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
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