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China Copyrights: No, You Can’t Call It Fair Use

Tuesday, February 28, 2017 6:56
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China copyright lawsFormally, China’s copyright laws have been in line with those of the United States and other developed countries since China became a signatory to the Berne Convention in 1992 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 2001. But it’s hardly news that you can get a pirated copy of pretty much any movie, CD, or book in China with only a modicum of effort. Years ago you could find bootleg DVDs outside nearly every supermarket and mall in the country. Nowadays it’s more difficult to find such sellers, but not because of China’s efforts to curtail counterfeit goods; it’s because the market has moved to the Internet.

But as China’s homegrown media companies like Baidu, Alibaba, and Tencent continue to pay serious money for the rights to stream tv shows, movies, and other copyrighted material, more lawsuits are being filed in Chinese courts seeking to enforce China’s copyright law, and more official efforts are underway to reduce the amount of pirated material available in China. A (slightly) more subtle form of copyright infringement is still thriving, however: creative works that coopt key elements from copyrighted material, from storylines to characters to music cues and beyond. Television shows in China will make a few slight changes to a copyrighted format and then insist it is an entirely new creation, as with The Voice of China last year. It’s not always clearly a copyright dodge, either; the popular Chinese singing competition I Am a Singer (我是歌手) is an official licensee of a copyrighted  Korean format – or was, until the title and format were altered recently in the midst of China’s unofficial restrictions on Korean content. Presumably it is no longer considered a Korean-content show, which as a side benefit probably means the show cannot be held liable for copyright infringement.

Chinese manufacturers have long excelled at taking the key elements of an existing product and incorporating them into a “new” product. So it’s no surprise that the same thing happens in entertainment. It’s been happening for decades with the most famous story in China, the 16th century novel “Journey to the West,” which has been adapted into a movie or tv series dozens of times. We complain in America about the overwhelming number of sequels and superhero movies, but at least most of them have a different plot. This would be like having one of our greatest stories – you know, like Point Break – remade multiple times in different formats every year for forty years.

It’s important to understand, however, that Chinese law prohibits the unauthorized use of a copyrighted work, or elements thereof, unless such use falls under one of the twelve specific exceptions listed in Article 22 of China’s Copyright Law:

(1) personal use;

(2) “appropriate” quotation in order to introduce, comment on, or explain;

(3) media use to report current events;

(4) republishing or rebroadcasting of another media entity’s story;

(5) publishing or broadcasting a public speech;

(6) translation or reproduction of a scientific work solely for use in teaching or research;

(7) use by a government entity “to a justifiable extent for the purpose of fulfilling its official duties”;

(8) reproduction of a work in its collections by a library, museum, etc. for display or preservation purposes;

(9) a free live performance;

(10) copying, drawing, photographing or video-recording a public artwork;

(11) translation of a Chinese citizen’s work from Mandarin into a Chinese minority language, for distribution in China; and

(12) transliteration of a published work into braille for publication.

The above exceptions are similar to the American concept of “fair use,” a doctrine that allows for unlicensed use of copyrighted material under certain conditions.

Although not always interpreted consistently, China’s fair use exceptions are quite limited. When you’re watching a Chinese reality show and hear a dozen music cues lifted from American pop songs, that’s not fair use. When you’re watching a Chinese television show that seems exactly like Mad About You, that’s not fair use either. That leaves copyright infringement (the former) and legal licensing of a copyrighted format (the latter).

As the value of copyrighted material in China increases, it’s increasingly important to take a broader view of IP protection. Licensing TV shows to China is a big and growing business. Anti-piracy efforts are still important, but it’s even more important to have a properly drafted license agreement. And to take legal action when you find another media company using your copyrighted material. If you don’t protect your own IP, who will?

We will be discussing the practical aspects of Chinese law and how it impacts business there. We will be telling you what works and what does not and what you as a businessperson can do to use the law to your advantage. Our aim is to assist businesses already in China or planning to go into China, not to break new ground in legal theory or policy.



Source: http://www.chinalawblog.com/2017/02/china-copyrights-and-fair-use.html

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