A group of Chinese writers is accusing Google of copyright infringement after the company scanned their books as part of its massive Google Library project, China Daily reported Wednesday. We’re used to hearing about China failing to enforce U.S. copyright laws—but not the reverse. Is copyright law in China any different from in the United States?
Not substantially so. China has signed onto both major international copyright treaties—the century-old Berne Convention and the decade-old Agreement on Trade Related Aspects of Intellectual Property Rights, orTRIPS Agreement—which set minimum standards for copyright regulation. Under these agreements, writers, musicians, visual artists, and filmmakers are granted “automatic” rights to any work they produce—i.e., they don’t have to formally register a trademark. Signatories must also extend copyright at least 50 years after the author’s death and treat computer programs as copyrighted work. For the most part, China’s statutes resemble those in the United States: You can’t steal or profit from someone else’s work. If you do, the injured party can either alert the agency in charge of copyright regulation or sue you in court.
But copyright conventions in China and America are not identical. For example, China has no equivalent to the American doctrine of “fair use,” which stipulates that you can reproduce a copyrighted work without permission if it falls under a range of excepted categories, such as parody or educational materials. (You can photocopy a picture, for instance, and distribute it in the classroom.) That standard tends to be applied broadly in U.S. courts. Another difference: China doesn’t extend copyright protection to live sports broadcasts. This exception became controversial during the 2008 Summer Olympics, when some American recordings were reproduced in China without permission.
China, furthermore, is much more lax about enforcing copyright laws than the United States. A report by the International Intellectual Property Alliance found that 90 percent of the DVDs distributed in China are unauthorized copies. China therefore tops the U.S. Trade Representative’s “Priority Watch List,” which calls the country’s enforcement regime “largely ineffective and non-deterrent.” China doesn’t criminalize copyright infringement that isn’t for profit. So if you copy a DVD and distribute it to all your friends, you can’t go to jail. American courts, by contrast, hand down criminal penalties even when piracy isn’t commercially motivated. (Big-time convictions are rare, but just frequent enough to scare off many would-be pirates.) Damages for civil suits, furthermore, are so low that they don’t dissuade most bootleggers from breaking the law.
Enforcement is weak at least in part because of the country’s size: It’s difficult to implement anti-piracy laws across such a vast territory, especially in rural areas with limited police resources. Trade restrictions and censorship, meanwhile, spur the growth of China’s black market. China limits the amount of copyrighted materials that can cross its borders. For example, only 20 foreign films are allowed in theaters annually, driving movie fans to the streets to look for pirated DVDs. And bootleggers exploit delays in the censors’ approval process, enticing customers with books and other copyrighted goods days or weeks before their authorized release dates.
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Explainer thanks William Alford of Harvard University and Robert Hu of St. Mary’s University School of Law.