A User-Unfriendly Draft: 3rd Revision of the Chinese Copyright Law

AuthorHong Xue
PositionDirector of Institute for Internet Policy & Law, Beijing Normal University
Pages350-354
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350
A User-Unfriendly Draft: 3
rd
Revision of the Chinese Copyright Law
Dr. Prof. Hong Xue
Director of Institute for Internet Policy & Law
Beijing Normal University
Abstract.
Chinese Copyright Law is g oing to be revised for the third time. A Draft of the 3
rd
Revision was relea sed for public consultation. As a critical reading of the Draft, the paper points
out a variety of defects of the Draft, including restricting fair use, unreasonably expanding the
scope of copyright and neighbouring rights, strengthening copyright en forcement and collective
management, and stretching legal protection for techno logical measures and right management
information. Although China has enacted the national strategy of indigenous intellectual property
and the 3
rd
Revision is not under imminent trade pressure, the Draft fails to correct the
misconceptions, such as “the more the better” (more copyright protection and enforcement, the
better economic growth and social development), “one size fits all” and “modelling on US law”
and misses the opportunities to revamp its Copyright Law in the n ew century.
© 2012 Hong Xue . Published by JICLT. All rights reserved.
1. Introduction
Chinese Copyright Law, i n its 21-year history, has only been revised twice in 2001 and 2010 respectively. From
its initial enactment to two revisions, foreign trade had always been an important consideration. In 198 0s, several
rounds of Sino-US intellectual property negotiation in the ambit of bilateral trade negotiation was the pushing
force for the promulgation of the Copyright Law in 1990. In 2001, the Copyright Law was completely revised to
be complied with t he TRIPS Agreement before China’s ac cession to the W TO. In 2010, the Copyright Law was
revised for the 2nd time to be complied with the WTO DSB Panel Report regarding US-China intellect ual
property dispute. Since the 2nd revision merely covered the limited provisions addressed in the WTO dispute,
2001 Copyright Law was largely kept intact.
The 3
rd
Revision, against the background of Chinese natio nal strategy of indigenous innovation and arising
economic power, will be a comprehensive revision. After 2 years’ preparation, a Draft of 3
rd
Revision was
officially released by the National Copyright Administration of China (NCAC) for public consultation on March
31, 2012.
The Draft made efforts to improve the coherency of the Chinese cop yright legal system, which consists of
Copyright Law and a patchwork of Regulations for implementation or interpretation of the Copyright Law, such
as “Implementing Regulations”, “Software Regulations”, “Regulations on Right of Communication via
Information Network” and “Collective Management Regulations.” The Draft that integra tes the contents of the
existing Regulations is almost one third longer than the Copyright Law. The Draft also contains a few designs
that may facilitate people’s access to knowledge, such as a quasi-compulsory licensing for “orphan works”,
although the ambiguity and restriction in these designs may substanti vely affect their effectiveness.
Notwithstanding the positive side, the Draft fails to review several misconceptions, such as “the more the
better” (more copyright protection and enforcement, the better eco nomic growth and social development), “one
1
According to the Draft, a work author of which cannot be identified or found after diligent search may be used provided that
licensing fees are submitted to the NCAC. The Draft calls for a new set of regulations to define the new system.

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