Copyright Administration gives in to musicians
July 13, 2012 | BY
clpstaff &clp articles &The National Copyright Administration has caved in to the demands of the musicians in its latest Draft to the Law, but key provisions on licensing and software are causing concern
On July 6, the National Copyright Administration released the second Draft of the controversial and widely discussed PRC Copyright Law (中华人民共和国著作权法).
When the first Draft came out at the end of March, musicians and producers criticised the changes for encouraging piracy and depriving copyright owners of revenue but other practitioners welcomed the move.
|Going backwards
“The proposed Article 46 was a step in the right direction because it gave some degree of clarity on the implementation level on the rights to reproduce a song,” said Huang Song, of counsel at Jun He Law Offices in Shanghai.
Article 46 allowed any record producer to use someone else's work without having to obtain consent from the owner, provided the content has been published for more than three months.
However, a lack of understanding and confusion saw many musicians and writers protest about the Article as they believed it encouraged piracy. BeijingDaze blog said at the time: “Essentially, after three months, artists would lose control over their work.”
In a previous interview, Ma Xiaogang, managing director of the China Copyright Association argued to China Law & Practice that even if a three-month limit is too short, the existing Law did not lay down any time limits, which means that at present songs can be reused immediately after publication.
But the NCA has now backed down. “After listening to the opinions of copyright holders, relevant copyright collective management organisations and other relevant organisations, the NCA has reduced the scope of statutory permission to just statutory permission for educational materials and statutory permission for re-publishing by the press" said the brief explanation accompanying the second Draft.
It is possible that the NCA felt the timing is not right for Article 46, as the amount of criticism in unprecedented and it will take time for musicians and producers to understand any changes to the Law. However, legal professionals agree that it had the potential to change China's copyright regime.
|Software complications and unresolved issues
“We were anticipating that the second Draft would allow parties to a licensing agreement of computer software to contract out the statutory provisions governing software licensing terms,” commented Huang.
Referring to Article 43, Huang said that the second Draft has not addressed a major concern over the apparent disturbance of the Law to parties' right of autonomy in contracts.
Article 71, which in effect allowed a form of software piracy if the user or holder of a pirated copy of a software program does not actually know or has reason to know the infringing nature of the software, also remains in the second draft.
“This proposal violates the fundamental principle in Copyright Law that knowledge is not an element at all for a finding of copyright infringement,” said Huang.
|What's next?
A third draft of the Law is expected to come out in one or two months from now, but that will not be the final version. While the NCA Draft is important as it lays out a foundation for the reform, the State Council and National People's congress have the ultimate say about the final Copyright Law.
“In the past, we saw the State Council Legislative Affairs office completely change the draft prepared by SIPO for the Patent Law and the State Administration of Industry and Commerce for the Trademark Law,” said He Jing, a partner with ZY Partners based in Beijing. He also anticipates “a few more drafts” in the next six to 12 months.
The July/August edition of China Law & Practice contains an article by Connie Carnabuci and Yang Xun of Freshfields Bruckhaus Deringer on the affects of the first draft on software developers.
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