Corrupting Our Youth One Sing Contest At A Time, and Time-Travelling Still Possible

Super girl, o boy o boy!

In the year 399 BC, Socrates was sentenced to death by drinking a cup of Hemlock, because he corrupted the youth. In hind sight we hold his contribution to educate the population in high esteem. How will our progeny judge a TV programme such as Super Girl? At least now the creators of this programme are affected by a similar criticism that once hit Socrates: "vulgar, manipulative, poison for our youth". Read more here.

"I don't want to be vulgar ...

"Market access ban is the modern hemlock cup"
The Death of Socrates 
Jacques-Louis David 1787

We can debate about whether the ever o so impressionable youth can spend their time wiser (hurray for programmes about "practical information about house work"). But especially in a stressful hyper competitive society as China's, people also grave for some entertainment after a day chock-full of study or work. I think the more choice the better. Hopefully then the audiences gravitate toward higher quality. State Administration for Radio, Film and Television (SARFT) might not be in the best position to be a media critique. And it might be better if the government sticks to facilitating the preconditions for culture to blossom, which includes providing a varied TV programmes schedule with uplifting but also entertaining programmes. Therefore, and based on China's WTO commitments, China should give market access to foreign TV and film providers. Limiting them market access does not only harm foreign media providers (it does also indirectly, because it creates a huge demand for pirated works). It also harms Chinese audiences that miss out on good programmes and Chinese media providers that are not stimulated to meet high international standards.

... but I support their freedom of being vulgar."

I am quoting my colleague Tan Fugui, who inspired by Voltaire said this to me after reading this article. Tan Fugui adds: "a precondition, people have freedom of being vulgar as long as they dont penetrate other peoples right territory, for example, not involving outsider's privacy etc."

Must be harsh for American Idols producers to see that even their knock-off version is kept off the tube.
Read my 2005! blog post about the American Idols knock-off with Chinese characteristics, here.
Read my 2006 blog post about copyright allegations against Super Girl's producer here.

Time-travelling to Alternate Reality

Do you remember that SARFT forbid time-travelling, read here. Well, last weekend I went to the movies in CoCo Park, Shenzhen. And it seems that time-travelling is still possible ..., at least in the movie Source Code.

Spoiler alert
Via "Source Code" Captain Colter Stevens is in the body of Sean Fentress during the last 8 minutes of his life, just before a train blew up. With Source Code and some alleged quantum mechanics, that creates an alternate reality he is able to visit this last 8 minutes many times (using the memory of someone who is technically dead) in order to find who is behind the terrorist attack, so that this information can prevent future attacks. Stevens find a way to alter at least one parallel universe and is able to save the people on the train and can even contact the people of the control centre at Source Code via SMS.
End spoiler alert


The prohibition of time-travelling is to prevent to mislead or confuse uneducated people. Or is it because the future can be changed by going back in time? Or that future projections of many a science-fiction work (such as George Orwell's Nineteen Eigthy-Four which he wrote in 1949) is a kind of critique of contemporary society? But this could happen in a parallel society such as Avatar (that was blocked in 2-D, not 3-D, read here). But why stop there: one can start to interpret the Smurfs (very popular in China) as social criticism. Maybe Source Code slipped through the censor because it is too far fetched even for the credulous and gullible.

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EU, U.S. Perception: "China Is Discriminating". What Are We Going To Do Against It?

US: We have so many
stars, we deserve 
to be treated
accordingly in China

U.S. Vice President Joe Biden is visiting China to try to smooth the Sino-Chinese relations (one can argue that the U.S. is borrowing money from China to import from China) and meet with his Chinese counterpart Xi Jinping (习近平) who is expected to succeed President Hu Jintao (胡锦涛) in 2013. With the election coming up in November 2012 their is pressure on the Biden and Obama to show that they can create new jobs to get the U.S. economy going. 

Perception

Biden is going to talk also with U.S. and Chinese business leaders. Kate Andersen Brower and Michael Forsythe point out in their Bloomberg article that U.S. business leaders are more worried about the level playing field in China, which includes intellectual property protection and enforcement, than the alleged overvalued Renminbi that makes export to China more expensive. 

""Our members do not think currency is the top issue in our relationship," said Erin Ennis, vice president of the U.S.- China Business Council. Bigger concerns are "level-playing field issues," like opening up the Chinese market to U.S. exports and protecting intellectual property."

Tony Su, corporate vice president and president of DuPont Greater China was quoted saying: "We have a rising concern about IP protection," Su said, adding that it is an especially important consideration for his company, the biggest U.S. chemicals maker by market value and second-biggest seed producer in the world. "The government can be an example to industry that stealing technology will be punished by law."

We have some stars,
please consider
us as stars  in China

Surveys in both the EU and U.S. confirm the concern about discrimination of foreign firms in China. When EU business leaders were asked " will the Chinese government have policies in place that discriminate against foreign companies?"in a survey by the European Union Chamber of Commerce in China, 46 percent (36 percent in 2010) answered "Yes, in the next two years."
And when the American Chamber of Commerce (AmCham) asked whether China is discriminating against foreign companies with its licensing process, 71 percent answered yes.

It is also interesting to watch the foreign politics strategies play out in regard to China. Is the U.S. strategy, which is arguably more assertive but also more confrontational more effective than the EU strategy that is more constructive but also more passive. I think if the U.S. and EU would coordinate their efforts and come up with a combined good cop bad cop approach, they can attain better results than if they would operate on their own. What do yo think?

Read the Bloomberg article via SF Gate, here

Now That We  Some EU and US business leaders Found Perceive Love Discrimination, What Are We Going To Do With Against It?

We are talking about perception. Now what are we going to do against it? Like each year the European Chamber of Commerce has formulated some interesting suggestions in their 'European Business in China 2011/2012 Position Paper' that will be launched on September 8, 2011 in Beijing and Shanghai. The following subjects, that are all related to intellectual property rights, will be covered:

1. The positive role European companies can play in helping China reach the goals of its 12th Five-Year Plan:
-Developing the service sector
-Enhancing environmentally-friendly and advanced technologies
-Encouraging Innovation
2. An overview of the key themes of recommendations to Chinese policymakers:
-Increasing Market Access
-Enhancing Transparency & Predictability in Legislation
-Improving Regulatory Efficiency
-Encouraging Innovation through Intellectual Property Rights Protection
3. Recommendations to both European and Chinese governments on EU-China commercial relations and the prospects for a bilateral investment treaty.

The Beijing launch of the paper will be held at Kempinski Hotel at 4 o'clock (free for members, 400 Renminbi for non-members) Dirk Moens, secretary general of the Chamber and Davide Cucino president of the Chamber will give a presention, see here. The Shanghai launch will be held at The Westin Bund Centre Shanghai at noon (free for members, 300 Renminbi for non-members) and Piter de Jong, vice president of the Chamber will give a presentation, see here.

Piter de Jong explains in a Squawk Box CNBC interview how the EU companies are missing out on a trillion dollar procurement, he also elaborates on the business confidentiality survey 2011 by the EU Chamber of Commerce in China, see here.

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Chinese Courts Are Getting More Independent, But Rule Of Law Needed To Enforce IPRs Is Far Away

In my thesis 'Paper Tiger or Roaring Dragon' I come to the conclusion that the lack of effective enforcement of intellectual property rights in China can be partly explained by some extra-judicial factors, such as:

- no rule of law (where the rule of law has the supremacy, instead of the government);

- lack of transparency;

- lack of an independent judiciary;

- non-uniform application of laws;

- local protectionism;

- corruption and lack of education;

- lack of expertise in and respect for intellectual property;

- market access restrictions.

Professor Stanley Lubman has an interesting article, see here, about legal reform in which he refers to 'China's Courts: Restricted Reform', an excellent paper written by Professor Benjamin Liebman. In it Professor Liebman determines that Chinese judges are much more educated then ever before and that in case of a difficult case courts are often consulting other courts at the same level (horizontally) instead of asking advice of a higher court (vertically). This makes the judiciary more independent and less usable as an instrument to implement the policies of the government. Professor Liebman contends that therefore the government uses the media to influence the opinion of the population in some cases, so that they can mobilise popular protest against a court decision. With the result that some court decisions are overturned because of the "vox populi".

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WTO Report of the Panel DS363

Intellectual property enforcement and market access are interrelated. About the first part we have seen the report DS362, and August 12th 2009, WTO's panel issued a report about the latter: DS363: China - Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Product.

See here all 491-pages of the report. Must be studied. If you want to fast forward to the conclusions and recommendations by the panel, see 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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"Videos with 'copyright challenging character' most popular"

Netanel Jacobsson is a Swede living in Israel running Maxthon, a company that developes a browser in China (which reached 62 million dollars in one and a half year without marketing).

Jacobsson's last two blogs are about the Piper Jaffray's Fourth Annual China Growth Conference in Beijing. In one he points out the way Chinese youth react to censorship, by going online to get it anyway (conclusion might be that market access restrictions stimulate IPR infringement), see 'A Conversation with Chinese Users' here.

The other posting is about China's equivalents of YouTube and that the most popular content is of a 'copyright challenging character', see 'China: The Portal Challengers (Video)' here.

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