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Copyright and the Public Interest in China Tang Guan Hong PhD in Law The University of Edinburgh September 2008 DEDICATION This thesis is dedicated to Mrs. Deng Mian Qing and Mr. Tang Xia Ming; two diligent educators I admire, the first tutors and true friends in my life, my loving parents. 谨将此博士论文献给邓勉卿女士和唐侠鸣先生——— 两位我敬佩的勤勉的教育家， 我生命中最初的良师益友， 我深爱的父母双亲！ ii ACKNOWLEDGEMENTS Indeed, this work would not have been possible without the support and encouragement of a wise gentleman: I am extremely indebted to my supervisor, Professor Hector MacQueen, who has given me a lot of his thought and time, who was always there to clarify things when they looked confused, and who has guided me through very difficult times during my PhD at the University of Edinburgh. Words fall short of expressing my gratitude: 师者, 传道授业解惑也1 - “A master is the person who passes on knowledge, points out the way to live and solves perplexity” - Professor MacQueen is a genuine master. I am also thankful to Mrs Frances MacQueen, my supervisor’s wife and best friend, for allowing me to interrupt her suppose-to-be-sweet holidays again and again with those boring questions and chapters. My appreciation goes to Professor Zhang Bigong and Professor Wang Shanmai, for their generous help during my survey in Shenzhen and Baotou; to Professors Nigel Osborne and Professor Peter Nelson, for their music and qi; to Sir Hugh Laddie, for his invaluable encouragement; to Professor Hugh Hansen, for his airport lecture on “what public interest is”; to Dr. Paul Tauchner and Mr. Weerawit Weeraworawit, for their trust and friendship; to Professor Michael Blakeney, Professor Gustavo Ghidini and Mr. John MacColl, for their time and expertise. And thanks to the Arts and Humanities Research Council (AHRC) for supporting the conference on “Copyright, Education and Society”, a project which I organised in 2005, enjoyed very much and learnt a great deal from. I have been lucky enough to have worked at the AHRC Research Centre for Studies in Intellectual Property and Technology Law five years and surrounded by some most brilliant people including Nadine Eriksson-Smith, my once colleague and now friend, who shared numerous meaningful talks and walks with me. I sincerely thank Emily Morris, for being so warm and helpful to strangers like me; her golden heart brightened up my days and my spirit. My gratitude to Joan Trias, my true ally, who has led me to the University of Edinburgh and supported my research greatly at the early stage of this project, his passion and achievements in politics make me proud; to Luo Bin, Zhang Yu, Huang Jingying and Lisa, who have supported my dreams in the past decade(s); to Tingting, for her kind assistance; to Darin Neely, Kaiwooi Chong, Li Lan, Wang Liming, Zhang Yun, Andriy Bandrivskyy, Tobias Heymann, sweet Jani, Luo Can, Liu Shaoming, Li Duo and Dmitri Luchinskii, a hedge between keeps friendship green. My special thanks to my dear family, Haiyan, Guanxin, David, Guanyu, Xiao and Min, without their love and support, I could not have accomplished this degree. Last but not least, I would like to express my deep appreciation for Thomas Seltz, who has taught me little about the guitar but much about life; his sense of humour and talent in composition have been the inspiration of joy. 1 韩愈《师说》; see Han Yu, The Theory on Masters. Han Yu (768-824) is a famous philosopher and essayist in the Tang dynasty. iii DECLARATION I hereby declare that unless otherwise mentioned by quotation or reference, this thesis has been entirely and solely composed by me. It had not been published or submitted to another degree. Guan Hong Tang 唐冠虹 29 September 2008 iv ABSTRACT This thesis will consider how the multidimensional public interest concept at once informs development of Chinese copyright law and also limits it. Since 1990 China has awarded copyright - individual rights - but also provides for public, non-criminal enforcement. Bowing to pressures of development, globalisation and participation in a world economy, the public interest is leaving copyright. But at the same time, as a socialist country, placing the common ahead of the individual interest, the public interest also constitutes a phenomenological tool with which to limit copyright. The tensions are further exacerbated by the rise of the Internet, which has had major social and economic impact on China, and also raise problems for Chinese copyright law, of which selected aspects will be discussed in comparison with those in the United Kingdom and the United States. The thesis consists of an introduction and a conclusion, together with six chapters: a historical background of legal culture and the rise of the Internet in China; an examination on copyright law and the different aspects of the public interest; discussions on the Chinese system of copyright protection with a focus on the administrative copyright enforcement, and topical copyright issues arising within education, library and archives sectors on the ground of the multidimensional public interest. v TABLE OF CONTENTS Title Page i Dedication ii Acknowledgments iii Declaration iv Abstract v Table of Contents vi Introduction 1. About this research project 1 2. Formation of this research project 4 2.1 Experiences up to 2002 4 2.1.1 University students 4 2.1.2 College teachers 5 2.1.3 Local government offices 6 2.1.4 The UK universities 6 2.1.5 Some questions asked about China 6 2.1.6 The MSc project 7 2.2 An empirical study in 2007-2008 7 2.2.1 Interviews in SZU 8 2.2.2 A survey questionnaire in Baotou, Inner Mongolia 12 2.3 Comments 14 3. The thesis 16 Chapter I Historical Background of China 1. Introduction 19 2. The history of China 20 2.1 Culture and law in ancient China 20 2.2 China after the Xinhai Revolution 28 2.3 New China 29 2.4 China joining the world economy 31 2.5 Discussion 34 3. The rise of the Internet in China 35 3.1 The Internet aid 36 vi 3.2 The development of the Internet 36 3.3 Western views of the Chinese Internet 39 3.4 Chinese see the Internet in China 41 3.5 A guarded openness 43 4. Discussion 47 Chapter II Authorship, Access and the Public Interest 1. Introduction 53 2. The international framework 56 3. UK copyright 60 3.1 Copyright law in the UK 60 3.2 The public interest in the courts 64 3.3 Discussion 69 4. Legislative developments in China 71 4.1 Copyright in ancient times 71 4.2 Copyright 1903 - 1979 72 4.3 Modern copyright laws 73 4.3.1 The CCL 1990 74 4.3.2 Movements in the 1990s 78 4.3.3 The CCL 2001 82 4.4 The Chinese experiments in cyberspace 88 4.4.1 Chen Weihua, the almost forgotten pioneer case re authorship 89 4.4.2 Authorship and access 91 4.4.3 Authorship and access on trial after the CCL 2001 93 4.4.4 Other relevant rules 96 4. Discussion 100 Chapter III Authorship and Administrative Copyright Enforcement 1 Introduction 106 2 The dual-track system 108 2.1 Modern legal structure and judicial copyright protection 108 2.2 Administrative enforcement 113 3. Practices of administrative copyright enforcement 119 3.1 Illustrative examples 119 vii 3.2 Administrative enforcement in cyberspace 126 4 Discussion 130 Chapter IV Public Education, Copyright and the Public Interest 1. Introduction 140 2. The Western experiences 143 2.1 The UK statutory explanations 143 2.2 Case law about photocopying under licensing 145 2.3 Developments on the fair use doctrine in the US 149 2.4 Fair or not fair: the four-factor provision 152 3. Made in China 158 3.1 A brief introduction to Chinese education 158 3.2 Provisions for education 162 3.3 A warning to all Chinese educational institutes and a debate on whether 164 exam questions should be copyrighted 3.4 A changing community 170 3.4.1 Are lectures protected? Luo Yonghao v eNet.com 171 3.4.2 Who owns copyright over lesson plans? Gao Liya v Sigongli 173 3.4.3 Is a state organ’s violation in the public interest? 177 3.5 Updates on the subject of copying 180 3.6 Findings of the empirical study 181 4. Discussion 182 Chapter V Public libraries, Copyright and the Public Interest 1. Introduction 188 2. Development of public libraries and the provisions in the West 189 2.1 Public libraries 190 2.1.1 United Kingdom, the cradle of the modern library system 191 2.1.2 The US public libraries 194 2.2 The copyright laws 196 2.2.1 The UK law 197 2.2.2 The US provisions 201 2.2.3 Case law on uses in traditional settings: Texaco 208 2.2.4 Uses in digital environment: Google Books Library Project 211 3. The Chinese version 214 viii 3.1 Public libraries 215 3.2 Digital libraries 218 3.3 Copyright provisions 220 3.4 Legitimate trials 222 3.4.1 Zheng Chengsi v Shusheng Digital Library 223 3.4.2 Jiang Xingyu v CNKI 226 3.4.3 Super-star Digital Library 228 3.4.4 Shusheng Digital Library v Apabi Digital Library 231 4. Discussion 232 Chapter VI Public Archives, Public Copyright and the Public Interest 1. Introduction 239 2. Public archives and the relevant rules 241 2.1 Prior to the Reform and Open-up Policy 241 2.2 An opening-up China reflected in public archives 243 2.2.1 The experiences in the West 243 2.2.2 Chinese archives and public records 247 2.2.3 China’s regulations on open government information 254 3.