In the 1990s, people will not forget two things: emergence of Internet₁ and economic reform at China. Internet originated from APRANET₂, a packet-switch network created by the Department of Defense Advanced Research Projects Agency. It took two decades for Internet to become a communication system that reaches all countries of the world. Currently, more than 200,000 computer networks owned by individuals, governments, organizations, universities and companies have been connected via high-speed, long-distance, backbone networks₃. By using the same protocol (for example, TCP/IP) and DNS (domain name system), people around the world may exchange information seamlessly₄. The Internet has greatly changed many aspects of modern life, and is likely to cause even greater change in the near or far future. However, Internet has been characterized as the largest threat to copyright since its inception because the communication and distribution technology has changed forever the way of legal protection₅. On the one hand, authors feel it easier to disseminate their creative works over the Internet; on the other hand, the ability to edit, alter, or otherwise manipulate digital content in a way that is often undetectable expands the opportunities for copyright infringement. Lots of concerns discourage creators from putting their works on the Internet until adequate legal protection on the Internet is available to them₆. Copyright protection is a creature of technological progress₇. In the case of Internet, copyright protection becomes more imperative than ever.

Since the adoption of the Open Door policy in 1979, China has received a large amount of foreign investment and transfer of technology. As the most populated country, with fast economic growth rate, China has been an attractive target for United States companies to open new markets₈. At the same time, piracy and other kinds of copyright infringement have frightened the U.S. companies. The United States companies have lost more than $3 billion piracy in China in a single year₉. The U.S.-China dispute over copyright protection has been ongoing for more than 10 years. The U.S.'s dissatisfaction with China's copyright protection pushed both countries to the verge of major trade wars three times between 1990 and 1997₁₀. While the conflict has not been solved yet, the emergency of the Internet will make copyright protection in China more difficult. Although it is still unknown what impact of the Internet on copyright protection in China will be, a comparative study of China's and the United States' copyright protection in cyberspace may serve to seek a way of protecting copyright in digital times by international cooperation.

1. An Overview of Chinese Legal System₁₂

Many good discussions about Chinese legal system exist. For the sake of this paper, a short introduction will help to understand the differences in copyright protection between China and the U.S.

1. Legislative Structure in China

China follows a socialist continental legal system. The Constitution, statutes and regulations serve as the sole legal authorities in China. The Constitution, which was promulgated by the NPC in 1982, is the foundation of Chinese legal system₁₃. Along with the progress of economic reform₁₄, numerous laws, regulations and decisions have been made by legislative and administrative organs. Currently, in the run-up to the entry of WTO, China is introducing new legislation and also amending some existing legislation to eliminate perceived conflicts with international conventions or agreements₁₅.

2. Legislative Hierarchy in China

The National People's Congress (thereafter "the NPC"), together with its standing committee, is the highest organ of the state power₁₆. It has the sole power to amend the Constitution and enact and amend basic laws₁₇. The Standing Committee₁₈ may enact and amend all laws except those only enacted by the NPC₁₉. The current Copyright Law was enacted by the Standing Committee₂₀.

The State Council may enact administrative regulations (xingzheng fagui) in accordance with the Constitution and laws₂₁. Since the Copyright Law was promulgated, several regulations in the area of copyright protection have been issued by the State Council₂₂. In addition, the Constitution provides that the Ministries and local governments may enact regulations within the sphere of their authorities₂₃.

3. Judicial System in China

Under the Constitution, the People's Courts are the judicial organs of the nation₂₄ (Chinese Law, page 15). The adjudicative power is exercised by the courts at four levels: the basic people's court, intermediate people's court, higher people's court and the Supreme people's court, military court and other special courts₂₅.

The People's Courts are composed of several divisions (shenpan ting), including criminal, civil, economic and administrative divisions, which hear corresponding cases₂₆. In the level of intermediate People's Court, specialized intellectual property division will try copyright infringement cases₂₇. The Higher People's Court will hear appealed copyright infringement cases₂₈.

The Supreme People's Court is mainly responsible for supervising the administration of justice by local people's courts at various levels and special courts₂₉. It may interpret the statutes in accordance with the Constitution₃₀. Its interpretation has legal authority for the local people's courts.

2. Copyright Protection in China: In General

After the establishment of People's Republic of China, China had no statutory copyright law until 1990 when the long-awaited copyright law was promulgated by the Standing Committee of the NPC and became effective in June 1991₃₁. Currently, legal authority for copyright protection in China can be found in three aspects: the Constitution and basic laws, the 1990 Copyright Law and international conventions or agreements.

1. Copyright protection in the Constitution and other basic laws

The word "Copyright" does not appear in the text of the Constitution. Scholars usually rely on Article 20, 47 and 13 as the constitutional authority of copyright protection₃₂. No reference to intellectual property in the Constitution indicated that the Central government then was reluctant to give copyright express protection. Such ambiguity was probably owing to the fact that 'private property' was largely an alien concept to Socialist China in 1982₃₃.

The reluctance reflected in the Constitution no longer exists in GPCL₃₄. Article 94 of the GPCL provides that Chinese citizen and legal entities are entitled to copyrights and related rights₃₅. In addition, the amended Criminal Law provides that in the case of serious copyright infringement, infringers could be subject to criminal penalties_36.

2. Copyright protection by the 1990 Copyright Law and related laws

Just a couple of days before the Copyright Law became effective, the State Council promulgated the Implementing Regulations of the Copyright Law in which many detailed provisions were included to interpret the Copyright Law to comply with the international convention₃₇. The Law and the Regulation are the main legal authority relied on by the People's courts and owners of copyright, although they are criticized to have many shortcomings₃₈.

1. Overview of Copyright Law and Regulation

The Copyright Law does not provide a clear definition of copyright₃₉. The objective of the Copyright Law is provided in Article 1. The Copyright Law contains 56 articles, which are divided into six chapters₄₀. The Implementing Regulations themselves contain seven chapters and fifty-six articles₄₁.

2. The Subject Matter in the Copyright Law

The works protected under the Copyright Law must be original and capable of being reproduced in a tangible form₄₂. Article 3 of the Copyright Law provides a list of copyrightable works which essentially match the subject matter of the Berne Convention₄₃. The Copyright Law protects literary works, oral works, musical, dramatic and choreographic works, works of fine art, phonographic works, cinematographic works, television and video works, engineering and product designs and their descriptions, maps, sketches, and other graphic works, computer software and other works as provided for in laws and administrative regulations₄₄. Illegitimate works, which are banned from being published and distributed, can not be protection under Copyright Law₄₅.

3. Rights of Copyright Owners

Copyright owners in the copyright law include authors, other citizens, legal entities, and entities without legal personalities. They enjoy both moral rights₄₆ and economic rights₄₇.

1. Moral rights

The Copyright Law provides four moral rights: the right of publication₄₈, the right of authorship₄₉, the right of alteration₅₀ and the right of integrity₅₁.

2. Economic rights

The Copyright Law mentioned two economic rights: the right of exploitation₅₂ and right of remuneration₅₃.

1. Ownership of Copyright works

As a general matter, the copyright in a work belongs to the author₅₄. People acquires copyright when the work is created₅₅. The copyright law provides special provisions in the case of adaptation, translation, annotation and compilation, joint work and work for hire₅₆.

2. Limitations on copyright

The Copyright Law provides certain limitations on the rights of copyright owner₅₇. They are similar as "fair use" in the U.S. Copyright Act₅₈.

1. Copyright Protection by International Convention or Bilateral Agreement

In January 1992, China and the United States signed a Memorandum of Understanding on Copyright Protection (MOU1)₅₉. As required by the MOU, China acceded to the Berne Convention and Universal Copyright Convention₆₀. In 1995, in order to strengthen copyright enforcement, China and the U.S. signed another memorandum of understanding (MOU2)₆₁. To coordinate these bilateral agreement and international conventions, the State Council issued the International Copyright Treaties Implementation Rules (ICT)₆₂. The ICT extends protection to 'unpublished' works of foreign authors. In 1992, Chinese government also promulgated special regulation to protect computer software₆₃. Thereafter, China enacted a couple of other provisions to bring China's law in compliance with the two MOUs and the international conventions₆₄. These copyright treaties provisions significantly strengthened the rights of foreign copyright owners in China₆₅. With the addition of the above treaties provisions, China's copyright protection system substantially meets international standards₆₆. Currently, in order to be a member of WTO, China is revising its copyright laws to comply with TRIPS₆₇.

2. Enforcement of Copyright Protection

According to the Copyright Law and Regulation, there are two types of enforcement for a copyright holder: an administrative enforcement and legal enforcement.

1. Administrative enforcement₆₈

The National Copyright Administration (the NCA) is the copyright administration department under the State Council and shall be responsible for the nationwide work of administration of copyright₆₉. The provinces, autonomous regions, and municipalities set up copyright administration offices₇₀. As a general rule, the administrative agencies are granted the quasi-judicial power₇₁. The main duties of the NCA are to keep the order of copyright protection, to settle dispute, to investigate and prosecute copyright infringement cases₇₂. Administrative enforcement has proven quicker, cheaper, and generally more effective₇₃. In addition, the General Administration of Customs (GAC) is authorized to protect copyright against imported or exported goods infringing copyrights₇₄.

2. Judicial enforcement of copyright protection

The first instance of copyright infringement case is tried by the intellectual property trial division in the Intermediate People's Court₇₅. In the majority of cases, decisions by administrative bodies are reviewable by the court. Besides civil sanction, the courts could potentially impose criminal penalties upon infringers₇₆. Basically, judicial enforcement is better than administrative enforcement in terms of the general applicability of the law₇₇. Another advantage judicial enforcement enjoys over administrative enforcement is that the court may award damages to the victim, which are not available for administrative actions₇₈. However, the judicial system of copyright protection has long been criticized as because of inexperienced judges, limited resources and understaffered situation ineffective₇₉. Since it is often uncertain exactly how administrative proceedings will operate, more and more foreign companies begin to seek legal remedy₈₀.

1. Remedies and Liabilities for Copyright Infringement

a. Remedy by parties themselves--Mediation and Arbitration

According to the Copyright Law, the victim of copyright infringement may seek the assistance of mediation for resolving the dispute₈₁. If this is unsuccessful or if one of the parties fails to carry out the agreement, judicial proceeding will be available. Arbitration is another way of dealing with copyright dispute provided in the Copyright Law₈₂. An arbitration award is enforceable by the court. However, if the award is set aside or the court refuses to enforce it, the parties are entitled to resort to litigation₈₃.

Under the Copyright Law and Regulations, civil remedies, civil sanctions, criminal penalties and administrative penalties are available to the victim of copyright infringement.

1. Civil Remedies

Civil remedies include cessation of infringement, removal of obstacles, elimination of effect of acts, public apology, compensations for damages or subject to a fine₈₄. For those who fail to fulfill their contractual obligations, civil remedies shall be those included in the GPCL₈₅. These remedies may be applied exclusively or concurrently₈₆.

2. Civil Sanctions

In accordance with the GPCL, a court may, in addition to applying civil remedies, serve civil sanctions against copyright infringers. Of these measures of civil sanction, confiscation of the infringing copies and imposition of a fine are the most frequently used in copyright infringement cases₈₇.

3. Criminal Penalties

The amended Criminal Law provides crimes of intellectual property infringement₈₈.

4. Administrative remedies

The Implementing Regulations of the Copyright Law provides administrative liabilities against copyright infringers_89.

1. Copyright Protection in Cyberspace

1. Internet in China Today

The Internet has become popular in China in recent years. As the biggest developing and the most populated country, the Internet grows at an extraordinary rate in China. An official web site reported that China's Internet user population and its infrastruture capacity will double each year₉₀. It has been estimated that in a few years, the Internet population in China will become the largest one in the world₉₁. Apart from the increase in the number of users, the nature of Internet usage has greatly broadened₉₂. People use Internet not only for collecting information, but also for advertising commercial information, shopping online and doing academic research₉₃. Along with the rapid development of the Internet in China, huge commercial opportunities become available to the world.

While the Internet has generally hailed as a turning point in economic development and a breakthrough in communication, Chinese government has found itself confronting a dilemma in dealing with this advanced technology: potential benefits the Internet will provide and its negative impacts on Chinese legal and politic system₉₄. As far as the legal environment is concerned, Chinese Internet entrepreneurs and foreign investors are faced with a heavy set of confusing regulations₉₅. It is fair to say that the current Chinese Internet regulations and interpretations are often vague, confusing, and inconsistent₉₆. Many uncertainties and questions are still waiting for resolution₉₇.

b. The Main Authorities managing the Internet in China₉₈

Systematic regulation of the Internet in China did not really commence until 1996₉₉. Present regulations on Internet can be found at relevant web sites₁₀₀. The main authorities issuing regulations include the Ministry of Information Industry (MII), the Ministry of Electronic Industry (MEI), the Ministry of Radio-Film-Television (MRFT) and the Ministry of Public Security (MPS)₁₀₁.

2. Legislation in copyright protection in cybespace

China has not yet promulgated new copyright law or amended the Copyright Law or regulations to protect copyright over the Internet, even though officers have said that online copyright should receive the same protection as other ones as early as 1999₁₀₂. Presently, the Copyright Law and related regulations are still the controlling laws for the people's courts to deal with copyright infringement on the Internet₁₀₃. When faced with online copyright infringement cases, the People's Courts just interpret the existing laws in a very constructive way and give them new meanings₁₀₄. Facing the challenges from the high technology, it should be said that Chinese judges did a great job in extending copyright protection to the new technology and remedying lagging-behind legislation.

With more and more online copyright disputes and the rapid development of the Internet at cities other than Beijing and Shanghai₁₀₅, the Supreme People's Court issued an interpretation of the Supreme People's Court on Laws For Trying Cases Involving Internet Copyright Disputes (the Interpretation) on December 20, 2000, which became effective one day later₁₀₆. The Interpretation clarifies copyright issues involved in Internet cases that have not been specifically addressed by the Copyright Law or other laws. The Supreme People's Court said the Interpretation aims at guaranteeing the uniformity of court decisions across China in cases of online copyright infringement₁₀₇. Since there is only a couple of months from the effective date of the Interpretation, it is hard to tell how effective it may be in solving online copyright dispute. One thing is certain that the Interpretation will be the main legal authority for the people's courts to deal with online copyright disputes before an amended or new copyright law is promulgated.

1. The Interpretation provides the court's jurisdictions for online copyright infringement cases.

Article 1 of the Interpretation provides that online copyright infringement cases are subject to the jurisdiction of the court in the place where the infringement occurs or where the defendant resides₁₀₈.

2. The Interpretation specifically provides that works protected by the Copyright Law include digital forms of the protected works.

Article 2 of the Interpretation provides that works under the Copyright Law include the digital form of all works and all digital forms of protected works should be protected under Article 10 of the Copyright Law₁₀₉. Any works, if not be included in Article 3 of the Copyright Law but original in literature, science and arts areas and can be duplicated in tangible, should be protected under the Copyright Law.

3. The Interpretation addresses the issue of when the use of protected works on web site will constitute infringement.

Article 3 of the Interpretation provides that Internet Access Provider (IAP) can transmit works which have been published on web site or in other forms except those explicitly indicated otherwise. Transmission beyond the scope will constitute infringement₁₁₀.

4. The Interpretation also contains rather detailed rules on when a service provider will be regarded as taking part in infringing activities and when copyright holders can demand action by service providers.

If IAPs infringe or instigate or help other people to infringe online copyright, they will be liable under Article 130 of the GPCL. If having knowledge of infringement by its subscribers and warned by the copyright holders about the infringement, the ISP will be jointly liable with the subscribers under Article 130 of the GPCL if it did not take actions in removing infringement₁₁₁.

5. The Interpretation also addresses the amount of compensation to be awarded where there is infringement.

Article 10 of the Interpretation provides that the amount of compensation to he victim should be direct economic losses plus anticipated profits, or profits acquired by the infringers. The maximum amount of compensation is 500,000 RMB ($36, 241)₁₁₂.

1. Online Copyright Infringement Cases Reported by the People's Court₁₁₃

The time when the people's court tried the first online copyright infringement case was as early as 1998. Since then, more than 20 online copyright infringement cases have been tried by the people's courts at all level₁₁₄. This paper will summarize some important cases to illustrate the judicial perspectives on online copyright infringement.

1. Meng Wang, et al v. Century Internet Communication Technology Co₁₁₅.

The plaintiffs are 6 famous writers. The defendant was one of China's earliest IAP's. The defendant established a novel section on its web site from which subscribers can read many novels, including some authored by the plaintiffs. The plaintiffs sued the defendant for displaying their works on web site without their authorization, therefore, infringing their copyrights. The defendant asserted that no provision in the Copyright Law or other regulations provides that dissemination of other's works needs prior consent from authors or pay remuneration to authors. The court held that the defendant's conduct was covered by Article 10 of the Copyright Law. The court considered the language in the article and determined that the section 5 of Article 10 did not exhaust all ways of exploiting works. The language "the like" implies other ways of exploiting works which the standing committee of the NPC could not anticipate when it promulgated the Copyright Law. Although disseminating works over the Internet is somewhat different from the traditional dissemination described in the section 5, it is still a way of disseminating works. The difference in ways of disseminating works should not affect the copyright holder's right of exploitation under the section 5 of Article 10. Therefore, the court concluded that the defendant infringed the plaintiffs' right of disseminating works and the right of remuneration. The defendant appealed and the appeals court affirmed the judgment.

The Meng Wang et al case is the first case in which the people's court creatively interpreted the law on its own initiative. The court's judgment caused a wide discussion among Chinese scholars. Legal enforcement authorities began to pay attention to the case of online copyright infringement.

2. China Economic Information Publishing House v. China Science and Technology Information Institute₁₁₆

The plaintiff was a subset of a government-owned news agency (Xinhua Agency). It was authorized to engage in the commercial collection, distribution and sale of economic information which is authored as Xinhua Agency. The defendant was non-legal-person entity₁₁₇. The defendant had contracted with Beijing Hongxun Information Consultation Center (Hongxun Center), who Center would provide some economic information to the defendant and receive fees from the defendant. From January 1^st of 1999 to January 1^st of 2000, the defendant uploaded some 48 categories of economic information they received from Hongxun Center to its web site. Among those information, 16 categories of them were identical to those owned by the plaintiff. The plaintiff sued the defendant for copyright infringement. The defendant's argument focused on two points: first, information is not works covered by the Copyright Law; second, even if the plaintiff owned the copyright on the information, the defendant had no fault in infringing the plaintiff's copyright. The court held that those information is edited by the plaintiff. The conduct of editing itself represented sufficient creative effort required by the Copyright Law. Therefore, the information is the work covered by the Copyright Law. Copyright protection is available to the plaintiff. Since the defendant did not check up the copyright of information, its conduct is with fault. Therefore, the court concluded that the defendant infringed the plaintiff's right of exploitation and right of remuneration₁₁₈.

The important feature of this case is that when the people's courts are dealing with online copyright infringement cases, they prefer to interpret relevant concepts in the Copyright Law, like "editing" in this case, to favor the owner of copyright. In addition, the people's court put a less strict requirement on the defendant's fault.

3. Ruide Group v. Yibing Dongfang Information Service Co₁₁₉.

The plaintiff began to update its web site in February 1998, in which the plaintiff added some new functions, like search engine etc. In December 1998, the plaintiff found that a web site, owned by the defendant, an information trade company located in Yibing, had identical or resembling functions and pictorial signs as those in the plaintiff's web site. The plaintiff sued the defendant in Beijing, the residence of the plaintiff. The defendant argued that, first, the court in Beijing did not have jurisdiction; second, the plaintiff was not able to substantiate that the web site concerned belonged to the defendant. The court held that in the case of copying materials from web site, the conduct of copying must occur on the plaintiff's computer, which, in this case, located in Beijing. The court in Beijing should have the jurisdiction. In addition, since the defendant did not prove that there was another company which had the same telephone number, fax number and location as that on the web site. Therefore, the defendant did not sustain its burden of proof. The defendant's second argument was denied. The court concluded that since special arrangement on the plaintiff's web site was the work covered by the copyright law, the defendant infringed the plaintiff's right of integrity, right of exploitation and the right of remuneration.

This case indicates that while the court continues to favor the copyright owner by interpreting the concepts in the Copyright Law, a significant portion of the burden of proof is also shifted to the defendant. The plaintiff has already met the burden of proof if it told the court that its copyright is infringed by a web site. The defendant will not meet the burden if it can not prove that the web site is owned by others. The shift of burden of proof makes it very difficult for the defendant to defend itself.

4. Weihua Chen v. Chengdu Computer Business Daily and

These two cases have similar facts: the plaintiffs sued the defendants for infringing their copyrights because the defendant reproduced the plaintiffs' works on the web and published them on the newspapers. Both defendants argued that they prepared to pay the work's author but just did not know who the author is. They argued that since the plaintiffs could not prove their authorship, they did not infringe the plaintiff's copyright. The court held that since the plaintiffs were in control of the web site access, they should be assumed to be the true authors of the articles unless the defendants can provide reasonable evidence to the contrary₁₂₁. The second case later was settled between the parties. The court ruled in the first case that the defendant's fault argument can not be sustained and therefore infringed the plaintiff's right of exploitation and right of remuneration.

Strictly speaking, these two cases are not online copyright infringement. The courts in these two cases stick to strict liability which gives the plaintiff more protection than that in regular copyright infringement case. On the other hand, the plaintiff's burden of proof is only to prove that he has access to the web site.

1. Summary

Presently, online copyright protection enforcement occurs only in the courts. When there is an online copyright dispute, the court preferred to hear the case. Facing the challenge that there is no applicable provisions in statute, the court always act in the spirit of law and according to basic principle of Chinese civil law. Nevertheless, in a civil law country, the judge's enthusiasm can not last long without legislative backup. The online copyright protection must be tackled through the joint efforts of legislature, judicial authority and the jurisprudence circle₁₂₂.

There are numerous books and articles outlining copyright law₁₂₃. Duplicating those efforts is unnecessary. For this paper's purpose, a basic summary will help to make comparison.

A. Copyright Law in the U.S.

1. Legal foundation of copyright protection

Article I, Section 8, Clause 8 of the Constitution and 1976 Copyright Act.

2. Eligible works

Eligible work must have three characteristics: originality (not fact), work of authorship and in tangible medium₁₂₄. They are mentioned in the 1976 Copyright Act. Ideas and facts are not protectable under the law.

3. Ownership and rights

Copyright is secured automatically when the work is created₁₂₅. It belongs to the creator of the work. Special rules apply to joint works, collective works and works for hire₁₂₆. Copyright vests its owners with exclusive rights₁₂₇.

4. Infringement and fair use

Copyright infringement occurs when a party, without permission, performs an act that falls within the owner's exclusive rights. There are a number of limitations on the owner's rights. The most important one is fair use₁₂₈.

B. Application of copyright law in the Internet

Although the Internet represents an advance in technology, it has not received special treatment under copyright law₁₂₉. Many cases established that copyright infringement in the Internet might involve direct infringement, contributory infringement and vicarious infringement₁₃₀. To date, decisions addressing the copyright liability focus on three exclusive rights: the right to make copies of the copyrighted work; the right to distribute copyrighted works; and the right to display the copyrighted works publicly₁₃₁. Defenses in online copyright infringement case include fair use and first amendment₁₃₂.

The 1976 Copyright Act was amended by the Digital Millennium Copyright Act of 1998₁₃₃ (the DMCA), effective October 28, 1998. The DMCA made three contributions to the Copyright Act that are directly relevant to Internet law: adding new Chapter 12, new section 512 and amending section 117₁₃₄. Some provisions of the DMCA affirm or modify much of the Internet copyright infringement case law.

The Online Copyright Infringement Liability Limitation Act, effective October 28, 1998, is another act added by the Congress to amend the 1976 Copyright Act₁₃₅. The OCILL places limits on the liability of qualified ISPs and BBSs for infringing activities that occur using their systems₁₃₆.

There are many similarities between current Chinese copyright law and United States copyright law. For this paper's purpose, the differences between two countries' copyright enforcement will be discussed in detail.

1. Comparison of traditions in copyright protection

Nowhere in the world has the clash between traditional cultural and societal modernization been more powerful than in China₁₃₇. Confucian ideology is deeply rooted in Chinese culture and social perspectives. It places a strong emphasis on development for the good of society, public recognition and centralism rather than personal reward, legal protection and freedom₁₃₈. It encourages the loyalty to the Master, the subordination of individual interests to social goods and discourages the self-motivated pursuit of money₁₃₉. The act itself was thought to promote the civilization, even without the author's permission₁₄₀. As a result, the act of copying is a highly honored process in ancient China. The greatest compliment that an author could receive was having someone copy his work₁₄₁. In addition, Confucianism viewed harmony as the highest ideal in the society. Friendly resolution of disputes through mediation and compromise was the goal of the government. This Confucian heritage thrived in China until the beginning of the 20^th century. By contrast, the U.S., as a typical western cultural country, holds sacred the individual's civil and political rights, emphasizing their abstract and universal nature₁₄₂. Fairness and justice are the core of western society. Copyright is thought as a private right, which should be respected by other people, including government, and protected by the law. Therefore, cultural difference played an important role in enforcing copyright protection in China and United States.

2. Comparison of constitutional provisions in two countries

It is impossible to understand Chinese basic policies to enforce copyright protection without knowing its Constitutional guideline. Article 20, 22 and 40 form the constitutional bases for China's copyright laws₁₄₃. Chinese legal circles deemed copyrights created by the Constitution and its amendments₁₄₄. By contrast, the U.S. Constitution merely authorizes Congress to protect author's writing and inventions. Therefore, copyrights in the U.S. are the rights created by Congress not by the Constitution₁₄₅. China's constitution evolved from a communist legal document to one that supports the country's current socialist transition₁₄₆. A reverence for the community over the individual can be implied in China's Constitution₁₄₇. Enhancing the cultural life of people is more important then protection of individual private rights. Since copyright is regarded as a kind of private right in China₁₄₈, its protection is inferior to state's or the public's interest. Things are different in the United States' Constitution₁₄₉. The motivations for protecting the writing of authors are twofold₁₅₀. On the one hand, an author has a property right in the fruits of his or her labor. On the other hand, copyright protection for individual will ultimately benefit the public at large. Therefore, the immediate effect of securing a fair return for author's creative labor will stimulate artistic creativity for the benefit of the public. Individual rights are not inferior to the state's interest.

C. Comparison of copyright laws in China and United States

A textual comparison shows few differences between the Chinese 1990 Copyright Law and the United States' 1976 Copyright Act in major areas₁₅₁. These similarities are not coincidental₁₅₂. This is because the promulgation of China's modern copyright law was heavily influenced by the United States and has therefore the international norms of copyright law. Nevertheless, differences on basic orientations are still reflected on two countries' copyright laws₁₅₃.

1. Works covered by the copyright law

Under China's Copyright Law, nine categories of works are protected₁₅₄. Most of them are similar those in the U.S. Copyright Act, except computer software which is expressly protected under China's copyright law and is protected under the category of "literary works" under the U.S. Copyright Act. Both China's copyright law and United States' Copyright Act do not protect governmental works₁₅₅. The Chinese copyright law, however, explicitly does not protect works prohibited by law₁₅₆. In addition, China's copyright law provides that the author's exercise of his or her copyright can not prejudice the public interest. It indicates that copyright protection is inferior to state interest. Facts and ideas are not protected under the copyright law in the U.S., however, in China, only news in current affairs is not protected₁₅₇. On its face, the scope of protection under China copyright law is somewhat wider than that in the U.S. Nevertheless, the lists of works covered under both the Chinese and the United States provisions are illustrative rather than exhaustive₁₅₈. When a work is not listed in the Chinese copyright law, it is more difficult for a litigant to convince the people's court that the work should be protected. Under the civil law system, judges have no power to create a new category of protected work.

2. Ownership and term of copyright

Chinese copyright law provides that copyright ownership belongs to author. Other citizens, legal entities and entities without legal personality can enjoy the right in accordance with the law₁₅₉. The United States Copyright Act gives copyright ownership only to author or those deriving their rights through the author, except works for hire₁₆₀. Generally, ownership deriving from the author is in accordance with the law, but law may allow more people to enjoy copyright besides those deriving rights from the author. Therefore, Chinese copyright law provides a wider scope of copyright ownership. The government can, for state or public interest, eliminate author's monopoly on his or her works. Moreover, copyright protection term Chinese copyright law is shorter than that in the United States.

3. Rights

Following civil law tradition₁₆₁, the Chinese copyright law provides both personality rights (moral rights) and economic rights to owner of copyright₁₆₂. In the United States, except for visual works of art, authors lack the statutory provision to protect their moral rights₁₆₃. Another important factor which contributes to the provision of moral right is Confucianism, which values people's spiritual interest and author's honor and reputation. Therefore, in China, legal tradition and cultural heritage led to the fact that protection of personality right is more important than protection of economic rights in Chinese copyright law. Additional emphasis of personality right in Chinese copyright law exists in the case of work for hire₁₆₄.

4. Limitations on copyrights

The most important limitation on copyright in the U.S. copyright act is fair use₁₆₅. The fair use inquiry involves a balancing of a number of equitable factors to determine, on a case by case basis, whether the particular use should be allowed₁₆₆. However, some of the conditions of fair use set forth in the Chinese Copyright Law are potentially quite broad, especially in the case of state's use for the purpose of performing its official duties₁₆₇. The Chinese Copyright Implementing Regulations modified this exception₁₆₈. However, fair use exceptions are still criticized as the source of infringement and abuse by Chinese government officials and piracy of foreign copyrighted works₁₆₉ (46 Buffalo L. Rev. 1, 22).

5. Remedies and sanctions

The U.S. copyright act gives copyright infringement victim a full recovery of actual damages, additional profits, statutory damages and criminal remedies₁₇₀. Remedies in Chinese copyright law are not limited to economic damages. Administrative penalties also are listed as a remedy₁₇₁. However, serious doubts exist as to the adequacy of public apologies, administrative penalties, or even damages which are, as indicated by the result in some cases, disproportionate to the harm suffered by the copyright holder and the profits gained by the infringer₁₇₂. Inadequate sanctions in Chinese copyright law are frequently criticized by foreigners₁₇₃.

6. Liabilities

In China, the liability of copyright infringement should be based on the provisions of the GPCL_174, in which the basic principle of civil liability is liability with fault. Infringers must know or have reason to know that the conduct is infringing. In contrast, fault is not an element to impose civil liability for copyright infringement in the U.S.₁₇₅

1. Comparison of copyright enforcement in China and United States

In the United States, judicial enforcement is the only way for copyright holder to protect himself or herself. As what is discussed above₁₇₆, in China, copyright law provides three different enforcement systems: judicial enforcement, administrative enforcement and private enforcement₁₇₇. Of these three methods, mediation has traditionally been the most common proceeding in copyright cases₁₇₈. Unlike the U.S. Copyright Office, which administers regulatory duties primarily for the purpose of managing the copyright registration system₁₇₉. In China, administrative agencies (the NCA) have the power to impose civil penalties for copyright infringement₁₈₀. Although judicial enforcement exists, the government clearly places an emphasis on administrative enforcement or mediation and arbitration₁₈₁. This practice conforms to Confucianism's disfavor of litigation.

Although there are relatively complete copyright enforcement system in China, ineffective enforcement has become one of the most frustrating issues in the copyright protection negotiation between two countries₁₈₂. In addition, lax enforcement by administrative agencies can be explained by cultural heritage, which tends to deviate widely from the rule-governed behavior₁₈₃. Local protectionism₁₈₄, official corruption₁₈₅, less-trained officials₁₈₆, inefficient judicial system₁₈₇ and inadequate resources₁₈₈ all contribute to inadequate copyright enforcement in China.

2. Online Copyright Protection Comparison

According to Huapeng Wang, director of the copyright department of the NCA, China is going to make a revision of its Copyright Law in several aspects to better protect the interests and rights of domestic and foreign copyright owners and govern Internet infringement₁₈₉. Currently, China's online copyright protection has to rely on judicial constructive interpretation of copyright law. Therefore, even as a civil law country, China is following a common law country tradition in the case of online copyright infringement. Nevertheless, a conflict will exist if the prospective amendment to copyright law is inconsistent with current judicial interpretation.

Comparing China's judicial interpretation with the case laws from the U.S. courts, a few differences appear.

1. The scope of copyright protection in China's courts is somewhat wider than that in the U.S. courts

In Hyperlaw v. West Publishing Co.₁₉₀, the plaintiff accused the defendant of infringing copyright by copying its compiled opinions from the Supreme Court and the Courts of Appeals. The court rejected the plaintiff's analysis and held that the changes that the plaintiff made to the opinions were not substantial enough to claim originality, although the plaintiff invested a substantial amount of time in reviewing and editing these opinions. The opinions were written by federal judges not by the plaintiff. In China Economic Information Publishing House v. China Science and Technology Information Institute₁₉₁, the Chinese court held that the plaintiff enjoyed the copyright because it invested a substantial amount of efforts and time in categorizing and editing information. Information is not protected under Chinese copyright law₁₉₂. Therefore, the standard of originality in the U.S. is different from that in China. Whether the plaintiff invested a substantial of time or efforts is an important factor for the Chinese courts to determine the originality of works. In the U.S., originality means only that the work was independently created by the author, not "sweat of the brow."₁₉₃

2. Burden of proof is different for the plaintiffs

In Playboy v. Frena₁₉₄, the court held that, to establish copyright infringement, the plaintiff must prove ownership of the copyright and "copying" by the defendant. Copying can be inferred by proving that the defendant had access to the allegedly infringed work and that the allegedly infringing work is substantially similar to the copyrighted work₁₉₅. In Weihua Chen v. Chengdu Computer Business Daily₁₉₆, the Chinese court held that once the plaintiff proved that he has access to the web site, he sustained the burden of proof of ownership of copyright. The defendant bears the burden of proof to prove that the plaintiff was not author of the work. Therefore, in the U.S., the burden of proof is more difficult for the plaintiff to meet than in China. In addition, substantial similarity is sufficient for the plaintiff in China to satisfy the "copying" element₁₉₇.

In the U.S., the copyright owner need not prove knowledge or intent on the part of the defendant to establish liability for direct copyright infringement, Playboy v. Webbworld₁₉₈. For vicarious liability to be established, the defendant must have the required supervisory authority and financial interest. Intent or knowledge of the infringement is not an element₁₉₉. In China, the court in Meng Wang, et al v. Century Internet Communication Technology Co.₂₀₀ implied held that direct copyright infringement needs the defendant's intent or knowledge. This implication is supported later by the Supreme People's Court's Interpretation on Online Copyright Infringement₂₀₁. For vicarious liability, the Interpretation provides that intent or knowledge is a required element and no requirement for supervisory authority and financial interest. In practice, the court interpreted the knowledge element very broadly₂₀₂.

1. Infringed rights

In the U.S., the court usually held that in the case of Internet, if the copyright infringement is established, the copyright owner's right of distribution and right of public display are infringed₂₀₃. In China, if online copyright infringement is established, besides moral rights₂₀₄, the court could, on a case by case basis, held that owner's rights of distribution, display, remuneration or even neighboring rights are infringed. More often than not, the court held that the plaintiff's right of display, right of distribution and right of remuneration are infringed. The right of remuneration is sometimes the basis for the court to grant damages₂₀₅. Nevertheless, the courts in China seldom grant punitive damages or damages for infringing moral rights.

Surprisingly, in the case of online copyright infringement, the courts in China grant more protection to the victim than to victim in regular copyright infringement cases. More severe sanctions are applied to online copyright infringement. This situation can be explained by the external pressures from the U.S. and other western countries. Along with seeking admission to the WTO, China is now making efforts to raise the level of copyright protection to internationally acceptable standards. However, problems still exist in granting more privileges to the plaintiff.

A. Challenge from Globalization

Today's era of globalization is not only different in degree; in some very important ways, it is also different in kind-both technically and politically₂₀₆. Globalization shapes not only people's private life but also relations between nations. Globalization makes impossible one country's isolation from other parts of the world. The world has become an increasingly interwoven place₂₀₇. Different cultures homogenize one another. Cooperation, rather than conflict, should become fundamental principle of current international society. The international community has sought to promote the smooth functioning of global trade by further standardizing the ways that intellectual property rights are protected throughout the world₂₀₈.

B. Challenge from Internet Culture

Internet culture caused another challenge to online copyright protection. The Internet provides a true democratic communications forum and has produced a democratization of information₂₀₉. The Internet is thought to be an open and sharing environment that is remarkably free of censorship₂₁₀. Historically, the Internet has been populated by academics and technologists, many of whom would probably be categorized as the "Information Wants to be Free" segment of the intellectual property attitude spectrum₂₁₁. In Napster case, the defendant contended that its use of other people's copyrighted works over Internet was fair use₂₁₂. In China, the defendant in Meng Wang, et al v. Century Internet Communication Technology Co. also argued that Internet's openness global nature implied no legal liability for Internet Access Providers₂₁₃. Internet culture is already a global culture. To deal with this global misunderstanding we needs global cooperation.

C. Solutions for Online Internet Copyright Infringement

1. Bilateral Agreement

It seems clear that international cooperation to protect copyright in cyberspace is one way to deal with the challenges from globalization and Internet culture. In order to effectively protect copyrights, the U.S. and China entered into agreements in 1992 MOU and 1995 MOU. Although Chinese copyright protection has been criticized even after two agreements₂₁₄, the two agreements did enhance China's enforcement of copyright. Since two MOUs did not mention copyright protection in cyberspace at all, another agreement specially for protecting copyright in cyberspace seems necessary. First, this agreement should address the impediments to China's effective copyright protection₂₁₅. Second, sever trade sanction might not the effective tool for the U.S. to achieve the goal because the countries' increased cooperation in other international issues make stable China-American relations important to the United States₂₁₆. Moreover, arbitrarily imposing economic sanction violated the transnational arrangement of TRIPS. Third, the establishment of incentives to protect copyright, such as training programs, industrial programs and technical assistance programs₂₁₇. The new agreement should make clear to China that greater protection of foreign copyright will be good for technical development within China₂₁₈. Fourth, the new agreement should take into account into China's status as a developing country. Given only ten years' copyright protection experiences and the shortage of available resources₂₁₉, immediately effective enforcement in China is impractical. Finally, the new agreement should address the different judicial practices in online copyright protection between China and the U.S. A change in domestic copyright law is necessary.

2. Using International Mechanism: the WTO

The WTO can be used as an avenue for two countries to establish international online copyright protection system. Both the U.S. and China are forced to keep up with the development of the WTO₂₂₀. China will be subject to multilateral adjudication by the member states instead of unilateral tools such as Special 301₂₂₁. China will be more likely to choose to comply with the dispute settlement rulings because not doing so will inflict damage to its economic interests through compensation and retaliation₂₂₂. Moreover, moral sanction under the WTO regime can transpire at a multilateral level₂₂₃. The U.S. also can avoid being the sole moral accuser of inadequate Chinese enforcement of copyright protection. Finally, the WTO's requirement about transparency of law and other regulations will urge China to make available to the U.S. firms all governmental regulations concerning copyright.

Internet will continue to challenge copyright protection. The communication between China and the U.S. will continue too. How to effective deal with the expected challenge is a common question for both countries. New technology forced us to choose cooperation rather than conflict. Chinese copyright protection system is a recent legal development in response to China's need to join the international economic community₂₂₄. Despite inadequate enforcement and relatively short copyright protection history, China's government is dedicated to building an efficient copyright protection system₂₂₅ (16). Given the assistance from the U.S. and more experience acquired in complying with international standard, China will make strides toward greater copyright protection system. The Internet will not only introduce challenge to us but also create a new opportunity for the U.S. and China to attain new cooperation in a new era.