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Weiteres Forschungsprojekt
Immaterialgüter- und Wettbewerbsrecht

Reconciliation of Interests in Copyright Law in the Digital Era-A New Perspective from China

The Chinese copyright law system consists of a balance between protection of authorial works and encouraging creativity and promoting dissemination of works, as well as the social and cultural development. China has introduced a new copyright limitation for the purpose of poverty eradication that is consistent with the unique Chinese political, social and cultural realities.

Last Update: 01.07.11

This project provides a detailed analysis of all elements of the new copyright limitation, with clarifications on the provisions suggested, and analyze whether the provisions are consistent with the international conventions. This project discusses whether Article III of the Appendix of the Berne Convention applies in the digital environment and examines in detail the elements of the three-step test in the Berne Convention, the TRIPs Agreement and the WIPO Copyright Treaty. Although it is widely acknowledged that the three-step test is “the basic test” for determining whether limitations or exceptions are consistent with international conventions, the interpretation of that test has been in dispute. The “Declaration on a Balanced Interpretation of the Three-Step Test in Copyright Law” is followed to provide guidance on the interpretation. This project proposes that the efficient protection of the interests of authors shall be duly balanced with the right to development of the general public.

On May 18, 2006, Regulations for the Protection of the Right of Communication through the Information Network (hereinafter RPRCIN) were adopted by the State Council and entered into force on July 1, 2006. Article 9 of the RPRCIN introduced a new copyright limitation for poverty population in rural areas, which is unprecedented and exists in no other country in the world.

Part I provides the background of the introduction of the copyright limitation for poverty population in China.

Part II discusses the elements of the new copyright limitation in detail, and also proposes some clarifications and recommendations on the improvement of the provisions.

Part III discusses whether the new limitation under Article 9 of the RPRCIN is consistent with current international copyright treaties that China has adhered to. It is submitted that the new copyright limitation can not be covered by the Appendix of the Berne Convention, since the latter can not extend to digital transmission and the purpose of the latter is limited, not fully covering the purpose of poverty eradication. It is argued that the new copyright limitation satisfies the requirements of the “three-step test”. In this regard, China does not contravene its international obligations. Even if this result is controversial regarding the application of the three-step test, Article 9 of the RPRCIN is considered not inconsistent with the international conventions, since the provisions apply only to the works of natural persons or legal persons of China.

At last, this project discusses the social function of the copyright law, and proposes that the efficient protection of the rights of authors shall be duly balanced with the interests in development of the public, especially the public in the developing areas. Also, this project suggests that the “Declaration on a Balanced Interpretation of the Three-Step Test in Copyright Law” shall be followed by national legislatures and courts.

Persons

Project Manager

Yong Wan

Main Areas of Research

Schutzgrenzen im Immaterialgüterrecht