After 44 Years Chinese Lovers of Literature Can Legally Buy "One Hundred Years Of Solitude"

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TGIF

Zhang Lei wrote a nice article for the Global Times about Thinkingdomhouse, a publisher who achieved to get a copyright license for China from Nobel Prize for Literature laureate Gabriel García Márquez to publish his masterpiece 'One hundred years of solitude' (Cien años de soledad).

"Unauthorized editions were widely available in markets as early as the 1980s, which infuriated the author, who vowed that even 150 years after his death, his works would not be authorized in China, when he visited in 1990." Well if Márquez was quoted correctly, he might be able to abstain Chinese publishers from authorised versions, but his copyright will expire 50 years after the moment he will exchange the temporary with the eternal. Then again within magic-realism, a writing style Márquez brought to great fruition, 150 years starting in the 1980s is a possibility which can not be completely excluded. It is great news that this summer an authorised version of Márquez' masterwork will be on sale in China. On the one hand it is moral rights of the author to determine whether he makes his work public or not (le droit de divulgation). On the other hand you cannot blame Chinese literature lovers that they want to read Márquez' masterpiece of which Pulitzer Prize winner William Kennedy said "the first piece of literature since the Book of Genesis that should be required reading for the entire human race."

Zhang is mentioning China's membership of the Universal Copyright Convention in 1992, as the moment the publishing industry has gradually increased awareness of copyright. According to this convention an author had to put a © on their work, his name and the year of creation in order to be protected via copyright.

Article III (1.) Universal Copyright Convention: "Any Contracting 'State which, under its domestic law, requires as a condition of copyright, compliance with formalities such as deposit, registration, notice, notarial certificates, payment of fees or manufacture or publication in that Contracting State, shall regard these requirements as satisfied with respect to all works protected in accordance with this Convention and first published outside its territory and the author of which is not one of its nationals, if from the time of the first publication all the copies of the work published with the authority of the author or other copyright proprietor bear the symbol © accompanied by the name of the copyright proprietor and the year of first publication placed in such manner and location as to give reasonable notice of claim of copyright."

Interestingly, this is in contradiction to the "no formalities" requirement of article 5 (2) Berne Convention for the Protection of Literary and Artistic Works to which China acceded in the same year. UNESCO's Universal Copyright Convention has been rather dormant lately, but it could already make a useful distinction between works in the public domain without the © and those protected by copyright. It avoids also to some extent the copyright orphan problem, because the name must be included. Creative Commons has been "ported" to China and makes clear what kind of use is allowed online, see here. 

Read the Global Times article here.    

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WTO Report DS362: "Panellists On Your Marks, Get Set, Decide"

The first thing the WTO panel did was to get translations of the People's Republic of China's both countries agreed upon (so called mutally agreed translations, fourteen of them).

(MAT-1) Criminal Law (Articles 213, 214, 215, 217, 218 and 220);
MAT-2) 2007 Judicial Interpretation (Articles 1 through 7);
(MAT-3) 2004 Judicial Interpretation (Articles 1 through 17);
(MAT-4) 1998 Judicial Interpretation (Article 17 paragraph 2);
(MAT-5) Prosecution Standards on Economic Crimes (Articles 8, 16, 23, 38, 39 and 70);
(MAT-6) Regulations on Customs Protection of Intellectual Property Rights (Article 27);
(MAT-7) Customs IPR Implementing Measures (Article 30);
(MAT-8) Customs Announcement No. 16/2007;
(MAT-9) Measures on the Administration of Property Confiscated by Customs (Articles 1, 2, 3, 17 and 18);
(MAT-10) Law on Donations for Public Welfare;
(MAT-11) Copyright Law (Articles 2 and 4);
(MAT-12) Regulations on the Administration of Films (Articles 2, 24, 25, 27, 28, 29, 31, 42 and 55);
(MAT-13) Regulations on the Administration of Audiovisual Products (Articles 2, 4, 28 and 36); (MAT-14) Regulations on the Administration of Publication (Articles 6, 26, 27, 40, 44, 45 and 56). Then they requested the International Bureau of the World Intellectual Property Organisation (WIPO) to give them factual information available to it relevant to the interpretation of the Berne Convention for the Protecition of Literary and Artistic Works (1971).

So these, plus the input by the parties and third parties (Argentina, Australia, Brazil, Canada, European Communities, India, Japan, South Korea, Mexico, Chinese Taipei, Thailand, Turkey) are the ingredients for the pannelists to come up with a decision.

The factual information provided by the International Bureau consists of a note (pp 10-18) that it prepared and 16 annexes containing excerpts from the Official Records of the various Diplomatic Conferences which adopted, amended or revised the provisions currently contained in Articles 5(1), 5(2) and 17 of the Berne Convention. The International Bureau's Note is attached as Annex D-3 to the WTO report, but unfortunately not the 16 annexes.

These Diplomatic Conferences are in chronological order:

• The Diplomatic Conference of 1884: International Conference for the Protection of
  Authors' Rights held in Berne, from September 8 to 19, 1884;
• The Diplomatic Conference of 1885: Second International Conference for the
  Protection of Literary and Artistic Works, held in Berne, from September 7 to 18, 1885;
• The Diplomatic Conference of 1886 (Berne Act): Third International conference for
  the Protection of Literary and Artistic Works, held in Berne, from September 6 to 9, 1886;
• The Diplomatic Conference of 1896 (Paris Act): Diplomatic Conference held in Paris, from April 15 to May 4, 1896;
• The Diplomatic Conference of 1908 (Berlin Act): Diplomatic Conference held in Berlin, from October 14 to November 14, 1908;
• Additional Protocol of 1914 (Berne Protocol): Additional Protocol to the Convention signed in Berne without a conference of revision;
• The Diplomatic Conference of 1928 (Rome Act): Diplomatic Conference held in Rome, from May 7 to June 2, 1928;
• The Diplomatic Conference of 1948 (Brussels Act): Diplomatic Conference held in
  Brussels from June 5 to 26, 1948;
• The Diplomatic Conference of 1967 (Stockholm Act): Intellectual Property Conference held in Stockholm, from June 11 to July 14, 1967;
• The Diplomatic Conference of 1971 (Paris Act): Diplomatic Conference for the
  Revision of the Berne Convention held in Paris, from July 5 to 24, 1971.

Why they didn't ask for the factual information available to WIPO relevant to the interpretation of the Paris Convention for the Protection of Industrial Property (1967) (not to be mistaken with the Paris Act of Berne Convention), I don't know. I do know that the complaints were also directly based on China's obligation to comply to the provisions of the Paris Convention and indirectly to the Berne and Paris Convention provisions incorporated in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs).

To be continued.

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Slow As A Turtle? Copyright Protection Expiration in China: Lifetime Plus Fifty

IP Dragon's feline friend has an interesting post December 31, 2008, about the expired protection of copyrights for authors that died seventy years ago, including the painter Wang Zhen (1867-1938), read Mr Jeremy Phillips' article for IP Kat here.

According to article 20 Copyright Law PR of China the rights of authorship, alteration and integrity of an author shall be unlimited in time. Then again, the term of protection for the right of publication and rights referred to in article 10 (5) Copyright Law PR of China (the right of showing, that is, the right to show to the public a work, of fine art, photography, cinematography and any work created by analogous methods of film production through film projectors, over-head projectors or any other technical devices) and 10 (17) Copyright Law PR of China (any other rights a copyright owner is entitled to enjoy) was already expired after the lifetime of the author and fifty years, according article 21 Copyright Law PR of China.

If Wang Zhen's paintings are in a country with a copyright protection of the lifetime of the author plus seventy years, and if this country is a member of the Berne Convention, it has to comply to the national treatment requirement (article 5(1) Berne Convention), which means that this member state has to treat the nationals of every other member state at least as favourably as its own. Article 7 Berne Convention and article 12 TRIPs, however, obligate their respective member states to protect copyright for fifty years. The People's Republic of China acceded to the Berne Convention in 1992 and TRIPs in 2001.

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Comparison Between The IPR in China Relevant Provisions Of the Foreign Trade Law 2004 and 1994

I have just added links to the Foreign Trade Law of the People's Republic of China 1994 and 2004 on IP Dragon's blogroll ( under "IPR in China Laws and Regulations").

The IPR relevant article 6 Foreign Trade Law 1994 is almost identical to article 6 Foreign Trade Law 2004 (most favoured nation treatment and national treatment because of articles 4 and 4 TRIPs, respectively, before 2001 because of article 5 (1) Berne and aricle 3 Paris Conventions)

Article 14 Foreign Trade Law 1994 is similar to article 13 Foreign Trade Law 2004 (the departments that get information from the foreign trade operaters should keep business secrets to themselves, see pages 15-16 Thesis).

Article 27 (2) Foreign Trade Law of 1994 prohibits explicitly infringing upon intellectual property rights and article 27 (5) Foreign Trade Law 1994 "other acts violating laws or administrative rules and regulations" can also be used to base a prohibition against IPR infringement.

It can be concluded from article 14 Foreign Trade Law of 2004 that import and export of goods is not free if law or administrative regulation provides otherwise.
Different from Foreign Trade Law 1994 is that Chapter V of the 2004 amendment is dedicated to Foreign-trade-related Intellectual Property Protection. Article 29 Foreign Trade Law 2004 includes: "Where any of the import goods violates any intellectual property right and, at the same time, endangers the foreign trade order, the foreign trade department of the State Council may take such measures as prohibiting the import of the relevant goods that the infringer has produced or sold for a certain period of time." No word about export goods that violate IPRs. This is in compliance with TRIPs, since article 51 TRIPs only obligates that WTO members shall adopt procedures to enable a right holder that has valid grounds that counterfeit trademark or pirated copyright goods import may take place, to lodge an application. Article 2 Regulations of the People's Republic of China on Customs Protection of IPRs 2003, however, goes beyond this obligation and applies to both import and export.

Article 30 Foreign Trade Law 2004 is to give the foreign trade department of the State Council the legitimacy to take measures in case of an IP right holder that hinders the licensee from questioning the validity of the IPR involved in the license agreements, conducting forced package license or providing exclusive selling back conditions in the license agreement, etc.

Picture: threecee

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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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How to protect your software in China?

In China software piracy is one of the big problems. What can be done to protect software?

Copyright

Software is specifically mentioned in article 3 (8) Copyright Law as protectable subject matter.

Although copyrights do not have to be registered, since China is a signatory of the Berne Convention the enjoyment and the exercise of copyrights shall not be subject to any formality, according to article 5 (2) of this treaty, it can be wise to register:

• A registration certificate issued by the software registration institution, recognised by the copyright administration department of the State Council, is a preliminary proof of the registered items, see article 7 Regulations on Computers Software Protection;
• Elliot Papageorgiou of Rouse & Co. International gives another argument: Registration and publication of the software and identity of the owner in the copyright bulletin serves as notice to infringers and raises the presumption that the infringer was "knowingly" infringing copyright. If this is the case, the defendent cannot base his claim on article 30 Regulations on Computers Software Protection, that he neither knows nor has reasonable grounds to know that he infringed, in which case the infringer can, after paying reasonable remunaration, continue to use the copies, if the cease or destruction of these would cause heavy losses to him.

Article 29 Regulations on Computers Software Protection gives the limitation that "[t]he development of a piece of software which is similar to a pre-existing one due to a limit of alternative forms of expression does not constitute an infringement of the copyright in the pre-existing one." In other words, if there is only one technical solution possible, it is not copyrightable. Professor Hugenholtz called this (and I paraphrase) the monopoly of suboptimal technical solutions.

Patent

Article 22 Patent Law states: Any invention or utility model for which patent right may be granted must possess novelty, inventiveness and practical applicability.

• Novelty means that, before the date of filing, no identical invention or utility model has been publicly disclosed in publications in the country or abroad or has been publicly used or made known to the public by any other means in the country, nor has any other person filed previously with the Patent Administration Department Under the State Council an application which described the identical invention or utility model and was published after the said date of filing.
• Inventiveness means that, as compared with the technology existing before the date of filing, the invention has prominent substantive features and represents a notable progress and that the utility model has substantive features and represents progress.
• Practical applicability means that the invention or utility model can be made or used and can produce effective results.

According to Papageorgiou the requirements that a patent needs to be for the purpose of resolving a technical problem and capable of producing a technical result by technical means are analogous to these requirements stated by article 52 (3) European Patent Convention. However, as Wikipedia's article 'Software patents under the European Patent Convention' makes clear there is a plethora of interpretations. What China's interpretation is I am not sure yet. To be continued.

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Reaction To Danwei's Question About Republishing In China

Danwei's Jeremy Goldkorn has an interesting article about whether it is legal to copy and paste entire news articles, read here.

China's copyright law should be in lign with the Berne Convention of which China is a signatory since July 10, 1992 (entry in force October 15, 1992).

Article 10bis (2) Berne Convention
It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.

So reproduction is possible, to the extent justified by the informatory purpose.

Article 22 Copyright Law

(3) reuse or citation, for any unavoidable reason, of a published work in newspapers, periodicals, at radio stations, television stations or any other media for the purpose of reporting current events;

So article 22 (3) Copyright Law states that there needs to be an unavoidable reason. A reason could be that because of the actuality or public character of the event there is no time left to first ask for permission of the author.

10bis (1) Berne Convention
It shall be a matter for legislation in the countries of the Union to permit the reproduction by the press, the broadcasting or the communication to the public by wire of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works of the same character, in cases in which the reproduction, broadcasting or such communication thereof is not expressly reserved. Nevertheless, the source must always be clearly indicated; the legal consequences of a breach of this obligation shall be determined by the legislation of the country where protection is claimed.

Article 22 (4) Copyright Law
reprinting by newspapers or periodicals, or rebroadcasting by radio stations, television stations, or any other media, of articles on current issues relating to politics, economics or religion published by other newspapers, periodicals, or broadcast by other radio stations, television stations or any other media except where the author has declared that the reprinting and rebroadcasting is not permitted;

It seems integral reproduction of whole articles is allowed, as long the author has not explicitly prohibited this. However, article 22 (4) Copyright Law does not mention the requirement of article 10bis (1) Berne Convention that the source must always be indicated.

However, instead of one limitation called the fair use system, as is the case in the US, which is interpreted broadly, the many limitations of China's copyright law will be interpreted strictly.

So the practice or a new judicial interpretation will hopefully enlighten us.

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James Paradise: WTO Case Will Not Start Before North Korean Nuclear Threat Has Ended

James F. Paradise wrote another thought provoking article on AsiaMedia of the UCLA Asia Institute.

The innovation of TRIPS compared to WIPO's conventions (Berne and Paris) is that disputes about enforcement can be dealt with in a binding manner by a panel of the WTO dispute resolution body. In other words WTO's TRIPS is WIPO with teeth (paraphrasing professor Hugenholtz of IViR).

However, the downside of TRIPS is that it is an integral part of WTO, which results in a hybrid treaty: the protection and enforcement of intellectual property law can get entangled with trade interests. Trade tariffs can be traded off for the protection and enforcement of intellectual property and vice versa. This might not always be in the best interest of IPRs.

Paradise points out that geo-political interests such as the North Korean nuclear threat can take priority over trade interests, including intellectual property:

"Recently there has been speculation that the United States, together with the European Union, Japan and Canada, would bring a complaint against China at the WTO because of inadequate enforcement of intellectual property rights. But it appears now that action of that sort -- should it occur -- will not happen immediately, possibly because the United States needs to maintain China's support in dealing with the North Korean nuclear problem. In September, the United States, the EU and Canada did request that a dispute settlement panel examine their complaint that Chinese tariffs on imported auto parts were discriminatory, the first time a dispute with China had risen to this level in the WTO."

Paradise points out a trend in the business community to cope with the rampant infringement of intellectual property proactively by changing their business strategy:

""We need more flexible business models," said George M. Borkowski at a panel primarily focused on copyright at the Los Angeles Asia Pacific Entertainment and Media (APEM) Summit 2006 last week. Borkowski, a partner of the law firm Mitchell Silberberg & Knupp, added that there is not much agreement within the industry itself about how to proceed."

Is this defeatism? I don't think so. As a company you should both try to prevent IPR infringements, but if they do, you should be prepared to protect and enforce your IPRs ferociously.

Read Paradise's article here.

Paradise wrote earlier an excellent review of Mertha's book'The Politics of Piracy: Intellectual Property In Contemporary China', read more here.

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MIP Briefing About Copyright For Web Design

Howard and Thomas Tsang (don't know if they are family) of Wilkinson and Grist wrote an article for Managing Intellecutal Property about a copyright infringement case concerning web design.

The plaintiff Eating.cn, yes a site about food, had duly registered its layout and design at the Chongqing Copyright Bureau. Since China is a signatory of the Berne Convention the enjoyment and the exercise of copyrights shall not be subject to any formality, according to article 5 (2) of this treaty. However, it is still wise to register your copyright, because it can be helpful to establish prima face evidence, for example ownership.

"Chongqing No 1 Intermediate People's Court has confirmed that the layout and design of web pages per se can enjoy copyright protection in China. "
The court held that the specific arrangement, structure and layout of the plaintiff's web pages were original and would qualify for protection under the PRC Copyright Laws.

No surprises here.

Read the MIP brief here.

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