Public Domain in Chinese Copyright Law

Public Domain in the Context of Chinese Copyright Law:
A Perspective of Pluralism
This is an English abstract of Hao Dong’s doctorate dissertation (2008) defended at China University of Political Science and Law. The fulltext of the dissertation was written in Chinese.
This dissertation tries to achieve three aims: (1) to elaborate the concept of public domain in a pluralistic perspective, which maps the subjects of the public domain in two dimensions: de jure publicand de facto public; (2) to analyze the subjects in the de jure public in the context of Chinese copyright law, such as the news, the content-illegal works, and the abandoned works (copyright wavied by copyright owners); (3) to explore the subjects within the de jure private but highly possible to fall into the de facto public (such as the orphan works, the procedure-unlawful works and some parts of a work that can hardly be protected) .
Chapter one reviewed the concept of “public domain” in various disciplines. The terms of “public sphere” or “public realm” are used in political philosophies to describe a space where people can discuss the public affairs openly and impartially.  In the institutional economics, the term “public domain” is employed to describe some “residual public attributes” of specific properties which are legally assigned to the individuals. In sociology and some legal feminism context, the “public domain” was used to describe the res publica as “a bond of a crowd, of a people, of a polity rather than the bonds of family or friends”. In the context of the copyright law, some scholars regard the public domain as the terra nullius and the expansion of the copyright protection is regarded as an enclosure movement, whilst some scholars  merely treat the public domain as a logic mirror of the proprietary right. This chapter also reviewed “public domain” in the language of Chinese. This chapter argues that the concept of public domain can hardly be clarified with an approach of private/public dichotomy. A better way of elaborating public domain should be defining the “public” with a pluralist approach.
Chapter two justifies the pluralistic approach with copyright theory in the context of Chinese copyright law. Firstly, Chinese copyright law is based upon a utilitarian philosophy and the rights vested to the copyright owners are statutory rights but not natural right. Therefore, the concept of public domain is not logically premised by the concept of the private copyright. Secondly, because copyright is mainly an exclusive right to authorize/prohibit others acting, once the copyright owners waive the right deliberately or fail to exercise the right, the works may slip to the de facto public. Third, in a utilitarian framework of copyright law, the de facto public is sensitive to the incentives, the lower the incentives vested to the copyright owners, the higher ratio the works will go into the de facto public. Thus the statutory damages for the copyright infringement can be a key factor of balancing the interests, adjusting it may be more efficient than considering introduce a new right.
Chapter three analyzed the copyright waiving. Although most Chinese scholars believe copyright cannot be waived in China because of the existence of moral rights, this chapter firstly argues that such notion will not stand unless copyright is a natural right. Secondly, this chapter alerted that one has to analyze an alleged “waiving” conduct carefully, because it may be actually a conduct of authorization. A valid waiving conduct should satisfy five prerequisites, and it will leads to three legal consequences. Thirdly, as to the waiving of the moral rights, it is a mistake to make an overall conclusion on whether or not they can be waived. Each moral right has its specific features that should be analyzed respectively. Right of publication and the right of integrity can neither be transferred nor be waived. Right of revision cannot be transferred but can be waived, whereas right of attribution can either be transferred or be waived.
Chapter four shifted to the micro-analysis of the de jure public. On the term of copyright protection, I criticized the perpetual protection to the moral right in Chinese copyright law after a comparative research. Then I illustrated that the term of copyright protection is not as clear as it supposed to be because of the uncertainty of a copyright owner’s life expectancy. This brings the problem of orphan works, which will be specifically discussed in the next chapter. On the copyrightability of a work, this chapter argues that the “idea/expression” dichotomy can hardly draw the line between public domain and the domain of exclusive right. On the contrary, with the perspective of pluralism, one may find that even a work as a whole is copyrightable, some parts of it may still be within the de jure public. originality should always be a basic test for copyright infringement. As for the works created for/by the government, this chapter illustrated both the British “crown works” and the choice of denying their copyrightability. Chinese copyright law follows the latter. However, the right of publication and/or the right of compilation are actually reserved by the government with some administrative regulations. As for the news, this article argues that although they are excluded from copyright protection, they are works. This chapter propose to categorize news with three types, then bring them into the pools of full protection, statutory license and public domain respectively. Lastly, this chapter analyzed the provision of denying copyright protection to “illegal works” in Article 4 of Chinese Copyright Law, and propose to examine it with Three-Step Test stipulated in the TRIPS.
Chapter five focuses upon orphan works. orphan works are works whose copyright owners can hardly be located, hence the users may not exploit the works lawfully with the licenses issued by right owners. Although this term comes from the united states, The dilemma of orphan works and abandon software also exists in the context of Chinese copyright system, and this phenomena may be more widespread because the history of Chinese copyright law in the recent 100 years are inconsistent, unsteady and intermittent. Furthermore, the current Chinese copyright system is of not mature enough. It not merely lacks solutions for  the orphan work problem, but also exists unreasonable provisions that may worsen it. Four factor should be considered when one is about to solve the problem: (1) comply with the three-step test; (2) based on existing legal system of the country; (3) minimize the cost of both right owners and users; (4) guarantee the predictability of the benifits and the obligations. Based on these four premises, this article critically reviewed the solutions in the U.S., Canada and Japan, and then proposed a set of multi-method and integrated suggestion that suit to the features of Chinese copyright regime. The dilemma of orphan works is a typical example of the transformation from the de jure private to the de facto public.
The four annexed tables collected the key provisions of de jure public in various countries.
Public Domain, Copyright, Pluralism, Unlawful Works, orphan Works