Taiwan Dead Serious About Copyright On Funeral Music

Ralph Jennings reported for the Voice of America about two lawsuits of Taiwanese studios against funeral houses in Taichung. Mr Jennings writes: "Taiwanese funeral homes play pre-recorded music at traditional ceremonies, some of which also involve live bands and street parades to honor the dead." Read more here.

Lin Shu-hui previously wrote for the Taipei Times: "Music and Buddhist chants during funerals are usually provided by the funeral homes, mostly using a gadget called the Electric Buddhism Sutra Player or music CDs." Read more here.

A life band playing during a traditional ceremony can be seen as a public performance.
Article 7bis Taiwan's Copyright Law 2008: A performance by a performer of a pre-existing work or folklore shall be protected as an independent work. Protection of a performance shall not affect the copyright in the pre-existing work.
And relating to the CDs: according to article 5 (8) Taiwan's Copyright Law 2008, sound recordings are copyrighted works.

What about Buddhist chants that are played via a CD or an Electric Buddhism Sutra Player, which is a device that plays a sutra (teaching of the Buddha) continuously by going in a loop, and is often given away for free at Buddhist temples. Even thought the music and lyrics are not copyrighted (read more about Buddhism in relation to IP in Zen and the Art of Intellectual Property), the performance of the work is (article 7bis Taiwan's Copyright Law 2008).  

According to Wang Mei-hua, director general of the Taiwan government’s Intellectual Property Office these conflicts between studios and funeral companies signal that it is difficult to find a right compensation. She also pointed out that to collect copyright fees at the popular Karaoke bars is complex in Taiwan, because the island has five (I count 6) copyright collecting societies: 

• Music Copyright Association of Taiwan (MCAT); 
• Music Copyright Intermediary Society of Chinese Taipei (MUST); 
• Music Copyright Intermediary Society of Taiwan (TMCS); 
• Audiovisual Music Copyright Owner Association (AMCO); 
• Association of Recording Copyright Owners of ROC (ARCO); 
• Recording Copyright & Publications Administrative Society of Chinese Taipei (RPAT).  

This list I found in the interesting article that Professor Kung-Chung Liu wrote how the music CD business in Taiwan withered away and the online music industry in Taiwan flourished, and the rise and fall of P2P file-sharing services and how the copyright legislation responded to these developments. Read here.

Professor Kung-Chung Liu, who last year gave a speech at HKU on Cross-Strait Cooperation Agreement on Intellectual Property Rights (IPR) Protection, see here, is also a co-author of the excellent book called Intellectual Property Law in Taiwan which is edited by Christopher Heath, and part of the Max Planck Series on Asian Intellectual Property Law published by Kluwer Law International.

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Starbucks Is Coming From Venus, Copycats from St. Mars

Jamon Yerger is founder of Southern Perspective Shenzhen ("China Law Reference, doing it right the first time"), a consulting company in the bustling city of Shenzhen that provides advice on a range of business functions; the majority of which deal with manufacturing in China and legal protection for foreign companies engaged in supply chain activities. Mr Yerger wanted to go to a Starbucks. And he did not mean Starbucks in the generic sense, as some people already use it for any place where you can buy a daily doses of caffeine. Although "colors, script, umbrellas and even the glass awning over the doors" were similar to his old Starbucks, he found out, to his surprise, it was not coffee shop of this also in China pretty well known brand (I am not referring to the legal term well known mark. This would be the case if it is well known in China, and acknowledged as such by China). They only used a different name: St. Mars. So the place had the look and feel of Starbucks. IP Dragon agrees with Mr Yerger's opinion that St. Mars is "clearly hitchhiking" on the Starbucks brand. So what could it mean in legalese?

The question is whether Starbucks registered the name Starbucks Coffee in China. If you are at the trademark search site, sponsored by the Trademark Office of the State Administration for Industry and Commerce (first select "Search of identical or similar TMs", then fill in class 30 for non-alcoholic beverages), here, you will find that Starbucks has several trademarks. You could then argue that Starbucks Coffee and St Mars Coffee, using the identical font, and the identical colour, is confusingly similar and infringes Starbucks trademark. Maybe Starbucks separately trademarked the colour, which would lead to trademark infringement. The design of parts of the place could be patented in China. And if the copycat cannot be stopped by trademark law or design patents, copyright law might be a place of last resort. China is coming up with a Tort Law (December 5th, was the deadline for submission of comments), see here, and maybe the legal figure of passing off will be introduced, which I doubt, since it is more of a Common Law legal figure. Anyways read Mr Yerger's article, see the pictures of the two places and decide for yourself here.

Read also Starbucks versus Xingbake here.

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Taiwan's Three Strikes Sanction Less Strict Than French Equivalent

In the rebound the French Assemblée national adopted the Hadopi law today, which includes a "three strikes" sanction for file sharers of pirated works: repeat offenders will have their internet connection cut off after the third offense, see the France24.fr video about it here (in French) or here (in English). Besides France, Taiwan's Executive Yuan has proposed an amendment to its Copyright Law (ISP liability limitation bill) which includes this three strikes sanction. The bill completed the third reading by the Legislative Yuan and will be promulgated by the Presidential Office in the near future. ISPs will be exempt from both civil liability in case of alleged copyright infringement to the copyright owner and contractual liability to the alleged user. The price for this exemption is that ISPs should abide the notice-and-take down procedures for alleged infringing content and apply the three strikes system. 

However, the Taiwanese version of the three strike system seems at first sight less strict than its French equivalent: 

Margaret Chen, Deputy Director General of Taiwan's Intellectual Property Office (TIPO) said to reporters: ".., there are lots of ways to restrict Internet access besides cutting it off entirely." Read blog about it by Ben Challis at  'At last ...the 1709 Copyright Blog'. 

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AmCham Gives Chinese Government Recommendations About Copyright Law, Trademark Law and Patent Law

American Chamber of Commerce in the People's Republic of China (AmCham-China) issued the 'American Business in China White Paper 2009' last month. Pages 45-48 pdf, with pagenumbers 88-94 are about intellectual property rights protection. Read here.

AmCham-China's recommendations to the Chinese government are:

• "Continue the pioneering efforts of the US Embassy and government in recent years, with greater internal coordination and cooperation with industry.
• Amend the Chinese Patent law to address AmCham-China concerns, as specified in this chapter (IP Dragon: Lacks patentability from computer program/software; left out an earlier draft provision allowing employers and inventors to define remuneration for employment invention through contracts; requires the disclosure of genetic resource for patentability; does not have criteria of inventiveness at the same levels for utility model patents and invention patents; does not compensate for regulatory approval process delays in the duration of drug patents; does not set forth conditions for granting compulsory license in sufficiently detailed language; and is unclear and possibly overly broad in defining what constitutes “patent abuse,” its relationship with the Anti-monopoly Law, and “working” requirements for patents.
• Fully support and follow through with the efforts of the trademark office in eliminating the examination backlog. Retain the Trademark Office examination of trademark applications on relative grounds.
• Establish new public-private partnerships to duplicate the effective IPR infringement prevention during the Olympics.
• Resist establishing IP policies in violation of WTO rules, which unduly favor Chinese domestic companies over foreign companies.
• Amend the 2006 Internet Regulations and Copyright Law to correspond with international norms and comply with WIPO treaties.
• Enable websites and ISPs to work with rightholders and adopt preventive measures such as filtering and automated take-down.
• Establish a clear and transparent government structure for administrative enforcement, and adopt an inter-departmental enforcement platform."
  

I do not understand AmCham-China's recommendation to change China's patent law so that it has criteria of inventiveness at the same levels for utility model patents and invention patents. A utility model patent is something completely different from an invention patent: Utility model patents are meant to protect innovations and are not examined at the application stage, such as an invention patent, and is only examined in case it is enforced. Besides, the protection term for a utililty patent is 10 years, while the term for an invention patent is 20 years. Do you know the ratio of this recommendation?

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Consumers International Says UK Has Worse Copyright Regime Than China... Nonsense Says Sharkey

Thank goodness it is Friday. Consumers International did a survey on the intellectual property laws and enforcement practices of Argentina, Australia, Brazil, Chile, China, India, Indonesia, Israel, Malaysia, Pakistan, Philippines, South Korea, Spain, Thailand, the UK and the US, see here. 

According to BBC News Consumers International decided that "UK law was least effective in balancing the interests of rights holders against those of consumers." Read BBC News "UK 'has the worst copyright laws'", here. 

Feargal Sharkey, yes the great singer of 'A good heart' and CEO of UK Music strongly opposes this view: "In particular, claims that Chinese and Indian consumers (and media) have greater freedoms to access copyrighted works than UK citizens are as ludicrous as they are offensive."

Read more on MusicWeek, here.

The simple fact that China blocked the YouTube video of 'A Good Heart' below suggests Sharkey is right. This songs' lyrics are appropriate and include:

"I hear a lot of stories
I suppose they could be true
All about intellectual property and what it can do to you
Highest risk of striking out
The risk of getting hurt
And still, I have so much to learn"

Ok, ok, I changed a word or two; listen to the original lyrics below and enjoy your weekend. 

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Japanese Companies Can Register Chinese Copyights in Japan: save 50 percent time

Copyright is an automatic right, which arises when it is created. (because of the 'no formalities provision' of the article 5 (2) Berne Convention). However you can register your copyright with China's National Copyright Administration, which can be helpful to establish prima face evidence, for example ownership. If companies outside China opted for registering their copyrights, they had to do so in Beijing. Until September 2008, there is a possibility for Japanese companies, to register Chinese copyrights in Tokyo.

".. Japanese companies jointly invested to establish the Golden Bridge Co. in September in Minato Ward, Tokyo," according to the Yomiuri Shimbun. Several Chinese lawyers will be dispatched at the Golden Bridge institute, to register and applications for lawsuits and mediation related to copyright in China, which will decrease the time needed for Japanese companies to register their Chinese copyrights from one month to two weeks.

In the future the institute will also register Chinese trademark rights and design patents.

Read the Yomiuri Shimbun article here.

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EU Experience and Practice Must Show China The Way Concerning IPR Protection At Exhibitions

It is crucial for companies to showcase their new products to the world at trade fairs and exhibitions. Hower, these places welcome potential customers but also IPR infringers.

To make the bonafide exhibitors less vulnerable to IPR infringements and deal with the IPR infringers that also have come to the trade fairs, the IPR2 (EU-China Project on Protecting Intellectual Property Rights, 10.85 million euro provided by the EU and 5.425 million euro by China) has written a 36 page study that must show the way to the Department of Treaty and Law of the Ministry of Commerce of China on 'How to Protect Your Intellectual Property at Trade Fairs', based on the experience and practice of France, Germany, Italy, the Netherlands, Spain, Switzerland and the United Kingdom, see pdf here.

Negative peculiarities in IPR protection during exhibitions mentioned in the study are:

• Timing; because of the short period it can be hard to execute an ex parte order;
• There can be a lack of availability of experts;
• Risk of double prejudice for both the IPR owner and alleged infringer.

The study comes up with the following positive peculiarities in IPR protection during exhibitions:

• Move evidence available;
• An extra jurisdiction option;
• Deterring effect, because of the public perception of an intervention.

The study was written by:
Jean-Frédéric Gaultier (Clifford Chance, France);
Reinhardt Schuster (Bardehle Pragenberg Dost Altenburg Geissler, Germany)
Giovanni Casucci (Casucci Studio Legale, Italy) who also coordinated the study;
Montserrat Lopez-Bellosta (Clifford Chance, Spain);
Carlos Rivadulla (Clifford Chance, Spain);
Johannes Jabocus Brinkhof (Brinkhof, the Netherlands);
Philippe Azzola ( Philippe P. Azzola, Switzerland).

A condensed version of the study was provided to some 200 companies in a training run by the Ministry of Commerce at China's most important trade fair, 104th China Import and Export Fair in Guangzhou, Guangdong Province (15-19 Oct; 24-28 Oct and 2-6 Nov 2008).

The report came a year after a EU-China Seminar on the Protection of IPR at Trade Fairs in Beijing and Shenzhen in November 2007. IPR2 supported a study tour by MOFCOM officials to Paris, France; Berlin, Hannover, Germany and Milan, Italy in November 2008 to assess the methods and practices employed at several of the largest European trade fairs. Read more about the study tour here.

The Protection Measures for Intellectual Property Rights during Exhibitions of the People's Republic of China, formulated according to the Foreign Trade Law of the PR China, Patent Law of the PR China, Trademark Law of the PR China, Copyright Law of the PR China and relevant administrative regulations, however, is already in force since 2006, see here.

UPDATE: The powerpoint presentation 'Stakeholder briefing www.ipr2.org, March 6, 2009, can be seen here.

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Transitional Review Mechanism of China’s TRIPs Implementations Q&A Copyright Law

When China became the 143rd Member of the WTO on December 2001, it automatically entered into TRIPs, which is an integral part of the WTO Agreement. Upon accession to the WTO, China agreed (see Section 18 of the Protocol on the Accession of the People’s Republic of China WT/L/432) that the first eight years its commitments to align its IPR laws will be reviewed during an annual Transitional Review Mechanism (TRM) by the TRIPs Council. This means that the last of such annual reviews will be held in 2009. Thereafter there will be a final review in year 10 (2011) or at an earlier date decided by the General Council.
According the TRM: “China shall provide relevant information, including information specified in Annex 1A, to each subsidiary body in advance of the review.”

The Secretariat of the WTO received communications with questions addressed to the People's Republic of China from Japan on 6 October 2008 (IP/C/W/518), the United States on 9 October 2008 (IP/C/W/520), the European Communities on 13 October 2008 (IP/C/W/521), and Canada on 20 October 2008 (IP/C/W/524). The Reply from China (IP/C/W/525) came on 21 October 2008.

In a Q&A series about the communication between the United States/Japan/European Communities on the one hand and the People's Republic of China on the other I will deal with the questions and answers about the following subjects: copyright, trademarks and geographical indications, patent law revisions, enforcement, plant variety protection, anti-monopoly law, undisclosed information/protection of confidentional information and government policy.

We start the series with Questions about China's Copyright Law US/Japan/EU/Canada versus the People's Republic of China:

Canada had no questions regarding copyright.

The US asked whether China has explained (and translated in accordance with paragraph 334 Working Party Report) article 4 Copyright Law, Amended 2001 (and I guess if they didn’t that the US would like to get this interpretation): “Works the publication or distribution of which is prohibited by law shall not be protected by this Law. Copyright owners, in exercising their copyright, shall not violate the Constitution or laws or prejudice the public interests.”

The US is probably most interested in the interpretation of the first sentence which declares censored works not protected under the copyright law. It is dubious whether this provision is in compliance to the Berne Convention.

By reading the questions it becomes clear that copyright piracy via the internet is becoming an ever more crucial subject in China. The US requests a description of the steps necessary to take down infringing content or links after receiving notice from a recognised right holders’ representative. What are the remedies available against internet service providers who do not engage in immediate takedowns and whether such remedies have been imposed to date. Remedies available to suspend or terminate the accounts of repeat infringers. Legal steps necessary for right holders or their representatives to obtain information about direct infringers. Give examples of vases where the above referenced legal procedures, including specific efforts taken, have taken place. Whether the Regulations for the Protection of the Right of Communication through Information Network is also covering ‘the right of making available’ on other forms of transmission in an online environment such as real-time and P2P streaming. Does the criminal prosecution/conviction thresholds established in the judicial interpretations of 2004 and 2007 apply for internet copy piracy too?

Picture by Kai Hendry

US asks China to provide information on the number of prosecutions for each provision of law under which criminal copyright infringement, including via the internet, for 2007 and the first six months of 2008. Please provide the following information: When the criminal complaint was filed; Which court; Identities of the defendants; Provisions of law alleged to have been violated; Current disposition; If concluded, whether the case resulted in acquittal or conviction (and the sentence, suspended or not; Involved foreign work.

US asks China whether the software end-user piracy is subject to criminal penalties, if so under what circumstances and pursuant to which laws. US and Japan ask China when it will amend its copyright law. And what are the steps involved. Can foreign governments and other stakeholders provide input and comment on the drafts and if so at what stages.

Japan asks China to provide it with a schedule for the drafting of the regulation on royalty regulation for broadcasting and television organizations, which article 43 Copyright Law stipulates that the State Council is to establish. Article 43 Copyright: “A radio station or television station that broadcasts a published sound recording, does not need a permission from, but shall pay remuneration to, the copyright owner, except that the interested parties have agreed otherwise. The specific procedures for treating the matter shall be established by the State Council.”

If the Legislative Affairs Office of the State Council is still in process of establishing the regulation, please provide is with the details of the progress. Japan writes that the collective management societies in China are not able to distribute royalties to right holders appropriately because users of copyrighted works often do not report their actual usages fully. Therefore, to build an adequate system for distribution, as stipulated under of the Regulation for Collective Management of Copyright, there is a need to ensure full enforcement of the users’ obligation to provide full usage information. And a need to encourage them (what means Japan, higher punishments, or better explanation by the collective management societies in China?). Is China planning to take new measures against this problem?

According to the European Communities foreign suppliers of sound recording distribution services appear to receive less favourable treatment than Chinese suppliers. The European Communities complain that imported music is subject to content review before digital distribution, while Chinese enterprises without foreign investments are subject to registration but not prior content review.

The European Communities have a problem with time it takes to clear the censorship process. First mover advantage for the right holders is very important in the music business in the race with infringers. What is China intending to do about this? Equality of arms for foreign suppliers as to Chinese enterprises? Are there plans to make the clearance process quicker?

The European Communities point out that sound recording imported into China in physical form intended for digital distribution must undergo content review prior to distribution. Domestically produced sound recordings appear not to be subject to this requirement, but can instead be digitally distributed immediately. Another problem is that censorship clearance for a digital work does not mean the equivalent physical work has also passed censorship and vice versa. What is China going to do about this?

The European Communities writes: Article 9(1) TRIPs imposes an obligation to comply with articles 1 to 21 Berne Convention. Article 11bis Berne Convention prescribes that at least an equitable remuneration is payable to the author for the broadcasting of their works. However since the amendment of the Copyright Law in 2001 no remuneration has been paid to right holders for the use of music in their broadcasts. What measures will China take, when will the tariff rates be set by the State Council? Will right holders be compensated for the years when their music was being broadcast prior to tariff rates being set?

Answers by China

China refers vaguely to modifications to the Copyright Law, relevant implement rules that cover all areas included in TRIPs and bring these measures info full conformity with the TRIPs. And regarding copyright it gives some statistics: "In 2007,copyright administrative agencies at all levels imposed 9,816 administrative punishments, confiscated 75.69 million pirate goods." China declined to answer the other questions. However, this might have something to do with the pending dispute settlement at the WTO.

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Chinese Copyright Law, Peer Production and the Participatory Media Age: An Old Regime In a New World

Just found an interesting Chapter about Chinese Copyright Law, written by Mr Sampsung Xiaoxiang Shi, read here.
Of course I am flattered that note 22 refers to my thesis. I will review the 48 pages Mr Shi has written as Chapter 13 of the following book:

B. Fitzgerald et al ed. 'COPYRIGHT LAW, DIGITAL CONTENT AND THE INTERNET IN THE ASIA-PACIFIC' (Sydney, Sydney University Press, 2008).

Also read Mr Shi's interesting blawg here.

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Does China's Copyright Law Has A Sense Of Humour?

Tavis Coburn created in 2007 "Mao Jordon", using Mao holding a Nike Air in his hand and wearing a hair band with swoosh, a registered trademark of Nike. The artist provokes a lot of questions with a limited edition of 100 prints.

Besides whether Mr Coburn's work would be censored in China, would it be protected under China's author's right?

Article 1 Copyright Law: This Law is enacted, in accordance with the Constitution, for the purposes of protecting the copyright of authors in their literary, artistic and scientific works and the copyright-related rights and interests, of encouraging the creation and dissemination of works which would contribute to the construction of socialist spiritual and material civilization, and of promoting the development and prosperity of the socialist culture and science.

Does Mao advertising Nike on a reproduction of a painting contribute to the construction of socialist and material civilazation?

Article 46 Copyright Law: Anyone who commits any of the following acts of infringement shall bear civil liability for such remedies as ceasing the infringing act, eliminating the effects of the act, making an apology or paying compensation for damages, depending on the circumstances: (4) distorting or mutilating a work created by another;

The original maker of the Mao portrait could claim this personal right was breached.
I think that the artist by using parody makes a statement that refers to China's effort to combine socialism and capitalism into a hybrid. However, parody is at the moment in China not protected under the Copyright Law.

Head tip to Susan Scafidi of Counterfeit Chic. Read her excellent Knockoff News Edition 76 here

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Cartoon Sanmao Will Be Adapted Into Real Life Actors Film

Joel Martinsen of Danwei has a fine interview with the right holder of the copyright of cartoon hero Sanmao (三毛) which means literally three hairs, characteristic for the cartoon protagonist. The article implicitly illustrates some of the aspects of a copyright:

The right holder chose to give his permission to adapt the cartoon in a movie. In this case he insisted that it is going to be a real life actors film and that it would be a co-production with a Chinese production company. (Article 10 (14) Copyright Law: the right of adaptation, that is, the right to change a work to create a new work of originality);

The right holder authorised the filmmakers to make some changes, not too much, because the character of Sanmao may not be damaged. (Article 10 (3) Copyright Law: The right of alteration, that is, the right to alter or authorize others to alter one's work);

The right holder protects the Chinese character Sanmao, based on his right of integrity. (Article 10 (4) Copyright Law: the right of integrity, that is, the right to protect one's work against distortion and mutilation).

Read the Danwei interview here.

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Peter Yu's Response to HK's Consultation on Copyright Reform

Hong Kong, as any jurisdiction, wrestles with the question of how to adapt to the ever changing demands and challenges of copyright law in the digital era. The Hong Kong government has publised its 'Consultation on Copyright Protection in the Digital Environment', see here.

The prolific Peter K. Yu (余家明) responded, commissioned by the Journalism and Media Studies Centre of the University of Hong Kong, with a position paper called 'Digital Copyright Reform in Hong Kong: Promoting Creativity Without Sacrificing Free Speech, see here.
The position paper deals with: Criminal liability, Notice and takedown procedure, Subpoena mechanism, Statutory damages, Other options, and The internet's promise for Hong Kong.

Mr. Yu, the Associate Professor of Law and the founding director of the Intellectual Property & Communications Law Program at Michigan State University College of Law, is well versed in US Copyright Law (US Code: Title 17, Copyrights) and encourages the Hong Kong government to take heed of the lessons learned in the US on copyright law and to assess copyright law reforms empirically.

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Should Trademark Law Have a Sense of Humour?

The prolific Dutch journalist Fons Tuinstra of the China Herald reports about the Greenpeace campaign at his local Shanghai subway station to mashup corporate logos to put the environment on people's agenda. Is it satire or plain trademark infringement? Part I here, and part II here.

To my knowledge the Trademark Law does not give any limitations on rights/fair use of a registerd trademark. Should the Trademark Law have a sense of humour and include satire as a valid reason to make a citation of a trademarked logo?

Greenpeace, if taken to court by the trademark rights holders, cannot base its defence on an interpretation of the Trademark Law that is analogous to the Copyright Law, because contrary to many legislations, which include a satire exception in their copyright law, article 22 Copyright Law, lacks one.

In other words integrity of the logo versus self-deprecating fun and social criticism.

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