Copyright in Network Reproduction in China
For a long time, network reproduction copyright issues have not been clear in China. This situation has changed recently by a significant move by the National Copyright Administration of the PRC (“NCAC”) to promulgate the Notice on Standardization of Network Reproduction Copyright Order (the “Notice”) on 17 April 2015. The Notice aims to promote the convergence of traditional and new media, and encourages the newspaper industry and the Internet media to operate in good faith.
Article 1 of the Notice stipulates that the Internet media, unless otherwise stipulated by laws and regulations, when reproducing the work of others shall comply with the relevant copyright laws and regulations, obtain license from the copyright owners, pay the royalty and indicate the author’s name and the title as well as the source of the work. Clearly, a statutory license shall not apply to network reproduction in accordance with the provisions of the Notice. Also, Article 3 of the Notice prohibits Internet media to make substantial changes when reproducing the work of others, or to distort or mutilate the title and intent of the work when making amendments.
The copyright statutory license scheme is a unique legal system where the use of the work of others, when compensated, is not regarded as an infringement when permission is not obtained, under certain circumstances, which are referred to in the PRC Copyright Law. In accordance with Article 32 paragraph 2, except where the copyright owner has declared that reprinting or excerpting is not permitted, newspapers or periodical publishers may, after the publication of the work, reprint the work or print an abstract of it or as a reference material, provided remuneration is paid to the copyright owner as prescribed in regulations. As mentioned above, copyright laws do not expressly provide if statutory licenses apply to the reproduction of the work of others by Internet media so although some judicial interpretations were used to exclude the application of statutory license to online reproduction , these were removed later.
Article 2 of the Notice states that Article 32 paragraph 2 of the Copyright Law applies to the reproduction of work between newspapers, but not to the reproduction of work between newspapers and the Internet media, or between the Internet media. Namely, reproduction of work between newspapers will not need to obtain a license from the author provided royalties are paid, but reproduction of work between newspapers and the Internet media, or between the Internet media, will require a license from the author.
Article 4 of the Notice defines “news on current affairs” as “merely factual news” reported by newspapers, periodicals, radio, television, etc. Such news is not protected under the copyright law. The Notice further emphasizes that works such as news, communications, close-ups, and reports containing the copyright owner’s original creation are not “merely factual news”, therefore the Internet media will need to obtain a license from the owner of the copyright material and provide payment of royalties when reproducing such work.
Although the implementation of the Notice will add considerable costs to provide for negotiations with copyright owners and the payment of royalties, this is a significant and favourable change to provide for the current unequal situation where the Internet media prevails over the traditional media.
Establishment of Copyright Cooperation Mechanism
In accordance with Article 5 of the Notice, newspapers may enter into license agreements with copyright owners, which stipulate the type of rights as exclusive, or non-exclusive, the geographical area the licence covers, the period of the license, remuneration standards and methods, and the liability of breach. If the newspapers exercise the rights in accordance with the agreement, the Internet media may obtain a license from the newspaper to reproduce the work, provided the payment of royalties is paid.
In accordance with Article 6 of the Notice, newspapers may enter into agreements with their employee acknowledging the ownership of the employee’s service works.. If the agreement provides for the newspapers to own the copyright, the newspapers may clarify its ownership by publishing a copyright notice. The Internet media shall obtain a license from the newspapers to reproduce the work, provided the payment of royalties is paid.
Furthermore, Article 8 of the Notice encourages the traditional media and the Internet media to establish a network reproduction cooperation mechanism by entering into copyright license agreements, strengthening the review of copyright procedures in the reproduced work, jointly exploring and amending to establish a reasonable royalty payment system, and further improving a scheme for work authorization trading.
There is no doubt that the Notice will have a profound influence on the China media industry by adjusting the relationship between the traditional media and the Internet media. More importantly, the Notice is significant to those authors and newspapers whose rights are violated by online infringements, and who can now seek recourse through a legal basis.
ABOUT THE AUTHOR: Yu Du
Yu Du is a Partner in the MMLC Group.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.