tragic finales. Fortunately, the calling in this post may not be successful since it is very hard to define which IP address should be banned, and a joint activity is too difficult to be practiced. Nevertheless, from the legal perspective, to ban any access to one's own website dose not violate the law, unless a new law claims that [b]any visisting[/b] from IP addresses in governmental network shall not be denied accessing to any database. If this becomes true, nothing can be better than leave the jurisdiction of such law because that is really an irreversible upgrade, i.e., "Matrix Reloaded" comes true.

I hope it never happens.

Sep 11, 2007

Hong Kong Legislation on the Cyber Crimes

1. Laws against Hacking (Unauthorized Access, Access with Criminal Intent)
There are two offences under the laws of Hong Kong aiming at "Hacking" activities:-
Cap.106 S.27a - Unauthorised access to computer by telecommunication
Cap.200 S.161- Access to computer with criminal or dishonest intent

CAP 106 TELECOMMUNICATIONS orDINANCE
Section 27A - Unauthorized access to computer by telecommunications - 16/06/2000
Section Num:
27A
Version Date
16/06/2000
Heading
Unauthorized access to computer by telecommunications


(1) Any person who, by telecommunications, knowingly causes a
computer to perform any function to obtain unauthorized access to any
program or data held in a computer commits an offence and is liable on
conviction to a fine of $20000. (Amended 36 of 2000 s. 28)
(2) For the purposes of subsection (1)-
(a) the intent of the person need not be directed at-
(i) any particular program or data;
(ii) a program or data of a particular kind; or
(iii) a program or data held in a particular computer;
(b) access of any kind by a person to any program or data held in a
computer is unauthorized if he is not entitled to control access of the
kind in question to the program or data held in the computer and-
(i) he has not been authorized to obtain access of the kind in
question to the program or data held in the computer by any person who is
so entitled;
(ii) he does not believe that he has been so authorized; and
(iii) he does not believe that he would have been so authorized if
he had applied for the appropriate authority.
(3) Subsection (1) has effect without prejudice to any law relating
to powers of inspection, search or seizure.
(4) Notwithstanding section 26 of the Magistrates ordinance (Cap
227), proceedings for an offence under this section may be brought at any
time within 3 years of the commission of the offence or within 6 months of
the discovery of the offence by the prosecutor, whichever period expires
first.
(Added 23 of 1993 s. 2)

--------------
CAP 200 CRIMES orDINANCE
Section 161 - Access to computer with criminal or dishonest intent - 30/06/1997
Section Num:
161
Version Date
30/06/1997
Heading
Access to computer with criminal or dishonest intent


(1) Any person who obtains access to a computer-
(a) with intent to commit an offence;
(b) with a dishonest intent to deceive;
(c) with a view to dishonest gain for himself or another; or
(d) with a dishonest intent to cause loss to another,
whether on the same occasion as he obtains such access or on any future
occasion, commits an offence and is liable on conviction upon indictment
to imprisonment for 5 years.
(2) For the purposes of subsection (1) "gain" (獲益) and "loss" (損失)
are to be construed as extending not only to gain or loss in money or
other property, but as extending to any such gain or loss whether
temporary or permanent; and-
(a) "gain" (獲益) includes a gain by keeping what one has, as well as
a gain by getting what one has not; and
(b) "loss" (損失) includes a loss by not getting what one might get,
as well as a loss by parting with what one has.
(Added 23 of 1993 s. 5)

2. Laws against Criminal Damage
Section 59 - Interpretation - 30/06/1997
Section Num:
59
Version Date
30/06/1997
Heading
Interpretation


PART VIII

CRIMINAL DAMAGE TO PROPERTY

(1) In this Part, "property" (財產) means-
(a) property of a tangible nature, whether real or personal,
including money and-
(i) including wild creatures which have been tamed or are
ordinarily kept in captivity, and any other wild creatures or their
carcasses if, but only if, they have been reduced into possession which
has not been lost or abandoned or are in the course of being reduced into
possession; but
(ii) not including mushrooms growing wild on any land or flowers,
fruit or foliage of a plant growing wild on any land; or
(b) any program, or data, held in a computer or in a computer
storage medium, whether or not the program or data is property of a
tangible nature.
In this subsection, "mushroom" (菌類植物) includes any fungus and "plant" (植物) includes any shrub or tree. (Replaced 23 of 1993 s. 3)
(1A) In this Part, "to destroy or damage any property" (摧毀或損壞財產) in
relation to a computer includes the misuse of a computer.
In this subsection, "misuse of a computer" (誤用電腦) means-
(a) to cause a computer to function other than as it has been established to function by or on behalf of its owner, notwithstanding that the misuse may not impair the operation of the computer or a program held in the computer or the reliability of data held in the computer;
(b) to alter or erase any program or data held in a computer or in
a computer storage medium;
(c) to add any program or data to the contents of a computer or of
a computer storage medium, and any act which contributes towards causing the misuse of a kind referred to in paragraph (a), (b) or (c) shall be regarded as causing it. (Added 23 of 1993 s. 3)
(2) Property shall be treated for the purposes of this Part as belonging to any person-
(a) having the custody or control of it;
(b) having in it any proprietary right or interest (not being an
equitable interest arising only from an agreement to transfer or grant an
interest); or
(c) having a charge on it.
(3) Where property is subject to a trust, the persons to whom it belongs shall be so treated as including any person having a right to enforce the trust.
(4) Property of a corporation sole shall be so treated as belonging to the corporation notwithstanding a vacancy in the corporation.
(Added 48 of 1972 s. 3)
[cf. 1971 c. 48 s. 10 U.K.]

------------
Section 60 - Destroying or damaging property - 30/06/1997
Section Num:
60
Version Date
30/06/1997
Heading
Destroying or damaging property


(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.
(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another-
(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered,
shall be guilty of an offence.
(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.
(Added 48 of 1972 s. 3)
[cf. 1971 c. 48 s. 1 U.K.]

"Real Name Card" in Internet Cafes: Unreasonable Regulation

In most legal Internet Cafes in mainland China, one has to provide his / her "real name card" when he / she hopes to login on a computer and surf the line. The name, resident ID number and other information are integreted in these cards and they are granted by some goverment angencies. The government officers seem believe these cards can prevent the breach of the law when internet users surfing the line.


I can't imagine how this regulation can be implemented since the cost of implementation is so high that no goverment agencies are capable to check whether the users are really using their own "real name cards". The old Chinese saying tells us that stopping up the speaking is more difficult than blocking up the river.

Actually, before using the "real name card", one has to provide his / her Resident ID Card in the Internet Cafes. I can't understand the distinct between these two cards in controling the acts of the internet users. So even we ignore questioning the legitimacy of controling speaking, what is the reasonable argument for this redundant regulation can still be problematic. Also, the old Chinese saying remindes us "it is stupid to sell water to fisherman".

The regulation of using Real Name Card will only be benifit to the manufacturer of Real Name Cards. I dare not and have no evidence to suspect the relationship between manufacturers and the goverment agencies. However, it is of cause will increase the possibility of corruption. And, to prevent this corruption, extra cost will be paid definitely. Are the bills really be printed without the contribution of tax payers?

Sep 10, 2007

Why Choose Blogspot Hosting My English Blog?

Everyone except some Chinese Netizens in this planet has known for a long time: blogspot is blocked by China, then why do I choose it hosting my English blog?

Choosing Blogspot, I may get very limited visitors from mainland China. Although it is an English blog, I believe most of entries here are more attractive to those people in China - either speaking Chinese or English - than in anywhere of the world.

Choosing Blogspot, I may encounter difficulties when I tried to post entries or manage my blog. Most of my business stays in China until now, which means most of my life may be spent in China. I may not so easy to access my own site when I am back to my hometown.

Am I such a freshman who just begin blogging? No. My homepage has been launched to the Internet near 10 years, and I have been involved in the study of Internet Law (Cyber Law) over 5 years. I've read perhaps every provision of Chinese Internet regulation, and I have observed most of important events in the history of the Internet governance by Chinese Government.

Am I such a young radical activist? No. From my knowledge, no one will really win in a political debate. If there must be a winner, he / she must be the stronger. And furthermore, I don't, and I am not capable to, care about the so-called democracy and other political issues. I just hope to feed myself with my professional knowledge.

Am I intended to publish the rubbish and spamming the Internet? No. I am a lawyer. A lawyer will not be so stupid to leave evidence even when he was compelled to do something perhaps illegal. While my blog is of a purely legal one, at least according to the existing Chinese law. No unsolicited message, no pornography, no drug abuse, no Child sex, no privacy violation, no piracy, no violence, no terrorism, and of course, no threaten to the national / international security. Plus, I am planning to add "no smoking" and "no snore". My blog focus on academic and professional topics, even my personal hobbies are banned by myself. So if a government bans this site because of its content, the reason should only be: there are some contents here.

Then why I choose Blogspot, a blocked hoster?

Because my responsibility to the Chinese people? No. I wish I were so patriotic, but I always disappoint myself by falling into the daily work. I have to confess that each time when I saw my friends are using those outdated web services, I feel sorry. But I don't and cannot be their father. When people ask me questions about the new applications in the Internet, my answer are normally simple and selfish: search and try them by yourself.

Well, enough, there may be other mistaken answers. I'm tired to explain more. Now let me release the correct simple answer:

Because I have registered a Google account, and its service is good enough for me.

The Internet is the tool of my work and the toy of my relaxation. I don't hope to be the slave of my tool and toy. If a tool is good enough, why do I choose another? My computer was bought 6 years ago. It still can run software what I need, so I don't buy a new one. My first website was based on a simple template of FrontPage (an old Microsoft software) and published in 1998. It is replaced till 2003, because it cannot satisfy my needs of upload new entries every day. My Chinese blog was set up in 2005, it runs well but the technical support is poor, so I may change to another some day (God knows when it will be).

Similarly, Google's services are not bad, I enjoy using Gmail, Google reader and other applications with a sole account. And most importantly, its services are updating. I don't want switch to another service provider. I need a pure English blog service which is stable and is compatible to my Chinese site. Blogspot is enough.

You may say a blocked Google is nothing. But how can you predict which is the next one? The trend is: when a new website is good enough to attract Chinese visitors, it is facing the fate of blocking. The cases of Flickr and Feedburner, the unblock of Technorati has proved that the blocking is extremely arbitrary. I will not discuss the legitimacy of the blocking in this essay. And I may never discuss this topic in the future since I don't used to discussing a topic on which the academic conclusion is useless to the legal practice. What I am talking about is a common sense:

If each line is possible to be cut off, why do I waste time to find and study a line that I haven't touched before?

Actually, in my BlawgDog.com, an English channel (so just click here if you are in mainland China) has been set up from the very beginning. Because the blog system I used is based on Chinese, the pages in this English channel still includes many Chinese buttons. So what I need is just a blog service that may be used to establish a pure English branch to perfect my BLawgDog.com, Blogspot is enough.

Again, Google has provided what I want, and what I don't want was not conducted by Google itself. If I choose other sites, I am doing a censorship too, and this self-censorship can't help me since it can't prevent my hoster being blocked tomorrow morning.

Sep 9, 2007

TO BURN, or TO BE BURNED OUT?

Since 30 August, Feedburner has been burned out in China. That means, "feeds.feedburner.com" is blocked in China.

No comment. I have been tired since they block Flickr.

Oh, btw, a tip in Chinese legal practice:

If someone say "f...k you little girl" in public website, he will not be punished; but if anyone say "f...k you" to any party member who stay a higher position than him, he will get 90% opportunity to face a criminal prosecution.

F...K YOU.

Erogenous webpages recently visited

Here is a list of cool, hot and attactive web pages I've visited recently.
- Cloudless Blog (EN): Hong Kong Photolog by Sunny, a Hong Kong photographer.
- Magazine covers in ancient China (CN): One of the most interesting creatives I've ever seen.
- COOLSITEOFTHEDAY.com (EN): Searching the cool sites but most of them are not cool enough.
- Fuckingnews.tv (EN): News with full of f words, funny but not as humors as I estimated.
- TianYi Community (CN): Appearantly, it is a good resourse for getting common sense.
- PostSecret (EN):Post your secret if you want, but remember: it should be fun.

WCT and WPPT Resource Center

Resources on WIPO Website:(http://www.wipo.int/copyright/en/activities/wct_wppt/wct_wppt.htm)
Publications
WIPO Treaties: Guide & Glossary
Documents
The WCT and the WPPT (Adobe PDF)
Advantages of Adhering to the WCT and the WPPT (Adobe PDF)
Survey on Implementation Provisions of the WCT and the WPPT (Adobe PDF)
Leaflet
"The WIPO Internet Treaties" (Adobe PDF)
Meetings
Seminar on the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT): Opportunities and Challenges (Geneva, May 16, 2002)
Workshop on Implementation Issues of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) (Geneva, December 6 and 7, 1999)
Diplomatic Conference of 1996 (Geneva, December 2 to 20, 1996)
Ratification
Text and Ratification Status of the WIPO Copyright Treaty
Text and Ratification Status of the WIPO Performances and Phonograms Treaty


Books:
Mihály Ficsor, The Law of Copyright and the Internet : the 1996 WIPO Treaties Their Interpretation and Implementation, Oxford : Oxford University Press, 2002CityU Lib CN: K1420.5 .F53 2002
WIPO Copyright Treaty (WCT) (1996) : with the agreed statements of the diplomatic conference that adopted the treaty, and the provisions of the Berne Convention (1971) referred to in the treaty, Geneva : World Intellectual Property organization, 1997CityU Lib CN: K1441.A41996 A2 1997
Jörg Reinbothe, Silke von Lewinski, The WIPO treaties 1996 : the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty : commentary and legal analysis, London: Butterworths, 2002CityU Lib CN: KF2995 .R45 2002
David Nimmer, Copyright : Sacred Text, Technology, and the DMCA, The Hague ; New York : Kluwer Law International ; Frederick, MD : Sold and distributed in North, Central, and South America by Aspen Publishers, 2003CityU Lib CN: KF3030.1 .N56 2003
Alan Williams, Duncan Calow, and Nick Higham, Digital media : Contracts, Rights and Licensing, 2nd ed, London : Sweet & Maxwell, 1998CityU Lib CN: KD1289 .W54 1998


Articles:
Validity, Construction, and Application of Digital Millennium Copyright Act (Pub. L. No. 105-304, 112 Stat. 2860 (1998)) / by Amy P. Bunk, J.D. [American Law Report (ALR)]
Mihaly Ficsor, The Wipo "Internet Treaties:" The United States as the Driver: The United States as the Main Source of Obstruction -- As seen by an Anti-Revolutionary Central European, 6 J. Marshall Rev. Intell. Prop. L. 17
LULIN GAO, INTELLECTUAL PROPERTY RIGHTS IN THE INTERNET ERA: THE NEW FRONTIER, 5 J. Marshall Rev. Intell. Prop. L. 589
MICHAEL A. GEIST, DORIS ESTELLE LONG, LESLIE ANN REIS, DAVID E. SORKIN AND FRED VON LOHMANN, Copyright & Privacy: Collision or Coexistence? Conference Brochure: Copyright & Privacy -- Through the Technology Lens, 4 J. Marshall Rev. Intell. Prop. L. 242
Stefan Bechtold, Digital Rights Management in the United States and Europe, 52 Am. J. Comp. L. 323
Eric Priest ,The Future of Music and Film Piracy in China, 21 Berkeley Tech. L.J. 795
JUSTIN HUGHES, The Internet and the Persistence of Law, 44 B.C. L. Rev 359
Michael D. Birnhack, GLOBAL COPYRIGHT, LOCAL SPEECH, 24 Cardozo Arts & Ent LJ 491
Michael Gruenberger, A DUTY TO PROTECT THE RIGHTS OF PERFORMERS? CONSTITUTIONAL FOUNDATIONS OF AN INTELLECTUAL PROPERTY RIGHT, 24 Cardozo Arts & Ent LJ 617
Jane C. Ginsburg, Legal Protection of Technological Measures Protecting Works of Authorship: International Obligations and the US Experience, 29 Colum. J.L. & Arts 11
June M. Besek, Anti-Circumvention Laws and Copyright: A Report from the Kernochan Center for Law, Media and the Arts, 27 Colum. J.L. & Arts 385
BOOK REVIEW: Achieving Balance in International Copyright Law: The WIPO Treaties 1996: The WIPO Copyright Treaty and The WIPO Performances and Phonograms Treaty: Commentary and Legal Analysis. By Jorg Reinbothe and Silke von Lewinski, 2002. Pp 581. Reviewed by Jane C. Ginsburg, 26 Colum. J.L. & Arts 201
AASHIT SHAH, UK's Implementation of the Anti-Circumvention Provisions of the EU Copyright Directive: An Analysis, 2004 Duke L. & Tech. Rev. 3
Urs Gasser, Legal Frameworks and Technological Protection of Digital Content: Moving Forward towards a Best Practice Model, 17 Fordham Intell. Prop. Media & Ent. L.J. 39
Fara Tabatabai, A TALE OF TWO COUNTRIES: CANADA'S RESPONSE TO THE PEER-TO-PEER CRISIS AND WHAT IT MEANS FOR THE UNITED STATES, 73 Fordham L. Rev. 2321
Guido Westkamp, TRANSIENT COPYING AND PUBLIC COMMUNICATIONS: THE CREEPING EVOLUTION OF USE AND ACCESS RIGHTS IN EUROPEAN COPYRIGHT LAW, 36 Geo. Wash. Int'l L. Rev. 1057
Guido Westkamp, THE RECOGNITION AND STATUS OF TRADITIONAL KNOWLEDGE IN THE CONFLICT OF LAW, 88 J. Pat. & Trademark Off. Soc'y 699
Alexander Peukert, A Bipolar Copyright System for the Digital Network Environment, 28 Hastings Comm. & Ent. L.J. 1
Alan Story, BURN BERNE: WHY THE LEADING INTERNATIONAL COPYRIGHT CONVENTION MUST BE REPEALED, 40 Hous. L. Rev. 763
Antony Taubman, NOBILITY OF INTERPRETATION: EQUITY, RETROSPECTIVITY, AND COLLECTIVITY IN IMPLEMENTING NEW NORMS FOR PERFORMERS' RIGHTS, 12 J. Intell. Prop. L. 351
Peter K. Yu, INTELLECTUAL PROPERTY AT A CROSSROADS: THE USE OF THE PAST IN INTELLECTUAL PROPERTY JURISPRUDENCE: CURRENTS AND CROSSCURRENTS IN THE INTERNATIONAL INTELLECTUAL PROPERTY REGIME, 38 Loy. L.A. L. Rev. 323
Graeme B. Dinwoodie, The Development and Incorporation of International Norms in the Formation of Copyright Law, 62 Ohio St. L.J. 733
IAN R. KERR, ALANA MAURUSHAT AND CHRISTIAN S. TACIT, Technical Protection Measures: Tilting at Copyright's Windmill, 34 Ottawa L. Rev. 7
Irene Segal Ayers, THE FUTURE OF GLOBAL COPYRIGHT PROTECTION: HAS COPYRIGHT LAW GONE TOO FAR? 62 U. Pitt. L. Rev. 49
ANDREW CHRISTIE and ELOISE DIAS, The New Right of Communication in Australia, 27 Sydney L. Rev. 237
Lance Clouse, Virtual Border Customs: Prevention of International Online Music Piracy within the Ever-Evolving Technological Landscape, 38 Val. U.L. Rev. 109
WENCKE BASLER, Technological Protection Measures in the United States, the European Union and Germany: How Much Fair Use do We Need in the "Digital World"?, 8 Va. J.L. & Tech. 13
Michael Mertens, THIEVES IN CYBERSPACE: EXAMINING MUSIC PIRACY AND COPYRIGHT LAW DEFICIENCIES IN RUSSIA AS IT ENTERS THE DIGITAL AGE, 14 U. Miami Int'l & Comp. L. Rev. 139
Thomas Heide, Access Control and Innovation under the Emerging EU Electronic Commerce Framework, 15 Berkeley Tech. L.J. 993
Nicola Lucchi, Intellectual Property Rights in Digital Media: A Comparative Analysis of Legal Protection, Technological Measures, and New Business Models under EU and U.S. Law, 53 Buffalo L. Rev. 1111
Matthew D. Asbell, COMMENT AND RECENT DEVELOPMENT: PROGRESS ON THE WIPO BROADCASTING AND WEBCASTING TREATY, 24 Cardozo Arts & Ent LJ 349
Adler Bernard, The Proposed New WIPO Treaty for Increased Protection for Audiovisual Performers: Its Provisions and Its Domestic and International Implications, 12 Fordham Intell. Prop. Media & Ent. L.J. 1089
Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 Harv. Int'l L.J. 353
Emily Grant, The Right of Publicity: Recovering Stolen Identities Under International Law, 7 San Diego Int'l L.J. 559
Lance Clouse, Virtual Border Customs: Prevention of International Online Music Piracy within the Ever-Evolving Technological Landscape, 38 Val. U.L. Rev. 109
Kara M. Wolke, SEVENTH ANNUAL ENTERTAINMENT LAW INITIATIVE ESSAY COMPETITION: Some Catching Up To Do: How the United States, in Refusing to Fully Sign On to the WPPT's Public Performance Right in Sound Recordings, Fell Behind the Protections of Artists' Rights Recognized Elsewhere in this Increasingly Global Music Community, 7 Vand. J. Ent. L. & Prac. 411

Jun 7, 2007

Flickr is FILTERED

Flickr is FILTERED, suddenly but not astonished, because we have used to be filtered without any notices and reasons. According to William Long, The way of filtering are simple, effective and as rude as it was. The two domain names that are used to store the photos are listed in some famous fire wall (farm1. static. flickr. com and farm2. static. flickr. com -- spaces are added after each dot. I know it is not necessary since blocked domain name are listed differing to the content list, but nothing is impossible. I mean, OK, rape me, I know I've no choice and I've used to it, but tell me before doing it, please).

Flickr LOVES YOU, and YOU LOVE Flickr, BUT THEY DON'T.

Who is the next? Gmail? Feedburner? Netvibes? or, the whole INTERNET out of the border, no, out of their control? They don't care your murmur since you are nothing, and they believe, for the profits, those companies will knock their door after self-castration.

One may ask: but who will love an eunuch? My answer is: they will not be regarded as disables since no comparation here, and furthermore, eunuches may be a better choice than rapists.

I was to write something about the possible way of claiming the damages for owners of Flickr Pro Accounts, following the model of Yetaai. But I am tired, very tired.

Apr 29, 2007

License to Sing Finds no Legality in Chinese Law

Chinese official news agency reported this month that the Ministry of Culture is going to promulgate rules requiring singers and other entertainers to have a license in order to practice their profession. The Chinese Law Prof. Blog thought poorly of this forthcoming regulation but seems couldn't help it since China's Administrative Licensing Law dose not clearly prohibit the governmental authorities issue this kind of license.

If we merely read the articles in Administrative Licensing Law, it seems really a pity. Fortunately, some other existing legal documents may block the attempt of this kind of ridiculous regulation.

Firstly, the Ordinance of Entertainment Place dose not require any specific license to the people who work in the entertainment place. In its Article 25, the only certifying requirement to the employees is their Resident ID card (except foreigners, this dose not breach the GATS, by the way). This ordinance was promulgated by central government in 2006, and according to China's Legislation Law, it will prevail over any departmental regulations when the conflicts happen.

Secondly, the Ministry of Culture itself, joint with other departments in 2005, promulgated a binding regulation to encourage the development of private entertainment organizations. In this document, the requirement of license to individual performers has been abolished in paragraph 2.

Thirdy, In the Commercial Performance ordinance, the only license requirement are designed for the commercial performance organization, but not individuals. This, again, nullified any departmental regulation that tried to licensing the singers.

Interestingly, in the Layout of Culture Development in 11th Five Year, the "licensing" was mentioned twice vaguely in its article 21 and article 41. However, even it could be interpreted to the performers, this doucment still can not prevail the "Ordinances" signed by Premier.Well, it's enough. Even if we didn't discuss the Legitimacy of licensing to singers from the basic theories of civil rights, this unreasonable ambition still can not find the Legality after a positive analysis to the existing Chinese legal system.

I am not a professional in Administrative Law, but I don't think any neutral lawyer would tolerant this kind of license. From my professional arena, IP law, this license will definitely erode the fundamental neighboring right of performers that be confirmed in China's Copyright Act.

Furthermore, this kind of license will not be practicable since it is very very difficult to check each performance in each entertainment events. Actually, there were some (maybe abolished now) reginal regulations (sorry I don't add the link here since it is really embarrassing to a Chinese lawyer) tried to enforce the licensing regime to performers. And these regulations had been sneered by commenting "chinese people are always good at examinations..." Even we tried to believe that the authority officers are in good will, the result of these regulations will be the selective enforcement of the law, and that will be wasteful, terrible, anti-rule-of-law, shameful and useless.

DO NOT BE EVIL,or, at least, DO NOT BE SHAMEFUL AND USELESS EVIL,OK?

Apr 18, 2007

Self-censorship: not the first time, not the last

According to Williamlong.info, Baidu.jp (baidu japan) is blocked to Chinese visitors by using the means of "Server Reset" because its image searching results may include illegal materials (under Chinese law). HeCaiTou, a Chinese blogger describes this self-censorship as a "self-castration" to avoid the possible punishment of the government's "castration". However, some other commentators do not agree with the conclusion of self-censorship but suspect the possible automatical domain hijacking by government's filtering system.
I have commented to Baidu.jp's embarrassing searching results of Japanese adult images here. Even it is really Baidu itself blocked the visiting, this is not the first time Baidu found pursuing self-censorship. Its legal search engine is still filtering the court judgments that did not in favour to Baidu. Fairly speaking, the denial of access from Chinese requests of porn materials is essential in the context of Chinese interenet law, so Baidu.jp's self-censorship would not as devil as last time even from the perspective of moral observation. This time, therefore, can be categorized in the "necessary self-censorship", if it is self-censorship. World is not flat, even if the TCP/IP is. The different Internet controling policies of different countries will cause more self-censorship, defenitely.
However, since the Internet Controling procedures are still in a black box, any one who is blamed as unecessary self-censorhip may excuse their own behavior as performing the requirement of the government. Further, since government dose not really stand as a unique person but consists of many departments and officers, the situation may be more complicate than one can imagine. Why, who, when, where, how and what would be blocked? Without a predictable regime, nothing is good enough enven its oringinal intention might not bad.

Apr 14, 2007

What are the US' IPR Consultations indeed?

According to the Office of the US Trade Representative, the United States' IPR consultation request to WTO on IPR protection and enforcement consists of FOUR aspects:A. the high quantitative thresholds that must be met in order to start criminal prosecutions of copyright piracy and trademark counterfeiting, and this makes a "safe harbor" for pirates and counterfeiters. B. Rules of disposal counterfeiting goods seized by Chinese Customs authorities - permitting them go back to the market after the removal of fake labels or other infringing features.C. Chinese copyright law provides the copyright holder with no right to complain about copyright infringement (including illegal/infringing copies and unauthorized translations) before censorship approval is granted. Immediate availability of copyright protection is critical for new products entering a market, and it appears that copyright protection is available immediately to Chinese works.D. Chinese law appears to provide that someone who reproduces a copyrighted work without the owner's permission is not subject to criminal liability unless he also distributes the pirated work.OK, let's put the United States' complaint aside for a while, see the newly promulgated The Second Interpretation of the Supreme People's Court and the Supreme People's Procuratorate Concerning Some Issues on the Specific Application of Law for Handling Criminal Cases of Infringement upon Intellectual Property Rights now:Article I: decreasing the quantitative thresholds of criminal penalties to the half of the previous interpretation. I don't know where is the reasonable line of the quantitative thresholds of criminal prosecution in a state where the criminal procedure are not be arranged as a parallel means of civil damages. Every one knows that in Civil Law System, the criminal procedure is only prepared for those severe offenders. Because of the existance of "administrative law" and the corresponding "liabilities under administrative law", there is an reasonable enormous gap between the damages of civil infringement and the penalties of criminal guiltiness. The penalties issued by administrative authorities in China are mostly included in the criminal regime in those countries of Common Law System. So if one is not intended to ignore the existence of those administrative regulations, the so called "thresholds to start the criminal prosecutions" is actually NOT very relevant to the question of "whether Chinese legislation and regulation punish the piracies and counterfeitings other than civil damages." Acrtually, Chinese administrative authorities have enough provisions to strictly punish the piracies and counterfeitings. There is no "safe harbor" in legislation. The problem is not in the legislative aspect.
In TRIPS, Article 61 is the only article relevant to criminal procedures. This article requires party members of the WTO "provide for criminal procedures and penalities to be applied at lest in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale." So what is "the commercial scale" becomes the key issue. Before the above interpretation, the number of the quantity threshold of being guilty in China is 1000 copies, while in the newest Interpretation, it dropped to 500. In EU Criminal measures IP directive (COM/2006/0168 final - COD 2005/0127), the term of "commercial scale" still needs to be defined. To solve this question, the Max Planck Institute proposed to substitute this term to the following elements:"- Identity with the infringed object of protection (the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion [construction, assembly, etc.]).- Commercial activity with an intention to earn a profit.- Intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right." However, this is not an interpretation to the term of "commercial scale" but a proposal to substitute it. In another word, the Max Planck dose not define the "commercial scale" here but the change the standard of putting the pirates into jail from the "commerial scale" to the above elements. But in TRIPS, the treaty merely requires the member parties "at least" using criminal penalties to the pirates who are in "comercial scale".Another question is: What reason makes the judges obtained the power to creat the standards of being guilty or not guilty? (attention, it's not the standard of prosectution, but the standard of finding guiltiness!) I am not a professional in criminal law, but I DON'T BELIEVE that, when considering the basic principles of rule of law, any lawyer will think that theses standards can be of the "interpretation" but not the law by legislative organs.Article II: interpret the expression of "duplicate distribute" (well, if you can speak Chinese, you will not feel uncomfortable when reading two verbs without any conjunctions) in article 217 of Chinese Criminal Code as "duplicate OR distribute".
Frankly speaking, when I read the "duplicate distribute" (复制发行) in Chinese, I will add an "AND" between the two words instinctually. But I am a lawyer, and judges are lawyers. They will not read the articles like reading novels. Article 47 of Chinese Copyright Code has clearly solved this question - it has been "OR" for years.
Now, let's go back to the complaints of the United States. "A" and "D" are solved (or I shall say, have never ever been the real problems). How about "B" and "C"? Since I don't know the situation of "B", only "C" will be discussed as follows.Yes, there is censorship. But the censorship is not only to the foreign works but also to Chinese works. A work must be "legal" when it hopes to be protected by the copyright law. A work must not only be legal, but also be "correct" (or at least "not wrong") when it hopes to be published. Even a work is "not wrong" at the time of publication, it may be regarded as an illegal work afterwards. These are common sense in China. The only difference between Chinese and the foreigners is: the foreigners do not used to the new environment.

Apr 6, 2007

China Formally Decides to join the WCT and WPPT

全国人民代表大会常务委员会关于加入《世界知识产权组织版权条约》的决定
发布日期: 12-29-2006 生效日期: 12-29-2006

全国人民代表大会常务委员会关于加入《世界知识产权组织版权条约》的决定 (2006年12月29日第十届全国人民代表大会常务委员会第二十五次会议通过)
  第十届全国人民代表大会常务委员会第二十五次会议决定:加入世界知识产权组织于1996年12月20日在瑞士日内瓦召开的关于版权和邻接权若干问题的外交会议上通过的《世界知识产权组织版权条约》。同时声明:在中华人民共和国政府另行通知前,《世界知识产权组织版权条约》不适用于中华人民共和国香港特别行政区和澳门特别行政区。
-------------------------------------------------------------------------------- Decision of the Standing Committee of the National People's Congress on Acceding to the WIPO Copyright Treaty
Promulgation date: 12-29-2006 Effective date: 12-29-2006
Department: STANDING COMMITTEE OF THE NATIONAL PEOPLE'S CONGRESS
Subject: INTELLECTUAL PROPERTY RIGHTS INTERNATIONAL TREATY AND CONVENTION
Decision of the Standing Committee of the National People's Congress on Acceding to the WIPO Copyright Treaty (Adopted at the 25th session of the Standing Committee of the 10th National People's Congress of the People's Republic of China on December 29, 2006)

At the 25th Session of the Standing Committee of the Tenth National People's Congress, it is decided to accede to the WIPO Copyright Treaty, which was adopted at the diplomatic conference concerning copyrights and neighboring rights in Geneva, Switzerland on December 20, 1996, and it is simultaneously declared that, before the government of the People’s Republic of China issues a separate notice, the WIPO Copyright Treaty does not apply to the Macao Special Administrative Region of the People’s Republic of China for the time being.

全国人民代表大会常务委员会关于加入《世界知识产权组织表演和录音制品条约》的决定
发布日期: 12-29-2006 生效日期: 12-29-2006
--------------------------------------------------------------------------------
全国人民代表大会常务委员会关于加入《世界知识产权组织表演和录音制品条约》的决定 (2006年12月29日第十届全国人民代表大会常务委员会第二十五次会议通过)

第十届全国人民代表大会常务委员会第二十五次会议决定:加入世界知识产权组织于1996年12月20日在瑞士日内瓦召开的关于版权和邻接权若干问题的外交会议上通过的《世界知识产权组织表演和录音制品条约》。同时声明:
一、中华人民共和国不受《世界知识产权组织表演和录音制品条约》第15条第(1)款的约束。
二、在中华人民共和国政府另行通知前,《世界知识产权组织表演和录音制品条约》不适用于中华人民共和国香港特别行政区和澳门特别行政区。

----------------------------------------------------------
Decision of the Standing Committee of the National People's Congress on Acceding to the WIPO Performances and Phonograms Treaty

Promulgation date: 12-29-2006 Effective date: 12-29-2006
Department: STANDING COMMITTEE OF THE NATIONAL PEOPLE'S CONGRESS

Subject: INTELLECTUAL PROPERTY RIGHTS INTERNATIONAL TREATY AND CONVENTION
--------------------------------------------------------------------------------
Decision of the Standing Committee of the National People's Congress on Acceding to the WIPO Performances and Phonograms Treaty
(Adopted at the 25th session of the Standing Committee of the 10th National People's Congress of the People's Republic of China on December 29, 2006)

At the 25th Session of the Standing Committee of the Tenth National People's Congress, it is decided to accede to the WIPO Performances and Phonograms Treaty adopted at the diplomatic conference concerning copyrights and neighboring rights in Geneva, Switzerland on December 20, 1996, and a declaration is made simultaneously as follows: 1. The Government of the People's Republic of China is not bound by Article 15 (1) of the WIPO Performances and Phonograms Treaty. 2. Before the Government of the People's Republic of China issues a separate notice, the WIPO Performances and Phonograms Treaty does not apply to the Macao Special Administrative Region of the People's Republic of China for the time being.

WCT and WPPT Resource Center

Resources on WIPO Website:(http://www.wipo.int/copyright/en/activities/wct_wppt/wct_wppt.htm)
Publications
WIPO Treaties: Guide & Glossary
Documents
The WCT and the WPPT (Adobe PDF)
Advantages of Adhering to the WCT and the WPPT (Adobe PDF)
Survey on Implementation Provisions of the WCT and the WPPT (Adobe PDF)
Leaflet
"The WIPO Internet Treaties" (Adobe PDF)
Meetings
Seminar on the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT): Opportunities and Challenges (Geneva, May 16, 2002)
Workshop on Implementation Issues of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) (Geneva, December 6 and 7, 1999)
Diplomatic Conference of 1996 (Geneva, December 2 to 20, 1996)
Ratification
Text and Ratification Status of the WIPO Copyright Treaty
Text and Ratification Status of the WIPO Performances and Phonograms Treaty


Books:
Mihály Ficsor, The Law of Copyright and the Internet : the 1996 WIPO Treaties Their Interpretation and Implementation, Oxford : Oxford University Press, 2002CityU Lib CN: K1420.5 .F53 2002
WIPO Copyright Treaty (WCT) (1996) : with the agreed statements of the diplomatic conference that adopted the treaty, and the provisions of the Berne Convention (1971) referred to in the treaty, Geneva : World Intellectual Property organization, 1997CityU Lib CN: K1441.A41996 A2 1997
Jörg Reinbothe, Silke von Lewinski, The WIPO treaties 1996 : the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty : commentary and legal analysis, London: Butterworths, 2002CityU Lib CN: KF2995 .R45 2002
David Nimmer, Copyright : Sacred Text, Technology, and the DMCA, The Hague ; New York : Kluwer Law International ; Frederick, MD : Sold and distributed in North, Central, and South America by Aspen Publishers, 2003CityU Lib CN: KF3030.1 .N56 2003
Alan Williams, Duncan Calow, and Nick Higham, Digital media : Contracts, Rights and Licensing, 2nd ed, London : Sweet & Maxwell, 1998CityU Lib CN: KD1289 .W54 1998


Articles:
Validity, Construction, and Application of Digital Millennium Copyright Act (Pub. L. No. 105-304, 112 Stat. 2860 (1998)) / by Amy P. Bunk, J.D. [American Law Report (ALR)]
Mihaly Ficsor, The Wipo "Internet Treaties:" The United States as the Driver: The United States as the Main Source of Obstruction -- As seen by an Anti-Revolutionary Central European, 6 J. Marshall Rev. Intell. Prop. L. 17
LULIN GAO, INTELLECTUAL PROPERTY RIGHTS IN THE INTERNET ERA: THE NEW FRONTIER, 5 J. Marshall Rev. Intell. Prop. L. 589
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Eric Priest ,The Future of Music and Film Piracy in China, 21 Berkeley Tech. L.J. 795
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Emily Grant, The Right of Publicity: Recovering Stolen Identities Under International Law, 7 San Diego Int'l L.J. 559
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