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Copyright in China and the United States Research Paper


Introduction

Motivation

The legal protection granted by the copyright confers incentives for artists and authors to create valuable works. According to Baugher, copyright grants authors, performers, and publishers moral and economic rights (3). This is achieved through efficient mechanisms and procedures that enforce copyright laws. Thus, copyright is an important issue for artists across the globe. This is because songs, movies, texts, and other products in the creative industry are often used without the permission of the creators. In China, the copyright is protected much more poorly than in the USA. Therefore, comparing the two countries might shed some light on the problem present in China and expose the reasons for this situation.

Thesis Statement

A well balanced and efficient system for the protection of the copyright is important for the preservation of culture, national identity, and promotion of creativity (Rana and Rowland 7). The copyright laws and enforcement procedures differ depending on the country. While the copyright in the USA is rather well-protected, the situation in China is much more adverse from the legal, economic, and political points of view, and thus requires some important changes to be implemented in all the three areas in order to improve.

Literature Review

The Current Situation with Copyrights on Movies, Books, and Music in the USA

In the USA, copyright issues are explicitly provided under article 1, section 8 of the US Constitution (Baugher 2). The clause gives powers to Congress to promote useful arts and science. This is achieved by securing for limited times that ensure that the authors and inventors have exclusive rights to their arts and discoveries. The implication of this law is that once a work is copyrighted, it is protected and secured from the use of other people.

Copyrights on Movies in the US

The current copyright on Movies in the US is detailed in the Federal Copyright Act Title 17 of the United States Code (Baugher 1). The law provides that motion pictures and audiovisual works that are available for purchases are limited to home and personal use only. This prohibits the use of the work for public performance. This provision ensures that public performance of films without an authorized license is illegal. However, copyright law allows movies to be shown to nonprofit educational institutions without the license for purposes of face to face teaching.

Copyrights on Books in the US

The authors of books in the US are given exclusive rights to publication. This implies that the copyright holder is the only entity that is allowed to publish the work. Just as in the case of the motion pictures, any other person who wants to publish the book should obtain permission from the copyright owner. It is worth noting that the right to publish and the right to create and distribute the copies of the book are different. However, the rules are similar because they guarantee exclusive rights to the creators, distributors, and publishers. The copyright law on books requires that when reading a book to the public, one is supposed to obtain a license that permits the public recital.

Copyrights on Music in the US

According to Baugher, music copyright is created automatically once the composer writes or records his/her composition in a tangible medium of expression (3). This implies that once the music has been written on paper or recorded on a music disk drive, it becomes automatically copyrighted. The copyrighted work should include the word copyright or symbol ©, the year the music was published, and the name of the composer (Handke 11). In the case of plagiarism of the composition, the owner has the right to instigate a suit for infringement of the copyright. In the USA, there are rights performing societies such as ASCAP and BMI in which the composers and publishers delegate performing rights.

The Current Situation with Copyrights on Movies, Books, and Music in China

The works of Chinese citizens, legal entities enjoy copyright in accordance with the Copyright Law of the People’s Republic of China (Zhang 28).

Copyrights on Movies, Books, and Music in China

According to Cheng, copyright on movies, music, and books in China is based on personal and property rights (5). Under the personal and property rights, examples of copyrighted products include screenplays, music, books, and cinematographic works. Despite the laws, there has been widespread piracy in China. For instance, the Chinese Copyright Protection Law enacted in 1990, did not include overseas movies (Rana and Rowland 11). As a result, overseas films in China were repeatedly infringed. However, amendments in 2001 incorporated overseas works. In relation to the film industry, Chinese legislators have adopted a common law approach. The law designates the producer of a film to be the statutory copyright owner. Currently, the China Film Copyright Association (CFCA) is in charge of upholding copyright issues. CFCA currently charges internet cafes and long-distance buses as a measure to enhance copyright benefits.

Analysis Approach

Scope of the Analysis. Copyrights on Movies, Books, and Music

Their Condition in the USA and China

The copyright law in China was enacted in 1991. In 2001, it was amended. According to the legislation, there is no requirement for registration in order to enjoy the copyright. The copyright is extended to entities and individuals from countries that are party to trade treaties (Cheng 6). The infringement of copyrights can be addressed by filing a complaint with the local administrative office or through a judicial track in which the owner files a complaint in a special court panel obligated to deal with copyright issues. The role of enforcement and administration is handled by the National Copyright Administration (NCA).

Reasons for the Conditions

China and the US signed the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (Zhang 29). The two agreements have been fundamental because they outline the minimum standards for copyright regulations in the two countries (Zheng 234). The agreements guarantee artists ‘automatic’ rights to the works they produce. In addition, the agreements provide that the works remain copyrighted for at least fifty years after the death of the creator. This provision exempts cinematographic and photographic works.

Legal, Economic, and Political Causes

Methods for the Analysis of the Condition of Copyrights in China and the US

The analysis of the conditions of copyright in China and the US was based on a quantitative and qualitative review of the literature and published documents. For example, documents from International Intellectual Property. The other method was the comparisons between the copyright laws in the USA and those in China.

Methods for Finding out the Reasons for the Condition of Copyrights in China and the US

The current copyright conditions in the two countries differ significantly. This is despite the countries having tough legislation that is supposed to protect the people in the creative arts. In order to establish the reasons for the varying conditions, the methods applied entailed a survey of the legal, political and economic orientations of the two countries. The process involved collection of published data and the use of questionnaires on what people think about copyright. The questionnaires probed the economic perspective of people in relation to the copyright.

Methods for Legal, Economic, and Political Analysis of the Condition of Copyrights

The data collected by use of questionnaires, literature reviews, and field surveys was analyzed using both the qualitative and quantitative analysis. This was subjected to a comparative analysis between China and USA based on the legal, economic and political analysis. For example, the legal analysis reviewed court cases that relate to the infringement of the copyrights in the two countries. On the other hand, the political analysis examined the political interest and social orientations of the two countries. An example was the examination of the Confucianism ideology in China and the capitalistic culture in the US and their influence on current copyright conditions.

Results

The Reasons for the Current Situation with Copyrights in the USA and China

Reasons for the Situation in the USA

The copyright laws in the US confer exclusive rights to authors so as to encourage production of creative works (Baugher 2). Various exemptions and limitations balance the rights. For example, the ‘fair use’ policy in the US, which permits the use of copyrighted work without authorization in certain environments such as nonprofit schools. The copyright plays a critical role in the US economy and cultural development (Baugher 4). As a result, the US government has an elaborate system for the enforcement of the copyright laws. The process relies on a judicial process which can either be a civil or criminal proceeding. The strictness and the relevance given to the copyrights have resulted in a moral culture in which people respect intellectual rights.

Reasons for the Situation in China

The Chinese copyright system dates back to 1970s. However, the copyright law of the People’s Republic of China was passed in 1990 and its enforcement started in 1991. In order to strengthen the legislation on the copyright, China has entered into bi-lateral cooperation such as the Berne Convention and TRIPS Agreement. Today China has a modern copyright legal system. The influence of international trade has led to the substantial development of the Chinese copyright based industries.

Legal, Economic, and Political Analysis of the Condition of Copyrights in the USA and China

Legal Analysis of the Condition of Copyrights in the USA

As noted by Levitt, copyright laws grant primary monopoly to the copyright holder the exclusive right to create and distribute copies of the work he/she has created (225). The implication is that other people who want to create or distribute the materials must seek permission from the copyright owner. In addition, the US has the ‘fair use’ doctrine. The doctrine is codified in Copyright Act of 1976. The doctrine acts as a critical balancer of the authors’ interests and the exploitation control (Baugher 5). As a result, it is fact intensive. For instance, in the contemporary technological world such as the online platforms the enforcement of the copyright laws has been difficult. Thus, the ‘fair use’ provides a flexible balance that is adaptable to the online environment. For instance, it plays a great role in internet search results and the digital detection of plagiarism.

Legal Analysis of the Condition of Copyrights in China

The publications, printing, and the issuing of publications that are not authorized by the copyright owner are termed as illegal businesses that interfere with the market order. Article 225 of the Chinese criminal laws regards such actions as a crime (Levitt 225). Thus, the people who violate the process can be sentenced through a judicial process.

Comparison

Both in China and the US, the legal relief for copyright infringement can be achieved through judicial proceedings. Further, the laws of China permit the Chinese government to involve itself in the punishment of serious infringements of copyrights, which are not to the level of crime. This is achieved through administrative protection. Despite the similarities, the process of enforcing laws varies in the two countries. According to Rana and Rowland, the enforcement of laws that relate to copyright in China are weaker compared to US (12). As a result, cases of music, films and book piracy are higher in China compared to the US.

Economic Analysis of the Condition of Copyrights in the USA

The copyright laws in the US introduced compulsory licensing for public performance of copyrighted works. The efficiency of the compulsory licensing is supposed to enhance fair exploitation of economic resources. This is achieved by ensuring that ‘value’ of creative work is measured by the willingness of consumers to pay for services and goods (Baugher 5). In addition, the copyright law makes an economic consideration of externalities. This relates to the play or performance of music in public places. For example, a record purchaser has a right to listen to the music at home with the family. However, when the music is played in public places, third parties are deemed to have enjoyed the benefits of the artists’ labor without paying. This is considered as an economic externally and results in inefficient market allocation. As a result, display of copyrighted material to the public requires a license in order to control the inefficiencies caused by the externalities.

Comparison

The compulsory licensing by government acts as a control of the copyright infringements. This helps both the artists and the states to benefit economically from the proceedings of compulsory licensing. Despite the relations, the copyrights laws have not been of great economic benefit to China and the artists selling their products in the country.

Political Analysis of the Condition of Copyrights in the USA

In the US, the Congress has the powers to enact laws that relate to copyright protection (Baugher 6). For a long time, there have been a good political will that has led to the enactment of stringent laws that have protected the copyrighted products. In addition, the political class in the US has stringent rules against acts of corruption. The copyright laws provide protection for lifetime of the author plus 70 years. For the music published before 1923, it can be copyrighted under derivative work (Handke 13). For example, modern editions of Beethoven’s work are copyrighted under derivative work.

Political Analysis of the Condition of Copyrights in China

Political factors have influenced the current situation of the copyright in China. The enactment of the copyright legislations has been a political struggle that has been influenced by both internal factors and external factors (Zheng 235). For instance, the threat of trade sanctions by the US has been a driving force to the enactment of the copyright protection. The externa influence has been due to the lack of the political enthusiasm in the enactment of laws to deter piracy.

Comparison

In the two countries, the politicians have the mandate to ensure that they enact laws that protect artists and other entities from infringement of copyrights. The implementation of the laws is influenced by the political willingness to promote the

Discussion

The Significance of the Findings Given in the Paper for the Future Development of Copyrights in China

The copyright law in China points to the positive strides that China has taken to protect artists in the last two decades. In addition, the amendment of the laws to accommodate international treaties and agreements such as Berne Convention and TRIPS Agreement depicts a move towards Chinese economic integration and attraction of foreign investment. The weak enforcement has been the main hindrance to the development of the copyright in China.

The Author’s Personal Opinion about Copyrights in the US and China

What the Author Thinks about the Laws on Copyrights in Both the US and China

The enforcement of copyrights in China lacks genuine impetus. For instance, the culture of China places emphasis on the subordination of individual interests to societal good. The Confucianism ideology that has remained dominant in China places a lot of emphasis on the good of the society instead of personal reward. This is contrary to the capitalist ideology in the USA. As a result, the implementation of the laws that relate to copyright is affected by the national cultural traits and orientations. Therefore, despite the similarity between copyright laws in USA and China, the process of implementation is greatly affected by the socio-cultural, political, economic and legal systems.

Are American And Chinese Laws on Copyrights Fair for the Authors and Organizations that Create Copyrighted Products?

The American laws on copyright are fair on authors and organizations that create the copyrighted products. For instance, the US laws provide exclusive rights for the copyright holders. However, the issue of the ‘fair use’ has been criticized for not being fair. Contrary to the criticism, the critical review of the ‘fair use’ shows that it is flexible and provides a basis for the application of the copyright in the modern technological world. In the case of the China, the failure of the laws to incriminate purchasers of copyrighted products who make free copies for friends is not fair.

Is it Possible to Revise and Improve the Laws on Copyrights in the US and China?

The laws on copyright can be amended to make them applicable to the current work environment. For example, the increased use of internet has made it difficult to legislate on some products that are easily transmitted on the internet without permission from the copyright owners.

Ways these Laws can be Revised

In China, the laws can be improved by making amendments that bar people from piracy practices. However, it is worth noting the Congress in the US has powers to amend the laws; hence, in case of any shortcomings and lobby from the artists the laws can be amended.

Possible Obstacles on the Way of Improving the Copyrights Legislation

In China, external factors have influenced the enactment of copyright laws and the subsequent amendments since 1991. For example the US threats of trade sanctions. Thus, improving the copyright laws in China faces the obstacle of lack of political will. Prior to the laws, the Chinese culture did not recognize the works of mind as property. This meant that authors did not have the right of ownership to their creations. As a result, the language of copyright in China subordinated the individual interests. Thus, socio-cultural orientations serve as an obstacle.

Possible Ways to Change the Current Situation in China

The current situation in China can be changed by setting systems that ensure copyright protection at the local levels. The systems should contain policies that teach people the importance of respecting copyright in order to change their mindsets. In addition, both the judicial and the administrative protection should be strengthened through financial support in order to enhance their ability to implement the laws.

Conclusions

Summary of Objectives: the Description of Current Situation with Copyrights in the USA and China; Its Analysis from Legal, Economic, and Political Points of View

The protection of copyright is a critical legislation in the field of art and creativity. The main role of copyright protection is to promote the literary, musical, and artistic creativity. In addition, copyright is used to protect national cultural heritage and the distribution of the cultural and information products to the public.

The Paper’s Approach: Analysis Based on a Literature Review

The analysis of the condition of the copyright laws in China and the US established that the countries have enacted laws, which are supposed to protect copyrighted products from infringement. Based on the literature review, it was established that the US laws give exclusive rights to creators of products. In China, the laws are aimed at protecting individual and organizational works.

Major Findings of the Paper: The Adverse Condition of Copyrights in China

The enforcement of copyright laws in China is weak compared to the US. The difference in enforcement is due to several factors. China does not criminalize infringements that are carried out without the intent of making a profit. For example, a person who buys a creative work in China and distributes it to friends is not held accountable for infringement. In contrast, courts in America consider such an act a punishable crime. The lack of criminal charges for people who infringe on copyright for non-profit intent reduces the effectiveness of copyright protection. In China, the socio-cultural factors also act as impediment to copyright laws.

Implications of the Paper’s Findings: Possible Solutions to the Adverse Condition of Copyrights in China

The weak enforcements in China are due to legal, cultural and social factors. In relation to cultural orientation, the majority of Chinese believe that copying is not wrong (Cheng 15). As a result, piracy and disrespect of copyrighted products are very high in China. In order to address the issues, there is the need for change in the mindset of the people and the political good will to drive the change process through legislation.

Implications for Future Research: Detailed Analysis of Ways to Improve the Current Situation

In China, local protectionism has been one of the major hindrances to the administrative and judicial enforcement of copyright laws. In addition, there is the lack of financial and technological resources that are required in the enforcement process. Therefore, there is the need for future researches to analyze the socio-cultural, legal, political and economic factors that hinder the enactment of the copyright laws in China. The studies should also focus on the local protectionism and strategies that can be used to overcome the problem. The endeavor to discover the local factors will be critical in enacting laws that alleviate the issue of copyright infringement in China.

Works Cited

Baugher, Joseph. Issues in American Copyright Law and Practice, New York: The Penguin Press, 2015. Print.

Cheng, Frank. (2006). “Copyright in the US and China: Differences in Policy and in Practice.” Chinese Librarianship: an International Journal, 22.1 (2006): 1-19. Print.

Handke, Christian. Economic effects of copyright. Computer and Telecommunications Law Review 13.2 (2011): 7-19. Print.

Levitt, David S. “Copyright Protection for United States Government Computer Programs.” Idea 40.2 (2000): 225-227. Print.

Rana, Shruti, and Garland Rowland. “China’s New Copyright Law Reforms: A Comparative Analysis.” Santa Clara Law Review Journal 2.1 (2013): 2-19. Print.

Zhang, Jing. “Pushing Copyright Law in China: A Double-Edged Sword.” DePaul Journal of Art, Technology & Intellectual Property 18.1 (2007): 27-29. Print.

Zheng, Derong. “Comparative Research on Reproduction Concept in US and China Copyright Laws.” Canadian Social Science 10.5 (2014): 233-239. Print.

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IvyPanda. (2020, July 4). Copyright in China and the United States. Retrieved from https://ivypanda.com/essays/copyright-in-china-and-the-united-states/

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IvyPanda. 2020. "Copyright in China and the United States." July 4, 2020. https://ivypanda.com/essays/copyright-in-china-and-the-united-states/.

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