5. China: Copyright Limitations and Exceptions for Education and Research

Alford (1995); Wu and Wang (1994), pp. 18–24; Wu (1996), pp. 19–29.

Wu (1996), p. 28.

Wu (1996), pp. 20–21; Deng (2006), pp. 264–267.

Shao (2005), p. 412; Wu and Wang (1994), p. 24.

Confucius was an author rather than merely an editor and compiler, see Cherniack (1994), p. 16; Hall and Ames (1987), p. 90. Peerenboom (1990), p. 17.

Shao (2005), pp. 417–418.

Deng (2006), p. 22.

Zhang (1997), p. 446; Wang (2006), p. 74.

General Principles of the Civil Law of 1986 Order of the President of PRC [1986] No. 37, promulgated on 12 April 1986; English version is available at http://​www.​npc.​gov.​cn/​englishnpc/​Law/​2007-12/​12/​content_​1383941.​htm (accessed 27-08-2017).

Li (2002), pp. 125–141 & 206.

Wang (2006), p. 77.

Authors has a right to publish, a right to be named, a right to adapt a work, a right to maintain the integrity of a work, and a right to be paid, see Art 10 of the Copyright Law of 1990 Order of the President of PRC [1990] No. 31.

Copyright Law Amendments of 2001 Order of the President of PRC [2001] No. 58 was adopted on 27 October 2001; English version is available at http://​www.​npc.​gov.​cn/​englishnpc/​Law/​2007-12/​12/​content_​1383888.​htm (accessed 27-08-2017).

Chinese intellectual property legal system is comprised of three major parts: laws, administrative regulations promulgated by the State Council and department rules. The Supreme People’s Court also is involved in policymaking by issuing judicial interpretations. For an introduction, see Li ‘Intellectual Property Protection in China’ Judicial Protection of IPR in China http://​www.​chinaiprlaw.​cn/​show_​News.​asp?​id=​4095&​key=​%D6%AA%CA%B6%B2%FA%C8%A8%B1%A3%BB%A4 (assessed 27-08-2017).

Promulgated by Decree No 468 of the State Council on 18 May 2006.

Hongbin and King & Wood Mallesons’ Intellectual Property Group ‘Key Disputable Issues regarding the Draft Amendments to China Copyright Law’ China Law Insight (14-06-2012) http://​www.​chinalawinsight.​com/​2012/​06/​articles/​intellectual-property/​key-disputable-issues-regarding-the-draft-amendments-to-china-copyright-law (accessed 27-08-2017).

Alford points out that China’s post-cultural revolution intellectual property law reform was largely the US wanting to secure its economic interests by compelling China to promulgate western-style intellectual property law in the name of legality. See Alford (1995), pp. 112–123.

Black (2002), p. 115.

115.

Alford (1995), p. 121.

China IPR China Intellectual Property Rights Yearbook of 2006 (2006), p. 374.

China exported 16 types of copyright products to the US and 74 types to the UK; see China IPR China Yearbook 377.

Alford (1995), p. 110.

Other provinces with a high rate of copyright litigation are Jiangsu, Zhejiang and Shandong.

Wu (21-09-2006); Yu (2007), pp. 173–220.

Mathew and Mei-Chih (2007), p. 94.

Id, p. 93.

Id, p. 107.

Ministry of Education 9th 5-Year Plan for China’s Educational Development and the Development Outline by 2010. The Compulsory Education Law was promulgated by Order No 52 on 29 June 2006; English version is available at http://​www.​npc.​gov.​cn/​englishnpc/​Law/​2007-12/​12/​content_​1383936.​htm (accessed 27-08-2017); the Law on the Promotion of Privately-run Schools was promulgated by Order No 80 on 28 December 2002, English version is available at http://​www.​npc.​gov.​cn/​englishnpc/​Law/​2007-12/​06/​content_​1382110.​htm (accessed 27-08-2017).

Ministry of Education 9th 5-Year Plan.

It has been amended in 2001 and 2010.

Guo (2000), pp. 526–527.

Art 19 the Constitution of 1982, as amended in 1988, 1993, 1999 and 2004; English version is available at http://​www.​npc.​gov.​cn/​englishnpc/​Constitution/​node_​2824.​htm (accessed 27-08-2017). Article 19 provides that (1) the State establishes and administers schools of various types. (2) The State develops educational facilities in order to eliminate illiteracy and provide political, scientific, technical and professional education for citizens. It encourages people to engage in self-learning to obtain an education. (3) The State encourages the collective economic organisations, state enterprises and institutions and other sectors of society to establish educational institutions of various types in accordance with the law.

Arts 46 and 47 of the Constitution of 1982.

Zheng (1986), p. 124. In Taiwan, see Yang (1983), pp. 177–179 & 181.

Art 4 of the Copyright Law of 2001. Works can be prohibited by such laws and regulations as the Criminal Law, the Regulations on Administration of Printing Industry, the Regulations on Administration of Broadcasting, the Regulations on Administration of Audio-visual Products, the Regulations on Administration of Films and the Telecommunications Regulations.

Art 4 of the Copyright Law Amendments of 2001.

World Trade Organizations China — Measures Affecting the Protection and Enforcement of Intellectual Property Rights WTO Panel Report (2009) WT/DS362/R para 8.1.

Ch 2 S 4 of the Copyright Law Amendments of 2001.

Art 22(1).

Art 22(6).

Art 22(8).

Implementing Regulations of the Copyright Law of 2002 Order of State Council of China [2002] No 359 on 2 August 2002.

Art 21 of the Regulations for the Implementation of the Copyright Law.

Art 10(5) of the Copyright Law Amendments of 2001.

Cao (2006), p. 93. He suggests the copyright law allow a person’s family or the people with a close relationship with the person to make a copy or copies of a work on behalf of the person.

Wu (1996), p. 280; Chen (2005), pp. 174–175.

Dietz (2000), p. 270.

Liang (2007), p. 125.

Huang and Yu (2008), pp. 22–24.

Wu (1996), pp. 237–238.

Zhao (2005), p. 43.

For details of Gao Cheng De v UBTV, see Zheng and Pendleton (1991), pp. 46–49.

Zheng and Pendleton (1991), pp. 48–49.

Some copyright scholars argued that the phrase ‘small quantity’ only related to the number of articles in a periodical rather than a portion of a book or similar works, see Yao (2001), p. 164. Chen suggested that user should not be allowed to reproduce an entire book or all articles in a periodical under any circumstance. According to her, a reasonable amount of work being reproduced should be considered on a case-by-case basis. Moreover, she suggested two rules be taken into account in determining whether a reproduction was reasonable, they were: (1) reproduced copyrighted material should be used just for the teaching objective for a particular class; (2) The copies should not compete with the original copy in the market. However, she argued that translators should be treated differently from teachers and be allowed to use an entire work; see Chen (2005), p. 83.

Chen (2005), p. 83; Wu (1996), p. 283. Ricketson argued that distance education was a form of teaching, see WIPO and Ricketson (2003), p. 12.

Wu (1996), p. 283; Hu (2008), p. 223.

Art 10 of the Berne Convention.

Brazil, Ecuador and Paraguay submitted a proposal to the WIPO for the adoption of a treaty for an improved access for blind and visually impaired persons in May, 2009, see New (29-5-2009). The proposed treaty draft can be found at www.​wipo.​int/​edocs/​mdocs/​copyright/​en/​sccr.​.​.​/​sccr_​18_​5.​pdf (accessed 27-08-2017).

Art 10(2) of the Berne Convention.

Hugenholtz and Okediji (2008).

Ministry of Education Provisional Administration Methods for Educational Websites and Online Schools of 2000 (2000), promulgated by the Ministry of Education on 29 June 2000.

Art 3 of the Provisional Administration Measures for Educational Website and Online Schools.

Art 6.

Art 8 of the Regulations on Protection of the Right of Communication through Information Network of 2006 Order of State Council [2006] No 468 (Information Networks Regulation).

Li and Xiao (2007), p. 107.

Pub L No 107-273, 116 Stat 1758.

Id, pp. 107–108.

Art 7 of the Information Networks Regulations.

Art 10(4).

Art 10(6) of the Copyright Law Amendments of 2001.

Art 10(7).

A digital library stores its collections in digital format and makes the content accessible by computer through information networks. Unlike a conventional library, a digital library does not need to store hardcopies of books. See Greenstein and Thorin (2002).

Zheng Chengsi v Shusheng Digital Technology Co Ltd (2004) Hai Min Chu Zi No 12509, affirmed by Beijing No 1 Intermediate People’s Court (2005) Yi Zhong Min Zhong Zi No 3463.

Art 7 of the Information Networks Regulations.

Wang and Chen (2008), pp. 2–5.

Zheng (2005), pp. 69–70.

Tang (2011), p. 211.

Id, p. 201.

Zheng (2005), p. 70.

Zhan et al. (2006), pp. 5–8 & 14; Deng (2007), p. 22.

Zhou and Yan (1992), p. 101. Some scholars argue that it is the author, not the library, who has a public lending right, see Feng and Yang (2004), pp. 317–318.

The Second Law for the Regulation of Copyright in the Information Society, became effective on 1 January 2008, English version available at International Association of Scientific, Technical & Medical Publishers ‘Update “Second Basket” German Copyright Law’ (1-10-2007) stm http://​www.​stmassoc.​org/​2007_​10_​01_​German_​Copyright_​Law_​Update_​Second_​Basket.​pdf (accessed 27-08-2017).

Art 53b of the Second Law for the Regulation of Copyright in the Information Society.

Art 53a.

Liu (2006), p. 302.

Zhao (2005), pp. 62–63.

Zhao (2005), p. 63; Zhang (2001), pp. 11–13.

Liu (2006), p. 301.

The first authors’ society, the Société des Auteurs et Compositeurs Dramatiques, was established in France in 1777. From the end of the nineteenth century to the beginning of the twentieth century, authors’ organisations were formed in almost all European countries, see Ficsor (1990), p. 10.

Ficsor (1990), p. 75. In Germany, the Patent Office is the supervisory body of CMOs. However, it does not examine and approve tariffs for usage of copyrighted materials. Disputes over tariff must be brought to a special arbitration board, see Dietz (2000), p. 290.

Dietz (2000), p. 291.

Ficsor (1990), pp. 35–36.

Ficsor (1990), p. 37. Also see Copyright Clearance Center ‘About Us/Copyright’ Copyright Clearance Center.

Ficsor (1990), p. 38.

Promulgated on 22 December 2004 and became effective on 1 March 2005.

Legislative progress has been slow largely because during the planned-economy era, authors were attached to their ‘work units’ (places of employment) that administered copyright transactions for them.

The NCA and the Chinese Musicians’ Association began the first CMO, the Music Copyright Society of China (MCSC) in December 1992. The MCSC is a member of the International Confederation of Societies of Authors and Composers (CISAC). Until 2005 it had collaborative agreements with 44 CMOs in different countries and regions. In 2005, the total licensing fees the MCSC generated amounted to RMB 64,405,700, an increase of 33.82% over the previous year, see the MCSC Annual Report of 2005 http://​www.​mcsc.​com.​cn/​gsxx.​htm (accessed 27-08-2017). In 2008, the long-awaited China Audio-Video Copyright Association (CAVCA) and the China Written Works Copyright Society (CWWCS) were set up.

Article 8 of the Copyright Law of 1990 allows copyright holders to ‘authorize’ a CMO to exercise copyright and related rights such as broadcasting rights on their behalf. CMOs are entitled to bring an action against a third party and participate in arbitration and litigation in their own name. Since the Copyright Law does not clarify the nature of CMOs, Chinese copyright scholars generally agree that the relationship between a right holder and the CMO is a trust relationship, Yi (2004), p. 37; Zhou (2003), pp. 47–49; Mao and Zhou (2002), p. 62; Zhan (2001), p. 45; Yu (2006), pp. 212–215.

See Supreme People’s Court Judicial Interpretation of Response to the Legal Issues between the Music Copyright Society of China and the Right Holders of Music Works of 1993 Judicial Interpretation (Civil Law Courts) [1993] No. 35. Also see cases: Music Copyright Society of China v Beijing Tuteng Digital Press Ltd (2001) Yi Zhong Zhi Chu Zi No 224; Music Copyright Society of China v Guangzhou Wangyi (NetEase) Ltd (2002) Er Zhong Min Chu Zi No 03119.

Cui (2004), p. 175.

Art 3 of the CCMR.

Art 5.

Arts 6-7.

Art 20.

Art 7(2).

Xu (2005a), p. 17.

Liu (2008), p. 186; Yang (26-09-2008).

Liu (2008), p. 186.

Cui (2004), p. 145.

Zhou (2004), p. 26; Lu (2002), p. 17.

The SIAE, the main CMO in Italy, is a public authority in a monopolistic position in the market. In the Netherlands and Spain, the copyright law expressly discourages competition among CMOs; see Gervais (2001).

Ficsor (1990), p. 73.

Id, p. 74.

Ficsor (1990), pp. 74–75; Arts 85 & 86 of the Treaty of Rome; Wallace (1973), p. 382.

In Germany, the Patent Office supervises collective societies; see Art 18(1) of the Law on the Administration of Copyright and Neighboring Rights of 9 September 1965 as amended on 2 May 1985. For France, see Intellectual Property Code Law No 92-597 of 1 July 1992, Art L 321-3, Arts L 321-11 & 12.

Arts 30-32 & 37-38 of the CCMR. Arts 37-38 provide that the NCA may supervise CMOs inspecting their accounting books, annual budget and finance reports, as well as other relevant documents and by sending an observer to attend major meetings, such as the general assembly of members and meetings of the board of directors of those organisations.

Cui (2004), p. 152.

Arts 33-36 of the CCMR.

In China, the Ministry of Commerce and the State Administration for Industry & Commerce supervise issues related to anti-monopoly. It is unclear whether the NCA is empowered to monitor CMOs’ monopoly, see Cui (2004), p. 173 & accompanying n 3.

Li and Cheng (2015), p. 94.

Anti-monopoly Law of 2007 Order of the President of PRC No. 68 (2007), adopted on 30 August 2007 and came into effect on 1 August 2008.

The Appendix of the CCMR provides that if a user exploits a copyrighted work but cannot find a right holder to pay, the user should submit usage charges to a CMO administering the same category of copyrighted works as the one being used, see Art 47 of the CCMR.

Liu (2016), pp. 104–111.

Liu (2008), p. 187; Liang (2007), p. 171; Chen (2005), p. 242.

Olsson (20-5-2005).

For example, see Art 42 of the Swedish Act on Copyright in Literary and Artistic Works of 1960, as amended up to 1 July 2005.

World Intellectual Property Organization & International Federal of Reproduction Rights Organizations Collective Management in Reprography (Geneva: WIPO/Brussels: IFRRO, April 2005). Also see Gervais (01-06-2003).

Olsson (20-5-2005).

In 2001, in preparation of the CAVCA, more than 70% audio-visual producers signed agreements with the CAVCA authorising it to administer their rights, see Xu (July–September 2005b) e-Copyright Bulletin 1.

Gervais (01-06-2003), pp. 30–32.

Id, pp. 30–31. To determine whether CMOs make reasonable efforts to contact right holders, administrative authorities can impose rules of conduct that CMOs must follow. Alternatively, authorities can encourage CMOs to adopt a best practice code. A CMO also can send royalties to foreign right holders if they are represented by a recognised CMO in their own countries. If there is not a CMO representing a right holder in his or her home country, the CMO that received monies must use a variety of techniques to locate the right holder. In the second stage, CMOs need to establish and manage a fund for the remuneration of right holders who cannot be located immediately. A fund is established to retain the royalty money for unfound right holders because at some future time a right holder might appear or a new CMO representing the right holder might be established later near where the right holder resides.

Id, p. 32, citing relevant Denmark law from http://www.​senat.​fr/​lc/​lc30/​lc301.​html (accessed 27-08-2017).

§6 of the STIM Society Statutes of the Swedish Performing Rights Society of 2005 (25-11-2005, 8-12-2005) http://​www.​stim.​se/​en/​This-is-STIM/​Our-assignment/​Statutes/​ (accessed 27-08-2017).

§10.

§10.

For example, see s 50 of the Danish Copyright Act of 1995, as amended 30 June 2006; S 36 of the Norwegian Act Relating to Copyright in Literary, Scientific and Artistic Works, etc of 1961, as amended 22 December 2006; S 26i of Swedish Act on Copyright in Literary and Artistic Works of 1960, as amended 1 July 2005.

Art 21 of the CCMR.

National Copyright Administration Response to the Question regarding the Arbitration Organ of Copyright National Copyright Administration [2006] No 67 (26-07-2006).

Zhou (2004), p. 282. Nevertheless, Cui argues that a court can settle copyright disputes. Therefore, it is unnecessary to establish specialised tribunals or other bureaus to deal with copyright disputes. See Cui (2004), p. 169 & accompanying n 2.

Yang ‘Shao Yushan Sued MCSC for invalid copyright authorization costing 1000RMB’ at http://​ent.​sina.​com.​cn/​y/​2006-11-25/​00531342859.​html (accessed 27-08-2017).