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Whose works must not be broadcasted by compulsory license in China? A commentary on Article 49.2 of the Draft Amendment of China’s Copyright Law

Professor Qian Wang, Professor of Law, School of Intellectual Property, East China University of Political Science and Law, Shanghai

China's Copyright Law provides a system of compulsory licensing for broadcasting organizations to broadcast certain works, and the system treats domestic and foreign works equally. Article 49.2 of the third draft amendment of the China Copyright Law narrows the scope of the application of the compulsory license to works of “Chinese copyright owners and foreign copyright owners whose works are created in China.” This article argues that that proposed Article 49.2 is not appropriate. It is claimed that the article is intended to comply with Article 11bis(2) of the Berne Convention. However, As a provision allowing member states to substitute the system of compulsory licensing for the exclusive right of broadcasting, Article 11bis(2) of the Berne Convention does not oblige China to apply the compulsory license only to domestic works. Article 49.2 of the third draft amendment is also based on the misinterpretation of the expression “these conditions (of compulsory license) shall apply only in the countries where they have been prescribed” in Article 11bis(2) of the Berne Convention. That expression means that when a broadcasting organization obtains a compulsory license to broadcast works and the broadcasting signal crosses the border, other member states receiving the broadcasting signal do not have an obligation to treat the unauthorized broadcast as a lawful one. If Article 49.2 is finally adopted, unjustified supra-national treatment will be created under which Chinese copyright owners are treated less well than most foreign copyright owners. Moreover, foreign copyright owners whose works are created in China will be subject to more copyright limitations than those foreign copyright owners who created their works somewhere else, thus producing another unjustified discrimination. The interests of broadcasting industry in China will also be seriously affected since they would have to negotiate with most foreign copyright owners to obtain licenses. This article suggests deleting Article 49.2 so that the compulsory license to broadcast certain works is able to apply equally to domestic and foreign works in China.

Researchers' attitudes towards open access and their publishing practices: a view from the bottom of the Asian Pacific

Richard White, Manager Copyright & Open Access, University of Otago

Depending on who you listen to, Open Access is either the death of quality research publication or a moral and ethical obligation for publicly-funded researchers that represents the future of academic endeavour. Either way, we are all familiar with the problems facing universities around the world: subscription costs have soared as huge commercial publishing companies have obtained the copyright in around 50% of the world’s research outputs. As a counter to this the Open Access movement arose to seek ways of ensuring that publicly-funded research was available to that public, whether through ensuring – often paying – to waive some authors’ copyrights in favour of readers (Gold OA) or by applying less restrictive rights to versions other than the formal, publisher’s record (Green OA). Governments and funders around the world have also seized upon Open Access issuing mandates to require open access to research in the interests of fostering the spread of knowledge and economic development but such mandates have largely been restricted to the US and Europe. This presentation will report on the findings of a survey of researchers at the University of Otago, New Zealand about their attitudes towards Open Access and how their publishing practices have been influenced by it. As in many countries of the Asian Pacific, New Zealand researchers are operating without clear directives or financial support from government and funding agencies. The results of the research show a complex web of interrelated issues affecting staff: there is very strong support for OA in principle and many see a world of open research as an important opportunity; however, in practical terms cost and a lack of understanding of a an area of very rapid change present us with difficult challenges.

Copyright, Artificial Intelligence and equitable compensation or lack thereof: Can we make things right again?

Reconstructing Property Rule and Liability Rule for Copyright Holders, Users and ISPs: The Age of User-Generated Content

Ronald Yu, Executive Vice President, International Internet Preservation Consortium, Part-time lecturer, University of Hong Kong

The US Copyright Office stated that it will not register copyright for a work solely created by an artificial intelligence (AI). Were we to analyze how modern AI systems work, we could readily find support for this position as many such systems do not actually ‘think’ the way a human does because, as Jaron Lanier, a pioneer of virtual reality noted, we don’t even know what a thought is. The problem with current AI is that many works created by such systems incorporate copyrightable works from countless humans who are not compensated for their input. Some, like Lanier, have suggested this situation is inequitable and is exacerbating the income divide - yet their proposed solutions are technically and legally problematic. If copyright and IP laws were enacted to protect and encourage creators, and no portion of any copyrightable or other work created by current AI systems enjoys IP protection, how can we remedy this situation?

Associate Professor Han Zhang, School of Law (School of Intellectual Property), South China University of Technology; Senior Visiting Scholar, School of Law, University of California at Berkeley


Weijie Huang, PhD Student, Faculty of Law, The University of Hong Kong

The “notice and takedown” regime authorizes copyright holders to stop possible infringements by removing user-generated content (UGC) without judicial injunctions. Copyright holders’ takedown notices substantially supersede injunctions known as property rules in Calabresi and Melamed’s structure. These substitutions will increase transaction costs for possible negotiations among copyright holders, users and Internet Service Providers (ISPs), since property rules can create clear boundaries for copyright infringements from an ex-ante perspective. However, when transaction costs among parties go up, liability rules providing compensation by “judicial pricing” take effect in an unbalanced way. While copyright holders can be relatively well compensated for copyright infringements, compensation for wrongful removal of UGC is strictly limited because of the subjective good-faith standard for copyright holders’ misrepresentation and the narrow scope of recoverable damage under the economic loss rule that is reluctant to provide remedy. The current regimes are based on the assumption that users can be copyright pirates and piracy damages the market of original works. Therefore, more emphases of current regimes are on protecting copyright holders’ entitlements. However, in this new age of UGC when users are more likely to be re-creators rather than copiers, UGC has become a major source of creativity and ISPs become the platform for creativity. Consequently, a more balanced reconstruction of property rule and liability rule for copyright holders, users and ISPs should be carried out. Replacing “notice and takedown” regime with property rules based on the decisions of courts or other authorities can promote future transaction and cooperation among copyright holders, users and ISPs. This replacement of regulations also contributes to possible industry chains that are based on the negotiation and collaboration among copyright holders as original creators, users as re-creators and ISPs as re-creative mediums. Strengthening liability rules in protection of users’ and ISPs’ entitlements can bring back the balance among copyright holders, users and ISPs. Specifically, objective standard in good faith test for copyright holders’ misrepresentation causing removal of UGC and applicable economic loss liability for copyright holders in tortious interference cases should be implemented.