Academic journal article Rutgers Computer & Technology Law Journal

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

Academic journal article Rutgers Computer & Technology Law Journal

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

Article excerpt


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.


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. …

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