Jan 12, 2009

CTrip v Qunar - Who owns the Copyright?

It is widely reported (in Chinese) that Beijing Haidian District People’s Court has given its decision on the copyright disputes between CTrip and Qunar.com.
Qunar's search engine crawls CTrip’s website, as well as other similar sites, and search the customers' comments to hotels, then list the thumbnails of those comments in Qunar's own pages. According to the news, CTrip sent lawyer's letter to Qunar three times in June and July. Then it sued Qunar in November.
According to the news (now the judgment still can not be obtained through the Internet), the court seems confirmed that CTrip "owns the copyright to the content and resources in its website". I wish it would just be a new wrongful or half-baked quotation by the journalists. If the court really ruled the case in this way, the court's tender attitude to the database would create the new regulations in Chinese copyright law (no matter how illegal of this creation in Chinese legal system).
The defendant seems willing to appeal the case to the higher level court, according to the news, again.
Looking forward to read the full text of the judgement. Before that, I will not comment the case in details.

Who owns unauthorized fixation of the performance?

Fixation of the performance without the performer's authorization will infringe the copyright. However, the questions follow: shall those unauthorized phonograms totally be discarded? Who can use them, and in what extent?
Easy124, a reader of this blog, sent me some provisions in Canadian Copyright Act. Among them, Section 15 (1) (b) noted that a performer has a copyright to:

... reproduce any fixation that was made without the performer’s authorization.

According to this provision, the unauthorized phonograms can be utilized (at least in terms of reproduction) by the performer. Obviously, this is not an "author's right", while it is distinct to traditional so-called "related right" in the Civil Law System. The object of reproduction is unauthorized phonogram, which is originally produced not by the subject of reproduction but an infringer. Without further research,  I cannot provide the Canadian legislator's initial aim of granting performers this right. But I'd applause this arrangement because it saved a good many of records of the live culture. Nowadays, the recording facilities are more and more afordable by ordinary people. Many memorable moments may be recorded by layman who may not be authorized by the performer. This provision provide  those recordings opportunities to be legally reproduced.
There are more questions should be answered: who is the exact owner of these unauthorized fixation of the performance? In our Civil Law System logic, what kind of right should this reproduction belong to? When they are reproduced by the performer, can the copies be distributed  by the performer? If distributed, should the unauthorized phonogramers share the possible incomes? I cannot discuss these here for the time. But they do worth to be think again.

Book Chapters The Intellectual Property Law (2004)

Here are English abstracts of my book chapters in CHEN Xinghua (ed.), The Intellectual Property Law (Kunming: Yunnan University Press, 2004).

Chapter 25: Name of Commercial Entities and Geographical Indication

This chapter includes two sections. The first one introduces the following contents: the identification and characters of the Name of Commercial Entities (NCE); the conditions for gaining NCE; how does Chinese law regulate the NCE, i.e., the specific regulations in Trade Mark Law, Anti-Trust Law and Civil Law; and how could these regulations be applied in the dispute resolution. In the section of “Geographical Indication”, the notions of Indication of Source, Appellation of origin and Geographical Indication (GI) will be differentiated and compared, followed by the description of the protective mode on GI, through which the related provisions of TRIPS will be examined and possible legislation suggestions in China will be proposed.

Key contents of this chapter include: the identification of NCE, the difference between NCE and trade name; the name rule of NCE in China; the legal protection to NCE; the difference and connection among Indication of Source, Appellation of origin and Geographical Indication; the identification of GI in TRIPS; the protective regulation in China’s Trade Mark Law. During the studies, it is advisable that the students should familiarize the international and domestic regulations related to this chapter. And the method of moot court could be utilized to furniture the comprehensive capacity in problem resolving in the reality.

There are about 10,000 Chinese words in this chapter.

Chapter 26: The Intellectual Property Concerning Internet and the Information Technology

This chapter is a pilot pedagogy on “Internet Intellectual Property”. It discusses the questions of domain name, integrate circuit layout design and the rights of website and homepage designers. It introduces the related modern legal system and familiarizes the students about consultant know-how at one hand. On the other hand, it demonstrates the substantial influence of Internet era on the intellectual property and civil law system and the significance of cyber law.

Key contents of this chapter include: the concept of domain name; the identification and characters of rights of domain name; the copy right features of domain name; the dispute resolution arrangement in China; the standard of ill faith in defying domain name violation; the relation between Uniform Domain Name Dispute Resolution Policy and judicial litigation; the copy rights contents of integrate circuit layout design and the preconditions to gain such rights; the concept of data base; the copy right relations between data base software designer and website designer; the jurisdiction on Internet intellectual property disputes; the infringement of illegal using of published works and the responsibilities of website designers/owners and Internet service providers.

There are about 22,000 Chinese words in this chapter.

Chapter 28:The International Protection on Intellectual Property

This chapter briefly reviews about twenty international treaties on the arena of intellectual property; among them include the major components of Paris Convention, Berne Convention, Copy Right Treaty of WIPO and TRIPS. The protective system in relation of intellectual property in WIPO and WTO are also introduced. Furthermore, the chapter discusses the international registration of trademark and international protection on copyrights. The reader may want to refer the other chapters that examine the related questions in depth for a better understanding of this chapter. The main provisions of the international treaties and their development process are the key issues of this chapter.

There are about 18,000 Chinese words in this chapter.

Lecture - WTO IP Disputes - US v China DS362 DS363

On 2 Dec 2008, invited by my friend Ms. LEE Na, I lectured for 2 hours in English at the bilingual course "Advanced Int'l Trade Law" in School of Law, Kunming University of Sci. & Tech. The topic is: WTO IP Disputes: US v China DS362 & DS363.

 Here is the PPT. It will be updated along with the dispute resolution procedures. Please visit my website at www.blawgdog.com for the newest version.

Jan 4, 2009

From FaTianXia to YaDian-从法天下到雅典学园

This is a bilingual post. The Chinese version is following the English.
这是一篇双语日志,中文部分在后面。

The logo of FaTianXia.
FaTianXia (Red characters beside the left stamp of Chinese traditional "Law") means Law in the World, or Law for the World, or Study from the World, etc. The black inscription is specially presented by professor Jiang Ping, the most prominent Jurist in China. It says: Rule of the Law for Everwhere, and Thinking for China (my bad translation, while it has far more implications in Chinese).

 

FaTianXia[dot]com (closed now) impressed me when I saw it at the first sight by its significant technological progress comparing to other Chinese online legal communities. Its founder, KaKaYu had obviously tried his best to design a user-friendly and multifunctional Web 2.0 style interface. I blogged it with joy immediately.

Perhaps because of the "BBS culture" in Chinese Internet sphere, or because of the tendency of grand narrative in Chinese legal blogosphere (this tendency has been changing significantly in recent two years), the content in FaTianXia was not as diverse as its technological functions [1]. However, the defects cannot obscure the virtues. It is still one of the best non-profit grass-roots legal communities in China, at least in my view.

In fact, because I have my own independent BLawgDog.com, so I actually was not an active user of FaTianXia. I just established a mirro site of BLawgDog at FaTianXia, and occationally uploaded my posts together with their URLs at BLawgDog to lure the eyeballs to my own site. For a UGC (User-generated Content) site, criticising it but with almost zero contribution is more or less an unkind behavior. 

Last December, FaTianXia was closed.  I don't know the exact reason, so I cannot say anything on it.  What I can say currently is: I find a new Web 2.0 style Chinese legal site: YaDian (means Athens Academe in English). It might be the best non-profit grass-roots online legal communities in China, at least in my view.


  从见到法天下的第一天起,我就被它深深吸引。相比其它中文法律社区网站,它在技术理念上大大进步。其主办者卡卡鱼从一开始就尽力将其打造成为一个界面友好、功能丰富的Web2.0网站。为此我还兴奋地专门写过一篇日志

  也许是因为中文网络环境中的“BBS文化”,也可能是因为中文法律博客圈的宏大叙事倾向(近两年有非常大的改观),法天下中的内容还是比较平面化和单一化。但瑕不掩瑜,在我看来,它仍然是中国最好的非营利性草根法律社区之一。

  事实上,由于有法豆主站,我并不是法天下的活跃用户,只是在上面建了个法豆的镜像站,偶尔地将法豆上的内容及链接复制过去,小心眼里还有勾引流量的意思。对一个用户创造内容(UGC)的网站,自己没多大贡献还说它内容不够多元,多少有些不厚道。

  上个月,法天下突然关闭了。我不知道具体的原因,所以也不可能对此发表什么意见。我只是想说:有一个新的网站叫“雅典学园”,它非常地2.0,可能是中国最好的非营利性草根法律社区之一。

Jan 2, 2009

Book Chapter - Taxation Issues in the E-commerce

DONG Hao, “Taxation Issues in the E-commerce”, in LI Zuming (ed.), E-commerce Law, Beijing: University of International Business and Economics Press (2009), 19,000 words;

Introduction:
The E-commerce should not escape itself from the taxation. However, the troditional tax law and taxation policies would not cope with the new challenges including the identification of the taxpayer, the jurisdiction issues, the "new" objects of taxation, etc. This chapter firstly analyzed the impacts of the online commerce to the traditional tax law. Then it introduced the achievements either in the academia or in the legislations in various countries. China's relevant taxation policies and the future development are discussed in the third section of this chapter. To make this book more practical, although the structure of the chapter can be divided to the above three parts, the whole chapter always focuses on the possible dilemma as well as the solution in the context of Chinese taxation system.

Some comments to the research of Chinese law

After more than thirty years legal march, the Chinese legal system has been more and more complicated (although still immature and full of conflicts), and it is the time to review it as an integrated system but not only a target of criticism.

For instance, the research to the text of Chinese legislation may frequently meet a paradox: why the standards in Chinese law are not enforced in practice? The researchers may attribute to the Confucian culture, "Asian Value" and the corruption (or arbitrariness) of authoritarian regime, etc. It seems the violation of human rights, the censorship of Chinese Internet and the widespread piracy in Chinese copyright market were normality, or that would not be China. However, these not-wrong discoveries are mostly not able to provide solutions. A combination of positive research to Chinese law and the observation to either the existing reform within the regime or the potential trends in the society, as what I am trying in my proposed research, may make the solutions nearer.

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 licence, compulsory licence, authorship, public domain

The first draft of this paper (in Chinese, 21,000 words) has been accomplished in Nov. 2006, and it is continuously updating before the formal publication. It is one of, if not absolutely the one, the earliest paper in Chinese discussing the Orphan Works, especially based on the Chinese Copyright Law. If you need it, please conatct me at donnie[at]BLawgDog.com.