Regulating the Right of Information Communication in China
by Wu, Weiguang,
Lecturer, Tsinghua University, Department of Law
(Published in the Volume 2 of CompLex, http://www.kierkegaard.co.uk/)
Abstract:
The draft of the Regulations on the Protection of the Right of Communication through Information Network in China provides the communication right for the copyright holders and related right holders. The fair uses and the statutory licenses specifically for the limits of the communication right are listed in the Regulation. The draft of the Regulation offers the safe harbor by imposing the "notice and take down" liability to the network intermediaries. Technological measures are also recognized in the draft of the Regulation with the statutory circumvention limits. The draft of the Regulation is undergoing the process of public consultation and is expected to take effect in 2006.
Key words: the right of the information network communication, technological measures, copyright.
I. The Background of the Draft of the Regulation
A.The Copyright Law of China
After China joined the World Trade Organization (WTO) on December 11, 2001, it promulgated the amended Copyright Law of the People's Republic of China, Which covered information sent over wired and wireless networks, that is the right of communication of information on networks(hereinafter the communication right) However, although the Copyright Law provided for the communication right to the copyright holders, it did not clarify issues of liability and enforcement about the right.
In the meantime, the Supreme Court of China issued several Judicial Interpretations on cases involving copyright disputes over computer networks. To a large extent, it has been the law for the copyright issues on the Internet and has guided the judicial interpretation until now.
The Judicial Interpretation has several articles regulating the network intermediaries, the "notice and take down" liability, and the format requirement of warning. For example, according to the Judicial Interpretation, a network intermediary shall be held for contributory liability for the infringement if the network intermediary participates in a copyright infringement with others via the Internet or aided and abetted others to commit a copyright infringement via the Internet. A network service provider may be held for contributory infringement liability if one of the following conditions is met:
* The network service provider offers substantive services, in spite of knowing the Internet users' acts of infringement of other people's copyright through the network, or
* The network service provider has been given warnings by the owner of the copyright to take measures to remove the infringing contents, in accordance with the stipulation of Article 130 of the General Principles of the Civil Law.
Judicial Interpretation has been drawn from legal experience of other countries, particularly the DMCA of the United States, the E-commerce Directive, and the Copyright Directive of the EU.
B The Draft of the Regulation
The State Council, mandated with the task of providing details of the communication right, drafted the Regulations on the Protection of the Right of Communication through Information Network (hereinafter, the Regulation) at the end of 2005, after nearly five years since the promulgation of the Copyright Law of China.
The Regulation, which has recently been made available for public consultation, is expected to take effect in 2006. The Regulation is the fruit of the combined sound thinking and experiences from the legislatives, the judicial practice, and the academic scholars over the past five years. The judiciary has been instrumental in interpreting and clarifying the law through the Judicial Interpretation. The legislative and administrative bodies have deliberated and studied the legislation for more than five years. Now it is the ideal time to merge all the essential ideas together.
There are several differences between the Copyright Law of China and the Regulation. These mainly deal with (1) communication rights content, (2) rights of fair users, and (3) statutory license. Each of these differences will be discussed in subsequent sections of this paper.
II. The Content of the Communication Right and the Limits
A. The Content of the Communication Right
The Copyright Law of China defines the communication right as "the right to provide the public with works by wired or wireless means, so as to make the public able to respectively obtain the works at the individually selected time and place"9 The definition is technology neutral and broad enough to cover not only technology of the Internet, but also other technology (such as the digital television technology or the third generation of the mobile communication technology) as long as the works could be obtained individually through the network at the selected time and place.
The content of communication right in the Copyright Law of China stipulates that copyright holders, performance products and sound recordings or video recordings producers prohibit third parties from disseminating their works, performance products and sound recordings or video recordings to the public by the networks.
The Regulation, on the other hand, defines communication right in more detail.
"The right of communication through information network enjoyed by right owners in their works, performances, or sound and video recordings consists of both the right to communicate by themselves, and the right to authorize other persons to communicate, their works, performances, or sound and video recordings to the public through information network.
"Anyone who uploads other persons' works, performances, or sound and video recordings to a network server for public access, reproduction or use in other means shall obtain authorization from, and pay remuneration to, the right owners, except where otherwise provided for in laws or regulations."
The content of communication right covers works which are protected by the copyrights, the performance products, and the sound recordings or video recordings which are protected by the related rights in the Copyright Law of China (hereinafter, the works). The prohibited use is the upload of the works on the networks, which is something the public could easily do, since most Internet services use the server-client model. The infringement liability is held not only by the party who uploads the works onto the server, but also the service provider who stores such works on its server.
A peer-to-peer model, which does not use a server, has become a source of controversy recently. The Regulation does not address the issue of peer-to-peer models.
B. The Fair Uses
Article 22 of the Copyright Law of China lists the twelve types of the fair uses; however, not all of the fair uses specifically apply to the communication right.
The Regulation will give users clearer criteria of "fair uses" by specifically limiting itself to communication right. The Regulation lists eight types of the fair uses to limit the communication right of copyright holders, performers, sound recordings and video recordings producers. Fair use means that the user can use the works by the way permitted by the Regulation without the permission of the copyright holders and without the payment of the royalty. The only duty of the user is to identify the name of the authors, the title of the works and the source of the works if they are available. The eight fair uses, which also are applicable to the rights of performers and producers of sound and video recordings, include:
(1) The fair use of re-pasting. That is, re-pasting another person's remarks at a BBS to another BBS, except where the copyright owner declares that re-pasting is not permitted;
(2) The fair use of representation or quotation. That is, unavoidable representation or quotation of another person's published work on an information network for the purpose of reporting current events;
(3) The fair use of the communication for the current news. That is, communication to the public through information network of an article on current political, economic or religious topics published by other media, except where the copyright owner declares that communication in other means is not permitted;
(4) The fair use of the communication of the public speech. That is, the communication to the public through information network of a speech delivered at a public gathering, except where the copyright owner declares that communication in other means is not permitted;
(5) The fair use of the public library. That is, the provision by a public library of a published work in its collection with its own network reading system for public reading within its premises, provided that the network reading system does not provide copy service and is able to effectively prevent further communication through information network of the work provided for network reading;
(6) The fair use of the searching service. That is, the reproduction of another person's web page for the purpose of providing searching service, provided that the technological measures adopted by the right owner or exclusive licensee are not circumvented, and that no copy function is furnished;
(7) The fair use of the limited translation. That is, the translation of a published work of a Chinese citizen, legal entity or any other organization from Han language into any of minority nationality languages, as well as communication of the translation to the public through information network; and
(8) The fair use of the repairing. That is, the use of software for non-profit purposes in the course of repairing computers or other devices as well as systems or networks, or demonstrating their functions.
For (1), (3) and (4), an exception to the fair uses is the requirement of the copyright holder's permission, i.e., if the copyright holder declares not to allow such fair use, the fair use is prohibited. The ambiguity relates to the proper method of the declaration to qualify for such exception. Nearly every website has the user's policy or copyright management information, which generally includes the declaration of the prohibition of using the content of the website without the permission of the website operators. If such a declaration qualifies as an exception here, the fair use will almost always be futile. This issue needs further clarification.
C. The Statutory Licenses
Statutory license means that a person can use the works of another person without the permission from the copyright or the related right holders, on the condition that the user will pay royalty according to the statutory standard.
Four types of statutory licenses are provided in the Copyright of China:
* The statutory license of textbooks,
* The statutory license of re-publish of the newspapers,
* The statutory license of the sound recordings products, and
* The statutory license of the broadcasting of a radio station or television station.
Because these four types of the statutory licenses are applicable to all the economic rights in the Copyright Law of China, and because communication right is one of the economic rights, the communication right is limited by these statutory licenses in theory. The four statutory licenses outlined above, however, do not satisfactorily address rights related to the Internet and the other similar media.
The Regulation adds three types of the statutory licenses to the communication right:
* The statutory license of network distance education
* The statutory license of the public library to the registered readers outside the premises and
* The statutory license of re-dissemination of the works, which have been published in the newspaper or other information networks.
Generally, a distance education institution must acknowledge the name of the author, the title, and source of the work; must pay remuneration according to regulations; and must not prejudice other rights enjoyed by the copyright owner according to law to be able to use passages of a work, a short written work or musical work, or a single work of fine art or photographic work which has been published to produce textbook software for network distance education, without permission from the copyright owner, unless the copyright owner declares in advance that the use of this work is not permitted. In addition, the distance education institution must meet all of the following conditions in providing network distance education for implementing the nine-year compulsory education and the national education planning:
(1) The textbook software is only provided to students registered with the said distance education institution. This shall also be applicable to the limitations on the right of communication through information network of performers and producers of sound and video recordings.
(2) The distance education system is able to effectively prevent further communication through information network of the work used in the textbook software.
The statutory license of the network distance education is the derivation of the statutory licenses of the textbooks introduced above for the nine years of mandatory education. There are still many remote rural areas without modern mandatory education facilities in China. The network distance education will be the most effective and economical method for far areas with low population density.
Except where the copyright owner declares in advance that the use of his work is not permitted, a public library which meets all of the following conditions may provide a published work in its collection with its own network reading system for public reading to registered readers outside its premises, without permission from the copyright owner, provided that the name of the author, as well as the title and source of the work, are indicated, that remuneration is paid according to regulations, and that the other rights enjoyed by the copyright owner according to law are not prejudiced.
(1) The work provided for network reading has been lawfully published for more than three years
(2) The network reading system does not provide copy service
(3) The network reading system is able to precisely record the times the work has been read and to effectively prevent further communication through information network of the work provided for network reading.
Under this statutory license, the public library can digitize its collections and provide them to the registered readers outside the library premise if the system meets the above three conditions. The Regulation does not mention remuneration to the copyright holders, but it implies that this could be settled through a contract between the library and the copyright holders. However, it seems that the remuneration can be calculated by the number of times the collection is read or accessed by the users. At least, the Regulation requires the system to have the function of recording, counting and calculating the amount of reading and access. This type of digital library should be encouraged by the government of China because China has an obvious imbalance of the economy level between the east and west and between the monopolies and the rural areas. The online library will be the most effective way to narrow such gap because most of the collections are in the big cities.
Except where the copyright owner declares in advance that reproduction or excerpting is not permitted, a written work, work of fine art or photographic work, after being published in a newspaper or periodical or on an information network, may be reproduced or used as excerpts or data in another newspaper or periodical or on an information network, provided that the name of the author, as well as the title and source of the work are indicated, that remuneration is paid according to regulations, and that the other rights enjoyed by the copyright owner according to law are not prejudiced.
The statutory license of re-publication of works published in newspapers or periodicals has been provided in the Copyright Law of China. It resolves the issue of the re-publication of works on other tangible or paper media. But with the convergence of the technology, more and more of intangible and tangible media become intertwined or overlap. In general, the works are published synchronously or re-published on both paper periodicals and on digitized media. The statutory license of the re-use in the Regulation makes it clear that the works could be used across the different media, such as paper media and digital media.
III. The Technological Measures and the Statutory Circumvention
A. The Statutory Circumvention
The Copyright Law of China prohibits the intentional circumvention or destruction of the technological measures for protecting the works, sound recording or video recording, without the permission of the copyright owner, or the owner of the copyright-related rights, unless otherwise provided in law or in administrative regulations.
Technological measures is defined in the Regulation as "the effective devices or methods used by right owners or exclusive licensees for preventing or restricting unauthorized or unlawful access to, or communication to the public of, their works, performances, or sound and video recordings through information network."
In the definition, the technological measure can only protect the works from unauthorized or unlawful access to or communicate to the public. Obviously, fair use is the lawful use of the works and the precondition of the fair uses is the access to the works. Logically, if the readers circumvent the technological measures for the fair uses purpose, the circumvention should be legal. Accordingly, the Regulation provides an exception to the technological measures, called here as the statutory circumvention, which is quite an arguable and ambiguous article in the Regulation. The statutory circumvention gives the user the right to circumvent the technological measure without liabilities, if the circumvention is used for one of the following purposes:
(1) For the use permitted by law of works, performances, or sound and video recordings communicated through information network;
(2) For the research concerning encryption on an information network for non-commercial purposes;
(3) For technical testing to identify or rectify security defects of an information network for non-commercial purposes;
(4) For the research concerning browser filtering technologies for non-commercial purposes;
(5) For investigation of illegal or criminal activities on an information network.
The statutory circumventions for the fair uses are covered by (1). The cases of (2), (3) and (4) permit the user to circumvent the technological measures for the purpose of research or test of the encryption or the network technology per se. And case (5) authorizes the related agents of the government to circumvent the technological measures for the administrative or judiciary purpose of investigating the illegal or criminal activities on the network.
B. The Silence to the Liability of the Circumvention Service Providers
The Copyright of China clearly prohibits the circumvention of the technological measures of the works, but is silent on the liability of the circumvention by service providers. In general, the terminal users of the works need help from a third party if they want to circumvent technological measures because terminal users do not have technological ability to do so. Many countries not only prohibit the act of direct circumvention, but they also prohibit users from circumventing the technological measures. The Judicial Interpretation provides a clarification on this issue and says that "the People's Court may investigate the civil legal liability of the network service provider in accordance with the stipulation of Article 47, Paragraph 6, of the Copyright Law per the filed requests of the plaintiff and the specific details of the case if the provider knowingly uploaded, disseminated, or provided methods, facilities, or materials that are specially used for willfully circumventing or destroying protective measures to insure others' copyright." The Judicial Interpretation fills the gap left by the Copyright Law of China.
It seems unusual that the Regulation does not follow and adopt the provision in the Judicial Interpretation, even though the Regulation was drafted two years after the Judicial Interpretation. The Regulation continues to remain silent about the liability of the third party who aids in the circumvention. This is a reflection of the conflicting and different attitudes towards this issue between the legislative and the judiciary branch in China.
The legislation still maintains the traditional balance between the copyright holders and the public; that is, between protecting and strengthening the rights of the authors and to keeping the effective fair uses of the public. The Regulation makes it clear that the technological measure is still limited by the fair uses. "In any of the following cases, those who circumvent technological measures without permission of the right owner or exclusive licensee shall not bear legal liabilities for the use permitted by law of works, performances, or sound and video recordings communicated through an information network; " Access of the work is the first step for nearly all the fair use. The main technological measures used to protect the works are the technological control of the access of the works. Since the Regulation permits the user to circumvent the technological measure for fair uses, the fair users need help from the third party who has the capability of circumvention. Based on this background, the Copyright Law of China and the Regulation ignore this type of service providers.
The Judiciary, i.e. the courts, does not have the privilege of procrastinating. It has to have a clear perspective and interpretation of the law when cases involving the circumvention service providers are pending before the courts. Obviously, when the issue is not clear, it is safer for the Judiciary to give a negative reply than to approve the legality of the services. That is the trend in the past and current Judicial Interpretation.
As a result of the conflicting attitudes to this issue, the party who provides the service to help the circumvention may be held for civil liability in a copyright infringement suit, but may not have administrative and criminal liability. The question so far is how to resolve this controversy.
C. Attacking Technological Measures Prohibited
Another limit to the technological measures is that the technology used in the technological measures should be passive, that is, "it shall not disrupt or harm other persons' computers or other devices or systems, nor shall they threaten network security or information security." The provision is a result of a decision from a real case which transpired in 1997. Jiang Min, a well-known Anti-Computer Virus Company, found that many users used its piratical KV300 anti-computer virus software after the technological measure of the software was circumvented by an unknown person on the Internet. Jiang Min then input a logic locker into the software so that if the illegal users copied the software on to their computers, their computers would be logically locked and the data stored in the computer would not be damaged. A hotline telephone number for the help would appear on the screens of the locked computers, the illegal user could call Jiang Min, using this number for help, and Jiang Min could open the locker on the condition that the user promised not to use the piratical software once more. The active logic locker inside the anti- computer software stirred a heated debate concerning its legality. Finally, Jiang Min Company was fined by the Administration according to the Regulation of Protection of the Computer Information Network System Security, even though no clear prohibition provision could be found in the text of the regulation. As a result of the case, this limitation to the technological measure was added and clarified in the draft of the Regulation, which provides that such kind of technological measure is illegal. Whether the active technological measure is absolutely unlawful is still arguable in the academic and industrial fields.
IV. The Safe Harbor of the Information Network Intermediaries
The communication right in the Copyright Law of China and the Regulation is based on the server-client model of the information network. In this model, the terminal users are the clients of the server who is in the central position of the information networks. The information will be uploaded or stored in the server and further shared by other terminal users. The server providers, who are also called information networks intermediaries, play the role of the information collection and dissemination in the model. As the common attitude to the information intermediaries' liability for the transmitting copyright protected works by the information networks, the Regulation has adopted the "notice and take down" liability style and has provided the safe harbour to the information intermediaries, just as the United States and European Union have done.
A. The Safe Harbor for the Good Faith Intermediaries
The Regulation provides a safe harbor to the intermediaries acting in good faith if the intermediaries directly commit the dissemination of the infringing information or help others to commit such dissemination. These intermediaries are the "mere conduits" as described by the European Union.
Anyone who provides the service for storing network content only through automatic technological process shall not bear compensatory liability for storing infringing or illegal network content if one of the following conditions is met:
(1) The service provider does not know that the network content which he stores is infringing or illegal;
(2) The service provider takes down the network content within five days from the time he knows or he ought to know that the specific network content which he stores is infringing or illegal.
The first paragraph shall also be applicable to searching service providers of network content.
The safe harbor provision remits the compensation liability of the intermediaries if the intermediaries are in good faith. Nevertheless, the intermediaries are liable to other duties except the compensation liability, for example, the preliminary injunction.
B. The Notice and Take Down Liability
The Regulation adopts the "notice and take down" liability model. According to this model, if the intermediaries receives the infringement notice, the intermediaries shall be considered to actually know or constructively know the infringing content stored. When this occurs, the intermediary must be responsible for taking down the infringing conten;. otherwise, the intermediary will lose the protection of the safe harbor and will be held for the infringing liability, including the compensation liability.
The qualified notice has strict form requirement:
"A right owner, when finding infringing or illegal network content, may send a notification that meets all of the following conditions to the storage service provider or searching service provider of such content, asking for its take-down:
(1) The notification is in a written or printed form, or sent in an email;
(2) The notification indicates the name and address of the right owner or exclusive licensee;
(3) The notification requests a takedown of the infringing or illegal network content and specifies its URL address;
(4) The notification is signed by, or affixed with a seal of, the right owner.
In the absence of proof to the contrary, it shall be presumed that the storage service provider or searching service provider ought to know that the content he stores is infringing or illegal after receiving a notification from the right owner that meets all of the conditions specified in the first paragraph. "
Anyone who suffers a loss because of a wrong takedown of specific network content according to the notification from the right owner may request the right owner to bear the compensatory liability.
C. The Remission of the Contractual Liability
Under the notice and take down liability, the intermediaries are mandated to remove the content in question after they receive the eligible notice; otherwise they will be held liable for the infringement. But the removal of the claimed infringing content may be claimed for the breach of the contract between the intermediary and the user who provides the content. To resolve this impasse, the Regulation remits the liability of the possible breach of the contract if the removal meets the following conditions:
The intermediaries shall not held liable for breach of the contract between the content providers after they remove the stored content for the requirement of the notice and take down liability model if they meet one of the two conditions:
(1) The service provider notifies the content provider in three days after taking down the specific network content;
(2) The service provider recovers the specific network content that has been taken down in seven days after knowing of the withdrawal of the notification by the right owner or of a ruling by the people's court that the specific network content is not infringing or illegal.
The Regulation does not clearly state the method of the notification. It might be a notice through the announcement attached to the title of the content which has to be removed. It also might be the point-to-point notification to the content provider, such as a specific email. The former is much easier, but the later might pose difficulties when the content provider could not be found or reached.
Another question is the duty of recovery. Sometimes, the litigation of the infringement case takes a long time, perhaps as much as two or three years, causing delay and excessive cost. Does it mean that the intermediary has to store the content in question for such long time for the possible recovery? And can the two conditions be pre-empted by the contract between the intermediary and the users? Are the conditions mandatory so that no party can change them by the contract? The Regulation does not provide the parties with discretion to replace the conditions by their special agreement. A plausible explanation could be that most of the contracts are standard contracts and the intermediaries have more power of bargain than the users. If such discretion exits, the requirement of the conditions will almost have no effect.
D. The Duty of Disclosing the Related User's Data
The intermediaries have the duty to provide their user's data for the judiciary purpose. The Regulation requires the intermediaries to provide their user's registration data for the purpose of litigation or preliminary injunction procedure. The third party cannot directly ask the information from the intermediaries. He should apply to the court for subpoena to the intermediaries.
The right owner or exclusive licensee may, for the purpose of litigation or application for provisional measures, apply to the people's court for requesting the network service provider to offer necessary network registration information. The network service provider who refuses to offer such information without reasonable ground shall bear corresponding legal liabilities.
By what procedure should the right owner or exclusive licensee apply to the court for the registration information? The procedure starts before the plaintiff discovers the potential defendant- the infringer. According to the Civil Procedure Law and the Copyright Law of China, the similar preliminary procedure can be started after the definite defendant has been fixed. There is a necessity for the relevant laws to clarify the detail procedure.
V. Conclusion
The Regulation reflects the current policy of the Chinese administrative government concerning the communication right of the copyright holders and related issues.
Firstly, the Regulation lists the limits to the communication right through the fair use exemption and the statutory license. It does not only list the current fair uses exemptions and statutory licenses in the Copyright Law of China, but it also adds some new items.
Secondly, the Regulation provides the conditions of the statutory circumvention for the technological measures. The statutory circumvention reflects the balance of copyright holders and fair users in the digital environment. It means that China still maintains the existing copyright law framework, instead of the Para copyright paradigm adopted by the DMCA.
Thirdly, the notice and take down liability of the information network intermediaries is adopted in the Regulation. The notice and take down liability has been developed in the USA and in the EU. for some years and has been proven practicable. It has also been adopted in the judiciary practice by the Chinese courts in the past years.
The Regulation also raises several new questions that have been discussed in the above context: How does the law draw a clear line between the good and the bad circumvention service providers? Is it suitable that all the technological measures with attacking features are prohibited? What liability should the terminal consumers hold in the client-client model networks, such as peer-to-peer networks without a central server? The Regulation is still undergoing revisions as it waits for the result of the public consultation. The final version of the Regulation is still uncertain. But at least, the draft of the Regulation reflects the new policy of the Chinese government concerning the copyright issues in the digital era after some years of sound thinking. It is almost certain that the China's attitude will not change in the near future.
References:
The Draft of Regulations on the Protection of the Right of Communication through Information Network; English version of the Regulation available at:
http://www.ncac.gov.cn/servlet/servlet.info.InfoTopicServlet?action=topiclist&id=30
The Judicial Interpretation of the Supreme Court of the Application of the Laws in the Trial of the Cases Related to the Copyrights of the Information Network Works; Chinese version available at:
http://www.ncac.gov.cn/servlet/servlet.info.NatLawServlet?action=list&id=366
The Copyright Law of China; English version available at:
http://www.chinaiprlaw..com/english/laws/laws10.htm;
Directive on Electronic Commerce;
http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=32000L0031&model=guichett;
The Digital Millennium Copyright Act;
http://www.copyright.gov/legislation/dmca.pdf
The Judicial Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Laws in Trials of Cases Involving Copyright Disputes over Computer Networks,
http://www.chinaitlaw.org/?p1=print&p2=060115231838.
1 Wu, Weiguang, lecturer Beijing, China. B.E of Tsinghua University, 1995; J.M of Law School of Tsinghua University, 1998; Diploma of European Law, EU-China Legal and Judicial Program, 2001; L.L.M of Southern Methodist University Law School, 2004. Contact information: Telephone: 8610-62773489, Fax: 8610-62786153, Email: lawwwg@tsinghua.edu.cn. Post address: School of Law, Tsinghua University, Beijing, China. Zip code: 100084
2 The amended Copyright Law of China was promulgated to comply with the WTO's requirements of the Trade-Related Aspects Intellectual Property Rights (TRIPS) Agreement when China joined the WTO.
3 The right of the information communication sometimes is also translated into the right of the information dissemination in the English version of the legal documents. The paper unified use the right of the information communication because the phrase is used by the National Copyright Administration in its English version of the draft of the Regulation.
4 Copyright Law of China, Article 10 (12) "The term "copyright" shall include the following personality rights and property rights: .....(12) the right of communication of information on networks, that is, the right to communicate to the public a work, by wire or wireless means in such a way that members of the public may access these works from a place and at a time individually chosen by them;..."
5 The English version of the Judicial Interpretation is available at : http://www.chinaitlaw.org/?p1=print&p2=060115231838..
6 Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Laws in Trials of Cases Involving Copyright Disputes over Computer Networks, Article 4.
7 Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Laws in Trials of Cases Involving Copyright Disputes over Computer Networks, Article 5.
8 Copyright Law of China, Article 58 "Regulations for the protection of computer software and of the right of information network dissemination shall be established separately by the State Council."
9 The Copyright Law of China, Article 10 (12).
10 The Ministry of Information of China has announced that TD-SCDMA is the Chinese technology standard of the 3rd generation (3 G) of the mobile communication recently. 3G means users can transfer multi media information by the mobile phones. It is predicted that it will be the next major networks similar to the Internet.
11 Derived from Article 10 of the Copyright Law of China
12 The Draft of the Regulations on the Protection of the Right of Communication through Information Network, Article 3.
13 The Copyright Law of China, Article 22 " In the following cases, a work may be exploited without the permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work are mentioned and the other rights enjoyed by the copyright owner by virtue of this Law are not infringed upon:
(1) Use of a published work for the purposes of the user's own private study, research or self-entertainment;
(2) Appropriate quotation from a published work in one's own work for the purposes of introduction of, or comment on, a work, or demonstration of a point;
(3) Inevitable reappearance or citation of a published work in newspapers, periodicals, radio stations, television stations or other media for the purpose of reporting current events;
(4) Reprinting by newspapers or periodicals or other media, or rebroadcasting by radio stations or television stations or other media, of the current event articles on the issues of politics, economy and religion, which have been published by other newspapers, periodicals, radio stations or television stations or other media, except where the author has declared that publication or broadcasting is not permitted;
(5) Publication in newspapers or periodicals or other media, or broadcasting by radio stations or television stations or other media, of a speech delivered at a public assembly, except where the author has declared that publication or broadcasting is not permitted;
(6) Translation or reproduction, in a small quality of copies, of a published work for use by teachers or scientific researchers in classroom teaching or scientific research, provided that the translation or reproduction is not published or distributed;
(7) Use of a published work by a State organ within the reasonable scope for the purpose of fulfilling its official duties;
(8) Reproduction of a work in its collections by a library, archive, memorial hall, museum, art gallery or similar institution, for the purpose of the display or preservation of a copy of the work;
(9) Free of charge performance of a published work, that is, with respect to the performance, neither fees are charged from the public nor the remuneration is paid to the performers;
(10) Copying, drawing, photographing, or video recording of an artistic work located or on display in an outdoor public place;
(11) Translation of a work published by a Chinese citizen, legal entity or organization, which is created in the Han language (Chinese), into a minority nationality language for publication and distribution within the country;
(12) Translation of a published work into Braille and publication of the work so translated;
The provisions in the preceding paragraph shall be applicable to the limitations on the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations."
14 The Draft of the Regulations on the Protection of the Right of Communication through Information Network, Article 4.
15 The Copyright Law of China, Article 23 "Anyone who compiles or publishes textbooks for the purpose of implementing the nine-year compulsory education or State education planning may, without the permission from the copyright owner, except that the author has declared in advance that the exploitation is not permitted, compile published fragments of works, short written works or musical works, a single work of fine art, or photographic works into the textbooks, however, he shall pay the remuneration as provided, mention the name of the author and the title of the work, and shall not infringe upon other rights which the copyright owner shall enjoy in accordance with this Law.
The provisions in the preceding paragraph shall be applicable to the limitations on the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations."
16 The Copyright Law of China, Article 32 "Except where the copyright owner has declared that reprinting or excerpting is not permitted, other newspaper or periodical publishers may, after the publication of the work by a newspaper or periodical, reprint the work or print an abstract of it or print it as reference material, but such other publishers shall pay remuneration to the copyright owner as provided in regulations."
17 The Copyright Law of China, Article 39 "A producer of a sound recording who, for the production of a sound recording, exploits a musical work which has been lawfully recorded as a sound recording by another, does not need to obtain permission from, but shall, as provided in regulations, pay remuneration to the copyright owner; such work shall not be exploited where the copyright owner has declared that such exploitation is not permitted."
18 The Copyright Law of China, Article 42 "A radio station or television station that broadcasts a published work created by another does not need to obtain permission from, but shall pay remuneration to the copyright owner.
Article 43 A radio station or television station that broadcasts a published sound recording does not need to obtain permission from, but shall pay remuneration to the copyright owner, unless the parties concerned have agreed otherwise. The specific measures shall be provided by the State Council."
19 The Draft of the Regulations on the Protection of the Right of Communication through Information Network, Article 5.
20 The Draft of the Regulations on the Protection of the Right of Communication through Information Network, Article 6.
21 The Draft of the Regulations on the Protection of the Right of Communication through Information Network, Article 7.
22 Copyright Law of China, Article 47 (6) " He who commits any of the following acts of infringement shall bear the civil liability for such remedies as ceasing the infringements, eliminating the effects of the act, making a public apology or paying compensation for damages, depending on the circumstances; where he damages public interests at the same time, the copyright administration department may order him to cease the act of tort, may confiscate his illegal gains, confiscate and destroy the reproductions of infringement, and impose a fine on him; if the case is serious, the copyright administration department may also confiscate the materials, instruments and equipment, etc. mainly used to make the reproductions of infringement; where his act has constituted a crime, he shall be investigated for criminal liabilities in accordance with the law: (6) without the permission from the copyright owner or obligee related to the copyright, intentionally avoiding or destroying the technical measures taken by the obligee on his works, sound recordings or video recordings, etc. to protect the copyright or the rights related to the copyright, except where otherwise provided in laws or administrative regulations."
23 The Draft of the Regulations on the Protection of the Right of Communication through Information Network, Article 2 (2).
24 The Draft of the Regulations on the Protection of the Right of Communication through Information Network, Article 9.
25 For example: the Digital Millennium Copyright Act, section 1201 (2).
26 The Judicial Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Laws in Trials of Cases Involving Copyright Disputes over Computer Networks, 2003, Article 7.
27 The Draft of the Regulations on the Protection of the Right of Communication through Information Network, Article 9 (1).
28 The Draft of the Regulations on the Protection of the Right of Communication through Information Network, Article 10.
29 The news of the case available at the Chinese version of the Jiang Xi Province government website: http://www.jxipo.gov.cn/BBS/b3.htm.
30 Directive on Electronic Commerce, Article 12.
31 The Draft of Regulations on the Protection of the Right of Communication through Information Network, Article 14.
32 The Copyright Law of China, Article 49 "Where a copyright owner or obligee related to copyright has evidence to prove that another is committing or is going to commit an act infringing upon his right, and that his lawful rights and interests will suffer the damage which is difficult to be remedied if he does not stop it in time, he may, before bringing a lawsuit, apply to the people's court for an order to cease the relevant acts or for property preservation.
The people's court shall handle the application in the preceding paragraph in accordance with Article 93 through Article 96 and Article 99 of the Civil Procedure Law of the People's Republic of China."
33 The Draft of Regulations on the Protection of the Right of Communication through Information Network, Article 15.
34 The Draft of Regulations on the Protection of the Right of Communication through Information Network, Article 19.
35 The Draft of Regulations on the Protection of the Right of Communication through Information Network, Article 16.
36 The Draft of Regulations on the Protection of the Right of Communication through Information Network, Article 17.