The release of the latest amendments to
Law(中华人民共和国著作权法) has created debate in the past
month. Musicians and
producers criticised the changes for encouraging piracy and
depriving copyright owners of revenue.
The National Copyright Administration
(NCA) announced last week that it has received 1,560 comments
so far, as reported in the
China Daily. Most of them concern statutory
licensing, collective management of copyright, network service
provider obligations and compensation awards.
But in the face of mounting criticism,
Ma Xiaogang of the China Copyright Association has strongly
defended the proposed changes in an interview with China Law
"It actually makes it easier and faster
for original owners to popularise their songs and is in their
interest," he said. "The conflict is about the interests of
recording companies who may lose the monopoly to use the songs
after three months," he added.
Article 46 has been most controversial.
This states that any record producer may use someone
else’s musical work without having to obtain
consent from the owner, provided the content has been published
for more than three months.
Under Article 48, the royalties for
this use will be collected within one month through collective
copyright management organisations who will transfer payment to
the copyright owner. The user is not liable as long as they
submit usage fees to these organisations. This holds true
regardless of whether the owner is a member of the
organisation, according to Articles 60 and 70.
Singer and songwriter Gao Xiaosong
expressed grave concern on his Sina micro blog. "Songwriters will feel very hurt and
become less motivated to write songs." He said that it is
difficult to popularise a new song within three months and
allowing others to reuse the song in such a short time is
"The only positive by
product of this amendment allows Chinese parties to record and
distribute a new Lady Gaga album after it has been on the
market for three months," he wrote.
BeijingDazeblog said: "Essentially, after three
months, artists would lose control over their work…
They’re used to having covers of their songs but
there were means to stop unfair use! Now, they legally have no
right to say NO. "
However, Ma Xiaogang, managing director
of China Copyright Association, who is also a member of the
expert panel looking at the Copyright Law amendments, said that
the criticism is due to a lack of understanding of the Law and
the ambiguity of the concept of copyright owners.
Ma said that there are distinctions
between the original author and record companies. In many
instances, it is virtually impossible for a user of sound
recordings to pay royalties, as it is hard to locate musicians
who are not well known.
In contrast, well-known singers who
have the resources to enforce their copyright may be at a
disadvantage. However, this way of enforcement, Ma argues,
prevents the dissemination of musical products. He argues that
if a three-month limit is too short, the existing Law did not
lay down any time limits. In practice, this means that songs
can at present be reused immediately after
Ma suggested that clarifying the law
might be preferable to imposing an arbitrary limit. In his
opinion submitted to the amendment committee, he proposed that
original owners and recording companies could agree on a
specific time limit. "The two parties could make a formal
declaration for the agreed time limit and file a record at the
NCA," he said.
His view echoes that of Meng Hai,
director of the rights protection department at Shenzhen
Copyright Association, who also points out the issue of
supervising collective copyright management organisations and
the pricing mechanisms.
"Some think that the pricing system
should be based on market economy and supervised by copyright
administration departments, but statutory licensing needs an
authoritative standard. It will otherwise become very
complicated if disputes over payments arise," said
There are five collective copyright
management organisations across five industry sectors in the
country – a system similar to that established in
other countries. However, the concern, according to Ma, lies
not with the system itself, but with operation and management
of these organisations. In particular, he highlights the misuse
of power in enforcing copyright on behalf of original
By Janice Qu
PRC Copyright Law (中华人民共和国著作权法)
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