The challenge of copyright enforcement in china's movie industry

Section IV: Censorship

Finally, censorship can lead to the development of a black market. China's Copyright Law restricts significantly the rights of authors whose works violate China's Constitution or other laws. For example, showing pornographic movies in public places is prohibited in China.⁵⁴ Nonetheless, US judges ruled that an obscene movie could be entitled to copyright protection as long as it meets the criteria of a copyrighted work.⁵⁵ This was justified by the following non-discriminatory principle: «pragmatism further compels a rejection of an obscenity defense» because «obscenity is a community standard which may vary to the extent that controls thereof may be dropped by a state altogether».⁵⁶ With regard to the Copyright Law of the PRC, copyright holders are forbidden to jeopardize «public interests when exercising their copyright».⁵⁷ This allows the State to control the works in order to verify their accordance with the law. As far as the motion picture industry is concerned, if the State forbids the production of a movie because it is too political, this movie will most likely appear in an illegal version on the Internet.

⁵⁰ Dimitrov Martin, Piracy and the State: the Politics of Intellectual Property rights in China, Cambridge University Press, 2009, p.4.

⁵¹ Cheung Gordon, see above note 28, p.22.

⁵² China Labor bulletin, www.clb.org.hk/en/view-resource-centre-content/100206 (visited on the 4/11/2015).

⁵³ Priest Eric, see above note 26, p.828.

⁵⁴ Criminal Law of the People's Republic of China, Article 152, Articles 363-368.

⁵⁵ Mitchell Bros film group v Cinema adult theatre, United States Court of Appeals (Fifth circuit, 1979).

⁵⁶ Jartech, Inc. v. Clancy, United States Court of Appeals (Ninth circuit, 1982).

⁵⁷ Copyright Law of the People Republic of China, Article 4.

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People want to escape from the control of the State. Consuming pirated goods allows them to express their freedom by accessing forbidden products.⁵⁸ Additionally, there is a lack of certainty concerning the censorship process so that some film producers are not able to access to China's market.⁵⁹ Some authorities are even said to reject the production of a movie simply to avoid paying license fees.⁶⁰ This shows that as a consequence of censorship standards, it is really tough to find legitimate copies of foreign movies because the Chinese Government does simply not authorize their distribution.⁶¹ For instance, Memoirs of a Geisha⁶² was banned because it could offend mainland viewers to see Chinese actresses in the role of Japanese courtesans.⁶³ Similarly, The Dark Knight⁶⁴ couldn't be shown in China. Warner Bros., the producer of the movie, cited «cultural sensitivities in some elements of the film" to justify it.⁶⁵ As a result, any person willing to see one of these movies in China would have to download them illegally in order to do so. Furthermore, even if the China Film Bureau approves it, the foreign film must meet further requirements. Indeed, there is an importation quota following which films can be imported to China only on a limited basis per year.⁶⁶ This shows that cultural products can be used as political tools by China whereas for some countries such as the United States, these products are commercial and require an open market and not a controlled one.⁶⁷

Consequently the need for an efficient copyright protection should be understood at different levels: individual, local and State level. This would be a first step toward a stronger protection of copyrighted works. This improvement will be highly beneficial for China in many aspects, as it will be discuss in the next part.

⁵⁸ Cheung Gordon, see above note 28, p.60.

⁵⁹ IIPA, 2013 Special 301 see above note 27, p.49.

⁶⁰ Ibid.

⁶¹ Los Angeles Time, «DVD pirates running rampant in China», Dan Levin and John Horn, March 22, 2011

⁶² Memoirs of a Geisha (2005), directed by Rob Marschall, U.S.A: Colombia Pictures.

⁶³ CBCA News, Arts & Entertainment, «Dark Knight won't be on big screen in China» 26/12/2008 www.cbc.ca/news/arts/dark-knight-won-t-be-on-big-screen-in-china-1.740993 (visited on the 27/10/2015)

⁶⁴ The Dark Knight (2008), directed by Christopher Nolan, USA: Warner Bros. Pictures.

⁶⁵ Ibid.

⁶⁶ Creemers Rogier, «Insight about the reception of the WTO», China Perspectives n°2012/1, 2012.

⁶⁷ Ibid., p.29.

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Part II: Advantages resulting from improvements Section I: Promoting the cultural development of China's movie industry

China's motion picture industry is flourishing: it is the second-biggest movie market in the world after the United States.⁶⁸ However, the lax of copyright enforcement in China's film industry is world-known so that the international audience is looking into it with a wary eye. It reduces significantly the diffusion of China's films abroad.⁶⁹ By strengthening copyright protection, the State would promote cultural development of domestic films worldwide. The Government already took incentive measures for that purpose by providing «stricter enforcement of copyright regulations» showing that it is aware that urgent progress is needed.⁷⁰ Domestic films seem to be more and more preferred by Chinese audience as they promote Chinese culture, emphasizing core values of Chinese society.⁷¹ The more these movies will be effectively protected, the more Chinese culture will be promoted and developed. For instance, during summer 2015 Chinese films such as Monster Hunt⁷² or Monkey King: the Hero is back broke through in terms of box office.⁷³ Monster Hunt was ranked second of China's 2015 box office, right after the American film Furious 7.⁷⁴ This fact shows that domestic motion picture industry is evolving: movie directors start to be more creative so that domestic films are now as attractive to Chinese consumers as American movies were already. The development of domestic film industry will also help to meet spiritual and cultural needs of Chinese citizens and would strengthen the urban culture.⁷⁵

⁶⁸ Max Peskin, «Can Animation Cure What Ails the Chinese Movie Industry?» 07/06/2013,

www.chinafile.com/reporting-opinion/media/can-animation-cure-what-ails-chinese-movie-industry (visited on the 23/10/2015).

⁶⁹ Ibid.

⁷⁰ Ibid.

⁷¹ State Intellectual Property Office of the P.R.C (SIPO), «Why do Chinese Domestic films catch up from behind in terms of ticket-office», 19/08/2015.

www.english.sipo.gov.cn/news/iprspecial/201508/t20150819_1162510.html (visited on the 20/10/2015).

⁷² «Monster Hung» directed by Raman Hui, China film group corporation, 2015.

⁷³ SIPO, see above note 71.

⁷⁴ China's Yearly Box Office, 2015, www.boxofficemojo.com/intl/china/yearly (visited on the 11/11/2015).

⁷⁵ Circular of the General Office of Shanghai Municipal People's Government on printing and distributing the implementing opinions for promoting the prosperous development of Film industry in Shanghai, 2011.

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Moreover, on the one hand strengthening copyright protection will promote China's economy. On the other hand, it will promote social progress.⁷⁶