Author’s right or Copy right: The Melting Pot of China’s Copyright Law Hao Dong, Donnie Fellow, Berkman Center for Internet and Society [email_address] http://www.blawgdog.org

Who is the Dominant One? John Locke Jeremy Bentham Confucius karl Marx

[a] page of history is worth a volume of logic . -- Oliver Wendell Holmes, Jr.

Ancient China It has been proved that the highly reinforced dictatorship and the Neo-Confucianism jointly hindered the forming of the western concept of exclusive copyright in ancient China .

It has been proved that the highly reinforced dictatorship and the Neo-Confucianism jointly hindered the forming of the western concept of exclusive copyright in ancient China .

(1909~2009)

(1909~2009)

The Qing Empire Treaties between the US/Japan &China Only protect the US/Japan works specially created for Chinese readers; only protect the registered books. Zheng v. Dingxin Bookstore 1910 Copyright Act: The first legislation  No moral rights; No right to translation. It is merely an urgent struggle to avoid collapse The Imperial Regime died in 1911.

Treaties between the US/Japan &China

Only protect the US/Japan works specially created for Chinese readers; only protect the registered books.

Zheng v. Dingxin Bookstore

1910 Copyright Act: The first legislation  No moral rights; No right to translation. It is merely an urgent struggle to avoid collapse

The Imperial Regime died in 1911.

Republic of China (Beijing) 1915 Copyright Act of ROC (Peking): A copy of Qing’s last legislation: Registration War, War, War ...

1915 Copyright Act of ROC (Peking):

A copy of Qing’s last legislation: Registration

War, War, War ...

Republic of China (Nanking) 1929 Copyright Act of ROC (Nanking ) :  Registration; no moral rights War , War, War ... 1944 Amendments (Chungking) :  Registration; no moral rights War , War, War ... 1948 Amendments (Nanking) :  Registration; no moral rights

1929 Copyright Act of ROC (Nanking ) :  Registration; no moral rights

War , War, War ...

1944 Amendments (Chungking) :  Registration; no moral rights

War , War, War ...

1948 Amendments (Nanking) :  Registration; no moral rights

Republic of China (Taiwan) 1964 Amendments (Taipei) :  Registration; no moral rights 1985 Amendments (Taipei) :  Automatic Protection, moral rights  No registration no inheritance / right transfer 1990 Amendments  Automatic Protection 1992 ... 11 times ... April 2009

1964 Amendments (Taipei) :  Registration; no moral rights

1985 Amendments (Taipei) :  Automatic Protection, moral rights  No registration no inheritance / right transfer

1990 Amendments  Automatic Protection

1992 ... 11 times ... April 2009

The Maoist Notion In the world today, all culture, all literature and art belong to definite classes and are geared to definite political lines. There is in fact no such thing as art for art's sake, art that stands above classes or art that is detached from or independent of politics. -- Speech at the Yan'an Forum on Literature and Art (May 2, 1942, Yan’an)

In the world today, all culture, all literature and art belong to definite classes and are geared to definite political lines. There is in fact no such thing as art for art's sake, art that stands above classes or art that is detached from or independent of politics.

-- Speech at the Yan'an Forum on Literature and Art (May 2, 1942, Yan’an)

People’s Republic of China 1950 ~ 1957: tried to draft a copyright law 1957: “remain of bourgeois rights” 1957 ~ 1970s (era of isolationism) “ [literature and arts are] powerful weapons for uniting and educating the people and for attacking and destroying the enemy.” – Mao “ [intellectuals are] friends”, and gradually “became a part of working class.” - Zhou Incentives: Fixed Remuneration & Wages No Exclusive right

1950 ~ 1957: tried to draft a copyright law

1957: “remain of bourgeois rights”

1957 ~ 1970s (era of isolationism)

“ [literature and arts are] powerful weapons for uniting and educating the people and for attacking and destroying the enemy.” – Mao

“ [intellectuals are] friends”, and gradually “became a part of working class.” - Zhou

Incentives: Fixed Remuneration & Wages No Exclusive right

PRC, after 1978 1982: Foreign Investment Laws, for ... Satisfy Sino-US Treaty (1979) and attract foreign investments 1984: Temporal Ordinance of Copyright; and 1986: General Principles of Civil Law, for ... Join GATT (failed in 1994) 1990: Promulgation of Copyright Law, for ... Join Berne Convention (1992)

1982: Foreign Investment Laws, for ... Satisfy Sino-US Treaty (1979) and attract foreign investments

1984: Temporal Ordinance of Copyright; and 1986: General Principles of Civil Law, for ... Join GATT (failed in 1994)

1990: Promulgation of Copyright Law, for ... Join Berne Convention (1992)

PRC, after 1990 2001: Amendments to Copyright Law, for... Become WTO Member (2001) 2006: Regulation on Rights of Making Works Available Online, for ... Ratify WCT, WPPT (2007)

2001: Amendments to Copyright Law, for... Become WTO Member (2001)

2006: Regulation on Rights of Making Works Available Online, for ... Ratify WCT, WPPT (2007)

The Multiple Foreign Impacts

Identity and Incentives to Authors Identity Rewards Intellectuals Ancient China Honors and social status Brainworkers Communist Era Wages and remuneration Authors Opening-up Exclusive rights to “authorize” and royalties. Not the “right to do ...”

Conclusion Chinese traditional social and political structure could hardly evolve copyright law or the European style of author’s right law. All the laws are under the pressure of western powers or the globalization. It was not a law following the God’s order, not a law fulfilling the existing moral requirement, nor a law collecting the customary usage embedded in Chinese traditional culture. Copyright in China has been and is now still a utilitarian concept.

Chinese traditional social and political structure could hardly evolve copyright law or the European style of author’s right law. All the laws are under the pressure of western powers or the globalization.

It was not a law following the God’s order, not a law fulfilling the existing moral requirement, nor a law collecting the customary usage embedded in Chinese traditional culture.

Copyright in China has been and is now still a utilitarian concept.

When two Utilitarian Giants Meet ... The inner utilitarian essence + the outside features of European mode + the influence of socialist ideology (collective interest) = the difficulty of legal enforcement in China.  the continuous collision between US and China

The inner utilitarian essence + the outside features of European mode + the influence of socialist ideology (collective interest)

=

the difficulty of legal enforcement in China. 

the continuous collision between US and China

The Effects to the Information Flow Internet  Intranet? US: deny to access for individual interests (interests of introduction ) CN: deny to access for “collective interests” (interests of “social stability”) Reverse Movement? US: domestic free culture and int’l freeze culture? CN: domestic freeze culture and int’l free culture? Isolationism again?

Internet  Intranet? US: deny to access for individual interests (interests of introduction ) CN: deny to access for “collective interests” (interests of “social stability”)

Reverse Movement? US: domestic free culture and int’l freeze culture? CN: domestic freeze culture and int’l free culture?

Isolationism again?

Thanks! HAO DONG Website: http://www.BLawgDog.org E-mail/MSN ： [email_address]