BlawgDog | 博铎法豆
专业日志 itemprop="discussionURL"3

WTO Panel Report – DS362 US v China on IP Measures

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。

专业日志

Telecommunication vs Communication Signal

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;

专业日志

CTrip v Qunar – Who owns the Copyright?

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.

专业日志

Who owns unauthorized fixation of the performance?

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.

学术论文

Book Chapters-The Intellectual Property Law (2004)

Here are English abstracts of my book chapters in CHEN Xinghua (ed.), The Intellectual Property Law (Kunming: Yunnan University Press, 2004).

 
Chapter 25: Name of Commercial Entities and Geographical Indication
 
This chapter includes two sections. The first one introduces the following contents: the identification and characters of the Name of Commercial Entities (NCE); the conditions for gaining NCE; how does Chinese law regulate the NCE, i.e., the specific regulations in Trade Mark Law, Anti-Trust Law and Civil Law; and how could these regulations be applied in the dispute resolution. In the section of “Geographical Indication”, the notions of Indication of Source, Appellation of origin and Geographical Indication (GI) will be differentiated and compared, followed by the description of the protective mode on GI, through which the related provisions of TRIPS will be examined and possible legislation suggestions in China will be proposed.
 
Key contents of this chapter include: the identification of NCE, the difference between NCE and trade name; the name rule of NCE in China; the legal protection to NCE; the difference and connection among Indication of Source, Appellation of origin and Geographical Indication; the identification of GI in TRIPS; the protective regulation in China’s Trade Mark Law. During the studies, it is advisable that the students should familiarize the international and domestic regulations related to this chapter. And the method of moot court could be utilized to furniture the comprehensive capacity in problem resolving in the reality.
 
There are about 10,000 Chinese words in this chapter.
 
 
Chapter 26: The Intellectual Property Concerning Internet and the Information Technology
 
This chapter is a pilot pedagogy on “Internet Intellectual Property”. It discusses the questions of domain name, integrate circuit layout design and the rights of website and homepage designers. It introduces the related modern legal system and familiarizes the students about consultant know-how at one hand. On the other hand, it demonstrates the substantial influence of Internet era on the intellectual property and civil law system and the significance of cyber law.
 
Key contents of this chapter include: the concept of domain name; the identification and characters of rights of domain name; the copy right features of domain name; the dispute resolution arrangement in China; the standard of ill faith in defying domain name violation; the relation between Uniform Domain Name Dispute Resolution Policy and judicial litigation; the copy rights contents of integrate circuit layout design and the preconditions to gain such rights; the concept of data base; the copy right relations between data base software designer and website designer; the jurisdiction on Internet intellectual property disputes; the infringement of illegal using of published works and the responsibilities of website designers/owners and Internet service providers.
 
There are about 22,000 Chinese words in this chapter.
 
 
Chapter 28:The International Protection on Intellectual Property
 
This chapter briefly reviews about twenty international treaties on the arena of intellectual property; among them include the major components of Paris Convention, Berne Convention, Copy Right Treaty of WIPO and TRIPS. The protective system in relation of intellectual property in WIPO and WTO are also introduced. Furthermore, the chapter discusses the international registration of trademark and international protection on copyrights. The reader may want to refer the other chapters that examine the related questions in depth for a better understanding of this chapter. The main provisions of the international treaties and their development process are the key issues of this chapter.

There are about 18,000 Chinese words in this chapter.

寻闲 itemprop="discussionURL"1

昆明2.0：山寨版的山寨版昆明信息港

　　今天收到一个留言，说是我被列入《山寨版昆明信息港》的“本地优秀独立博客”栏目，深感荣幸。其实，前段我也在豆瓣上发帖收集过昆明的网站。而且主要兴趣是有2.0特征的和不太正经的网站。包括以昆明和昆明人为主题的各种网络群组、图片库、Blog等、论坛、杂七杂八等。

　　有兴趣的请继续推荐。推荐的时候可加一句简短评语，网站名也不一定要原模原样（方式自己看下面参考，可用昆明方言或任何语种）。我有空会把各位添加的内容合并进去，政府或各种半官方网站，以及挣钱为主的页面就免了啊。
 

昆明2.0：草根网络资源聚合——山寨版的山寨版昆明信息港

 

 综合资讯
学术论文

Lecture – WTO IP Disputes – US v China DS362 DS363

On 2 Dec 2008, invited by my friend Ms. LEE Na, I lectured for 2 hours in English at the bilingual course "Advanced Int’l Trade Law" in School of Law, Kunming University of Sci. & Tech. The topic is: WTO IP Disputes: US v China DS362 & DS363.

 Here is the PPT. It will be updated along with the dispute resolution procedures. Please visit my website for the newest version.

 

专业日志 itemprop="discussionURL"2

From FaTianXia to YaDian-从法天下到雅典学园

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。

The logo of FaTianXia.
FaTianXia (Red characters beside the left stamp of Chinese traditional "Law") means Law in the World, or Law for the World, or Study from the World, etc. The black inscription is specially presented by professor Jiang Ping, the most prominent Jurist in China. It says: Rule of the Law for Everwhere, and Thinking for China (my bad translation, while it has far more implications in Chinese).

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。

学术论文

Book Chapter – Taxation Issues in the E-commerce

DONG Hao, “Taxation Issues in the E-commerce”, in LI Zuming (ed.), E-commerce Law, Beijing: University of International Business and Economics Press (2009), 19,000 words;

Introduction:

The E-commerce should not escape itself from the taxation. However, the troditional tax law and taxation policies would not cope with the new challenges including the identification of the taxpayer, the jurisdiction issues, the "new" objects of taxation, etc. This chapter firstly analyzed the impacts of the online commerce to the traditional tax law. Then it introduced the achievements either in the academia or in the legislations in various countries. China’s relevant taxation policies and the future development are discussed in the third section of this chapter. To make this book more practical,  although the structure of the chapter can be divided to the above three parts, the whole chapter always focuses on the possible dilemma as well as the solution in the context of Chinese taxation system.

书章：电子商务中的税收问题

专业日志

Some comments to the research of Chinese law

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.

学术论文

Promoting Human Rights in Transitional Cultures

Promoting and Protecting Human Rights in Transitional Cultures:
An Empirical Case Study in Minority Regions (Excerpt)

DONG Hao

 

The article includes six sections. Only the Introduction and an excerpt of Part I and Part II are provided here. The Chinese full-text was published at Achieves for Legal Philosophy and Sociology of Law, Vol. 7, 2004, Beijing, 18,000 words in Chinese.

Click here for the Chinese Full-text (PDF)

 

Abstract:

This article reviews the dilemma on the notion of “culture” in current human rights research with seven cases related to the ethnic cultures. Associated with the analysis of cultural relativism and the universalism of human rights, the following conclusions have been made: (1) culture itself is a dynamic phenomenon which will produce significant influence on people’s rights in reality; (2) the transformation of specific ethnic culture could be in accordance with the international human rights standard by occasion, at the same time, it also constitute the obstacles to the realization of those human rights; (3) National ideology can influence the transformation of certain culture; (4) through this influence, it is possible that the traditional ethnic culture can absorb the values of modern human rights ideas; (5) there’s no hurdle between ethnic culture protection and human rights protection; (6) the culture transformation is based on its origins and basis no matter how the national ideology want to impose the impacts; (7)a precondition of influencing the ethnic culture through national intervention is to protect the existing cultures as well as its autonomy and free development; (8) the so-called culture protection could produce further influence on the transformation of the protected culture.