A Porpourri of Autumn Copyright Developments

spices

Here’s a mix of copyright updates:

On October 13, Tencent and Netease signed a deal for Netease to takes licenses on 1.5 million songs.  Tencent, as I previously reported, has actively been promoting the legitimate use of music on-line.   The current “Sword Net” campaign was is focusing since mid-July on music, and these actions may be a reflection of the campaign’s efforts. Over the summer, NCA had specifically mandated that ISP’s should stop making unauthorized music available on line.  Anecdotally, I have heard that it is getting harder to find illegal music to download.  NCA’s crack-down, including an effort to remove two million songs from the on-line environment was also noted by the media.

Also on October 14, NCA issued new guidance for website service providers (关于规范网盘服务版权秩序的通知), which requires service providers to take proactive measures to screen copyrighted content being uploaded, including for works that have previously been removed, works that are the subject of a notice and takedown, and works specifically listed by NCA.  The rules also require service providers to not provide any support to users to illegally share unauthorized works, and requires users to make a reasonable explanation to service providers if there is abnormal logging-on activity. These rules require something more than responding to notice and take-down requests, and (laudably, in my opinion) appear responsive to the perspective that the late Prof. Guo Shoukang told me, that the obligations set forth in China’s DCMA-type laws and regulations should evolve as technology evolves.

Another important development of late is the formation in September of a sports IP committee under the China Intellectual Property Law Studies Association.  Hopefully, this committee can help spur better protection under China’s IP regime of live sports broadcasts, amongst other sports-related IP issues.

China Online Legitimate Music Copyright Promotion Alliance Established

China Daily and Chinese news services, including Legal Daily, reported that an Online Legitimate Music Promotion Alliance 中国网络正版音乐促进联盟 has been established on January 29, 2015 in Beijing.  The alliance brings together 30 companies and organizations including international music companies such as Sony and Warner, domestic music websites such as Kugou, Kuwo and 1ting and industry associations such like the Music Copyright Society of China and the International Federation of the Phonographic Industry, as well as songwriters such as Li Haiying 李海鹰.

Tencent which has a licensing arrangement with Warner Music, noted at the ceremony that the sustainable development of the music industry depends on copyright protection.   Tencent urged legal steps, such as model cases to create deterrence, active administrative supervision, increasing damages for infringement, and increasing penalties. Other speakers noted the importance of advertisers working together to curtail placing advertisements on pirated sites, as well as enforcement actions.   Beijing Copyright Bureau’s Wang Yefei 王野霏, a veteran of many copyright enforcement battles, was quoted by the Legal Daily as saying that it was important that “bad money not drive out good money” in copyright, and that the “trying time of walking a fine line in copyright has gone.” (网络音乐领域的版权乱象决不可能容忍它长期存在,一定不会让劣币驱逐良币,试图打擦边球的时代已经一去不复返了).

The Legal Daily article noted that according to the 2014 China Music Development Report (2014年中国音乐产业发展报告) there were 453 million internet music users in China in 2013.  However, according to IFIPI data, total revenue from music in 2013 was about 500 million RMB, (82,600,000 USD), which is only a “several Chinese dimes” per user.

At the January 29 launch event, China’s National Copyright Administration’s Zhao Jie 赵杰 announced that online music and literary works are key areas for enforcement in 2015.  These enforcement efforts build upon China’s existing “Sword Network” campaigns and other administrative actions to deal with on-line piracy.

This alliance also appears to be an important step in bringing together foreign and domestic rightsholders in IP.

Of Roses, Country Roads and Eileen Zhang

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Every once in a while, perhaps for surprise effect, I remind a Chinese friend or colleague that an ancient or modern Chinese cultural icon may in fact have been a foreigner or under foreign influence.    Perhaps the most renowned traditional cultural figure that might claim foreign roots is Li Po (Li Bai  李白 ),   one of China’s greatest poets, who was likely borne in Central Asia.  Another, more recent cultural figure was Eileen Chang, who became a US citizen in 1960 and was among the most accomplished of modern Chinese novelists.   Ang Lee directed Eileen Chang’s “Lust, Caution,” in 2007 and went on to win  another Golden Lion at the Venice Film Festival for this movie.  His first Golden Lion was for Brokeback Mountain.

Another type of cultural dissemination occurs when songs cross borders and take on a life of their own.

As we near Valentine’s Day, it might be worth reflecting on Frankie Lane’s song “Rose, Rose I Love You”, which was drawn from the popular 1940’s Chinese song  of the same name: 玫瑰玫瑰我愛你, sung by the 1940’s pop star  Yao Li 姚莉  (Miss Hue Lee).  There are many clips of these songs available on line.   You can look for the 1940 Chinese original Columbia recording, or the 1951 Frankie Lane Columbia recording.   The lyrics are predictably somewhat different, and I personally find Miss Hue Lee’s lilting and vulnerable voice more endearing that Frankie Lane’s reinterpretation of   the song to describe a foreign protagonist abandoning a Malayan Chinese.   Although Chinese music has been deeply influenced by foreign music in recent decades in fact, as one Chinese commentator notes, one of the earliest examples of a hit in both the US and China was this song.   In fact, Frankie Lane’s version  apparently helped propel Hue Lee’s Chinese original  to a number 3 position in the United States on Billboard’s top pop songs for a period of time.

Sometimes songs also take on a life of their own for both their cultural and political resonance.  John Denver’s Country Roads certainly has that legacy, as it was played by the late singer for Deng Xiaoping and Jimmy Carter at a celebration to honor the normalization of relations.   Cory Doctorow explains the importance of the song at some length in a blog posting “China’s love affair with ‘Take Me Home Country Roads’”.   I suspect that almost anybody who travels to China often enough will have heard the song many times.

Wikipedia tracks several versions of “Rose” over the decades beginning in its first appearance in a pre-revolutionary Chinese film.  John Denver’s song seems to be most popular in China in its English version, although the song is known in Chinese as: 《乡村路带我回家>.    As of January 26, 2015, there were seventy four hits for Country Roads on Baidu. It would be interesting to know if the rightsholders of “Country Roads” collect anything in royalties from Chinese sources, including ring tones, and if the rightsholders of “Rose” were able to collect from  the use of their compositions by Frankie Lane, Petula Clark and other singers back in the 1950’s, at a very difficult time in US-China relations and in China’s IP development.   I hope some of the artists benefitted.

By the way, Yao Li enjoys a particularly active life in music.  Her last recording was made in 2011, at nearly 90 years old, and she also enjoyed a career for a time in Hong Kong with EMI Music.

Open Sesame for Open Access

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Following on the heels of efforts of the United States in early 2013 to increase access to federally funded research,  the Chinese Academy of Sciences and the Natural Science Foundation of China have announced on May 15 that from now on all research produced by scientists at CAS and all papers produced by NSFC grants must be archived in open access databases within one year of publication.   The development has been widely reported in the trade press, such as Chemistry World and Nature.  These magazines also report that the Ministry of Science and Technology may take a similar approach with respect to their funded research. 

The notice of the Natural  Science Foundation of China noted that  “An important tool in promoting development is publicly funded scientific research, which is the knowledge creation of society that supports innovation.  The publication of funded research papers is a knowledge resource of the whole of society.  When the whole of society can obtain this information, the dissemination of knowledge and its utilization will be promoted….”

China has taken a “green” path to open access by providing for open access after one year.  Open access in general has its supporters and detractors.  While the benefit of wide spread sharing of information would appear obvious, detractors cite the role of publishers in maintaining publication quality, editing and indexing.  Access is facilitated by the availability of differential pricing in many parts of the world.

The White House statement was quite different by requiring policies from research funding agencies and noting as a consideration that publishing also has its role: “The Administration also recognizes that publishers provide valuable services, including the coordination of peer review, that are essential for ensuring the high quality and integrity of many scholarly publications. It is critical that these services continue to be made available. It is also important that Federal policy not adversely affect opportunities for researchers who are not funded by the Federal Government to disseminate any analysis or results of their research.”

Delayed open access, immediate open access, or relying on a market for exclusive rights for writers and publishers – which works better? Will China’s policies ultimately provide enough support for quality publications, which may depend on the services of professional publishers?  Or will the market ultimately find roles for all types of publication practices?

(photo is of the author with Alexander Graham Bell as a wax figure)

 

Call for Papers on Internet Governance

From Rogier Creemers and the Chinalaw listserve run by Don Clarke comes the attached call for papers on Internet governance in China for China Perspectives.  China Perspectives is an anonymously peer-reviewed academic journal written in French and English.   The Call for Papers (http://wp.me/p1ZQFA-BW) notes that “Chinese positions carry increasing weight on such global issues as net neutrality, copyright, privacy, or freedom of speech, to mention but a few” and that this journal thus “plans to publish a special feature on Internet governance in China, which will cover these aspects from a multidisciplinary perspective, including law, political science, political economy, political sociology, communication, or international relations.”

Ministry of Commerce IP Program in DC December 5

Chen Fuli, IP Attaché at the Chinese Embassy in Washington, DC the morning of December 5.   The program is free of charge, but seating may be limited.   You should RSVP at: lishuai@mofcom.gov.cn.

The topics are all ones that I have actively followed in this blog.  Here is the tentative agenda:

International High Level IPR Cooperation Forum

Dec 5,  Georgetown Holiday Inn

2101 Wisconsin Ave, NW, 20007, Washington DC

 9:00-9:20  Opening remarks, by Both China and U.S. Representatives

 9:20-9:40   New developments in IP enforcement in China, by Director Jing Zhang from the Office of Fighting Against IPR Infringing and Making or Selling Counterfeit and Shoddy Products under the State Council

9:40-10:00  New amended Chinese Trademark Law, by Deputy Director General Qing Xia from CTMO

 10:00-10:15 Q & A

 10:15-10:30 Coffee Break

 10:30-10:50  Amending of Chinese Copyright Law by Deputy Director Ping Hu from NCAC

10:50-11:10  Amending of Chinese Patent Law and Regulation on Service Invention by director Yanhong Wang from SIPO

11:10-11:30  New practice of IP trials after the amendment of Chinese Civil Procedure Law by Judge Yuanming Qin from SPC

11:30-11:50 Q & A

11:50-12:00 Closing Remarks

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12:00-13:30                    Lunch (hosted by China for all the participants)

In addition to the speakers noted above, there will also be Chinese official participants from public security, Customs, procuratorate, AQSIQ and other agencies, which should help make for lively discussion and interaction.  I hope to see you there!

The New Swiss-China FTA: What It May Mean for IPR in China

China signed its first FTA with a European country, Switzerland on July 6, 2013.  The FTA is a significant advance in China’s trade diplomacy with the West since China’s FTA with New Zealand (2008).   Although Switzerland is not a member of the EU, its close legal, economic and cultural relationships with the EU and its participation in the European Patent Convention, could have a positive impact on harmonizing Chinese practices with European practices in certain areas.  Based on the still skeletal outline provided by the news release from the Swiss government (the release follows the post and the full text has now been release), the FTA seems to advance several important IP interests of Switzerland.  Continue reading