Intellectual Property

Republishing: protected by Chinese law?

zhuanzai.jpg
Zhuanzai wan sui?

ESWN has translated an article from Southern Weekend about one of the capital's leading newspapers, The Beijing News suing TOM.com for republishing its articles without permission:

Ever since the launch of Beijing News in November 2003, TOM.com has been quietly re-publishing their news reports...

...From 2004, Beijing News began to sign contracts with all the major commercial portal websites. "We signed with several large commercial portals, including Tencent and Xinhua Net. Only TOM.com was unwilling to sign," said this senior Beijing News person.

In early 2006, Beijing News approached TOM.com again but received no response. On June 13, Beijing News sent a formal letter to TOM.com to ask them to cease and desist, and to pay the royalties in accordance with the regulations. But TOM.com refused to respond directly...

...From July on, Beijing News began to collect vast amounts of evidence and they went to the Beijing City Notary Public to validate the evidence. On October 16, Beijing News formally sued TOM.com in court.

The case has not been decided yet, and according to the Southern Weekend, TOM.com is seeking an out of court settlement. The case could prove to be a legal precedent for online copyright issues. Zhang Yan, the lawyer representing The Beijing News said that the suit was not just a matter of demanding compensation for copyright infringement:

"We want to use this lawsuit to promote the formalization of cooperation between Internet media and traditional media, such that the traditional media can attain a reasonable position in the cooperation."

There will be fierce resistance from China's Internet media to any restrictions on republishing. Copying and pasting entire articles — known as zhuanzai (转载) is standard practice for most big Internet companies in China from Sina.com to the websites of Xinhua News Agency, The People's Daily and The China Daily. Zhuanzai is the lifeblood of popular Internet forums like Tianya and Xici.

Furthermore, it seems that the right to zhuanzai is to an extent protected by Chinese copyright law. Thanks to a comment by 'Turtlewind' to an earlier Danwei story about republishing, your correspondent became aware of Article 22 of the Copyright Laws of the People's Republic of China.

Article 22 is titled 'Limitations on Rights' and it lists cases where "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". Such cases include use of a work for educational purposes, quotations from a work for the purpose of commentary or where the work is considered news, and other cases that would probably be considered fair use under U.S. law.

There are a few clauses in Article 22 that are radically different from the laws in most Western countries, as your correspondent understands them. Article 22 specifically allows translation into Braille or any of China's official minority languages without requiring permission from or compensation for the creator of the original work.

And then there's Clause 4, which allows:

Reprinting by newspapers or periodicals or other media, or rebroadcasting by radio stations or television stations or other media, of the current event articles on the issues of politics, economy and religion, which have been published by other newspapers, periodicals, radio stations or television stations or other media, except where the author has declared that publication or broadcasting is not permitted;

Does a general copyright statement count as a declaration by the author, or does each and every article or program have to include its own copyright statement? And even if every article does have its own copyright statement, it seems that Chinese copyright law allows republishing if the article itself is considered newsworthy. Clause 3 of Chinese copyright law allows:

inevitable reappearance or citation of a published work in newspapers, periodicals, radio stations, television stations or other media for the purpose of reporting current events;

There's a lot of wriggle room there for TOM.com and other Internet companies.

China Law Blog has commented below. There's more about this issue on IP Dragon, or any other lawyers out there.
and on China Herald who sees this as a political rather than legal issue:

[S]ince online media are still not allowed to run their own media show, it would actually be rather unfair to expect them to pay for the usage of news from government-owned media. Most likely, that relationship has to change, but that will be more a political debate than a legal one.

And here is some further commentary from IP lawyer Maya Alexandri:

1. Just as we've seen the entertainment industries in the States agitating for copyright law to provide a "fix" when the Internet threatens their business models, we seem to be seeing a similar dynamic playing out in China. Originally, traditional Chinese news organizations wanted to require Internet portals to republish news items, as a means of preventing Internet portals from hiring their own journalists and competing in the news-gathering business. At the time, the potential profitability of republishing news on Internet portals was seen to be negligible. (See Poynter; China Herald.) Now, of course, Internet advertising revenues are up, while traditional news media advertising revenue is down, and newspapers predictably enough want to be paid for their content. (By the way, I am interested to see that the mover-and-shaker on the lawsuit front is Beijing News. Caijing's Hu Shuli has been speaking about Internet portal republishing being the major threat to the news industry -- above that of censorship -- for some time.)

2. I tend to be suspicious of copyright claims that arise in the context of new technologies depriving older business models of their viability. That said, good copyright laws are grounded in policy, not politics. The key question is: does this law advance copyright policy? To be frank, I'm not sure what China's copyright policy is. (When asked by a friend of mine, a Renmin Daxue law professor said that China passed its copyright law so it could join the WTO.) In the US, the policy underlying copyright law is promoting the "progress of science and the useful arts" (Constitution, art. 1, sec. 8, cl. 8) by providing incentives to authors to create works. The idea is this: if the law gives authors control over the reproduction, distribution, display, and performance of their works, they'll have incentives (financial, professional, etc.) to continue working, and society benefits from the creation of more works. Considered in light of US policy, Article 22, clause 4 of the Chinese Copyright Act appears unwise because it deprives authors of the incentive to keep working -- why should reporters write news articles if they can't get paid?

3. Of course, Chinese laws are not interpreted in light of US policy, and I hesitate to speculate how Chinese laws will be interpreted by courts. For one thing, Chinese judges don't necessarily use rules for interpretation that guide judges in the West (e.g., start with the statute's plain meaning; if that's ambiguous, look at the legislative history). For another, China is not a common law country, and judicial opinions are not precedent. Judges can interpret statutes differently from case to case. So one court's take on Article 22, clause 4 might permit TOM's republishing-without-payment, while another court might hold that the conduct exceeds the bounds of fair use. That said, China is a signatory to the Berne Convention, which sets "minimum standards" that all signatory countries must provide to copyright holders. The Berne Convention covers all "literary and artistic works," which includes "every production in the literary, scientific and artistic domain, whatever may be the mode or form of expression." It excludes "newsworthy facts," but covers the expressive content of a news article. Moreover, signatory countries must guarantee copyright owners "exclusive rights to make and authorize" reproductions. While signatory countries are permitted to limit copyright protection in "literary and artistic works" for fair use purposes, signatory countries that, like China, are also members of the WTO, must "confine" fair use rights to "certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder." Under these standards (as when considered in light of US policy), Article 22, clause 4 seems to strain the boundaries of "fair use," since it has the potential to "conflict with the normal exploitation of the work and . . . unreasonably prejudice the legitimate interests of the" copyright holder.

4. I'm not aware of any Chinese legal authority on the question of whether a general "circle C" symbol would suffice as a declaration that copying is not permitted. However, based on the plain language of Article 22, clause 4, which requires the author to "declare" that republishing is "not permitted," I think the more conservative approach would be to state the prohibition explicitly. A "circle C," particularly at the bottom of a web page, could be subject to multiple interpretations (e.g., "copyright," "registered copyright").

5. Regardless of the legal ambiguities of the situation, I think it's significant that TOM's competitors all signed licensing agreements with the Beijing News. That TOM was a stand-out exception suggests that its interpretation of the law may be out of step with the industry standard. And, of course, extra-legal considerations (e.g., a desire for good relations with the Beijing News, possible upcoming changes in the law, political lobbying, other business considerations) may also come into play, particularly in China where the filing of a lawsuit often indicates the breakdown -- rather than the apotheosis -- of the conflict resolution process.

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There are currently 4 Comments for Republishing: protected by Chinese law?.

Comments on Republishing: protected by Chinese law?

These are very difficult questions, made more so since I am going to rely only on the portions of the provisions you have cited. But here are my thoughts:

One generally need not register one's copyright in China to secure copyright protection, so there is probably little doubt that these articles are copyrighted.

Clause 4 seems to say that one cannot run a newspaper article wholesale when the author has made clear it is not permitted. Is the Beijing News the author or is the writer the author? Does the Beijing News making its lack of permission clear constitute the writer making his or her lack of permission clear?

I'm betting on the Beijing News both based on the statutes you have cited and based on the better policy.

Tell Jeremy my bill is in the mail.

Hi Jeremy,

I have thought it over and here is my comment:
http://ipdragon.blogspot.com/2006/12/reaction-to-danweis-question-about.html

My opinion is for free (at the moment) ;)

Cheers,
IP Dragon

Although this is not exactly settled law here, Dan is essentially correct, according to one of the copyright lawyers I work with in Beijing.

Article 22 allows for limited use, but the author should be able to limit that use further by so stating clearly what use is permitted when the work is posted.

It therefore comes down to what limitations, if any, were included along with the original post. A simple "Contents may not be republished without the express written permission of the author" would do the trick. This is assuming, of course, that we are in fact dealing with the original author.

Just saw that China is talking about signing on to WIPO's two "internet agreements." Not sure if this will impact the current question, but I wonder if there is any connection to this battle.

See: http://ipkitten.blogspot.com/2006/12/china-to-join-wipo-internet-treaties.html.

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