What Change on Information Communication by Network in Exposure Draft of China Copyright Law? II

II. To enlarge the information networks: a concept coincidence with the right to transmission

Besides the enlargement to the definition of the right to the information communication by networks in the exposure draft, the new judicial interpretation also regulates a wider definition on the information networks, which includes PC internet, radio & television networks and mobile telecommunication networks. We support such enlargements for radio and television VOD is feasible with the technology development while the networks of them are excluded from the legal information networks. Since the nature of VOD on radio & television networks is of no difference from that on the internet, the information communication by networks shall naturally involve it.

But the definition enlargement also lead to another problem that the concept coincidence with the right to transmission in the exposure draft. As said in the exposure draft, the right to transmission is the right to transmit the work to the public or relay transmissions of the said work through wire or wireless means, as well as to relay transmissions of the said work to the public through technological means.

The right to transmission originates from the right to broadcasting, which by the legislature purpose of the Copyright Law shall regulate the broadcasting on radio & television broadcasting. But for the “broadcasting” is replaced with “transmission”, and “through wire or wireless means” is also expressed in the regulations, it may be misunderstood that the internet is also involved. And as to the definition of the right to transmission, it could be concluded that the right to transmission in the second half of the regulation in the exposure draft refers to the public broadcasting not contained in the “other rights”, while the conducts provided in its first half are almost the same to the direct broadcasting or relay on radio & television networks promulgated in the new judicial interpretation. Besides the duplicated legislature, such expressions in the draft may also lead to the coercive license as mentioned above. Therefore, the suggestion from us is to delete its first half.

III. The new right owner: the radio and television organization may have part of the right to the information communication by networks

First let’s have a look into a case heard by the existing laws. Zhejiang Jiaxing Wasu Television Communication Co., Ltd (the “Jiaxing Wasu”) sued Jiaxing Branch of China Telecommunication Co., Ltd (the “Jiaxing Branch”), claiming that Jiaxing Branch provided the signal of Heilongjiang TV in the city which shall be the exclusive right of Jiaxing Wasu who is the exclusive licensed partner with the TV station in receiving and transmitting the TV signal in Jiaxing. After the hearing on the court, Jiaxing Nanhu People’s Court refused the claims of Jiaxing Wasu in the first instance.

The plaintiff Jiaxing Wasu got its right from Heilongjiang TV who, by the current Copyright Law, enjoys the right to production, reproduction and relay as the broadcasting organization, and the case involves the right to relay. But no regulations in the existing Copyright Law has made a clear definition whether the online direct broadcasting belongs to the relay in law. And from the decision made in this case, the relay shall not include the online direct broadcasting, but in our view, that’s unreasonable for its nature of broadcasting and the damages suffered by its right owner from the infringement, and therefore it shall be governed by law.

For this reason, we now see the new regulation on the right scope of broadcasting organization in the newly revised draft, and it includes “the right to communicate to the public a work in an information network environment”. The new regulation will no doubt help to combat the piracy, while it’s also noticeable that it’s not a integral right to the information communication by networks with the inter active communication excluded. Although generally the interactive broadcasting of TV program demands the production or reproduction of the programs, but once the broad-casted ones are legal publication and of no reproduction, then the broadcasting organization may have no relief way to any infringement by unlicensed VOD by the current modification draft.

In a word, it’s exciting to see a extended definition of the right to information communication by networks in the draft, though some of its regulations are of vague. So we look forward to a final legislature balancing the interests among the right owner and the public to the utmost extend and the justice could thereby be achieved.

Lawyer Contacts

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You Yunting

86-21-52134918
youyunting@debund.com, yytbest@gmail.com

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