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IP and Law

Baidu in the music business?

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A major reason for search engine Baidu's popularity is its efficient MP3 search function, which allows Chinese music fans to easily find downloadable files of popular music. Of course most of this music is pirated, but Baidu's responsibilities is not clear, because the files are merely located, not hosted by Baidu.

The risk of a new law, or a lawsuit that goes after Baidu's MP3 search service for intellectual property infringement is sometimes cited as a danger for the search engine that is said to have the greatest number of users in China.

However, the risk also carries with it an opportunity. Reuters reports:

China's Baidu sets up online music partnership

Chinese Web search leader Baidu.com Inc. has set up a partnership with popular Chinese-language record label Rock Music Group to provide an online music streaming service.

Rock Music will license part of its music repertoire to Baidu users for free, and both companies will share revenue from Internet advertising, they said in a statement dated July 4.

If Apple could adapt faster than the record companies to the realities of the Internet and thus take the music industry by storm, why not Baidu?

China's record companies are in dire straits: they struggle to sell even sell legitimate copies of CDs, let alone MP3s. Baidu should easily be able to sign up several record companies to make their catalogues available online.

Baidu also has the connections and home grown China credentials to work out a partnership with China Mobile that would enable mobile downloads and an efficient billing system.

Baidu and the Chinese music business: it could be the start of a beautiful friendship.

Links and Sources
Intellectual Property

Sanmao goes overseas

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Sanmao, the wandering orphan created by cartoonist Zhang Leping in the 1930s, has been adapted for the screen many times over the years.

The latest adaptation, a live-action movie, is a Sino-Belgian co-production; some fans are worried about the prospect of Sanmao being "updated" and deprived of his Chineseness. Here's a recent article by Zhang's son Zhang Rongrong that explains how and why the family decided to grant a Belgian director the rights to the project:

Why we agreed to a co-production of Sanmao

by Zhang Rongrong / XEN

Sanmao has not "gone to live abroad"

Sanmao was created by my father, Zhang Leping. We siblings are the inheritors of the Sanmao intellectual property. More than a year ago, we signed a contract with a Belgian film company granting them the rights to film a Sanmao movie; in addition to stipulating that the movie must use live actors (i.e. not a cartoon) and must be adapted from the original Sanmao's Wanderings comic book, there were a few other special rules to guarantee that Sanmao's image would not suffer. For example, the contract stipulated that the movie "must respect relevant Chinese laws and regulations and must not produce any negative influence on the work (i.e. the original Sanmao's Wanderings comic book) or Sanmao," and "the licensee (i.e. the foreign side) shall not register Sanmao or the Sanmao image as a trademark."

The contract with the foreign side also stipulated that "the licensee may freely select its own partners, but one must be a Chinese partner," in order to guarantee that the movie would be a joint production. The movie, which is currently in pre-production, is set in old Shanghai, so no matter which way you look at it, Sanmao has definitely not "gone to live abroad."

The contract clearly stipulates that "the intellectual property rights to Sanmao and the Sanmao image are the sole property of the licensor." There have been some rumors that Sanmao would "go Korean" or become a Mr. Bean-type character to amuse adults. But Sanmao is simply Sanmao. His unique personality traits will not change. If Sanmao's image were truly going to be injured, not only would we (the licensor) definitely not consent, the Chinese joint production partner would not consent either. For example, there is one passage in the script that goes like this: Sanmao rescues a foreign child from the river. The child lives in Shanghai, and to repay Sanmao, the child's parents provide Sanmao with room and board at their home. But in just a few days, Sanmao becomes leaves angrily after the foreign family's unfair treatment of him. This story was taken from my father's Sanmao's Wanderings; the rescued child was changed into a foreigner, but Sanmao's personality was not changed.

Law

Shanxi slaves and the Labor Contract Law

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Zhang Xubo, whose legs were severed in a Shanxi "black" brick kiln in 2002
On Friday, June 29, the National People's Congress voted to pass the Labor Contract Law. Media coverage, including articles in China Daily, The New York Times and The Washington Post, has hastened to situate the law's passage in the context of the recent "Shanxi black brick kiln incident." Meanwhile, Chinese law makers revealed that, during the Standing Committee deliberations, members demanded that the Labor Contract Law "handle" the Shanxi slave situation.

Speaking at an NPC press conference yesterday afternoon, legislator Li Yuan said that the Shanxi kiln case resulted from "dereliction of duty" by government agencies. As a consequence, language was appended to the Labor Contract Law making relevant government bodies and their staff liable if they harm workers or employing units (用人单位) by failing to carry out their duties or if the government bodies or their staff violate the law in the exercise of their powers.

Notwithstanding the media coverage connecting the Shanxi slaves with the Labor Contract Law, the new law has only the scantest relationship to Shanxi's illegal kilns. Passing a law in China takes years, and the Labor Contract Law has been under consideration since 2005. In addition, the key passages of the law — which include requirements for written labor contracts and payment of severance wages, as well as restrictions on fixed-term contracts — offer no solace to slave workers. When bosses kidnap children and force them to work without pay, while the local government looks away and squelches local press reports, a law requiring written contracts is beside the point. Moreover, as Li Yuan pointed out during the press conference, to the extent that the Labor Contract Law explicitly addresses the dereliction of duties that led to the scandal in Shanxi, it's redundant: laws prohibiting the dereliction of duty already exist.

What's significant about the passage of the Labor Contract Law is not that it addresses the Shanxi kiln problem, but that the NPC wanted to create the impression that it would. In other words, the NPC used the Labor Contract Law as an opportunity to appear responsive to public outrage and to pander to public opinion. For a legislative body that isn't popularly elected, it's behaving an awful lot like the U.S. Congress.

Still, whatever might be said about the NPC's sleight-of-hand theatrics, both domestic and foreign press coverage have been accommodating of the illusive connection between the Shanxi slaves and the Labor Contract Law. And for a foreign press that's free of government censorship, it's behaving an awful lot like Xinhua.

Links and Sources
Publishing

China's unfavorable copyright imbalance

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GAPP just released a report on the state of China's publishing industries in 2006. The report concluded that, while China's copyright-related trade has made strides, the "unfavorable copyright trade imbalance" hasn't fundamentally reversed.

In support of this conclusion, the report cited figures showing that 12,386 copyrighted publication titles "from elsewhere" were sold in China in 2006, while China exported only 2,057 copyrighted publication titles. The report includes comments from industry experts saying that the competitive power of China's "book products" is still relatively weak. Chinese books that "walk out" into the international arena will have to "carry a heavy load over a long distance."

To anyone with passing familiarity with the quality of media published in China, the fact that China imports vastly more publications than it exports should be no surprise. Years of censorship, restrictions on market access, rampant copying and ingrained corruption have taken their toll on product quality. As a result, reporting and non-fiction writing in China tends to be simplistic (or simply propaganda) and include inaccuracies; comprehensiveness and analysis is rare. Fiction writing often lacks the drama and plot developments that characterize storytelling that captures a global audience.

The "unfavorable copyright trade imbalance" — or, put another way, the absence of international demand for Chinese publications — reflects the global market's assessment of the quality of Chinese publications. China would be well-advised to accept this lack of demand as a function of market forces, rather than crying unfairness or discrimination. Pushing Chinese publications into an unwilling market will only leave international audiences with a sour impression of Chinese media. If China thinks the copyright trade imbalance is unfavorable now, think how much worse it will be after global readers have slogged through "The Selected Works of Jiang Zemin" and sworn, "Never again."

Links and Sources
Mobile phone and wireless

Nokia embroiled in "Typo-gate"

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Illegal characters (left) paired with their standard counterparts.
UPDATE: A reader has left an informative comment suggesting that the characters in question are actually part of a national standard for low-res devices.

Is it illegal to attempt to display Chinese characters on a low-resolution screen? That's one interpretation of a Hunan man's complaint about his Nokia mobile phone. Here's Law Weekly's breathless account from its 4 June issue:

Have you ever heard of a phone that has more than 30 incorrect characters? Recently, this weirdness happened to Mr. Zhang of Xiangtan, Hunan. And the phone that "produced" these typos was the famous international brand, Nokia! Mr. Zhang, who was once a Chinese teacher, believes that this infringes on consumer's interests, seriously harming the authority of Chinese characters and hurting the feelings of Chinese consumers.

Mr. Zhang wants to sue Nokia to get it to recall the "typo phone" and issue an open apology to all consumers.
...
"I never imagined that such a basic error would appear on a famous international brand like Nokia." When Mr. Zhang started entering Chinese characters into an SMS, this reporter saw that the three middle horizontal lines of the 真 character had changed to two, while in 置 they had become a single vertical line. The 言 on the bottom of 警 was just a dot, a line, and a square, and was missing two horizontal lines. Then the reporter used Mr. Zhang's mobile to input 攀, 搏, 青, and 遭, and found that they were all short a few limbs.

Anyone who's had to read small text on a cell-phone screen or a poorly-designed web page has certainly run across similar problems (which may actually appear in the quoted article, depending on how your browser renders things). The left-hand characters in the above image, for example, were enlarged from a web-browser set to a small font size.

Even the phone - a 1200-yuan Nokia 1600 - is not unique in its character issues. Southeast Express unearthed a second case in Fuzhou, only this time the culprit was a low-end domestic brand - a 399-yuan Hisense - whose owner couldn't correctly write the characters 碧, 喜, or 贵.

Unfortunately, this technical solution to the problem of displaying complicated characters in a limited space might be illegal. From LW:

Xiao Jun, a law professor at Hunan Normal University, said that according to the National Law on the Standard Spoken and Written Chinese Language, the standard spoken and written Chinese language used in information processing and information technology products shall be in conformity with the norms of the State [Article 15]. It it evident that Nokia has violated that law, and it should correct the mistaken characters as soon as possible. Second, according to the stipulations in the Law on Protection of Consumer Rights and Interests, Nokia's manufacturer's use of non-standard characters in its mobile phones violated the rights of consumers and is disrespectful to consumers and to the language and writing of China.

Similarly, SE found a government staffer in the Fuzhou Education Bureau who suggested that the phone manufacturers might be violating the Language Law.

More unfortunately, Nokia doesn't seem to be handling this PR crisis very skillfully. The LW investigation found a representative who explained that it was a question of resolution, but the company could not explain why the horizontal lines in 置 were replaced with a single vertical one. And in a follow-up story the next week, LW reported that Nokia refused to offer any further explanation.

Here's an op-ed that ran in The Beijing News on Monday that castigates Nokia's recalcitrance:

Intellectual Property

Copyright protection for online content

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Beijing Business Today recently reported on China's accession and ratification of two U.N. Internet-related treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.

Together, the two treaties require signatory countries to provide copyright protection for computer programs, databases, and digital audio and video files. About sixty countries, including the United States, are already signatories. Both treaties require China to make available legal enforcement mechanisms that will allow rights-holders to protect their copyrights quickly and effectively.

Speaking of China's ratification of the treaties, Long Xinmin, the director of China's International Copyright Office, said that countries world-wide are increasingly harmonizing their intellectual property laws with international standards, and that the force of international law is already too strong to resist. He pointed out that most countries are already using the framework of the TRIPs agreement (which comes under the jurisdiction of the WTO) to amend and perfect their intellectual property laws.

What's interesting about this report is that it sounds a note of unreserved acceptance of international standards.

More typically, China's stance on intellectual property enforcement includes caveats about China being a developing country or expresses concerns about wholesale adoption of foreign values and methods. For example, China has a "two track" mechanism for enforcing intellectual property that gives both courts and administrative agencies enforcement authority. This system creates inefficiency, a lack of accountability and has rendered intellectual property virtually unprotectable in China. But far from amending its two-pronged approach, China has showcased it, insisting that it yields even greater protection for intellectual property.

Perhaps China's embrace of the international standards in the WIPO Internet treaties signals a positive development. Obviously, no law — intellectual property-related or otherwise — will be of much use until China's courts can guarantee enforcement. And if China is open to international substantive legal standards, maybe international standards for legal procedures also stand a chance.

That said, don't expect too much in the way of copyright protection for online content. The Internet is where countries with advanced copyright protection and enforcement mechanisms meet their match. In acceding to the WIPO Internet treaties, what China may have done is join the rest of the world in paying lip service to the protection of copyright online.

Links and Sources
IP and Law

Legislating sexual morality in Guangdong

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Model Ma Yanli, rumored to have been a mistress of the former Party secretary of Shanghai
Guangdong's legislature is currently considering a draft law that would prohibit mistresses, known as "er nai". Tucked within a bill called "Women's Rights Protection Law," the provisions would prohibit married people from "building love nests" and from "cohabiting" with non-spouses. The draft law would also (a) prohibit non-spouses "with full awareness" of the marriage from (b) using means other than cohabiting with a spouse to (c) jeopardize marital family relations. Violations of the law could incur administrative penalties, as well as investigation into possible criminal wrongdoing.

Guangdong legislator Cheng Jingchu described the draft law as "defending and promoting the stability of married peoples' households," and news reports characterize such stability as "one of the most basic rights women should receive." Marriage apparently has been under assault from "new problems" like "keeping mistresses," which negatively affect "societal harmony," and the draft law is supposed to safeguard nothing less than "monogamy."

Whatever else the draft law may be intended to protect, it's plainly also a law enforcement tool against corrupt officials. CCTV.com raised this issue explicitly, pointing out that before Shanghai party secretary Chen Liangyu and Beijing vice mayor Liu Zhihua were ousted, their "behind the scenes" mistresses were yanked into the limelight. But in this and other respects, the draft law is poorly written.

First, it's too broad, applying not only to government officials, but to "people with spouses," and prohibiting not merely corruption but "jeopardizing marital family relations." Laws with this breadth and vagueness carry the dangerous potential for selective enforcement. In the U.S., for example, the White Slavery Traffic Act (better known as the Mann Act) — which prohibited transporting a woman across state lines for "immoral purpose[s]" — was famously enforced against blacks like boxer Jack Johnson and musician Chuck Berry (both of whom were traveling with women who weren't black) and lefties like Charlie Chaplin (against whom FBI director J. Edgar Hoover held a grudge).

Second, in general, the law doesn't belong in the bedroom. Morality — and sexual morality in particular — is a matter of conscience, identity and individual choice. The potential for harm arising from such choices is likely to be of a predominantly personal nature. And such laws are impractical: they can't be enforced, and they're invariably ignored. At different times in the United States, everything from interracial marriage, to the use of contraception in marriage, to sodomy has been outlawed, all to no avail: people do it anyway.

People in China (and around the world) have been enjoying extra-marital sex since time immemorial. Outlawing such common, long-standing behavior is like outlawing human nature — it's preposterous and, as such, undermines the authority of the law. And if Guangdong's draft law is to have any hope of usefulness in the fight against government corruption, further weakening of legal authority seems exactly the wrong way to proceed.

Links and Sources

Blogs

The blogger's self-discipline pledge

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The Internet Society of China is soliciting public opinions about its draft "Blog Service Self-discipline Public Pledge," which sets forth the framework for making a civilized blogosphere. The provisions apply to Internet blog service providers (BSP) within China's borders.

The draft calls for BSPs and bloggers to enter into a service agreement. The agreement would require bloggers to guarantee that they won't issue or distribute "pornographic or obscene information," "information that is insulting or derogatory to ethnic, racial or religious groups or to cultural traditions," or slander. Bloggers would further have to agree not to distribute computer viruses and to abide by IPR laws. In addition, bloggers would have to manage and supervise the comments to their blogs, removing illegal comments in a timely manner.

The draft also encourages — but does not require — BSPs to implement a "real name" registration system and to establish a "real name blog" section of their websites, where "real name" bloggers can receive top-quality service and have their blogs recommended as "outstanding products." "Real name" bloggers have to provide their full names, an identifying "number" (e.g., national ID number, military officer number, passport number), and contact information (like a phone number or mailbox). This information need only be disclosed to the BSP; onscreen, "real name" bloggers may remain anonymous or use a pen- or nickname. The BSPs have to develop systems for safeguarding the data provided by "real name" bloggers and cannot disclose that information publicly or to third parties without the user's permission — except as provided by law.

While the draft doesn't break new ground in the realm of Internet regulation, it is significant for two reasons. First, the Chinese government appears to have abandoned mandatory real name registration — at least for the time being — and is offering this Public Pledge as an alternative. Second, that the Internet Society of China is soliciting public opinion on the draft is a positive development. Both points suggest that the Chinese government is sensitive to public opinion and seeking to tread carefully around this issue. If true, this would represent a welcome shift in governance style.

If you want to comment on the Public Pledge, e-mail blog@isc.org.cn before May 28.

Links and Sources
Intellectual Property

Disney Step Aside, Shijingshan Amusement Park Rules!

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It's a duck, but it's not the Donald
At the beginning of May, Danwei linked to a story about Shijingshan amusement park in western Beijing. As you can see from the photo to the left and from the park's website, there has been some er, inspiration from Disneyland.

The duck image reproduced here is from Japan Probe, which has a summary of the story as reported in Japanese media and plenty of photos and video clips from Japanese TV.

A Taiwanese blogger named Sen Lin (森林) has written a tongue-in-cheek defence of Shijingshan Amusement Park (use this link in China).

The piece is facetious, but sounds exactly like ostensibly serious arguments you hear in China every day.

Guest contributor Zhang Xiaomin translated Sen Lin's post.

Disney Step Aside, Shijingshan Amusement Park Rules!

by Sen Lin, translated by Zhang Xiaomin

It was Mr. Walter that made Disney, a family name, into the synonym of joy. Every year, the number of tourists visiting the Disneyland is more than the total population of some small countries. Everybody wants to go to the Disneyland, and over and over again, to see the smiling faces of Mickey Mouse and Donald Duck and to play in the “beyond-exciting-but not yet-horrifying” Thunder Mountain and Splash Mountain. It is as if once you get there, all the stress from real life is shot into the sky alongside the fireworks from the parade. How pleasant and relaxing!

Trends and Buzz

Superstitious cadres?

In the last two weeks, both the Southern Weekly (南方周末) and the South China Morning Post have published stories about an official survey that revealed that a high percentage of civil servants (i.e. cadres) believe in feng shui, physiognomy and other superstitions that members of the officially atheist Party are supposed to stay away from.

Guest contributor David Drakeford spoke to one of the researchers of the report, whose worry about the superstitious cadres in earlier interviews has been replaced with worry about the report being misconstrued.

Superstition governs civil servants?

by David Drakeford

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Southern Weekly charts the superstitions (click to enlarge)
A survey of county-level civil servants in 17 provinces and autonomous regions intended to gauge the scientific knowledge of its respondents has revealed that more than half believe in fortune telling, dream interpretation or other superstitious practices.

The study was conducted by the China National School of Administration, a body responsible for training mid- and high-level government officials and policy makers. According to Cheng Ping, a researcher in charge of the project "As civil servants, most of them are members of the Communist Party. Party members are supposed to be atheist."

They may not believe in God but 19 percent of the 900 government officials polled were shown to have faith in ancient philosopher Zhou Gong's spiritual explanation of dreams. Only six percent advocated the use of I Ching divination but 28 percent believed in physiognomy, a method of determining character from the form and features of the face. This last figure was higher even that than representing the general population.

A bimonthly Party magazine Seeking Truth (求实) published a criticism of the trend in its May 1 issue. "At present, a small number of party members are wavering in their loyalty towards the Party and they are gradually weakening...some Party members believe in gods and ghosts instead of Marx and Lenin." This backlash was only to be expected, president Hu Jintao's Eight Honours and Disgraces includes the unambiguous instruction "follow science; discard superstition."

Superstitious civil servants may be viewed as even more damaging to the state than people who have merely lost their faith in Marxism-Leninism. According to an article published in Southern Weekly (南方周末) on May 17, Tai'an county former party secretary Hu Jianxue re-routed a section of an expressway over a reservoir because a fengshui master advised him that the lack of a bridge was all that was holding him back from the position of vice-premier.

The vice-premiership was not his destiny though as he was eventually convicted for corruption charges and given a suspended death sentence.

IP and Law

Does the Property Law protect private property?

China Law Blog recently published an overview of China's new property law, in four parts. The posts focus on immovable property (i.e. real estate), not the sections of the law that deal with movables (personal property).

It is an interesting look into the topsy-turvy, though-the-looking-glass world of Chinese law. For example:

The Property Law provides for certain special measures limiting ownership rights in land and buildings.

... Ownership of land and buildings is subject to state seizure by through eminent domain. The state has the right to take land owned by collectives and buildings and personal property owned by private persons for a public purpose. The state is required to provide compensation for such takings. The state taking farmland for commercial buildings and taking urban residences for urban redevelopment is a major social issue in China. Abuses in this area are common, well documented, and a cause of unrest. Two major issues arise. First, what is a public purpose? Many Chinese argue urban redevelopment and commercial development for manufacturing and leisure activities are not public purposes. However, the vast majority of land and building seizures are for just such primarily commercial purposes. Second, what is the standard for determining compensation when land and buildings are taken by the state? Many Chinese believe the standard should be fair market value, not the tiny amounts of compensation currently paid.

Earlier drafts of the Property Law included various provisions that would have defined "public purpose" and would have required payment of fair market value or some market based compensation for land and buildings. However, all of these protective provisions were eliminated from the law as adopted. In the commentary issued by the NPC, the drafting committee admits the statute is purposely vague in not addressing these issues. The controversy over these issues was too great and an attempt to resolve them in the Property Law would have indefinitely delayed adoption. The NPC candidly admits these major issues await resolution in some other forum.

It seems we have a law that was originally intended to protect private property, but it defines its terms so vaguely that it seems nothing is protected at all.

Links and Sources


Intellectual Property

Software piracy plummets to inconceivably low rate

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He wants booty.
For once, everyone agrees that China is making strides in protecting intellectual property. The Business Software Alliance (BSA) just released a study showing that software piracy in China has dropped 10% since 2003. And China's State Intellectual Property Office (SIPO) has also released its 2006 China Software Piracy Rate Investigation Report, which trumpets a 2% decline in software piracy between 2005 and 2006.

But there's no risk of an epidemic of warm, fuzzy feelings breaking out any time soon. Fifty-eight percentage points separate the piracy rates in the two reports. BSA posits that the software piracy rate is 82%; SIPO puts the number at 24%.

What explains the difference? A charitable interpretation is that the statistics are actually measuring different things. The BSA study covers only "piracy of all packaged software that runs on personal computers, including desktops, laptops and ultra-portables. The study does not include other types of software such as server- or mainframe-based software." The SIPO report, on the other hand, purports to encompass "China's entire software industry." Although the news account of the SIPO report was short on specifics, SIPO seems to have included infringement of enterprise software (which may be server-based) in its measurements.

Of course, this explanation doesn't accord with SIPO's own numbers. As reported by NetEase, SIPO pegged application and operating-system software piracy at 36%; preinstalled software piracy at 20%; piracy of preinstalled software for which fees are charged (possibly enterprise software) at 63%; work unit user piracy (also possibly enterprise software) at 39%; and individual user piracy at 78%. These numbers don't seem to add up to a 24% piracy rate for the "entire software industry".

Which leaves a less charitable explanation of SIPO's 24% figure: they made it up.

Links and Sources
Intellectual Property

GAPP newspaper pirates blogger

The International Federation of the Periodical Press (FIPP) is a global organization that represents the interests of magazine publishers. It is similar to the the World Association of Newspapers (WAN), but much less political: with its members publishing titles like Hello! and Cosmopolitan, FIPP is less interested in journalistic integrity than WAN and more interested in profits.

Nonetheless, the annual FIPP congress is an important event on the international media calendar. This year, it's being held in Beijiing with the active participation of the General Administration of Press and Publications (GAPP). It started yesterday and goes on until tomorrow.

Meanwhile, on the Internet, prolific blogger Wang Xiaofeng discovered that a newspaper under GAPP's supervision plagiarized a blog post of his, attributing it to a fictional journalist. Below is a rough translation of the first half of the post:

China News Blackboard

by Wang Xiaofeng

One year's worth of writing on my blog probably adds up to several hundred thousands of characters. Some of them are republished in traditional media. Because my information sources are limited, I don;t even know which media have republished my writing. Some kind-hearted editors will send me a fee after publishing, others, with no conscience, won't even let me know that they are using my stuff. They shouldn't be like that: I am a very open person and when you republish my writings you are saying that you value my work, and I still haven't thanked you. Because of these issues, I have a notice on my blog that says: "Commercial websites and print media, please do not republish without my permission".

A few days ago, someone named Teacher Zhang left a comment: "The May 8 issue of China Press and Publishing Journal (中国新闻出版报) published an article of yours, under the name 'Desert' (沙漠). Did you give the article to them?"

I don't think I have ever had such a psuedonym. I made some enquiries and found that this newspaper is produced by GAPP and is all about the administration and regulation of publications.

Hell! My own words, published in a publication whose title starts with 'China', what luster I have added to my humble family's honor.

TV

Michael Scofield to come to China

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UPDATE (2007.05.16): The Shanghai Morning Post now reports that Fox has denied the sale of rights for any international version, which probably implies that Wentworth Miller won't be coming to China after all. The Chinese side responded: "We're basically only missing a signature." None of that detracts from the great tabloid writing below.

The hero of Prison Break is coming to China, rumors say. The name "Michael Scofield" became famous with audiences who devoured the show in online bootlegs and pirated discs - it never aired on Chinese TV in an authorized edition. The silver lining to the piracy: a Chinese media company recently paid Fox US$1.2 million for the right to produce an online adaptation.

Now it's rumored that the actor who plays Michael, Wentworth Miller, will be in China when the miniseries premieres in June. From an article on Gouzai.cn:

Recent reports have brought the news that the mainland film company Zonbo Media has arranged with American TV station Fox to purchase adaptation rights to Prison Break to make a Chinese Prison Break. According to a connected source, the company has also invited Prison Break protagonist Michael to come to China in June. Apart from increasing exposure for the Chinese version of Prison Break, the company will have Michael take on various commercial activities in China, making money together with the agency.

Although Zonbo Media, which bought the adaptation rights to Prison Break, has not yet made a statement clarifying its position, a source with the company revealed that Zonbo has arranged with Fox to invite Michael to China and has begun planning commercial activities....In addition to appearing at the premiere of the Chinese version of Prison Break, Michael will be on the scene to direct the lead actor and actress from blog talent pool.

According to rumor, Michael has requested private planes and trains for this trip to China, and will travel with an entourage of more than 200 people, far more grand and ostentatious than Ayumi Hamasaki. Just transportation, food, and lodging fees may leave producers scratching their heads; they've really outdone themselves this time.

What form will this adaptation take? Here's a widely-circulated forum post that questions whether a program like Prison Break can be successfully adapted for the mainland market without losing the elements that make it distinctive.

Musings on the Chinese version of Prison Break

(author unknown)

There will be a Chinese version filmed of Prison Break. My first reaction on hearing this news was a bitter smile: could it be possible? Unfortunately, I discovered before long that the media company had the gall to spend US$1.2 million to buy the online adaptation rights to Prison Break, and it plans to film a 200 minute online movie.

After making sure that this was not an April Fool's joke, ideas flashed across my mind: how would a Chinese Prison Break be adapted so that it would pass the TV censors?

Intellectual Property

Who owns the copyright to forum posts?

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Dianping is an online forum were consumers share their experiences - users post opinions of restaurants, shops, and entertainment venues. The website publishes a Restaurant Guide (餐馆指南) that collects member-contributed restaurant reviews for Beijing, Shanghai, and other cities.

When Sohu's food and drink channel republished reviews of eleven restaurants, Dianping sued for copyright infringement to the tune of 70,000 yuan.

Sohu argued that since the text of the reviews originated in comments made by netizens, the book is not protected; or, if it is protected, then the copyright is shared by Dianping and the online contributors, so Dianping has no business filing a suit on its own.

The court found in favor of Dianping, for 7200 yuan and an apology.

Is this a landmark step for online IP? The Beijing News ran its article with the dek "First court judgment that confirms copyright protection status of netizen comments." This is misleading, however, since the court actually found that the original work belonged to Dianping rather than the netizens. According to TBN report:

...[the court] believes that the text uploaded by netizens, such as "good quality meat," "quite distinctive," and "unacceptably underdone," are all simple, common phrases rather than original written expression, and as such do not fall under copyright protection. So in selecting these writings, Dianping did not need netizens' permission, and its assembling netizens' writing into a book has originality; it is protected under copyright law and can bring suit on its own.

Dianping's restaurant guides faced a libel suit last year from a Shanghai restauranteur, but the court found that people have a right to make poor reviews, and it dismissed the suit. But if the guide is Dianping's creative work rather than the personal expression of a number of individuals, does it have the same protection?

Links and Sources
IP and Law

Chicken parody case goes to court

In 2005, the funny flash song "I don't want to say I'm a chicken" (我不想说我是鸡) appeared online. It's the lament of a chicken who's perfectly happy to be a source of eggs and meat, but who is now facing extermination because of the threat of avian flu:

The tune is lifted in its entirety from the song "I don't want to speak" (我不想说), written by Li Haiying (see below). Li sued wireless content provider KongZhong, which produced and distributed the song as downloadable stream and a ringtone.

The song, as with prior Flash hits like "Us Northeasterners are living Lei Feng's" (东北人都是活雷锋), made it to KTV joints, though KongZhong denies having a hand in that. As a result, Li feels that he is owed an apology, 2 million yuan in compensation, court costs, and 50,000 for pain and suffering. From the Mirror:

[KongZhong said] that when its "K Ring Studio" used the melody of "I don't want to speak" when producing "I don't want to say I'm a chicken," it did not obtain permission, but this action was not malicious; it was done for public interest aims, not out of a malicious profit motive. Afterward they discovered that it was inappropriate and immediately halted downloads of the music cartoon. In the courtroom, the counselor said that the company was willing to to accept responsibility for infringement within the bounds of the law....at the same time, he felt that Li Haiying's request for 2 million yuan exceeds the bounds of the law and is therefore unacceptable.

According to Chinese law, fair use covers critical reactions to the original work, while the chicken song only riffs briefly on the content of the original. Whether or not it's a PSA, it certainly is funny - the China Court website reports that many of the several dozen observers in the gallery were amused when the song was played in court. Neither report mentioned when the case is expected to conclude.

Here's the original song, as sung by Yang Yuying.

IP and Law

Can migrant workers face a jury of their peers?

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Anbao Today (formerly Henan Legal Daily) reported last week that thirteen migrant workers have been certified as people's jurors in Kaifeng.

The new jurors will serve on trials with particular social importance, such as those that concern the rights and interests of migrant workers. From the article:

Li Peisheng, head of the Kaifeng County court, said, "Legally bringing in migrant workers as jurors will help migrant workers be more aware of the law and democratic rights, and it will raise society's respect for the migrant worker population. It will facilitate communication between judges and migrant workers, improve understanding of their living and working conditions, and work to concretely protect the legal interests of migrant workers."

Guo Qinghong [a new juror] said, "I am filled with pride at being appointed a people's juror, and at the same time I feel pressure. I will study more about the law so that I can practically protect the rights and interests of migrant workers and be a satisfactory people's juror."

[New juror] Wang Xijun said, "Serving as a people's juror, I can protect the interests of my migrant worker brothers. Company bosses are also actively supporting this; it will be beneficial to resolving conflicts between businesses and employees and improving their working environment."

So this is a good thing, right? In an op-ed for The Beijing News, Yu Zhu, a white-collar worker in Hebei, argues that migrant workers have a fundamental conflict of interest with rights-protection cases and should not serve on juries for trials of other migrant workers.

Migrant workers should not serve as jurors on "migrant worker rights protection cases"

by Yu Zhu / TBN

"I'm a migrant worker. To be appointed a people's juror means that greater attention is being paid to the interests of migrant workers," said Guo Qinghong, a farmer employed as a laborer at the Kaifeng Zheshang Wood Panel Company. Recently, Guo Qinghong and twelve other migrant workers were formally made people's jurors by the People's Congress of Kaifeng County, and they will take part in judging cases before the Kaifeng court involving the interests of migrant workers. The thirteen, through their own application and business recommendations, are honest and well-educated, and passed the qualifying inspection for people's jurors.

Among the thirteen, eleven have a high-school equivalent education and two graduated from vocational colleges. Henan's innovation to appoint migrant workers as people's jurors to assist in protecting migrant workers' own interests - and to have them formally commissioned by the local People's Congress - is an innovation worthy of attention. However, the high-school and college education of the thirteen jurors brings up two other questions: what sort of quality is required in a juror? And should the jurors protecting the rights and interests of migrant workers be migrant workers themselves? I bring up this point because of what I have read concerning how jury composition and case judgment is regulated in common law countries.

Blogs

Fake Louis Cha unrepentant, asks for editing help

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Last week, Louis Cha issued a statement denying involvement in a Bokee blog being written under his name.

The author of that blog, a 28-year-old fan of the wuxia novelist, wrote a letter in response, in which he explains how his actions, including writing over one hundred fan letters to Louis Cha over the course of two decades, are "rational worship" rather than Yang Lijuan-style star chasing.

A Letter to Louis Cha

by Louis Cha fan Tian

(Letter #104, would the media convey this letter to Mr. Jin Yong)

Respected Mr. Cha: Hello!

The number in "Letter #104" that you see here means that this is the 104th letter that I've written to you. I don't remember when it was that I wrote the first letter - probably when I was eight or nine, around 20 years ago, and later the majority were sent off to Zhejiang University. At the time I was blind, but later it was different. Many years ago I dropped out of high school, which means that I don't even have a high-school diploma. Right now, thinking about it, it may have been that I did myself in over-reading Louis Cha. I was so innocent back then; my only thought on leaving school was to make money from writing within ten years (before I was thirty; I am actually 28 right now), to make money to set up a "Louis Cha Prize for Literature." But after going out into society I found that the world I saw was completely unlike what I imagined. I ran up against walls for several years, but I was never willing to give up. There will be a "Louis Cha Prize for Literature"!!!

I want to explain how my situation is different from that of Andy Lau's recent star-chaser Yang Lijuan, and from last year's "Panda burning incense". There are indeed similarities with those two situations, but they are entirely different. They were blind, but my veneration is rational. From your Statement, you have left anger behind; here, I want to make an explanation for that Statement. You perhaps believe that several people on Bokee have colluded, because early this year Bokee had a special "Louis Cha Criticism" page. And because your statement appeared on Sina and not on Bokee. I counterfeited this fake Louis Cha page; it has nothing to do with anyone else, and the legal responsibility rests with me. Moreover, I do not know those writers in the "criticism", to say nothing of collusion. However, because of that criticism, I fear that "Louis Cha" has truly been cut to pieces by them, and that my own dream of a "Louis Cha Prize for Literature" is destroyed - years of effort all gone.

In your Statement, you said: "Although my learning and writing are not the greatest, they are still not as bad as that. If they have opinions, then publish them under their own names. With that level of writing, I would certainly not accept them as students, and with this kind of personal character, I would keep an even greater distance." The level of your education and your writing skills are well known to all; otherwise, you would not have Louis Cha fans like myself. You criticize me for having no skill, but I think that a high-school dropout who is able for a time to pass off a fake as the real thing must have a bit of skill. And I'm not even 30 yet; if nothing else, I at least have a few decades left of study and practice, right? It's no crime for someone to pursue his studies, is it? Mr. Cha, you are still learning at 85. I am just 28; I too want to study.

IP and Law

Blame Canada!

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Yesterday, the State Council News Office held a press conference at which the State Intellectual Property Office (SIPO) news spokesperson Wang Ziqiang (王自强) responded to the WTO cases that the United States filed last week. China's position is both predictably general and surprisingly specific.

Predictably, counterfeiting is a world-wide problem that can't be eradicated in a short period of time. While China doesn't deny that its shops are teeming with counterfeit products, that's no reason for the WTO cases. Moreover, the WTO cases will strain Sino-US cooperative anti-counterfeiting efforts.

Surprisingly, in filing the WTO cases, the US is picking on China instead of focusing on the country with "the world's most serious piracy problem": Canada. Citing an International Intellectual Property Alliance (IIPA) filing with the USTR, Wang Ziqiang explained that the United States' IP-related per capita losses in Canada were $16.78, compared with a staggeringly low per capita loss of $1.68 in China.

That per capita losses in Canada are greater than in China is almost inevitable: any number divided by 32 million will be larger than if it's divided by 1.3 billion. Curious about why the IIPA would bother with such a useless calculation, your correspondent checked the filing at issue. In fact, the numbers cited by the IIPA reflect industry-by-industry financial losses and the estimated levels of piracy. Regarding business software, for example, IIPA reports that 64% of business software in Canada is pirated, causing losses of $551 million. This compares to an 82% piracy rate in China, corresponding to losses of $1.9 billion.

Plainly, IIPA's numbers show that China, not Canada, is the worse offender. China, apparently, took the initiative to divide the loss figures by each country's respective population size to come up with a statistic that suggests otherwise.

Links and Sources
Blogs

Louis Cha has a blog! Or not.

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Since finishing off The Deer and the Cauldron in 1972, wuxia master Louis Cha stopped producing new work and turned to revising his earlier novels. So fans who have devoured his 14 books were naturally pleased to hear that he had launched a blog and was serializing new stories.

Beginning in late March, he has posted New Sword of the Yue Maiden (新越女剑) and The Kunlun Slave (昆仑奴) along with some conversational blog posts. Here's an excerpt of the first post, giving a rationale for finally launching a blog:

A friend at Sina had aske me a while back if I could run a blog on Sina. First I said that I didn't have time, then I said that I have never been much interested in avant-garde stuff. In addition, I also thought that if I started one but didn't write every day, I wouldn't be respecting my readers. So I'll claim a space here and worry about writing later. Cai Lan writes here, did you know?

I'm ambivalent about Sina. First, Sina has investment from Japanese board-members, so it holds back sensitive news about Sino-Japanese relations. As a decision of my work when I was young, I state this first as a professional habit. Next, when I registered for this blog, I encountered two things. First, I discovered that many famous people and even the names of older generations were already taken - Cao Xuexin, Dream of the Red Mansions - it was comforting to know that my good friend Liang Yusheng's name has not been taken to date. This phenomenon is not good at all. My name [Jin Yong] was kept for me by Sina, so if you type it in you are taken directly to the front page. I am very moved by their concern for me. I didn't want to disturb them, so I used my English name Louis Cha to register another one. When you're old, it's better to be quiet.

One more thing, when I registered, I found that the birth date [was from 1930 to 2007]. I am very displeased with this. I found that the birth date was limited to between 1930 and 2007. So old people born before 1930 cannot communicate by writing? This is something I suggest to Sina.

Later, the blog was moved to Bokee, also registered under Louis Cha. Some people were suspicious about this; The Beijing News quotes some commenters: "There are dozens of blogs registered to the name 'Jin Yong,' but none is genuine." "From the style, structure, and grammar, this is definitely fake."

And sure enough, it was. A Sina book channel editor contacted Cha privately after noticing the blog, and received a statement from the author:

Statement

I do not know how to use computers, and I have never communicated with people online. I am currently studying computer use, so perhaps for one or two years there will be no messages from me on websites. The blog on Bokee is written by someone masquerading as me. This person (or persons) is absolutely not my student. My true students are Liu Zaifu's daughter Liu Lian, and three Zhejiang University PhD students Lu Dunji, Wang Jian, and Shi Guorui. I have already resigned from Zhejiang university, but they are my students. I trust that the four of them would not use my name to write a "blog" without my agreement and permission. This is the first time that I have seen the writing published on Bokee. "The Kunlun Slave" and "The Xuanwumen Crisis" were not written by me. Although my learning and writing are not the greatest, they are still not as bad as that. If they have opinions, then publish them under their own names. With that level of writing, I would certainly not accept them as students, and with this kind of personal character, I would keep an even greater distance. Thanks to Sina and the "book channel" editors. I also state that I have already arranged with a mainland lawyer to take legal action against this person who has usurped my pen name and claimed to be my student.

TBN reports that Bokee is not taking any immediate action:

The reporter then talked to Bokee marketing director Si Nan, who said that Bokee had done a lot of work looking for evidence in this incident and hopes that colleagues in cultural circles and among the reading public can provide confirmation or refutation. This is in accordance with blogging's fundamental principles of freedom, openness and sharing. "This is not the first time for counterfeit Louis Cha works, and it will not be the last." As to whether this fake blog will be deleted, Si Nan said that if the government makes a determination of the nature of the incident - if the author has indeed infringed on copyright - then they would work to cooperate with the government. However, "Bokee will not be the guardians of celebrities' chastity; we attach more importance to a grassroots environment."

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