The challenge of copyright enforcement in china's movie industry

Section I: Incoherence with international conventions

First of all, in many aspects China's Copyright Law does not conform to international conventions ratified by the country. For instance, the Berne Convention states that a cinematographic work is automatically granted copyright protection in all countries of the Union.⁸⁷ This applies to works by citizens of any State that ratified the Convention unless the first publication of the work didn't take place in a Berne country.⁸⁸ China adhered to this Convention in 1992 so that it should insure its effectiveness within its territory.⁸⁹ Yet if a foreign film does not meet the censorship standards, it will not be granted protection so that any Chinese website can suggest such a work for downloading without authorization and China won't hold it responsible for copyright infringement.⁹⁰ Therefore, copyright protection is not automatic for foreign cinematographic works, which is contrary to Berne's provisions. Also, it was noted that article 10 (12) of the Copyright Law of the PRC is inconsistent with article 8 of the WIPO Copyright Treaty (WCT) as the latter includes all ways of communication of works while article 10 (12) includes only communication on demand.⁹¹ It means that under China's Copyright Law, cinematographic works to which the public acceded in real time are not regulated.

Section II: Vagueness of legal terms

Another important factor is that some legal terms of China's Copyright Law are vague and for that reason they can lead to contradictory interpretations concerning its enforcement.⁹² A few provisions are really general such as article 10 (17) including «other rights to be enjoyed by copyright owners» in the list of granted moral and economic rights.

⁸⁶ Kariyawasam Rohan, see above note 46, p.96.

⁸⁷ Berne convention for the Protection of Literary and Artistic Works, 1886, Article 2(6).

⁸⁸ Pang Laikwan, see above note 9, p.17.

⁸⁹ Kariyawasam Rohan, see above note 46.

⁹⁰ Ibid.

⁹¹ Ibid, p.103.

⁹² Kariyavasam Rohan, see above note 46, p.103.

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These general statements are dangerous because they gave too much «flexibility to local courts and judges in exercising their right of discretion».⁹³ Some unclear statements further leave loophole regarding legal predictability such as article 22 (7) of China's Copyright Law allowing State organs to use a work in order to fulfill their official duties.⁹⁴ This vagueness allows for abuse both by State officials, but also by the public concerning other unclear statements.⁹⁵

Section III: Lack of regulations toward online infringements

If some provisions are too vague, some are simply missing. For instance, the Copyright Law of the PRC is silent concerning illegal cam-recording infringing copyright of cinematographic works.⁹⁶ Illegal camcording is defined by the International Intellectual Property Alliance as «the use, or attempt to use, an audiovisual recording device to make or transmit a copy of a cinematographic work (É), from a performance of such work in an exhibition facility».⁹⁷ A domestic film was camcorded in 2008 but since China's Copyright Law does not ban this activity, the suspects were not hold liable.⁹⁸ The Film industry is also suffering from User Generated Content (UGC) websites such as Youku ( www.youku.com) allowing users to upload movies and make them available for downloading by anyone. These uploads are most likely often proceeded without any authorization from copyright owners. China's Copyright Law lack of regulation toward this twenty-first century piracy weakens the scope of copyright protection by not allowing rights owners to fill actions against this violation of their rights.