Copyright Law of China

AuthorDonna Suchy
Pages151-245
151
CHAPTER 2
Copyright Law of China
Xianjin Tian, Fuxiao Jiang, Katherine C. Spelman,
Daniel Gervais, Mark H. Wittow, and Trevor M. Gates
A. Introduction
1. Copyright in Ancient China?
Concerns over unauthorized copying in China can be traced back to the
Han Dynasty (206 B.C.−A.D. 220), when paper was first made and the
reproduction of the book took the form of time-consuming transcription.1
Reliable historical records show that woodblock printing already existed
during the Tang Dynasty (618−907). Next, Bi Sheng invented type print-
ing between 1041 and 1048 during the Song Dynasty (960−1279).2 Due to
the spread of the printing technique, the distribution of reprinted materials
gradually replaced the circulation of manuscripts among groups of scholars.
At that time, it was natural that those who bore the cost of the woodblock
or movable type would demand a printing privilege. The “copyright notice,
Xianjin Tian is an associate at K&L Gates in Beijing. Fuxiao Jiang is an assistant professor at
the Law School of Yantai University and a post doctoral research fellow at the Law School of
Renmin University of China. Katherine Spelman is a partner at K&L Gates in Seattle. Ms.
Spelman focuses her practice on copyright and digital publishing. Daniel Gervais is a pro-
fessor of law at Vanderbilt University Law School and director of the Vanderbilt Intellectual
Property Program. Mark Wittow is a partner in the Seattle office of K&L Gates. Trevor M.
Gates is a 2015 JD candidate at the University of Oregon School of Law. This chapter was
reviewed by David Postolski of Gearhart Law.
1. See Li Yufeng & Catherine W. Ng, Understanding the Great Qing Copyright Law of
1910, 56 J. C S’ USA 767 (2008).
2. L Y, Q X D F: Z B Y (T L 
G: C H  C) 50–60 (2006).
suc51204_02_c02_151-246.indd 151 6/1/15 8:47 AM
152 IP Protection in China
which prohibited anyone but a printer to reprint a work, first appeared in a
block-printed work, Dongdu Shilue—A Biographical Sketch of East Capital,
as early as the 1190s.3
There is a substantial divergence of opinion regarding whether copy-
right protection existed in ancient China. Western scholars argue that, from
a cultural perspective, there is no counterpart in ancient China to the western
concept of copyright.4 In contrast, some Chinese scholars allege, by reviewing
evidence from historical documents, that copyright consciousness existed in
ancient China.5 Others disagree with that interpretation, arguing that copy-
right was claimed only by certain printers, and the protection provided by
the Chinese government was casual, scattered, and administrative in nature.6
In summary, in reviewing Chinese history, one may say that the moti-
vation behind the government’s grant of printing privileges was to preserve
feudal governance by keeping heterodox and improper ideas from the peo-
ple, rather than offering any protection for intellectual creations. In this
regard, the ancient Chinese government’s attitude toward copyright is strik-
ingly similar to that of pre-copyright England. Both used printing privileges
to further their political ends. This paradigm changed in England in the
18th century with the passage of the Statute of Anne, and ultimately a mod-
ern concept of copyright came into being. However, for some reason, this
did not happen in ancient China.
2. From the Great Qing Copyright Law
to the Guomindang Copyright Law
After the First Opium War (1840−1842), China was gradually reduced to
a semi-colonial and semi-feudal country, and foreign powers stepped up
their aggression against it. British and other western incursions resulted in
3. C Z, Z G Z K (A R  C
A C) 3 (1998).
4. W P. A, T S  B   E O: I
P L  C C (1995).
5. See Zheng Chengsi, Zhongguo Yinshua Chuban Yu Banquan Gainian De Yange (Print-
ing and Publishing in China and the Evolution of the Concept of Copyright) in B Y-
 W, . S W  C R 113–14 (1995).
6. See Deng Jianpeng, Songdai De Banquan Wenti-Jianping Zheng Chengsi Yu Anshou-
lian Zhizheng (The Copyright Issues in Song Dynasty and a Comment on the Debate Between
Chengsi Zheng and William Alford), H F P (G L R) 1
(2005).
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Copyright Law of China 153
a series of unequal treaties with China, a significant feature of which was
the grant of extraterritoriality and “most favored nation” treatment within
China. “Extraterritoriality” refers to the immunity from jurisdiction of cer-
tain persons who, although in the state, are not amenable to its laws. The
western powers promised they would give up extraterritoriality if China
established an effective legal system.
Besides the external dynamics that shaped China’s Copyright Law of
1910, there was also internal incentive. Regardless of its passive effect, the
invasions of western powers opened a window for China to look outward
to the developed international community. The defeats of the wars forced
China to learn from developed western countries. To ensure its survival
to both external aggression and internal unrest, and to promote stability
and national strength, the late Qing Dynasty initiated social reforms. This
included the important step of establishing a modern legal system. In addi-
tion, due to the rapid development of the publishing industry, domestic
authors and publishers also claimed copyright protection.
For the previously mentioned external and internal reasons, the Great
Qing Copyright Law (Da Qing Zhuzuoquan Lü) of 1910 was enacted. The
legislation protected only registered copyright works. The term of copy-
right protection was the life of the author plus 30 years or 30 years from
registration in the case of organizations. The moral rights of authorship and
integrity were given perpetual protection. The Great Qing Copyright Law
was the first modern Chinese copyright law. It was a milestone in the history
of Chinese copyright law.
Only one year after the Copyright Law was enacted, the Revolution
of 1911 (Xin Hai Ge Ming) happened, which ended the 2,000-year feudal
system in China. Yet, due to its politically neutral nature, the Copyright Law
of 1910 survived the revolution. In 1915, it was transformed with no major
changes into the Copyright Law of Beiyang Government (1912–1928). In
1928, the Guomindang government enacted its Copyright Law, which was
virtually identical to the Great Qing Copyright Law. After 1949, the Guo-
mindang Copyright Law finally became the Copyright Law of Taiwan.
3. Copyright Protection of the People’s Republic
of China (1949–1986)
On October 1, 1949, Chinese Communist Chairman Mao Zedong declared
the establishment of the Peoples Republic of China (PRC). All previous laws
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