Opinion: Draft Copyright Law extends government power

The draft amendments to the Copyright Law empower collective management and set new rules for fair use

The publication of the draft amendments to the PRC Copyright Law (中华人民共和国著作权法) on March 31 attracted wide attention and much controversy. The Draft refines the law to meet practical demands, but questions remain over many of the changes and users are calling for further reforms.

 

In recent years, Chinese courts have handled multiple cases where thousands of copyright owners filed collective actions, underlining the weakness of China's Copyright Collective Administration (CCA). The Draft strengthens the function and capability of CCA organisations. In particular, CCA organisations enjoying broad recognition as representative bodies may be authorised by the copyright administrative department under the State Council (CAD) to exercise extended power in representing non-members. This approach could solve the problems now being dealt with using collective actions.

However, Article 60 of the Draft states: “unless the rights holder excludes collective administration in writing”. If the majority of copyright holders opt to exclude themselves, this important amendment is useless to them.

Further changes include the collection of fees by CCA organisations. Article 61 provides that: “the rates of royalty or usage fees collected by CCA organisations shall be published and implemented by the copyright administrative department under the State Council”. It also states: “where there is an opposition, the copyright administrative department under the State Council shall enlist a special committee to examine the matter, and the decision of said committee is final.” There has been a lot of criticism about administrative departments determining fee rates. If a government department sets the prices with no accompanying legal measures, they have a monopoly. This kind of control is detrimental to both copyright owners and users.

If passed, Article 61 legalises government control of fee rates. The opposition procedure mentioned is especially confusing. Is it an administrative body or a para-judicial body? Is the decision an administrative decision or a judicial ruling? If it is an administrative decision, how will they enforce the decision? We believe that it may be more effective to learn from the arbitration system and set up a collective consultation mechanism between copyright owners and users.

Another highlight of the Draft is the adjustment to statutory licensing, which improves remuneration payments and provides legal remedies. Under the new rules, fair use requires prior registration, payment of use fees via CCA organisations and carefully declaring all sources. While this is progress, the prior registration of statutory licensing is filed with the CAD, but remuneration is paid through CCA organisations. This involves processing large amounts of information across multiple departments. We would question whether a simpler and more efficient way exists.

The nature of copyright is currently under public control. Lowered standards for statutory licensing and the extended power granted to CCA organisations could limit this control. From a legal perspective, once copyright is subject to government control, it is imperative to establish measures to restrain this new government power.

By Xie Guanbin and Zhang Yun, Lifang & Partners

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