Copyright or Right to Copy?

Copyright or Right to Copy?

On March 31, China’s National Copyright Administration (NCA) posted an announcement on its official website asking for views from the public on the draft amendment of the Copyright Law. China’s Copyright Law, which came into effect in 1990, was amended twice before—in 2001 and 2010 respectively. The current revision is the third amendment.

Some articles in the current draft amendment, such as articles 46 and 48, have attracted the most attention from the public, especially the music industry, because they involve unauthorized use of copyrighted material. Under the draft law, some governmental organizations would be responsible for authorizing use of copyrighted works.

Musicians are concerned that they would lose control of their own material. According to Article 46, a taped work can be used by other music producers three months after the work has been publicly released without the permission of the creators, abiding by Article 48 of the law, which stipulates that users of the work must pay a fee to a copyright management organization one month after they start using them and the organization will transfer the fee to copyright owners in time.

According to article 68, Internet companies who provide search, storage or linkage service are obliged to verify whether the material they provide is copyrighted. Although this article also stipulates that Internet service providers is obligated to delete the material if they are told to do so by copyright owners, and if not, they will have to be accountable, musicians are still worried that this article is opening the door to copyright infringement.

Opponents

Liu Siqi (Beijing Daily): Article 68 is obviously in favor of Internet enterprises. In the past, Internet companies felt a bit worried when they provided illegal online music downloads, but if relevant regulations in the draft amendment are officially implemented, these companies even don’t need to find any excuses. The biggest problem is, China’s emerging digital music industry might be hurt terribly. Digital music is the future and hope of the music industry, and the precondition for healthy development of this industry is effective copyright protection.

Shen Yongge (Beijing Daily): In 2009, the digital music sector harvested 20 billion yuan ($3.17 billion) from the ring tone business alone. Since then the profit of digital music has been even higher. But the income of copyright owners, including lyric writers, composers and copyright-owning organizations, is less than 1 percent of the profit. This means most musical works do not bring any profit to the original creators.

Li Ji (Yanzhao Evening News): Some people believe that the latest amendment of the Copyright Law intends to make musical works spread more extensively. Actually, whether a musical work will spread widely is the business of copyright owners, and does not need any organization or other people to worry about it.

As for the collective copyright administration mentioned in the draft amendment, some explain that because there are no effective communication channels for owners of copyrighted material and users, it is unrealistic to act following the principle of “use after authorization.” This explanation is unacceptable. Whether a work is widely used or not is the creator’s personal business. It is a matter related to every individual copyright owner. Collective management neglects the rights and interest of copyright owners.

As far as copyright owners are concerned, their private rights are their most important rights. The mess in copyright management nowadays in China should not be taken advantage of as an excuse to further strip copyright owners of their rights. The goal of the Copyright Law amendment should be protecting copyright owners’ private rights. Without the permission of copyright owners, no organization has the right to manage copyright-related issues for these owners.

The good news is that people from all walks of life, including many musicians and officials of the NCA, believe that some articles in the draft amendment need to be further modified and specified. We hope the final amendment of the law would really protect the rights of copyright owners.

Supporters

Jin Zhaojun (Beijing Daily): The establishment of the Copyright Law in the 1980s was a painful process and the enforcement of the law has also encountered many difficulties. This draft amendment provides a good opportunity for the change of some articles in the law. The change of several articles in the law will steer the development of China’s music sector in the coming years.

Zhang Ying (Qilu Evening News): For years there have been two different opinions on the protection of the copyright of musical works. Some people believe music copyright protection is very poor in China. Due to the lack of protection, piracy is rampant in the country and thus many musicians do not continue in the business. While at the same time some hold that music copyright is being overly protected in China, which restricts further development of China’s music industry.

Musicians want their music to sell at a good price. But those who want to buy the music find it difficult to buy, so they have to “steal” the music. This is in no one’s interest. Some lawyers point out that people garbled Article 46. The article does not mean that anyone is allowed to use copyrighted material without seeking the copyright owners’ permission three months after a work is publicly released. Here, the premise is that before the work is used, users must first apply for permission to the copyright administration department under the State Council. When the work is used, users must provide the information of the copyright owner and pay a certain amount of fees to the copyright collective management organization according to the State Council’s relevant standards within one month after the work is used. The draft amendment intends to let an organization collectively manage the private rights and interests of individuals, so that private rights and interests can be better protected in accordance with state laws and regulations. And at the same time, it will be helpful in meeting the high demand for good musical works in the market.

Thus, it is easy to see that the work of a copyright collective management organizations is crucial. Whether the organizations can safeguard copyright owners’ rights and interest well is the key of the amendment. The China Audio-Video Copyright Association was set up in Beijing in May 2008. Since its launch, this association has been pushing forward the work of collecting karaoke TV (KTV) copyright fees, and in this way, musicians’ works are no longer “free lunch” for KTV clubs. Although the fee is not much, it is trying to protect musicians’ rights with collective power.

Today, there are many ways of music marketing, and it’s very hard for musicians to safeguard their copyrights through their individual efforts. At a time of rampant piracy and unauthorized use of copyrighted material, without a large organization, it’s really not easy for individual copyright owners to safeguard their rights. The draft amendment grants a certain organization the right to handle copyright issues, an attempt to better protect musicians’ rights and interest, so that they can concentrate on their work and live better by creating good music. It does not mean to encourage the organization to compete with musicians for profits.

Zhang Guifeng (Legal Daily): Many musicians are concerned about the draft amendment of the Copyright Law because the change is about the core issue of music copyright. However, to isolate article 46 from the whole law, and simply read it as “a song can be covered without permission from the songwriter” is improper.

To thoroughly understand article 46, we need to make two things clear. Copyright is very complicated. The right to permit others to use his or her work is just part of the rights of the copyright owner. According to the draft amendment, the copyright roughly involves 14 concrete rights, including the right to claim authorship of a work and the right of release and replication.

More importantly, although the protection of copyright is the core content of the Copyright Law, promoting extensive spreading of works and safeguarding the rights of users and consumers of works are equally important. The Copyright Law protects not only copyright owners, but also rights of distributors, users and the public.

Therefore, the key of article 46 and even the whole Copyright Law is how to reach a balance between copyright protection and the promotion of copyrighted material.