Copyright protection in a statutory form can be traced back to the Qing Dynasty

The Copyright Code of Great Qing Dynasty was issued in 1910. In the early 20th century, the internal and external situations required political reform to be put on the agenda. The Qing Government assigned Shen Jiaben and Wu Tingfang as the law ministers. They later introduced the western legal system and developed a series of laws, thus opening the prelude to the evolution of the modern law. The Copyright Code of Great Qing Dynasty as a special protection law on copyright was born in this far-reaching historical change.

According to the historical records, the Copyright Code of Great Qing Dynasty consists of five chapters, namely, general rules, the duration of right, submission, and limitation of right and supplementary. It also included fifty-five items regulating on the definition of copyright, the scope of the involved work, the author’s rights, the procedures to obtain copyright, copyright duration, the copyright limits and other issues as well.

After the overthrow of the Qing Dynasty, the Copyright Code of Great Qing Dynasty was postponed to take effect in 1915 by the Presidential Decree “Temporary Citation” issued in March of 1912. Later, the Northern Government promulgated the Copyright Law based on the Copyright Code of Great Qing Dynasty.

Writ---The Original Form of Copyright Protection

As Shen Houduo introduced, “Although there was no copyright statute before the promulgation of the Copyright Code of Great Qing Dynasty, the protection of copyright did exist. At that time, the copyright law was represented in the form of a writ. The protection was focused on the publisher rather than the author. As the shoddy piracy affected the quality of works and affected the interests of bookstore, the bookstore required the local government to issue the writ to protect the rights of publication, for example, providing the notice of the bookstore dedicated publishing and no pirated printing was permitted. In this way, the rights of the bookstore were protected and the pirates were published. The original copyright protection was quite simple in form and had no uniform law to regulate.”

Times Demands a Law

“Foreigners first proposed the copyright protection concept,” said Professor Shen. “With the country door of the late Qing Dynasty, being opened in force by invaders, the people of insight realized China was lagging behind. They began to learn the advanced western culture and thinking, with the aim of making the nation stronger and the people wealthier. Under such a situation, translations and printing books increased rapidly. The foreigners raised objections and required the Qing government to prohibit the transmission of their works at will. Since there was no such copyright law, there was no way to protect any work. The foreigners thus required China to sign a treaty with them to solve this problem.”

“For the Qing emperors, on one hand, if they agreed to sign the treaty, China’s citing of foreign works would be limited; on the other hand, the Qing emperors adhered to closing the country to international intercourse and did not want to adopt more foreign culture. For the westerners, on one hand, they wanted their copyright protected; and on the other hand, they were determined to stop the cultural invasion of China. Therefore, the two sides negotiated a compromise: for foreigners’ proprietary works which were officially recognized and protected by Chinese government China didn’t allow free dissemination; but the Chinese translation of the works was not subject to the preceding restrictions The compromise the Qing emperors and the Western powers reached in some degree protected both sides’ interests. This actually maintained the core content of the ruling of the Qing dynasty and protected the supreme authority of the imperial power.” Shen commented, “This incident aroused a change of thought in copyright. Later, with the spread of various ideas, the culture cause prospered and witnessed a rapid development. Numerous newspapers, books and magazines were in circulation. Copyright protection accordingly appeared as an urgent requirement. The current protection institution was that a work could be protected only after it was officially registered. This is unlike that of today because when a work is created, the copyright owner automatically gets the right. ”

A Law Least Debated

As a matter of the course of history, the Copyright Code of Great Qing Dynasty was confronted with little resistance. Compared with the modification of other laws, the copyright law met fewest controversies and difficulties. As Shen Houduo noted, some officials in charge of real power like Zhang Zhidong and Sheng Xuanhuai had written a lot of works and of course they also hoped that their work would be protected. Therefore, in the early amendment of laws, the Copyright Code of Great Qing Dynasty got the most support and invoked little controversy. Other laws, such as the abolition of the slave system were strongly resisted. The abolishment of such rules had a negative impact on the nobles and seriously influenced their traditional ideas inherited from thousands of years ago.

A hot debate rose between the “legal school” with the representative of Shen Jiaben and the “religious school” represented by Zhang Zhidong. However, the two schools had no big contention on the copyright law. Only in the scope of protection of copyright, there were some minor controversies, especially on the level of the copyright registration department and so on. From the birth of the Copyright Code of Great Qing Dynasty, it’s easy to see the modification of laws was adapted to the trends of society’ s development. The factions of the dispute were also a necessary stage of development as well, which was a reflection of the deep-rooted tradition of ideology and interests when impacted by the reality of social development.

If no obstacle arose from the government support, more attention could be paid on the contents of the law itself. During the amendment of the copyright law, Shen organized a large number of overseas returnees to translate numerous foreign laws. After comparing different laws, he found that the Japanese law was more suitable for China. Shen said China and Japan had a similar language and similar race. What’s more, the first Japanese law, which was set down after the Meiji Restoration, came from China’s Tang Code. As a result, based on the Japanese copyright law, the Copyright Code of Great Qing Dynasty came into being.

Relatively Simple Contents

It writes in the Copyright Code of Great Qing Dynasty that the right covers not only the written works, pictures, posts, but also the three-dimensional works such as models and sculptures. The Copyright Code of Great Qing Dynasty lists the following six prohibitions to protect the writer’s exclusive right:

1. The works that have obtained copyright through registration shall not be reproduced and copied and plagiarized by other people;

2. The works shall not be separated and altered; the name of author and the title of works can not be changed when publishing;

3. The works whose copyright has expired shall not be separated and altered; the name of author and the title of works shall not be changed either when publishing;

4. No person shall publish his own works using other people’s name;

5. No person shall write problem set solutions to the textbooks complied by other people without authorization; and

6. No person should use works that have not been published to cover a debt without the prior consent of the proprietors.

The excusive right of a writer does not commence at the moment the works is created, but instead must be obtained through registration and approval by the Ministry. In addition, transferring and inheriting copyright must be reported. Shen said “The copyright protection at that time was relatively simple, which mainly focuses on the protection of the interests of publishers and authors. Such a situation was closely related with the social development in limitation and the unitary media status.”

The Accumulation of History

When asked about the significance of the Copyright Code of Great Qing Dynasty, Professor Shen pointed out: “Historically speaking, the law takes a pioneering step in the identification of intellectual property and copyright; realistically speaking, there were dozens of publishing houses at that time. If no related law was promulgated, it would be detrimental to the protection of copyright and the transmission of culture. When speaking in term of its influence on future generations, although the Qing Dynasty went to the ground soon after the implementation of the copyright law, the contents of the copyright law issued by the Republic of China were basically not changed, just taking another name of Copyright Law by the Northern Government.”

As time goes forward, we face more complicated problems in the transformation of wooden printing to the electronic technology. The contents of the Copyright Law are in constant revision and improvement. When looking back, although the ancient law has become a part of history, its glory and honor should still be respected. It is believed that the Copyright Law under a new historical period will achieve more progress.

About the pictures: Shen Jiaben (1840~1913): Late Qing Chinese scholar and jurist from Wuxing 吳興 in Zhejiang province （modern Huzhou city 湖州）. Shen was in charge of the 1905 revision of the Qing Code, abolishing several cruel punishments such as “slow slicing” (lingchi).

Shen Houduo, professor of China University of Political Science and Law, assistant secretary-general of the Executive Members Board of WTO Law Research Society of Chinese Law society, is the great-great-great-grandson of Shen Jiaben. He wrote The Autumnal Checkup System in Qing Dynasty and An Analysis of Ancient Pardon.

Introduction of the Copyright Code of Great Qing Dynasty

The Copyright Code of Great Qing Dynasty was enacted in the second year of Xuantong Emperor, Qing Dynasty (1910), aiming to protect an author’s rights. In the early 20th century, the Qing government prepared for constitutionalism and appointed Shen Jiaben and Wu Tingfan as law ministers to revise the legal system. In the course of preparing for constitutionalism, the Qing government brought in the legal system and principles from more capitalistic nations and formulated a series of special laws; the Copyright Code of the Great Qing Dynasty was one example.

The Copyright Code of Great Qing Dynasty, which consists of five chapters altogether and a total of 55 points, including “general rules, the deadline of right, report duty, the limitation of right and supplementary,” provides applicable rules in terms of the definition of copyright, the category of works, writer’s right, the procedure of obtaining copyright and other IP related topics. According to the Copyright Code of Great Qing Dynasty, the copyright law of the Qing dynasty chiefly included the right of reproduction and the categories of works which were protected included not only written works, but three-dimensional works such as models and sculptures were covered as well. Copyright was the writer’s exclusive right which was protected by stating the following activities were prohibited: The works that have obtained copyright through registration shall not be reproduced and copied and plagiarized by other people; The works shall not be separated and altered; the name of author and the title of works can not be changed when publishing; The works whose copyright has expired shall not be separated and altered; the name of author and the title of works shall not be changed either when publishing; No person shall publish his own works using other people’s name; No person shall write problem set solutions to the textbooks complied by other people without authorization; and no person shall forcefully use works that have not been published to cover a debt without the prior consent of the proprietors. The excusive right of a writer does not commence at the moment the works is created, but instead must be obtained through registration and being approved by the Ministry. In addition, transferring and inheriting copyright must be reported.

As to the duration of protection and the issues of inheriting, the Copyright Code of Great Qing Dynasty stipulated that: Copyright generally lasts for the Code of Great Qing Dynasty life of the author and his successors can enjoy the next 30 years’ right after his death; for the works first published after the death of the author, the successors can be granted copyright that lasts for 30 years; for any works published in the name of a body corporate such as a school, company, association or other entity, the duration of copyright protection is 30 years; and photos are protected for 30 years. The duration of the copyright protections mentioned above all start from the date of registration.

As for “fair use” that were not considered as infringement actions, the law stated that the following actions indicating the original source shall be viewed as “non-counterfeiting”: To form any works to be used as textbooks or for reference purposes by excerpting other people’s works; To excerpt other people’s works for use as evidence in his own works; and to carve models after other people’s pictures, or to paint after other people’s models or sculptures.

For the ownership and inheritance of works of joint authorship, commissioned works, oral works and translated works, the law provided special provisions: The copyright of works of joint authorship belongs to all of the partners, and every successor can enjoy copyright for the next 30 years; The copyright of commissioned works belongs to the investor; Speeches, in spite of being recorded by others, belong to the people who give the speech, expect the case that speaker agrees to grant the right to the recorder; for translated works, the right belongs to the translator, but other people can translate the same foreign works as well.

If a work that has been registered and approved by the Ministry is infringed, the right holder can appeal to the related government. Infringement of copyright may entail fines, monetary compensation and confiscation of tools for making forged works. In 1911, the first year of the Republic of China (ROC), the president of the ROC gave public notice regarding the continuation use of Copyright Code of Great Qing Dynasty as it had no rules against the state system of ROC. The Copyright Code of Great Qing Dynasty is the first copyright law in Chinese history, and it played a certain exemplary role in the Copyright Law set by Northern Warlords Government of China in 1915 and the Copyright Law enacted by Kuomintang Government in 1928. And it is also of great reference value for the implementation of copyright legislation in modern China.