Let’s see the three versions of English translation to Article 4(1) of Chinese Copyright Law:
Its Chinese orginal wording:
依法禁止出版、传播的作品，不受本法保护。
(Yi Fa Jin Zhi Chu Ban, Chuan Bo De Zuo Pin, Bu Shou Ben Fa Bao Hu.)
今晚在中国期刊网的RSS上读到某标题，相当有气势，再看摘要，雄浑之气跃然液晶屏之上，赶紧登入数据库。好家伙，从桑斯坦到温特沙伊德，从合同法到反垄断，短短四千多字，寰宇收入囊中，沧海归于一粟。。。而且更牛的是，其中箴言性质的语句磅礴而出，俯仰皆是，至少90%是无可辩驳一定正确的。
忽然想起Word软件有个词语替换功能，于是替换了些关键词，把文章中的主语和宾语替换成与其所讨论内容距离遥远的主题，发现又是另一篇文章，而且照样有气势，照样很磅礴，照样很正确。例如：
标题：《张大妈需要谨慎对待打酱油》
Here is a very brief summary to some of my understandings to the Right of Communication of Information through Networks in Chinese Copyrgiht law. This summary was completed in 2007. My consideration has been improved much afterwards. Just post it for record.
I’ve completed four papers in Chinese on these arguments. Two of them are published and can be found at this site (click here and here), while the other two are still not be published. I also drafted (and keep on updating) an English artilce on this topic, and it will be included in my PhD thesis.
"Internet Clauses" in Chinese Copyright Law
In Copyright Law of People’s Republic of China, a “Right of Communication of Information through Networks" (RCIN hereinafter) was regulated and defined in 2001’s amendment. In 2006, an ordinance specifically concerning this right was promulgated by central government of China. Together with some administrative regulations and judicial interpretations, China has established a system of online copyright protection. My primary arguments and discoveries are as follows:
Firstly, whilst Chinese Copyright Law defines some rights of "communication through networks" for performers and recorders respectively, RCIN is by its definition only a branch of the author’s right but not under the title of neighboring rights. This argument has also been confessed by some Chinese scholars. I strengthened the reason and clarified the distinction between RCIN and neighboring right (or relating right) owners’ similar rights.
Secondly, although the Article 10, clause 1 (12) of Chinese Copyright Law specifies RCIN with the characters of "the public", "by wire or wireless", "a place and at a time individually chosen" and "communicate work", it still not provides a clear and reasonable conception for the distinction to the other paratactic author’s rights defined in the same article. The reason of this loophole comes from confusing of the abstract legal concepts with the idiographic descriptions, which I have discussed above.
Thirdly, with the illustration of the existence of "intangible medium of copyright work" and clarification of it from "copyright work", I find a reasonable way to interpret RCIN in the context of Chinese Copyright system, which is to confine the right of distribution and the right of exhibition’s objects into the "tangible medium", and to specify the object of RCIN as the "intangible medium".
Fourthly, China’s RCIN is quite distinguished from the Right of Communication to the Public in Article 8 of WCT. RCIN is a specific branch of author’s right, whilst Article 8 of WCT is merely a minimum requirement to the treaty parties. One should not interpret the former by using the interpretations to the latter.
Fifthly, a performer is incapable to enjoy the right of communicate his own performance to the public on information network, but can merely authorize others to communicate his performance to the public on information network. While the sounds recorders and video recorders should enjoy the "right of communication to the public through information network by themselves", but The Law neglected it wrongfully.
Sixthly, it is reasonable to restrict the Radio and Television Stations enjoying the right to communicate to the public on information networks. And the “communicators” shall not own a specific right for their activities of “communicating the information”. In another word, the range of relating right shall not be unreasonably extended.
Seventhly, according to Decision of the Standing Committee of the National People’s Congress on Acceding to the WIPO Performances and Phonograms Treaty, China make a reservation to WPPT Article 15. After reviewing the negotiation process of WPPT, I find this reservation seems not necessary since China has already provided the legal mechanism for protecting the right stipulated in WPPT Article 15.
同学们，上课了。根据名字很长很长的中心（简称中违不报中心）从名字很长很长的办公室（简称全整办）了解到的情况，这次清理整治网上低俗内容主要包括以下十三项。为了让同学们更生动活泼地学习中心和办的精神，在每条后加上链接，作为具体例子（均出自被表扬网站），请注意一定要用批判地眼光，牢记登在哪里比登了什么重要这个大的原则，全面理解此次行动的重要意义。
1、直接暴露和描写人体性部位的内容；点这里
2、表现或隐晦表现性行为、具有挑逗性或者侮辱性的内容；点这里
3、以带有性暗示、性挑逗的语言描述性行为、性过程、性方式的内容；这里
4、全身或者隐私部位未着衣物，仅用肢体掩盖隐私部位的内容；点这里
5、带有侵犯个人隐私性质的走光、偷拍、漏点等内容；点这里和这里及这里
7、相关部门禁止传播的色情和有伤社会风化的文字、音视频内容，包括一些电影的删节片段；点这里和这里
8、传播一夜情、换妻、性虐待等的有害信息；点这里
9、情色动漫；点这里
10、宣扬暴力、恶意谩骂、侮辱他人等的内容；点这里（注意最后一段）
11、非法性药品广告和性病治疗广告等相关内容；
12、恶意传播侵害他人隐私的内容；点这里
13、推介淫秽色情网站和网上低俗信息的链接、图片、文字等内容。本贴算不算？
On 26 Jan. 2009, a Panel established by the WTO’s Dispute Settlement Body issued its Report on the case China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights (DS362). The United States brought the complaint. The full Report can be found here. An excerpt containing just the Panel’s conclusions and recommendation can be found here. A summary of the case can be found here.
ps一点牢骚: 关于中国著作权法第四条的讨论，我在2008年初已经写就万字文章，可惜因为懒于联系杂志，一直未能正式发表，现在想来有些遗憾。如果有需要，可给我发邮件（如果能帮忙推荐发表就更好了，唉……）。
我们缺乏对既存中国著作权法条文的精细研究。轻率的宏大叙事和价值关怀，以及动辄审问“研究意义”的倾向，再加上以翻译外国法为立论基础，忽视中国自身法条解释的奇怪论证逻辑，再三遮蔽了我们的视线。DS362一役，让WTO专家组帮我们解释中国法律，其中尴尬，可堪为戒。
Telecommunication and Communication Signal in Canadian Copyright Act
This is a bilingual post. Chinese version is following the English one.
加拿大版权法中“电磁通讯”与“广播信号”的区别
这是一篇双语日志，中文版跟在英文版后面。
Easy124, a reader of this blog, sent me some provisions in Canadian Copyright Act, and asked me some questions on the performer’s rights in that law.
Actually I am not among professionals specially in Canadian law. Last time I read the Canadian Copyright Act was two months ago when I was revising my paper on orphan Works. So to me, his questions are opportunities for my study rather than enquires for somehow expertise.
There are three questions raised by Easy. I have mentioned one of them in a former post, which is about the unauthorized fixation of a performer’s performance. Here I’d like to discuss another interesting question: difference between "telecommunication" and "communication signal". The last question about the Right to Remuneration will be disscussed later.
In Section 15 (1) (a) of Canada Copyright Act, the law noted that, if a performance is not fixed, its performer has the right:
(i) to communicate it to the public by telecommunication,
(ii) to perform it in public, where it is communicated to the public by telecommunication otherwise than by communication signal, and
(iii) to fix it in any material form,
Easy’s question are: What’s the difference between "telecommunication" and "communication signal"? Why the copyright is hereby refined to "perform [the performance] in public, where it is communicated to the public by telecommunication otherwise than by communication signal"?
In fact, these two terms has been legally defined in Sec. 2 of the Canadian Copyright Act:
"communication signal" means radio waves transmitted through space without any artificial guide, for reception by the public;
It is widely reported (in Chinese) that Beijing Haidian District People’s Court has given its decision on the copyright disputes between CTrip and Qunar.com.
Qunar’s search engine crawls CTrip’s website, as well as other similar sites, and search the customers’ comments to hotels, then list the thumbnails of those comments in Qunar’s own pages. According to the news, CTrip sent lawyer’s letter to Qunar three times in June and July. Then it sued Qunar in November.
According to the news (now the judgment still can not be obtained through the Internet), the court seems confirmed that CTrip "owns the copyright to the content and resources in its website". I wish it would just be a new wrongful or half-baked quotation by the journalists. If the court really ruled the case in this way, the court’s tender attitude to the database would create the new regulations in Chinese copyright law (no matter how illegal of this creation in Chinese legal system).
The defendant seems willing to appeal the case to the higher level court, according to the news, again.
Looking forward to read the full text of the judgement. Before that, I will not comment the case in details.
This is a bilingual post, Chinese version follows the English one (the two versions are not exactly same).
未经许可制作的表演录音（像）的著作权问题：这是一篇双语日志，中文版本在英文后（内容略有不同）。
Fixation of the performance without the performer’s authorization will infringe the copyright. However, the questions follow: shall those unauthorized phonograms totally be discarded? Who can use them, and in what extent?
Easy124, a reader of this blog, sent me some provisions in Canadian Copyright Act. Among them, Section 15 (1) (b) noted that a performer has a copyright to:
… reproduce any fixation that was made without the performer’s authorization.
This is a bilingual post. The Chinese version is following the English.
这是一篇双语日志，中文部分在后面。
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The logo of FaTianXia. |
FaTianXia[dot]com (closed now) impressed me when I saw it at the first sight by its significant technological progress comparing to other Chinese online legal communities. Its founder, KaKaYu had obviously tried his best to design a user-friendly and multifunctional Web 2.0 style interface. I blogged it with joy immediately.
Perhaps because of the "BBS culture" in Chinese Internet sphere, or because of the tendency of grand narrative in Chinese legal blogosphere (this tendency has been changing significantly in recent two years), the content in FaTianXia was not as diverse as its technological functions. However, the defects cannot obscure the virtues. It is still one of the best non-profit grass-roots legal communities in China, at least in my view.
In fact, because I have my own independent BLawgDog.com, so I actually was not an active user of FaTianXia. I just established a mirro site of BLawgDog at FaTianXia, and occationally uploaded my posts together with their URLs at BLawgDog to lure the eyeballs to my own site. For a UGC (User-generated Content) site, criticising it but with almost zero contribution, is more or less an unkind behavior.
Last December, FaTianXia was closed. I don’t know the exact reason, so I cannot say anything on it. What I can say currently is: I find a new Web 2.0 style Chinese legal site: YaDian (means Athens Lyceum in Chinese). It might be the best non-profit grass-roots online legal communities in China, at least in my view.
从见到法天下的第一天起，我就被它深深吸引。相比其它中文法律社区网站，它在技术理念上大大进步。其主办者卡卡鱼从一开始就尽力将其打造成为一个界面友好、功能丰富的Web2.0网站。为此我还兴奋地专门写过一篇日志。
也许是因为中文网络环境中的“BBS文化”，也可能是因为中文法律博客圈的宏大叙事倾向（近两年有非常大的改观），法天下中的内容还是比较平面化和单一化。但瑕不掩瑜，在我看来，它仍然是中国最好的非营利性草根法律社区之一。
After more than thirty years legal march, the Chinese legal system has been more and more complicated (although still immature and full of conflicts), and it is the time to review it as an integrated system but not only a target of criticism.
For instance, the research to the text of Chinese legislation may frequently meet a paradox: why the standards in Chinese law are not enforced in practice? The researchers may attribute to the Confucian culture, "Asian Value" and the corruption (or arbitrariness) of authoritarian regime, etc. It seems the violation of human rights, the censorship of Chinese Internet and the widespread piracy in Chinese copyright market were normality, or that would not be China. However, these not-wrong discoveries are mostly not able to provide solutions. A combination of positive research to Chinese law and the observation to either the existing reform within the regime or the potential trends in the society, as what I am trying in my proposed research, may make the solutions nearer.
《著作权限制制度比较研究》[注：点书名到卓越网购买]的作者王清老师给我留言如下：
虚拟服务器的出租方属于提供信息存储空间的网络服务提供者应该没有疑问，但是，他们如何根据《信息网络传播权保护条例》第22条之（一）来“明确标示该信息存储空间是为服务对象所提供”？因为，这种情况下，网络服务提供者没有对外的网站，而租用者网站是不可能自己标示。在该条规定的必须同时满足五种条件下，似乎该累提供者难以适用该条免责。感觉该条仅针对类似土豆网的视频网站所规定。
