Deputy Director of National Copyright Administration Yan Xiaohong: China’s Copyright Protection and Development

Issue 30 Harry Yang China IP,[Copyright]

On April 21, 2009, Mr. Yan Xiaohong, Deputy Director of the General Administration of Press and Publication (GAPP) and Deputy Director of the National Copyright Administration of China (NCAC) visited People’s Daily Online for an online video interview on China’s copyright protection and development. After the interview, Mr. Yan attended the Strong China Forum and interacted with netizens, answering questions on China’s copyright status.

People’s Daily Online: During the NPC and CPPCC sessions this year, Premier Wen Jiabao put forward the implementation of the National Intellectual Property Strategy together with the strategy of revitalizing China through science, education and talent in his government work report. What specific measures will the National Copyright Administration take this year to implement intellectual property strategy?

Yan Xiaohong: Last June, the State Council promulgated and enacted the Outline of National Intellectual Property Strategy, which marked China’s entrance into the IPR protection phase of overall advancement and implementation.

To fully implement national IP strategy, the NCA will emphasize the following six working systems in the field of copyright.

The first is a copyright legislation system, which refers to the legislation on copyright. After the 2001amendment of the Law of Authors’ Right, technology developed quickly, and many new circumstances and problems emerged. It is necessary now to revise the Law of Authors’ Right, and to legislate for the protection of special copyright works on the basis of the Law of Authors’ Right, such as computer software, folk art, etc.

Second is the enforcement system for copyright protection, which the public is more familiar with. Preliminarily established in China, China’s copyright enforcement adopts a judicial and administrative parallel system, which is a feature and advantageous to China’s copyright protection. China’s market economy is not yet perfect, and the government bears significant responsibilities and tasks before the rules of the market are fully established. Law empowers the administrative departments with enforcement rights, which makes it possible to efficiently and quickly put an end to behavior that damages public interest and disturbs social order.

Last year, China did an excellent job in protecting copyright for the Beijing Olympic Games. On the one hand, the Chinese government paid great attention to the IPR protection; on the other, they attached importance to the success of the Olympic Games. The administrative enforcement mechanism in the parallel protection system fully exerted its role and took full advantage in seizing piracy quickly and with cost efficiency.

The third is copyright public service. There is no mention of this concept previously. However, we now attach great importance to this issue. For instance, if right holders want to register their works, there should be a public platform to serve their needs.

Fourth, the copyright industry should be developed. In the past, we did not talk much about the copyright industry. It was misunderstood that the industry was about composing and listening to music and that it was the composer or author’s own business. However, with social progress and dissemination of copyright works, countries all over the world now pay greater attention to the development of works after being created. Although the holder of a copyright is clearly defined under civil law, the reproduction and dissemination is interrelated with the public and even national interests. For example, the development of the cultural industry relies on all types of works. There is a concept called scale reproduction. When a book is reproduced in large scale, one million copies for example, it brings large economic benefits. Industrial development is also pushed ahead by a wide range of dissemination.

The fifth is the construction of an international copyright response system. So far, China has joined all the major international copyright conventions, including the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property Rights. We should know the international copyright rules when indulging in foreign exchange. In compliance with the requirements of international rules; we should also try our best to adapt to China’s national conditions. The threshold should not be raised but should be in conformity with the IPR application status of China. 

Sixth, the copyright sector needs to coordinate with other governmental departments and jointly strengthen copyright work.

People’s Daily Online: Just now you mentioned the revision of the Law of Authors’ Right. Would you please tell us more about the background, and the process of this work? 

Yan Xiaohong: The amendment to the Law of Authors’ Right is of great concern both at home and abroad. The current law was enacted by the National People’s Congress in the early 1990s. In order to join the WTO, the first amendment was made in 2001 to link China’s laws up with international rules. Now 8 years have passed and this law has survived the test of time. It has proven to be a law suitable to China’s national conditions, and also in line with international rules. However, technology is developing at a high speed and new problems are emerging. For example, the development of the Internet results in technical problems, which can only be solved after a revision of corresponding articles. The new amendment to the Law requires the approval of the National People’s Congress. National Copyright Administration, and is now doing research on the contents that should be revised. We also solicit opinions from copyright holders, right holder associations as well as copyright users. 

People’s Daily Online: Presently, many cities are boosting the development of cultural and innovation industries. So, does IPR protection have anything to do with the development of cultural and creative industries? In addition, what has the National Copyright Administration done to promote the copyright industry? 

Yan Xiaohong: Culture and innovation industries are closely related to the copyright industry. However, if people do not know much about these industries, they might think that the two are separate from each other. They are different in the aspect that the culture industry is mainly focused on the spiritual needs of people, which are similar to material demands. As a social demand, there should be a driving force from society. The culture industry is regarded as a country’s soft power, and is highly valued throughout the world. The concept of the copyright industry was first put forward by the United States and leads the industry. By way of example, the broadcasting time of films produced by the United States has captured a large share in the world. Though American film output is not the biggest in the world, its broadcast time nearly accounts for 70% in Europe, which in turn impels industrial development.

What is then the relationship between copyright and culture? Culture has a history of thousands of years, but the copyright system emerged just a few hundred years ago. Culture and copyright are not inconsistent, and we need a different perspective to look into this issue. 

Copyright is promoting culture from the perspective of creating and using intellectual fruits. These days, international and domestic environments have both changed. We have to learn once again the value of intellectual outcome and respect it. In consequence, our use of these works can follow the rules of law and form a legal order, which will again become an inexhaustible motivating force for China’s development. We must not use the works as casually as the use of pirated works. From this aspect, copyright and culture is closely related to each other. To be more general, copyright protection is not to restrict, but to encourage creativity and provide more good works for society.

People’s Daily Online: Last October the China Audio-Video Copyright Association sued 100 KTV clubs in Beijing. The case aroused huge public interest in the protection of music copyrights. Could you introduce the NCA’s work in the collection of royalties from radio stations, television stations and KTV clubs?

Yan Xiaohong: This issue has drawn much social concern. The collection of copyright royalties from TV stations and the KTV can be divided into two categories in accordance with law. One is charging the KTV for copyright works, which should obtain prior permission from the right holders according to related provisions. Whereas, China’s law has quite different provisions on the use of copyright works impertinent to radio and television stations, because they are non-profit and serving the public interest. In addition, radio and television stations use a large amount of works that are also dispersed. In order to safeguard the interests of the public, law makes certain restrictions on right holders, which is in legal terms is called statutory license. Radio and television stations can use the works without permission of copyright holders, but they should pay the royalties afterward.
 
KTV royalty is quite a new term in China. In 2005, China promulgated the Copyright Collective Management Regulations. The copyright collective management organization, which was established in accordance with the regulations, is commissioned by the copyright holders to collect royalties on their behalf. We should make it clear that it is not the National Copyright Administration that collects royalties, but the copyright owners. Since the works are scattered, it is impossible for every copyright holder to collect copyright fees in all KTV clubs. Moreover, this collection method would be expensive. Therefore, copyright collective management organizations have been created in countries all over the world including China, such as the China Audio-Video Collective Management Association, which is empowered to collect copyright fees with the right holders’ authorization.

The schedule of royalties should be negotiated by the two sides. If no agreement is reached, the KTV clubs shall not use these copyright works in accordance with law. The NCA will publish the schedule once it has been determined. Though the schedule is the result of negotiation, not all KTV clubs have participated in the negotiation process. Therefore, it is necessary for the NCA to inform them by public notice.

Article 43 of the Law of Authors’ Right is the legal basis for the collection of royalties from radio and television stations. At present, led by the Legislative Affairs Office of the State Council, State Administration of Radio, Film and Television, and the NCA is working together to propel this work. It is a tough task, and we need to solicit opinions from all interested parties. So far, we have made some breakthroughs. Related parties have reached a consensus that fees shall be paid for the use of other people’s works, which is a big advance. They have now a clear understanding on how to pay the royalties. The international standard is by far too high for us to follow when we fully consider China’s actual situation. However, we should also take into account the hard work of copyright holders and respect the knowledge and creation. We should this into account in the use and charging standards. We believe that neither a high nor low standard is appropriate. We are now cooperating with the Legislative Affairs Office. Personally, I think the timing is right and we should not wait any longer. 

People’s Daily Online: Network video broadcasting is a rising industry. With its development, more IPR violation actions appear. What’s your view on the so-called “copyright dilemma” faced by video sites?

Yan Xiaohong: In fact, the problem is not confined to video sites. It can happen to every website, because it is determined by the basic characteristics of the Internet. One is that the information capacity of the Internet is huge and the other is that the Internet is particularly convenient and fast. I think they are also the major features that bring us great convenience in daily life. With regard to the copyright issues of the Internet, all video sites included, we should know that the Chinese government attaches great importance to this issue. It is not just empty talk. China’s legislation does not lag behind any other countries in this field. The Chinese government issued the Regulations on Protection of the Right of Communication through Information Network, which has received international acclaim. China also joined in 2007 two new international treaties. Still, we are facing two prominent problems. I think law enforcement is not completely in place now and must be strengthened. Also, due to the rapid technological development, the Internet is confronted with many new situations and problems. After the enactment of Regulations on Protection of the Right of Communication through Information Network, new problems have called for a new amendment to the regulations.

IPR in cyber space, like everything else, has been created by people in an objective world. It has a different way to disseminate, but remains the same from the aspect of creativity. In the real and physical world, we adopt the principle of authorization before dissemination. Under the Internet context, this principle should also be followed by video sites. In the meantime, we have to admit that it’s very inconvenient for website operators to get permission from all the right holders. I insist that this problem be treated seriously and resolution be found. Currently, there has been much exploration and certain practices have formed in this area. The National Copyright Administration also pays due attention to these issues. The NCA expects that a copyright holder association, like the copyright collective management organization, can pack up these works and authorize related websites to use them, which will be more convenient for the site operators. This is not only a bottleneck we confront in our way of Internet development, but also a worldwide problem. 

People’s Daily Online: In recent years, “Shanzhai,” or the Robin Hood culture, has become very popular. Media is very concerned about the “Shanzhai Culture.” Many differences and disputes are also raised. What do you think of the relation between the “Shanzhai culture” and copyright?

Yan Xiaohong: This issue is sharp. It was a hot topic during the NPC and CPPCC sessions this year. I noticed that many representatives, including the Director of General Administration of Press and Publications Liu Binjie, Minister Zhao of Ministry of Culture and some cultural celebrities, spoke on this issue. I think they expressed themselves very well. I believe that, we cannot simply deny this new culture. As a new social phenomenon, its existence must be based upon some social reasons and origins, which should be analyzed carefully. The “Shanzhai culture” is a general concept. It includes a series of problems that were introduced by mobile phone. From the perspective of intellectual property, besides copyright, the “Shanzhai culture” also involves the use of technology, patent, brand and trademark. Thereby, we should make a detailed analysis on the “Shanzhai culture.” Some of the Shanzhai products are the outcome of creation and should be protected by copyright. As long as this creation does not go against laws, it is necessary to protect their copyrights. There is also a type of “Shanzhai culture” that constitutes infringement. These infringement acts should be settled by legal means, and the infringements should be terminated.

In addition, there appears a transition zone between the above-mentioned two types and it’s hard to define the nature of the acts in that zone. Consequently, there are some acts of imitation that we need to determine whether they constitute infringement. Since some of them are very professional, experts are needed to identify their nature, fine art for instance. Take book infringements for example. A Special analysis shall be made to tell whether it is a comprehensive infringement or partial infringement, or the infringement upon the book’s main idea. The “Shanzhai culture” not only relates to the issue of copyright, but also involves many different divisions. I think we should keep a positive attitude and keep a gentle mind towards it. We should accept and then guide and regulate its progress. As a result, the “Shanzhai culture” would conform to the law and become popular in the public, which is a healthy trend in development.


(Translated by Li Yu)

 

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