Dec 29, 2009

The Splitting Internet Governance and the Down-to-Earth Solutions

Here is a very brief explanation to and my viewpoint of the latest development of China's compaign to the Internet Controlling. Like my other ideas, this one might not be mature enough. But anyway, the reason of saying something is to get the commentaries and/or criticisms.


1. The definition of the Splitting Internet Governance: it has multiple meanings

(1) The separation of the Internet under the governance of ICCAN (at least namely) and the "Cinternet" under the the governance of the China's government;

(2) the departed jurisdication of the Internet Governance in China.


2. The history of China's Internet Controlling: My own division of periods

Regulation/legislation regardless the techonology neutrality (1996-2003)

--> Technology Control but very low frequency to enforce the regulations (2003-2005)

--> Begin to rely on the law enforcement but the technology control is still the main stream (2003-2009)

--> Using the law, and put the technology filtering mechanisms the second place (2009)


3. Pros and Cons of the above Transform in 2009

Pros: It finally go back to the track of lawyering.

2007: No one know who ordered to shut down the website, and sometime no one know the reason.
2008: At least one knows who ordered to shut down the website.
2009: The reason of shut down is explained, and the subject is clearer and clearer


(1) The old law (regulation was promulgated in 1990s, and the provisions are not compatible to the ) and the older approach by itself are arbitrary and immature, the enforcement may cause the officals find the benifit of the selective enforcement.

(2) The law may not compatible to the other parts of the "Internet". The conflicts may be everywhere. The "dark net" may be highly developed.


4. the Down-to-Earth Solutions

... forthcoming...

Dec 21, 2009

Chinese Posts at BlawgDog from Dec. 14th to Dec. 20th: English Abstracts

From December 14th to December 20th, 2009, seven new Chinese entries have been posted to the Blawgdog. Here are the brief one-sentence abstracts for the English readers' reference:

  • Top Ten 2009 Copyright News in China
    Chosen by the China Copyright Journal. I added the referral links to those news that had been commented at blawgdog.
  • It's Wrong not because of Burdening the Duty of Carefulness, but because of Providing Joint Liability
    Some Beijing academicians oppose Article 36 of the drafting China's Tort Law Bill by saying it should not burdens the ISPs the duty of carefulness. I clarified in this essay that the key problem of Article 36 is wrongfully providing a joint liability to the ISPs. 
  • Turning Exemption Provisions to the Criterion of Liability
    This article is also about Article 36 of the drafting China's Tort Law Bill. I noted that, in the legal transplantation in recent years in China, the exemption provisions in foreign legislations are often (intentionally or mistakenly) shifted to be the criteria of liability. For example, Sec. 230 of the CDA in US is an exemption arrangement, while Article 36 is a criterion of liability; another example can be the safe harbour to the ISPs in the DMCA (on the so-called red flag test) was wrongfully transplanted to be a criterion of liability.
  • Xinhua News Agency: China will not Resolve the un-recorded Domain Names
    This entry has been translated into English at here.
  • I See the Historical Day
    This post mentioned the latest news: the Ministry of Industry and Information is proposing that the foreign enterprises "must register domain names from Chinese registrars if the names are used for business in China. The domain names oversea registered shall not be used in the businesses toward China." And admitted the state will "supervise the domain names that launches the website oversea, and take measures to control the foreign name registrars".
  • Reprint: Two Articles by Mr Youxi Chen
    Chen is a lawyer, and the vice Chair of the Committee of the Constitutional Law and Human Rights in China Bar Association. He published two articles at his website blaming the newspaper misleading the mass in reporting the news that lawyers are arrested in ChongQin. He argues that the Chinese lawyers are in very hard social environment now.
  • China IP Weekly Newsletter
    Writen and edited by Luckie Hong, a co-author of BlawgDog, reporting the latest news in IP Law. This issue includes SNDA Literature (NASDAQ: SNDA's subcompany) annouced suing Baidu for over one million in infingement of copyright, and the new development of Netac v. Sony, and other 7 latest news.

Abstracts of the Chinese Posts at BlawgDog from Dec 3 to Dec 13

Seven Chinese posts have been posted to the Blawgdog from December 3rd to December 13th, 2009. Here are the brief one-sentence abstracts for the English readers' reference:

Dec 18, 2009

The License to Domain Name Resolution - this time not only .CN

To control the pornographic websites, China's Minstry of Industry and Information annouced today five measures that the registrar (CNNIC) and domain name registration service providers shall do, .

1. Establish a blacklist of the the domain name holders whose website has been shut down by the government.

2. The  applicants of domain names must provide all the informaiton for the name registration.

3. If a website is not approved to "record" by the telecommunications administration bureau, the affiliated domain name shall not be resolved.

4. Once a website is found "pornographic or illegal", the resulution of the affliated domain name shall be stopped, and all other domain names that the same registrant has held will be suspended to be resolved. And the registrant will be listed in the blacklist.

5. Investigate the way of coorporation, modes of advertisment and the way of connection between the regsitra/domain name registration servicer providers and their cooporative partners.


This time, based on this announcement, not only .cn, but also all the domain names registrated/managed in China will not be reolved unless the corresponding website is "recorded" (actually approved) by the government. And if one's webstie has been shut down, she may not be permitted to registrate new domain names.

Dec 16, 2009

"Map of Internet Encirclement Compaign in China"

A "Map of Internet Encirclement Compaign in China" was released by some Chinese netizens yesterday. It is very interesting and has been switfly spreaded to BBS and weblogs in Chinese Internet sphere.


Here is an English translation of the map (click the picture for a better view):



[Background] "The Wars of (anti-)Encirclement Compaign" were a series battles between China Communist Party and the KMT's Nanjing Gorvernment in 1930s. At the time the CCP established a government in south-central China (mostly in Jiang Xi Province). The KMT's army tried five times to attack and encircle the territory of CCP's regime. And The CCP's Red Army was almost defeated in the Fifth Encirclement War in 1934. The Long March followed the war and rescued CCP and its army.

Dec 6, 2009


I just read Tim Hwang's essay on the "Berkman School". It is very interesting although I am not a fan of categorizing "schools". He says Berkmanites tend to share the notion that the Internet has specific configuration of features, such as openess, freedom and unfathomably deepness. Hence the fire-walled China's Internet might not be regarded as "The Internet".

This might be correct when one asks the Berkmanties what is the "ought to" Internet in their minds. While as a Berk-freshman, I'd rather considering what is the truth of the Internet. In my suspicion, the nuance or even major variety of cyber ecology among different countries/cultures/languages/regimes is unavoidable and has actually been formed for years. Considering the 1 billion accounts of QQ, the seperation of the Internet, the isolation of various version of "Internet" seems not merely a trend but also a truth. The problems seems not only "what are the features of the Internet distinct from the pre-internet society", but also "To each pre-internet community, what are the features of the Internet respectively."

Rebecca MacKinnon says there is a "Cyber-tarianism" not uniquely in Chinese Internet sphere. I am waiting for reading that. Nevertheless, I assume there is a trend of Cyber-ANY-isms emerging from everywhere. At this stage, shall we take a "cyber-pluralism" into account firstly?

Chinese BT websites are shut down because of "No License"

The leading Chinese websites of BT sharing are shutting down since the beginning of December. BTChina (, one of the most famous such sites, is totally shut down. And the rumour that its webmaster has been arrested was once widely spreaded. Yesterday, the webmaster of BTChina left a very brief message at the webpage:


It says:

I have to clarify that ... the Radio, Film and Television Administration noticed me BTChina should be closed because the Register Serial Number of the Website (RSNW) is canceled by the Ministry of Industry and information Technology (MIIT). The reason of cancelling the Register Serial Number is BTCHINA has no "License for Dissemination of Audio-Visual Programs through Information Network" (LDAV). I am safe (not arrested). And this proved the online rumours are not reliable, especifically the news.

Not merely BTChina, many other well-known websites sharing  BT seeds are shut down since last week (read the story in Chinese at here). It is apparently that a campaign of cracking down online piracy has been kicked off by some Chinese central government officers, just following the compaign of shutting down pornographic wap sites for mobile phones.

Please, read the above story from a social-legal perspective. The compaign is obviously aiming at piracy. But the reason of shutting down those websites is not that they don't have copyright license, but that they don't have an administrative license of online dissemination of audio-visual programs issued by the government.

Although China has an Administrative License Law to restrict the pervasive application of it, the wide usage of licensing system can be parallel to the technical measures of GFW as the pillars of the Internet censorship. It is apparently that in China, proving a website "has no adminitrative license" is far easier than proving the content of that website "has no copyright license". When Chinese officers say "the government administers the Internet according to the law", they are saying mostly the licensing regulations, like the LDAV and the RSNW in the above story. In this circumstance, the copyright owners' best strategy of fighting piracy may not be filing the case to court, but reporting the authority that the targeted website does not obtain the license of disseminating Audio-Visual programs (or license of disseminating other contents).

I personally don't like such situation. But it is there, lively. That's why I say the free culture in China should not merely be the freedom of amateur using copyrighted works, but also be the freedom of disseminating information. This is the premise of discussing copyright issues. I mean, either in a soceity that the freedom of dissemination exist or in a soceity that it does not exist, the copyright law may survive. But the "copyright paradox" in these two contexts should be various.

Dec 4, 2009

Is Google Books Infringing Copyright under Current Chinese Law?

As an Interent application or online service, "Google Books"  may not necessarily be found infringement.

But, Google would be held infringement liability if it really scanned Chinese books without authors' consents.

First of all, I am talking about Chinese copyright Law. As for whether the same act would be held infringement in the US courts, I don't know. I don't know because once the Google Book Settlement is approved by judge, the case will be dismissed without ruling. Even if the settlement were not approved, and even if the case were finally ruled favoring Google, it would merely be a US judgement binding in the US, not necessarily binding in China.  In other words, so long as the case is in Chinese courts' jurisdiction, Chinese courts shall, according to Chinese copyrigh law, make their onw decisions no matter what the US court's ruling is. This is a crutial common sence, but I doubt many people may forget it, because for a long time, I see too many comments to Chinese cases according to US laws.

Second, the only relationship between the US court's ruling and China is: if China thinks a US binding judgment or the approval of settlement violate TRIPS, China may file the case to the WTO.

Third, back to the dispute between Chinese writers and Google, for the forgivable exploitation of the copyrighted works, Chinese copyright law is following the European mode of "limitations to coyright" but not the US concept of "fair use". Therefore, unless a non-liability provision has been provided explicitly, the conduct will be judged infringement once such conduct is regulated in Art. 10 of Chinese Copyright Law as the content of copyright. Until now, China only allows the search engines to store the content in other websites automatically. A conduct of scanning the books, from the first pege to the last, from the first line of each shelf to the last line, constitutes infringement definitely (unless the conductor is public library).

Fourth, Google's self-limitation of accessing to the full-text of the scanned books is another story. The infringement has been established soon after scanning and storing books in its servers.

Last but not less importantly, this is a legal and positivist analysis. Not a value criticism. I am not saying that Google Books is a good/bad thing hereby. I am also not saying that one should not look at the case and the whole set of the current law critically. On the contrary, the real criticism should be based the fact on which some obvious good thing is hindered by the existing law, or some obvious bad thing is permitted by the existing law.

Dec 3, 2009

Fighting Google Unarmed?

China Association of Copyright on Literature Works (CACLW), the governmental authorized org for collective copyright management) is searching the books which are scanned by Google, and calling Chinese authors either sign the GoogleBookSettlement or join CACLW's collective legal action.

The following are the lists of the authors whose works are scanned by Google, collected (seems manually) by CACLW. And today the third list is published. Besides, the lists are published on the webiste of China Association of Writers, which is actually not the authorized collective management organization in China. Why not the website of CACLW itself? Because the CACLW's website seems passed out because of technical problems ... Unarmed fighting?

The calling was announced in October before the revised google settlment was submitted. While it seems there is no where noticing that the revision of the settlement has excluded the foreign works ... 

image   image

image image

BTW, According to China's Regulations to the Collective Copyright Management, the establishment of a collective managment organization should fulfill some qualifications before approved by the State Copyright Administration Office. When googleing the news, I see very confusing news, from the China Association of Writers' website, the CACLW was just celebrating its establishment on 1 Sept. 2009. But based on my understanding from other sources, the CACLW has celebrated its setup once in last Oct ... What's the hell are they doing?

Let's see what will happen ...

Author’s right or Copyright: The Melting Pot of China’s Copyright Law

Here are the slides I presented at Harvard-MIT-Yale Cyberscholar Working Group Monthly Meeting on 2 December 2009.

I reviewed the Chinese legislative history of copyright protection during the past hundred years, and draw the conclusion that the Chinese copyright law has been, and still is, justified with the utilitarian approach. I think that this characteristic, rather than the difference between the respective legal systems (author's right vs. copyright), may be one of the reasons that cause the continous collision between the US copyright law and its Chinese counterpart in future. In the new circumstance that China is more and more willing to express its own value, the collisions may lead to the isolation of the internet in respective jurisdictions, or even the super-national treatment to those inconsistent mechanismes.

Dec 2, 2009

Collective Management Should Not be the Source of Monopoly Earnings

This is a Column essay in Chinese, published in 21cn Economic Post (GuangZhou). Here is a brief English abstract.

Abstract: China Audio-Video Copyright Association (CAVCA) filed a law suit against SuperStar Co. (a KaraOK service company) on the breach of contract. CAVCA is a national-wide copyright management organization to the audio-visual products in China. The contract says the CAVCA licenses the the copyrights of all the MTV works that it managed to the SuperStar. The SuperStar should pay the money to an account "designated by TianHe Inc." Tianhe Group is a company established in 2007, and it's only job is to manage the MTV copyright under the CAVCA's authorization. This article recalled the aim of the collective copyright management, and questioned the legitimacy of such authorization.

The full-text and the machine translation by Microsoft Translator can be accessed at here (alert! the translation is really terrible).

Dec 1, 2009

Harvard-MIT-Yale Cyberscholar Working Group Event

Just a cross-post from Berkman Website. I am going to talk at Harvard-MIT-Yale Cyberscholar Working Group monthly Meeting on 2 December 2009. The content of my talk will be posted later.

6:00 pm - 8:30 pm, Wednesday, December 2, 2009
Conference Room 202, Berkman Center
23 Everett St 2nd Floor, Cambridge, MA
Please RSVP to Herkko Hietanen at before 12/2/09
Refreshments provided

Donnie Hao Dong is a Fellow at Berkman Center and a Lecturer at Yunnan University (PRC). His research interests cover copyright law, cyber law and law and social development in digital age. He got a JSD from China University of Polictics and Law with his dissertation on the public domain in the context of Chinese copyright law. Now Donnie is a PhD Candidate in City University of Hong Kong closing his research on the lessons of Chinese copyright reform for digital age.  His publications, short essays and nags can be accessed at

David Singh Grewal is a Junior Fellow at the Harvard Society of Fellows, and an Affiliated Fellow at the Information Society Project at Yale Law School. His first book, Network Power: The Social Dynamics of Globalization was published by Yale University Press in 2008. He holds a JD from Yale, and is currently completing his PhD in the Harvard Government department, where he is finishing his dissertation, "The Invention of the Economy." He is also on the board of the Biobricks Foundation, a non-profit working to develop an open-source platform for the emerging field of synthetic biology.

Mackenzie Cowell graduated from Davidson College with a BS in Biology in 2007 and currently works as a Research Assistant at the Berkman Center for Internet and Society at Harvard University.  He is booting up a public biotech lab in Boston ( He tweets: @100ideas.

Donnie will discuss his research on the justification of copyright protection in China. He will review the Chinese legislative history of copyright protection during the past hundred years, and draw the conclusion that the Chinese copyright law has been, and still is, justified with the utilitarian approach.  He thinks that this characteristic, rather than the difference between the respective legal systems, may be one of the reasons that cause the continous collision between the US copyright law and its Chinese counterpart in future.

will examine the question of: Is there a way to bring "free culture" into biotechnology? His talk will explore one recent effort to do so: the creation of the Biobricks Public Agreement, a legal mechanism meant to assist the development of an open, shared platform in the emerging area of synthetic biology.

Mackenzie Cowell co-founded after witnessing hundreds of undergraduate teams successfully design and build standardized biological parts and devices while competing in the International Genetically Engineered Machine competition, which Cowell helped organize at MIT from 2006-08. is now the center of a diverse and international community of people interested in amateur biotechnology, from artists to scientists to schoolchildren to garage entrepreneurs. In this presentation, Cowell will present some of the projects currently being developed by this community of non-institutional researchers.

Followed by Open Discussion

The "Harvard-MIT-Yale Cyberscholar Working Group" is a forum for fellows and affiliates of the Comparative Media Studies Program at MIT, Yale Law School Information Society Project, and the Berkman Center for Internet & Society at Harvard University to discuss their ongoing research. Each session is focused on the peer review and discussion of current projects submitted by a presenter. Meeting alternatively at Harvard, MIT, Yale, the working group aims to expand the shared knowledge of young scholars by bringing together these preeminent centers of thought on issues confronting the information age. Discussion sessions are designed to facilitate advancements in the individual research of presenters and in turn encourage exposure among the participants to the multi-disciplinary features of the issues addressed by their own work.

Two Methodologies Books and more...

Just for a record, as mentioned yesterday in the course of Seminar on Research Methods on Internet and Society, led by John G. Palfrey and Professor Eszter Hargittai.


Two books:



Eszter Hargittai (ed.):

Research Confidential: Solutions to Problems Most Social Scientists Pretend They Never Have

This collection of essays aims to fill a notable gap in the existing literature on research methods in the social sciences. While the methods literature is extensive, rarely do authors discuss the practical issues and challenges they routinely confront in the course of their research projects. As a result, editor Eszter Hargittai argues, each new cohort is forced to reinvent the wheel, making mistakes that previous generations have already confronted and resolved. Research Confidential seeks to address this failing by supplying new researchers with the kind of detailed practical information that can make or break a given project. Written in an informal, accessible, and engaging manner by a group of prominent young scholars, many of whom are involved in groundbreaking research in online contexts, this collection promises to be a valuable tool for graduate students and educators across the social sciences.


Cross-Cultural Survey Methods (Wiley Series in Survey Methodology)Cross-Cultural Survey Methods (Wiley Series in Survey Methodology)

by Janet A. Harkness, Fons J. R. van de Vijver, Peter Ph. Mohler

Breaking new ground in its approach, Cross-Cultural Survey Methods describes how to recognize and deal with the major obstacles at each stage of researching, striving for equivalence and comparability. Topics include:
* Designing and crafting questionnaires for comparative subjects, including questionnaire translation
* Error and bias issues in cross-national surveys
* Techniques for analyzing bias and equivalence
* Statistical techniques for substantive analysis and the use of multidimensional scaling to analyze bias and research questions
* Important issues of preparing data for secondary analysis, such as data access, and documentation
* An introduction to meta-analysis in comparative survey research


and more:

Cross-Ideological Discussions among Conservative and Liberal Bloggers

by Eszter Hargittai, Jason Gallo, Matthew Kane.

SurveyFail: an unfortunate case of trying to administer a study in an online community.

Nov 28, 2009

A Beijing Court finds of Infringement

October 26th,, one of the most popular video sharing websites in China (as well as in the world), was found a series of copyright infringements by Haidian District People's Court in Beijing. The total damages for 47 movies (and that is 47 cases according to China's civil procedure) is 450,000 RMB (about 64,000 USD). One of those judgments is scanned and posted at here (Chinese) by some anonym (the official one may be published later).

Voole, the plaintiff of the cases, expressed its appreciation to the judgment. While the defendent's attorney reminds the press that that judgment may be overruled by the appellate court. Voole is an online VOD provider who claims being licensed the "right of communication through information networks" from the copyright owners.

Judgments are not binding to succedent cases in China, while it is very interesting to read the mind of the judge from the judgment. Here are some of my brief comments to it:

Firstly, the judgment obviously ignored that Youku is a video sharing website, namely a service provider. I am not saying the service providers would be exempt from liability per se, but at least the judgment should mention this and distinguish this from the direct infringement. 

Secondly, the judgement confirmed that even a work is not permitted by the State Copyright Office to distribute in China, it still enjoys the copyright protection. This again proved that Chinese courts do not interpret Article 4 of the Copyright Law literally. They limit the scope of "illegal works" that can not get copyright protection to the works with "bad" content. The procedure-illegal things are still protectable.

Thirdly, the amount of damages is based upon purely judge's discretion. I am not saying it is bad or good. I just wish to read more rationales on how does that amount is figured out.

Nov 18, 2009

What will happen when two utilitarian giants meet

This is the outline of my talk at Berkman Fellow's Hour on 17 Nov. 2009. Needs improvement, just post for commentaries.


1. Copyright protection is justified in a utilitarian way in the US. Contrary to many people's granted thought, my study find that although it is deeply affected by the Germeneric-japanese form of civil code system, China's current copyright law is also based on utilitarian philosophy.


2. Pros and cons of the utilitarian justification to the copyright law, as well as some of cyberspace law.

Advantage: that's the sourse of various thinking to the legal reform.
Disadvantage: when the understandings of "progress" (US Constitution Art. 8; China's Constitution Art. 19, 20, 47, Copyright Law Art. 1) in different countries conflict with each other, conflicts of the law will be inrooted and hard to be coherent.


3. When the US is a giant but China is a dawf in the matters of either economy or civilization, US can impose its understanding of "progress" and the corresponding detailed copyright law to China, as it has been for many years. While if China becomes a giant also, what will happen? No matter how do people celebrate it or demonize it based upon different values/ideologies, the unique "socialist regime with Chinese characteristics" is an existence, and has developed a more and more complicated legal system.


4. The first formal head-on confrontation happened at the WTO dispute on the provision of denying copyright protection to the "illegal works" (either content-illegal or procedure-unlawful) in China's copyright act.


5. There is a trend of the isolation of the Internet. The isolated and respectively utilitarianized legal system may enlarge the differences of copyright/information law among countris in future. (example (1) firewalled but flourishing Chinese "Intranet"; example (2) differentiated treatment to the books in the latest Google book settlement because of the needs to comply with the territorial copyright law).


6. What would be a uniform legal justification for the future reformed copyright law (or law on "creation in commons")? Or, in what level, that justification is possiblly uniformed in such a utilitarian world?

Nov 16, 2009

Access Controlled is Controlled before Accessible

November 15th, 2009, at Internet Governance Forum (IGF) 2009 in Egypt, United Nations (UN) security took down banner / poster (as follows) of the forthcoming book Access Controlled: The Shaping of the Power, Rights and Rule in Cyberspace (MIT Press, 2010).

See Youtube:


Nov 15, 2009

Fall? No. It's Autumn!

Leaves, obviously.



Parking on leaves.



Not my car, but my camera.


Tree in Minute Man National Historical Park, Lexington, where the first shot for independence was triggered.


Before night fall.



OK, that's Harvard main entrance, if there must be one.



Squirrel at the bus stop.


Oct 28, 2009

Key Sentences at 2009 Free Culture Research Workshop

Oct 23 2009, Harvard Law School Hauser Hall 104, Free Culture Research Workshop 09. It is the first Berkman formal event I participated since I arrvied in Boston on 20 Oct. Here are some key sentences at the conference.



Terry Fisher: (quotes Walt Whitman's Song of Myself) "Both in and out of the game, watching and wondering at it."

[Note: This can be an excellent overall brief to the conference]



larryLessig: tech today makes possible explosion of non-market production. technology is reviving our earlier sense of how we can produce culture outside of the market paradigm. "professional sex" (production for market) vs "amateur sex" (remix and other free culture production)...  My job as a policy maker is to make sure that both professional and amateur culture can survive...We are not communists...The market isn't bad, therefore free isn't inherently good.


[Note: it always happens in multi-discipline conferences: diverse backgrounds triggered the discussion on the definition of the topics. What is "free culture"?]


Lessig: "Strongly resist the idea that Free Culture is Creative Commons. It is not. That would be a failure for CC."

Lessig: "Free Culture is not just non-market. It is hybrid relationships, it is one strategy to use to continue these relationships."


Gabriella Coleman: "Maybe we can differentiate in the following way: Free Culture vs free culture (explicit vs aggregate dispersed phenomenon)."

I would say "Free Culture" vs "free culture" vs "(free) culture". - Someone
[Note: forget who said that. while when I searching for this, i found another interesting post by Doc Searls (different context and different contents, but still worth reading)]


Mike Linksvayer: Lots of gnashing of teeth re what free culture is and relevance. Stop gnashing and quantify.

Aaron Shaw: "we are moving into the Freudian unconscious of the Free Culture movement...the terrain we don't want to think about it.


Giorgos Cheliotis:  "I'd quote: If you want to be wildly interdisciplinary, you must be epistemologically humble."


[Donnie Note: fortunately, ppls shifted to other topics other than the definition...]


Lessig: "If Free Culture is innate it doesn't hurt to educate for it..:) but if it isn't innate, we should educate to create it."

Edward Harran: "We need to move from a profit-driven economy to a values-driven economy."


Mike Linksvayer: Need to have case studies of failed free culture platforms.

Clay Shirky: "Failure is a feature, not a bug."

[Donnie note: Free Culture as a movement, or as a practice, it is a problem]


Mayo Fuster Morell suggests that free culture may be considered as a social movement because it challenges established production systems.

Thomas Haigh: "Are we researching Free Culture practices or the movement?"


Philippe Aigrain: "We must research the practices if we are to research the movement. Only the global landscape gives you a picture.


Elizabeth Stark: "Where does the movement end and the research begin?"


Kristin Eschenfelder: I think the movement is helpful in consciousness raising that starts people asking questions.


Donnie Dong [that's me]: If free culture has to be a global movement, it must be expanded from sth. about IP to the free dissemination of the information. The reason is: in some late-developed countries like China, the things hindering the "free culture" are far beyond the intellectual property system. On the contrary, the CC's promotion in China improved people's consciousness of copyright protection, interestingly. 


lessig "We should think about ways to study interesting cultural difference."


"Free Culture can be re-appropriated in each cultural context. Grows very rapidly when there is a challenge. It's post-modern."


medialabprado Is Twitter part of the Free Culture movement?


Mayo Fuster Morell: Facebook is "non-market" in term of users "contributions without monetary retribution", but not in terms of Facebook company profit.


[Donnie's Note: the following voices are very essential]


Herkko Hietanen: "Is this a research or an advocacy workshop? Why are there no dissenting voices around Free Culture and Creative Commons? Are here all Larry's fans."


"As an academician, I am not interested in the 'social movement'."


[Donnie's Note: see the references shared by the attenders via twitter]


BiellaColeman ---> works on the limits of FC in the context of indigenous groups

Michael Brown: Who Owns Native Culture? Overview of the issues with cultural secrecy:

concept of 'recursive public':

"The Moral Economy of the English Crowd."

The trouble of Free Riding 

Open Educational Resource:

Digital Labor Conference Nov. 12-14 New York

Another talk by Lessig:


Some script from:
Photo from (sorry Jude use your copyrighted work):

Sep 16, 2009

BBC: the Global Growth of Broadband 1999-2011

BBC published an interactive map showing the growth of broadband
connection from 1999 to 2011.

Canada seems to be the earliest country that the broadband is populized. In Asia, South Korea is the early bird, even earlier than Japan (Let's utter a deep sigh for North Koreans).

It is really a great archievement for China - although until now maybe just around 10% of inhabitants in China are using broadband, don't forget that means more than 100 million... while at the same time let's sigh again out a greater thing in China: GFW.

Plus, see the submarine broadband cables, Hong Kong is definitely a hub of communication to the world, as it has always been for more than 100 years.


Thanks Carolina Rossini for passing on this map via Berkman's mailist.

Sep 8, 2009

WTO WT/DS363 Information Center 信息中心

This is a collection of the materials on WT/DS363: Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products. The Panel Report has been published on 12 Aug. 2009. China appeals the case to the the Appellate Body. The Appellate Body Report was issued on 21 December 2009. please Bookmark this page or subscribe BLawgDog for update.

本日志为WTO争端解决案件 《DS363 中国 – 关于影响贸易权利的措施和影响若干出版物及娱乐音像产品的分销服务的措施》 的中英文信息汇总。专家组报告(点此)于2009年8月12日公布,WTO上诉机构的最终裁决也已于2009年12月21日作出(点此查看).请收藏本页或订阅法豆获取最新资讯。
English Materials:

Europe as the third party:
Australia as the third party:

Aug 29, 2009

10th Anniversary of BLawgDog, New Start


The first webpage(cn) of BLawgDog was published on 26 August 1999. I didn't expect how big the Internet would impact the world in the following ten years. I also didn't expect the Butterfly Effect of that webpage to my own life. It was just an small outcome of my curiosity plus some inner desire of communication. But without it, I might not start my way out of the beautiful hometown, my life in Beijing and Hong Kong, and my connection to the hub of cyber research - Harvard Berkman Center - my bio page as a fellow is occasionally and nicely published by Berkman colleagues on 26 August 2009. That is a fantastic gift for BLawgDog, as well as a new start.

Jun 4, 2009

City Bank is Defeated in a Public Interest Patent Action

On 18 May 2009, the Patent Reexamination Council of State Intellectual Property Office of China issued the Decision of Declaring Invalidation of the Patent Right (Decision No. 13362), which declared invalidation of all 28 Claims of Rights in China patent CN 1097799C. The patentee was City Bank.

The complaint of invalidation was raised by Professor Chu ZHANG (Chair of Center for IP Research at China U. of Politics & Law, QIP) and Mr Yibiao ZHANG (research fellow at QIP) on 18 Dec. 2008.  The oral procedure was held on 20 April 2009.

This declaration of invalidation breaks through a huge barrier in the market of finance and stock transaction service set by the transnational corporations. Chinese enterprises now can enter into the relevant market and compete with financial giants in a fairer enviroment.

As a non-profit organization, the QIP will continue to hunt the questionable patents owned by the transnational corporations in China, and initiate more actiones publicae populares.


(Translated from

May 16, 2009

Rule of Moral or Rule of Law?

Rule of Moral or Rule of Law? Contending Passions of China's Information Control in the New Round of Metropolis Development


This is an outline of my presentation prepared for a Symposium.

Lust, Caution is a movie telling a story in Shanghai and Hong Kong in 1940s. I personally like it because it has not only good scenery but also some artistic, as well as sexy episodes. From the law perspective, the interesting thing is: This movie, especially those episodes with nude bodies may not be protected by China's copyright law because Article 1 of that Law said that it aims to promote the development of 'spiritual civilization' but not indecent content, and Article 4 of the Law excludes the copyright protection to 'illegal works'.

Therefore, if someone uploaded the movie to a website in China, the copyright holder might not eligible to sue the uploader for the copyright infringement. On the other hand, if the copyright holder licensed a website to provide the online watching, both the holder and the website might confront with criminal penalty no matter what warning signal had they placed on the website before the visitor could see the movie. The worse thing is no instruction in China's law revealing what is obscene or indecent.

The history of China's endeavour on controlling the information can be described as a contending between rule of law and rule of moral. Until currently, the controlling is mainly based on the judgement of the officer's moral feelings (this includes the traditional moral or the so called Socialist Spiritual Civilization). Why? Because the law is very vague and uncertain.

The more complicated thing is: Some local government tends to carry out the Rule of Moral in name of Rule of Law. In Hangzhou, a new regulation has just promulgated, it says basically anyone who wants to post a thread onto BBS or any public discussion system must register her real name and citizen ID card number to the ISP beforehand.

Why do they believe this controlling will be useful? Not only because they don't understand the technology (if one want, he may break any firewall), but also because of the Chinese legal tradition. Traditional Chinese social controlers used to embedding, or implanting literary or even passionate wordings into the legislation or policy. For example, many officers use 'Internet violence' to support their suggestion to the above real name system. However, the Internet Violence is just a metaphor. There is no possibility to conduct a legal prohibited real 'violence' through the Internet. The only things that may happen are defamation, invasion of privacy or leaking the state secrets, which are far away from the 'violence' in the legal sense, such as battery, trespass or body harassment.

As Aristotle had said, 'the law is free from passions'. Good information governance should be under rule of law. The rule of moral might be efficient in some circumstances, but may also lead to many arbitrary administrations.  For example, there is a 2007 case in Shanghai on the blocking of the website. The plaintiff made a website hosting at a US web server. The website was purely lawful under Chinese law. However because the whole server was blocked afterwards, his website cannot be accessed from China. (Brief the case)

Contrasting to the mainland, the passions or pure moral doctrines are scarcely written in Hong Kong's legislations directly. Comparing with Mainland, Hong Kong has a more precise and value-neutral law on the information controlling. In the Edison Chan's obscene photo case, Hong Kong government firstly tried to determine, in accordance the fixed procedure, whether the photos were consistent with the definition of 'obscene' or 'indecency' regulated in Obscene and Indecent Articles ordinance (Ch. 390 of HK ordinance). The moral criticisms to the author or the uploader of those photos always stayed in the media, and are not concerned by the judges.
The bright aspect on mainland China is: now the controlling is gradually stepping into the pace of rule of law. A good result of recent campaign of attacking indecent content in China is that a semi-governmental organization published 13 standards for distinguishing the indecencies from other contents. It has its defects because the most important thing: procedure of determination is still lacking. However, it is a good start (while the future may still a contending of rule of moral and rule of law).

Between the mainland and Hong Kong, the most essential distinctions are not the buildings, human resources and industries, but the distinction between rule of moral and rule of law. Either of them has advantages for specific cases, while I think as for a general environment, stressing the rule of law would be crucial  for China's new round of development in metropolis. If Shanghai wish to be a financial centre or regain its glorious status that we can see in the movie Lust Caution, it has to be a safe harbour for everyone with clear and stable rule of law.

Apr 30, 2009

Judicial Mediation - A Deprofessionalization?

ON 15 AND 16 APRIL 2009, CityU of HK Law School held an international conference on the mediation. Experts from China, Hong Kong, Australia and Macau presented their latest academic outputs in the meeting.

The interesting thing is: Most Chinese experts are focusing on the judicial mediation, which is the mediation coordinated, and in many circumstances initiated, by judges during the litigations. Experts in other jurisdictions, by contrary, tends to discuss the mediation out of the court.

China's judiciary system is actually now experiencing a new wave of transformation. Contrary to the trend before 2007, the current path of the "judicial reform" is to make the judiciary more "close to people". One of the core measures is to enhance the "judicial mediation". In my view, if the "profesionalization is a world trend for the mediation" (stated by Professor Nadja Alexander, a prominent expert in the arena of mediation), then the emphasizing of the "judicial mediation" in Chinese courts can be named a trend of de-professionalization for the judcial practice.

In a lunch seminar a week later from the conference, Mr. WU Zhi, an Asso. professor from Hunan Normal University brought his interesating talk about the "the mediation in Chinese IP litigations" in CityU. His presentation proved again my assumption. In resent three years, Chinese judiciary system has issued a good many of documents on the policies of the mediation. Now the Supreme People's Courts seems stressed the mediation as the preference in the dispute resolution.

The most interesting thing in prof. Wu's seminar is the discussion among auditors. Most of auditors are the students who registered in CityU's creative LLM program for mainland judges. Because they are judges on the mainland China, they have many experiences in those judcial mediation. This makes the discussion being exciting. As a real auditor, I do obtain many useful knowledges and inpirations.

VS ?

One of the most impressive inspiration is: why the Chinese courts eager to be mediation centers? Two judges answered this question respectively (one was in the seminar and the other was on his way back to the dorm together with me, and their answers are amazingly identical!): because the China's courts are aiming at providing dispute solutions rather than the justice. This reminds me a precedent post in this blog on the "mission of the Supreme People's Courts" (in Chinese). Yes, the Chinese courts are not set as a seperation of sovereignty powers but the institution for dispute resolution authorized by the people's congress (at least in the Constitution literarily). The Constitution and Laws are just one of the "three supremacies" (the slogan of the supreme court - and a question in 2008 China Bar exam).

As a layman either in the mediation or in the procedure law. I cannot figure out whether this "deprofessionalization" is good or bad in an acedemic way. The only thing raised in my mind is: the conflict among dispute resolution mechanisms. Mediation is a more efficient way in resolving the disputes than litigation, while the feature of the litigation is it's formal procedure which may be costly but guarantted the rule of law. When the judicary simplified its procedure and compete to the unformal (or less-formal) mechanism of dispute resolution, it actually retreated itself from the position of "transporting justice". And its status will be conflict to the existing mediation institutions. How many cost will be paid in this institutional competition?

Another interesting topic in is: whether the IP litigation can really be deprofessionlized in the judicial mediation - even if we narrow the aim of the courts only at efficient dispute resolution? Let's leave this question in the next thread.

Apr 4, 2009

Internet Search Engines and Trademark Rights

Internet Search Engines and Trademark Rights
By Luckie HONG
Published at China Law & Practice, March 2009

Google and Baidu have become household names in China. Both companies provide internet search services, and both now offer keyword advertising programmes. Under these programmes, companies can purchase certain keywords – when a user searches for these words, targeted advertising is displayed, often in the form of links to the companies’ own websites.
Recent cases from the Courts of PRC in Beijing, Guangzhou and Shanghai have again raised questions relating to keyword advertising programmes. The issue at stake is whether the purchase or sale of keywords that constitute the whole or part of another party’s registered trademark can be classified as trademark infringement under Chinese law.
Trademark holders are now challenging keyword advertising in China; such challenges have also been made in other jurisdictions worldwide for a considerable time. As far back as 1999, the United States Court of the Ninth Circuit issued an opinion in Brookfield Communications Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999), in which the Court intimated, based on the plain meaning of the Lanham Act, that the purchase of search terms is a use in commerce and furthermore constitutes trademark infringement after the likelihood of confusion analysis.
The Paris Court of Appeal held in 2006 that Google’s practice of selling certain words as triggers for sponsored advertisement amounted to infringement of Louis Vuitton Malletier’s trademark. Google appealed, and the French Supreme Court has referred questions on keyword advertising to the European Court of Justice for a preliminary ruling.
There have been a significant number of cases in the US and EU in connection to keyword advertising. This has caused rights owners in China to worry about their interests in this new context. On the other hand, rights owners can not ignore the huge impact of the new kind of online advertising among young Chinese consumers: Nielsen, a market research company, estimates that online advertising revenue in China in the third quarter of 2008 grew 42% from a year earlier to Rmb3.72 billion (US$543 million). This rate was more than double the growth in spending on television, newspaper or magazine advertising.
Before making important decisions as to who to sue, and where, it is important for legal practitioners advising rights owners to examine the legal frame and recent cases.
The two parties involved as rights owners’ opponents in issue are the companies purchasing keywords and the search engines providing advertising programmes, namely “subscribers” and “providers” of the keyword advertising. Under the current Trademark Law, different regulations apply on these two parties:
Article 52 of the Trademark Law prescribes that, one form of infringement on the exclusive rights over a registered trademark is “using a trademark that is identical with or similar to the registered mark on the same or similar goods without permission of the owner of the registered trademark. To define furtherly the meaning of “using”, Article 3 of the Trademark Implementing Regulations illustrates that the using of a trademark in advertisement or promotion is included in the scope of “using” referred in the Trademark Law. Should the keyword service be classified as a form of “advertisement”, the subscribers are subject to the review of the Trademark Law.
On the other hand, the legitimacy of providers’ sale of keywords is dependent on a different basis. Article 50 of the Regulations prescribes that, “to intentionally provide any other person with…, and other convenient conditions” shall be an act of infringement of the exclusive right of a registered trademark. Thus it can be said that, in the case the subscriber of the keyword advertising unduly use the term included in a registered trademark, the advertising service provider who did not fulfil its duty of care should also bear the infringement liability.
The space for discretion left to China’s courts is mainly on the two issues. The first is whether the new arising keyword advertising programme falls into the range of the “advertisement” set out in the Regulations, and the second is to what extent the search engines should take the duty of care in running their keywords business.
In one case, the plaintiff, Jijia Intellectual Property Agency, initially sued rival company Guang Lixin IP, along with Google, for unfair competition in violation of the PRC Anti-unfair Competition Law. The action pertained to the purchase and sale by Guang and Google of trademarked terms belonging to Jijia. The terms were used as keywords which triggered so-called sponsored links on Google’s search results pages. Jijia complained in addition of the intentional passing off caused by Guang: the website to which users were directed by the sponsored link was designed using a similar colour, style and organisation. It also contained identical pictures and introductory text to those used on Jijia’s own site.
After the court accepted the case, Jijia withdrew its complaint against Google. This left Guang alone to confront indictments over purchasing keywords as well as misusing pirated content on its website.
Among other things, the district court at the outset examined the fact pattern regarding “keyword advertising” or “sponsored links” involved in Jijia case, and eventually held in the plaintiff’s favour. The court’s views were, in summary, that:
a) the sponsored link used here by Google is a new kind of advertising service in which the client can fulfil its marketing strategy by purchasing keywords which enable its website address to appear at the top of the search results page;
b) a real competition relationship exists between the plaintiff and the defendant;
c) the sponsored link wrongly directing users proves the bad faith of the defendant through exploiting the plaintiff’s brand reputation for commercial purposes, and meanwhile drives traffic which ought to be the plaintiff’s potential clients to its rival through a fraudulent channel; and
d) this conduct violates the Good Faith Principle and widely accepted business morality, and should be found as an unfair competitive activity.
On the basis of the above grounds, the court ruled against the plaintiff and awarded damages of Rmb100,000 to Jijia.
In a 2008 case from Guangzhou Baiyun District, the Court analysed a similar fact pattern to that in Jijia and intimated that the function of Google’s AdWords service was to help users conveniently discover links to those enterprises or merchants who have purchased keywords from search engines, saying to bring more users’ attention to the business information belonging to the service subscribers. In conclusion, the alleged infringing conduct in nature should be held a new kind of advertising activity through certain medium in the unauthorised way in which the plaintiff owned trademark was used in commerce.
Interestingly, Guangzhou Court found that Google, which was also the joint defendant in that case, did not have the ability of editing or monitoring the internet information entered by a subscriber to the company’s AdWords service, and hence Google should not bear the duty of care to the information in dispute. Accordingly, the Guangzhou Court found Google innocent of trademark infringement in the context of a keyword service.
Ironically, in an even earlier case, another large search company, Baidu, had confronted the completely opposing stand of Shanghai No.2 Intermediate Court. The Shanghai Court concluded that in the case where a third party used another’s trademarked words without authorisation, Baidu did not duly perform its duty of care and hence should be imposed with a civil liability. In addition to the injunction order, the Court awarded damages of Rmb50,000 against Baidu for its joint infringement.
To sum up the common ground on which the two courts are standing, it can be said that Shanghai and Guangzhou both hold that the purchase of keywords falling in the scope of another party’s  exclusive right over the trademark perpetrates trademark infringement. Infringement is not only limited to the range of unfair competition stated by the Beijing Court. However, the law is divided here on the issue of whether the search engine’s sale of keywords, or the advising service, should be found to be infringing. Shanghai said yes, but Guangzhou’s answer was no.
The examination of the three cases above reveals that the Chinese courts have not yet reached consensus on issues including the duty of care of a search engine which provides a keyword service, and the application of joint infringement theory to relevant cases. In the absence of guidance from a higher level, some lessons can be learnt on the basis of court practices observed until now in China.
The first clue is that, feeding off the hot debate in US and EU on what constitutes “use in commerce” for purposes of trademark infringement in the context of internet usage, China’s courts hold a common view that keywords are a new type of advertising under the regulation of the Trademark Law. At the same time, the Anti-unfair Competition Law also provides a legal basis for a rights claim.
The second suggestion is regarding rights owners and their choice of against whom they should claim their trademark rights: the service users or the service providers (the search engine companies). The stories in Beijing, Shanghai and Guangzhou all show that if the subscriber to a keyword service can be confirmed, and their keyword usage is established to be unauthorised and causing actual confusion or likelihood of confusion among consumers, then the best choice is to pursue the service user.
The third implication is the possibility of forum shopping for the rights owners. In cases where the subscribers are not easy to locate, or where they are incapable of paying damages, the plaintiff can only pursue the search engines to obtain relief from trademark infringement. The winner in any such dispute seems to be wholly dependant on the forum. Judging by the limited disclosed cases in China, rights owners should prefer Shanghai to other jurisdictions.

Mar 26, 2009

Triple Fixation - from Ideas to Tangible Mediums

In the context of digital copyright law:

  • Works (literature, music, painting) are fixed expression of ideas;
  • Intangible mediums (digital files) are fixation of works with certain digital format in specific sequence;
  • Tangible mediums (CD, hard disk, flash storage) are fixation of intangible mediums.

This three "fixation" are fundamentally distinct from each other. In my view, the solution of the copyright dilemma in the digital age have to be sought from this triple fixation, or any revision to the copyright statutes in the digital age will conflict to the traditional framework that formed in the paper-based material age. The discovery of the intangible mediums is one of my most important academic achievements in recent years. Hope this can be widely accepted.

I am now writing the thesis in which elaborated this dicovery. To discuss this topic, please contact me at Donnie[AT] If you can read Chinese, please also refer to the following article - I raised the concept of intangible mediums firstly in this paper:

Neighboring Right Owners' Right of Communication to the Public through Information Networks

If you hope to discuss this discovery in your reserach, please, please contact me and refer me, so we can discuss it further. I don't care about the copyright, I care about the rightness of the theory and the exploitation of this discovery. Thanks.

Mar 7, 2009

They Just had not Noticed the Censorship

screen-capture.pngRebecca Mackinnor brought an interesting talk at the Berkman Center on China's Internet culture. See the video here, and see the notes by Ethan Zuckerman here, and notes by David Weinberger here.

In her presentation, Rebecca figures out the Back-Dorm Boys (后舍男孩), Premier Wen Jiabao's 2-plus hour net chatting, rivercrab(河蟹), "alpaca sheep(草泥马)", blocked blogs and so on. These are very familar to Chinese netizens, at least those Chinese netizens who are working on the social development of the cyberspace and the cyberlaw. While what the most important observation of Rebecca, in my view, appears at the Q&A session. She said that for many people living in the mainland China, they  just not noticed the censorship.

Why? Becuse they just have many other concerns about their life, and

(1) for Chinese mainlander students, there are so much interesting stuffs IN the Chinese Cyberspace, including "alpaca sheep";

(2) for foreigners (and actually some Chinese white collars either, I think) in mainland, they can get anything if they can read English, unless one's job focuses on the human rights issues specifically.

Yes, they just had not noticed the censorship. This is a very curcial and of course accurate description. Some may worry about this, but I'd say the contrary hereby.

Yes, the so-called cyber authoritarian may not be comfortable when someone meets it. However in most circumstance, one doesn't have to knock into the wall. I mean, as a matter of fact, Chinese netizens just don't HAVE TO notice it because comparing with the off-line world, the cyberspace itself, even in a firewalled intranet, have had brought so much fun to the people. It is the distributed network itself that provides the possibility of freedom of express, the freedom of knowledge sharing, the freedom of fun, the freedom of "lower taste" (低俗) - if not the freedom of obscene, and the freedom of piracy. This nature of the network is important, not only for the Internet controllers working for the regime, but also for the fighters of cyber democracy.

If there must be some value in the networked society, the best choice may not be, at least not only be the norm of freedom, but rather the Value of Value-neutral - not only for the technology, but also for the attitude to the cyber-society.

Actually, based on the same concern, in the cnbloggercon 2008, I proposed that a Chinese blogger conference may invite more bloggers who might never care about the social development, such as homosexual bloggers, Shebloggers, gourmets, and so on. They are making their own fun and create their own special information into the cyberspace continuously. In some sense, it is these various bloggers making the Chinese cyberspace being pluralistic, and then survived itself from a world of monopolization - of the money, power, resouce, and the thought.

Rebecca quotes the proverbs in Tao-te Ching (道德经) at the beginning of her talk (see slides here): 

The Kingdom is a spirit-like thing, and cannot be got by active doing. He who would so win it destroys it; he who would hold it in his grasp loses it.


I'd echo the following sentence at the end of the same paragraph:

Hence the sage puts away excessive effort, extravagance, and easy indulgence.


Mar 3, 2009


Good news! XIE Lin, a PhD Candidate joined blawgdog as a co-writer. Please read her recent paper:

Presentation in International conference: DIME - Creative Industries Observatory (CIO) - Birkbeck



Dowload Full-text at Here (PDF).


Recently, most countries face the problem of revising copyright law because of the introduction of Peer to Peer (P2P) technology on the internet which has badly aggravated the piracy of unauthorized file-sharing. This paper will first examine the traditional creative incentive theory of intellectual property under a new digital circumstance and find out the best position the law should take between P2P users, ISPs and copyright owners. It will discuss technology protection, fast piracy speed, new market models and free culture. Second, it will highlight and explain the legal uncertainties of primary and secondary liabilities. With regard to P2P users, it will review the dispute issues in Hong Kong Bit Torrent case, Tai Wan P2P case, discuss the tendency of other countries to revise unauthorized uploading and downloading liability. For Internet Service Providers (ISPs), it will explore four kinds of liabilities, contributory, vicarious, authorized and joint liabilities in representative jurisdictions, through studying series relevant cases, e.g. Grokster Case, KaZaa case. Third, it will compare scopes of these two liabilities with alternative solutions, in order to achieve an optimized model of solutions. Levy system, compulsory licensing and other possible solutions will be evaluated altogether. Considering the different legal traditions and national situations, the proposed solutions in different countries might be similar but not exactly the same.

unauthorized uploading and downloading; criminal liability of P2P; users; liability of ISPs; licensing

Feb 19, 2009

Positive Analysis to the Illegal Works in China

My Paper:
Positive Analysis to the 'Illegal Works' under China's Copyright Law: With Comments to the WTO DS362 and Suggestions to the Legal Reform


Abstract: This article reviews the copyright dilemma of illegal works in the context of Chinese copyright system. Under the current law, not merely the works with illegal content, but also the works did not fulfill the procedural requirement will be denied the copyright protection. Article 4(1) may find legitimacy in the domestic level, but does not comply with the WTO law. The three criteria in Article 13 of TRIPS Agreement can be applied to examine Article 4(1). The key problem lies in the uncertainty of the scope of denial of copyright. This leads to the Super-national Treatment. Based on these analyses, the last part of the article proposed some suggestions for the future legal reform.

Keywords: Illegal Works, DS362, TRIPS, Three-Step Test, China, Copyright Reform

The fulltext (in English) can be accessed at SSRN:

Feb 14, 2009

The Translation Mist of Chinese Legislation: Too much to be done before value-relevant quarreling

Let's see the three versions of English translation to Article 4(1) of Chinese Copyright Law:

Its Chinese orginal wording:


T1. In official database of the China National People's Congress, this sentence is translated as:

Works the publication and dissemination of which are prohibited by law shall not be protected by this Law.

T2. In the China's notification to the Council for TRIPS in 2002 (WT/IP/N/1/CHN/C/1), this sentence is translated as:

Works the publication or distribution of which is prohibited by law shall not be protected by this Law.

T3. In the WTO case DS362, the US and China agreed the following translation:

Works the publication and/or  dissemination of which are prohibited by law shall not be protected by this Law.

  • According to T1, only when a work is prohibited publication and dissemination, it will not be protected by Chinese Copyright Law.
  • According to T2, either when the publication or when the dissemination of a work is prohibited, it will be excluded the copyright protection.
  • According to T3, if a work (1) the publication and dissemination are both prohibited; (2) one of them  is prohibited, it will be denied the copyright protection.

As for the WTO DS362 case, the distinction of these three translations may not be interested by the US negotiators because they might believe any version of such provision would violate the TRIPS obligation as it conflicts to the "automatic protection" principle stipulated in Berne Convention.

However, when we turn back to the domestic level and provided that the censorship would not be abolished in the near future, the distinction might be very significant. For instance, if someone "disseminated" (Alert: the "disseminate" dose not equal to "desseminate to the public") a self-made movie about the fire at the CCTV (or TVCC, whatever) to his 10 friends privately, whether she would be protected by the current Copyright Law? If you know China, you will understand the movie would never be approved publication - attention! another language mist - "publication" in Article 4 is different from "the right of publication" in Article 10(1) - the former is Chu Ban (出版, printed or duplicated for distribution), the latter is  Fa Biao (发表, decide to make the work available to the public). At the same time, even according to the current censorship regulations, the moive will not be prohibited to be disseminated. Therefore, this movie may belongs to the "works prohibited to be published" AND "can be disseminated lawfully". In this circumstance, different translations would leads to different answers, and it seems the T1 version would be more reasonable. But why and by what legitimacy?

Yes, the above paragraph may just be stupid crabs. But what I want to say is: We need a long long long long march to archive the so-called Rule by Law - let's just forget the Rule of Law for a while (or at least lower our estimation to its archivement before used to being Zhetenged by the poor legislation). We have to pay more attention to the meticulous research to the details of our rules, and from my view, we have to Zheteng our legislations and make it being proof of vagueness. There is too much work to be done before (or at least besides) falling into the controversial value-relevant noises.

ps: Don't ask me what is the official language of China, I have answered it here (in Chinese).

Feb 3, 2009

Telecommunication and Communication Signal in Canadian Copyright Act

Telecommunication and Communication Signal in Canadian Copyright Act

Easy124, a reader of this blog, sent me some provisions in Canadian Copyright Act, and asked me some questions on the performer's rights in that law.

Actually I am not among professionals specially in Canadian law. Last time I read the Canadian Copyright Act was two months ago when I was revising my paper on orphan Works. So to me, his questions are opportunities for my study rather than enquires for somehow expertise.

There are three questions raised by Easy. I have mentioned one of them in a former post, which is about the unauthorized fixation of a performer's performance. Here I'd like to discuss another interesting question: difference between "telecommunication" and "communication signal". The last question about the Right to Remuneration will be disscussed later.

In Section 15 (1) (a) of Canada Copyright Act, the law noted that, if a performance is not fixed, its performer has the right:

(i) to communicate it to the public by telecommunication,
(ii) to perform it in public, where it is communicated to the public by telecommunication otherwise than by communication signal, and
(iii) to fix it in any material form,

Easy's question are: What's the difference between "telecommunication" and "communication signal"? Why the copyright is hereby refined to "perform [the performance] in public, where it is communicated to the public by telecommunication otherwise than by communication signal"?

In fact, these two terms has been legally defined in Sec. 2 of the Canadian Copyright Act:

"communication signal" means radio waves transmitted through space without any artificial guide, for reception by the public;


"telecommunication" means any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system;

Therefore, any interpretation to these two terms shall not be out of the above definitions, even if it is of a common understanding in daily life. One may find that the "communication signal" is hereby a sub-concept of "telecommunication". As to the performer's right, "communicated by telecommunication" covers any means of transmitting the performance.

In Sec. 15 (1) (a) (i), when a performance is performed NOT in public (ex. perform a song in studio), she has the right to communicate her performance "by telecommunication". That means, any communication by telecommunication must be authorized by the performer.

However, in case of public performance like a concert, which is regulated in Sec. 15 (1) (a) (ii), the performer owns merely the right to communicate her performance by telecommunication but exclude the communication signal. That means, if a Radio program or a TV station hope to broadcast a public vocal concert, it would not have to get the permission from the performer.

At the same time, the Radio program's broadcasting must comply with two premises:

(1) NOT outside of the above definition of communication signal. That means its radio waves must float in the air and can be recieved by anyone who wants get them.

(2) NOT fix the performance because this sub-section is under the Sec. 15 (1) (a), which is ONLY dealing with the performer's right when the performance is not fixed. This requires the radio program must be a live one, which is transmitted instantly and cannot be replayed. According to sub-section (iii) in Sec. 15 (1) (a), either the radio station or the recipient of the radio waves shall not fix the performance unless they get the authorization from the performer.