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2. Copyright 2.1. Copyright Law and Implementing Regulations The protection of copyright in People's Republic of China is governed by the Copyright Law and the Regulations for the Implementation of the Copyright Law (hereinafter Implementing Regulations) promulgated on 7th September 1990 and 30th May 1991, respectively. Further legislation have been enacted to incorporate China's international agreements on copyright, as the Regulations for the Implementation of International Copyright Convention, providing specific regulations on protecting foreign authors' copyrights in accordance with the international treaties and to expand the sphere of copyright legislation, as Regulation for the Administration of Audio and Video Recordings . [Footnote: China has become member of several international agreements on copyright, such as the World Intellectual Property Organisation (3rd June 1980), the Berne Convention for the Protection of Literary and Artistic Works (15th October 1992), the Universal Copyright Convention (30th October 1992), the Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of Their Phonograms (30th April 1993)]. In the criminal sphere, legislation to deter others from infringing of copyright has been promulgated. [Footnote: Decision of the National People's Congress on Punishment of Criminal Offence of Infringement of Copyright, promulgated on 5th July 1994.] The Copyright Law and the Implementing Regulations explicitly protect the copyright and other legitimate rights and interests of the authors of literary, artistic and scientific works, such as moral rights (droit moral). [Footnote: Art. 10, Copyright Law of People's Republic of China.] To receive the protection of the copyright law, such works should be capable of being reproduced in a tangible form. [Footnote: Art. 2, Implementing Regulations.] The Copyright Law not only provides for the protection of the copyright of written works [Footnote: Written works are defined as works expressed in written form, such as novels, poems, essays and theses. Art. 4(1), Regulations.], music [Footnote: Article 4(3) of the Implementing Regulations defines musical works as assymphonic works and songs, with or without accompanying words, which can be sung or performed.], operas, quyi, [Footnote: Quyi refers to such traditional art forms as "dagu" (ballad singing), "pingshu" (story telling based on classical novels), comic dialogues, "kuaishu" (clapper talks) and "ziang sheng" (cross talks). Art. 4(5) Implementing Regulations.] choreography [Footnote: Those works include any work that can be expressed in successive body movements, gestures and facial movements. Art. 4(6), Implementing Regulations.], [Footnote: Operas, quyi and choreography are usually known as right of performance] works of fine arts [Footnote: Works of fine arts mean, according to Art. 4(7) of the Implementing Regulations], two or three dimensional works of the plastic arts created in lines, colours or other media which impart aesthetic effect, such as paintings, works of calligraphy, sculptures and works of architecture.], photographs, films, TV programmes, video tapes, engineering designs, product designs and their descriptions, maps, sketch maps and other graphic works [Footnote: Maps, sketch maps and graphic works include those of two or three dimensions. Art. 4(11), Implementing Regulations.], mainly protected by most of the world copyright laws, but also the Copyright Law covers oral works [Footnote: Oral works include those works which are created in spoken words and have not been fixed on any material carrier, such as impromptu speeches, lectures and court debates. Art. 4(2), Implementing Regulations.] and computer software. [Footnote: Art.3, Copyright Law]. The latter places China amongst a select group of countries which have included computer software as the object of protection by copyright laws. To implement such a protection, the State Council promulgated the Regulations on the Protection of Computer Software, providing the specifics whereby the laws protecting computer software will be implemented.[Footnote:Intellectual Property Protection in China, Information Office State Council of the People's Republic of China, June 1994, Beijing.] The Copyright Law regards as infringement acts such as publication of a copyright owner's work without his or her permission, and the unauthorised publication of a work of joint authorship as the work of a single author; having one's name mentioned in connection with a work created by another, in order to seek personal fame and gain, where one has not taken part in the creation of the work; distortion or alteration of another person's works; exploitation of an author's work in any manner without prior permission; the use of another's work without providing the legally stipulated payment; and live broadcast of a performance without the performer's prior permission [Footnote: Art. 45, Copyright Law]. In case of copyright infringement, the Copyright law provides that the wrongdoers will bear civil liability for such remedies as ceasing of the infringement, eliminating of any negative effects caused by his actions, making a public apology or paying compensation for damages [Footnote: id]. In addition, those who plagiarise a work created by another, or reproduce and distribute another person's works for commercial purposes without the copyright holder's emission, those who publish a book where the exclusive right of publication belongs to another, those who reproduce and distribute a sound or video recording without getting the permission of the producer, and those who produce or sell a work of fine art where the signature of an artist is counterfeited would bear civil responsibility for their actions and administrative penalties as confiscation of unlawful income from the act or imposition of a fine [Art 46, Copyright Law.]. In respect of illegal activities that undermine the economic order or seriously infringe on the legitimate rights and interests of a copyright owner or the owner of other intellectual property rights, in cases where such violations constitute a crime, the criminal liability of the infringer will be investigated and dealt with in accordance with the relevant laws. [Footnote: LOOK CITE.] The article 20 of the Copyright Law states that authors will enjoy of unlimited in time in their rights of authorship, alteration and integrity. In the case of the right of publication, the right of exploitation and the right to remuneration in respect of a work, article 21 establishes the lifetime of the author and fifty years after his death, expiring on 31st December of the fiftieth year after his death, as the term of protection for such rights. [Footnote: In the case of a co-operative work, joint authorship, such term will expire on 31st December of the fiftieth year after the death of the last surviving author.] Where the copyright belongs to a legal entity or entity without legal personality, or in respect of a work which was created in the course of employment where the copyright belongs to such entities, the term of protection of above mentioned rights will be fifty years, expiring on 31st December of the fiftieth year after the first publication of such work. Any work has not been published within fifty years after the completion of its creation will not enjoy any longer the protection of the Copyright Law. [Footnote: The Copyright law states that cinematographic, television, videographic or photographic work will be protected for fifty years, expiring on 31st December of the fiftieth year after the first publication of such work. Furthermore, the law provides that in case of such work has not been published within fifty years after the completion if its creation will no longer be protected under this law.] 2.1.1. Rights Provide for Foreign Copyright Owners The Article 2 of the Copyright Law states that a foreign party's work first published in the territory of the People's Republic of China will enjoy copyright {Footnote: Article 25 of the Implementing Regulations in the second paragraph clarifies that the first publication mentioned in Art. 2 of the Copyright Law refers to publication of an unpublished work of foreigner for the first time in the territory of China by lawful means.]. Furthermore, this article establishes that "any work of a foreigner published outside the territory of the People's Republic of China which is eligible to enjoy copyright under an agreement concluded between the country to which the foreigner belongs and China, or under an international treaty to which both countries are party, will be protected in accordance to this Law." The Implementing Regulations add that where a foreigner's work first published outside China is published in China within thirty days thereafter, it is considered first published in China. Unpublished works of foreigners, if author's authorised translations or adaptations are first published, are considered first published in the territory of China [Footnote: Art. 25, Implementing Regulations.] According to the Implementing Regulations, "work of a foreigner" is defined as a work of an author or copyright holder who is a citizen or ordinary resident of a country which is a member of any of the international copyright conventions where China is a member. If the author or the copyright holder is not citizen or ordinary resident of a country which is a member of the international copyright convention where China is a member, the work will be protected whether it is published at the first time or simultaneously in a member country. The copyright of a work of a foreigner first published in the territory of China, the term of protection is calculated from the date of the first publication of the work. Interestingly, the Implementing Regulations also clarify that the performance by foreign performers in the territory of China is protected by the Copyright Law. 2.2. Concerning Fora in Copyright Enforcement 2.2.1. People's Courts In the case of a copyright infringement or of violation of other related interests, the party whose rights have been infringed may also directly bring suit in a people's court. 2.2.2. Administrative Authority Under articles 7 and 52 of the Implementing Regulations, the National Copyright Administration (hereinafter Administration) is the copyright demonstration agency under the State Council and was set up and charged with the responsibility for the nation-wide work of administration of copyright. The Administration implements copyright related laws and regulations, and formulates measures in relation to copyright administration. Amongst other functions, the Administration is responsible of investigating and handling of infringement of copyright that are of nation-wide influence, administering copyrights of which the State is the owner, and providing guidance for the work of local copyright administration departments. Furthermore, the Administration is the administrative agency in charge of the foreign related copyright administration. In the case of audio and video recordings related to foreign copyright, the Regulations for the Administration of Audio and Video Recordings establish that when an authorised publisher for audio and video recordings in China intends to co-operate with an entity or person outside China for the production of audio and video recordings, he should obtain approval form the relevant department. The copyright section of such contract must be registered with the Administration. When an audio and video recording is imported for the purpose of reproduction, the copyright holder or his representative must be register the relevant copyright matter in the contract with the Administration. The Implementing Regulations decentralise the copyright administration establishing that the copyright administration departments under the local people's governments are in charge of the copyright administration within their respective administrative areas, whose functions are determined respectively by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government [Footnote: Arts. 8 and 52, Implementing Regulations.]. Therefore, it facilitates the enforcement of copyright in such extremely big country as China. Article 50 provides for administrative sanctions in those case of infringement of copyright enumerated in Article 46 of the Copyright Law. Those sanctions include warning, injunction in relation to production and distribution of infringing copies, confiscation of unlawful gains and seizure of infringing copies and equipment used for making infringing copies as well as a fine. The fine will depend on the seriousness of each case. [Footnote: In case of plagiarisation of a work created by another, the infringer will be liable to a fine of 100 to 5,000 yuan RMB, equivalent to 7.39 to 369.60 sterling pounds. Other those who carry out infringing acts such as reproducing and distributing a work for commercial purpose, publishing a book where the copyright belongs to another, reproducing and distributing sound or video recordings, reproducing and publishing a sound or video recordings and reproducing and distributing a radio or television programme without the consent of the copyright holder will be liable to a fine of 10,000 to 100,000 yuan RMB, equivalent to 739.20 to 7,392.00 sterling pounds, or an amount of two to five times as much as the price in total. Production and sale of a work of fine art where the signature of an artist is counterfeited is considered one of the most serious offence and those who commit such an offence will be liable to a fine of 1, 000 to 50,000 yuan RMB, equivalent to 73.92 to 3,696.00 sterling pounds. Exchange rate actualised on 15th July 1998.] Furthermore, Article 53 states that in exercising its right of imposing administrative sanctions, a copyright administration department may order the infringer to compensate the infringed party for the suffered loss.
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