Mr. You Yunting was interviewed by Tecent weibo for his comments on the exposure draft of the Copyright Law (the “Draft”), and today’s essay is the digest of the interview. And for your convenience in reading, we’ve made a few alterations to the questions and our answers.
First, we would like to say that the Draft is more scientific than the original one on general, while it remains two main problems: 1) it needs more respect on the right of music writers and recording companies; 2) Although the collective management organization has more power with the Draft, it’s unclear system of interests distribution and incomplete operation system, as well as the suspicious relation with the Copyright Office are all arousing the public arguments.
1. Q: Could sound recording product be used without authorization? Are there any contradictions between the protection term of 3 months and the protection term of 50 years enjoyed by the right owner? What influence will the Draft produce on the original singer?
A: As provided in Article 46 of the Draft, “Within first 3 months after the publication of the sound recording product, other sound recording producer may use the music of the aforesaid product to make its own product without the license from the copyrighter with the reference to Article 48 of the law.” In my opinion, it jeopardizes the control on the music copyright by the lyrics and tunes writers as well as the music companies, either in personal rights or in property rights. For the personal right, it may become out of control in the aspect of the derivation of the works and challenge the integrity of the works. As to the property right, the control right enjoyed by the writers of lyrics and tunes may be replaced by the copyright collective management organization, which may lead to the damage in property income of the producers. The new regulation could also be a bad news to the original singer whose works may encounter cover versions soon after its official publication, while it remains possible that the works could gain more income for the popularity after the spread by others. (Actually the article is wrong itself for any commercial music cover shall get the license from the copyright owner while the non-license could be only applicable to the free performance.)
The new regulations are the draft for legislation after all, for the wide argument on Article 46, we might see a alteration on the article in the final version of the regulation, and that could be 1) to delete the article contains the non-authorization from the copyrighter which is similar to the mandatory license, with the original regulation that “no use on declaration” still effecting; or 2) to extend the current 3 months to 6 or even 12 months for a wider cushion space for the music company and the lyric and tune writers. In our opinion, the second instance is more possible.
2. Q: What for my most concern is the micro blog or weibo, and is there any progress on the regulation of its copyright?
A: Despite its short text, the microblog could be the works when it has originality and could be protected by laws. In the modification of this time, the compensation is increased to 1 to 3 times of the original one for the competed infringement and the maximum compensation is hereby increased to 1 million yuan from the original half million yuan. All these are beneficial to the protection of copyright of works with blogs and microblogs included.
3. Q: According to Article 48 of the Draft, any intended user shall apply for the administrative record while it says no measures by the administration to protect the interests of the original copyrighter when no such records are made, then what is your opinion for it?
A: For any unrecorded use of the works which are demanded for administrative record by law, it may be deemed as a malicious infringement and face a high compensation. As stated in the above article, the compensation liability and maximum compensation have been both increased in the exposure draft. And in addition to the civil compensation, the related parties may also seek for administrative protection, which requires the participation and enforcement for the punishment by the culture and copyright department.
4. Q: The property should have been protected for one’s lifetime, then why it regulates the protection term for it is only three months? What contributes to such consideration?
A: All the laws for intellectual property including the Copyright Law shall not only cover the right of the right owners. The main function of the law shall be that to encourage the creation, grant the protection to the right owner and promote the prosperity of the society. Therefore, it demanded for law to balance the interests between the right owner and the social public. To take this article as the example, to cover more works may help the distribution and spread of the works, which on the other hand will benefit the society. However, in our opinion the term of 3 months is obviously too short.
5. Q: The copyright shall be protected, but to increase the income level is a major solution to the problems.
A: To increase the income could be a solution, but to highlight the public senses of IPR protection is also necessary. For instance, an iPhone is sold for 4000 to 5000 yuan, and many buyer prefer jailbreak to paying 6 yuan for an app. Then for this reason, the Draft cancels the personal appreciation in the fair use system.
6. Q: Which articles in your mind are inappropriate?
A: For the collective management organization of copyright, I believe the National Copyright Administration of China shall lift the limitation on the establishment of the organizations by individuals or non-official units, therefore the competition among the associations could be developed and enable the right owner choose a better one for the entrusted management of his/her works. And also with the introduction of this system, the “survival for the fittest” could be cultivated rather like the current monopoly in the industry.
7. Q: What is the protection for online literature’s copyright?
A: The online literature shall be protected under the right of information communication by networks, which however is very difficult to be protected for it’s easy to be copied. Nowadays, the commercial mode of online literature is mainly the one developed by qidian.com, under which the first several chapters of works are free while the reading for the rest is demanded for payment. I think the mode mentioned is fit for online literature, and the protection for online literature shall start from the protection of its commercial mode, for which a high compensation or even criminal punishment could be introduced.
8. Q: It’s mentioned in Article 68 that “the ISP shall take no obligation for the examination on the copyright or any rights related when it provides the internet users the service of storage, search, link or other pure internet services.” Then what’s your comment on such non-obligation?
A: Although it has arose wide argument, I have found no major problem in it. For the existing mature judicial practices, the website are not likely to take this article for the piracy. Like the unauthorized casting of TV dramas, the lawsuit thereby filed by the right owner are mostly supported by the court. For any malicious using of the article, the Regulations on the Protection of Information Communication by Networks and Tort Liability Law could be applied.
9. Q: The Draft also has a new right called “the right to follow”, which is regulated for no transfer or abandon, then how to understand the “no abandon”?
A: Sorry, honestly the right is also new to us, and we have little understanding on it. While by latter study, the right to follow is regulated in Berne Convention for the interest protection of the original writer, especially for the fine art, photography or other works may face a floating price. Thus makes it a personal right and shall not be transferred or abandoned.
10. Q: Does the new regulation mean the spring coming of Baidu MP3 for it will no longer take the examination obligation for any pirated music on its website?
A: By the news report, Baidu has purchased the copyright from major recording companies, and has launched its new product named Ting for genuine music. Surely, the search product for such resources like gougou.com or iask.com have been long in public debate, and shall it exists? The answer shall be no to our judgment, but for the saying that what exists are what reasonable, and that may be depended by the nation conditions here.
11. Q: Where’s the way out for music distributor?
A: As always believed by me, those users for iTunes like product shall pay for their amusement, while it needs waiting to the time when people have more money, a stronger sense of IPR protection and a better judicial condition. While for the musicians, the only choice for them today may be the performance and value added telecommunication service to pass the dark before the dawn, and may be it could last for ten years or longer.
Other recommended posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China’s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU’s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)
Author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Law Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. And all news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works. You may contact us shall you have any opinions or suggestions.