Les Fleurs Du Mal: A Critique of the Legal Transplant in Chinese Internet Copyright Protection

Beginning of article

INTRODUCTION

Legal transplanting is an important vehicle for the legal modernization of developing countries. China has established a complicated intellectual property system in less than thirty years. (2) Without the help of legal transplanting, it would have been impossible for China to accomplish in three decades what it took western countries hundreds of years to develop. Continuing large-scale legal transplanting has turned Chinese intellectual property laws into a collage of rules borrowed from international treaties, civil law, and common law. Even though China is enjoying new flowers blooming in its legal garden, the potential dangers and damages that may accompany legal transplanting should not be ignored. Just as in nature, a transplant may become a bio-invasion that deteriorates or even destroys the ecosystem of its new habitat.

This paper researches the legal transplant of a new Chinese law on Internet copyright protection. In comparing the Chinese law with the United States Digital Millennium Copyright Act (DMCA) of 1998, (3) this article explores whether the "flowers of sickness" have grown out of the legal transplant and analyzes the reasons behind the phenomenon. The lessons from this case study show that blind legal transplanting may hinder the establishment of a balanced and rational intellectual property system.

PART ONE: AN OVERVIEW OF COPYRIGHT PROTECTION ON THE INTERNET

The Chinese Copyright Law, first enacted in 1990, was revised before China joined the World Trade Organization (WTO) in 2001. (4) Although the immediate reason of the 2001 revision was to make the law comply with the TRIPS Agreement of the WTO, the revision did not overlook issues concerning the Internet. China participated in the negotiations of the two Internet Treaties at the World Intellectual Property Organization (WIPO) in 1996. (5) One purpose of the revision was to adapt the Copyright Law to the computer network environment. (6) After the revision, the Copyright Law equipped copyright owners with a new exclusive right of communication via an information network, as well as legal protection for technological measures and information management rights. (7) Under the ambit of the Copyright Law, copyright protection on the Internet was further reinforced through judicial or administrative measures. The Supreme People's Court issued several judicial interpretations, which primarily defined the liabilities of network service providers and acknowledged the evidential weight of the notice-and-takedown procedure in the civil proceedings. (8) The National Copyright Administration and the Ministry of Information Industry, which are the administrations jointly responsible for copyright protection of the information networks, enforced another notice-and-takedown scheme that was equipped with the teeth of administrative punishments. (9)

On May 18, 2006, the State Council enacted the "Regulations on the Protection of Copyright Over Information Networks" ("Internet Copyright Regulations"). (10) In line with the explanations presented by the State Council, the Internet Copyright Regulations were enacted primarily for the implementation of the two WIPO Internet Treaties and for the protection of the right of communication via the information network. (11)

In its twenty-seven provisions, the Internet Copyright Regulations stipulate three critical issues with respect to copyright protection on the Internet, namely: (1) the legal protection for technological measures and rights management information (Articles 4-5, 12, 14, 18(2)(3), and 19(1)); (2) the limitations and exceptions to copyright and related rights in the network environment (Articles 6-11, 18(1)(4)(5), and 19(3)); and (3) the liabilities of network service providers (Articles 13-17 and 20-25). (12)

It is very easy to discover the similarities between the Internet Copyright Regulations and the DMCA. (13) Apart from the structure and format, the sense of familiarity primarily comes from the similar substance and expression. Especially because the Internet Copyright Regulations contains some long, strange, and barely comprehensible sentences translated from the DMCA. They are in sharp contrast to the short, general, and principal Chinese-style stipulations. The Legislative Office of the State Council, which was responsible for drafting the Regulations, is not shy about acknowledging that the Regulations are built on "advanced foreign experience." (14) Comparing the new Regulations and the DMCA yields an interesting discovery tour that reveals the story of the legal transplant.

PART TWO: A COMPARATIVE STUDY

This comparative study focuses on the three important issues of copyright protection on the Internet.

Section One: Legal protection for technological measures and rights management information

A. Legal protection for technological measures and rights management information

The Internet Copyright Regulations define "technical measures" as follows:

   [T]he efficient techniques, devices or components purporting to
   prevent or restrict the browse or appreciation of a work,
   performance or sound or video recording without the permission of
   the right owner or the provision of the work, performance or sound
   or video recording to the public via the information network
   without the permission of the right owner. (15)

The language of this very long and awkward definition is unlike ordinary Chinese. It must have its origin somewhere in a foreign language. The two Internet Treaties do not contain any definition for "technological measures" and the DMCA merely defines the meaning of circumvention of a technological measure. (16) Interestingly, a relevant definition was included in the European Union's 2001 "Directive on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society" (EU Copyright Directive). (17) Compared against both the DMCA and the EU Copyright Directive, the definition in the Internet Copyright Regulations seems like an unsuccessful mixture. Although the Internet Copyright Regulation largely borrows the EU Copyright Directive's expression, it also maintains the "spirit" of the DMCA, emphasizing the rights owners' access and copy control (i.e. purporting to prevent or restrict the users' browse or appreciation). It shows that the Chinese lawmakers are deaf to criticisms against the DMCA that argue putting technological measures solely at the rights owner's disposal is an unreasonable stretch of the rights owner's monopoly. (18)

Given that the Internet Copyright Regulations, as shown in the title, are meant to implement the right of communication via the information network stipulated in the Copyright Law, it is logical to perceive that legal protection for the technological measures granted by the Regulations is only applicable to the online environment. (19) However, the definition of the technological measures seems to imply that the offline measures are also subject to protection. (20) The provisions that are at odds call for relevant legislative or judicial interpretation. The USTR has already expressed its discontent with this issue. (21)

At the beginning of 2007, a case similar to the "Garage door opener" dispute was decided in China. (22) A manufacturer of micro-engraving machines designed a special data output format to ensure its micro-engraving software was only operable on its own machines. The defendant developed a program to circumvent the plaintiff's special data output format and make the plaintiff's software operable on other manufacturers' machines. The court found that the defendant's program affected the data files generated during the computer operation, which did not control access or copying of the plaintiff's software. In the court's decision, a technological measure that served to tie in sales of software and hardware rather than copyright protection was not protectable. (23) The Jindiao case implies the possibility of protecting eligible technological measures offline.

The Internet Copyright Regulations do not address the effectiveness issue of the technological measures, although Chinese courts have already encountered this question. (24) A search engine company was sued for bypassing the password requirement on the front page of a music site and setting up deep links to the inner pages containing the MP3 music files. The issue was whether the music site's access control, which can easily be sidestepped by a spider, crawler, or the similar search program, is an "effective" technological measure. If this issue is assessed in line with the EU Copyright Directive, and a technological measure is deemed effective whenever it is adopted by the right owners to achieve the objective of protection, then the password requirement should be a protectable effective measure. (25)

1. Scope of protection

Although Internet Treaties require the Member States to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures, they leave room for domestic interpretations of legal adequateness and effectiveness.

However, the DMCA model that protects against both the circumvention acts and the circumvention devices seems to become the standard answer to "legal adequateness" required by the Treaties. (26)

Apparently, the Internet Copyright Regulations follow the DMCA model by prohibiting the following acts, unless stipulated by any law or regulation otherwise: intentionally bypassing or circumventing the technological measures; intentionally manufacturing, importing or providing to the public with any device or component that is primarily used to bypass or circumvent the technological measures; or, intentionally providing the technological services for the others' bypassing or circumventing the technological measures. (27)

In comparison with the DMCA, the Internet Copyright Regulations omit the prohibition on the device or component that has "only a limited commercially significant purpose or use other than to circumvent." (28) In 1998, a Chinese computer-aided design (CAD) enterprise suffered severely from a decryption program sold on the market. The decryption program was specifically designed and produced to decrypt the encrypted CAD software, and it was sold on compact discs called "keys." (29) If this dispute is judged under the new Regulations, those key discs would be deemed to be primarily used to circumvent the encryption measures adopted by the copyright owner, as well as having hardly any commercially significant use other than circumvention. It seems commercial significance may be an element for assessing whether circumvention is the primary purpose.

Another difference between the DMCA and the Internet Copyright Regulations, is that the Regulations make no distinction between measures for access control and measures for copy control. (30) However, lawmakers might not have contemplated that non-distinction would seriously impair the public's ability to make fair use of the works or other subject matters. This issue will be fully described in the following section.

With respect to legal remedies, the Internet Copyright Regulations provide civil remedies as well as administrative punishments against acts of circumvention, in addition to providing administrative punishments against circumventing devices or services. (31)

A circumventing act, proportionate to the circumstance, is subject to civil penalties including injunctions and damages. (32) Once the act is found to have impaired the public interest, the act is also subject to administrative punishments in the form of administrative injunction, confiscation of any illegal gains, and a fine up to RMB [yen] 100,000 (approximately $12,800); only in serious circumstances may the computers that are primarily used to provide network services be confiscated. (33)

In the case of a circumventing device or service, the circumventor may be subject to an administrative warning, confiscation of any illegal gains, and confiscation of the devices or components that are primarily used to bypass or circumvent the technological measures. Only in serious circumstances may the facility's primary computers used to provide network services be confiscated. A fine of up to RMB [yen] 100,000 (approximately $12,800) may also be imposed. (34)

The Internet Copyright Regulations may purposefully omit civil remedies against circumventing devices or services, thus precluding civil remedies in these circumstances. Therefore, apart from suing the alleged perpetrator for the direct act of bypassing or circumvention, the rights owner who suspects that a device or service is being primarily used for circumvention cannot sue the device or service provider in a civil proceeding. Instead, the rights owner should report to the copyright administration and let the authorities investigate and then determine whether to punish the provider. Since the Internet Treaties allow the Member State to define what the "effective" legal remedies are, the solution given by the Internet Copyright Regulations is not naturally inconsistent.

Like the DMCA, (35) the Internet Copyright Regulations has stipulations on criminal offenses and penalties, though the wording is quite ambiguous. It merely stipulates that any act that constitutes a crime shall be subject to the penalties in accordance with the laws. (36) In the Chinese legal hierarchy, only the state legislature--the National People's Congress (NPC) and its Standing Committee has the power to enact legislation dealing with crimes and penalties. (37) Obviously, the Internet Copyright Regulations, which were enacted by the State Council, cannot create any ultra vires rules on crimes or penalties, but they enforce the relevant rules in the existing criminal laws. (38) Since criminal law does not define the circumvention of technological measures as a crime against intellectual property rights, (39) Internet Copyright Regulations have no way to criminalize them. Nonetheless, such circumvention may constitute computer crimes. For example, it is a crime to intrude into the computer information systems for state affairs, defense construction, or cutting-edge science and technology. It is also a crime to cancel, alter, increase, or jam the functions of the computer information system so as to prevent its normal operation. (40) If an act of bypassing or circumventing an access control measure results in hacking into specific computer systems or hindering the normal operation of the system, the perpetrator may be subject to penalties.

2. Exceptions

Article 12 of the Internet Copyright Regulations provides a list of exceptions to the protection of the technological measures, but all these exceptions are subject to two common requirements. They cannot provide any circumventing technology, device or component to anyone else, and they cannot infringe any other rights enjoyed by the rights owners. (41) The latter requirement may impact the limitations and exceptions to copyright and related rights provided in Regulations. (42) The former requirement is even more problematic because of its ambiguous expression. It could mean that a permitted circumventor shall not provide any circumventing technology, device, or component to anybody else. However, people may wonder whether the circumventor would need any technical assistance to conduct the circumvention in the first place. Does it mean that any circumventor could only circumvent through self-help? If this is the case, application of circumvention in even permitted circumstances would be ridiculously dependent on the circumventor's technical ability.

Under Article 12 of the Internet Copyright Regulations, technological measures may be circumvented in the following circumstances:

--for the purpose of teaching or scientific research, via an information network, of a work, performance or sound or video recording that has been made available to a …