Protecting Copyright in the Digital Era in China: A Critical Analysis of the Relevant Law and Practice from a Comparative Perspective

Abstract

China, as the birthplace of several great inventions, is no stranger to creativity, and, indeed, innovation. That said, while the notion of copyright has for a long time been recognised as being essential to the protection of Chinese inventions, it is perhaps regrettable that the existing system of copyright protection in that country remains largely inefficacious, at least when compared to western countries, in terms of addressing the key challenges and complexities posed by the rapid developments that characterise the digital age. It is against this backdrop that this thesis has been conceptualised; the overarching aim, in this regard, being to assess the development and nature of copyright protection in China, from a comparative perspective, in an effort to unearth the challenges that arise in the digital age, and to proffer suggestions for reform in this regard.

More specifically, through the adoption of the doctrinal, historical and comparative methodologies, this thesis examines the historical evolution of copyright protection in China, and argues that while there has been some progress in recent years in terms of copyright protection that commensurate with China's economic development and international obligations, a number of outstanding issues remain unresolved, especially with regard to striking the right balance between competing interests. The thesis also evaluates the role of emerging technologies, such as peer-to-peer technology, and argues that China has struggled to address many of these challenges associated therewith, notwithstanding the progressive approaches countenanced by other jurisdictions. The thesis argues that one of the main challenges that account for the existing inadequacy that characterises China's system of copyright protection is the country's very history and culture, which do not ascribe a high degree of primacy to the exclusive rights of copyright owners. History and culture, among other, mostly legal, factors, might also account for the currently high levels of uncertainty that characterise the construction of secondary liability in relation to ISPs in China. Apart from assessing the uncertainties associated with secondary liability, however, the thesis will also examine the complexities and challenges that surround the use of emerging technologies, such as technological protection measures, that aim to protect copyright in the digital era, and argues that while these challenges are real, they are not at all insurmountable. Against this backdrop, pragmatic solutions, drawing largely from other jurisdictions, are provided throughout this thesis.