Torsten Weise, who is based in Berlin, translates headlines and news of Chinese media on media into English on this interesting blog called China Media News, which he started in May 2010. Mr Weise gives advice to publishers (Weise Verlagsberatung) that want to be active on the Chinese market. Those interested into media and the protection and enforcement of copyright in China could benefit from reading his blog, next to the always excellent Danwei.com by Jeremy Goldkorn in Beijing and superniche blog about copyright in China site of my friend Rogier Creemer, China Copyright and Media, straight from Maastricht Univerity.
continue reading ...
Showing posts with label Danwei. Show all posts
Showing posts with label Danwei. Show all posts
Thursday, January 20, 2011
Wednesday, November 11, 2009
Push Up the Plagiarism: It's a Photo, No ... It's a Painting
Joel Martinsen of the great site about Chinese media, advertising, urban life and many more fascinating subjects, Danwei.org, has a great blog about 'Painted plagiarism of push-up photograph' read here.
continue reading ...
Wednesday, January 14, 2009
IP Dragon Wins Danwei's Olympic Model Worker Award 2008
IP Dragon is proud and happy to have received Danwei's Model Worker Award for 2008 ("the best of the China blogs"), in the category Law & Intellectual Property, for the second time in a row (2007). Only this time the award's name was changed into Olympic Model Worker 2008. The procedure was the same as in 2007: "The winners are chosen by Danwei's Central Committee; no voting or democracy of any kind is involved." There are two more winners in the category Law & Intellectual Property. In 2007 it were only IP Dragon and China Law Blog, in 2008 the new recipients were Forgotten Achipelagoes and China Law Prof Blog.
Thanks Danwei.
Friday, September 21, 2007
Danwei Model Worker Award 2007
IP Dragon is proud and happy to have received the Danwei Model Worker Award in the category Law and Intellectual Property. Recipients of Danwei Model Worker awards are decided by Danwei editors.Thank you very much!
Find all Danwei Model Worker Award recipients here.
Tuesday, July 03, 2007
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.
Monday, June 18, 2007
Reaction to Danwei Article About China's Ratification of WIPO's Internet Treaties
Ms. Maya Alexandri wrote an interesting article called 'Copyright protection for online content' for Danwei.
Referring to China's accession and ratification (June 9, 2007) of WIPO's Copyright Treaty (WCT) and WIPO's Performances and Phonograms Treaty (WPPT) a report by the Beijing Business Today, Ms Alexandri wrote:
"More typically, China's stance on intellectual property enforcement includes caveats about China being a developing country or expresses concerns about wholesale adoption of foreign values and methods. For example, China has a "two track" mechanism for enforcing intellectual property that gives both courts and administrative agencies enforcement authority. This system creates inefficiency, a lack of accountability and has rendered intellectual property virtually unprotectable in China. But far from amending its two-pronged approach, China has showcased it, insisting that it yields even greater protection for intellectual property."
The fact that China has more than one way (in fact three ways) to enforce intellectual property rights, does not necessarily creates inefficiency nor a lack of accountability. In my view there is no causal relationship between plural routes of IP enforcement and a situation whereby IP rights are "virtually unprotectable in China". In fact, IP enforcement in China is possible, although not always easy. It does not happen automatically; if you want to enforce your infringed IP rights, you have to act. Best thing to do this pro-actively. Since one of the characterisics of industrial property, trademarks, patents (which include design rights in China) is that their scope is national. So if you want to protect and enforce these rights, you have to register in the first place. Copyright (industrial rights + copyrights=intellectual rights) is protected at the moment an original idea has been expressed with the stamp of the author in a figurative way. Copyrights are also national in scope, but since the Berne Convention you don't need to register it before it becomes effective. Then, if your IP right is infringed there are different routes to enforce in China.
More is not always less
There is an administrative, criminal and civil enforcement route in China. Which all have their advantages and disadvantages, see my paper 'How to work within China's IPR enforcement system for trademark and design rights' here. There is even an overlap between some administrative enforcement authorities, which is not bad, because, given the right incentives, it can bring a certain competition between these authorities (as determined by Mr. Andrew Mertha), increasing the level of quality for all and making enforcement more effective. The distinction between criminal enforcement and civil enforcement is undisputed in most jurisdictions. China is quite unique in that it offers an extra venue of enforcement; the administrative enforcement route. Why would this be a bad thing? Besides, as right holder of infringed IP rights you can always go directly to the People's courts or to the Public Security Bureau (police). And even if you tried the administrative enforcement route, and are unsatisfied, you can still have a go with litigation.
Then if these different routes are not the problem, what is?
In my paper I suggest the following reasons for China's inability up to this point in time to effectively enforce IP rights:
[2] China’s leadership clearly wants to restrict lower government authorities to the rule of law, however it does not want to self-impose restrictions as long as its very survival is at stake.
[3] The Standing Committee of the National People’s Congress is superior to the Supreme People’s Court: it has the final word when it comes to the interpretation (article 43 Legislation Law) or invalidating (article 90 Legislation Law) of laws by the Supreme People’s Court. The National People’s Congress controls the funding and staffing of the Supreme People’s Court. Similar structures exist at lower levels: where local Party Organisation Department and people’s congresses control key appointments and funding for courts. Randall Peerenboom, ‘China’s Long March Toward Rule of Law’, Cambridge University Press, 2002, pg. 268.
[4] The Legislative Affairs Office, which monitors and addresses non-uniform application of law has much work to do. Therefore it is doubtful if it even get round to dealing with local deviations from WTO standards, such as TRIPs. More might be expected of MOFCOM’s Department of WTO. A concentrated appeals court, would probably have more chances to unify the application of law.
[5] The Transparency International Corruption Perceptions Index has ranked China in 78th position with a score of 3.2, where 10 is highly clean, available at: http://ww1.transparency.org/cpi/2005/cpi2005.sources.en.html.
[6] Localism (local protectionism): When deciding in IP infringement disputes, local courts are inclined to rule in favour of local companies even though they infringe IP. The reason is that the local judge is appointed by the local party and financed by the local government, who in turn is dependent on the tax revenues and management fees paid by the local company. Then the local company’s employer or employees are often friends and relatives of the local party or government. Besides, it is not in the interest of the local government that the infringing company is going out of business, because this will lead to unemployment and social-unrest.
[7] The 2006 Special 301 Report states: “Litigants, according to the US Trade Representative, have found that most judges lack necessary technical training, (..),” pg. 21, available at: http://www.ustr.gov/assets/Document_Library/Reports_Publications/2006/2006_Special_301_Review/asset_upload_file473_9336.pdf.
I agree with Ms. Alexandri relativism about the effectiveness in China of these WIPO internet treaties.
"That said, don't expect too much in the way of copyright protection for online content. The Internet is where countries with advanced copyright protection and enforcement mechanisms meet their match. In acceding to the WIPO Internet treaties, what China may have done is join the rest of the world in paying lip service to the protection of copyright online."
I would like to add the following: unlike WTO TRIPs Agreement which has a binding dispute settlement mechanism, WIPO has none. WIPO is teethless.
Read Ms. Alexandri's article for Danwei here.
continue reading ...
Referring to China's accession and ratification (June 9, 2007) of WIPO's Copyright Treaty (WCT) and WIPO's Performances and Phonograms Treaty (WPPT) a report by the Beijing Business Today, Ms Alexandri wrote:
"More typically, China's stance on intellectual property enforcement includes caveats about China being a developing country or expresses concerns about wholesale adoption of foreign values and methods. For example, China has a "two track" mechanism for enforcing intellectual property that gives both courts and administrative agencies enforcement authority. This system creates inefficiency, a lack of accountability and has rendered intellectual property virtually unprotectable in China. But far from amending its two-pronged approach, China has showcased it, insisting that it yields even greater protection for intellectual property."
The fact that China has more than one way (in fact three ways) to enforce intellectual property rights, does not necessarily creates inefficiency nor a lack of accountability. In my view there is no causal relationship between plural routes of IP enforcement and a situation whereby IP rights are "virtually unprotectable in China". In fact, IP enforcement in China is possible, although not always easy. It does not happen automatically; if you want to enforce your infringed IP rights, you have to act. Best thing to do this pro-actively. Since one of the characterisics of industrial property, trademarks, patents (which include design rights in China) is that their scope is national. So if you want to protect and enforce these rights, you have to register in the first place. Copyright (industrial rights + copyrights=intellectual rights) is protected at the moment an original idea has been expressed with the stamp of the author in a figurative way. Copyrights are also national in scope, but since the Berne Convention you don't need to register it before it becomes effective. Then, if your IP right is infringed there are different routes to enforce in China.
More is not always less
There is an administrative, criminal and civil enforcement route in China. Which all have their advantages and disadvantages, see my paper 'How to work within China's IPR enforcement system for trademark and design rights' here. There is even an overlap between some administrative enforcement authorities, which is not bad, because, given the right incentives, it can bring a certain competition between these authorities (as determined by Mr. Andrew Mertha), increasing the level of quality for all and making enforcement more effective. The distinction between criminal enforcement and civil enforcement is undisputed in most jurisdictions. China is quite unique in that it offers an extra venue of enforcement; the administrative enforcement route. Why would this be a bad thing? Besides, as right holder of infringed IP rights you can always go directly to the People's courts or to the Public Security Bureau (police). And even if you tried the administrative enforcement route, and are unsatisfied, you can still have a go with litigation.
Then if these different routes are not the problem, what is?
In my paper I suggest the following reasons for China's inability up to this point in time to effectively enforce IP rights:
- A lack of transparency [1];
- lack of a rule of law [2];
- lack of an independent judiciary [3];
- lack of a uniform application of law [4];
- widespread corruption [5];
- local protectionism [6];
- and lack of expertise in and respect for IPR [7].
[2] China’s leadership clearly wants to restrict lower government authorities to the rule of law, however it does not want to self-impose restrictions as long as its very survival is at stake.
[3] The Standing Committee of the National People’s Congress is superior to the Supreme People’s Court: it has the final word when it comes to the interpretation (article 43 Legislation Law) or invalidating (article 90 Legislation Law) of laws by the Supreme People’s Court. The National People’s Congress controls the funding and staffing of the Supreme People’s Court. Similar structures exist at lower levels: where local Party Organisation Department and people’s congresses control key appointments and funding for courts. Randall Peerenboom, ‘China’s Long March Toward Rule of Law’, Cambridge University Press, 2002, pg. 268.
[4] The Legislative Affairs Office, which monitors and addresses non-uniform application of law has much work to do. Therefore it is doubtful if it even get round to dealing with local deviations from WTO standards, such as TRIPs. More might be expected of MOFCOM’s Department of WTO. A concentrated appeals court, would probably have more chances to unify the application of law.
[5] The Transparency International Corruption Perceptions Index has ranked China in 78th position with a score of 3.2, where 10 is highly clean, available at: http://ww1.transparency.org/cpi/2005/cpi2005.sources.en.html.
[6] Localism (local protectionism): When deciding in IP infringement disputes, local courts are inclined to rule in favour of local companies even though they infringe IP. The reason is that the local judge is appointed by the local party and financed by the local government, who in turn is dependent on the tax revenues and management fees paid by the local company. Then the local company’s employer or employees are often friends and relatives of the local party or government. Besides, it is not in the interest of the local government that the infringing company is going out of business, because this will lead to unemployment and social-unrest.
[7] The 2006 Special 301 Report states: “Litigants, according to the US Trade Representative, have found that most judges lack necessary technical training, (..),” pg. 21, available at: http://www.ustr.gov/assets/Document_Library/Reports_Publications/2006/2006_Special_301_Review/asset_upload_file473_9336.pdf.
I agree with Ms. Alexandri relativism about the effectiveness in China of these WIPO internet treaties.
"That said, don't expect too much in the way of copyright protection for online content. The Internet is where countries with advanced copyright protection and enforcement mechanisms meet their match. In acceding to the WIPO Internet treaties, what China may have done is join the rest of the world in paying lip service to the protection of copyright online."
I would like to add the following: unlike WTO TRIPs Agreement which has a binding dispute settlement mechanism, WIPO has none. WIPO is teethless.
Read Ms. Alexandri's article for Danwei here.
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