Why China's Copyright Law critics are wrong - interview

Article 46 has been most controversial. This states that any record producer may use someone else's musical work without having to obtain consent from the owner, provided the content has been published for more than three months.

Under Article 48, the royalties for this use will be collected within one month through collective copyright management organisations who will transfer payment to the copyright owner. The user is not liable as long as they submit usage fees to these organisations. This holds true regardless of whether the owner is a member of the organisation, according to Articles 60 and 70.

Singer and songwriter Gao Xiaosong expressed grave concern on his Sina micro blog. “Songwriters will feel very hurt and become less motivated to write songs.” He said that it is difficult to popularise a new song within three months and allowing others to reuse the song in such a short time is “encouraging piracy”.

"The only positive by product of this amendment allows Chinese parties to record and distribute a new Lady Gaga album after it has been on the market for three months," he wrote.

BeijingDaze blog said: “Essentially, after three months, artists would lose control over their work… They're used to having covers of their songs but there were means to stop unfair use! Now, they legally have no right to say NO. ”

However, Ma Xiaogang, managing director of China Copyright Association, who is also a member of the expert panel looking at the Copyright Law amendments, said that the criticism is due to a lack of understanding of the Law and the ambiguity of the concept of copyright owners.

Ma said that there are distinctions between the original author and record companies. In many instances, it is virtually impossible for a user of sound recordings to pay royalties, as it is hard to locate musicians who are not well known.

In contrast, well-known singers who have the resources to enforce their copyright may be at a disadvantage. However, this way of enforcement, Ma argues, prevents the dissemination of musical products. He argues that if a three-month limit is too short, the existing Law did not lay down any time limits. In practice, this means that songs can at present be reused immediately after publication.

Ma suggested that clarifying the law might be preferable to imposing an arbitrary limit. In his opinion submitted to the amendment committee, he proposed that original owners and recording companies could agree on a specific time limit. “The two parties could make a formal declaration for the agreed time limit and file a record at the NCA,” he said.

His view echoes that of Meng Hai, director of the rights protection department at Shenzhen Copyright Association, who also points out the issue of supervising collective copyright management organisations and the pricing mechanisms.

“Some think that the pricing system should be based on market economy and supervised by copyright administration departments, but statutory licensing needs an authoritative standard. It will otherwise become very complicated if disputes over payments arise,” said Meng.

There are five collective copyright management organisations across five industry sectors in the country – a system similar to that established in other countries. However, the concern, according to Ma, lies not with the system itself, but with operation and management of these organisations. In particular, he highlights the misuse of power in enforcing copyright on behalf of original owners.

By Janice Qu

Further reading:

PRC Copyright Law (中华人民共和国著作权法)

Principle impact of Copyright Law amendments

Opinion: Draft Copyright Law extends government power