Matt Webb
On July 6, 2012, China’s National Copyright Administration published a Second Draft for a new (third) revision (Chinese version) to the Copyright Law for the People’s Republic of China 《中华人民共和国著作权法》. Once adopted, this will become the Third Revision to the Copyright Law since it was originally enacted in 1990. Changes in the Second Draft from the First Draft published March 31, 2012 (Original Chinese / English translation by China Copyright and Media) represent a move to a more American system, including both an “open list” of exceptions to exclusive rights and a pseudo-“three step test” to which these exceptions must conform. I have also translated the Chapter on The Limitations to Rights from the Second Draft (highlighting the differences between the two recent drafts).
China proposes an open list in the Second Draft
Under the current Copyright Law (the Second Revision, enacted in 2010) (Chinese version from the Yantai Government’s website), China uses a “closed list” in limitations and exceptions to copyrights, similar to the system used by many Commonwealth countries (such as Canada and the UK ), often referred to as “fail dealing.” Under this system, use of a copyright without the right holder’s permission is limited to certain circumstances enumerated in law.
The relevant section of the current Copyright Law reads:
Article 22: In the following cases, a work may be exploited without the permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work are mentioned and the other rights enjoyed by the copyright owner by virtue of this Law are not infringed upon:
第二十二条 在下列情况下使用作品，可以不经著作权人许可，不向其支付报酬，但应当指明作者姓名、作品名称，并且不得侵犯著作权人依照本法享有的其他权利：
Following this provision is a list of twelve acceptable circumstances for such use. This section only provides for a list of “following cases” where “a work may be exploited without the permission from, and without payment of remuneration to, the copyright owner.”
The Second Draft (July 2012) of the Article 22 of the Chinese Copyright Law (now Article 42) includes an additional acceptable case for fair use of copyrighted material: “(13) Other Circumstances” or “（十三） 其他情形.” This open-ended category changes the Chinese system on limitations and exceptions to copyright from a closed list to an “open list” (such as Section 107 of the United States Copyright Act), giving a much broader scope to allowable uses of copyrighted material.
China proposes additional criteria for copyright use in both new drafts
In addition of the “Other Circumstances” category, both the First and Second Drafts add another a set of criteria for allowable use of copyrighted material using language taken from the “three-step test” found in various international treaties.
In the First Draft of the new revision, the following Article was included at the beginning of the Chapter on the Limitations of Rights:
Article 39: According to the provisions of this Law, those using without the permission of copyright holders of their already published works, may not influence the regular use of that work, and may not unreasonably infringe the lawful rights and interests of the rights holder.
第三十九条 依照本法规定，不经著作权人许可使用其已经发表作品的，不得影响该作品的正常使用，也不得不合理地侵害著作权人的合法权益。
The Second Draft moves this language to from the beginning of the Chapter to a paragraph following the now 13 circumstances for allowed copyright use without the right holder’s permission:
Methods of use of the work referred to in the previous paragraph[s] shall not influence the normal use of the work, and must not unreasonably prejudice the legitimate interest[s] of the copyright owner[s]. (Article 42)
以前款规定的方式使用作品，不得影响作品的正常使用，也不得不合理地损害著作权人的合法利益。
This language resembles what is referred to as the “three-step test” for limitations in copyright, first seen in Article 9 of the Berne Convention:
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in
- certain special cases,
- provided that such reproduction does not conflict with a normal exploitation of the work
- and does not unreasonably prejudice the legitimate interests of the author.
[emphasis, bulleting, and format added]
Similar language has been repeated in other international treaties, such as the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the WIPO Copyright Treaty, and the EU Copyright Directive (Article 5.5). The leaked IP Chapter from the US proposal for the Trans-Pacific Partnership Agreement (TPP) also included the three-step test.
China modifies this test, which is normally applies to nation-states, to apply to users of copyrighted work within China. The first “special cases” criterion is omitted, assumedly because that criterion refers to the scope in which a control can allow usage of work without the owner’s permission. Also, the Chinese version uses the word 影响 or “influence,” instead “conflict,” in language taken from the second criterion. Used in this context, “conflict” is implied, but not stated directly.
Lastly, the language in the Second Draft also contains a potential ambiguity with the lack of singular/plural distinction in “previous paragraph[s]” or 前款规定 in the additional criteria above. Based on context, this mostly likely refers to all 13 circumstances for copyright use preceding it. However, there is a slight ambiguity because the language does not make it perfectly clear whether it means “previous paragraph” or “previous paragraphs.” These are both examples of differences between high-subtext languages, such as Chinese, and low-subtext ones, such as English.
