中国著作权法：成就, 问题与走向 - 以《著作权法》第三次修改为中心 -

Abstract

China, as one of the Four Great Ancient Civilizations in the world, invented Chinese characters, papers and Printing Process. While lack of the economic, cultural and political foundations that copyright regime derived from, the modern copyright legal system in China was established under the pressure of the Western Powers. Thus, it has come through a lot of ups and downs. Culturally, works endowed with ethics obligation in Chinese culture undertake the social responsibility of spreading the culture. For purpose of the most comprehensive culture spreading, it is impossible for copyright protection to be the main issue. Besides, protecting copyright involves the absolute recognition of property right. All of these are contrary to the Chinese social value conception and Chinese social organization principles. Politically, during the “Culture Revolution”, mistreatment of intellectuals by government directly leads to the disorientation of copyright regime development. Economically, after the “Reform and Opening”, Chinese market economy has been growing rapidly, which provides an economic basis for the renaissance of copyright regime. Came into force in 1990, the current Copyright Law of the People’s Republic of China provides a solid and firm guarantee for the development of China’s socialist market economy. With more attention paid by the ruling party on the protection of copyright, the improvement of civil rights consciousness and the demand for protection, as well as the impact of Internet technology, Chinese government has been conducting the third amending process of the Copyright Law. This draft amendment has modified the Copyright Law to a great extent both in the structure and the right system of the legislation. It consists of eight chapters with eighty-eight articles in total, while the existing Copyright Law consists of six chapters with sixty-one articles in total. From the perspective of right system, the existing Copyright Law includes seventeen spiritual and property rights, while the draft amendment reorganizes the right system to thirteen. Compared to the existing one, the draft amendment adds rental right of authors and performers and right of broadcasting of performers and phonograms producers. Moreover, the draft amendment improves the technical protection measures and right management information regime, adding contents about works of applied arts and “three-step-testing”, perfecting definitions of the right of communication through information network and broadcasting right, specifying the ownership of audiovisual work and post work, constructing administrative mediation of copyright disputes, and improving infringement compensation standards. The changed regulations have attracted great controversies including legal permission, collective management of copyright, obligation on examination of Internet service providers, and addition of property right. These controversies indicate the transition of Chinese Copyright Law from “passive modification” to “active response” to the needs of social reality. In China, copyright is not only a private right, but also closely related to current Chinese public policies. Copyright is a means by which Chinese government realize its public policies. Therefore, the ambit of copyright protection in Chinese shall be on the basis of national conditions other than be expanding arbitrarily. The flexibility and inclusiveness in Chinese traditional culture shall be well comprehended in the protection of copyright. Future protection developments lie in the reality of the country.