The challenge of copyright enforcement in china's movie industry

Katia BEIDER

The challenge of copyright enforcement in China's movie industry

Research paper
Dr. CUI

2015/2016

LAWS6116 CHINESE INTELLECTUAL PROPERTY LAW

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Table of Contents

INTRODUCTION 3

Part I: Historical grounds for challenges 7

Section I: Traditional Chinese thoughts 7

Section II: The large size of China's territory 8

Section III: The economic difficulty 9

Section IV: Censorship 9

Part II: Advantages resulting from improvements 11

Section I: Promoting the cultural development of China's movie industry 11

Section II: Promoting the economic progress 12

Section III: Promoting the social progress 13

Part III: Legal inconsistency facilitating copyright infringement 14

Section I: Incoherence with international conventions 14

Section II: Vagueness of legal terms 14

Section III: Lack of regulations toward online infringements 15

Section IV: Unreasonable and costly copyright enforcement 15

Section V: The lack of a proper deterrent mechanism 16

Section VI: A difficult reliance on administrative enforcement 17

Section VII: Chinese legal thinking on copyright protection 17

Part IV: Reforms aiming toward an effective copyright protection ... 18

Section I: Meeting its international obligations 18

Section II: Clarifying legal terms 18

Section III: Improved regulations toward online infringements 19

Section IV: Improving the consistency of the judicial system 20

Section V: Ameliorating copyright administrative enforcement 20

Section VI: the upcoming Law of the PRC for promoting film industry 21

CONCLUSION 23

Bibliography 24

Primary sources 24

Secondary sources 25

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INTRODUCTION

«Be not afraid of growing slowly, be afraid only of standing still».

This Chinese proverb could be addressed to China as far as its copyright enforcement is concerned. Indeed, even though it is common to criticize China because of its rampant piracy, a positive evolution can be observed in this area.

This research paper will examine China's copyright enforcement in regard to China's film industry. In order to have a broader approach of this subject, copyright protection of foreign imported films will complete the study of domestic movies.

Copyright is known as «the exclusive right to reproduce or authorize others to reproduce artistic, dramatic, literary or musical works» and it extends to cinematographic films.¹ In that sense, copyright enforcement refers to the activity of making copyright laws respected.

Copyright protection is granted only to eligible works. That means that a work should meet some criteria. The United States Code gives a clear definition for that purpose: «Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device».² The point (6) provides protection specifically for motion pictures and other audio-visuals works.³ China's Copyright Law also provides a list of eligible works but does not define expressly what is meant by `work'.⁴ Once again, cinematographic works are part of the list.⁵ These works are defined as follows: «works which are recorded on some medium consisting of a series of images, with or without accompanying sounds, and which can be projected with the aid of suitable devices or communicated by other means».⁶ This statement highlights the meaning of the terms employed in article 3 of the Copyright Law of the PRC above mentioned.

¹ Oxford Dictionary of Law, Eighth Edition, 2015.

² United States Code (U.S.C), Section 102 (a).

³ U.S.C Section 102 (b).

⁴ Copyright Law of the People's Republic of China, Article 3.

⁵ Ibid, (6).

⁶ Implementing regulations of the Copyright Law of the People's Republic of China, article 4.

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In order to have a complete picture of the issues analyzed in this research paper, a brief presentation of copyright's regime is needed. Indeed, if a film doesn't meet the criteria elaborated by the Copyright Law of the PRC, it will not be granted protection. This will be the case if the whole theme of a film relies only on a common idea and not on an expression.⁷ This has to do with the dichotomy existing between ideas and expressions. The World Intellectual Property Organization (Copyright treaty) and the World Trade Organization (TRIPS agreement) expressly refused to grant copyright protection to ideas.⁸ Even though, this dichotomy isn't mentioned in the Copyright Law of the PRC, as China is now a member of the WIPO and of the WTO, their treaties bind it. Ideas are not protected by copyright because they refer mainly to concepts, opinions, or human thoughts, which cannot be economically exploited because they belong to the humanity,⁹ as it is the case for air that we breathe. A movie can be said to express the producer's creativity by relying for instance on «digital effects, action scenes or characters' images».¹⁰

This requirement is closely linked to the «original intellectual creation» condition, which should be met by a work in order to be copyrightable.¹¹ The notable writer Oscar Wilde illustrated the notion of `originality' in those terms: «Every portrait that is painted with feeling is a portrait of the artist, not of the sitter».¹² It means that in order to be copyrightable, a work should emphasize the personality of the author. According to the doctrine of scenes-à-faire, a work will not express the creativity of its author if some settings used are considered as standards for a specific topic¹³. Concerning the motion picture industry, it will be the case where a producer makes a movie about Chinese revolution and includes some revolutionary songs.¹⁴ This means that usage of these settings is common and every director is free to use them without risking to be sued for infringing another movie.¹⁵

⁷ World Intellectual Property Organization (WIPO), Copyright Treaty, 1996, Article 2 «copyright protection extends to expressions and not to ideas».

⁸ World Trade Organization (WTO), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 1994, Article 9.2.

⁹ Pang Laiwan; Cultural control and Globalization in Asia: copyright, piracy and cinema; Routledge Media, Culture and Social Change in Asia; 2006; p.18.

¹⁰ Ibid.

¹¹ Implementing regulations of the Copyright Law of the People's Republic of China, Article 2.

¹² Wilde Oscar, The picture of Dorian Gray, 1890.

¹³ Alexander v Haley (SDNY, 1978).

¹⁴ Dr Can CUI, Lecture about Chinese Intellectual Property, the Chinese University of Hong Kong, 15 October 2015.

¹⁵ Yin Xiaoying Zhang Guochuan v Shenzhen Film Studio, Shenzhen Literature and Art Association &Suzhou TV Station, Beijing Secondary Intermediate Court, 11/02/2006, case n°7909.

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However, if these songs are copyrighted there must be an authorization from copyrights' owners in order to use them in the movie. Using these common settings doesn't deprive the author from his copyright if his film expresses his creativity in other ways such as his «own emotions, thoughts, knowledge and experiences».¹⁶ To illustrate, two French movies were based on the life of French designer Yves Saint Laurent.¹⁷ They had a lot of common scenes such as Saint Laurent meeting his muse Betty Catroux in a nightclub, the catwalk of one of his most successful collection (collection 1976) or scenes with his lover Jacques de Bascher. But there was no infringement because each director showed these life moments by using his creativity to emphasize his own approach to the designer's life.

Finally, this original expression should be «capable of being reproduced in a certain tangible form».¹⁸ It means that a work should be fixable. This criterion shows that the Copyright Law is there to «regulate real commercial activities»¹⁹ and not to grant protection to imaginary works of arts, science or literature. Film producers easily meet this condition as a cinematographic work is always fixed, be it on a roll of film, on a DVD or on a computer.

The authorship of a cinematographic work will belong to the «scriptwriter, director, cameraman, lyricist, composer» while copyright will be enjoyed by the producer.²⁰ Authors will enjoy moral rights: the right of authorship, the right of integrity, the right of publication and the right of alteration. Yet, Copyright owners will enjoy economic rights such as: the right of reproduction, the right of distribution, the right of adaptation and cinematography.²¹ There is no time limit concerning the protection of moral rights, except for the right of publication, so that anyone sharing a cinematographic work will have to respect them forever.²²

¹⁶ Yin Xiaoying Zhang Guochuan v Shenzhen Film Studio, Shenzhen Literature and Art Association &Suzhou TV Station, Beijing Secondary Intermediate Court, 11/02/2006, case n°7909.

¹⁷ «Yves Saint Laurent», directed by Jalil Lespert, WY Productions, 2014.

«Saint Laurent», directed by Bertrand Bonello, Mandarin Cinema and EuropaCorp, 2014.

¹⁸ Implementing regulations of the Copyright Law of the PRC, Article 2.

¹⁹ Pang Laikwan, see above note 9.

²⁰ Copyright Law of the PRC, Article 15.

²¹ Ibid, Article 10.

²² Ibid, Article 20.

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However, economic rights and the right of publication are protected only during fifty years starting from the first publication of the work or fifty years after the completion of the creation of the cinematographic work if it was not published.²³ The doctrine of fair use can constitute a defense as it allows individuals to use a published work «for their own private study, research or self entertainment».²⁴ This limit to economic rights is strictly regulated. For instance, Beijing First Intermediate Court ruled that there is an infringement of economic rights where a Film Academy projects a movie not only on its campus for teaching purposes but also during a Festival accessible to the public.²⁵

Nowadays, copyright infringement can take one of the two following forms: traditional piracy such as «unauthorized copying and selling of DVDs» and online piracy such as file sharing.²⁶ Internet piracy is a global phenomenon facilitating Intellectual Property Rights (IPR) infringement. The dissemination of works all over the Internet makes it difficult to address this kind of piracy. Traditional piracy is far from being eradicated either. As China is playing a key role in international piracy, its copyright protection should be strengthened. Indeed, its piracy rate is as high as 77 percent in China and had cost to US economy $107 billion for example.²⁷ Improvements in China's copyright enforcement will serve better the global economy by avoiding monetary loss in business' industries such as the film industry.²⁸

In order to analyze the need for a stronger copyright protection in China, we will first examine the difficult establishment of an effective anti-piracy regime due to historical grounds (Part I). This will be completed by a closer look to the advantages resulting from copyright improvements (Part II). Moreover, we will discuss legal inconsistency of China's law that facilitates infringements (Part III) and the numerous reforms that it has carried out in order to answer to these inconsistencies (Part IV).

²³ Copyright Law of the PRC, Article 21, paragraph 3.

²⁴ Dr Can CUI, Lecture about Chinese Intellectual Property, the Chinese University of Hong Kong, 31 October 2015.

²⁵ Audio-Video Company of Beijing Film Studio v Beijing Film Academy, Beijing First Intermediate Court, 10/10/1995.

²⁶ Eric Priest, 2006, «The future of music and film piracy in China», Berkeley Technology Law Journal: Vol 21:795, p.801.

²⁷ International Intellectual Property Alliance (IIPA), 2013 Special 301: China - Report on Copyright Protection and Enforcement, p.32.

²⁸ Cheung Gordon, Intellectual Property Rights in China, 2009, p.22.

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Part I: Historical grounds for challenges Section I: Traditional Chinese thoughts

Firstly, traditional Chinese thoughts present a strong challenge toward a deterrent copyright law. An old Chinese proverb «To steal a book is an elegant offence» emphasizes well the lack of a legal tradition in the Chinese traditional culture in regard to copyright.²⁹ For example, in a Confucian society copying was part of a learning process.³⁰ By copying a piece of art, an individual was actually showing respect to the author.³¹ Furthermore, Confucius developed the concept of li that governs people's behavior in a society.³² Because of a moral belief, individuals will adjust their selfish behaviors.³³ The rule of law (fa) seems to be a direct opposite of this spiritual concept because it is rigid and will suppose the use of force to maintain order.³⁴ In accordance to the concept of li, there is no need for the concept of fa. Also, the concept of li introduced the notion of equality.³⁵ This notion led to the establishment of the Republic of China as a Revolution against the Qing Dynasty. This revolution was completed with the Communist takeover under Mao Zedong, aiming to bring equality to the masses.³⁶ This concept of equality appeared as an obstacle toward copyright enforcement because copyright fees and royalties were seen as creating inequalities.³⁷ They provided profit only to authors and not to the masses.³⁸ Intellectual Property rights were appearing as tools of exploitation by granting private property rights to particular individuals.³⁹ Copyright was seen as a monopole owned by an author, in opposition to the State's supremacy in a communist idea.⁴⁰

²⁹ Cheung Gordon, see above note 28, p.20.

³⁰ Ibid., p.20

³¹ Ibid.

³² Brent Yonehara, Enter the dragon: China's WTO accession, film piracy, and prospects of the enforcement of Copyright Laws, UCLA Entertainment Law Review 9(2), (2002), p.398.

³³ Ibid.

³⁴ Ibid.

³⁵ Ibid.

³⁶ Ibid.

³⁷ Ibid.

³⁸ Ibid.

³⁹ Cheung Gordon, see above note 28, p.21.

⁴⁰ Brent Yonehara, see above note 32.

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