Abstract
After exploring the critical questions that fan creations have raised to copyright experts all over the world, the next step is to dig deep into the endemic problems they face in the Chinese market, as it is the starting point to understand the problem of fan creations in China. Therefore, it is necessary to delineate the legal environment and the endemic problems such as the censorship legislations of China, which foreign copyright owners in the Chinese market face when enforcing their copyright.
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Notes
- 1.
Eric Hoffer, The True Believer: Thoughts on the Nature of Mass Movements 128 (Harper Perennial Modern Classics. 2010).
- 2.
International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95–20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171.
- 3.
Dong Han, ‘Use’ is an Anagram of ‘Sue’: Cultural Control, Resistance, and the Role of Copyright in Chinese Cyberspace, 7 Global Media and Communication 97, 99 (2011).
- 4.
Priest, supra note 5 in Chap. 1, at 821–829; there is similar censorship in other areas such as the publishing market, see generally, Hongsong Song, Dancing in Shackles: Copyright in China’s Highly Regulated Publishing Market, 60 J. Copyright Soc’y U.S.A. 285 (2013).
- 5.
See general, Joseph A. Massey, The Emperor Is Far away: China’s Enforcement of Intellectual Property Rights Protection, 1986-2006, 7 Chi. J. Int’l L. 231 (2006). Accord Lucy Montgomery & Brian Fitzgerald, Copyright and the Creative Industries in China, 9 International Journal of Cultural Studies 407, 418 (2006).
- 6.
See Jordana Cornish, Cracks in the Great Wall: Why China’s Copyright Law Has Failed to Prevent Piracy of American Movies Within Its Borders, 9 Vand. J. Ent. & Tech. L. 405, 424 (2006).
- 7.
He, supra note 123 in Chap. 2, at 1032–33 (note that it is extremely hard to download local productions in famous sharing sites in China whereas for foreign productions it is not the case).
- 8.
Alistair Charlton, Illegal Downloaders Spend More on Music, Film and TV Than Legal Downloaders, International Business Times, Nov. 23, 2012, at http://www.ibtimes.co.uk/illegal-downloaders-pirates-spend-more-music-films-407888 (“When asked why they download pirated content 54 percent said because it is free, 48% said they pirate because it is convenient, and 44% said because it is quick.”).
- 9.
Alford, supra note 5 in Chap. 1, at 119.
- 10.
Id.
- 11.
Alford believe the political culture of China is fundamentally incompatible one of strong intellectual property rights in which individuals have the authority to determine how expressions of their ideas may be used and ready access to private legal remedies to vindicate such rights.” Id.
- 12.
Mette Newth, The Long History of Censorship, Beacon for Freedom of Expression, 2010, at http://www.beaconforfreedom.org/liste.html?tid=415&art_id=475.
- 13.
Id.
- 14.
Karl-Nikolaus Peifer, The Return of the Commons - Copyright History as a Common Source, in Privilege and Property: Essays on the History of Copyright 351–52 (Ronan Deazley & Martin Kretschmer & Lionel Bently eds., 2010).
- 15.
Cynthia J. Brokaw, On the History of the Book in China, in Printing and Book Culture in Late Imperial China 17–8 (Cynthia J. Brokaw & Kai-wing Chow eds., 2005).
- 16.
However, Chow argued that at least in the late Ming dynasty, commercial printing was not bound by a censorship system. See Kai-wing Chow, Writing for Success: Printing, Examinations, and Intellectual Change in Late Ming China, 17 Late Imperial China 120, 135 (1996).
- 17.
Alford, supra note 5 in Chap. 1, at 9–29.
- 18.
See, e.g., Ken Shao, Monopoly or Reward: The Origin of Copyright and Authorship in England, France and China and a New Criticism of Intellectual Property, 41 Hong Kong L.J. 731, 745 (2011).
- 19.
Chengsi Zheng & Michael D. Pendleton, Copyright law in China 2 (CCH Australia Limited. 1991).
- 20.
Alford, supra note 5 in Chap. 1, at 23.
- 21.
Verse 13, Chapter 19, Analects of Confucius.
- 22.
Just like Unger had put it, “the concentration of governmental power and the corresponding subordination of all aristocratic or third estate groups—commercial, bureaucratic, or scholarly—to the interests of the state, made it difficult for prophecy or an independent priesthood to emerge.” Roberto Mangabeira Unger, Law in Modern Society: Toward a Criticism of Social Theory 66 (The Free Press. 1976).
- 23.
Id. See also Chengsi Zheng & Michael D. Pendleton, Copyright law in China 2 (CCH Australia Limited. 1991) (“…the charismatic leader…is seen as deserving of the Mandate of Heaven”). Alford, supra note 5 in Chap. 1, at 23 (“…the ruler had not only the authority but also a responsibility to ascertain how best to nurture the populace. Central to that responsibility was the need to determine which knowledge warranted dissemination and which ought to be circumscribed in the best interests of the commonwealth.”).
- 24.
R. Kent Guy, The Emperor’s Four Treasuries: Scholars and the State in the Late Chʻien-lung Era 1 (Harvard University Asia Center. 1987).
- 25.
Id.
- 26.
The ABC of Copyright, UNESCO Culture Sector, at 11, at http://www.unesco.org/fileadmin/MULTIMEDIA/HQ/CLT/diversity/pdf/WAPO/ABC_Copyright_en.pdf.
- 27.
Zheng & Pendleton, supra note 19, at 14.
- 28.
In fact, there are cases that show the ancient Chinese authors did show their concerns about unauthorized reprinting. See id, Ke Shao, An Alien of Copyright? A Reconsideration of the Chinese Historical Episodes of Copyright, 4 Intell. Prop. Q. 400, 423-29 (2005). However, one should always bear in mind that the first copyright law (Statute of Anne) was also about publishing privileges.
- 29.
Alford, supra note 5 in Chap. 1, at 27–29.
- 30.
John King Fairbank & Merle Goldman, China: a New History 101 (Belknap Press of Harvard University Press 2nd enl. ed. 2006).
- 31.
Alford, supra note 5 in Chap. 1, at 29; See also Yufeng Li (李雨峰), Qiangkou Xia de Falv Zhongguo Banquan Shi Yanjiu (枪口下的法律: 中国版权史研究), [Teaming the Law at Gunpoint: on the Chinese Copyright History] 73 (Intellectual Property Publishing House Co., Ltd. 2006); see also Ray Huang, China: a Macro History 223–24 (M.E. Sharpe Turn of the century ed. 1997) (“…in China it was to apply to thousands of bureaucrats and millions of peasants amidst a cultural tradition that paid little attention to the civil law, and where property rights had always been rendered ambiguous by the custom that gentlemen never spoke of profit, which was unbecoming in the face of the spirit of self-restraint and mutual deference.”).
- 32.
Alford, supra note 5 in Chap. 1, at 18. But see Shao, supra note 28, at 409–10 (arguing that the pre-publishing censorship only existed for a relatively short period).
- 33.
Id. at 14.
- 34.
Zheng & Pendleton, supra note 19, at 16.
- 35.
Alford, supra note 5 in Chap. 1, at 23.
- 36.
According to Unger, the rule of law relies on two historical conditions: First, “there must be a situation in which no group occupies a permanently dominant position or is credited with an inherent right to govern”; second, the “reliance on a ‘higher’ universal or divine law as a standard by which to justify and to criticize the positive law of the state.” Unger, supra note 22, at 66.
- 37.
Bertrand Russell, History of Western Philosophy and Its Connection with Political and Social Circumstances from the Earliest Times to the Present Day 645 (G. Allen and Unwin ltd. 1946).
- 38.
Li, supra note 31, at 63.
- 39.
Susan Bush, The Chinese Literati on Painting; Su Shih (1037-1101) to Tung Chʻi-chʻang (1555-1636) 50–66 (Harvard University Press. 1971).
- 40.
The four classes are: scholars, farmers, artisans and merchants. Philip A. Kuhn, Chinese Views of Social Classification, in Class and social stratification in post-revolution China 20 (James L. Watson ed. 1984).
- 41.
Kong Zi, The analects of Confucius 123 (Arthur Waley trans., Psychology Press. 2005).
- 42.
Alford, supra note 5 in Chap 1, at 25; See also Li, supra note 31, at 64.
- 43.
Li, supra note 31, at 68; Shao, supra note 28, at 427.
- 44.
Unger, supra note 22, at 99.
- 45.
Tongzu Qu (瞿同祖), Qu Tongzu Faxue Lunzhu Ji (瞿同祖法学论著集) [Qu Tongzu’s Analects on Legal Study], 381 (China University of Political Science and Law Press. 1998).
- 46.
Tongzu Qu, Law and society in traditional China 279 (Hyperion Press. 1980).
- 47.
Id. See also Li, supra note 31, at 77.
- 48.
Tongzu Qu (瞿同祖), Zhongguo Falv yu Zhongguo Shehui (中国法律与中国社会) [Laws and Society of China] 322 (Zhonghua Book Company. 1996).
- 49.
Chen Li (李琛), Guanyu Zhongguo Gudai Yinhe Wu Banquan Yanjiu de Jidian Fansi (关于“中国古代因何无版权”研究的几点反思) [Several Reflections on the Researches about “Why Ancient China has no Copyright”], Faxuejia (法学家) [Jurist], no. 1, 2010, at 58.
- 50.
Id.
- 51.
Id.
- 52.
Id.
- 53.
Id.
- 54.
Shao, supra note 28, at 430.
- 55.
Alford, supra note 5 in Chap. 1, at 42.
- 56.
Id. at 53. See also Li, supra note 31, at 133–34.
- 57.
Alford, supra note 5 in Chap. 1, at 54–55.
- 58.
Id. at 57.
- 59.
Lucy Montgomery & Michael Keane, Learning to love the market: Copyright, Creativity and China, in Communications, intellectual property and the public domain in the Asia-Pacific region: Contestations and consensus 130–49 (P. Thomas & J. Servaes eds., 2006).
- 60.
Alford, supra note 5 in Chap. 1, at 57.
- 61.
“What is the source of all literature and art? Works of literature and art, as ideological forms, are products of the reflection in the human brain of the life of a given society. Revolutionary literature and art are the products of the reflection of the life of the people in the brains of revolutionary writers and artists. The life of the people is always a mine of the raw materials for literature and art, materials in their natural form, materials that are crude, but most vital, rich and fundamental; they make all literature and art seem pallid by comparison; they provide literature and art with an inexhaustible source, their only source… the literary and artistic works of the past are not a source but a stream; they were created by our predecessors and the foreigners out of the literary and artistic raw materials they found in the life of the people of their time and place.” Zedong Mao, Talks at the Yenan forum on literature and art 18–19 (Foreign Languages Press. 1967).
- 62.
Zheng & Pendleton, supra note 19, at 19.
- 63.
Id. Alford, supra note 5 in Chap. 1, at 60.
- 64.
See Rogier Creemers, Explaining Audiovisual Media Piracy in China 67 (Feb. 2, 2012) (unpublished Ph.D. dissertation, Maastricht University), available at http://arno.unimaas.nl/show.cgi?fid=24067.
- 65.
Thirukodikaval Nilakanta Srinivasan, External Sector in Development: China and India, 1950–89, 80 The American Economic Review 113, 114 (1990) (“Soviet aid ceased in 1960. The failures of the Great Leap Forward turned China from a modest net exporter of grain to a net importer. The share of food in exports dropped dramatically and that of manufactures rose to around 50 percent, where it remained on average for more than two decades from 1959. Imports of machinery had to be cut sharply. During the period 1963–65, the economy recovered from the ravages of the Great Leap and a famine that killed more than 20 million people.”).
- 66.
See e.g., Guanyu Zhengque Zhixing Gaochou Zhidu Qiadang Zhangwo Gaochou Biaozhun de Tongzhi (关于正确执行稿酬制度, 恰当掌握稿酬标准的通知) [Notice on the Correct Enforcement of the Remuneration Regime, and Proper Mastery of the Remuneration Standard] (promulgated by Ministry of Culture Decree (61) wenchuqizi No. 1216, Aug. 28, 1961, repealed Mar. 1, 2011) (China).
- 67.
Srinivasan, supra note 65, at 114.
- 68.
“Intellectuals are teachers employed by the working class and the labouring people to teach their children. If they go against the wishes of their masters and insist on teaching their own set of subjects, teaching stereotyped writing, Confucian classics or capitalist rubbish, and turn out a number of counter-revolutionaries, the working class will not tolerate it and will sack them and not renew their contract for the coming year.” Zedong Mao (毛泽东), Datui Zichan Jieji Youpai de Jingong (打退资产阶级右派的进攻) [Beat Back the Attacks of the Bourgeois Rightists], in Selected Works of Mao Zedong Volume 5, 469–70 (The People’s Publishing House, 1977).
- 69.
Wenhua Bu Dangwei Guanyu Jinyibu Jiangdi Baokan Tushu Gaochou de Qingshi Baogao (文化部党委关于进一步降低报刊图书稿酬的请示报告) [The Request Report of the Party Committee of Ministry of Culture on Further Reducing Newspapers and Books Remunerations], in Zhongguo Banquan Shi Yanjiu Wenxian (中国版权史研究文献) [Historical Documents of China’s Copyright Law], 330 (Lin Zhou & Mingshan Li eds., 1999).
- 70.
The Stinking Number Nine is a Chinese dysphemism for intellectuals. See Ku-chʻeng Li, A Glossary of Political Terms of the People’s Republic of China 27 (Chinese University Press. 1995) (“During the Cultural Revolution, the Gang of Four and other ultra-leftists list nine categories of political-social undesirables; intellectuals were at the bottom of the list and were called the ‘stinking Number Nine.’”).
- 71.
It was cited by numerous pieces. See e.g., Chengsi Zheng, The Future Chinese Copyright System and its Context, 15 IIC 141, 152 (1984); Alford, supra note 5 in Chap. 1, at 56; Li, supra note 31, at 157; D. Vaver, Intellectual Property Rights: Critical Concepts in Law 68 § 1 (Routledge. 2006); Peter K. Yu, Piracy, Prejudice, and Perspectives: An Attempt to Use Shakespeare to Reconfigure the US-China Intellectual Property Debate, 19 BU Int’l LJ 1, 22 (2001).
- 72.
Zheng, supra note 71, at 152.
- 73.
Alford, supra note 5 in Chap. 1, at 65.
- 74.
That is indicated in Mao’s speech. See Mao, supra note 68 (“At present what kind of skin do intellectuals attach themselves to? To the skin of public ownership, to the proletariat. Who provides them with a living? The workers and peasants. Intellectuals are teachers employed by the working class and the labouring people to teach their children. If they go against the wishes of their masters and insist on teaching their own set of subjects, teaching stereotyped writing, Confucian classics or capitalist rubbish, and turn out a number of counter-revolutionaries, the working class will not tolerate it and will sack them and not renew their contract for the coming year.”).
- 75.
Tong Zhang & Barry Schwartz, Confucius and the Cultural Revolution: a Study in Collective Memory, 11 International Journal of Politics, Culture, and Society 189, 197 (1997).
- 76.
Id.
- 77.
Id. at 198.
- 78.
Id. at 200.
- 79.
Including ideologues Hongwen Wang (王洪文), Chunqiao Zhang (张春桥), Qing Jiang (江青), and Wenyuan Yao (姚文元). See generally, Lowell Dittmer, Bases of Power in Chinese Politics: A Theory and an Analysis of the Fall of the “Gang of Four”, 31 World Politics 26, 27 (1978).
- 80.
It is believed that the intellectual property-related terms in U.S. China Agreement on High Energy Physics Cooperation, and Agreement on Trade Relations Between the United States of America and the People’s Republic of China that were signed in 1979 have actually promoted the planning and establishment of modern Chinese intellectual property laws. See e.g., Luo Li, Intellectual Property Protection of Traditional Cultural Expressions: Folklore in China 98 (Springer. 2014).
- 81.
Zhang & Schwartz, supra note 75, at 202–3.
- 82.
Universal Copyright Convention as revised at Paris on 24 July 1971, 25 U.S.T. 1341, 943 U.N.T.S. 178 [hereinafter UCC]. The United States acceded to the revised UCC in 1972, China in 1992, and Japan in 1977.
- 83.
Haimin Wu (吴海民), Shenpan Haidao (审判海盗) [The Trial of the Pirates] 9 (Hua Yi Publishing House, 1995).
- 84.
Lin Zhou (周林), Zhongguo Banquan Shi Yanjiu de Jitiao Xiansuo (中国版权史研究的几条线索) [Several Clues of Research on Copyright History of China], in Zhongguo Banquan Shi Yanjiu Wenxian (中国版权史研究文献) [Historical Documents of China’s Copyright Law] 330 (Lin Zhou & Mingshan Li eds., 1999).
- 85.
Chengsi Zheng (郑成思), Zhishi Chanquan Baohu Shiwu Quanshu (知识产权保护实务全书) [The Pandect of Intellectual Property Protection Practice] preface (China Yan Shi Press, 1999).
- 86.
Minfa Tongze (民法通则) [the General Principles of the Civil Law of China] (Adopted at the Fourth Session of the Sixth National People’s Congress on April 12, 1986 and promulgated by Order No. 37 of the President of the People’s Republic of China on April 12, 1986), translated at World Intellectual Property Organization, WIPO Lex No. CN135, http://www.wipo.int/wipolex/en/text.jsp?file_id=182628.
- 87.
Id. art. 94.
- 88.
Alford, supra note 5 in Chap. 1, at 76–77.
- 89.
Id. at 78. Li, supra note 31, at 168.
- 90.
Copyright Law of the People’s Republic of China (promulgated by Decree No. 31 of Sep. 7, 1990, of the president of People’s Republic of China) art. 4. translated at World Intellectual Property Organization, WIPO Lex No. CN001, http://www.wipo.int/wipolex/en/text.jsp?file_id=336460 (hereinafter 1990 Copyright Law of the People’s Republic of China).
- 91.
Alford, supra note 5 in Chap. 1, at 79; Li, supra note 31, at 168.
- 92.
Selected Words of Deng Xiaoping Volume III 1982–1992, Oct. 23, 1985 (Excerpt from an interview with a delegation, including senior American entrepreneurs, organized by Time Inc.), at http://english.peopledaily.com.cn/dengxp/vol3/text/c1480.html.
- 93.
Dwight H. Perkins, China’s Economic Policy and Performance, in The Cambridge History of China. Volume 15, The People’s Republic, Part 2: Revolutions within the Chinese Revolution 1966–1982 510, (Denis Crispin Twitchett & John King Fairbank eds., 1991).
- 94.
Mac Farquhar noted that “the deep-rooted attachment in the Chinese political culture to the concept of an elite bureaucracy sanctioned simply by its commitment to and mastery of a totalist ideology that claimed to explain the world and man’s place in it” is “at risk”. Roderick MacFarquhar, The succession to Mao and the end of Maoism, in The Cambridge History of China. Volume 15, The People’s Republic, Part 2: Revolutions within the Chinese Revolution 1966–1982 399 (Denis Crispin Twitchett & John King Fairbank eds., 1991).
- 95.
Zhang & Schwartz, supra note 75, at 203.
- 96.
Id. at 202.
- 97.
Jonathan D. Spence, The Search for Modern China 685 (W.W. Norton 2nd ed. 1999).
- 98.
Christian Science Monitor, Oct. 12, 1989, at 6, as cited in Zhang & Schwartz, supra note 75, at 204.
- 99.
Id. at 203.
- 100.
Mu Gu, Speech at the Opening Ceremony Commemorating the 2540th Anniversary of Confucius’ Birth and a Symposium on Confucianism. 4 Study of Confucius, 1989, as cited in id. at 204.
- 101.
Id.
- 102.
Alford, supra note 5 in Chap. 1, at 92.
- 103.
Memorandum of Understanding on the Protection of Intellectual Property, Jan. 17, 1992, P.R.C.-U.S., T.I.A.S. No. 12036 (1995).
- 104.
Berne Convention for the Protection of Literary and Artistic Works (Paris Act of July 24, 1971, as amended on September 28, 1979), WIPO Publication No. 287(E) (Geneva: World Intellectual Property Organization, 1992), 828 U.N.T.S. 221 [hereinafter Berne Convention] The United States acceded in 1989, China in 1992 and Japan in 1899.
- 105.
Alford, supra note 5 in Chap. 1, at 92.
- 106.
Peter K. Yu, From Pirates to Partners: Protecting Intellectual Property in China in the Twenty-First Century, 50 Am. U. L. Rev. 131, 133 (2000).
- 107.
Li, supra note 31, at 179-80.
- 108.
For a vivid discussion over this topic, see generally, Yu, supra note 106; Alford, supra note 5 in Chap. 1, at 117-119; Li, supra note 31, at 185-86.
- 109.
See generally Li Sun (孙莉), Dezhi Yu Fazhi Zhengdangxing Fenxi Jianji Zhongguo Yu Dongya Fawenhua Chuantong Zhi Jiansheng (德治与法治正当性分析—兼及中国与东亚法文化传统之检省) [A Study on the Justification of Rule of Virtue and Rule of Law–With a Review of Legal Cultural Tradition of China and East Asian Countries], Zhongguo Shehui Kexue (中国社会科学) [Social Sciences in China], no.6, 2002, 95-104.
- 110.
Orville Schell, Person of the Year 2007: Hu Jintao, Time, Dec. 19, 2007, at http://content.time.com/time/specials/2007/personoftheyear/article/0,28804,1690753_1695388_1695753,00.html.
- 111.
Xiaosu Cui (崔小粟), Yiniannei Sanci Qinjin Rujia Xi Jinping Weihe Ruci Qiangdiao Chongshi Chuantong Wenhua? (一年内三次亲近儒家 习近平为何如此强调重拾传统文化?) [Approach Confucianism three times a year, why Xi Jinping put so much stress on regaining the traditional culture?], Renmin Wang (人民网) [People.com.cn], Sep. 25, 2014, at http://cpc.people.com.cn/n/2014/0925/c164113-25731729.html.
- 112.
Id.
- 113.
See e.g., Id (according to Xi’s view, “for those contents in the traditional culture that are suitable for social relationship adjustment and encourage people to seek goodness, we should inherit and promote them, and give them new meanings combining the conditions of the times”).
- 114.
Alford, supra note 5 in Chap. 1, at 119.
- 115.
Id. at 123. Li, supra note 31, at 72–73, 186.
- 116.
Richard A. Posner, Law and Literature 529 (Harvard University Press 3rd ed. 2009).
- 117.
Li, supra note 49, at 60; See also Peter K. Yu, Intellectual Property and Confucianism, in Diversity in Intellectual Property: Identities, Interests and Intersections 264 (Irene Calboli & Srividhya Ragavan eds., Cambridge University Press, 2015); Shao, supra note 28, at 429–31.
- 118.
Id. at 248–49.
- 119.
Id. at 255.
- 120.
Id. at 257–61.
- 121.
Id. at 265 (“the greater diversity in Chinese culture has made explanations based on this culture even more difficult and incoherent.”).
- 122.
Shao, supra note 28, at 412–16.
- 123.
Alford, supra note 5 in Chap. 1, at 119.
- 124.
Anne Stevenson-Yang & Ken DeWoskin, China Destroys the IP Paradigm, 168 Far E. Econ. Rev. 9, 10 (2005) (“In fact, China’s failure to protect has little to do with stages of development or cultural attitudes. It has everything to do with the government’s ownership and control over the economy, which undermines private property rights–especially the intangible kind. This creates economic instability that makes it difficult for innovation by domestic companies to be rewarded, and thus be sustained.”).
- 125.
Panel Report, China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/R (Jan. 26, 2009) [hereinafter DS362 case]; Panel Report, China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R (Aug. 12, 2009) [hereinafter DS363 case].
- 126.
Copyright Law of the People’s Republic of China (as amended by the Decision of October 27, 2001, of the Standing Committee of the National People’s Congress on the Amendment of the Copyright Law of the People’s Republic of China; promulgated by the Presidential Order No. 31 of People’s Republic of China) art. 4, translated at World Intellectual Property Organization, WIPO Lex No. CN019, http://www.wipo.int/wipolex/en/text.jsp?file_id=125980 (hereinafter 2001 Copyright Law of the People’s Republic of China) (Works the publication or distribution of which is prohibited by law shall not be protected by this Law.).
- 127.
Agreement on Trade Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1125, 1197 (1994) art. 9(1) [hereinafter TRIPS Agreement].
- 128.
Rogier Creemers, The Effects of WTO Case DS362 on Audiovisual Media Piracy in China, 31 Eur. Intell. Prop. Rev. 568, 570 (2009).
- 129.
Panel Report, China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/R (Jan. 26, 2009) [hereinafter DS362 case].
- 130.
2001 Copyright Law of the People’s Republic of China, art. 4.
- 131.
Hao Dong & Minkang Gu, Copyrightable or Not: A Review of the Chinese Provision on “Illegal Works” Targeted by WTO DS362 and Suggestions for Legal Reform, 4 Asian J. Wto & Int’l Health L. & Pol’y 335, 344 (2009).
- 132.
This section is based on the original article: Tianxiang He, Control or Promote: China’s Cultural Censorship System and Its Influence on Copyright Protection, 7 Queen Mary J. Intellect. Prop. 74 (2017).
- 133.
See Verdict against Liu Xiaobo, Dec. 25, 2009, translated at USC US-China Institute, at http://china.usc.edu/ShowArticle.aspx?articleID=2319&AspxAutoDetectCookieSupport=1.
- 134.
What happened to the books of the famous Chinese writers such as Shuo Wang (王朔) and Weihui Zhou (周卫慧) in the Chinese market is a good example. See Xhingyu Chen, Gray Areas: Book Banning and Censorship in China, Fair Observer, Aug. 15, 2014, at http://www.fairobserver.com/region/asia_pacific/grey-areas-book-banning-and-censorship-in-china-62007/ (“For example, the writer Wang Shuo has had his books labeled as “spiritual pollutants” for his frank depiction of a generation of wayward youth in the post-Mao era. There are efforts to ban his books and while some have been successful, others are freely available. Meanwhile, Zhou Weihui’s Shanghai Baby, which chronicled the turbulent love life of a young Chinese woman, was banned and copies were publicly burned. The decision to ban one but not the other is open to interpretation; one can argue that authorities were uncomfortable with a female writer’s blunt portrayal of sexuality in Shanghai Baby, although the works of Mian Mian, a contemporary of Zhou Weihui who also writes openly about sex and drugs, has never been banned.”).
- 135.
Newth, supra note 12.
- 136.
Chuban Guanli Tiaoli (出版管理条例) [Regulation on the Administration of Publications] (promulgated by the St. Council, Mar. 19, 2011, by St. Council Decree No. 594) art. 2, St. Council Gaz., 2011, no. 9 (China), translated at Lawinfochina, http://www.lawinfochina.com/display.aspx?lib=law&id=8705 (hereinafter the 2011 Regulation on the Administration of Publications).
- 137.
Song, supra note 4, at 324.
- 138.
“Guowuyuan Guanyu Yanli Daji Feifa Chuban Huodong de Tongzhi” (国务院关于严厉打击非法出版活动的通知) [Notice Regarding Striking Hard Against Illegal Publishing Activities], art. 1, State Council of China, Jul. 6, 1987, at http://www.people.com.cn/electric/flfg/d4/870706.html.
- 139.
Guowuyuan Bangongting Guanyu Jianjue Qudi Feifa Chuban Huodong de Tongzhi (国务院办公厅关于坚决取缔非法出版活动的通知) [Notice Regarding Resolutely Clamping Down on Illegal Publishing Activities] (promulgated by the St. Council, Jan. 25, 1996) art. 1 (China).
- 140.
Chuban Guanli Tiaoli (出版管理条例) [Regulation on the Administration of Publications] (promulgated by the St. Council, Jan. 2, 1997, by St. Council Decree No. 210, repealed Dec. 25, 2001 by St. Council Decree No. 343) art. 8, St. Council Gaz., 1997, no. 2, at 38 (China); Regulation on the Administration of Publications (promulgated by the St. Council, Dec. 25, 2001, by St. Council Decree No. 343, repealed Mar. 19, 2011 by St. Council Decree No. 594) art. 9, St. Council Gaz., 2002, no. 4, at 15 (China), translated at World Intellectual Property Organization, WIPO Lex No. CN065, http://www.wipo.int/wipolex/en/text.jsp?file_id=182153 (hereinafter the 2001 Regulation on the Administration of Publications).
- 141.
Song, supra note 4, at 324.
- 142.
Panel Report, China–Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R (Aug. 12, 2009).
- 143.
WTO Appellate Body Confirms Finding Against China’s Treatment of Certain Copyright-Intensive Products, Office of the United States Trade Representative, Dec. 2009, at http://www.ustr.gov/about-us/press-office/press-releases/2009/december/wto-appellate-body-confirms-finding-against-china.
- 144.
2011 Regulation on the Administration of Publications, art. 39.
- 145.
2001 Regulation on the Administration of Publications, art. 39.
- 146.
Dinghu Dinggou Jinkou Chubanwu Guanli Banfa (订户订购进口出版物管理办法) [Measures for the Administration on Subscribers’ Subscription for Imported Publications] (promulgated by the General Administration of Press and Publication No. 51, Mar. 25, 2011) (China), translated at Lawinfochina, http://www.lawinfochina.com/display.aspx?lib=law&id=8646&CGid=. Chubanwu Shichang Guanli Guiding (出版物市场管理规定) [Provisions on the Administration of Publications Market] (promulgated by the General Administration of Press and Publication and the Ministry of Commerce Order No. 52, Mar. 25, 2011) (China), translated at Lawinfochina, http://www.lawinfochina.com/display.aspx?lib=law&id=8636&CGid=. Yinxiang Zhipin Jinkou Guanli Banfa (音像制品进口管理办法) [Measures for the Administration of Import of Audio and Video Recordings] (promulgated by the General Administration of Press and Publication and General Administration of Customs Order No. 53, Apr. 6, 2011) (China), translated at PKULaw, http://en.pkulaw.cn/display.aspx?cgid=149796&lib=law.
- 147.
2001 Regulation on the Administration of Publications, art. 42(2).
- 148.
2011 Regulation on the Administration of Publications, art. 42(2).
- 149.
2001 Regulation on the Administration of Publications, art. 41.
- 150.
2011 Regulation on the Administration of Publications, art. 41.
- 151.
See e.g., Yinxiang Zhipin Guanli Tiaoli (音像制品管理条例) [Regulations on the Administration of Audio and Video Products] (promulgated by the St. Council Decree No. 341, Mar. 19, 2011) art. 27, St. Council Gaz., 2011, no. 9 (China), translated at Lawinfochina, http://www.lawinfochina.com/display.aspx?lib=law&id=8815. Measures for the Administration of Import of Audio and Video Recordings, art. 7–8.
- 152.
Article 25 provides that:
-
The following contents are prohibited from being included in any publication:
-
(1) Those which object to the basic principles determined in the Constitution;
-
(2) Those which endanger the unity of the nation, sovereignty or territorial integrity;
-
(3) Those which divulge secrets of the State, endanger national security or damage the honor or benefits of the State;
-
(4) Those which incite the national hatred or discrimination, undermine the solidarity of the nations, or infringe upon national customs and habits;
-
(5) Those which propagate evil cults or superstition;
-
(6) Those which disturb public order or destroy public stability;
-
(7) Those which propagate obscenity, gambling, violence or instigate crimes;
-
(8) Those which insult or slander others, or infringe upon the lawful rights and interests of others;
-
(9) Those which endanger public ethics or the fine folk cultural traditions;
-
(10) Other contents prohibited by laws, administrative regulations or provisions of the State.
See 2011 Regulation on the Administration of Publications, art. 25.
-
- 153.
Id. art. 26:
-
Publications catering to minors shall not include any content enticing minors to imitate the acts in violation of public ethics or illegal or criminal acts, nor shall they include such contents harming the physical and mental health of minors as terror, cruelty, etc.
(Translation from Lawinfochina.).
-
- 154.
Id. art. 45.
-
The publications imported by a publication import entity shall not include any content prohibited by Articles 25 and 26 of these Regulations.
-
A publication import entity shall be responsible for examining the contents of the publications which it has imported. The administrative department for publication under the people’s government at the provincial level or above may directly examine the contents of the publications imported by a publication import entity. Where a publication import entity is unable to identify whether the imported publications include any content prohibited by Articles 26 and 27 of these Regulations, it may request the administrative department for publication under the people’s government at the provincial level or above to examine the contents. The administrative department for publication under the people's government at the provincial level or above may, when examining upon the request by the publication import entity the contents of the imported publications, charge fees in accordance with the rates approved by the department in charge of price under the State Council.
-
The administrative department for publication under the State Council may forbid the import of certain publications.
(Translation from Lawinfochina.).
-
- 155.
Id. art. 46.
-
A publication import entity shall, before importing publications, submit the catalogue of the publications subject to planned import to the administrative department for publication under the people’s government at the provincial level or above for record; where the administrative department for publication under the people's government at the provincial level or above finds that the import of any publication shall prohibited or deferred, it shall notify the publication import entity in time and shall inform the customs. A publication import entity shall not import any publication which has been prohibited or deferred in notices, and the customs shall not release such a publication.
-
The specific measures for the registration of imported publications shall be enacted by the administrative department for publication under the State Council.
(Translation from Lawinfochina.).
-
- 156.
Id. art. 47.
-
Those who distribute imported publications must receive goods from the publication import entities established in accordance with the law.
(Translation from Lawinfochina.).
-
- 157.
Id. art. 48.
-
A publication import entity that intends to hold an exhibition of overseas publications inside the territory must report to the administrative department for publication under the State Council for approval. No entity or individual shall hold exhibitions of overseas publications without being approved.
-
Where the overseas publications exhibited in accordance with the preceding paragraph need to be sold, the relevant formalities shall be gone through in accordance with the relevant provisions of the State.
(Translation from Lawinfochina.).
-
- 158.
In that case, after the involved subjects have been examined and verified by “the administrative department for publication under the people’s government of the province, autonomous region or municipality directly under the Central Government at its locality.” they should be submitted to “the administrative department for publication under the State Council for record”, Id. art. 20. a similar provision can be found in the online environment as well, see Wangluo Chuban Fuwu Guanli Guiding (网络出版服务管理规定) [Provisions on the Administration of Online Publishing Services] (promulgated by the SAPPRFT & MIIT Decree No. 5, Mar. 10, 2016) art. 26 (China), translated at Lawinfochina, http://en.pkulaw.cn/display.aspx?cgid=264071&lib=law.
- 159.
Id, art. 20.
- 160.
Interviewed and documented by the author in Oct.1, 2014.
- 161.
2011 Regulation on the Administration of Publications, art. 62–69.
- 162.
Id. art. 61.
- 163.
Regulations on the Administration of Audio and Video Products, art. 3, art. 28. Measures for the Administration of Import of Audio and Video Recordings, art. 5–6, art. 13–9.
- 164.
Chen, supra note 134.
- 165.
Books by Writers Sympathetic to Hong Kong and Taiwan Student Movements Available ‘While Stocks Last’, South China Morning Post, Oct. 13, 2014, at http://www.scmp.com/news/china/article/1615308/books-writers-sympathetic-hong-kong-and-taiwan-student-movements.
- 166.
Id.
- 167.
See Guangbo Dianshi Guanli Tiaoli (广播电视管理条例) [Regulations on Broadcasting and Television Administration] (promulgated by the St. Council Decree No. 228, Aug. 11, 1997) art. 10 (China), translated at Lawinfochina, http://www.lawinfochina.com/display.aspx?lib=law&id=6313&CGid= (“Broadcasting stations and television stations shall be established by departments of broadcasting and television administration of the people's governments of counties and municipalities without subordinate districts and above, among which educational television stations may be established by departments of education administration of people's governments of municipalities with subordinate districts and autonomous prefectures and above. No other units or individuals shall establish broadcasting stations and television stations. The State prohibits the establishment of foreign capital operated, Sino-foreign joint venture and Sino-foreign cooperative venture broadcasting stations and television stations.”).
- 168.
Guangbo Diantai Dianshitai Shenpi Guanli Banfa (广播电台电视台审批管理办法) [Measures for the Administration of Examination and Approval of Radio Stations and Television Stations] (promulgated by SARFT Decree No. 37, Aug. 18, 2004) art. 4–7 (China), translated at Lawinfochina, http://www.lawinfochina.com/display.aspx?lib=law&id=3722&CGid=.
- 169.
See Xiaohan Shi (师小涵) & Songli Guo (郭宋立), Minying Dianshitai de Haiwai Shengcun (民营电视台的海外生存) [The Chinese Private-run TV stations are Making a Living in Foreign Countries], Nanfang Zhoumo (南方周末) [Southern Weekly], Oct. 14, 2013, http://www.infzm.com/content/94935.
- 170.
Guangbo Dianshi Jiemu Chuansong Yewu Guanli Banfa (广播电视节目传送业务管理办法) [Administrative Measures for the Business of Transmission of Radio and TV Programs] (promulgated by SARFT Decree No. 33, Jul. 6, 2004) art. 5 (China), translated at Lawinfochina, http://www.lawinfochina.com/display.aspx?lib=law&id=4550&CGid=.
- 171.
Id. art. 6.
- 172.
Id. art. 7.
- 173.
Guangbo Dianshi Jiemu Zhizuo Jingying Guanli Guiding (广播电视节目制作经营管理规定) [Radio and Television Program Production Business Management Regulations] (promulgated by SARFT Decree No. 34, Jul. 19, 2004) art. 5 (China), translated at China Copyright and Media (Rogier Creemers trans.), http://chinacopyrightandmedia.wordpress.com/2004/07/19/radio-and-television-programme-production-business-management-regulations/ (“The State encourages domestic social organizations, enterprise and undertaking organs (not including wholly-foreign invested enterprises or Sino-foreign cooperatives or contractual enterprises established within the borders) to establish radio and television program production business organs or engage in radio and television program production business activities.”).
- 174.
Id. art. 4.
-
The State establishes a permit system over establishing radio and television programme production business organs and engaging in radio and television programme production business activities. For establishing radio and television program production business organs and engaging in radio and television program production business activities, a “Radio and Television Program Production Business Permit” must be obtained.
-
- 175.
Id. art. 12.
-
For television dramas produced by organs holding a “Radio and Television Program Production Business Permit”, prefecture/city-level (included) or higher television stations (including radio and television stations, radio and television groups) and film production organs holding a “Film Shooting Permit”, it is necessary to obtain a television drama production permit separately in advance.
-
- 176.
Id. art. 21.
- 177.
Id. art. 25.
- 178.
Guangbo Dianshi Shipin Dianbo Yewu Guanli Banfa (广播电视视频点播业务管理办法) [Measures for the Administration of Radio & TV Video Broadcasting by Order] (promulgated by SARFT, Jul. 6, 2004, effective Aug. 10, 2004, by SARFT Decree No. 35) art. 7 (China) (“The following institutions may apply for a Permit (Category A): (1) The radio stations and TV stations at the prefecture (city) level or above established upon approval; and (2) The radio, film and television groups (headquarters) established upon approval.”).
- 179.
Dianying Guanli Tiaoli (电影管理条例) [Regulations on the Administration of Movies] (promulgated by St. Council Decree No. 342, Dec. 25, 2001) art. 9 (China), translated at World Intellectual Property Organization, WIPO Lex No. CN067, http://www.wipo.int/wipolex/en/text.jsp?file_id=182159.
- 180.
Id. art. 10.
- 181.
Id. art. 16.
- 182.
Dianying Chanye Cujin Fa (电影产业促进法) [Film Industry Promotion Law] (Adopted by Standing Comm. of the Nat’l People’s Cong. on Nov. 7, 2016, and promulgated by the Presidential Order No. 54) (China), translated at Lawinfochina, http://www.lawinfochina.com/display.aspx?id=22922&lib=law.
- 183.
Id. art. 13.
- 184.
Film Industry Promotion Law, art. 14; Regulations on the Administration of Movies, art. 18.
- 185.
Id. art. 19.
- 186.
Id. art. 20–23.
- 187.
Film Industry Promotion Law, art. 14.
- 188.
Regulations on the Administration of Movies, art. 37.
- 189.
Id. art. 37–38; Film Industry Promotion Law, art. 25.
- 190.
See infra Sect. 3.1.4 Import Quotas.
- 191.
Olivia Goldhill, Hollywood Switches Focus to China’s Billions, The Telegraph, Jul. 7, 2013, at http://www.telegraph.co.uk/finance/newsbysector/industry/10165352/Hollywood-switches-focus-to-Chinas-billions.html.
- 192.
Id.
- 193.
Kirkpatrick, supra note 27 in Chap. 1, at 133.
- 194.
Guowai Donghua Pian Dui Zhongguo Ertong Jiazhi Guan de Yingxiang (国外动画片对中国儿童价值观的影响) [Imported Anime’s Influences on the Values of Chinese Children], Zhongyang Dianshi Tai (中央电视台) [CCTV], Oct. 12, 2004, http://www.cctv.com/tvguide/tvcomment/special/C11876/20041012/101985_4.shtml.
- 195.
See Guangbo Dianying Dianshibu Guanyu Yinjin Haiwai Dianshiju De Shencha Biaozhun (广播电影电视部关于引进海外电视剧的审查标准) [Examination Standards Concerning Imported Foreign Television Dramas] (promulgated by the St. Admin. of Radio, Film & Television, Nov. 28, 1990, repealed Dec. 17, 2003) art. 4 (China). See also, e.g., Jingwai Dianshi Jiemu Yinjin Bochu Guanli Guiding (境外电视节目引进、播出管理规定) [Foreign Television Program Import and Broadcast Management Regulations] (promulgated by SARFT, Sept. 23, 2004, effective Oct. 23, 2004, by SARFT Decree No. 42) art. 15 (China).
- 196.
Radio and Television Program Production Business Management Regulations, art. 22; Administrative Measures for the Business of Transmission of Radio and TV Programs, art. 17; Measures for the Administration of Radio & TV Video Broadcasting by Order, art. 21; Dianshiju Shencha Guanli Guiding (电视剧审查管理规定) [Television Drama Examination Management Regulations] (promulgated by SARFT, Sept. 20, 2004, effective Oct. 20, 2004, by SARFT Decree No. 40, repealed July 1, 2010) art. 5 (China).
- 197.
Id. art. 15. See also Dianshiju Guanli Guiding (电视剧管理规定) [Television Drama Management Regulations] (promulgated by SARFT Decree No. 2, Jun. 15, 2000, repealed Jan. 1, 2008) art. 20 (China), translated at China Copyright and Media (Rogier Creemers trans.), https://chinacopyrightandmedia.wordpress.com/2000/06/15/television-drama-management-regulations-2/.
- 198.
Film Industry Promotion Law, art. 17; Regulations on the Administration of Movies, art. 42.
- 199.
Id. art. 25; Film Industry Promotion Law, art. 16–7.
- 200.
Id. art. 20; Regulations on the Administration of Movies, art. 24.
- 201.
Leonard, supra note 11 in Chap. 2, at 285.
- 202.
Daniels, supra note 25 in Chap. 1, at 714–16.
- 203.
Shalia Sakona, Frankly, My Dear America, We Don’t Give a Damn: Comparing Chinese and European Trade Barriers to American Audiovisual Works and the American Response, 54 B.C. L. Rev. 1385, 1391–92 (2013).
- 204.
Leonard, supra note 28 in Chap. 1, at 198.
- 205.
Regulations on Broadcasting and Television Administration, art. 43 (The department of radio and television administration under the State Council may, under extraordinary circumstances, make a decision to suspend the broadcast, change a particular program or designate the relay of a particular program.).
- 206.
Regulations on the Administration of Movies, art. 42 (With respect to a movie for which the “License for Public Projection of Movies” has been obtained, the administrative department for radio, movie and television under the State Council may, under particular circumstances, make a decision on ceasing the distribution or projection or, prohibiting distribution or projection before the amendment).
- 207.
Clifford Coonan, China Bars Stars with “Bad” Moral Records from TV, The Hollywood Reporter, Sep. 17, 2014, at http://www.hollywoodreporter.com/news/china-bars-stars-bad-moral-733690.
- 208.
Russell Leigh Moses, Lurking in Mao’s Shadow, China’s Xi Looks Undecided on Reforms, The Wall Street Journal, Oct. 20, 2014, at http://blogs.wsj.com/chinarealtime/2014/10/20/lurking-in-maos-shadow-chinas-xi-looks-indecisive-on-reforms/.
- 209.
Lu Liu (刘路), Zongju Yanjin Chouwen Lieji Zhe Fasheng Chujing Jiang Baohan Chugui (总局严禁丑闻劣迹者发声出镜 将包含“出轨”) [SAPPRFT Says no Show for Practitioners with Scandal and Bad Reputation, “Unfaithful” may be Included], Xinhua Wang (新华网) [Xinhua Net], Oct. 24, 2014, at http://www.js.xinhuanet.com/2014-10/24/c_1112962178.htm.
- 210.
Andrew Pulver, Taiwanese actor dropped from Chinese film after political outcry, The Guardian, July 15, 2016, https://www.theguardian.com/film/2016/jul/15/taiwanese-actor-dropped-china-no-other-love-independence#img-1; Lilian Lin, Taiwanese Actor Leon Dai Loses Part in Zhao Wei Film After Political Pressure in China, The Wall Street Journal, July 18, 2016, at https://blogs.wsj.com/chinarealtime/2016/07/18/taiwanese-actor-leon-dai-loses-part-in-zhao-wei-film-after-political-pressure-in-china/.
- 211.
Partick Frater, China Reportedly Bans Korean TV Content, Talent, Variety, August 4, 2016, http://variety.com/2016/biz/asia/china-confirms-ban-on-korean-content-talent-1201830391/.
- 212.
Film Industry Promotion Law, art. 9.
-
…Film professionals such as actors, actresses, and directors shall adhere to excelling in both ethics and arts, abide by the laws and regulations, respect social ethics, observe professional ethics, strengthen self-discipline, and develop good social images.
Id. art. 14.
-
Legal persons and other organizations may, with the approval of the film department of the State Council, cooperate with overseas organizations in shooting films; but they shall not cooperate with overseas organizations that engage in activities detrimental to China’s dignity, honor, and interests, jeopardizing China’s social stability, or hurting national sentiments in China, among others, nor hire individuals committing the aforesaid acts to participate in film shooting.
-
- 213.
Sui-Lee Wee, Sexy China TV Drama Busted, Returns to Air More Sedate, Reuters, Jan. 3, 2015, at http://www.reuters.com/article/2015/01/03/china-television-idUSL3N0UI04P20150103.
- 214.
Lilian Lin, Venus De Milo, Scarlett Johannson Get Cropped After Chinese Cleavage Ban, The Wall Street Journal, Jan. 5, 2015, at http://blogs.wsj.com/chinarealtime/2015/01/05/venus-de-milo-scarlett-johannson-get-photoshopped-after-chinese-cleavage-ban/.
- 215.
Wee, supra note 213.
- 216.
China’s international data bandwidth has expanded by a factor of 20 and more than 300 cities obtained high-speed connections to the network around 2000. See Eric Harwit & Duncan Clark, Shaping the Internet in China: Evolution of Political Control over Network Infrastructure and Content, 41 Asian Survey 377, 377 (2001).
- 217.
Bin Liang & Hong Lu, Internet Development, Censorship, and Cyber Crimes in China, 26 Journal of Contemporary Criminal Justice 103, 105 (2010).
- 218.
See Guowuyuan Guanyu Yinfa “Kuandai Zhongguo” Zhanlue Ji Shishi Fangan De Tongzhi (国务院关于印发“宽带中国”战略及实施方案的通知) [The Notice of State Council on the “Broadband China” Strategy and its Implement Plan], (promulgated by the St. Council, Aug. 1, 2013, Guofa No. 31); see also Jingting Shen, Faster broadband by 2015, China Daily, Aug. 18, 2013, at http://usa.chinadaily.com.cn/china/2013-08/18/content_16902042.htm.
- 219.
Statistical Report on Internet Development in China, China Internet Network Information Center, Jan. 2014, at http://www1.cnnic.cn/IDR/ReportDownloads/201404/U020140417607531610855.pdf.
- 220.
Hulianwang Xinxi Fuwu Guanli Banfa (互联网信息服务管理办法) [Administration Procedures of Internet Information Services] (promulgated by St. Council Decree No. 292, Sep. 25, 2000) art. 4, art. 7 (China), translated at World Intellectual Property Organization, WIPO Lex No. CN111, http://www.wipo.int/wipolex/en/text.jsp?file_id=182426.
- 221.
Id. art. 4.
- 222.
Id. art. 7–8.
- 223.
Id. art. 17.
- 224.
Id. art. 15.
- 225.
Id. art. 20, art. 25.
- 226.
Provisions on the Administration of Online Publishing Services, 2016, art. 7.
- 227.
Zhuanwang Ji Dingxiang Chuanbo Shiting Jiemu Fuwu Guanli Guiding (专网及定向传播视听节目服务管理规定) [Provisions on the Administration of Private Network and Targeted Communication Audiovisual Program Services] (promulgated by SARFT Decree No. 6, Apr. 25, 2016) art. 5 (China), translated at Lawinfochina, http://www.lawinfochina.com/display.aspx?id=22892&lib=law; Hulianwang Shiting Jiemu Fuwu Guanli Guiding (互联网视听节目服务管理规定) [Administrative Provisions on Internet Audiovisual Program Service] (SARFT and Ministry of Information Industry of the People’s Republic of China, Decree No. 56, Dec. 20, 2007), art. 11, translated at Lawinfochina, http://www.lawinfochina.com/display.aspx?lib=law&id=6582.
- 228.
Id. art. 7.
- 229.
Id. art. 10.
- 230.
Provisions on the Administration of Online Publishing Services, 2016, art. 10.
- 231.
Id. art. 8(1); Provisions on the Administration of Private Network and Targeted Communication Audiovisual Program Services, 2016, art 6(1).
- 232.
Measures for the Administration of the Publication of Audiovisual Programs through the Internet or Other Information Network, art. 7 (“No solely foreign-owned, Sino-foreign joint venture or Sino-foreign cooperative institution may undertake the business of publication of audiovisual programs through information network.”).
- 233.
Hulianwang Wenhua Guanli Zanxing Guiding (互联网文化管理暂行规定) [Interim Provisions on the Administration of Internet Culture] (promulgated by the Ministry of Culture Order No. 51, Feb. 17, 2011) (China), translated at Lawinfochina, http://www.lawinfochina.com/display.aspx?lib=law&id=8618&CGid= (hereinafter the 2011 Internet Culture Interim Provisions).
- 234.
Id. art. 2.
- 235.
Id. art. 3.
-
1.
The activities of producing, reproducing, importing, publishing or broadcasting Internet cultural products;
-
2.
The on-line acts of publishing cultural products on the Internet, or sending cultural products through the Internet, mobile communication network and other information networks to such terminals as computers, fixed telephones, mobile phones, TV sets, game players, etc. and Internet bars and other business places of Internet service for users' browse, appreciation, use or downloading; and
-
3.
The activities of exhibitions and competitions of Internet cultural products.
Internet cultural activities can be divided into two categories, namely, operational and non-operational. Operational Internet cultural activities refer to the profit-making activities of providing Internet cultural products and services by charging fees from Internet users or by electronic commerce, advertisement, financial supports, etc. Non-operational Internet cultural activities refer to the non-profit-making activities of providing Internet users with Internet cultural products and services.
-
1.
- 236.
Wenhuabu Guanyu Shishi Hulianwang Wenhua Guanli Zanxing Guiding Youguan Wenti de Tongzhi (文化部关于实施〈互联网文化管理暂行规定〉有关问题的通知) [Notice of the Ministry of Culture on Some Issues Relating to the Implementation of the “Interim Rules on the Management of Internet Culture”] (The Ministry of Culture, WSF[2003]27, Jul. 4, 2003) art. 2 (China) (“…application from foreign invested Internet information service providers to participate Internet cultural activities will not be accepted at the moment.”).
- 237.
Wenhuabu Guanyu Wangluo Yinyue Fazhan yu Guanli de Ruogan Yijian (文化部关于网络音乐发展与管理的若干意见) [Several Opinions of the Ministry of Culture on the Development and Management of Network Music] (The Ministry of Culture, WSF[2006]32, Dec. 11, 2006) art. 8 (China) (“The establishment of foreign capital invested Internet Cultural business unit is prohibited.”) (Hereinafter the 2006 Network Music Opinion).
- 238.
Wenhuabu Guanyu Shishi Xin Xiuding Hulianwang Wenhua Guanli Zanxing Guiding de Tongzhi (文化部关于实施新修订 〈互联网文化管理暂行规定〉 的通知) [Notice of the Ministry of Culture on the Implementation of the New Amended “Interim Rules on the Management of Internet Culture”] (The Ministry of Culture, WSF[2011]14, Mar. 21, 2011) art. 6 (China) (“…application from foreign invested Internet information service providers to participate in Internet cultural activities will not be accepted at the moment (except music).”) (hereinafter the 2011 Internet Culture Implementation Notice).
- 239.
Id. art. 14.
- 240.
2011 Interim Provisions on the Administration of Internet Culture, art. 9.
- 241.
Id. art. 15 (“The importing of Internet cultural products shall be conducted by commercial Internet cultural entities that have obtained Network Cultural Business Permits from cultural administrative departments…”).
- 242.
Hulianwang Wenhua Guanli Zanxing Guiding (互联网文化管理暂行规定) [Interim Provisions on the Administration of Internet Culture] (promulgated by the Ministry of Culture Order No. 27, May 10, 2003, repealed Feb. 17, 2011 by the Ministry of Culture Order No. 51) (China), translated at Lawinfochina, http://www.lawinfochina.com/display.aspx?lib=law&id=2801&CGid=.
- 243.
2011 Interim Provisions on the Administration of Internet Culture, art. 9 (“Whoever applies to establish a commercial Internet cultural entity… If the application is approved, a Network Cultural Business Permit shall be issued to the applicant…”).
- 244.
Administrative Provisions on Internet Audiovisual Program Service, Art. 9; Hulianwang Xinwen Xinxi Fuwu Guanli Guiding (互联网新闻信息服务管理规定) [Regulations on Administration of Internet News Information Services] (promulgated by St. Council Info. Office & Ministry of Indus. & Info. Tech. Decree No. 37, Sep. 25, 2005) art. 11 (China), translated at World Intellectual Property Organization, WIPO Lex No. CN345, http://www.wipo.int/wipolex/en/text.jsp?file_id=337976.
- 245.
Administrative Provisions on Internet Audiovisual Program Service, Art. 9.
- 246.
Id.
- 247.
Id. art. 17.
- 248.
See e.g., Provisions on the Administration of Online Publishing Services, 2016, art 24; see also Provisions on the Administration of Private Network and Targeted Communication Audiovisual Program Services, 2016, art 16; Administrative Provisions on Internet Audiovisual Program Service, art. 16; Measures for the Administration of Import of Audio and Video Recordings, art. 6; Regulations on Administration of Internet News Information Services, art. 19; 2011 Interim Provisions on the Administration of Internet Culture, art. 16.
- 249.
2011 Interim Provisions on the Administration of Internet Culture, art. 15 (“The importing of Internet cultural products shall be conducted by commercial Internet cultural entities that have obtained Network Cultural Business Permits from cultural administrative departments and such imports shall be reported to the Ministry of Culture for examination of the contents.”).
- 250.
See generally, Wangluo Wenhua Jingying Danwei Neirong Zishen Guanli Banfa (网络文化经营单位内容自审管理办法) [Administrative Measures for the Content Self-examination of Internet Culture Business Entities] (promulgated by No. 39 [2013] of the Ministry of Culture, Aug. 12, 2013) (China), translated at Lawinfochina, http://www.lawinfochina.com/display.aspx?id=15013&lib=law&searchkeyword=culture.
- 251.
Bree Feng & Shanshan Wang, China Orders 4 U.S. Shows Off Streaming Sites, N.Y. Times, Apr. 27, 2014, at http://www.nytimes.com/2014/04/28/business/international/china-orders-4-us-shows-off-streaming-sites.html?_r= (last visited Jun. 19, 2014).
- 252.
Shanshan Wang (王珊珊), Zhongguo Shipin Wangzhan yu Guangdian Zongju de Maoshu Youxi (中国视频网站与广电总局的“猫鼠游戏”) [The “cat and mouse game” between the Chinese online streaming service providers and SAPPRFT], Niuyue Shibao Guoji Shenghuo (纽约时报国际生活) [cn.tmagazine.com], Apr. 30, 2014, at http://cn.tmagazine.com/film-tv/20140430/tc30shows/.
- 253.
See Jie Wang, Looking to the Cosmos, Shanghai Daily, Feb. 21, 2014, at http://www.shanghaidaily.com/feature/Looking-to-the-cosmos/shdaily.shtml (…millions of Chinese are tuning in for the new episodes live on Iqiyi.com every Wednesday and Thursday at 8:30 pm even though most don’t speak Korean).
- 254.
Feng & Wang, supra note 251.
- 255.
Louise Watt, China Video Site: US TV Show Ban Not Policy Change, The Washington Times, Apr. 28, 2014, at http://www.washingtontimes.com/news/2014/apr/28/china-video-site-us-tv-show-ban-not-policy-change/.
- 256.
Foreign Television Program Import and Broadcast Management Regulations, art. 15 (“Foreign television programs that have not been through the SARFT or entrusted administrative radio and television department examination and approval procedure must not be imported or broadcast”).
- 257.
It is clearly stated in the related regulation that, all the TV plays and movies that were put online for streaming use should either have the License for Public Projection of Movies or Television Drama Distribution Permit. See Provisions on the Administration of Private Network and Targeted Communication Audiovisual Program Services, 2016, art 5; Administrative Provisions on Internet Audiovisual Program Service, 2008, art 7.
- 258.
Guojia Xinwen Chuban Guangdian Zong Ju Chongshen Wangshang Jingwai Yingshiju Guanli de Youguan guiding (国家新闻出版广电总局重申网上境外影视剧管理的有关规定) [SAPPRFT Reiterates Provisions concerning the Management of Online Foreign Television Dramas], SAPPRFT, Sep. 5, 2014, at http://www.sarft.gov.cn/articles/2014/09/05/20140904102409770812.html, translated in China Copyright and Media (Rogier Creemers trans., 2014), http://chinacopyrightandmedia.wordpress.com/2014/09/05/sapprft-reiterates-provisions-concerning-the-management-of-online-foreign-television-dramas/.
- 259.
Id.
- 260.
Winifred Fordham Metz, How TV Production Works, HowStuffWorks.com, Nov. 29, 2007, at http://electronics.howstuffworks.com/tv-production.htm.
- 261.
Dae-oh Kim, The Making of Korean Dramas: Tantalizing Flexibility Comes at a Cost, 25 Koreana 78, 78-9 (2011), at http://www.koreana.or.kr/months/news_view.asp?b_idx=1756&lang=en&page_type=list#k (described the flexible production model of Korean drama which could respond to audience’s feedback on the previous episode).
- 262.
Keyu Chen (陈柯羽), Jingwaiju Xianshenhoubo Xinzheng Yizai Shipin Wangzhan Bufen Shixing (境外剧先审后播新政已在视频网站部分施行) [The New “Censor First Broadcast After” Policy Is Now Implemented In Video Platforms], Chongqing Wanbao (重庆晚报) [Chongqing Evening News], Jan. 15, 2015, at http://www.cqwb.com.cn/cqwb/html/2015-01/15/content_423043.htm.
- 263.
Provisions on the Administration of Online Publishing Services, 2016, art 33; Provisions on the Administration of Private Network and Targeted Communication Audiovisual Program Services, 2016, art 19; Administrative Provisions on Internet Audiovisual Program Service, 2008, art. 18.
- 264.
Id.
- 265.
Paul Mozur, China Forces Four U.S. TV Shows Off Web ‘Big Bang Theory’ and ‘Good Wife’ are among Programs Taken Down, The Wall Street Journal, Apr. 28, 2014, at http://www.wsj.com/articles/SB10001424052702304163604579527683976216624.
- 266.
Paul Mozur & Laurie Burkitt, China Won’t Tune Out All U.S. TV Shows, Executive Says, The Wall Street Journal, Apr. 28, 2014, at http://blogs.wsj.com/chinarealtime/2014/04/28/china-wont-tune-out-all-u-s-tv-shows-executive-says/.
- 267.
Bing Sun (孙冰), Meiju Xiajia Guangdian Zongju Cheng Bu Jieshou Caifang: Bushi Suoyou Xinxi Ke Gongkai (美剧下架广电总局称不接受采访:不是所有信息可公开) [SAPPRFT Refused to Give Comments on the Taken Down U.S. Shows, Claimed that not all Information could Go Public], Renmin Wang (人民网) [People.com.cn], May 13, 2014, at http://media.people.com.cn/n/2014/0513/c14677-25010185.html.
- 268.
Wang, supra note 253.
- 269.
Id.
- 270.
Duobu Riman Weixian Guangdian Huojiang Jinbo Baokong Dongman (多部日漫危险!广电或将禁播暴恐动漫) [Many Japanese Anime Works are in Danger! SAPPRFT may Prohibit Anime Works with Violent and Horrific Elements from Online Streaming], Wang Yi 163 (网易 163) [NetEase], Mar. 31, 2015, at http://ent.163.com/15/0331/22/AM2MUUSN00031H2L.html (China).
- 271.
Guangdian Zongju Guanyu Jiaqiang Hulianwang Shiting Jiemu Neirong Guanli de Tongzhi (广电总局关于加强互联网视听节目内容管理的通知) [SARFT Notice Concerning Strengthening Internet Audiovisual Programme Content Management], SARFT, Mar. 3, 2009, art. 3, at http://www.sarft.gov.cn/articles/2009/03/30/20090330171107690049.html, translated at China Copyright and Media (Rogier Creemers trans., 2014), https://chinacopyrightandmedia.wordpress.com/2009/03/03/sarft-notice-concerning-strengthening-internet-audiovisual-programme-content-management-2/.
- 272.
Id. art. 2.
-
All Internet audiovisual program service work units must timely conduct editing or deletion of audiovisual program with the following circumstances:
-
(1)
those maliciously distorting Chinese culture, Chinese history and historical facts; those maliciously distorting other countries’ history, not respecting human culture, other countries’ culture and social customs and habits;
-
(2)
those with imagery deliberately denigrating or vilifying revolutionary leaders, heroic persons, important historical persons, Chinese and foreign famous books and important characters in famous books;
-
(3)
those with imagery maliciously denigrating the People’s Army, the Armed Police, Public Security and the judiciary, those having circumstances such as abusing prisoners, extracting confessions by torture from criminals or criminal suspects, etc.;
-
(4)
those with imagery and sounds displaying unlawful and criminal aggressiveness and arrogance, concretely revealing details of criminal activities, revealing special investigation methods, revealing informers and witnesses who should receive protection, etc;
-
(5)
those advocating religious extremism, provoking controversies and conflicts between all religions and religious denominations, and between religious believing masses and non-believing masses, harming the feelings of the masses;
-
(6)
those propagating feudal superstition activities such as physiognomy, fortune telling, geomancy practicing, divination practicing, healing by exorcise, etc.;
-
(7)
those with vile methods depicting calamity scenes such as major natural disasters, accidents, terrorizing incidents, wars, etc.;
-
(8)
those concretely showing circumstances such as promiscuity, rape, incest, necrophilia, prostitution, visiting prostitutes, sexual perversion, masturbation, etc.;
-
(9)
those displaying or obscurely displaying details such as sexual activities, sexual process, sexual methods and excessive bodily contact related to this, etc.;
-
(10)
those intentionally showing, or only using one’s body to cover, or using very little covering to cover human private parts;
-
(11)
those containing sexual suggestions, sexual provocations, etc., which easily cause people to make sexual associations;
-
(12)
those propagating unhealthy content such as extramarital affairs, group sex, one-night stands, sexual abuse and wife swapping;
-
(13)
those using adult movies, sexual movies, X-rated movies, voyeurism, indecent exposure, exhibitionism and all sorts of prevocational writing or images to function as audiovisual programme titles or classifications;
-
(14)
those having circumstances such as strongly stimulating murder, blood and gore, violence, suicide, abduction, drug use, gambling, occultism, etc.;
-
(15)
those having excessive scary and terrifying images, subtitles, background music and sound effects;
-
(16)
those concretely showing maltreatment and killing of animals, catching, killing and eating animals protected by the State;
-
(17)
those having content violating individual privacy;
-
(18)
those with an approving and praising tone or in a way that leads people to imitate, showing fights and brawls, humiliation of others, and filthy speech;
-
(19)
those propagating negative or decadent views of life, worldviews and value systems, sedulously playing up and magnifying ethnic ignorance and backwardness or the dark side of society;
-
(20)
audiovisual programs and films, television programs and deleted extracts of which the dissemination was prohibited by the State Administration of Radio, Film and Television;
-
(21)
those violating the spirit of relevant laws and regulations.
-
- 273.
Wang, supra note 253.
- 274.
Sarah Biddulph, et al., Rule of Law with Chinese Characteristics: The Role of Campaigns in Lawmaking, 34 Law & Pol’y 373, 373-74 (2012).
- 275.
“Guanyu Yanli Daji Feifa Chuban Huodong de Jinji Tongzhi” (关于严厉打击非法出版活动的紧急通知) [Emergency Notice Regarding Striking Hard Against Illegal Publishing Activities], promulgated by the National Publication Bureau, the State Administration of Industry and Commerce, and the Ministry of Public Security, CZZ no.165, Mar. 4, 1986, St. Council Gaz., 1986, no. 9, at 271–272 (China).
- 276.
Notice Regarding Striking Hard Against Illegal Publishing Activities, art. 1, State Council of China, Jul. 6, 1987, at http://www.people.com.cn/electric/flfg/d4/870706.html.
- 277.
“Guanyu Yifa Yancheng Feifa Chuban Fanzui Huodong de Tongzhi” (关于依法严惩非法出版犯罪活动的通知) [Notice Regarding Severely Punishing Illegal Publishing Criminal Activities According to Law], promulgated by the SPC and SPP, FYF no. 33, Nov. 27, 1987, Sup. People’s Ct. Gaz., 1987, no. 4, at 17 (China); “Guanyu Yanli Daji Feifa Chuban Fanzui Huodong de Tongzhi” (关于严厉打击非法出版犯罪活动的通知) [Notice Regarding Severely Punishing Illegal Publishing Criminal Activities], promulgated by the SPC and SPP, FYF no. 33, Nov. 27, 1991, Sup. People’s Ct. Gaz., no. 3, at 22 (China).
- 278.
Notice Regarding Resolutely Clamping Down on Illegal Publishing Activities (promulgated by the St. Council, Jan. 25, 1996) art. 1 (China).
- 279.
GAPP, SPC, SPP, MPS, Ministry of Radio, Film and Television, and SAIC, Summary of the Symposium on the Work of Punishing Illegal Publishing Criminal Activities, Renmin Wang (人民网) [People.com.cn], Mar. 8, 1988, at http://www.people.com.cn/electric/flfg/d4/880308.html.
- 280.
Andrew Mertha, The Politics of Piracy: Intellectual Property in Contemporary China 142 (Cornell University Press. 2005).
- 281.
Id.
- 282.
Id; See also Liang Shen (沈亮), “Tanmi Saohuang Dafei Ban” (探秘扫黄打非办) [Investigating the Saohuang Dafei Office], Nanfang Zhoumo (南方周末) [Southern Weekly], Jan. 21, 2010, at http://www.infzm.com/content/40655.
- 283.
Id; see generally Gary King, et al., How Censorship in China Allows Government Criticism but Silences Collective Expression, 107 American Political Science Review 326, 339 (2013).
- 284.
Priest, supra note 5 in Chap. 1, at 830.
- 285.
King, et al., supra note 283, at 339.
- 286.
Feng & Wang, supra note 251.
- 287.
Shen, supra note 282.
- 288.
This campaign was initiated by China’s National Saohuang Dafei Office, the National Internet Information Office, Ministry of Industry and Information Technology, and the Ministry of Public Security.
- 289.
16.44 Million Copies of Infringing and Illegal Publications Nationwide were Destroyed, National Saohuang Dafei Office, Apr. 20, 2015, at http://www.shdf.gov.cn/shdf/contents/767/249181.html.
- 290.
Id.
- 291.
Shen, supra note 282.
- 292.
See infra Sect. 4.3.1.3 China.
- 293.
Evan Osnos, “Prison Break” catches on in China, The Seattle Times, Jan. 25, 2007, at http://seattletimes.com/html/nationworld/2003540226_chinatv24.html.
- 294.
See infra Sect. 2.2.2.3 Unstoppable Trend of Online File Sharing.
- 295.
Id.
- 296.
It would make more sense if we take the WTO case DS362 into consideration as well.
- 297.
See Alford, supra note 5 in Chap. 1, at 24 (“the state’s emphasis clearly was focused far more on political order and stability than on issues of ownership and private interests.”), at 92 (“in the words of Vice Minister of Radio, Film and Television Wang Feng, it is ‘beneficial to… maintaining social stability.’”). See also Shannon Tiezzi, Xi Jinping Leads China’s New Internet Security Group, The Diplomat, Feb. 28, 2014, at http://thediplomat.com/2014/02/xi-jinping-leads-chinas-new-internet-security-group/ (“While in theory these campaigns are designed to eliminate slander and pornography, it’s hardly a secret that censors also remove information they believe might be harmful to China’s stability…”).
- 298.
The idea was first brought forward by Deng Xiaoping in Dec. 24, 1990, and “stability” was considered as the pre-requisite of socialist modernization thereafter. See Wending Yadao Yiqie (稳定压倒一切) [Stability is of overriding importance], Renmin Wang (人民网) [People.com.cn], at http://cpc.people.com.cn/GB/64162/64170/4467121.html; See also Zhengyi Wang, China Confronts Globalization: Conceptualizing Economic Security and Governance, in Globalisation and economic security in East Asia: governance and institutions 76 (Helen Sharmini Nesadurai ed. 2006); Ming Wan, Democracy and Human Rights in Chinese Foreign Policy: Motivation and Behavior, in China Rising: Power and Motivation in Chinese Foreign Policy 289 (Yong Deng & Fei-Ling Wang eds., 2005). For more detailed discussion on the notion of Stability, please see Duncan Freeman, Stability and Change: The EU, China and Preceptions of Stability, in Conceptual Gaps in China-EU Relations: Global Governance, Human Rights and Strategic Partnerships (Zhongqi Pan ed. 2012).
- 299.
See infra Chapter 3.1.5 Participatory Culture and Civic Engagement.
- 300.
See infra Chapter 3.1.3.1 Publications.
- 301.
1997 Regulation on the Administration of Publications, art. 42; 2011 Regulation on the Administration of Publications, art. 9.
- 302.
2011 Regulation on the Administration of Publications, art. 45.
- 303.
Id.
- 304.
Id.
- 305.
Id. art. 2.
- 306.
See e.g., Priest, supra note 5 in Chap. 1; Peter K. Yu, The Second Coming of Intellectual Property Rights in China, Occasional papers in intellectual property (2002).
- 307.
Michael Berry, Chinese Cinema with Hollywood Characteristics, or How the Karate Kid Became a Chinese Film, in The Oxford Handbook of Chinese Cinemas 181 (Carlos Rojas ed. 2013).
- 308.
Id; Sabrina McCutchan, Government Allocation of Import Quota Slots to US Films in China’s Cinematic Movie Market, 25 The Duke Journal of Economics, 12 (2013), at https://econ.duke.edu/uploads/media_items/sabrina-mccutchan-symposium.original.pdf.
- 309.
MPAA, Theatrical Market Statistics 2013, p.22, at http://www.mpaa.org/wp-content/uploads/2014/03/MPAA-Theatrical-Market-Statistics-2013_032514-v2.pdf.
- 310.
General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, The Legal Texts: The Results Of The Uruguay Round Of Multilateral Trade Negotiations 17 (1999), 1867 U.N.T.S. 187, 33 I.L.M. 1153 (1994) [hereinafter GATT 1994], art. IV:
-
If any contracting party establishes or maintains internal quantitative regulations relating to exposed cinematograph films, such regulations shall take the form of screen quotas which shall conform to the following requirements:
-
(a)
Screen quotas may require the exhibition of cinematograph films of national origin during a specified minimum proportion of the total screen time actually utilized, over a specified period of not less than one year, in the commercial exhibition of all films of whatever origin, and shall be computed on the basis of screen time per theatre per year or the equivalent thereof;
-
(b)
With the exception of screen time reserved for films of national origin under a screen quota, screen time including that released by administrative action from screen time reserved for films of national origin, shall not be allocated formally or in effect among sources of supply;
-
(c)
Notwithstanding the provisions of sub-paragraph (b) of this Article, any contracting party may maintain screen quotas conforming to the requirements of sub-paragraph (a) of this Article which reserve a minimum proportion of screen time for films of a specified origin other than that of the contracting party imposing such screen quotas; Provided that no such minimum proportion of screen time shall be increased above the level in effect on April 10, 1947;
-
(d)
Screen quotas shall be subject to negotiation for their limitation, liberalization or elimination.
-
- 311.
Panel Report, China–Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R (Aug. 12, 2009).
- 312.
See generally, Zhongwai Hezuo Shezhi Dianyingpian Guanli Guiding (中外合作摄制电影片管理规定) [Measures for the Administration of Chinese-Foreign Cooperative Film Production] (promulgated by SARFT Decree No. 31, Aug. 6, 2004) (China), translated at Lawinfochina, http://www.lawinfochina.com/display.aspx?lib=law&id=3647&CGid=.
- 313.
George Szalai & Clarence Tsui, U.K.’s Pinewood Shepperton, China’s Seven Stars Ink Joint Venture Deal, The Hollywood Reporter, Apr. 17, 2013, at http://www.hollywoodreporter.com/news/pinewood-shepperton-chinas-seven-stars-440687 (“Chinese co-productions have long been an alluring proposition to Hollywood studios, as they are classified as domestic Chinese productions, rather than foreign imports, meaning they aren’t included under the country's strict import quota…”).
- 314.
Foreign Television Program Import and Broadcast Management Regulations, art. 2.
- 315.
Id. art. 3.
- 316.
Id. art. 11.
- 317.
Id. art. 13.
- 318.
Id.
- 319.
Id. art. 16.
- 320.
For the censorship criteria, see id. art. 15.
- 321.
Id. art. 18 (“Foreign film and television dramas broadcast by television stations, shall indicate the distribution permit number in the titles. All foreign film and television dramas broadcast every day by television channels, may not exceed 25 per cent of the total film and television drama broadcast time of the said channel on that day; other foreign television programs broadcast every day, may not exceed 15 per cent of the total broadcast time of the said channel on that day. Without SARFT approval, no foreign film and television dramas may be broadcast during the golden hours (19:00–22:00).”).
- 322.
Guanyu Fazhan Woguo Yingshi Donghua Chanye De Ruogan Yijian (关于发展我国影视动画产业的若干意见) [Several Opinions of the Development of China’s Animation Industry) (promulgated by the St. Admin. Radio, Film & Television, Apr. 20, 2004) art. 21, http://www.sarft.gov.cn/articles/2007/02/27/20070914165147430508.html (China).
- 323.
TOEI Animation Co., Presentation for The Third Quarter Period of FY Ending March 2011 (April 2010—December 2010 at 6-2, http://corp.toei-anim.co.jp/pdf/201103_3Q_presen_e.pdf)(noting that in China, the “import of TV license is limited”).
- 324.
Press Release, Guojia Guangbo Dianshi Zong Ju (国家广播电视总局) [St. Admin. Radio, Film & Television], Guangdianzongju Jiang Tuidong Yingshi Donghua Chanye Fazhan (广电总局将推动影视动画产业发展) [SARFT Will Promote the Development of the Animation Industry], Mar. 5, 2008, http://www.chinasarft.gov.cn/articles/2008/03/05/20080305142134390111.html (last visited Nov. 23, 2012).
- 325.
See Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities.
- 326.
Zhongwai Hezuo Zhizuo Dianshiju Guanli Guiding (中外合作制作电视剧管理规定) [Provisions on the Administration of Sino-foreign Cooperation in the Production of TV Plays] (promulgated by SARFT Decree No. 41, Sep. 21, 2004) art. 18 (China), translated at Lawinfochina, http://www.lawinfochina.com/display.aspx?lib=law&id=3757&EncodingName=gb2312.
- 327.
Provisions on the Administration of Private Network and Targeted Communication Audiovisual Program Services, 2016, art. 5; Administrative Provisions on Internet Audiovisual Program Service, 2008, art. 7.
- 328.
Hui Lu, China Demands Licenses for Overseas Series Streaming, Xinhua News, Sep. 5, 2014, at http://news.xinhuanet.com/english/china/2014-09/05/c_133624057.htm.
- 329.
Xiang Bu (卜祥), Yinjin Ju Shenhe Shengsi Jue (引进剧审核生死决) [Imported Foreign Dramas’ Last Fight with Censorship], Caijing Tianxia Zhoukan (财经天下周刊) [Economic Weekly], Oct. 6, 2014, no. 67, at 22.
- 330.
Yu Zhou (周豫), Guochan Yingshi Ju Heshi Paichu Xingni Zhipaiwu (国产影视剧何时拍出 《星你》 《纸牌屋》?) [When Can Our Own Industry Produce Something Equal to “My Love from Another Star” and “House of Cards”?], Nanfang Ribao (南方日报) [Nanfang Daily], Mar. 12, 2014, A08, at http://epaper.southcn.com/nfdaily/html/2014-03/12/content_7281719.htm.
- 331.
SAPPRFT Reiterates Provisions concerning the Management of Online Foreign Television Dramas, SAPPRFT, Sep. 5, 2014, at http://www.sarft.gov.cn/articles/2014/09/05/20140904102409770812.html.
- 332.
Ling Jun (聆君), Jingwaiju Eryue Shiri Qian Xu Dengji Bude Chao Guochanju Baifenzhi Sanshi (境外剧2月10日前须登记 不得超国产剧30%)[Foreign dramas must Register Before Feburary 10th and the Quota Shall be Limited to Local Production’s 30%], Xin Lang (新浪) [Sina.com], Jan. 21, 2015, at http://ent.sina.com.cn/v/u/2015-01-21/doc-icczmvun5286071.shtml (reporting that a leaked notice from SAPPRFT provides that, the annual amount of video platforms for online broadcasting of foreign audiovisual works is limited to 30% of its broadcast plans for local production after 2015).
- 333.
Howard Rheingold, Using Participatory Media and Public Voice to Encourage Civic Engagement, in Civic life online: Learning how digital media can engage youth 100 (W. Lance Bennett ed. 2008).
- 334.
Henry Jenkins, Confronting the Challenges of Participatory Culture: Media Education for the 21st Century 5-6 (The MIT Press. 2009); Or read/write culture as Lawrence Lessig advocates, in which the consumers are not just consuming content but also, using it to create. See Lessig, supra note 39 in Chap. 1, at 28; See also Anderson, supra note 35 in Chap. 1, at 63 (noted that “we’re starting to shift from being passive consumers to active producers”).
- 335.
Mirko Tobias Schäfer, Bastard culture!: how User Participation Transforms Cultural Production 51-53 (Amsterdam University Press. 2011).
- 336.
Leslie A. Gordon, Conference to Highlight Copyright Law’s “Creaky Aspects”, UC Berkeley School of Law News Archive, Mar. 25, 2014, at http://www.law.berkeley.edu/16932.htm (“the Copyright Act is also widely considered too long, too complicated, and too difficult to understand.”).
- 337.
Leanne Stendell, Fanfic and Fan Fact: How Current Copyright Law Ignores the Reality of Copyright Owner and Consumer Interests in Fan Fiction, 58 S.M.U. L. Rev. 1551, 1580–81 (2005) (“It makes little sense to attack one’s most devoted fans…if there is no need to do so when fan fiction is not damaging the copyright holder financially, and if failure to act is of no consequence legally.”). See also Koulikov, supra note 5 in Chap. 2 (“…predictably, the result has been public resistance, including criticism of the company’s own business practices.”).
- 338.
Jenkins, supra note 2 in Chap. 1, at 18–9.
- 339.
Id.
- 340.
Id. at 24–5.
- 341.
Id. at 27.
- 342.
Id.
- 343.
Reno v. ACLU, 521 U.S. 844, 870 (1997).
- 344.
See infra Chapter 2.1.1.1 Motivations.
- 345.
Thomas Ehrlich, Preface, in Civic Responsibility and Higher Education vi (Thomas Ehrlich ed. 2000).
- 346.
- 347.
Id (“bona fide citizenship is practised as much through everyday life, leisure, critical consumption and popular entertainment as it is through debate and engagement with capital ‘P’ politics.”).
- 348.
Lindsay Pettingill, Engagement 2.0? How the New Digital Media can Invigorate Civic Engagement, Goodwork Project Paper Series, Sep. 2007, at https://www.thegoodproject.org/pdf/50-Engagement-2.0.pdf, at 9.
- 349.
Mark Deuze, Participation, Remediation, Bricolage: Considering Principal Components of a Digital Culture, 22 The Information Society 63, 63 (2006).
- 350.
Burgess, et al., supra note 29 in Chap. 1.
- 351.
Rheingold, supra note 333, at 100 (“Many-to-many media now make it possible for every person connected to the network to broadcast as well as receive text, images, audio, video, software, data, discussions, transactions, computations, tags, or links to and from every other person. The asymmetry between broadcaster and audience that was dictated by the structure of pre-digital technologies has changed radically. This is a technical–structural characteristic; Participatory media are social media whose value and power derives from the active participation of many people. Value derives not just from the size of the audience, but also from their power to link to each other, to form a public as well as a market. This is a psychological and social characteristic; Social networks, when amplified by information and communication networks, enable broader, faster, and lower cost coordination of activities. This is an economic and political characteristic.”).
- 352.
See generally Burgess, et al., supra note 29 in Chap. 1; See also Rheingold, supra note 333; Liesbet Van Zoonen, Imagining the Fan Democracy, 19 European Journal of Communication 39(2004).; See Pettingill, supra note 348.
- 353.
For a case study on using Weibo (the Chinese version of Twitter) for civic engagement, see Yan Wang, Civic Engagement and Motivation Factors of Participants in SNAPSHOT, an Online Anti-Human Trafficking Initiative in China, Center for Public Policy Administration Capstones. Paper 1, at http://scholarworks.umass.edu/cgi/viewcontent.cgi?article=1015&context=cppa_capstones; See also Luyue Ma, A Comparative Analysis of Weibo and Xinhua in Framing Chinese Civic Engagement (May. 2013) (unpublished M.A. thesis, Bowling Green State University), at https://etd.ohiolink.edu/rws_etd/document/get/bgsu1363569701/inline; Michael Chan, et al., Microblogging, Online Expression, and Political Efficacy Among Young Chinese Citizens: the Moderating Role of Information and Entertainment Needs in the Use of Weibo, 15 Cyberpsychology, Behavior, and Social Networking 345, 345 (2012). Wenhong Chen, Taking Stock, Moving Forward: the Internet, Social Networks and Civic Engagement in Chinese Societies, 17 Information, Communication & Society 1 (2014).
- 354.
Flickr is an online photo management and sharing application. About Flickr, https://www.flickr.com/about/.
- 355.
See generally, Henry Jenkins, From Participatatory Culture to Participatory Democracy (Part Two), Mar. 6, 2007, at http://henryjenkins.org/2007/03/from_participatatory_culture_t_1.html.
- 356.
See Balkin, supra note 15 in Chap. 1, at 5 (“Even when people repeat what others have said, their reiteration often carries an alteration in meaning or context.”). See Rebecca Tushnet, Copy this Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535, 562–86 (2004).
- 357.
See Pamela Samuelson, The Copyright Principles Project: Directions for Reform, 25 Berkeley Tech. LJ 1175, 1230 (2010) (“…members of the public often express themselves through personal uses of copyrighted works-some of which may be transformative in nature and some non-transformative-and copyright law should respect user self-expression as well as the interests of authors in protecting their works.”).
- 358.
Malla Pollack, What is Congress Supposed to Promote? Defining “Progress” in Article I, Sect. 8, Clause 8 of the United States Constitution, or Introducing the Progress Clause, 80 Neb. L. Rev. 754, 785 (2001).
- 359.
See supra Chapter 3.1.1 Chinese Political Culture.
- 360.
See e.g., Hennessey, supra note 6 in Chap. 1, at 627–28 (“…modern “Chinese culture” must adamantly resist and avoid “Western influences” (especially so-called “Western” liberal democratic influences) in the process because the current globalization game is stacked against China.”). See also CNN Wire Staff, China Sees Culture as a Crucial Battleground, CNN, Jan. 5, 2012, at http://www.cnn.com/2012/01/05/world/asia/china-western-culture/index.html.
- 361.
Neil Weinstock Netanel, Asserting Copyright’s Democratic Principles in the Global Arena, 51 Vand. L. Rev. 217, 329 (1998).
- 362.
Bingxuan Ji (吉炳轩), Changxiang Zhu Xuanlv Duochu Jinping Ju (唱响主旋律多出精品剧—吉炳轩同志在2000年电视剧题材规划会上的讲话要点) [Proclaim the mainstream melody, produce more quality dramas, comrade Ji Bingxuan’s speech to the 2000 Television Drama Topic Advisory Meeting], Zhongguo Dianshi (中国电视) [Chinese Television], no. 7, 2000, 4.
- 363.
Id. at 9.
- 364.
As Alford indicated, “the first measure he would advise a ruler to institute on assuming power… it involved the expectation that current rulers would carry out their responsibilities in a manner consistent with the moral standards set by their most worthy predecessors”, and “rulers failing to discharge their responsibilities in keeping with such standards… might lose the Mandate and, with it, their claim to rule.” Alford, supra note 5 in Chap. 1, at 21.
- 365.
According to Steven Kan, “[d]efamation of the throne in the form of political criticism became a serious threat to emperors in China after significant innovations were made in paper-making and printing technologies because printing allowed faster and wider dissemination of criticism of an emperor’s policies and extravagant conduct in the palace”, and “[b]oth the gruesome secret service of Ming Dynasty and literary inquisition in [Q]ing Dynasty are notorious in Chinese history because intellectuals were ostracized and many people were killed.” Steven S. Kan, Corporal Punishments and Optimal Incapacitation, 25 J. Legal Stud. 121, 124 (1996).
- 366.
Frederick W. Mote, Imperial China, 900–1800 864–65 (Harvard University Press. 2003); See also Lawrence D. Kessler, Chinese Scholars and the Early Manchu State, 31 Harv. J. Asiat. Stud. 179, 182–83 (1971).
- 367.
Joanna Waley-Cohen, Collective Responsibility in Qing Criminal Law, in The Limits of The Rule of Law in China 120 (Karen Turner-Gottschang, et al. eds., 2000).
- 368.
Id. See also Guy, supra note 24, at 158 (provided a detailed examination of the censorship movement of the late Qing, Qian Long era, and showed that the censorship regarding publication at that time is sporadic, not systematic.).
- 369.
Frederick W. Mote, The Cosmological Gulf Between China and the West, in Transition And Permanence: Chinese History And Culture 7 (David C. Buxbaum & Frederick W. Mote eds., 1972).
- 370.
Yu, supra note 117, at 250.
- 371.
Charles R. Stone, Comment, What Plagiarism Was Not: Some Preliminary Observations on Classical Chinese Attitudes Toward What the West Calls Intellectual Property, 92 Marq. L. Rev. 199, 202-03 (2008) ( “[w]hen traditional Chinese authors borrow from a pre-existing text, and especially from a classic, the reader is expected to recognize the source of the borrowed material instantly…If a reader is unfortunate enough to fail to recognize such quoted material, it is his fault, not the author’s.”).
- 372.
Hong Yin, Meaning, Production, Consumption: The History and Reality of Television Drama in China, in Media in China: Consumption, Content and Crisis 35 (Stephanie Hemelryk Donald et al. eds., 2002) (“Using the past to mirror the present, and drawing upon the past to satirize the present are complementary historiographical traditions in China.”); It was decried as being a “historiography by political inference” (影射史学) during the cultural revolution period. See Geremie R. Barme, Red allure and the crimson blindfold, China Perspectives 29, 33 (2012).
- 373.
Hai Rui was regarded by many with “almost religious feeling as a saviour of the people and dispenser of justice.” See Tom Fisher, ‘The Play’s the Thing’: Wu Han and Hai Rui Revisited, in Using the Past to Serve the Present: Historiography and Politics In Contemporary China 23, 29 (Jonathan Unger ed. 1993).
- 374.
Zedong Mao, Talks at the Hangzhou Conference on 21 December, in Mao Tse-tung Unrehearsed 238 (S. Schram ed. 1974) (“…in 1959 we dismissed Peng Dehuai from office. And Peng Dehuai is Hai Rui too”).
- 375.
Fisher, supra note 373, at 11.
- 376.
Yin, supra note 372, at 35.
- 377.
Through the Wormhole is an American science documentary television series that is narrated by Morgan Freeman (Science channel broadcast Jun. 9, 2010).
- 378.
This translation was captured and posted in the page of Through the Wormhole in an IMDB-linked Chinese site called Douban (豆瓣) as an interesting case of fan translation, at http://movie.douban.com/photos/photo/1577134342/.
- 379.
Chan, et al., supra note 354, at 345 (“In a one-party state, Chinese citizens have few opportunities to formally influence the government. Therefore, online discussion is one of the very few outlets available for citizens to express opinions about government and politics.”).
- 380.
Weibo is a Chinese microblog website similar to Twitter run by Sina Cooperation. Renren is a Chinese social network similar to Facebook run by Beijing Thousand Oaks Internet Technology Development Co., Ltd., both of them are widely used in China.
- 381.
Prof. Weifang He from Beijing University indicated that, by writing and publishing in blog form one could enjoy a wider degree of freedom, compared with traditional media. See Weifang He (贺卫方), Blog Writing and Other, in Xiaoyaofawai (逍遥法外) [At Large] 112 (2009).
- 382.
Qi Gao, et al., A Comparative Study of Users’ Microblogging Behavior on Sina Weibo and Twitter, in User modeling, adaptation, and personalization: 20th International Conference, UMAP 2012, Montreal, Canada, July 16–20, 2012. Proceedings 96 (Judith Masthoff, et al. eds., 2012) (“… users on Sina Weibo avoid talking about organizations such as political parties or other institutions.”). “Twitter users… seem to have… a higher demand to profile themselves in the public discussions…”. Id. at 100.
- 383.
Chan, et al., supra note 353, at 345.
- 384.
Id. at 345 (“…its decentralized structure poses a serious challenge to the central government by circumventing centralized information control and censorship.”). Chen, supra note 353, at 1 (“The prevalent political control and aggressive commercialization notwithstanding, a vast, ephemeral, online communicative space has been formed where users comment and discuss public and private affairs, greatly enhancing the individualization of civic engagement while making censorship difficult.”).
- 385.
“River crab” is an understated play on the characters for “harmonious”, they share “similar sounding albeit entirely different characters to take the place of banned words.” See Seth Wiener, Grass-mud Horses to Victory: The Phonological Constraints of Subversive Puns, in Proceedings of the 23rd North American Conference on Chinese Linguistics 158 (Zhuo Jing-Schmidt ed. 2011).
- 386.
Guangdian Zongju Guanyu Guangbo Dianshi Jiemu he Guanggao Zhong Guifan Shiyong Guojia Tongyong Yuyan Wenzi de Tongzhi (广电总局关于广播电视节目和广告中规范使用国家通用语言文字的通知) [SARFT Notice concerning the Standardized Use of the National Common Spoken and Written Language in Radio and Television Programs and Advertising”], SARFT, Nov. 27, 2014, at http://www.sarft.gov.cn/articles/2014/11/27/20141127143826180126.html, translated at China Copyright and Media (Rogier Creemers trans., 2014), https://chinacopyrightandmedia.wordpress.com/2014/11/27/notice-concerning-the-standardized-use-of-the-national-common-spoken-and-written-language-in-radio-and-television-programmes-and-advertising/.
- 387.
Id.
- 388.
Burgess, et al., supra note 29 in Chap. 1.
- 389.
Rogoyski & Basin, supra note 6 in Chap. 1, at 239.
- 390.
Lessig, supra note 12 in Chap. 1, at 3; Id. at 236 (stated that “features and consequences of the Internet protocol make it difficult to control speech in cyberspace”).
- 391.
King, et al., supra note 283, at 339.
- 392.
Li Zhao (赵力), Renren Yingshi Yongjiu Guanbi Beihou de Gushi (人人影视永久关闭背后的故事) [The Story Behind the Shut Down of the YYeTs], Xin Jing Bao (新京报) [The Beijing News], Dec. 21, 2014, available at http://help.3g.163.com/14/1221/09/ADVSD28A00963VRO.html.
- 393.
MPAA, Re: Request for public comment on the 2014 Special 301 Out of Cycle Review of Notorious Markets, Docket No. USTR-2014-0017, MPAA, Oct. 24, 2014, at http://www.mpaa.org/wp-content/uploads/2014/10/MPAA-Filing-to-USTR-on-Worlds-Most-Notorious-Markets.pdf.
- 394.
Lilian Lin, As China Cracks Down on Illegal Videos, Lovers of Foreign TV Mourn, The Wall Street Journal, Nov. 25, 2014, at http://blogs.wsj.com/chinarealtime/2014/11/25/as-china-cracks-down-on-illegal-videos-foreign-tv-lovers-mourn/.
- 395.
Examples including Sub.makedie.me and Subom.net.
- 396.
Anderson, supra note 35 in Chap. 1, at 24.
- 397.
Dan Kanemitsu, Analysizing [sic] the State of the Anime and Manga Industry in 2012, Dan Kanemitsu’s Paper Trail, Mar. 19, 2012, at http://dankanemitsu.wordpress.com/2012/03/19/analysizing-the-state-of-the-anime-and-manga-industry-in-2012/.
- 398.
See Mark I. West, The Japanification of Children’s Popular Culture: from Godzilla to Miyazaki 123-24 (Scarecrow Press. 2009) (“…anime fan subculture’s worth as being “normal” is derived only from its similarities to mainstream culture…However…there is no room for social acceptance of those who actually do fit the stereotype of the socially maladjusted fan.”).
- 399.
See e.g., Priest, supra note 5 in Chap. 1, at 821–29 (noted that endemic problems such as local protectionism are standing in the way of protecting copyright against unauthorized distributions); Wu, supra note 42 in Chap. 1, at 628 (explained the problem of transaction costs); Michael Geist, The Truth About Pirates and Profits: A Market Failure, Not Legal One, Michael Geist Personal Home Page, Mar. 22, 2011, http://www.michaelgeist.ca/2011/03/ssrc-piracy-report-column-post/ (summarized that in many developing countries, “piracy is primarily a function of market failure”.).
- 400.
Daniels, supra note 25 in Chap. 1, at 718–26.
- 401.
For example, it is believed that the primary motivation for fansubbing is fandom. See e.g., Tiffany Lee, Fan Activities from P2P File Sharing to Fansubs and Fan Fiction: Motivations, Policy Concerns, and Recommendations, 14 Tex. Rev. Ent. & Sports L. 181, 194 (2013) (“…motivations for sharing anime illegally among non-Japanese are… to promote the anime industry.”); Leonard, supra note 28 in Chap. 1, at 221 (“The Kiotsukete member pointed out that the prevailing motivation was to interest more people in anime.”). However, as digisubs arose and fansubbing became an international phenomenon, it is noted that at least for fansubbers of U.S. TV shows in China, their motivation varies. See Peng Qiu, Audience Activity in the New Media Era: Chinese Fansubs of U.S. TV Shows (Dec. 2010) (unpublished M.A. thesis, University of Florida), 42–47. http://ufdcimages.uflib.ufl.edu/UF/E0/04/26/11/00001/qiu_p.pdf.
- 402.
N. Gregory Mankiw, Principles of Macroeconomics 462 (CENTGAGE Learning Seventh Edition. ed. 2014).
- 403.
Id. at 464.
- 404.
See Kevin Maney, If Pirating Grows, It May Not Be the End of Music World, USA Today, May. 3, 2005, at http://usatoday30.usatoday.com/tech/columnist/kevinmaney/2005-05-03-music-piracy-china_x.htm.
- 405.
See Jie Zou (邹捷) & Jianzhang Yuan (袁建彰), Zimuzu Laodong Guoshi Bei Daoban Shang Qiequ (字幕组劳动果实被盗版商窃取) [Fansub Groups’ Fruit of Labour are being Stolen by Commercial Pirates], Xinxishibao (信息时报) [Information Times], Dec. 11, 2009, at http://tech.sina.com.cn/i/2009-12-11/09183669753_2.shtml (China).
- 406.
Fisher, supra note 23 in Chap. 1, at 1443.
- 407.
See Lisa N. Takeyama, Piracy, Asymmetric Information and Product Quality, in The Economics of Copyright: Developments in Research and Analysis 62 (Wendy J. Gordon et al. eds, 2003).
- 408.
Mankiw, supra note 402, at 216.
- 409.
Landes & Posner, supra note 34 in Chap. 1, at 14.
- 410.
Some have claimed that they are club goods or impure public goods. See generally James M. Buchanan, An Economic Theory of Clubs, 32 Economica 1 (1965). See also Christopher S. Yoo, Copyright and Public Good Economics: A Misunderstood Relation, 155 U. Pa L. Rev. 635 (2007). But see Landes & Posner, supra note 34 in Chap. 1, at 172 (indicated that copyrighted work is “a classic public good”.).
- 411.
Francis Raven, Copyright and Public Goods: An Argument for Thin Copyright Protection, 8 M/C Journal (2005), at http://journal.media-culture.org.au/0507/06-raven.php.
- 412.
Yoo, supra note 410, at 645 (noting that legal remedies were provided to keep the works excludable to some extent).
- 413.
Id.
- 414.
Li, supra note 31, at 180.
- 415.
Joseph P. Liu, Copyright Law’s Theory of the Consumer, 44 B.C. L. Rev. 397, 417 (2003).
- 416.
Aimster Copyright Litigation, 334 F.3d 643, 645 (7th Cir. 2003), cert. denied, 540 U.S. 1107 (2004).
- 417.
Even economical analysis is supportive of that view. See Wu, supra note 42 in Chap. 1, at 628.
- 418.
Mark A. Lemley & R. Anthony Reese, Reducing Digital Copyright Infringement without Restricting Innovation, 56 Stan. L. Rev. 1345, 1346 (2004) (“Copyright owners tend not to sue those who trade software, video, or music files over the Internet. Indeed, such claims are so rare that the Recording Industry Association of America’s (RIAA) recent suits against some actual infringers on peer-to-peer (p2p) networks sent shock waves through the legal community.”).
- 419.
Wu, supra note 42 in Chap. 1, at 630.
- 420.
See Samuelson, supra note 357, at 1230 (“…it is generally infeasible to regulate personal uses of copyrighted works because it would be difficult and costly to enforce copyrights in spaces where personal uses take place.”).
- 421.
Lee, supra note 16 in Chap. 1, at 1486.
- 422.
Karsten Strauss, TV and Film Piracy: Threatening an Industry?, Forbes, Mar. 6, 2013, at http://www.forbes.com/sites/karstenstrauss/2013/03/06/tv-and-film-piracy-threatening-an-industry/ (“…it does seem fair to assume that not every pirated copy of an audiovisual work represents lost revenue to the content producer.”).
- 423.
Oberholzer-Gee & Strumpf, supra note 34 in Chap. 1, at 19–55.
- 424.
Online Copyright Infringement Tracker Benchmark Study Q3 2012, Ofcom, Nov. 20, 2012, at http://stakeholders.ofcom.org.uk/market-data-research/other/telecoms-research/copyright-infringement-tracker/.
- 425.
Arthur S. De Vany & W. David Walls, Estimating the Effects of Movie Piracy on Box-Office Revenue, 30 Review of Industrial Organization 291 (2007); See also Rich & Stone, supra note 127 in Chap. 2 (“Joel Waldfogel…said, piracy tends to displace paid consumption. “The real cost of consuming a movie is the 2 h of undivided attention you spend,” Mr. Waldfogel said. “If people are able to steal a bunch more, they will purchase less, simply because there isn’t time to do all of it.””).
- 426.
Japan External Trade Org., Japan Animation Industry Trends, Japan Econ. Monthly, Jun. 2005, at 2, http://www.jetro.go.jp/en/reports/market/pdf/2005_35_r.pdf (“…the extreme shortage of personnel well-versed in international legal affairs related to intellectual property rights has resulted in low profitability for Japanese anime overseas. When video software is sold in the U.S., for example, the distributor generally provides a minimum guarantee and also makes payments if sales exceeded the minimum. Japanese anime rights owners need people who can negotiate with U.S. counterparts on equal terms, and also audit sales performance, to ensure equitable, profitable arrangements in overseas markets”).
- 427.
Leonard, supra note 12 in Chap. 2, at 287.
- 428.
See Ellen Wolff, Foreign Toonmakers Eye U.S. Market: Language, Marketing Costs Make America a Tough Nut to Crack, Variety, June 5, 2011, http://www.variety.com/article/VR1118037712 (“The challenge, he says, is marketing: “Family films are the most expensive to market. You can’t get away with $10–15 million in P&A. You need to be in the $25–$30 million range to have a chance.””).
- 429.
Lee, supra note 16 in Chap. 1, at 1500–01.
- 430.
Simon Mundy, North Korea: Glimmer of Hope, Financial Times, Mar. 11, 2014, at http://www.ft.com/intl/cms/s/2/f3a5c48c-a94a-11e3-9b71-00144feab7de.html#axzz2wPJefHUi.
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He, T. (2017). Fight with the Dragon. In: Copyright and Fan Productivity in China. Springer, Singapore. https://doi.org/10.1007/978-981-10-6508-8_3
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