Transcript Specific Goals of Chinese Copyright (and Related

External Perspectives on New
Chinese Copyright Law
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Michael Schlesinger
[email protected]
[email protected]
International Intellectual Property Alliance
Mitchell, Silberberg & Knupp LLP
George Washington University School of Law
Munich Intellectual Property Law Center (MIPLC), Max Planck Institut
New Developments in Chinese IP Law: Copyright
Revisions and Enforcement Challenges
October 4, 2012
Berkeley, CA
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Seven Trade Associations of the IIPA
over 3,200 companies nearly 6.5% of U.S. GDP
5.1 million workers
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Broad Goals of Chinese Copyright (and
Related) Law Revision from Creators’
Perspective
Enhance Economic Development (reduce piracy
rates, increase revenues)
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Enhance Cultural Development (increase
productions and co-production)
Promote Rule of Law and Culture of Legitimacy
(more legal choices for delivery of content)
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Specific Goals of Chinese Copyright (and
Related) Law Revision from Creators’
Perspective
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Internet Liability Issues (Art. 69)
• coverage? (host, search, link) (P2P?
cyberlocker? BitTorrent indexes/trackers?
streaming?)
• vicarious covered? (right and ability to
supervise/control and monetary benefit)
• non-“ISPs”?
• wilful blindness (no duty to monitor≠)
• “timely”
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Specific Goals of Chinese Copyright (and
Related) Law Revision from Creators’
Perspective
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Internet Liability Issues (Art. 69)
• E-mail notices – important!
• repeat infringer policies
• Draft Article 77 (no license=infringing)
(definition of “user”)
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Specific Goals of Chinese Copyright (and
Related) Law Revision from Creators’
Perspective
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Internet Liability Issues (Art. 69)
• relationship with important Draft SPC Internet Rules
• broad coverage (but streaming?) (mobile
devices?) (local networks?) (automatic access,
automatic transmission)
• joint and several liability
• contrib. liability when ISP knows or should have
known
• payment processors/server farms
• repertoire wide relief
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Specific Goals of Chinese Copyright (and
Related) Law Revision from Creators’
Perspective
Technological Protection Measures (Art. 64)
• “technologies” covered? (says “devices, or
components”) (perhaps covered in services)
• “access” control technologies (“viewing,
appreciation, running”)
• “that are mainly used” (expand to “designed
or promoted” to evade TPMs?)
• “Intentionally”: Articles 65 and 74 of the
NCAC Draft contain the word 得故意
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Specific Goals of Chinese Copyright (and
Related) Law Revision from Creators’
Perspective
Technological Protection Measures
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(Art. 64)
• Exceptions (narrowly tailored to preserve
effectiveness of TPMs)
• classroom – face to face only?
• works unavailable due to government policies
• “except as otherwise provided in laws and
administrative regulations”
• “without authorization” (未经许可) = right
holder consent?
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Specific Goals of Chinese Copyright (and
Related) Law Revision from Creators’
Perspective
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Criminal Law Reform
• threshold of 500 copies – revisit
• coverage of “other situations to make profit by using
third parties’ works” (2011 Criminal IPR Opinions,
Article 10(4) “for profit” definition) (end-user piracy)
• express coverage of exclusive rights (e.g., broadcast,
communication over information networks)
• TPMs/RMI violations
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Many more issues are covered in
depth in our submissions
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