Dec 26, 2008

Can the Moral Right be Transferred and Waived?

Can the Moral Right be Transferred and Waived?
A Positive Research to the Chinese Copyright Law

DONG Hao

(Law School, Yunnan University, Kunming 650091, China)

Abstract: This article reviews the possibility of the transferring and / or waiving the moral rights stipulated in Chinese current Copyright Act. The premise of this discussion is: copyright in Chinese legislation is by nature a kind of statuary right but not natural right. Based on this precondition, this article positively analyzes the moral rights in Chinese copyright law and draws the following conclusion: (1) the right of publication can neither be transferred nor be waived; (2) the right of revision cannot be transferred but can be waived; (3) the right of integrity can neither be transferred nor be waived; (4) the right of attribution can be waived, and when the law accept the conception of transferability, it can be transferred then.

Keywords:

Copyright, Right of Attribution, Right of Publication, Right of Revision, Right of Integrity

This paper has been accepted by the Journal of Yunnan University - Law Edition, the full-text will be provided after the publication. Please visit the following page later and see the update.

http://www.blawgdog.com/article.asp?id=772

Paper Abstract - By John BURKE and Hao DONG

Competition Policy and Updating Vehicles for the Delivery of Legal Services: The New South Wales Experience and Lessons for Hong Kong

John BURKE* & Hao DONG**

Accepted by SSCI Journal: Asian and Pacific Law Review

Abstract: Competition policy has been applied to the legal profession in NSW for over a decade. The introduction of a broad reaching competition law to Hong Kong is currently being considered there. This article will review two key aspects of competition policy in NSW, the introduction of incorporated legal practices (‘ILPs’) and multi-disciplinary legal practices (‘MDPs’). In particular, it will explore the degree to which these changes have altered the traditional professional model of legal practice in NSW and the benefits and costs of these effects. These lessons are relevant to legal profession in Hong Kong because proposals in a public consultation paper issued by the Commerce and Economic Development Bureau on 6 May 2008 envisage that competition policy would apply prima facie to all business models. Furthermore, existing (but dormant) legislation permitting ILPs and recommendations to allow MDPs make these changes to the landscape of legal practice a real possibility. This article will conclude that such changes should be viewed with caution in Hong Kong and perhaps other solutions sought to improve the efficiency and productivity of the legal system and access to justice in that jurisdiction.
--------------------------------------------------------------------------------

* Teaching Fellow, City University of Hong Kong. BA (Macquarie University), Dip. Law (SAB), LLM (UTS), Graduate Certificate in University Teaching and Learning (Charles Sturt University).
** Lecturer in Yunnan University (PRC), PhD Candidate in City University of Hong Kong. The authors would also like to thank Professor Christopher Roper and Professor Gino Dal Pont’s careful proof reading, as well as very helpful insights provided by Michael Sandor on the current law of Hong Kong, who refereed this article.

Orphan Works in the Context of Chinese Copyright Law

Orphan Works in the Context of Chinese Copyright Law:
A Comparative Research

DONG Hao

Abstract: "Orphan Works" means works whose copyright (if not expired) owners can hardly be located, hence the users may not exploit the works lawfully with the licenses issued by right owners. Discussions to this topic in the U.S. and Britain have been raised for years, and the Bills for orphan Works have been introduced to the U.S. congress several times. The dilemma of orphan works and abandon softwares also exists in the context of Chinese copyright system, and this phenomena may be more widespread because the history of Chinese copyright law in the recent 100 years are inconsistent, unsteady and intermittent. Furthermore, the current Chinese copyright system is of not mature enough. It not merely lacks solutions for  the orphan work problem, but also exists unreasonable provisions that may worsen it. Four factor should be considered when one is about to solve the problem: (1) comply with the three-step test; (2) based on existing legal system of the country; (3) minimize the cost of both right owners and users; (4) guarantee the predictability of the benifits and the obligations. Based on these four premises, this article critically reviewed the solutions in the U.S., Canada and Japan,  and then proposed a set of multi-method and integrated suggestion that suit to the features of Chinese copyright regime.

Keywords:
orphan Work, statutory license, compulsory license, authorship, public domain

The paper (in Chinese, 21,000 words) has been accomplished in Nov. 2006, and it is continuously updating before the formal publication. If you need it, please conatct the author (donnie [at] blawgdog.com)

Promoting and Protecting Human Rights in Transitional Cultures

Promoting and Protecting Human Rights in Transitional Cultures:
An Empirical Case Study in Minority Regions (Excerpt)

DONG Hao

The article includes six sections. Only the Introduction and an excerpt of Part I and Part II are provided here. The Chinese full-text was published at Achieves for Legal Philosophy and Sociology of Law, Vol. 7, 2004, Beijing, 18,000 words in Chinese.

Click here for the Chinese Full-text (PDF)

Abstract:

This article reviews the dilemma on the notion of “culture” in current human rights research with seven cases related to the ethnic cultures. Associated with the analysis of cultural relativism and the universalism of human rights, the following conclusions have been made: (1) culture itself is a dynamic phenomenon which will produce significant influence on people’s rights in reality; (2) the transformation of specific ethnic culture could be in accordance with the international human rights standard by occasion, at the same time, it also constitute the obstacles to the realization of those human rights; (3) National ideology can influence the transformation of certain culture; (4) through this influence, it is possible that the traditional ethnic culture can absorb the values of modern human rights ideas; (5) there’s no hurdle between ethnic culture protection and human rights protection; (6) the culture transformation is based on its origins and basis no matter how the national ideology want to impose the impacts; (7)a precondition of influencing the ethnic culture through national intervention is to protect the existing cultures as well as its autonomy and free development; (8) the so-called culture protection could produce further influence on the transformation of the protected culture.

Every society experiences changes every second; every society experiences some inconsistency and collision; each element of the society plays an important role in the decomposition and changes.

--- Dahrendorf[1]

Introduction

Human rights universalism and relativism debate is a long-lasting and hot topic in human rights research field, especially in “culture” related themes. A classic example can name the argument of “Asian Value”. Based on case studies investigated in my field work in multiple communities in the minority areas of Yunnan Province, several points among this debate have been reviewed through empirical angles. Some conclusions, which differ from the above two extremes have been drawn in the end. Six parts constitute the analysis.

First, the conception of culture has been examined in detail through literature review. It will figure out that when this conception is used as “the objective of rights” and “the benchmark to measure the other rights” at the same time, the debate will find its way to exist.

Case studies begin from the following part. By two cases (the customary stealing in Luo Village and murder case in Ping Village) the second part indicates that (1)culture is not a static phenomena and its changing will cause substantial influence on people’s rights; (2) certain national laws, which in conformity with the international human rights norms, could encounter the obstacle to be enforced in specific community; (3) in its process of transformation, specific culture could downplay the protection of modern human rights.

The third part is a case about six women’s immigration marriages to the Western countries in a Ha Ni Minority family. This event, along with the other factors, drastically changed women’s image in the community and made it accord to modern human rights standard occasionally.  This event and the cases examined in the second part demonstrates that culture transformation is an uncertain and worrying process without the intervention of proper human rights ideas.

The fourth part discusses three cases about environmental protection and rights to survive. It argues that (1) national ideology can impose influence on culture transformation. (2) this influence could promote the convergence of modern human rights perspectives with the traditional ethnic cultures. (3)there is no unconquerable obstacle between human rights protection and ethnic culture protection. This part also analyzes the respective deficits of cultural relativism and rights universalism and concludes that one should always keep in mind that any culture’s transformation is based on its origins and basis when we talk about the influence of national ideology.

The fifth part examines the case of cultural transformation of a village after it has been arranged as touring site. This case indicates the culture protection could catalyze its transformation.  It also debates that the protection of ethnic culture rights should pay attention to its autonomy and self-development, except the culture phenomenon itself. This is the prerequisite for national intervention to the ethnic culture transformation. Only in this way can we harmonize the human rights protection with the culture transformation and realize the human rights in the transitional culture.

The sixth part is conclusion. It summarizes the above studies and draw the conclusion in the deductive analysis, through which links the empirical research with the theoretical questions posed in the first part.
Part I
Culture is a kind of “shared fruit by all people, these not only include values, languages, knowledge, but also materials.” [2] It means that, culture is the material basis and spirit support of which people depend on for life. Therefore, culture is an important aspect of human right. Interestingly, in the area of human right, culture becomes logical right object and condition: on one hand, “all people” have the right “of …freely determine their political status and freely pursue their economic, social and cultural development.”[3] Especially “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture…”; [4]on the other hand, because of the different traditions of culture, different culture, district, nationality or even village may have different view of values, [5]therefore, when mentioning a specific aspect of human right, people unusually use culture as a condition of measuring boundaries of other rights.
When using culture as the measure standard, people will make arguments between commonality and particularity of human right, this point can be shown from the dispute of “women right”. Western feminism people consider “female Genital Mutilation, FGM”, [6]“Polygamy” and “Bride price” [7]which are popular in Africa and Islamic area as “a blatant violation of women's rights and a symbol of patriarchal control over women”.[8] They insist that these activities should be abandoned completely. But some people think that the above mentioned customs have to be place in a given social structure and family culture background. Some researches show that, customs like FGM are supported by all the local women,[9] at the same time, “African women think that the activities like body deformation, keep on diet for the purpose of losing in the so called civilized society are unbelievable and unbearable”. [10]Therefore, “…to fight against genital mutilation without placing it in the context of ignorance, obscurantism, exploitation, poverty, etc., without questioning the structures and social relations which perpetuate this situation is like 'refusing to see the sun in the middle of the day”.[11] The uttermost of this opinion is the so called ‘culture relativism’, the believers of this opinion believes that in the given society, changing culture and development should not be affected by the criticism and rectification of outer space.
They even consider culture is “the sole source of the validity of a moral right or rule.”[12] Obviously, culture relativism people will not agree the existence of human right community, this point is unacceptable to the people who hold human right commonality。 Human Right Commonality believers think that there are some moral values can be shared and applied worldwide, every person should be given the core and basic right because of they are human.[13] Culture has nothing to do with “the basic moral right and rules”.[14]
Because culture is treated as not only human right object, but also the boundary of other rights, the discussions on Culture become complicated in the human right area: “Sometimes Culture is protected in international human right, sometimes will be considered as the obstacle to against international human right”. [15]These years there are some argument on “Asian values”, representing the puzzlement to the International Human Right made by the controversy.[16]
In this paper, although the given nationality culture, as “a whole living manner of generation to generation”,[17] has stable and successive features. However, in real life, culture should not be static, but a culture keeps on changing (the elements leading culture to change are very complicated: economical, political, but also inner, outer). This paper considers the process caused by the composition of elements and happens every second as the flux of Culture. From this point of view, we may find some resolutions to resolve the conflict of human right relativism and commonality: on the one hand, in given nationality and area, gradually emerges the standard of international human right into people’s value. Therefore leading culture move toward the right direction of human right protection and finally avoid these national and regional cultures become the obstacle to the international human right protection; on the other hand, in international and domestic human right legislations, considering the cultural difference, allowing some nationalities and regions gradually reach an ideal right protect state in some time through culture changing.
Obviously, above mentioned “magnificent narration” is based on a series of theoretical hypothesizes. We at least have to prove several questions in experience: 1, whether the culture is still changing? 2 whether the values of different cultures will affect or even transplant each other? 3. Is it possible that the national Culture accept international human right value standard during the changes. 4 what are the areas of human right to the “culture right” protective object.
Part II
From all the current resources, cultures of every Chinese nationality keep on changing.[18] Even in the village investigated by myself, there are examples of culture changing.

Case 1: The custoum of “Eating ” in the Luo Village[19]

Before revolution, February twelfth of each year is the day for families in Luo Villiage to sacrifice “dragon tree”. On that day, the whole village will hold a sacrifice activity together leaded by the “dragon head”,[20] then people will eat a dinner under the dragon tree; the next day, families visit one house after another and do the greetings. The process of dragon sacrifice and house visiting is just the process of “dragon head” who deal with the situation. After the open and reform, family again becomes the basic unit of Luo Village, Sacrifice ceremony comes back and becomes even ceremonious.
Case 2,Stealing case in Ping Village[21]

One day in April 2000, villagers in Ping Village and several other people were caught red handed during the stealing. Because A is hardened thief in Ping village, other villagers seized him and dragged him to the playground of the primary school in the village, beat him to death. To the several other accompanying thieves, cadre of the village invited all the related staff in the police station and local government to the meeting of whole village, villagers confirmatively require all of them to be fined RMB 1000. This money will be used to treat the villagers a dinner. After the bargain, fine changes to RMB 800, both the police station and the local government staff agreed to the decision.
Before 1950s, Yao nationality district in Ping village was under the control of a so-called “heads of stockaded village”. And rich accustomed rules have been developed, some of them are like this: stealing the things like vegetables at the first time, return the staff and invite the owner for a dinner; if the situation is more serious, the thief has to work as punishment; one of these kind of punishments is to repair a part of important road of their village. To those people who stole cows and horses, they will be fined Bankai (The Local Money)[22]50, 60 or even 100-200. After the liberation, with the collapse of old rules, the accustomed rules are not supported by the law any more, and totally hand on by the villagers as the inner rules which should be obeyed.
The poor villages far from cities have no idea about the rules of International Human Right Pact, even don’t clear the national laws of P.R.China. Their understanding of social rules mainly comes from the accustomed habits and rules cultivated in the traditional cultures[23]. In the accustomed rules at the time of “Senior Villager”, thieves did not have to take the risk of losing life, or even no corporal punishment. Why this time A was still beaten to death by the villagers? Let’s analyze one of its culture flux first:
From the punishments the villagers do to A’s companions, the shade of traditional culture is very obvious---Fine and Dinner which are very similar to the case 1. Then why this rule could be handed down and the rules of services are abandoned? This maybe related to the difficulty of enforcement: asking the thieves to work need some people to watch them over, the cost of this seem too much because the techniques of road repairing have improved greatly nowadays. Another important reason is that, under the past rules, the enforcement of thieves’ services had a set of established routines and forcible power, however, after the “senior villagers” system abandoned, the power of the previous routines lost. Therefore, people decide to abandon their tradition. This abandon means that the there is no corresponding common rule to the “Serious” thievery, under the circumstances of the national rule cannot reach the expectation of villagers, looking for a simple and enforceable punishment which has great impact is reasonable----villagers’ beating towards A not only punished A but also shocked A’s companions.[24] According to my investigation and my colleagues’, beating thieves as their punishment has solidified in the brain of villagers as an accustomed rule.
The investigator of case 2 (Qiliang Wang) analyzed the change of social control model in Ping Village and gave the comment: “ if the traditional rules in a community is too weak to maintain the ordinary order, while the national law can not respond to the regulatory demands of this community for some reasons at the same time, then, logically, another traditional rules or accustomed practice which contradict to the national regulations would possibly take into formation”.[25] As it is emphasized in this paper: under the “senior Villager” system, the accustomed rule has no conflict with modern human right ideology, this chance and fragility is very obvious after social, political and economic condition changes.
Another question to be raised in Case 2 is that: why the police station and the local government staff who are taking the responsibility of enforcing national law agree the “decision” of fining A’s companions in the village meeting and did not trace the responsibility of the villagers who beat A to death.
Suli stated when commenting on another case: “When Judge allow accustomed rules into law selectively, modify or replace laws, they are not lack of the knowledge of official laws, and also not because they agree to certain culture or certain culture structure, the reason is the same as the villagers: there are a series of existing conditions which will affect their own profits promote them to do like that…..”[26] In deed, to the judges, policemen and administrators of villages, they may never agree with the opinions of villagers, but from the angel of villagers, they invite these rulers to come to the “public judgment” of thieves meaning that they at least not afraid (no matter being illegal or other reasons) that the activities which are not obeyed national laws(for example, beating A to death and the punishment on A’s companions) will be punished severely by the officers. Even they inviting officers can be seen as a demonstration to the national law.[27] This shows that, the result of culture understanding and culture change in the villages of the villagers already lead the executors of national laws(no matter they agree or not inner heart) have to think whether themselves should execute national laws stoutly. In the meantime, officers’ connivance to the village culture change actually strengthen the inner conform to the culture change of villagers. However, in this paper, in all the interactive effect, I will conclude all of them on the culture change. On this basis, we could think nationality culture change will take some effect on the people who are in the culture. What’s more, Case 2 also tells us that, this kind of effect may not beneficial to the reality admitted and protected by the international human right law.

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[1] Dahrendorf, Class and Class Conflict in Industrial Society, (Stanford, Calif., Stanford University Press, 1959)
[2] David, Sociology, (Beijing: China Renmin University Publisher, 1999), p 63.
[3] Article 1 of ICESCR.
[4] Article 27 of ICCPR
[5] about the discussion of village culture, see Gao Zhaxiang, “To Construct the Modern Communist New Culture Village”, Xinhua Issue 8 of 1993. Also, Donghao and Yuqiang, “A Empirical Study on the Minority Women’s Outgoing Phenomenon”, Guizhou Minority Research Journal, Issue 1 of 2003.
[6] See World Health organization, Female Genital Mutilation: An Overview, 1998.
[7] See Esther M. Kissakye, “Women, Culture and Human Rights: Female Genital Mutilation, Polygamy and Bride Price”, in the Human Rights of Women: International Instruments and African Experiences, (World University Service, Austria, 2002.)
[8] Julie Dimauro, “Toward a More Effective Guarantee of Women’s Human Rights: A Multicultural Dialogue in Intenational Law”, Women’s Rights L. Report, Summer, The State University of New Jersey, 1996.
[9] Rosemary Mbur, “A Tradition Better Dead”, Women and Health, Vol. 1, No. 2, Centre for African Family Studies, July 1993.
[10] Isabelle R. Gunning, Arrogant Perception, World-Traveling and Multicultural Feminism: The Case of Female Genital Surgeries, 23 Colum. Hum. Rts. L. Rev. 189.
[11] Association of African Women for Research and Development, “A Statement on Genital Mutilation”, In Third World-Second Sex: Women’s Struggles and National Liberation, pp217-218. (Miranda Davies Edition, 1983)
[12] Jack Donnelly, Cultural Relativism and Universal Human Rights, 6 Hum. Rts. Q. 400, at 400.
[13] Ibid.
[14] Ibid.
[15] Karen Engle, “Culture and Human Rights: The Asian Values Debate in Context”, 32 NYU. J. Int’l L. & Pol. 291.
[16] About the debates on “Asian Values”, see Michael C. Davis, “Constitutionalism and Political Culture: The Debate over Human Rights and Asian Values”, 11 Harv. Hum. Rts. J. 109 (1998); Pheng Cheah: “Positing Human Rights in the Current Global Conjecture”, 9 Pub. Culture 233 (1997); Yash Ghai, “Human Rights and Governance: the Asia Debate”, 15 Aust. Y. B. Int’l L. 1, 13 (1994); Daniel Bell, “ The East Asian Challenge to Human Rights: Reflection on an East West Dialogue”, 18 Hum. Rts. Q. 641 (1996); Stephen A. Douglas & Sara U. Douglas, “Economic Implication of the U.S.--- ASEAN Discourse on Human Rights: the Asian Values Debate in Context”, 32 NYU. J. Int’l L. & Pol. 291.
[17] Supra note 2, p63.
[18] On the first-hand materials of culture changing, see Gao Fayuan ed., Series on Minority Investigation on Yunnan Province, (Yunnan University Press 2000.)
[19] Have followed the practice of anthropology and sociology, the cases indicated in this article are dealt with anonyms. Luo Village is located in an autonomous region of Yunnan Province. I have visited this village three times through 1996 to 1999.
[20] Dragon Head exists widely in the villages of Yi, Miao and Hani Minorities in the Southern Yunnan and differs in the election and jurisdictions from place to place.
[21] Statistics are provided by the local government. This case was investigated and collected by Wang Qiliang in 2002, see Wang Qiliang, “the Fracture of Traditional legal Culture and the Vacuum of Modern Legal System”, in Ideology Front, Issue 3 of 2001.
[22] See An Investigation on Miao and Yi Minorities of Pinbian and Jinping Villages in Yunnan, (Internal Material), (Yunnan University, 1976) p 128. Ban Kai is the money unit of that time.
[23] See Liang Zhiping, the Customary Law of Qing Dynasty: the Society and the Country, (CUPL Press, 1996), p1.
[24] The reason on not sending A to the police station is that “the police will only detain A for several days and fine him several hundreds dollars, then set him free finally”. (says by the interviewees in the village). This can not realize the aim in controlling the stealing.
[25] Supra note 21.
[26] Suli, Sending Laws to the Rural Areas: A Research on the Legal System of the Rural China, (CUPL Press 2000), p 206.
[27] Supra note 21.

Dec 17, 2008

What is the Public Domain?

When I am presenting my research today, I find I have to clarify the Public Domain for myself and others in brief and clear sentences. Here it is.

Basically, Public Domain means the Domain that is out of the Private Right. It has many definitions such as the strict legal definition, broader definition and the multi-discipline ones.

The Strict one, and it is a traditional one in the context of copyright law, is: A domain that any works falling Into it can be freely used by the public, and this domain should be able to logically derived from the regulation of copyright law.

The broader one is: A domain that contains anything that should not be controlled by the private owners, not just literary and music works, but also the facts, ideas, public owned lands and other properties and non-properties.

The multi-discipline ones are relevant to many aspects. For example: the public domain in the context of Jürgen Habermas' political philosophy, the public goods in the sense of institutional economics, and others.

I had reviewed most of the relevant conceptions on this issue before and proposed my own definition either from the law or from the fact of the contemporary digitalized world. It is a combination of the de facto public domain and the de jure public domain. When I am doing legal interpretation, I will focus on the de jure public domain (It is mostly the strict legal one, but at the same time, the theories of the other definitions are included). When I am analyzing the reasons and obstacles of the legal reform, I will observe the de facto public domain. Then compare them, then look for the reasons why the de jure and the de facto has distinctions from each other.

\My version of Public Domain is of cource standing on the Giant's shoulders, and at the same time focusing on my research theme of Copyright Reform and Social Development ... not my dissertation, but a longer and bigger plan of my research in the future.

Sep 30, 2008

KunWei Institute for Law and Social Development

WHAT

KunWei Institute for Law and Social Development (KunWei) is a non-governmental, non-profit and grass-roots research organ in China. By providing independent, in-depth, as well as informative research outputs for governmental and non-governmental organizations, KunWei focuses its research on the emergence of rule of law and the corresponding social development in China and Asia.

WHO & WHY

The institute is jointly founded by a few young active researchers who have diverse research backgrounds but hold the same comprehensions to the approaches of social study. We believe firstly that the culture diversity is not only a fact but also an essential to a healthy society, and a sound social observation must be conducted with a combination of several specialized researches. Secondly, the law and the social development are interactive. Thirdly, a theory must be carefully examined before it is transplanted from one culture to another.

The co-founders of KunWei are:

  • WANG Qi-Liang (Institute Director & Team Leader for Social Control and Legal Reform)
    Associate Professor in Yunnan University (YNU)
    PhD in Anthropology, LLB, LLM (YNU), Post-Doctoral (Huazhong U. of Sci. and Tech.)
  • LEE Na (Team Leader for Gender, Law and Development)
    Lecturer in Kunming U. of Sci. & Tech.
    LLM in Law and Social Science (London School of Economics & Political Science), LLB, LLM (YNU)
  • LEE Ya (Team Leader for Economics)
    Lecturer in YNU
    PhD in Economics, MSc, BSc (YNU)
  • WANG Hong-Jun
    Associate Professor in Yunnan U. of Finance & Economics, Visiting Scholar in U. of Victoria.
    PhD Cand. in Law (China U. of Int’l Business & Economics), LLM (YNU)
  • DONG Hao (Team Leader for Intellectual Property and Social Development)
    Lecturer in YNU, Visiting Research Fellow of Center for IP Research at CUPL
    PhD Cand. in Law (City U. of Hong Kong), LLB, LLM (YNU)
  • HU Shi-Lin
    Research Fellow in Yunnan Law Institute
    LLM, LLB (YNU)
  • ZHANG Jian-Yuan
    LLM, LLB (YNU)

WHERE

KunWei is registered as a non-profit organ in Kunming, which is the provincial capital of Yunnan. Yunnan remains a rare diverse culture of multi-nationalities. Taking this advantage, we can elaborate our research with concrete field works economically. At the same time, our research topics are not limited to the local issues. Besides the office in Kunming, research fellows of KunWei are frequently visiting and / or studying in many other institutes such as LSE, China U. of Politics and Law, Leiden, City U. of Hong Kong, etc. This assured the universality of our research perspectives and the timely update of our own knowledge.

HOW

With either specialized or multi-disciplinary approaches, research projects are operated in an efficient way. Any research project will be firstly assigned to the most relevant research team, and then the specific team leader will organize and / or supervise the progresses of the research works. The team leaders of KunWei are highly experienced in the academic legal and social science research in Chinese communities. By the end of each project, the research outcomes are all reviewed strictly to ensure their accuracy, arguable and assurance. Together with academic outputs, a professional formal report including management issues of the project will be provided.

Currently, KunWei is specifically paying its attention to the following aspects:

  • Social Control and Legal Reform (Especially in Ethnical Minority Communities)
  • Public Domain, Intellectual Property Law and the Social Development in China
  • Gender, Law and Women’s Development in China
  • Public Health and the Rule of Law
  • Spatial Economics and the Regional Development
  • Anti-Corruption and the Efficiency of the Government

CONTACTS

Tel
+86-871-6956-759 (P. R. China)
+852-9834-3246 (Hong Kong)

E-mail
Kunwei@KunWei.org

Website (forthcoming)
http://www.kunwei.org

Sep 29, 2008

DWI means Driving While Intoxicated

In the United States, if you were arrested because of Driving While Intoxicated (DWI), you may need a lawyer to help you out of the frustration. Some law firms are spcifically on this issue. For example, Law Offices of Richard C. McConathy is a firm focusing on this kind of case specifically in Dallas, Fort Worth, Denton, McKinney Texas Area and so on. You may see the website at here and find more details about its profiles. You may see they are claimed very professional in handling DWI cases, and it seems DWI case is their only business. So, if you are arrested in Fort Worth, Dwi Lawyer from McConathy may help you. dwi fort worth, dwi attorney fort worth.

Law firm specially focusing on one or two topics are still not very popular in China. However, considering the growth of Chinese legal service market and the progress of Chinese rule of law, I think that day will not be so far away. In fact, in some big cities in China, the legal market has been seperated into some specific parts. Furthermore, even in those law firms accepting all kinds of cases, lawyers in them are also tending to confine their profession in smaller arenas.

Keywords: Fort Worth Dwi Lawyer, dwi fort worth, dwi attorney fort worth.

This is a paid post.

Aug 25, 2008

I am NINE Years Old!

Hi, my name is BLawgDog, the second Internet baby of Uncle DONG (the first one? uncle Dong said he forgot the name...what an old man). I was born in 26 Aug 1999 and you may see my baby face at here( in Chinese). I have a little sister named SheCan.net, and actually I have a lot of cloned brothers all around the Chinese bloggersphere.

The following is a collection of my previous clothes and logos ... a little outdated ... but so cozy and memorable, hah.

combine

Happy birthday to myself. :)

Aug 5, 2008

The Premier's Promise

"I, together with Liu Qi (Beijing party chief), promise that Beijing will stay as clean as now after the Olympics, and Beijing will be clean forever."(Chinese: 我和刘淇书记立个保证,奥运会后,北京还要保持这么干净,北京要永远干净。) Premier Wen Jiabao said on 4 August. I don't know why Xinhua neglected the last sentence of the promise in its English report. I hope this sentence will not trigger the Gov's political denial of any negative news on Beijing's urban environment. Because under the current regime, if any officer admit that the air quality turns bad after the Olympics, he / she would be kicking the Premier of central Gov and the Beijing Party Chief. Who dare?

As I expected, while searching the Internet, I find a funny article in the website of Chinese official news agency titled as Promise the Everlasting Cleanness together with the Premier. Silently, the burden of keeping Beijing's cleanness was switched to the Beijing people in this article.

The following is a picture of torch relay in Beijing on 6 August. The sky is still tipically Beijing style grey. It's a good news for the gov officials, because it is possibly not too difficulty to keep the sky in this color.


Jul 29, 2008

Free Access in the Forbidden Village - if not City

South China Morning Post reported yesterday that the Olympic Village in Beijing wins praise for comforts - including some bizarre twists. You, if lucky enough to be permited stepping into this forbidden village (video), will find many exciting things: free access to those blocked websites including BBC Chinese network, the online sites of Taiwanese newspapers like Liberty Times, and Hong Kong's Apple Daily, and you will even find an entire shelf of photo albums featuring nude Chinese women in the bookstore.
That's terrific. I guess the reason of this considerate arrangement is: the athletes and their coaches will be surely under a great pressure during the Olympics, so it is a necessity for them to relax when they go back to the Olympic village. So, even an Australian therapist who has been to four Olympics had not expected something like this in the bookshop of an Olympic village, this must be one of the plausible creativity of our great Beijing 2008.
It leaves some minor legal problems: How about the jurisdiction of Chinese authority who is in charge of controlling illegal materials like nude albums in the Olympic village? If a Chinese volunteer bought some albums from those humanitarian bookstore, could he / she bring them out of the forbidden village legally? Is the network service provider of the Olympic village exemted to be punished for spreading perhaps "illegal" websites?
In our great country, freedom always stands there, the absentee is the equality.

Jul 11, 2008

BLawgDog Provides You Professional Law and Translation Services

BLawgDog Provides You Professional Law and Translation Services

Precise, Professional & Practicable



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With more than ten years' experience in online legal consultation, I provides you the following professional services.
1. Precise Legal, academic and commercial Translation (English <---> Chinese)

2. Professional Legal Reserch (Including IP Searching, academic research and case searching in practise)
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Jun 22, 2008

Outline of the National Intellectual Property Strategy

See here
http://www.blawgdog.com/article.asp?id=678

(Issued by the State Council of the People's Republic of China on June 5, 2008)

As the preface said:

This Outline is formulated for the purpose of improving China's capacity to create, utilize, protect and administer intellectual property, making China an innovative country and attaining the goal of building a moderately prosperous society in all respects.

Mar 25, 2008

A Mature Public Sphere of Chinese People

Simon Elegant is a reportor of TIME. He and his colleagues write a "China Blog" in the Time's website. On 23 March, he wrote a post "A Little History" on the Tibet with absurd logic and ridiculous understanding of China and Chinese.

Then, the commentaries come. Some of them are of extreme in the tune, but most of them are righteous, calm, reaonable, and perfectly expressed. I recommend everyone read the commentaries, they are far more valuable than Simon's ignorant post.

This is a lesson to Simon, Time and every western journalist. They are too arrogant and this arrogrance is also cheating their western readers. They are making the world conflict. Their single-line minds lead the nationlism expand.

Fortunately, they undervalued the intelligence of Chinese people. These commenaties proved again a mature public sphere of Chinese people is forming, at least among those Chinese people can write poor English. They know west far more than the westerners know China. I am proud of them.

Read Simon's post and the commenaries by CLICKING here.

Jan 15, 2008

An Academic Interview == 一次学术访谈

我按:一位在欧洲做知识产权研究的朋友发给我一些有关中国知识产权执法的问题,以下选取其中一些贴出来。为了方便阅读,他的问题和我的回答都是中英双语的。Note: A friend doing research in Europe sent me some questions on Chinese IP implementation. Here are some selected answers. To facilitate reading, both his questions and my answers are bilingual here.
----------------------------------------------------------
1. It is in many occasions argued that the confucian philosophy and its impact on the Chinese culture is one of the major factors that IPRs in China are so hard to implement. This doctrine argues that if one want to achieve excellence, he must imitate the works of the one who is doing the best work in that specific field. What are your views on this explanation on IPRs infringements?
很多人认为儒家哲学及其对中国文化的影响是知识产权难以在中国得到保障的原因之一。因为儒家哲学中认为,如果一个人希望成功,他就应当模仿他的行业中最优秀的人的作品。对这一观点,你怎么看?

From my experience, confusian philosophy can be a reason on why the contemporary IP law did not emerged in China but in western world, nevertheless it is hard to say that Confucianism is of a mjor factor affecting the implementation of Chinese IP Law. Although Confucianism did agree with the doctine you mentioned, it is a world wide accepted view but not only in Chinese philosophy. The international IP regime does not refuse the imitation of the best work but only prohibit those unlawful imitation. Imputing the pervasive IP infringements to the confucianism needs more empirical evidences.
从我了解的情况看,儒家哲学可以被作为回答“中国为什么没有产生现代知识产权法”的一个原因,但没有充足的证据证明:“儒家哲学是影响中国知识产权法律执行的一个主要原因”。儒家思想中的确包含您所说的观念,但这种观念不仅在中国,而是在全世界都是存在的。国际知识产权体制并不拒绝对优秀知识产品的模仿,而只是禁止那些非法的模仿行为。将知识产权侵权行为的普遍存在归咎于儒家思想的观点,需要更多的实证研究资料来支撑。

2. The communist heritage is also one of the common explanations why the Chinese have such a hard time to cope with western views on IPRs. (The name of the Chinese Communist Party in chinese, Gong Chan Dang = the public property party). What are your views on this ideological explanation?
人们普遍认为共产主义思想是另一个令中国难以接受西方观念下的知识产权的原因(共产党的名字就蕴涵着“公共财产”的意思)。你对这种意识形态角度的解释怎么看?

Communist ideology comes from western world also. It is too simplified to illustrate communism by its name directly. In my knowledge, the classical communist ideology that affected Chinese regime composed of three branches: dialectical materialism philosophy, Marxism political economy and Leninism. Chinese communist party claimed that it has developed them in the practice of Chinese revolution and construction. There might be some slogans, theories and regulations before 1980s are expressed anti-IPRs, but we never know whether they generally come from communism or not if we do not analize them with the social background at the time specifically.
共产主义意识形态也来源于西方。用它的名字来解释共产主义的想法过于简单化了。从我的知识来看,共产主义包括三个部分,辩证唯物主义哲学、马克思主义政治经济学和列宁主义。中国共产党认为其在中国的革命和建设中发展了这些理论。在1980年代以前,的确可能有一些口号、理论和制度是反知识产权的,但如果不根据当时的社会背景进行具体分析,我们很难笼统地说这些东西是否来源于共产主义。

3. The Chinese often claim that they take the problem seriously, and do all within their power to crack down on piracy. Is this in your view true? What could they do more?
中国人(在国际谈判中)常常声称他们已经对(知识产权)问题十分重视,(政府)使用了权力范围内的所有能力去打击盗版。你认为这是真的吗?他们还可以做哪些?

Yes, as to the piracy (if we distinct the piracy from the infringement), I think the administrative orgnization has tried them best in cracking down on piracy. The problem is: the standards are often too strict (or too inefficient or unreasonable in their legislative technique) to be implemented. So the public organizations can only choose some cases to investigate and punish. This is a tragic situation to the rule of law. Hence what could the Chinese authrities should do are mainly on reviewing the exsiting regulations and policies and improving the legislative techniques, but not simply promulgate new regulations which may sounds advanced. Release the unecessary burdens to the entities in ecnomic practice should be of another focus.
如果我们把盗版和侵权分开理解的话,我认为行政机关已经尽力地反盗版了。问题在于:法律所规定的标准往往太严格(或在立法技巧方面规定得太没有效率或缺乏逻辑性),以至于人们都很难达到法律的要求。因此,公权力机构就只能选择性地执法和处罚。这是对法治的损害。所以,中国应该着重检讨既存的法律规则和政策,加强其中的法律技术,而非仅仅颁布听上去“先进”新的规则。此外,解除对经济主体的不必要的负担也应成为工作的重点。

4. The U.S. (or Hollywood, Microsoft and the US medical industry) are currently filing a lawsuit against China at the WTO's Dispute Settlement Body, because they feel that China has not done enough on IPR infringements. Do you think that western countries have unrealistic expectations of the Chinese government’s ability to reduce piracy?
与上个问题相关,美国(或者好莱坞、微软和美国制药产业)目前正在WTO对中国进行诉讼。他们认为中国在知识产权制度的执行方面做得不够。你认为西方国家是否对中国政府减少盗版的能力有不现实的估计?
Yes, I agree with this point. Not only China, no government in this world can reduce the piracy soly by promulgating strict laws and punishing those illegal practices. The WTO dispute settlement body is good at solving specific trade disputes but not at improving general systematic situation of a regime.
是的我同意这种说法。不但是中国,世界上没有任何一个国家政府能仅仅通过制定严格的法律和处罚非法行为来减少盗版(及仿冒)行为。WTO争端解决机构对具体的贸易纠纷是有效的,但希望用这种机制去促成一个体制性的、宏观层面的进步是很难的。

Jan 12, 2008

Center for Intellectual Property Studies at China University of Political Science and Law

Center for Intellectual Property Studies at China University of Political Science and Law

Founded and directed by Prof. ZHANG Chu, the Center for Intellectual Property Studies (CIPS) at China University of Political Science and Law (CUPL)was established in July 2005. Currently, more than twenty research fellows are working for CIPS. Each staff holds or held professional positions in prestigious institutes, , i.e. CUPL, Beihang University (BUAA), Beijing Normal University and so forth.

Professor ZHANG Chu, Director of the CIPS, is one of the most well-known Chinese experts in IP Law, E-commerce and Information & Technology Law. Before getting his PhD from CUPL in 2000, he was a visiting scholar in Columbia University in the City of New York. Besides his position in CIPS, he is the dean of Science and Technology Department of CUPL. At the same time, he is also the director of Z-Park CUPL Branch (Science and Technology Service Park of Zhongguancun), which is the first non-profit organization of legal service for Hi-tech industry in mainland China.

Based on in-depth academic studies of the leading edge of IP law, CIPS focuses its practical research on IP strategies and the application of IP law. CIPS has successfully completed more than 20 projects assigned by various governmental and private institutes such as the-National Social Science Fundation, the PRC Legislative Affairs Office of the State Council, the PRC State Intellectual Property Office, Beijing Information Office, Beijing Intellectual Property Office, Beijing Municipal Bureau of Copyright, China Mobile Communications Corporation, etc. CIPS’ researchers have also provided valuable advisory opinions for Chinese national IP and IT policies as well as legislations throughout the years.

CIPS publishes an academic journal entitled “IP Frontiers”(《知识产权前沿报告》), which presents most updated findings in arenas of IP and IT law. . Furthermore, three authoritative textbooks have been accomplished by CIPS staff: “Intellectual Property Law” (《知识产权法》, Higher Education Press 2007), “Electronic Commerce Law”(《电子商务法》, Chinese People’s University Press 2003-2007) and “Cyberspace Law”(《网络法》, Tsinghua University Press). , , . All of them are designated as the " 11th Five-Year Plan" State Textbooks Series for general higher education in China. Moreover, CIPS runs an academic website named as “Intellectual Property Lab” (www.newiplaw.com), which has a wide prominence among IP research sphere in China.

CIPS is dedicating itself into the coherence of IP practice, , legal education and academic research. CIPS has creatively engaged taught and research activities in IP Commonwealth services for Hi-tech industry. CIPS is conducting a serial of projects at comprehensive monitoring of global IP development and distribution of industrial standards. Updated information of the competitive situation of high tech in IP issues is continuously provided. By these projects, CIPS can evaluate competitive status of specific industry with the relevance to IP. CIPS can also provide IP alerts to industries as well asclear IP barriers for Chinese industries and relevant infrastructures, as well as propose and supervise the implementation of IP strategy for industries Additionally, CIPS can conduct patentability researchand provide defensive searches for enterprises. Furthermore, CIPS provides IP clearance and case advisories for small and medium-sized enterprises. Last but not least, several conferences, seminars and workshops on IP are held by CIPS from time to time.

CIPS has actively participated in academic and professional activities both nationally and internationally. We have engaged in academic relationships with institutes in the US, Germany, South Korea and so forth. Meanwhile, CIPS is constantly inviting prominent scholars and experts with governmental and non-governmental background taking lectures in the campus of CUPL. CIPS’ visiting scholar program is opening for both Chinese and abroad experts all year round..
Address: Center for IP StudiesRoom 101 CUPL Press Bd., No.25 Xitucheng Road, Haidian District, Beijing 100088, P.R. China Tel: +86-10-58908009 Fax: +86-10-58908007Website: http://www.newiplaw.com E-mail: iplaw@newiplaw.com