--- An overview of the "International Forum on the Centennial of Chinese Copyright Legislation"
The year of 2010 had a special significance on the world’s IP development. It not only marked the tercentenary of Statute of Anne - the first copyright law of the world, but also the centenary of the Copyright Code of Great Qing Dynasty. Meanwhile, it was the 20th anniversary of China’s frst Copyright Law and the 30th anniversary of China’s accession to the World Intellectual Property Organization.
In order to summarize the historical experience of the institution of copyright law, to build an innovative country and to promote the harmonious development of society, the International Forum on the Centennial of Chinese Copyright Legislation was held in Beijing on October 14~15, 2010. Guided by the General Administration of Press, the Publication of China (GAPP) and the National Copyright Administration of China (NCAC), it was hosted by the China Law Society, the Copyright Society of China and Renmin University of China and organized by the Intellectual Property Academy of Renmin University of China, the National Copyright Trade Center of RUC and the Education Committee of Copyright Society of China.
The forum attracted more than 400 representatives from more than ten countries and areas in Asia, Europe, North America and Oceania. At the opening ceremony, Xu Jialu, the director of the organizing committee and former vice chairman of the Standing Committee of the National People’s Congress (NPC), delivered a welcome and gave opening remarks. Mr. Francis Gurry, the director-general of the World Intellectual Property Organization presented a letter of congratulations and video message.
The forum mainly discussed the history, development and international trend of copyright legislation and practice and new technology’s challenge towards copyright. It also involved contemporary issues, such as the judicial protection of copyright - civil and criminal enforcement; the collective management of copyright and the development of the creative industry.
Retrospect and prospect
Former vice chairman of the NPC Xu Jialu stated that “The Copyright Code of Great Qing Dynasty issued one hundred years ago shows that the Chinese government had realized the importance of IP law. After the founding of New China, especially in the past 30 years, more attention has been paid on the establishment of private rights as well as public rights. The drafting, revising and promulgating of China’s Copyright Law has protected the creativity of the Chinese nation from a legislative perspective. It’s widely understood that with the rapid development in science and technology and the globalization of economics, the protection of IP has promoted the progress of society. The Chinese government perseveres in the propagation of IP knowledge and IP awareness; campaigns to combat piracy and other large-scale management campaigns are frequently held; and the courts at various levels have an established IP division. All these measures display the Chinese government’s sincerity in enforcing IP law and their commitment in establishing a legalized country.”
Liu Binjie, minister of GAPP and the NCA, gave a high appraisal on the two landmark copyright laws, that is, the Copyright Code of Great Qing Dynasty and the Copyright Law. In 1910, the Copyright Code of Great Qing Dynasty, marking the birth of modern copyright laws featuring a statutory form, a clear layout and a professional illustration. It implements the inception of western IP laws to China’s copyright law in a timely and comprehensive manner and thus opens a new era for the development of China’s copyright law. The legislating spirit and concept reflected in the Copyright Code of Great Qing Dynasty has profoundly impacted the revision of the Copyright Law in different historical periods. It can be said that the Copyright Code of Great Qing Dynasty is a milestone in the history of copyright law legislation. When looking back to the centennial history, we will find the promulgation of the Copyright Code of Great Qing Dynasty is still meaningful in improving the copyright law system even in the 21st century. Since 1970s, China’s reform and opening up policy has brought the legislation of copyright law into the agenda. After 11 years of practice, in September 1990, New China’s first copyright law - Copyright Law of People’s Republic of China was passed by the NPC Standing Committee, opening a new chapter of copyright protection in the new era.
Liu Binjie also pointed out that “IPR protection has become the basic consensus of the world. Although the copyright system of China has much room for improvement, the Chinese government adheres to a strategic vision featuring a scientific concept of development and aimed at the establishment of an innovative country. The government formulated the Outline of National Intellectual Property Strategy as the basic national strategy. It proves that in the new historical period the Chinese government will vigorously implement the copyright strategy to increase copyright protection, thus enhancing the reform and opening up, establishing an innovative country, pushing forward a sound and fast development and promoting the development and prosperity of socialist culture.”
Liu Chuntian, the professor and dean of the Intellectual Property Academy, Renmin University of China, made a special presentation themed with “several reflections on the centurial practice of Chinese copyright law.” He believes that ideological debates concerned with the start-up and reconstruction of copyright law are thought-provoking. The late Qing dynasty and the new China, especially during the period of reform and opening-up, are two major historical eras which experienced four great debates. During the late Qing dynasty, Liang Qichao and Cai Yuanpei, both as contemporary elites, contributed a lot to the stipulation of bilateral treaties which contained copyright terms. They persisted on the reforming and never surrendered to the darkness all for China’s liberation, the nation’s development and prosperity. When looking into the historical documents, we can find that our forefathers had deeply discussed the copyright issues. Their excellent debates, appropriate expressions, professional illustration and lofty visions make the contemporary readers gasp in admiration. In contrast, a similar debate over the reconstruction of copyright institution was targeted at a rather low level.
Liu Chuntian further added, “The basic relationship pattern concerned with the foreign copyright and the Chinese copyright over the past one hundred years has been determining the tendency of China’s copyright law. What is the basic pattern? The science and technology as a decisive factor play a major role in the society and thus influence the legal status. Technically speaking, the Chinese people have absorbed advanced science and technologies from western countries; they also absorbed their advanced legal thoughts, which are embodied by the stipulation and revision of China’s Copyright Law. From signing bilateral agreements with Britain, Japan and America in 1903 to 1979, we found that though differing in form, the legislative principles and legislative purposes of China are surprisingly similar to western countries. The present pattern is that by bringing in advanced theories and absorbing advanced technologies and experiences, and combining them with practices, China is embarking on the road of building socialism with Chinese characteristics. Looking back to the 30 years’ rapid development, we should not forget the fact that we will be exploited and bullied if we fall behind. In short, China’s copyright law has an age difference of one hundred years with the international copyright law. If China’s copyright law was in the level of printing technology, the United States’ would have reached at the digital technology era. Therefore, the future of copyright law needs to conduct a comprehensive amendment to leap into modernization. I personally think that if China wants to make progress, we need to keep abreast with the advanced countries and learn the advanced laws. ” Ji Baocheng, president of the Renmin University of China, also expressed that “Starting from the end of Qing Dynasty, China’s IP system has lasted for a century. It is necessary to analyze, summarize and re-think the IP system to serve the future development and practice.”
Dual protection system
Yan Xiaohong, deputy minister of GAPP and the NCA, delivered a speech entitled “Enforcement of Chinese Copyright System and its Perspective,” saying that based on the philosophical level of IP issues in the framework of international law we should re-think the system’s construction. With the general revision of copyright law, copyright protection in China will achieve fundamental improvement. Various achievements in copyright, as an important factor of production and a kind of wealth resource, play an important role in the promotion of culture and the development of related industries. In addition, the level of citizens’ awareness of intellectual property rights will accordingly increase.
“Copyright protection not only relies on the administrative enforcement, but also on the judicial support,” YanXiaohong added, “China’s copyright institution adopts a dual protection system of administrative implementation and judicial implementation, mainly due to the special copyright circumstances of twenty years ago. As the data shows, 90% of copyright disputes are resolved through administrative enforcement and administrative mediation, as administrative enforcement provides a fast, low-cost advantage. In a special historical period, such an approach is in line with China’s reality. But in the long run, the enforcement in copyright protection should rely on the judicial implementation.”
Yan Xiaohong illustrated the outcomes of copyright protection by listing numerous detailed data, “On the whole, the implementation of copyright institution is in a good state. The government has invested extensive administrative resources to combat piracy, e.g. setting up a fund reward. The effectiveness is significant. From 2000 to 2009, the enforcement department had handled 8.3 million cases related to copyright infringement, which involved about 710 million pirated products. Since 2005, the State Copyright Bureau, jointly supported by the Ministry of Public Security and the Ministry of Industry and Information Technology, has continuously carried out special campaigns on combating online piracy. The court investigated 2,621 online infringement cases and closed down 1,108 websites according to the law. 91 of the total lawsuits were transferred to the judicial department. In 2009, the courts at various levels received a total of more than 1,500 civil cases and 86 criminal cases. The investigation on piracy has an impact at the international level.”
“Of course, we must clearly understand that the level of copyright protection in China, in particular, the public awareness of copyright protection, has a big gap with the developed countries. However, we also advocate using historical perspective to look at this issue. European and American developed countries have also experienced an immaturity-to-maturity process. Therefore, the blind accusation is meaningless, and we should not look upon China’s copyright protection from an advanced-stage and ultra-realistic perspective. It is impossible for China to meet United States’ level in copyright institution. It is not that we don’t want to achieve that level but that we cannot achieve it at present. To strengthen copyright protection and enhance the fight against piracy is still the most important work. In this regard, we should summarize good practices and improve the deficiency in conjunction with the Copyright Law. In short, our goal is to improve administrative efficiency and to make a fundamental shift on copyright piracy,” Yan Xiaohong said.
Xi Xiaoming, deputy Chief Justice of SPC, high-lightened the situation of China’s judicial protection of copyright as follows:
First, by fully exercising adjudicatory function, the government provides a full range of protection on copyright. In recent years, the cases handled by the Supreme People’s Court increase year by year. In 2009 alone, the local courts of first instance investigated 15,300 civil cases, with an increase of 40%.
Second, the judicial protection of copyright continues to cover a larger field and target at a higher level. Infringing forms are being transferred from paper to network.
Third, the judicial protection of copyright is under improvement. Since the implementation of the Copyright Law, the Supreme People’s Court has issued judicial interpretations on copyright, stipulating laws applicable to new types of cases, refining the copyright law itself, enhancing the operability and maintaining the unity of the legal system. For example, in order to effectively deal with the new challenges raised by the development of the Internet, the Supreme Court applies the Copyright Law to the adjudication of network copyright trials.
Fourth, since 1980s, copyright lawsuits have been heard by civil courts. With the establishment of a market economy and the deepening of reform and opening up, the Beijing court set up a special intellectual property tribunal to meet the demands. In October 1996, the Supreme People’s Court established the Intellectual Property division. As of October 2008, the district courts at various levels have set up 298 IP tribunals and 84 IP collegiate benches. In 2009, there were 60,000 civil IP cases, among which 15,000 were related to copyright infringement. It proves that China is attaching more attention on copyright trials.
As pointed by Xu Jialu, the respect for IP is not only a kind of protection of private rights, but also a kind of protection of public rights. Under the dual protection, the Chinese people’s creativity will usher in the most vibrant development. However, whether in terms of theory, legislation, reform or practice, China’s copyright law has a long way to go.
Translated by Sarah Luo
