(By You Yunting) Several days ago, the author wrote an essay “Is It Illegal for Amazon.cn Running Kindle Store with A License Borrowed from Business Cooperation?” And in recent, the Office of Legislative Affairs of the State Council published the news that, the General Administration of Press and Publication (the “GAPP”) is working with other departments drafting the exposure draft of Management Measures of Online Publish Service (the “Measures”) (note: the link is in Chinese). According to the Measures, the foreign invested company shall not engage themselves in the online publishing. The domestic publishing units shall report their cooperation with foreign companies in the service of online publishing. For this reason, once the Measures would come into effect, the Amazon, a foreign invested company, would have no access to participate in the business concerning the online publishing service, and its cooperation with Chineseall.com shall be reevaluated for the security by the administration.
But what we like to discuss today is another issue. The author has noticed that the administration has set a low threshold of online publishing business, but a high demand for the permit application of the approved operation. Once the exposure draft could become a official legislature, for one hand, it may make most contents communicated on the Internet be within the jurisdiction of the GAPP and enlarge its administrative power to a unfair scope, which may make part of its authority conflict with those currently exercised by the Information Office of the State Council, State Administration of Radio, Film & Television (the “SARFT”) and the Ministry of Culture (the “MOC”). And on the other hand, the information releasing by millions of medium or small scale websites or personal websites which could not acquire the legally demanded permit would also be included in the administration of the online publishing, and to their very astonishment, they would be deemed as the illegal online publisher.
According to Article 2 of the Measures:
All the engagement in the online publishing service in People’s Republic of China shall be governed by this regulation. The online publishing service in this regulation refers to providing online publication to the public through networks, as well as spreading online publication for others. The online publication in this regulation refers to the digital work that has been spread through network after manufacture, edition and processing, which could include:
(1) the literal, picture, map, game, cartoon, video & audio readings or other digital works in the field of the literature, arts or science, which appears to be intellectual and ideological;
(2) the digital works containing the same contents with those already published books, papers, periodicals, video & audio production or electronic publication;
(3) the digital work selected, edited or collected from the above works;
(4) other digital works affirmed by the GAPP.
Article 7 of the Measures: to engage in the online publishing service shall first be approved by the administration of the publishing and be granted the Permit of Online Publishing Service (the “Permit”).
By the above definition, most websites shall apply for the Permit, for the information spreading by them, no matter they are literature, picture, music, film & teleplays or online games are all within the definition of the regulation that to provide public the “the literal, picture, map, game, cartoon, or video & audio readings or other digital works in the field of the literature, arts or science, which appears to be intellectual and ideological”, and could thereby be deemed as the online publishing. And by Article 7 of the Measures, only when the Permit is granted could they practice in this field.
To take the author’s blog as the example, once the author posts the article on his blog, it could violate the law by the Measures. The main reason is, the content of the article could constitute the online publication, and in the Measures, the process of digital work making could be finished on one’s PC. First, this blog is obviously appearing to be intellectual or ideological with regard to the legal issues, and the process of its creation is actually the production of a digital publication, the revision after its draft is the edition in law, and to use a specific software to convert it into a digital format or PDF format is the so-called processing. At last to post it on the blog is to release it to the public. Considering all of these, the personal website of the author could be defined as that shall apply for the Permit, or otherwise its existence or update would violate the law. And to further suppose that there could find ads from Google or Baidu on it, or to make the blog a chargeable one, theoretically it would be deemed an operation of the charged online publishing. And as stipulated in the Measures, it is facing the punishment and penalty, or even the criminal prosecution.
By Article 51 of the Measures, any unapproved operation of online publishing service…shall be banned by the administration of industry & commerce as well as the administrative organs of the business. Moreover, the website shall also be blocked by the provincial telecommunication department or be shut down. Also as found in the Measures, the crime of illegal operation would be prosecuted. Even it could not be found guilty in the criminal law, all the online publication shall be deleted and all the income from the operation shall be confiscated as well as that equipment used in the publishing. When the illegal operation involves the amount of more than RMB 100, 000, the penalty of more than 5 times but less than 10 times of it could be fined; but when the amount involved is less than RMB 100, 000, the penalty could be less than RMB 50, 000 yuan. For the violation against others’ interests, the civil liability shall be taken by it.
The main function of the Internet is information exchange, and the definition in the Measures has included all the digital work in the rules regulating scope. That is to say, the GAPP may have the authority over all the online publication. But the fact is, the authority of GAPP in law is not that extensive. For the operating websites, the news published on the Internet is managed by the Information Office of the State Council or local places, the video shall be governed by the State Administration of Radio, Film and Television (the “SARFT”), and for the music and games, the GAPP and the Ministry of Culture (the “MOC”) could be overlapped on their administration, despite the current work division, by which GAPP would take charge part of it. The official who drafts it is easily to be seen the intention: although there remains little in its administration, all the official regulation made by it shall include as much as possible for the convenience of the future administration. But with that document, millions of website shall apply for the Permit, and yet the problem is the GAPP has set a high threshold for the Permit, which covering the registered capital, staff qualification and etc. Accordingly, most websites would be made illegal unconsciously.
You might know the clashes of the outfit among the movie stars, but out of our expectation, the blog may also clash with each other. Before closing this essay, the author find another blogger, Ruan Yifeng once has posted a similar article on the issue in 2007. And by then, the target of its criticize is the replacement of the regulations then by the existing Measures on Management on Online Publishing Service. However, we have detained no effect from his criticize. For that, it could also be foreseen in the new Measures.