Mar 31, 2010

Let’s Discuss the “Cinternet” and the “Cyber-pluralism” a Little bit More

 

In the luncheon talk on 16 March at Berkman Center, I used the term of “Cinternet” and proposed the “Cyber-pluralism”. Nevertheless, the presentation was focused on the cases of some Chinese websites.  This may make audience think that I am arguing for an isolated network. Hence hereby I talk a little bit more about it. And looking for criticisms.

 

A. About the “Cinternet”

The wording of "Cinternet" does not mean I think there is a network isolated from the Internet with clear physical or software boarders. In other words, the term "Cinternet" is not a "part" of the Internet, but a collection of some impressions of the Internet, and the style of the Internet reflecting those impressions.

Different people may have distinct impressions of the Internet. In a teenage girl’s impression, the Internet might be a sphere full of free information resources, enjoyable games and probably a free place for music download.
In her grandmother’s mind, the Internet might be a technological monster with full of porn and dangerous social networking messages. As a combination of the girl and her granny’s impressions, the Internet may become a world with a lot of freedom and at the same time a lot of dangerous information. However, in an engineer’s impression, the texts, images and voices that makes the granny and the kid happy or sad may be all the same – no matter the Child pornography video or the mp3 files - they are just data. He may simply think the Internet as a new tool of transmission and communication, and in his impression, the Internet is different from the previous networks (like the broadcasting networks) not only because of the interactive communication, but also because of the decentralized and distributed way of transmitting data packages. Furthermore, different programmers may also hold different impressions to the Internet: if you are one who focuses on the online payment, you may worry more about the security of the transmission; while if you are a P2P software developer, you may think more about the efficiency of the transmission.

Back to the “Cinternet”, I use this term firstly to summarize an "Internet" reflecting the combination of the impressions of the Chinese Internet users, policy makers and ISPs. In other words, this term can be roughly understood as "the Internet in the impressions of Chinese people.” Secondly, the impressions will react the Internet and be reflected in the mode of E-commerce, the way of Internet governance and even the style of the webpage.  Therefore, the “Cinternet” is the Internet reflecting the Chinese legal, cultural, political, linguistic and even group psychological characters." More importantly, this is a description but not a definition.  The “Cinternet” is not the "Chinese (linguistic) Internet" - a simple Chinese translation of the Facebook's interface does not make the Facebook being a Chinese website. It is not the "Internet (physically) in China" because there are a lot of Chinese websites are stored in the servers out of China. It is not a simple collection of ".cn" domains because this domain can be used by anyone, and a lot of Chinese websites are using .com, .net, .cc, .tv, etc.

 

B. About the “Cyber-pluralism”

What I want to argue is simple: the social structure and social norms, as well as the legal concepts may affect online ecology profoundly, hence the "single" Internet is not a truth but only an imagination.

The cyber-pluralism is an approach of observing the Internet. The Cyber world is a world with diversities and it can hardly stay  beyond the real world independently without the influences of different culture and regimes. No matter whether you “stand for a single Internet” or not, the truth is that the laws (including “living law”) and the cultures have embedded into the digital codes.  Without this pluralistic patience, one may neglect what is happening and what has happened in China and the Cinternet. I hope the approach of cyber-pluralism can provide a way for both the eastern and the western peoples understand each other.  More importantly, so long as the people’s impressions of the Internet are transforming, those diversities will refresh themselves continuously. 

A few people asked me what is the “common value” of the Internet, or do I think that something should or should not be a universal human right in the Internet age. I think these questions are actully about religion and I really don’t have idea on how to answer them.

Furthermore,  I prefer to discuss the possible trends of the Internet rather than the “common denominators” of the Internet because the latter may lead the “uncommon” aspects of the Internet being marginalized. The Internet as a network of networks is confronting with two possible trends –splitting or collaborating. In some aspects, the splitting may be inevitable, while in other aspects, once most (if not all) stakeholders (either in the east or in the west) accept that their individual impressions of the Internet should not definitely be the solely right one, the connection among the networks (no matter at infrastructure level or at the legal level) may be more smooth.

 

By the way, I am not a cultural relativist because I believe, and I have witnessed: it is changing.

Mar 20, 2010

English Abstracts of Chinese Entries from 25 Jan to 20 March

Here is the collection of the English abstracts for 21 Chinese entries published at BlawgDog from 25 Jan. 2010 to 20 Mar. 2010. For the English readers' reference.

A book Chapter in LI Zuming (ed.), E-commerce Law, Beijing: University of International Business and Economics Press (2009), 19,000 Chinese words. The excerpt edition of 11,000 Chinese words is provided in this entry at BlawgDog.
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.
 
A senior Chinese Wikipedian wrote a post on his blog saying about his suggestion for the amendment of Chinese Copyright Law. The suggestions indicated three aspects of Copyright law: (1) Works made by/for the government; (2) the possibility of waiving the moral rights; (3) term of copyright protection. However, his understanding to the copyright law is not professional enough. I write this essay to illustrate the relevant knowledges and my arguments in these three concerns: (1) it is difficult to judge whether or not a work is of the governmental work. (2) some moral rights can be waived, but some others can not – not because they are “personal rigts” but because the logic essence of them (read more by clicking here); (3) the uncertainty of the death of authors is the major reason of orpan works problem.

Doc Searls searched “the Internet is” in Google and twitter and find some interesting results (at here). I tried to search “The Internet is” in Chinese (互联网是) at Google and Baidu. The result seems more interesting: (1) Google’s 30th effective result appears in page 10 (10 items per page), while Baidu’s appears in page 7. Google is proved again not better than Baidu in Chinese search; (2) The overlap rate of two search engines’ results are very low. (3) the results in Chinese search are very focusing on the political and economic topics, while in the search results of “the Internet is” in English are more virious in cutrual, humanity and literature aspects.

The “two national meetings” held in March is one the most important political matters in each year. This three entries collected the opinions and proposals raised by people’s representatives and members of CPPCC. Here are some examples:
(1) Yanqi (member of CPPCC) suggested to close all net cafes and take them over to the government;
(2) Shen Changfu (a people’s representative) proposed to classify the online expressions, and promulgate a compulsory rule requiring the online game service providers interrupt the services each day for a certain amount of hours.
(3) Xu Long (a people’s representative) proposed to make a gerneral E-commerce Law;
(4) Shen Mingcai (a people’s representative) proposed to establish a national universal platform that provide the links to every government agencies in all levels of the government;
(5) Xia Ji’en (a people’s representative) proposed to promulgate laws encouraging the people starting their own businesses online;
(6) Gao Wanneng (a people’s representative) proposed net cafes stopping service by 24:00;
(7) China National Democratic Construction Association proposed to increase the job vacancies of the Internet industry;
(8) Hou Xinyi (a member of CPPCC) suggested to make all the proposals and suggestions by the representatives public;
(9) People’s representatives suggest the regulation of “Real Name surfing in the background”, which means requiring netizens register the real name before approved to access the Internet, but their real name needs not to be released to the public when they are surfing the Internet;
(10) Li Yizhong, Minister of Industry and Information Technology commented to the resent Google’s news (read here the news at People’s Daily English)

The definition of “the right of performance” in China’s Copyright Law has inherent shortcomings. It uses the term “播送” (communicate) but not “perform” as the predicate of the sentence. The legislators attempted to regulate the mechanical perfomance, but they forgot that the word “performance” itself in the Berne Convention includes the meaning of mechanical performance. The “communication” is another concept in another totally different context. China’s Copyright Law confused the two conducts and this leads the provisions hard to be understood. Eventually, this courses the overlap and obscuration between the right of performance and the right of broadcast, between the right of performance and the right of presentation, as well as between the right of performance and the right of communication to the public through information network.

This article briefly discussed the process of a legal academic writing. It argues that a good author should firstly think like a counsellor who always solve the problem with the most efficient exsiting laws, legal logics and skills. They will exhause, and only exhause the materials related to the problem. Then a further endeavor of the academic author should be compare the pros and cons of different approaches of solving the problem, and find the best solution based on some sorts of values. Lastly, if the above jobs have been done by others, a researcher may try to move from the legal study to the legislative study, with the doctrinal, economic, sociological and even religious approaches – while these may exceed the narrow sence of the legal research.

On 26 February, China amended its Copyright Law: (1) deleted the provision in Article 4(1):
Works the publication and dissemination of which are prohibited by law shall not be protected by this Law.
to:
The copyright owners shall not violate the Constitution and the laws, and shall not prejudice the public interests when they are exporing their copyright. The State administrate the publication and dissemination according to the laws.
(2) Added a new article as Article 26 (registration of mortgage with copyright. This has actually regulated previously in other regulations since 1990s).

A micro-blog acount at People’s Daily’s website (an official news paper) was marked as “verified”. Then it got thousands of followers in a few hours. Then it was proved only a bug of the system – Hu has had a “dialog” with netizens before at the platform of the People’s Daily. Since then an “real name” account was created. When the People’s Daily released its micro-blog service, those “real name” accounts are automatically created a twitter-like page with the mark of “verified”.
This story tell us the so-called “real name” system can hardly garantee the “real” “real name”. Even the President may BE ESTABLISHED a Real Name blog without his consent. What we need to focus on is not the law of real-name access the Internet, but the law of personal data protection, no matter it is associated with a real name or a false one. The law of real-name registration system is based on the presumption of mistrust, and will increase such mistrust among the stakeholders. The law of personal data protection is based on the presumption of trust, and will decrease the misturst eventually.

In this issue edited by Luckie Hong, the following news are included:
(1) SNDA’s literature site developed with the copyright strategy;
(2) Xinmate (a shopping mall) was found copyright infringement in a circumstance it rent the floor to a audio & video shop where the pirated copies of CDs were sold;
(3) dianping.com filed a copyright litigation against aibang.com (a verdict search engine provider);
(4) Littlesheep (a chain resturants company) filed a case against National Trademark Review and Adjudication Board;
(5) Google sent a lawyer’s letter to goojje.com, a website provide integration of the Google and Baidu’s search resutls;
(6) “Loungjing” tea was registered as a collective trademark and only providers in Zhejiang Province can use this mark;
(7) two patent granted to World Wide Stationery Manufacturing Co. Ltd. (a Chinese company) were ruled invalide by a U.S. court (WWS v. U.S. Ring);
(8) Lifetime (a U.S. company) sued three Chinese companies for patent infringement;
(9) a color TV patent pool was established on Feb 2010.

This short essay is about the Li Zhuang case and the form of rule of law. It is strange that the feeling of reading the news of the Li Zhuang case in the Langdell Library at Harvard. As a Chinese lawyer, I can feel not only the text of the news but also the profound tacit knowledge behind the sentences. When I raised my head from those news, looked up the portraits of those legal giant in the history of the U.S., it seems I suddenly traveled back the time and touched the difficulty of the form of rule of law. For most of the old books in the shelves, they are not nessessary to be drawn out because the rule of law had been blent in the blood of the society after the struggles of the lawyers over years. And China is experiencing such courses of blending. 

This is a greeting post for the Lunar New year.

Edited by Luckie Hong, the following news are included:
(1) New progresses of Hengyuanxiang’s trademark case;
(2) In a case between China Audio-Video Copyright Association and a Karaoke bar, a court in Fuzhou (capital city of Fujian Province) ruled that the defendent infringed the “right of public performance”;
(3) A software license includes an arbitration clause; afte the license is due, the licensee still used the software; the licenser file the infringement litigation but the court supported the opposition of jurisdiction based on the arbitration clause;
(4) over 30 companies use Fuji mark at their lift and elevator products but none of them registered the trademark; now they are sued by the trademark holder;
(5) Based on the new evidence submitted to the court of the second instance, the Chinese GEORGE company wins the “GEORGE and figure” trademark dispute against Walmart in Beijing Higher People’s Court;
(6) A Yunnan company filed a Trademark Cancellation Application to the “coffee mate” owned by Nestle;
(7) An officer in SIPO said the first compulsory license may issued to the medicines relevant to the public health;
(8) Haier wins a patent (ZL200820065744.1) litigation against its employee;
(9) Beijing's amended intellectual property law holds dangers (WSJ Article).

XU Wei, co-author of Blawgdog posted this article. He argues that the newly promulgated Tort Liability Law wrongfully confused the different criteria of liability.

China Audio-Video Copyright Association (CAVCA) annouced that the cost of its collective management is 50% of the income of the royalties. This essay compared the ASCAP (11.5%), the GEMA (13.92%) and even the Music Copyright Society of China (16.72%). The reason of such a high cost is: CAVCA is running the collective management as a profitable business. So it established a network of commercial companies around China. Such investment violated the Regulations on the Collective Management of Copyright.

This post reported the rulling of the case. And provided the brief of the case and the link at the Wikipedia.

In this essay, I introduced the guys never stand up and applause at Obama’s State of the Union Address. They are the millitary forces and the Justices of the Supreme Court. And narrated the news of Justice Alito’s murmur when Obama critisized the decision of Citizens United v. Federal Election Commission. In the end of essay, I wrote: the democracy without constitutionalism will easily turns to disturbance, and the constitutionalism without real judicial independence will easily be back to the dictatorship.

Edited by Luckie Hong, the following news are collected:
(1) In CAVCA’s 170 million income of royalties, 50% is counted as the cost;
(2) Ministry of Industry and Information Technology is drafting the regulation on the digital publication;
(3) A pleading of illicit compelition was filed to a Shanghai court by Tencent (QQ’s oporator);
(4) the “Cabernet” trademark case has entered into the court of second instance; this dispute has lasted for 8 years;
(5) The image of “Dragon Prince” in a popular cartoon was registered as a trademark; now the trademark owner and the copyright owner sue each other for infringement respectively;
(6) ChongQing promulgated the local regulations to encourge the bank loan with the pledge of the Trademark as a property;
(7) According to the stastics of the WIPO, Chinese applicants filed 7971 PCT application (30.1% annual increase, and the most rapid increase in the world), and Huawei ranks the 2nd applicant around the world;
(8) Shinco settled its patent dispute with MPEG LA;
(9) a 18 year old man sued Samsung for patent infringement.

In this post, I illustrated the concept of Public Domain (based my on research) and introduced the contents of the Public Domain Manifesto.

(1) Google and China Society of Literature Copyright continues negociate on the Goole Books;
(2) “Little Shenyang” (a famous comedian) was sued for the copyright infringement;
(3) Video websites signed the self-regulation announcement on the copyright protection;
(4) A Bejing court ruled that Baidu.com has the duty to examine whether or not the keywords solde for advertisements is used in an infringing way.
(5) The “Shaolin Corporation” attempted to be a listed company; this may trigger a new wave of trademark disputes on “Shaolin” between the Shaolin Temple and the corporation.
(6) “Weichai” involved into a trademark dispute:
(7) Implementing Regulations of the Patent Law has been revised; the regulations on compulsory licenses are improved;
(8) China color TV patent pool is formally oporated;
(9) In the new Implementing Regulations of the Patent Law, the application abroad shall firstly be examined by SIPO with the secrecy concern.

Mar 19, 2010

English Abstracts of the Chinese Entries at BlawgDog (Dec. 21th - Jan. 24th)

 

This movie was made by a few Chinese WOW players. The story is well edited and all the episodes are captured from te WOW game. In this remix movie, the story of the dispute between two Chinese governmental departments on the licensing of the WOW and the the players’ rebellion of the electrotherapeutics to the “net-addiction” are narrated perfectly. The controversial electrotherapeutics was invented by a Chinese psychiatrist and supported by some parents. This is a representative work of Remix by grass-roots Chinese netizens. And it is released with CC-By-NC-SA. Watch it at here (I do wish someone may add English subtitles to it).

 

This post is contributed by Mr. Xuhui Chen, a new co-author of BLawgDog and a patent lawyer in China. The essay provides the passing rates of each year’s examination and other detailed analysis.

 

In this issue edited by Luckie Hong, the following news are included: (1) two guys are prosecuted for oporating unauthorized online-game sever of “Audition Dance Battle Online”; (2) A Beijing court ruled that funshion.com infringed copyright by providing downloading; (3) The Measures of payment of the textbooks’ royalties and the Measure of Protection of the Folklores are drafting; (4) Sany group, a major construction machinery producer wins a litigation on its trademark against the figure of “Benz”; (5) Tianjin high technology industry park promulgated a regulation encouraging the endevor of establishing well-known brands; (6) The series cases on the trademark “世界风SHIJIEFENG” was settled by the parties; (7) XGK, a company in Henan province, wins a lawsuit against State Intellectual Property Bureau for its decision of invalitation of the ZL8910393.8 patent; (8) powerdekor, a mojor producer of wood flooring in China, was involved in a patent law suit on its laminate flooring product; (9) Shanghai encourages the application of foreign patent with the maximum of 90,000 RMB financial aid.

 

This post is originally written in English. Click here.

 

This post is translated and extended in English, please click here for the English version.

 

This is a copy of the CNNIC’s notice requesting ISPs stopping to resolve the domain name which are not recorded in Ministry of Industry and Information Technology’s website registration/licensing system.

 

The Hong Kong government proposed a new version of the Proposals for Strengthening Copyright Protection in the Digital Environment. Xie Lin and Donnie co-authored this short post, which briefly introduced the content of the new proposals.

 

In this issue edited by Luckie Hong, the following news are included: (1) Google apologized openly for the first time in the copyright dispute between Google and Chinese authors; (2) A US software firm sues China for 2.2 billion dollars for using its copyrighted software in the Green Dam; (3) 50% increase of the copyright registration in China, 2009; (4) Hanwang, a Chinese company finally agree to sell the “iPhone” trademark to Apple; (5) Hengyuanxiang, a major Chinese woolen provider, was trapped in a trademark dispute on the “figure of a Sheep”; (6) the tademark of “Pierre Cardin” was finally selled to a Chinese company for 37 million euro; (7) A Fujian firm won IP lawsuit against FKK, a Japanese chemical giant; (8) A patent dispute about Mercury-free batteries falls into a vicious cycle; (9) RichtekTechnology, a Taiwan firm, sued AMD and other 5 US companies for patent infringement

 

 

 

 

In this issue edited by Luckie Hong, the following news are included: (1) Zhejiang Higher Court promulgated a guide for hearing the online copyright disputes; (2) A case on the popular book “Mawen’s War” was ruled in Nanjing; (3) The appealing case on the copyright of electronic navigation map in China (the first one in China) was ruled by Guangdong Higher Court; (4) the exposure draft of the new trademark law was submitted to the Legal Affairs Office of the State Council; (5) Google sent a lawyer’s letter to an individula who is raising an objection to the trademark of Google’s Chinese name Guge (谷歌); (6) Beijing No.1 Intermediate people's Court affirmed the validity of Judger Group’s (a Zhejiang-based garment enterprise) trademark of GEORGE and its figures; (7) The “Interpretation of the Supreme People’s Court on Several Issues concerning the Application of Law in the Trial of Patent Infringement Dispute Cases” was promulgated by the Supreme People’s Court; (8) the new IMPLEMENTING REGULATIONS OF THE PATENT LAW OF THE PEOPLE'S REPUBLIC OF CHINA was passed by the State Council on 30 Dec. 2009; (9) Unilin loses its acts against patent infringing products of Yekalon in Germany.

 

This post firstly briefed Donnie’s definition of “Public Domain” in the context of Chinese copyright law in his PhD dissertation at China University of Political Science, then introduced the idea of “public domain day” on each January 1st for at this day, many works will fall into the public domain every year. Lastly, the post discussed some famous/interesting Chinese works that will be fall into the public domain since Jan. 1st, 2009.

 

In 2009, 170 entries are published at BLawgDog (including 38 English ones). Among them, Donnie contributed about 120 posts, other co-authors contributed about 40 ones. Then this article highlighted a few interesting posts during the year.

 

I annouced a very quick survey to Chinese twitter users: whether they are living abroad or inside of the GFW. 88.46% responed they stay in China. For the question “if you live inside of the GFW, are you use twitter frequently”, 70.21% said yes they are. For the question “if you live outside of the GFW, after going back to China, will you use twitter frequently”, 52.94% said yes, but 23.53% said he/she will use twitter only when she/he is out of GFW. For the question “Ask 5 of your QQ buddies randomly, how many of them are using twitter.” 53.85% of the respondent said none of their 5 QQ buddies is using twitter, and only 1.92% said all of the 5 QQ buddies are using twitter too.

 

Writen and edited by Luckie Hong, a co-author of BlawgDog, reporting the latest news in IP Law. This issue includes: (1) the promulgation of China’s new Tort Law, in which the ISP’s liability was eventually coded in a questionable way; (2) China association of literature copyright said Google has illegally scanned over 80,000 Chinese books; (3) Taiyuan intermediate peoples court in Shanxi Province issued a warrant of seizure to a karaoke bar for copyright infringement, which is the first time on mainland China; (4) the National Trademark Review and Adjudication Board petitioned to the Supreme Court for the Beijing Court’s rulling of its decision on the “Daohuaxiang” trademark; (5) the dispute of the trademark of *ST Sanlian (SH.600898) will be ruled soon; (6) JNJ (Johnson & Johnson) lost the case on the “Caile” trademark in China; (7) A Newyork listed Shenzhen company was sued for a patent infringement, the damages claimed by the plaintiff was 175 million RMB; (8) Aigo and Netac settled the patent dispute on USB flash drivers; (9) Up to 7 Dec. 2009, the annual number of patent granting is 3007,636.

 

This essay reviews the usage of the term “use” in China’s current Copyright Law, and find its definition is hightly confusional, which leads the uncertainty “individul use” in the list of limitations to the copyright in Art. 22 of the Copyright Law.

 

This post questioned the legitimacy of issuing a warrant of seizure to Karaoke bars for the reason of copyright infringement, which was happened in Taiyuan, the capital city of Shanxi Province.