〈日本知財学会誌〉Vol.5 No.3 ― 2009 : 31 ― 35

〈共同企画・アジア特集〉

Facing the Future: The Distribution of DigitalContent and the New Issues of Intellectual
Property System
Zhou Lin（Law Institute of Chinese Academy of Social Sciences）

Recent years, the Chinese government shows a high degree of concern for the development of the informationindustry. In 2006, The Regulations on the Protection of the Right of Communication through Information Network waspassed and it regulates the distribution of digital content through the network. The author gives an analysis of thepossibilities to build a regional framework to distribute the digital content among Asian countries which will help tospread the Asian culture to the world. The author gives the suggestion for building a regional framework of the commonsystem in Asia.
■ KEYWORDS

Copyright Law, Digital Contents, Freedom of Information

clarified the idea of that in the “11th Five-Year

1. What specific issues have been
discussing concerning thedistribution of digital content inChina?

Plan” period “to encourage the development of thedigital content industry in education, culture,publishing, broadcasting and film, to enrich
Chinese digital content resources, to develop theanimation industry; to take the growth of theA: This question can be viewed in three

information resources as an important part of theaspects:

economic reconstruction and the changes of the― The aspect from the government level. In

mode of economic growth from the national

recent years, the Chinese government shows astrategic level.” In September 2006, the Generalhigh degree of concern for the development of theOffice of the CPC Central Committee and theinformation industry from the national strategic

Office of the State Council issued the “Frameworklevel. In 2000, “the CPC Central Committee on theof the Cultural Development in the 11th Five-YearDevelopment of the National Economy and Social

Plan Period”, clarifying in the next five years, theDevelopment in the 10th Five-Year Plan” pointed

industries of film and television production, theout: to “improve the culture industrial policy, topublishing, the advertising, the performing arts,

strengthen the construction and management ofand the animation should be strengthened andcultural market, and to promote the development

promoted; and to establish the production base inof the cultural industry.” The “Plan” first proposed

digital film, to start the project of the domestic

the “cultural industry” concept. In 2006, “Theanimation, these projects play a leading andOutline of the National Economic and Social

driving role as major cultural projects.

Development in the 11th Five-Year Plan” further
ISSN 1349 ― 421X
蘓 2009 IPAJ All rights reserved.

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〈日本知財学会誌〉Vol.5 No.3 ― 2009

― The aspect from the Industry level. It

technical measures and the protection of right

involves mainly two aspects, one is from amanagement information. In 2006, the Regulations

technical point of view on the development ofon the Protection of the Right of Communication

digital content industries. For example, thethrough Information Network gives detailed

development of the hardware from the record

articles relating to the author’s right ofplayer, tape, to the LD, and then to CD, DVD, andcommunication through information network, thethen to today’s SD. SD features are, the first, CD,liabilities of the information service providers, inDVD can not match the security mechanism; theparticular, it provides the “safe harbor” for thesecond, better storage devices than that in CD,ISPs, to regulate the distribution of digital content

DVD; the third, a broader players’ environment

through the network. The legal academic circle

than CD, DVD; the fourth, easily allowing CD,also gives its attention to the recent cases

DVD shops in transition in business; and the fifth,involving the network.

the content of CD, DVD can be put into SD card.
All websites in the future can sell the digitalcontent, but, no legal protection, no business. The
industries in China is now talking a lot on thetechnology protection issues when the digitalcontent applying on SD. Another aspect is that
how the information service providers（databases

2. Considering the distribution of digitalcontent, including the positive partthat needs to promote and thenegative part that needs to restrain,
what should be promoted, and whatshould be restrained?

or digital content businessmen, they callthemselves “digital library”）are facing theA: T h e d i g i t a l c o n t e n t i s p a r t o f t h edifficulties of the copyright authorization, the huge

information. General speaking, from theamount of payment for copyright and the lots ofview point of an expert of information law,

copyright litigations.

the distribution of information should befree from limitation, if it has to be limited,― The aspect from the legal academic level.

the limits on the scope and content, should

In recent years, legal academics, particularly

formulated by the relevant laws or

intellectual property law experts study in-depth

regulations; lack of legal standards, thethe development of the copyright protection in anlimits set for the distribution of information

environment of network: in 2001, China amended

should not be accepted or it should be

its copyright law, stresses clearly the copyright

opposed.

protection in an environment of network, thisprotection keeps the same basic principles as the（1）What digital content should be promoted?

protection of traditional works, that is, wheneverIn order to promote it, what kind of measuresthe law gives an exclusive right to authors,should be adopted, and what legal system should

performers, producers of audio and video

be improved?

recordings（the right to communication through（2）What digital content should be restrained?

information network）, others should have to

In order to restrain it, what kind of measuresrespect it, without permission, without usage,

should be adopted, and what legal system should

unless the legal exceptions. The amended

be changed?

Copyright Law provides the protection of32

Facing the Future: The Distribution of Digital Content and the New Issues of Intellectual Property System

What should be promoted and what should berestrained, sometimes the government gave no
specific laws and regulations, therefore, it would
be difficult to be accepted by the public and thepolicy suffered widespread criticism when thegovernment announced its policy to encourage

3. In order to facilitate the distributionof digital content of images, how tobuild the ideal framework forhandling the majority of the relevant
copyright and neighboring rights?

（and to restrain）certain cultural products. For
example, in 2006, the Ministry of Culture launched

A: Regarding the distribution of the digital

the “National Kara-oke content management

content of the images, in order to meet thesystem”, the official claimed that this systemneeds of technology development, in 2001

aimed at preventing unhealthy songs into theChina ﾕ s copyright law was revised toKTV while gradually solve the interests conflicts

regulate the right of communication

among the music industry, copyright holders andthrough information network, the protection

kara-oke operators. However, relevant departmentof technical measures and the protection

has not developed the standard between healthfor the rights management information, andand non-health.

in 2007, China joined the two copyrighttreaties relating to Internet. Regardless ofAnother example, in December 1, 2007, “Kara-how changes in technology, from theoke Programme Production Norms” issued by theperspective of legislation and the law

Ministry of Culture took into effect. This “Norms”

enforcement, all activities should be based

sets very clear standard for the content ofon the traditional copyright principles, that

programming acquisition, adding, tagging andis, once the law gives the exclusive right tokara-oke programme of audio and video technology

the authors, performers, producers of audio

indicators, and the source coding indicators. It

and video recordings, others has therequires the songs should be “published in theobligation to respect, without a permit,

mainland of China as a song or audio-video

without a use unless the legal exceptions.

products, or the songs have been shown on theUnder normal circumstances, if anyone

public television station”. If the songs are notunauthorized uses other ﾕ s copyrighted

complying with the conditions, they should beworks, he or she should bear the relevant

passed the examination by the administration andlegal liabilities.

prepared corresponding evidences before they
could be put into the kara-oke programme. The

Nearly all the countries provide special articles

kara-oke programme shall not contain any content

on the liabilities of the Internet service providers

that “The Entertainment Management Ordinance”,

under different circumstances, the relevant laws

“The Rules for the Management of Audio-videowhich have made provisions. Facing a copyrightProducts”, “The Measures for Reviewing thedispute, if blindly pursues an ISP’s responsibility,

Contents of Audio-video Products”, “The Regulations

the ISP will be too risky. In China, four specialized

for Import and Export of Audio-visual Products”.

ISPs are given the conditions for exemption fromAs the “Norm” sets a detailed standard for

infringement by the Protection of the Right ofrestriction of the content, its implementation in

Communication through Information Network.

this area causes no objections.

The first one is the access service provider, the33〈日本知財学会誌〉Vol.5 No.3 ― 2009second is the possession provider, the third is theaccepted by all participants;

speed provider, while the fourth is the link

― Considering the access to relevant content,provider. If the four ISPs fulfill their obligations

the access of the content should be very

under the regulations, they can be exempted fromconvenient, there should be not lots of technicalinfringement. Such a system is called “safebarriers;harbor”. All countries keep the same idea and set
the same system.

― Considering the reasonable price, thepractitioners in the digital imagine content
industry should work out a reasonable price list

At present, on the implementation of China’sthat could be accepted by all the parties;

copyright law, particularly in relation to the― Considering the opening and the exchanging

network with the rights of communicationof information, there should be an open platform

through the information network, the existingfor exchange information and to facilitate thecopyright law did not play the role it should play.

exchange of information to the public;

Author’s rights under the law were taken away

― Considering the copyright collective

by some of the Internet service providers ororganizations, it should be set up in Asia amanufacturers of the digital content through afederation for all the collective organizations,piece of contract, the payment were unreasonablespecial assistance should be given to the newand the authors could not receive the interests

collective organizations in China;that the law gave them. And for those businessmen― Considering a unified copyright licensing

who kept the copyright did not put the works intocontract, it should be formulated to promote a

distribution but to take the copyright as a tool tomodel contract for the creators and the investors,

fight against their competitors on the market, andto promote a model contract for the copyright

this made the market into even a worse order.

collective organizations and the digital content

Therefore, it is necessary to consider to develope

users.

the copyright contract law and unfair competition
law for the copyright market.

The possibilities to build a regional frameworkof the common system:

4. In order to promote the international
distribution of digital imagine
content, as an international
cooperation,（1）what is theexpectation?（2）is there any
possibility to build a regionalframework of the common system inAsia?

― Asian countries lay stress on the digitalcontent industry;― Asian countries lay stress on maintaining
and protecting cultural diversity and mutualrespect;― Digital content distribution cannot be
separated from the cooperation among Asiancountries;

A: For the international distribution of the― Asian countries share the same view

digital imagine content, the expectations

towards the standard of digital content between

are:healthy and un-healthy;― Considering the review of the content,― A successful cooperation in the distributions

there should be a general standard that can beof digital content among Asian countries will help

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Facing the Future: The Distribution of Digital Content and the New Issues of Intellectual Property Systemspread the Asian culture to the world.

groups, some are very weak, some are not yet
established, or have not yet integrated, especially

Issues are faced when build a regionalframework of the common system in Asia:

for the groups of the creators, which in urgent
need of support and assistance from other Asiangroups;― The creation and production of digitalcontent involving all the different languages, culture,― To promote the idea of “opening ofcustom, religion, creed, etc., there may be some ofinformation” and “freedom of information”, tothe ideological barriers from the governmental

study the possibility of a legislative guide ofadministrations, it needs the mutual exchanges“digital content copyright law” in order to protect

and cooperation in the common ground while

the creators while to study the possibility of areserving differences, removing misunderstanding,legislative guide of “digital content contract law

and reducing the negative impact of ideology to aand unfair competition law” in order to protect

minimum;the investors（including the Internet content
service providers）, to promote Asian countries to― To establish various interest groups inamend their existing intellectual property law.

digital content industry, relying on the industries
their own self-discipline, cooperation, and promote― To set a technique standard for digitalthe digital content industry development. In thiscontent related hardware players, such asaspect, the Chinese industry-related interest

memory card.

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