I. INTRODUCTION---------------------------------------------------------------1

II. INTERNET COPYRIGHT PROTECTION IN CHINA---------3

A. An Overview of the Chinese Legal System-------------------------------3

B. Copyright Protection in China: In General--------------------------------5

C. Copyright Protection in Cyberspace--------------------------------------12

A. Copyright Law in the U.S.-------------------------------------------------23

B. Application of copyright law in the Internet-----------------------------24

C. Special legislations concerning online copyright protection----------24

A. Comparison of constitutional provisions in two countries------------25

B. Comparison of constitutional provisions in two countries------------26

C. Comparison of copyright laws in China and United States------------27

D. Comparison of copyright enforcement in China and United States--31

E. Online Copyright Protection Comparison-------------------------------32

1. The scope of copyright protection in China's courts is somewhat
     wider than that in the U.S. courts-----------------------------------------33

2.  Burden of proof is different for the plaintiffs---------------------------34

3.  Liability requirements are different for the victim---------------------34

4. Infringed rights--------------------------------------------------------------35

 A. Challenge from Globalization---------------------------------------------36

 B. Challenge from Internet Culture------------------------------------------36

 C. Solutions for Online Internet Copyright Infringement

1. Bilateral Agreement-------------------------------------------------37

2. Using International Mechanism: the WTO-----------------------39

ENDNOTES

In the 1990s, people will not forget two things: the emergence of the Internet1 and economic reform in China.

The Internet originated from ARPANET2, a packet-switched network created by the Department of Defense Advanced Research Projects Agency.  It took two decades for the Internet to become a communication system that could reach most of 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 the DNS (the 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 future.  At the same time, the Internet has been characterized as the largest threat since the inception of copyright.  Today's communication and distribution technology has changed forever these legal protections5.  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 is available6.  Thus, copyright protection in cyberspace 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 a fast rate of economic growth, China has been an attractive target for United States companies in search of new markets8.  At the same time, the piracy of intellectual property has frightened them.  United States companies claimed that they have lost more than $3 billion from piracy in China in a single year9.

The U.S.-China dispute over copyright protection has been ongoing for more than 10 years.  Both countries found themselves on the verge of major trade wars three times between 1990 and 199710.  While the conflict has not been solved, the emergence of the Internet will make copyright protection in China more complicated.  It is still unknown what the 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 be useful at a time when both countries seek a way of protecting copyright in digital times by international cooperation.

This article will compare China's copyright protection in cyberspace with that in the U.S.  Part II introduces and evaluates current Internet copyright protection in China.  Part III introduces Internet copyright protection in the U.S.  Part IV compares two countries' copyright protection in cyperspace with focusing on their differences.  Part V argue that, given the challenges from globalization and Internet culture, bilateral agreement and multilateral conventions may be two effective ways to protect copyright on the Internet.

F. An Overview of the Chinese Legal System12

Many good discussions about the 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 the 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 its entry into the 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's 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.  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.  There are also 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 the corresponding cases26.  In the level of Intermediate People's Court, a specialized intellectual property division will try copyright infringement cases27.  The Higher People's Court will hear copyright infringement cases on appeal28.

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.

G. 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 sources: the Constitution and basic laws, the 1990 Copyright Law and related regulations, and international conventions and agreements.

1. Copyright protection in the Constitution and other basic laws

The word "Copyright" does not appear in the Constitution.  The Central government then was reluctant to give copyright express protection at that time.  Such ambiguity was probably owing to the fact that "private property" was an alien concept to socialist China in 198232.  Therefore, scholars usually rely on Articles 13, 20 and 47 as some constitutional authority regarding copyright protection33.

The reluctance reflected in the Constitution no longer exists in the General Principles of Civil Law (thereafter "the GPCL")34.  Article 94 of the GPCL provides that Chinese citizens 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 may be subject to criminal penalties36.

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 Regulation of the Copyright Law in which many detailed provisions were included to interpret the Copyright Law and try to align it with international conventions37.  The Copyright Law and the Implementing Regulation became the main legal authority of protecting copyrights, although they are criticized as having many shortcomings38.

a. Overview of the Copyright Law and the Implementing Regulation

The Copyright Law does not provide a straightforward definition of "Copyright"39.  Its objective is provided in Article 1.  The Copyright Law contains 56 articles, which are divided into six chapters40.  The Implementing Regulation itself contains seven chapters and fifty-six articles41.

b. The Subject Matter of 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, are not entitled to protection under the Copyright Law45.

c. The Rights of Copyright Owners

Copyright owners 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 kinds of 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 granted two kinds of economic rights to copyright owners: the right of exploitation52 and right of remuneration53.

d. Ownership of Copyright works

As a general matter, the copyrights in a work belong to the author54.  People acquire 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.

e. Limitations on copyright

The Copyright Law provides certain limitations on the rights of copyright owner57, which are similar as "fair use" provision in the 1976 U.S. Copyright Act58.

3. Copyright Protection by International Conventions or Bilateral Agreements

In January 1992, China and the United States signed a Memorandum of Understanding on Copyright Protection (thereafter "the MOU1")59.  As required by the MOU1, China acceded to the Berne Convention and Universal Copyright Convention60.  In 1995, in order to strengthen copyright enforcement in China, China and the U.S. signed another Memorandum of Understanding (MOU2)61.  To coordinate these bilateral agreement and international conventions, China issued the International Copyright Treaties Implementation Rules (thereafter the ICT)62.  The ICT extends protection to "unpublished" works of foreign authors.  At the same year, Chinese government 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 and provisions significantly strengthened the protection of foreign copyright owners in China65.  With the promulgation of these treaties and provisions, China's copyright protection system substantially meets international standards66.  Currently, in order to be a member of the WTO, China is revising its copyright laws to comply with the TRIPS67.
 
4. The Enforcement of Copyright Protection

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

a. Administrative Enforcement68

The National Copyright Administration (thereafter "the NCA") is the copyright administration department under the State Council and is responsible for the nationwide 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 effective than judicial enforcement73.  Besides the NAC, the General Administration of Customs (thereafter "the GAC") is authorized to protect copyright against imported or exported goods infringing copyrights74.

b. Judicial Enforcement

The first instance of copyright infringement case is tried by the intellectual property trial division at the level of the Intermediate People's Court75.  In the majority of cases, decisions by administrative bodies are reviewable by the courts.  Besides civil sanction, the courts could potentially impose criminal penalties upon infringers76.  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 in the case of administrative actions78.  However, the judicial enforcement has long been criticized as ineffective because of inexperienced judges, limited resources and understaffered situation79.  Since it is often uncertain exactly how administrative proceedings will operate in China, more and more foreign companies begin to seek judicial enforcement80.

5. Remedies and Liabilities for Copyright Infringement

a. Remedy by parties themselves--Mediation and Arbitration

According to the Copyright Law, victims of copyright infringement may seek the assistance of mediation to resolve 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 dispute82.  An arbitration award is enforceable by the courts.  However, if the award is set aside or the court refuses to enforce it, the parties are entitled to resort to litigation83.

b. Remedies available by enforcement institutions

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

(1) Civil Remedies

Civil remedies include public apology, cessation of infringement, removal of obstacles, elimination of effect of acts, 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 infringers89.

H. Copyright Protection in Cyberspace

1. The Internet in China Today

The Internet has become popular in China recently.  It grows at an extraordinary rate at this biggest developing and the most populated country.  A Chinese web site reported that China's Internet 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 the Internet not only for collecting information, but also for advertising commercial information, shopping 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 been 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 regulations95, which 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 management of the Internet in China did not really commence until 199699.  Current regulations on the Internet can be found at several web sites100.  The main authorities issuing regulations include the Ministry of Information Industry (the MII), the Ministry of Electronic Industry (the MEI), the Ministry of Radio-Film-Television (the MRFT) and the Ministry of Public Security (the MPS)101.

2. Legislation of 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 confronting the Internet copyright infringement cases, the People's Courts always 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 the 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.
 
a. The Interpretation explicitly provides that the People's Courts have jurisdictions over Internet 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.
 
b. 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.

c. 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 an 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.

d. The Interpretation also contains very detailed rules on when an Internet Access Provider will be regarded as taking part in infringing activities and when copyright holders can have cause of action.

If an IAP infringes, instigates or helps 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 IAP will be jointly liable with the subscribers under Article 130 of the GPCL if it did not take actions in removing infringement111.

e. 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 the victim should be direct economic losses plus anticipated profits, or profits acquired by the infringers.  The maximum amount of compensation is 500,000 RMB (approximately $36, 250)112.
2. Online Copyright Infringement Cases Reported by the People's Court113

The first Internet copyright infringement case the People's Court tried occurred as early as 1998.  Since then, more than 20 Internet copyright infringement cases have been tried by the People's Courts at all levels114.  This paper will summarize some important cases to illustrate the judicial perspectives on Internet copyright infringement.

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

The plaintiffs are 6 famous writers.  The defendant was one of China's earliest IAPs.  The defendant created 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 related regulations provides that dissemination of other's works over the Internet 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 means 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 the court's judgment but the appeals court affirmed it.

The Meng Wang et al case is the first intellectual property 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.

b. 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 that is authored by Xinhua Agency.  The defendant was an entity without legal personalities117.  The defendant had contracted with Beijing Hongxun Information Consultation Center (Hongxun Center), who would provide some economic information to the defendant and receive fees from the defendant.  From January 1st of 1999 to January 1st 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 can be summarized as 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 was 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.  Owner of the information enjoys copyright protection.  Since the defendant did not check up the ownership of copyright, its conduct is with fault.  Therefore, the court concluded that the defendant infringed the plaintiff's right of exploitation and right of remuneration118.

One 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.
 
c. Ruide Group v. Yibing Dongfang Information Service Co119.

In February 1998, the plaintiff began to update its web site which it created two years ago.  The plaintiff added some new functions, like search engine, to its web site.  In December 1998, the plaintiff found that a web site, owned by the defendant, an information trade company located in Yibing, Sichuan Province, had identical or resembling functions and pictorial signs as those in the plaintiff's web site.  The plaintiff brought the suit at 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 at 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 on its second argument.  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 concerned is owned by others.  The shift of burden of proof makes it very difficult for the defendant to defend itself.

d. Weihua Chen v. Chengdu Computer Business Daily and Xiaohui Zhang v. China Procuratorate Daily120

These two cases have similar facts: the plaintiffs sued the defendants for infringing their copyrights because the defendant reproduced the plaintiffs' works from the web sites 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 conduct did infringe 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.  In addition, the plaintiff's burden of proof is only to prove that he has access to the web site.

3. Summary

Presently, Internet copyright protection enforcement occurs only in the People's Courts.  When there is an online copyright dispute, the court preferred to hear the case.  Facing the dilemma that there are no applicable provisions in statute, the court always acts 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 Internet 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 be helpful to make comparison.

A. Copyright Law in the U.S.

1. Legal authority 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, 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 the 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 Internet copyright infringement case include fair use and first amendment132.

C. Special legislation concerning online copyright protection

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 ("the OCILL"), 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 IAPs and BBSs for infringing activities that occur by using their systems136.

There are many similarities between 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.

C. 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.

By contrast, the United States, 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 society.  Copyright is thought as a private right, which should be respected by other people and the government, and protected by the law.  Therefore, cultural difference played an important role in copyright protection enforcement in China and the United States.

D. 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 13, 20 and 47 of the Constitution form the bases for China's copyright legislations143.  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 the 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 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 legislation.  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 individual's 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

The 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 U.S. 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 than the U.S. Copyright Act.  The government can, for state or public interest, eliminate author's monopoly on his or her works.  Moreover, copyright protection term under Chinese Copyright Law is shorter than that in the United States.

3. Rights

Following civil law countries' tradition161, the Chinese Copyright Law provides both 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 in Chinese Copyright Law is Confucianism, which values people's spiritual interest and author's honor and reputation.  Therefore, in China, both legal tradition and cultural heritage led to the fact that protection of moral rights is more important than protection of economic rights.  Additional emphasis of moral rights in Chinese Copyright Law exists in the case of work for hire164.

4. Limitations on copyrights

The most important limitation on copyrights 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 of copyrighted works for the purpose of performing its official duties167.  The Implementing Regulation 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.

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 one kind of 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 remedies 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 GPCL174 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

I. 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, there are three different copyright enforcement systems in China: judicial enforcement, administrative enforcement and private enforcement177.  Of these three methods, private enforcement 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, the NCA in China has the power to impose civil penalties for copyright infringement180.  Although judicial enforcement exists, Chinese government clearly places an emphasis on private enforcement and administrative enforcement181.  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 China and the U.S.182.  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.

J. Online Copyright Protection Comparison

According to Huapeng Wang, director of the copyright department of the NCA, China is going to revise current Copyright Law in several aspects to improve the protection of the rights of domestic and foreign copyright owners and govern Internet copyright infringement189.  Currently, China's Internet 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 tradition in the case of online copyright infringement.  Nevertheless, a conflict will appear 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.

2. 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 of 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 copyright of opinions belonged to federal judges not the plaintiff.
In China Economic Information Publishing House v. China Science and Technology Information Institute191, the Chinese People's Court held that the plaintiff enjoyed the copyright because it invested a substantial amount of efforts and time in categorizing and editing information192.  Therefore, the measurement 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 plaintiff

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 People's 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.

3.Liability requirements are different for the infringer

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.

4. Copyright owners have different rights being infringed.

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 than to regular 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 align with the internationally acceptable standards.  However, problems still exist in granting more privileges to the plaintiff.

 A. Challenges 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.  The globalization shapes not only people's private life but also relations among nations.  The 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. Challenges from Internet Culture

 The 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 the Internet's openness global nature implied no legal liability for the IAPs213.  The 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 the globalization and the Internet culture.  In order to effectively protect copyrights in China, the U.S. and China had already entered into two Memorandums of Understanding in 1992 and 1995.  Although Chinese copyright protection has been criticized even after two agreements were entered into214, 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 the 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 copyright 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 China and the U.S. 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 challenges is a common task 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.  Given the assistance from the U.S. and more experience acquired in complying with international standard, China will make strides toward more effective 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. 

1. A good description of Internet can be found at American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Penn. 1996).

2. Efraim Turban, R.Kelly Rainer & Richard E. Potter, Introduction to Information Technology, 210 (2001).

3. Id, at 208.

4. Aileen A. Pisciotta, Regulation of International Communications in the Age of the Internet: Lagging Behind the Future, 33 Int'l Lawyer 367, 369 (1999).

5. Thomas J. Smedinghoff, Copyrights in Digital Information, 138-9, (Thomas J. Smedinghoff eds. 1996).

6. See website, http://www.ipmag.com/acook.html.

7. G. Peter Albert, Jr. and Laff, Whitesel & Saret, Ltd, Intellectual Property Law in Cyberspace, 207 (1999).

8. Jennifer Fan, Comment: The Dilemma of China's Intellectual Property Piracy, 4 UCLA J. Int.l L. & For. Aff. 207, 208 (1999).

9. Peggy Yeh, Yo, Ho, Ho, and a CD-Rom: The Current State of Software Piracy in the PRC, 31 Law & Pol'y Int'l Bus. 173, 182 (1999).

10. Id, at 182.

11. There are many good web sites about China law where basic copyright laws can be found: http://www.chinalaw.com, http://www.gchinalaw.com, http://www.chinainfolaw.com, and a special web site for judicial protection of intellectual property: http://www.chinaiprlaw.com

12. There are many good books describing Chinese legal system, like Feng Lin, Constitutional Law in China, 2000; Albert HY Chen, An Introduction to the Legal System of the People's Republic of China, 1993; and Xichuan Du and Lingyuan Zhang, China's Legal System: A General Survey, 1993.

13. See the Preamble of the 1982 Constitution, amended in 1988, 1993 and 1999 respectively.

14. Hong Xue and Chengsi Zheng, Software protection in China: A Complete Guide, 3 (1999).

15. Guiguo Wang and John Mo, Chinese Law, 1 (1999).

16. See Supra note 13, Article 57.

17. Basic laws include Criminal Law, General Principle of Civil Law, two Basic laws governing Hong Kong and Macao and laws relating to the organization of state organs.

18. The Composition of the NPC's Standing Committee, see Supra note 13, Article 65.

19. See Supra note 13, Article 67, Clause 2.

20. See Copyright Law of the People's Republic of China, effective June 1, 1991, translated by the National Copyright Administration of China.

21. See Supra note 13, Article 89, Clause 1.

22. See Implementing Regulations of the Copyright law of The People's Republic of China, Regulations for Computer Software
Protection; The International Copyright Treaties Implementing Rules.

23. See Supra note 13, Article 90.

24. See Supra note 13, Article 123.

25. See Supra note 13, Article 124.

26. Gregory S. Kolton, Copyright Law and the People's Courts in the People's Republic of China: A Review and Critique of China's Intellectual Property Courts, 17 U. Pa. J. Int'l Econ. L. 415, 417

27. Id.

28. Id.

29. See Supra note 13, Article 127.

30. See Supra note 13, Article 135.

31. See Supra note 20.

32. See Supra note 15, at 500.

33. See Supra note 13, Article 13, 20 and 47.  Article 13 provides that "the State protects the right of citizens to own lawful property."  Article 20 provides that " the State promotes the development of the natural and social sciences, disseminates knowledge of science and technology."  Article 47 provides that " Citizens have the freedom to engage in scientific research, literary and artistic creation and other cultural pursuits."

34. See The General Principles of Civil Law, adopted in 1996.

35. See id, Article 94.

36. See Criminal Law of the People's Republic of China, adopted in 1979, amended in 1997, Article 217.

37. Julie Cheng, China's Copyright System: Rising to the Spirit of TRIPS Requires an Internal Focus and WTO Membership, 21 Fordham Int'l L.J. 1941, 1961.

38. Chuntian Liu, Presentation Transcript, 5 U. Balt. Intell. Prop. J. 19, 21-22.

39. See Supra note 20.

40. Id, Article 1.

41. See Supra note 22.

42. Id, Article 2.

43. Reiko R. Feaver, China's Copyright law and the TRIPS Agreement, 5 J. Transnat'l L. & Pol'y 431, 438.

44. See Supra note 20, Article 3.

45. See Supra note 20, Article 4.

46. See Supra note 20, Article 10, Clause 1, 2, 3, and 4.

47. See Supra note 20, Article 10, Clause 5.

48. See Supra note 20, Article 10, Clause 1.  The right of publication means "the right to decide whether to make a work available to the public."

49. See Supra note 20, Article 10, Clause 2.  The right of authorship means "the right to claim authorship and to have the author's name mentioned in connection with the work."

50. See Supra note 20, Article 10, Clause 3.  The right of alteration means "the right to alter or authorise others to alter one's work."

51. See Supra note 20, Article 10, Clause 4.  The right of integrity means "the right to protect one's work against distortion and multilation."

52. See Supra note 20, Article 10, Clause 5.  The right of exploitation and the right to remuneration mean "the right of exploiting one's work by reproduction, live performance, broadcasting, exhibition, distribution, making cinematographic, television or video production, adaptation, translation, annotation, compilation and the like, and the right of authorising others to exploit one's work by the above-mentioned means and of receiving remuneration therefor."

53. Id.

54. See Supra note 20, Article 11.

55. See Supra note 22, Article 23.

56. See Supra note 20, Article 12, 13, 14, 15, 16 and 17.

57. See Supra note 20, Section 4.

58. See 1976 U.S. Copyright Act, Section 107.

59. See, 1992 Memorandum of Understanding between the Government of the United States of America and the Government of the
People's Republic of China on the Protection of Intellectual Property.

60. See, the International Copyright Treaties Implementing Rules.

61. See, 1995 Memorandum of Understanding between the Government of the United States of America and the Government of the People's Republic of China on the Protection of Intellectual Property.

62. See, Supra note 60.

63. See, Supra note 22.

64. You can find these regulations in the following web sites: http://www.lawinfochin.com, http://www.chinalaw.com and Http://www.gchinalaw.com

65. Michael N. Schlesinger, A Sleeping Giant Awakens: The Development of Intellectual Property Law in China, 9 J. Chinese L. 93, 113.

66. See, Supra note 43, at 438.

67. Id.

68. See, Supra note 22, Article 7.

69. Id.

70. Id, Article 8.

71. Shan Liu, Enforcement of computer software copyright protection in China, Master thesis for LLM at the University of Washington, 1996.

72. See, Supra note 22, Article 7, Clause 1-7.

73. Donald Clarke, Private enforcement of intellectual property rights in China, 30, 10 NBR Analysis, 1999.

74. See, Supra note 22.

75. Kenyon S. Jenckes, Protection of Foreign Copyrights in China: the Intellectual Property Courts and Alternative Avenues of Protection, 5 S. Cal. Interdis. L. J. 551, 559, 1997.

76. Id.

77. See Supra note 73, at 35.

78. Id, at 36.

79. Geoffrey T. Willard, The Protection of Computer Software in the People's Republic of China: Current law & Case developments in the "One-Copy" Country, 14 J. Marshall J. Computer & Info. L. 695, 714.

80. Id, at 715.

81. See Supra note 20, Article 48.

82. Id, at 49.

83. Id.

84. See, Supra note 34, Article 130.

85. Id, at Article 131.

86. Id.

87. Id.

88. See Supra note 36, Article 217.

89. See Supra note 23, Article 50-53.

90. For relevant information, please go to web site, http://www.cinet.com.cn

91. Id.

92. W. Choy, The Internet in China, 13 Colum. J. Asian L. 99, 104, 1999.

93. Id, at 101.

94. Id.

95. Id.

96. Id.

97. Id.

98. Jiangyu Wang, The Internet and E-commerce in China: Regulations, Judicial Views, and Government Politics, 18 Computer & Internet Law 12, 13, 2001.

99. Id.

100. Id.

101. Id.

102. Go to web site, http://www.chn.org

103. Go to web site, http://www.chinaiprlaw.com

104. See, Supra note 98, at 24.

105. Beijing and Shanghai are the earliest cities of being able to access to the Internet in China.  At the same time, most of Internet
population in China locates in these two cities.  Currently, more and more people from other cities are able to access to the Internet.

106. See Supra note 103

107. Id.

108. Id.

109. Id.

110. Id.

111. Id.

112. Id.

113. Id.

114. Id.

115. Id.

116. Id.

117. Id.

118. Id.

119. Id.

120. Id.

121. Id.

122. See, Supra note 98, at 25.

123. See, http://www.cyberspacelaw.org, or The U.S. copyright office, http://www.loc.gov/copyright/circs/circl.html

124. 17 U.S.C. 102.

125. 17 U.S.C. 107.

126. 17 U.S.C. 201.

127. 17 U.S.C. 107-121.

128. 17 U.S.C. 107.

129. Playboy v. Frena, 839 F.Supp. 1552, 194.

130. Id.

131. Id.

132. See, the Digital Millennium Copyright Act of 1998

133. Id.

134. Id.

135. See, The Online Copyright Infringement Liability Limitation Act

136. Id.

137 Liwei Wang, The Chinese Traditions Inimical to the Patent Law, 14 J. INT'L L. &  BUS. 15, 15, 1993.

138. Gerardo Lara, Comments: The Piracy of American Films in China: Why the U.S. Art Form is not Protected by Copyright Laws in the People's Republic of China, 2 UCLA J. Int'l L.& For. Aff. 343, 344, 1998

139. Id, at 345.

140. See Supra note 37, 1977

141. Id.

142. Jill Chiang Fung, Can Mickey Mouse Prevail in the Court of the Money King?  Enforcing Foreign Intellectual Property Rights in the People's Republic of China, 18 Loyola. L.A. Int'l & Comp. L.L. 613, 620, 1996.

143. Id.

144. Id.

145. Weiqiu Long, Intellectual Property in China, 31 St. Mary's L. J. 63, 70, 1999.

146. Keshia B. Haskins, Special 301 in China and Mexico: A Policy which Fails to Consider How Politics, Economics, and Culture Affect Legal Change Under Civil Law Systems of Developing Countries, 9 Fordham I.P. Media & Ent. L.J. 1125, 1130, 1999

147. Id.

148. Id.

149. G. Peter Albert, Jr. & Laff, Whitesel & Saret, Ltd., Intellectual Property Law in Cyberspace, 1999.

150. Id.

151. Chong Zheng Ren, Copyright Law of China: Can It effectively Protect U.S. Works?  16 Loy. L.A. Ent. L.J. 67, 70, 1995.

152. Id.

153. Id.

154. See, Supra note 20, Article 2.

155. Id.

156. Id, see Article 4.

157. Id, see Article 5.

158. Compare Chinese Copyright Law with 1976 the U.S. Copyright Act.

159. See, Supra note 20, Article 11.

160. See, Supra note 124.

161. Many civil law system countries have provided moral rights for copyright owners in their copyright laws.

162. See, Supra note 20.

163. See, 17 U.S.C. 105.

164. See, Supra note 20, Article 16.

165. See, 17 U.S.C. 107.

166. Id.

167. See Supra note 65, at 113.

168. Id.

169. Id.

170. See, 17 U.S.C. 501-506.

171. See, Supra note 22, Article 50.

172. See Supra note 151, at 69.

173. Daniel Behrendt, Computer Software Copyright Law in the People's Republic of China, 2 U.C. Davis J. Int'l L. & Pol'y 1, 3, 1996.

174. Id.

175. Id.

176. See 17 U.S.C. 104.

177. Private enforcement includes mediation and arbitration.

178. Amy E. Simpson, Comment: Copyright Law and Software Regulations in the People's Republic of China: Have the Chinese Pirates Affected World Trade?  20 N.C.J. Int'l Law & Reg. 575, 593, 1995.

179. See 17 U.S.C. 101.

180. See, Supra note 22, Article 50.

181. See Supra note 142, at 633

182. Patrick H. Hu, "Mickey Mouse" in China: Legal and Cultural Implications in Protection U.S. Copyrights, 14 B.U. Int'l L.J. 81, 87,
1996.

183. Glenn R. Butterton, Pirates, Dragon and U.S. Intellectual Property Rights in China: Problems and Prospects of Chinese Enforcement, 38 Ariz. L. Rev. 1081, 1106, 1996.

184. Id.

185. Id.

186. Id.

187. Id.

188. Id.

189. http://www.china.org.cn/english/6388.htm

190. http://www.jmls.edu/cyber/cases/bender1.html

191. http://www.chinaiprlaw.com

192. Id.

193. Feist v. Rural, 499 U.S. 340.

194. Playboy v. Frena, 839 F.Supp. 1552.

195. Id.

196. See Supra note 191.

197. Id.

198. http://www.loundy.com/CASES/PEL_v_Webbworld.html

199. Id.

200. See Supra note 191.

201. Id.

202. Id.

203. See Supra note 200.

204. Id.

205. Id.

206. Thomas L. Friedman, The Lexus and The Oliver Tree, 9, 1999.

207. Id.

208. David Zimmerman, Hong Kong and China: The 1997 Transition: Note: Global Limits on "Look and Feel": Defining the Scope of
Software Copyright Protection by International Agreement, 34 Colum. J. Transnat'l L. 503, 503, 1996.

209. See Supra note 2, at 220, 208.

210. Id.

211. Eric Schlacher, The Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet, http://www.law.berkeley.edu/btlj/articles/12_1/Schlachter/html/text.html

212. A&M Records, Inc. v. Napster, 114, F.Supp.2d 896 (N.D. Cal. 2000)

213. Http://www,chinaiprlaw.com

214. Eric M. Griffin, Stop Relying on Uncle Sam! - A Proactive Approach to Copyright Protection in the People's Republic of China, 6
Tex. Intell. Prop. L.J. 169, 171, 1998.

215. Derek Dessler, Comment: China's Intellectual Property Protection: Prospects for Achieving International Standards, 19 Fordham Int'l L. J. 181, 240, 1995.

216. See Supra note 37, at 2005.

217. Susan Tifefenbrun, Piracy of Intellectual Property in China and the Former Soviet Union and its Effects Upon International Trade: A Comparison, 46 Buffalo L. Rev. 1, 68, 1998.

218. See Supra note 173, at 15.

219. See Supra note 182, at 87.

220. See Supra note 178, at 624.

221. See Supra note 31, at 2012.

222. Id.

223. See Supra note 8, at 235.

224. See Supra note 151, at 103.

225. Id.