Section VI: A difficult reliance on administrative
enforcement
Moreover, administrative enforcement is far from being
reliable. Firstly, a lot of right owners do not believe anymore in
administrative enforcement because of the overwhelming challenge to bring civil
or criminal enforcement actions.106 It is also not reliable
«due to a lack of manpower».107 One must be brave enough
to defeat local protectionism for example in order to stop some copyright
infringements. Additionally, lack of coordination between administrative
authorities and the Public Security Bureau (PSB) leads to inefficient
results.108 A notable inconsistency also results from the way
agencies handle complaints filled by foreign right holders.109
Indeed in some regions there are administrative authorities, which simply
refuse these complaints while other local authorities seem to be more
cooperative.110
Section VII: Chinese legal thinking on copyright
protection
Last but not least, Chinese legal thinking on copyright
protection weakens the efficiency of its enforcement.111 On the one
hand, Article 1 of the Copyright Law of the PRC reflects the socialist ideology
as the fact that community prevails over the individual.112 However,
intellectual property rights are by essence a matter of individuality as it
grants moral rights to authors. By contrast, Article L111-1 of French
Intellectual Property Code is bringing the author as an individual to the
center of the copyright law. On the other hand, not all Chinese authors
interpret the notion of `originality' similarly so that some works are not
always respected.113 Therefore, without recognizing the works
created by others, authors are showing their lack of awareness toward copyright
protection. This misunderstanding is tightly linked to the vagueness of legal
terms employed by the Copyright Law of the PRC.
However, China has carried out numerous reforms
fostering a better copyright enforcement in order to answer to all these
critics.
106 IIPA, 2013 Special 301, see above note 27, p.41.
107 Kariyawasam, see above note 46, p.99.
108 IIPA, 2013, Special 3001, see above note 27, p.41.
109 Ibid.
110 Ibid.
111 Kariyawasam, see above note 46, p.99.
112 Article 1 of the Copyright Law of the PRC emphasizes that
authors of copyrighted works are protected to encourage the building of a
socialist society and promote socialist culture.
113 Kariyawasam, see above note 46, p.99.
18
Part IV: Reforms aiming toward an effective
copyright protection
China is the most dedicated country in terms of resources used
for cracking down on piracy.114
Section I: Meeting its international obligations
China knows that its international credibility is at stake.
According to Article 26 of the Vienna Convention on the Law of Treaties (VCLT):
«every treaty in force is binding upon the parties to it and must be
performed in good faith» (pacta sunt servanda). Some members of
the WTO have already threatened China many times of initiating WTO infringement
procedures «for non-compliance with the TRIPs norms».115
As Article 60 (3) (b) VCLT provides for material breach such as the violation
of a provision essential to the execution of the treaty, it means that China's
non-compliance with the TRIPs norms can be seen as a breach of obligations. A
more deterrent copyright legislation would allow China to meet its
international obligations and to avoid being sued. By, signing the 2012
U.S-China Film agreement, China made a significant commercial
development.116 This helps China to meet better international
standards in copyright protection by working closely with U.S agencies. For
instance, China increased the imported films quota after signing this agreement
by allowing 34 foreign movies to be distributed annually within its territory
on a revenue-share basis.117 Before that, only twenty imported films
were allowed per year.118A more competitive market results from this
improvement so that it is not accurate anymore to blame China for a close
market.
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