External Perspectives on the
New Draft Chinese Copyright Law
Informal Comments of the
U.S. Copyright Office
October 4, 2012
Conference on New Developments in
Chinese Copyright Law and Enforcement
Berkeley, California
Example of the Range of Issues in the
New Draft Chinese Copyright Law
Definition of Computer Programs
ISP Liability
Presumptions Live Sports Programming
Audiovisual Performance Rights Collective Management
Rights for Producers of Sound Recordings Orphan Works
Exceptions and Limitations
Works of Applied Art
Technological Protection Measures (TPMs)
Administrative Enforcement Mechanisms
Damages
Mediation Measures Points of Attachment Resale Royalty
Reproduction Right
Use of Unlicensed Software
Provisions affecting Contracts
Three-Step Test
Informal Observations on
A Few Select Issues
― Transparency
― Orphan works
― Live sports
programming
― Temporary copies and
the reproduction right
― Resale royalty
Transparency
• Copyright Law Reform
– First Draft
– Second Draft
• Ongoing work by the Supreme People’s Court
regarding its draft judicial interpretation,
“Provisions of Several Issues of Application of
Laws in the Trial of Civil Disputes in Relation to
Infringement of the Right of Communication
through Information Networks”
Orphan Works
• Challenges that publishers, film makers, museums,
libraries, universities, and private citizens, among
others, have had in managing risk and liability
when a copyright owner cannot be identified or
located
• Use without permission implicates exclusive rights
• Uncertainty about consequences of use
Examples of Orphan Works
Orphan works span all types of artistic genres
• Ownership investigations may be fruitless:
 Book published in the United States in
1980 by a defunct publishing
company and authored by a person
with a common name (like John
Smith)
 Painting with no signature, date, or
place of origin
 Video footage of an inaugural ball
shot by someone who died four years
ago with no will and no known heirs
When are orphans an issue?
• © ownership not apparent from work (e.g.,
unsigned photos or drawings)
• Deceased © owner / unclear ownership chain
• Contractual provisions muddy the waters
• © owner is known but cannot be found
• Does not include © owners who refuse to grant
rights or request high fees
Orphan Works in China
Articles 25-26 of the Second Draft
• Applies to works in magazines and newspapers that
are transferred into a digital copy or other users make
a digital copy or transfer it across information
networks to the public
• After user’s efforts to identify a copyright owner are in
vain and when other requirements are met, users can
exploit the works after applying to the copyright
administration authority under the State Council and
pay royalty through escrow arrangement
• Specific rules on orphan works will be separately
established by the State Council
Orphan Works in China
Issues/clarifications going forward in the law
• What about the situation where current rights holders are
unknown (e.g. heirs, assignees, publishers out-of-business)
• What about situations where rightsholders are known but
cannot be located (compared to where identities are
“unclear”)
• Who is the “owner of the original copy”
Issues for the Implementing Regulations
• What will be considered a thorough search
• How will the “use fee” be determined
• How will fees be distributed and to whom
Orphan Works Elsewhere
• Other countries with orphan works legislation
already in-force, for example: Canada,
Denmark, France, Hungary, India, Japan,
South Korea
• New EU Directive on Orphan Works (2012)
• Reviews about potential orphan works
solutions are ongoing: Australia, Germany,
United Kingdom …
Orphan Works in the U.S.
• 2006 Orphan Works Report by USCO
• Legislation proposed in 2006 and 2008
• Key elements
– Diligent search
– Limited remedies
– Pay reasonable compensation if owner emerges, or face
full liability
• 2011 Legal Aspects of Mass Digitization by USCO
• March 2011 District Court decision rejecting the proposed
Google Book settlement noted that the settlement would
have encroached upon Congress's ability to set copyright
policy with respect to orphan works.
Orphan Works
and the U.S. Copyright Office
Orphan Works is one of
the priorities identified by
the Register of
Copyrights Maria
Pallante in her October
2011 “Priorities and
Special Projects”
document.
www.copyright.gov
Live Sports Programming
• Type of Protection
– Copyright
– Neighboring Rights for broadcasters
• Originality
• Fixation
• Current Chinese Copyright Law
Live Sports Programming
• “Audiovisual Work” definition in Second
Draft
• “Live Broadcast” was only in the First Draft
with definition of the right of dissemination via
an information network
• Notes to Second Draft: “Live broadcast”
removed to limit the definition of broadcasting
to non-interactive communications
• Further clarity important
Temporary Copies
• Critical in the digital environment
• The reproduction right should be better
defined to clarify that the reproduction
right covers temporary digital copies
• “In any manner or form”
Resale Royalty (Droit de Suite)
Article 12 of the Second Draft
• Works of art and photography, scripts of literary
works and music works
• Authors, heirs and legatees have the (inalienable)
right of sharing the profit obtained through the
auction of such originals
• Reciprocity for foreigners whose home countries
provide same rights to Chinese authors
• Further rules to be established by the State
Council
Resale Royalty
and the U.S. Copyright Office
• More than 60 countries have a resale royalty
• USCO has issued a public Notice of Inquiry, asking
questions on how copyright law affects and
supports visual artists and how a federal resale
royalty right might affect current and future
practices for those groups or individuals involved in
creation, licensing, sale, exhibition, dissemination
and preservation of works of visual art
• Comments are due November 5, 2012
Back to the Many Issues in the
New Chinese Draft Copyright Law
Definition of Computer Programs
ISP Liability
Presumptions Live Sports Programming
Audiovisual Performance Rights Collective Management
Rights for Producers of Sound Recordings Orphan Works
Exceptions and Limitations
Works of Applied Art
Technological Protection Measures (TPMs)
Administrative Enforcement Mechanisms
Damages
Mediation Measures Points of Attachment Resale Royalty
Reproduction Right
Use of Unlicensed Software
Provisions affecting Contracts
Three-Step Test
Xie Xie * Thank You
Maria Strong
Senior Counsel for Policy & International Affairs
United States Copyright Office
Washington, D.C.
www.copyright.gov