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.


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