Is administrative enforcement the answer? Copyright protection in the digital era☆
Introduction
China has been forming its government based on “socialism with Chinese characteristics” since 1979: socialism represents the basic principles of practice and Chinese characteristics are what these principles embody in the country.1 A multi-ownership-oriented basic market economic system (with the public ownership in the dominance) has thus been established and sustained together with a unique legal system. To date, “a Constitution-centred socialist legal system with Chinese characteristics has basically taken shape”.2
The implementations of these “Chinese characteristics” in the legal system are varied and sometimes might seem peculiar and contradictory. For instance, whilst the Constitution affirms that all state power belongs to the people and authorises the National People’s Congress (NPC) and the local People’s Congress at all levels to be the organs through which the people exercise state power,3 it states that Chinese people of all nationalities come under the leadership of the Chinese Communist Party (CCP).4 This confirms that China is currently an authoritarian one-party state, although Article 5 of the Constitution embraces the rule of law and states that the CCP must be subject to the rule of law, the authority of the state and the Constitution, which is the fundamental law of the state and has supreme legal authority as clarified in its Preamble. Recalling its history, China has nonetheless taken a positive step toward, and is committed to, more than ever, implementing a system of the rule of law throughout the nation. Gradually learning the practice of the rule of law, the country has made rapid progress in legislation: numerous laws and regulations have been made and enforced, including copyright, a regime that secures private property rights in the course of a legitimate concern of balancing the rights of individual authors and of general users. It has been almost two decades since the first copyright law initially came into effect in China, ahead of a more complete system for copyright protection being established. Certainly, modern Chinese copyright law also carries Chinese characteristics; it is coloured by the country’s distinctive history, culture, economic and political concepts of state, as well as containing substantial elements inherited from ancient Chinese law.
A significant manifestation of these Chinese characteristics is its implementation of a dual-track system for copyright enforcement. In addition to judicial protection, Chinese copyright law offers a legal basis for administrative enforcement and defines certain responsibilities including civil liabilities, criminal liabilities and exposure to administrative sanctions. Currently, whilst interest in court action grows steadily within the country, the Chinese administrative remedies still offer copyright proprietors the most popular enforcement for protection, which has obvious advantages over the judicial enforcement, such as simpler process, shorter time, and cheaper cost. Compared with other legal systems in most western countries, Chinese law is unique in providing this administrative enforcement in relation to copyright protection. The quasi-judicial power of the administrative authorities is justified by Article 47 of the Copyright Law of the People’s Republic of China (CCL), “the public interest” clause.
Whilst copyright protection is becoming more challenging by the day in the digital era, could the Chinese model possibly be one of the solutions for effective copyright protection? This paper thus will investigate copyright enforcement in the Chinese legal framework with a focus on administrative enforcement, primarily its implementation and jurisdiction, by means of an up-to-date case analysis.
Section snippets
The dual-track system
The CCL 2001 adopts a dual-track system for copyright protection, i.e. judicial enforcement and administrative enforcement. Below, we will start with a brief introduction to China’s overall legal structure to see how the dual-track system fits in.
Practices of administrative copyright enforcement
While dealing with copyright protection in China, the majority of the concerned parties would choose to take administrative rather than judicial action. Hitherto, most IPR enforcement has been done through the administrative system. According to China’s 2007 White Paper on IPRs, 10,344 out of 10,559 cases, nearly 98 percent, were concluded by copyright administrative authorities at all levels across the country.24
Discussion and conclusions
Historically, China lacked the culture of rule of law. Its administrative authorities have always enjoyed additional judicial power and the jurisdiction over cases was implemented by local civil officials, whose specialities were in Confucianism but never in interpreting and applying laws and rules.
The re-establishment of the legal system along with the Reform and Opening-up Policy has been fairly effective, but problematical. Although the Constitution has confirmed that China adopts the rule
References (0)
Cited by (2)
Illegal online file sharing, decision-analysis, and the pricing of digital goods
2016, Illegal Online File Sharing, Decision-Analysis, and the Pricing of Digital GoodsCopyright and the public interest in China
2011, Copyright and the Public Interest in China
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An earlier version of this paper was presented at the 4th International Conference on Legal Security and Privacy Issues in IT Law (LSPI) that was held in Maltafrom 3–5 November 2009.