How to evaluate copyright-related legislations in general terms in the past 30 years since China began to reform and open up? Currently, we have developed and established a perfect system of law for copyright protection, so that copyright holders can have “a law to go by.” In the process, however, backward legislations and deviations or violations against social progress can often be seen.

The existing copyright law system includes one main law, that is, the Copyright Law of the People’s Republic of China (as amended in 2001); 4 regulations, that is, the Regulations on the Implementation of the Copyright Law of the People’s Republic of China (2002), the Regulations on the Protection of Computer Software (2002), the Regulations on the Collective Management of Copyright (2005), and the Regulation on the Protection of the Right to Network Dissemination of Information (2006); and 2 measures, that is, the Measures for the Implementation of the Administrative Penalty for Copyright (2003), and the Measures for the Administrative Protection for Internet-related Copyright (2005). It can be said that an initial body of copyright-related legislations has been formed.

However, the power to make copyright-related regulations and rules is sparsely distributed, which creates a disadvantage to consolidating the legislative departments, improving their legislative techniques, and unifying the legal norms. In such fields as cultural publication and knowledge media which the copyright law regulates, two or more of the General Administration of Press and Publication, the National Copyright Administration, the Ministry of Culture, the State Administration of Radio, Film and Television, and the Ministry of Information Industry may jointly issue administrative measures or draft laws. The participation of multiple departments can directly lead to a war for their own interests, with each of them seeking for their own parts in the legislation, with no regard to the universal binding force of the legal norms and the final role of the copyright law to regulate and set in order social relations.

Moreover, in the making of inferior laws, often legislators seek to rent out their legislative power, which is not a result of accidental causes, but because the legislative system creates a space wide enough for rent seeking activities to grow and prosper. In the past days, Peng Zhen put an end to the quarrel between the proponents of civil law and economic law when the General Rules of the Civil Law was prepared. In legislation, the role of an individual, that is, the guiding or leading role of a statesman, has been commonly found in the release of famous codes of law, for example, Justinian the Great and Roman Law, and Napoleon Bonaparte and the Code Civil des Francis. In addition, for the classic laws and exegesis of the Tang Dynasty of the Chinese legal system, the current version has been the result of wisdom of such high court officials as Zhangsun Wuji and Ding Zhining. Modern laws would not have taken root in China but for the support and practice of Zhang Zhidong (1837-1909) and others at the end of the Qing Dynasty. Now, the legislative framework and system of China are extensive and insufficient, or even lack logic and rationality. In this situation, the leadership of a statesman is particularly needed.

Regarding the legislation, the Copyright Law of the People’s Republic of China is the only copyright-related legislation made by the Standing Committee of the National People’s Congress (NPC). Through more than 20 years of continuous efforts, around the Copyright Law, the related legislative departments have made a number of inferior regulations and rules, for instance, the 4 regulations and 2 measures, so that a preliminary system of copyright law has been formed. Now, however, the following issues should be taken into account: the connection and coordination between the Copyright Law and other laws, the mutual support between the main law and its inferior regulations, and the compliance with the inherent logic of legal norms, as well the publishing law issues, which echo the copyright law.

I. Reposition of The General Provisions

In any statutory law country, in terms of framework, a branch law could be strictly divided into general provisions and detailed provisions (and sometimes-supplementary provisions). Logically, the general provisions are used to fix major issues that are superior philosophically in the legal system. The legislative principles, for example, which are threads that run through the entire system, should be set in the section of general provisions, and other contents, which are local rather than global, should be excluded from the general provisions and incorporated into relevant sections of detailed provisions. The general provisions should be few and essential, and be precisely positioned in legal philosophy.

The Copyright Law, as the only copyright-related legislation made by the NPC Standing Committee for the fields of cultural publication, and radio, film and television, commands the related norms. Because of this, the general provisions section of it must collect the common issues from the inferior regulations and rules and normalize them into provisions of law. On the one hand, the disorderly regulations and rules are summarized and promoted to the higher law, to create directions for lower legislations in the future. On the other hand, they will fill certain gaps in the general provisions. They will help perfect the existing norms and encourage creative efforts, in accordance within the inborn scope of the copyright law system, and in compliance with the general rules for making, reforming and abolishing legal norms. Certainly, there come a few questions, such as, how to perfect copyright-related legislations in reality, and how to strike a balance between the superior and inferior norms and the routine legislative affairs of the departments, concerning authority, in order to achieve the goal of “rule by law”?

From the perspective of legal theory, what should the general provisions provide? Currently it contains eight articles to regulate eight types of matters, and the points are indefinite and the delegated norms are too many. Virtually, they have caused people to develop unclear conceptions about the Copyright Law and hampered their recognition of its implementation. Legal norms must be definite enough to guide the actions of people and corporations. In addition, in the status quo, seemingly the general provisions are dealt with as if they were miscellaneous. According to the historical experiences of modern copyright-related legislations in China, through the comparison between copyright-related legislations of the Mainland China and Taiwan Province, and the comparison between the Copyright Law, the Criminal Law of the People’s Republic of China and the General Principles of the Civil Law of the People’s Republic of China, this paper holds that the Copyright Law should be repositioned as the main law in the body of copyright-related legislations and on this basis, the framework of the general provisions rearranged. As the commander of the body of copyright-related legislations, the general provisions must include the purpose and basic principles of the Copyright Law, basic concepts relative to the body of copyright-related legislations, and the scope of validity of the Copyright Law (over person, territory and time, and retroactivity, in particular). Any prohibitive or delegated norm, such as provisions on publication, folk literatures and collective management of copyright, should be either included in another chapter of detailed provisions or attached to the Copyright Law. Only by such repositioning and readjusting can the general provisions comply with the requirements of legislative science.

II Perfect the General Provisions

1. Limit Copyright Protection and Advocate for Equal Protection and Universal Control

Generally, the legal norms of copyright protection originate from Article 1 of the Copyright Law, that is, “This law is made to protect the copyright of authors in their literary, artistic or scientific works.” In the Statute of Anne 1910, there is no provision on copyright protection, but the purpose section states that “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.” In exact terms, copyright protection should have its regard to piracies and infringements. Only then can it be meaningful to copyright holders and owners of publishing right. Except for piracy and infringement, it should be careful with copyright-related ordinary social relations. This is because nowadays, quite a few copyright holders license a single work to two or more publishing houses by concluding with the latter non-exclusive publishing contracts. Such licensing has gone beyond the scope of copyright as an inherent proprietary right. It changes the real right attribute of copyright, and the abuse by copyright holders will directly damage the interest of the owners of publishing right and other rights and the order of the publication market.

In the legal system, the Copyright Law belongs to the scope of civil law and in principle, should equally protect the subjects of the legal relationship. Any partial protection over authors or publishers seems to go against market rules. The Copyright Law interprets copyright protection at the level of legislative purpose, but some authors have used the existing interpretation as an excuse to abuse it. Therefore, regarding copyright protection, which is the core value of the Copyright Law, there is no harm in changing the wording into the following: “This law is made to control the interests of the parties involved in copyright-related social relations. ” In this way, the Copyright Law will be able to regulate multiple fields and go consistent with the reality that copying technologies have and will continue to develop and multiple subjects and multiple relations are involved in knowledge propagation. It will also embody the universal value of civil law in equally protecting all the parties involved.

Considering the above, copyright protection should have a specific instead of an extensive limit in publication policy. Correspondingly, the existing Article 1 of the Copyright Law should use different wording for the purpose of the law, to delineate the things regulated by the law and advocate for its equal protection and universal control functions. As the main law, the Copyright Law should bring under it all other inferior norms for the social relations of knowledge propagation. The adjustment of the purpose and the smoothening of its relationship with other regulations and measures will help secure a firm commanding position for the law.

2. Define Copyright and Other Concepts

A legal concept, as a legal element, means an authoritative scope formed by summarizing various facts of law and abstracting their common features. “Conception is a basic element of legal thinking, on the basis of which we rearrange and generalize from disorderly and unsystematic concrete matters.” Conception, in and by itself, cannot connect a given state of fact with a legal consequence, but creates a precondition for the application of legal rules and doctrines. Law application will not be touched upon until a person; thing or behavior is reduced to the scope of a concept. According to the factors involved, legal concepts can be divided into four categories: 1. Subject concepts, which are concepts used to express the subjects of a legal relationship; 2. Relative concepts, which are concepts used to express the relationship of right and obligation between the subjects; 3. Object concepts, which are concepts used to express the objects that rights and obligations refer to; and 4. Factual concepts, which are concepts used to express events and behaviors.

Except for the definition of work, the General Provisions of the Copyright Law contains no other definitions and particularly no definition of copyright. The first copyright legislation of China, the Copyright Code of Great Qing Dynasty, provided the first legislative definition of copyright in Article 1, stating, “‘Copyright’ means the exclusive interest that one enjoys in a copyrighted thing.” For the more than 100 years thereafter, the Chinese legal history has been disrupted several times. Whatever it is, it is a major defect of the existing Copyright Law to not include a definition of copyright, not to mention other definitions of subject concepts, relative concepts, and factual concepts. In this respect, however, the legislation of Taiwan Province is relatively complete. Nowadays, with frequent cultural exchanges between Mainland China and Taiwan, there is no barrier to borrowing universal values of legal civilization. Why can we not try the Chinese experience, in addition to borrowing the legislative blueprints of developed western countries?

2. Add Legal Doctrines

Legal doctrines are guidelines that run through the system of the Copyright Law and are keys to its implementation. A law with doctrines is a law with a center and easily forms an inter-connected whole. They constitute an integral part of law and are essential and irreplaceable. From the law making perspective, they function mainly as follows. First, they directly determine the fundamental features, fundamental contents and fundamental values of a legal system. Second, they are the main safeguards for a coordinated and unified inside of the legal system. Moreover, they are essentially useful in legal practice, as they guide legal interpretation and reasoning, and fill legal gaps and enhance the controlling capacity of law.

In the legal system of China, the Criminal Law, the General Principles of the Civil Law and other fundamental laws all include quite a few provisions on fundamental principles. For example, the Criminal Law has three articles and the General Principles of the Civil Law has five, on fundamental principles. Legal doctrines stand out from the general provisions of the fundamental laws.

“In practice, some laws include legal doctrines in their general provisions, and some do not. Particularly, most of the important legislations on state organs do not have a specific section of general provisions, no matter whether such general provisions actually exist or not.” Admittedly, traditionally, the Copyright Law is a special civil law and general civil law doctrines are applicable in the fields governed by the Copyright Law. However, it also has norms or principles specific to it, which can be clearly provided in the section of general provisions. For example, Article 2 of the current Copyright Law says that one “enjoys the copyright in a work whether published or not ... Such work include ... (VIII) computer software”. However, the Regulations on the Protection of Computer Software states that software copyright may be registered and a fee charged for the registration. This is inconsistent with the automatic achievement of copyright in the Copyright Law. If the general provisions section defines clearly the relationship between the automatic copyright achievement and the registration of computer software copyright, it will function better as the guidelines to other related norms and balance between the relationships inside the body of copyright-related legislations.

3. Focus on the Completeness of the Validity of the Copyright Law

The validity of a law has many meanings in legal theory. The validity of the general provisions section should mean on what subject, space and time the law is valid. The complete validity of a law comprises the spatial validity, the subject validity, and the time validity. In legislation, it should be avoided that only one or two of the three respects are normalized, with no consideration to the third one. The validity of a law and each validity element should be kept complete. First, the spatial validity of a law is divided into the validity on territory and the validity on matters. Second, the subject validity is divided into the validity on domestic subjects and the validity on foreign subjects. Third, the time validity includes the time when the law enters into force, the validity of the law retrospectively, and the termination of the validity.

The validity elements are used to analyze the validity-related clauses in the general provisions section of the Copyright Law. Article 2 is on the validity of the law. Paragraph 1 of it provides for the applicability of the law on the works of Chinese citizens. Paragraphs 2, 3 and 4 provide for the applicability of the law on foreign citizens and stateless persons. For the validity of the Copyright Law on foreigners, in principle, a foreigner will be protected if his country has entered into an agreement with China, or if his work is first published in China or any member country of an international convention to which China has acceded. These sub-clauses take into account the validity of the law on person and territory, but does not consider the validity on time or retroactivity. If retroactive validity was considered, the protection over folk literature works could be better dealt with and as a result, there would not have been the vague delegated norm of Article 6 (which has been laid aside because no related administrative regulations have been issued so far).

Retroactivity is connected with past works for which the authors cannot be found, such as, a work of the period of the Republic of China (ROC, 1912~1949) which was published more than 50 years ago, the author of which is unknown, and which is still a valuable publication. How should it be dealt with? In other words, will the new Copyright Law be applied if a past work is published today? Because the Copyright Law does not contain any provision on retroactivity, the publishers of past works have always been troubled and do not know what to do.

4. Extract the Core Contents of Copyright-related Regulations into the General Provisions Section of the Copyright Law, to Solidify the Copyright Law as the Main and Superior Law, and to Achieve a Free Flow and a Positive Cycle in the Legal System 5. For example, since the issuance of the Regulations on the Collective Management of Copyright (2005), Paragraph 2 of Article 8 of the Copyright Law should be modified from a delegated norm to a determinative norm. Moreover, the right of an author to join a collective copyright management organization may be deemed as a sub-right (of copyright) of the author and defined as such. For another example, after the issuance of the Regulations on the Protection of Computer Software (2001) and the Regulations on the Protection of the Right to Network Dissemination of Information (2006), the definitions of computer software and the right to network dissemination of information should be included in the related clauses of the Copyright Law, for instance, by moving the definitions already made in the above two regulations into the general provisions section of the Copyright Law. As a result, the existing copyright-related legal norms will have a clearly defined superior law and inferior regulations, linked up by a tidy logical thread. However many the regulations may be, they will be organized according to a sequence and the legislative goals can be achieved, which is to regulate social relations.

6. Make the General Provisions Section General rather than Miscellaneous

The general provisions section, as a section of general principles, should provide for contents that command the entire Copyright Law, such as the legislative purpose, the definitions of basic concepts, the validity of the law on time, retroactivity and person, and the competent administrative authorities of copyright. In the existing Copyright Law, the general provisions section contains eight clauses on eight different issues and seems like a grab bag. Anything that is difficult to find a place will be moved into the section and consequently, the section lacks regularity and internal logic. “In the current legislation, the general provisions section is in a state of disorder. Except for some characteristic features of the law, it is mainly due to the backward legislative studies and techniques, and the legislators, drafters and approvers who do not give the attention it deserves.”

Historically, among the legislative achievements in the recent more than 30 years, the legislative techniques and frameworks adopted by the Criminal Law and the General Principles of the Civil Law are worth our praise and still serve as positive examples. If some of the legislators could study legislative instances carefully, think over the sectional structure of their laws, and express their laws precisely, as the others have done in legislating the Criminal Law and the General Principles of the Civil Law, the legislative techniques of China will be greatly improve.

About 50 years ago in the special historical period of China, certain rightist jurists went to extreme to state, “A bad law is worse than no law,” for they wished so much that there were laws to go by. Nowadays, some scholars say that “useless laws obscure necessary laws; it looks as if legislation was tampered with as people seem to always have ways to evade laws.” However, as the socialist legal system has been established and completed, the practical issues and problems facing copyright protection are only concerned with the following: “the universally weak sense of copyright among social public,” “the administrative enforcement of copyright,” “copyright justice,” and “collective copyright management organizations.” Few scholars raise the issue of how to perfect the legal text of the general provisions section of the Copyright Law.

III. Two Issues

1. The Automatic Achievement of Copyright Questioned

Article 2 of the Copyright Law provides for a fundamental rule, that is, copyright is obtained automatically without registration since the date the work is completed. However, when the rule is applied in reality, how is it related to the licensing system for publication? According to the Regulations on Publication Administration, to publish a work, a publisher has to apply for a book number approved by a competent administrative regulator. Thus, the realization of the copying right is preconditioned on the state administration of book numbers. Here arises a question – how to interpret the relationship between the automatic achievement of copyright and the approved publication of works?

For another example, under copyright, some minor rights, including the copyright in software or the pledge of copyright, have to be registered with an administrative authority. If a regulation inferior to the Copyright Law provides for the registration of such minor rights, it is unnecessary for the superior Copyright Law to raise the bar to the level of the Berne Convention. As known, more than 100 years ago, the Berne Convention provided that copyright was automatically achieved whether the work was published or not. The automatic copyright protection has not been achieved, neither in the recent 30 or more years nor in the period from the end of the Qing Dynasty to the founding of the Republic of China and to the founding of the People’s Republic of China. A law, once issued, will have to be effective in the territory of the country making it. If it could be admitted that the copyright-related legislations of China are transiting from granted rights to original rights, it would be unnecessary now to legalize the automatic achievement of copyright - a cosmopolitan rule.

2. A Double Track System of the Publishing Law and the Copyright Law

In the legal system, the publishing law is a branch of administrative regulation, which contains mostly obligatory (or prohibitive) norms, that is, norms stipulating that people must act or not act in certain ways. Typically, as distinctive from rights, obligations are mandatory and non-optional and provide for behavioral styles that the obligee cannot change or select from at its will. Obligatory rules can be divided into the imperative rules, which require positive actions for the obligee to act, and the prohibitive rules, which require negative actions for the obligee to not act. Generally, the obligatory rules of the criminal law, the administrative law or other public laws are mandatory rules, compared to the discretionary rules of the civil law or the commercial law. Some contents from the publishing law–the norms of public law are included in the general provisions section of the Copyright Law, for instance, in Article 4 which provides that “The exercise by an author of his copyright shall not violate the Constitution or any law, nor damage public interest. The state shall supervise and manage the publication and dissemination of works.” This inclusion may be because there is no superior law in the legislations on publication, and this provision is critical. Thus, such doing is necessary but temporary. As a result, both the copyright law, as a private law of civil protection, and the publishing law, as a public law of administrative protection, protect the fields of culture and knowledge dissemination. As universal to legal states, public and private laws have their own different systems and regulate their own definite social relations. In the future, China should implement a dual-track system to control the media of culture and knowledge using both, the copyright law and the publishing law. Moreover, in fact, this is nothing new. The dual-track system can be traced back to the end of the Qing Dynasty. As early as in 1910, the Copyright Code of Great Qing Dynasty and the Authorized Newspaper Law began to experiment with the dual system. In the period of the Northern Warlords Government (1912~1928), the copyright law and the publishing law were placed side by side. Therefore, the legislative legacies should be particularly taken into account. The legal culture is not a lock, but a key.

The author is Wang Lanping, Legal Editor & Copy Editor, Editorial Department of the Commercial Press.