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 Two of them are published and can be found at this site (click here and here), while the other two are still not be published.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.
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