Administrative enforcement of copyright: how to determine injuries to public interest

2012/06/14,By Yang Yong, Director of Investigation and Inspection Division of Shanghai Municipal Cultural Law Enforcement Corps,[Copyright]

The copyright administrative department is responsible only for investigation of “infringements upon copyright when causing damage to the public interest simultaneously.” There are difficulties for copyright law administrative enforcement in terms of the application of laws, regulations, and the practice of law enforcement, which are mainly embodied in the identification of nature of “public interest.” Current laws and regulations have not given a clear answer to the criteria to judge whether an infringement is in violation of public interest or not. Therefore, it is of great significance to have studies on the criteria for copyright law administrative enforcement.
I. The concept of “public interest” within the Copyright Law
According to Roscoe Pound, based on theories of Rudolph von Jhering, interests are divided into three categories: personal, public and societal. Pound held that societal interest is equivalent to propositions, demands and aspirations that exist in societal life and proposed by people to maintain normal social order and activities.
In China, opinions vary over the meaning of and the relation between societal and public interests. It is the author’s view that societal interest is broader than public interest, and societal interest is the common value orientation for the whole society, the sum of interest of an unspecified large majority of people, and the sum of various public interests. Copyright law has its specified subject matter for regulation. Although it may have an indirect influence on the whole society in the end, copyright laws and regulations have never had such a wide coverage. Therefore, it is more appropriate to adopt the term of “public interest” instead of “societal public interest” when studying the purpose and means of copyright administrative protection.
Public interest is a concept originated from administrative law, which deals with relations between g over nment and members of the public, and public interest defines the outer boundary of the government’s powers. Statutory laws of various countries would not define public interest in precise terms, but in general and abstract terms, simply because public interest is highly generalized and abstract. It is an infrastructural concept, similar to good-faith and orderly conduct. Thus, it may be defined as the interest which is necessary for the existence and development of a particular societal group, and enjoyed by any unspecified member in that group.
In China, public interest refers to those necessary rights enjoyed by specified social groups and individuals for their subsistence and development from a point of administrative law, whereas its requirements is basically identical to that of other countries in the field of civil law. It can be seen from the wording of articles of relevant laws that public interest has something relevant to social moral, national economic plan, and market economic order to some extent although there is no explicit connotation and extension of public interest between the lines of the texts of laws.
Therefore, to determine public interest within the meaning of administrative enforcement of copyright, it is necessary to draw on other relevant provisions of administrative regulations, in compliance with the fundamental principles of the Civil Law which is the controlling law, in comprehensive consideration of the legislative purpose of the Copyright Law.
II.  Varieties and features of “public interest”
Public interest as concerned under the Copyright Law, mainly relates to use and dissemination of the copyrighted work that affect public interest, as in public dissemination, public order, fair competition, public safety, public morals, etc…
1. Public dissemination
Public dissemination has an obvious influence on copyright because of its openness, fastness, convenience, sharing, wideness of coverage, and other features, inevitably resulting in some difficulties in the protection of public interest involved in the public dissemination of copyright. In accordance with the Article 48 of the Copyright Law of the People’s Republic of China, unauthorized acts of reproducing, distributing, performing, presenting, broadcasting, compiling a work or making it available to the public through information network is mainly featured by offering infringing works to the public through a variety of media and means of expression.
Public dissemination by information networks can be described as the open reproduction or dissemination of works to the public by way of information networks and other means. Focusing on a large number of non-selective public users and by way of make a work available to the public by wire or by wireless means, so that the public may browse, dibble, exploit, download, or watch specified works from a place and at a time individually chosen by them. The negative influence of public dissemination by information networks will vary in direct proportion to the extent of such dissemination and so does its impact on public interest. The most typical example in this regard is the act of couple’s watching pornographic films at home, which can not be ascertained as dissemination of pornography because its small audience causes and little influence and no damage to public interest. Conversely, when pornographic films are shown at the video halls and cinemas, it shall be regulated by the Law of the People’s Republic of China on Public Security Administration Punishments, and other laws and regulations because of its damage to public interest resulting from its wide coverage and large influence.
2. Public order
Public order within the meaning of exploitation and dissemination of copyright refers to those public order that citizens or legal persons, who know or ought to know the stipulation of copyright laws and regulations and relevant administrative procedure, obtain per mission from the owner of the copyright before dissemination to the public in accordance with the provisions of laws and regulations.
The importance of public order in administration and civil activities can be seen from the stipulation of Article 1 and Article 7 of Law of the People’s Republic of China on Administrative Penalty.
Generally speaking, dissemination of works without permission of copyright owner shall disrupt the normal public order of copyright market. In its replies to Request of Copyright Bureau of Zhejiang Province for Understanding and Application of “Damaging Public Interest” when Investigating Copyright Infringement Cases, National Copyright Administration (NCA) holds that “damage to economic order is the concrete embodiment of damage to public interest.” Therefore, where illegal dissemination of works harms economic order, it shall be ascertained as acts in violation of public order, which means the public economic order of market economy.
3. Public administration
Public administration in a copyright sense relates to governmental administration for the protection of copyright exploitation and dissemination. It includes: a. the administration for rational use of copyright, the authorized exploitation and protection of works within the coverage of dissemination, such as the supervision of copyright administrative departments on the right to disseminate works through information network; b. the administration for authorized reproduction and exploitation of computer software copyright after registration; c. the public administration in pursuit of judicial remedies and administrative protection where infringer continues to deliberately harm copyright administration order.
In accordance with the relevant provisions of China’s administrative regulations, public interest means it is the duty of administrative organs to intervene where the illegal acts of anyone hamper other’s exploitation of his copyrights and public interest. Therefore, it is typical of public administration for copyright supervise and regulate infringement upon public interest in accordance with laws, regulations, and administrative rules.
Paragraph 2 of Article 15 of Administrative Rules about Audiovisual Programs Transmitted over Internet stipulates that “Internet A/V program service provider work units shall respect copyright law and stipulations in administrative laws and regulations, adopt measures to protect copyright, and protect the lawful interests of copyright holders.” Article 12 of Interim Measures for the Administration of Online Games provides that “applicant for the content review of imported online games should be legally authorized to obtain exclusive network game operators’ business.”
All the above-mentioned administrative rules are enacted for competent authorities to regulate the exploitation and dissemination of copyright through the establishment of administrative license or penalty to safeguard public interest.
4. Fair competition
Fair competition in a copyright sense refers to an environment for equal market players to compete equally within the same target market and market segmentation in accordance with the administrative order of copyright exploitation and dissemination. Copyright has a typical attribute of property when it is involved for profit in communication through information network and operation by way of reproduction and business exploitation. Business gains resulted from illegal exploitation is in fact a kind of unlawful act for reducing operation cost, a kind of unfair competition behavior for illegal profits, which disrupts the administrative order of and harm the environment for fair market competition.
NCA says in its Replies to the Request for Understanding and Application of “Damaging Public Interest” when Investigating Copyright Infringement Cases that “all the said acts of infringement of Article 47 of the Copyright Law may infringe upon public interest pursuant to the Law when the ascertainment of damaged public interest is required. Generally speaking, it shall constitute unfair competition if anyone disseminates infringed works to the public because it shall impair economic order, a concrete harm to public order.” In the 2002 Transitional Review, NCA gave a definite reply that any act shall be ascertained as damages to public interest where it constitutes unfair competition and impair economic order.”
All the above-mentioned explanations and replies not only stipulate that any act against fair competition and economic order shall constitute damages to public interest, but also set up a clear target for government to safeguard a market order with fair competition.
5. Public safety
Public safety as used in copyright sense refers to the safety of public contents during the process of infringed dissemination and exploitation of copyright. It includes: a. The safety defects in material or additional contents, resulted from inefficient supervision on contents and procedure, shall impair user’s health body and mind. In detail, they are problems of public cultural safety in the fields of ideology and others, which can be attributed to the illegal publishing and disseminating of works; b. Problems of public safety in works resulted from the dissemination of prohibited contents without permission of copyright owner which are harmful or in violation of personal privacy, business secret, State’s safety and others to the public; c. Exploitation risk resulted from no guarantee of contents or technology from copyright owner because of infringement. For example, pirated computer software used which installs viruses and loopholes from which computer and public safety may be affected through dissemination without authorization.
At this stage, China’s governmental departments concerned shall take the responsibility for the administration of dissemination of movies, TV programs, online games, music, and other cultural products related to contents safety of public culture to the public. Definite regulations on the safety of public cultural contents have been stipulated in many laws, regulations, and administrative rules, such as the Copyright Law, the Regulation on Internet Information Service, Administrative Rules about Audio-visual Programs Transmitted over Internet, the Interim Provisions on the Administration of Internet Culture, the Interim Measures for the Administration of Online Games, and etc…
6. Public morals
Public morals in a copyright sense refer to the social public ethical standards and behavior, namely, good morals universally recognized by the public during the process of dissemination and exploitation of copyright.
It has been popular and widely accepted as public moral standard and behavior that there should be respect for the right of copyright owner and intelligent creation, encouragement in innovation, authorization to exploit copyright, royalties to copyright exploitation, etc... Public opinion has cultivated the habit of saying nay to the infringer where he refuses to stop infringement, make repeated or intentional infringement after being informed of infringement, and intends to make economic profits from his bad faith and business exploitation of copyright during the process of computer software reproduction because of their negative influence. In addition, securities administrative departments shall supervise compliance with the law and IP protection for the listing companies, which is not only a reflection of the performance of the governmental administrative function for the protection of public interest, but also an official limitation on enterprises for their adherence to public order.
III.  The definition of damage to “public interest” in copyright administrative law enforcement
The purpose of an administrative penalty is to ensure and supervise the effective exercise of administration by administrative organs, safeguard public interests and public order, and protect the lawful rights and interests of citizens, legal persons and other organizations. It is necessary to make a definition of public interest in copyright administrative law enforcement where there are repeated offenses, intentional infringement, infringement with illegal contents, and infringement for a commercial purpose.
1. Repeated offense
From the perspective of administrative supervision, repeated offense has three characteristics. The first is repeated lose in infringement lawsuits. For example, one has been defeated in civil infringement lawsuits when engaging in cross-cultural communication closely related to copyright. As a kind of civil infringement disputes, repeated offense is characterized by high frequency, numerous complaints and litigations, and high ration of lose in lawsuits. It has no regard for the provisions under the Copyright Law and other laws from a subjective point of infringer, and has disrupt public managerial order from objective point of the infringer’s behavior.
The second is repeated warnings from any administrative supervision department. Those persons and units concerned take a blind eye to the requirement of competent administrative authorities to establish a system for the protection of copyright and frequently infringe upon the interest of copyright owner. This impairs the public managerial order under administrative departments and public interest as well.
The third is the infringer’s continuous disregard for requirement of copyright owner by refusing to stop infringement in accordance with relevant laws, regulations, and administrative r ules in order to safeguard his legitimate rights and interests. Repeated offenses are not only harmful to public order, but also in violation of public social ethnics.
2. Intentional infringement
Intentional infringement refers to those acts with an obvious intent, by aggravated means, in larger scope, and in greater amount of unjust enrichment. By obvious intent we mean that the infringer knows that he has not obtained permission from the copyright owne, that the copyright owner has repeatedly declared his rights, and he makes several refusals to competent administrative authorities to remove infringing works. By aggravated means we mean that the infringer intentionally avoid to fulfill his obligation to protect copyright using multiple techniques.
Take the right of communication through information network for example. The infringer used to upload content and hyperlinks as a fake user or provide with content as a fake third-party, which can both be defined as infringement with obvious intent, aggravated means, and serious damage to public order and public interest. By larger scope we mean that there exists a large number of accessory and common infringements, such as deliberate hyperlinks to and sponsored search for numerous infringed websites. Thus, the infringement and the loss to the copyright owner has been increased to a higher extent. By greater amount of unjust enrichment we mean that the infringer intends to profit from the dissemination of infringed works and yields significant profits.
3. Infringement with illegal contents
Infringement with illegal contents refers to the dissemination of contents prohibited by the law and of works without auditing and reviewing of copyright owner. The personal and property rights to copyright are firstly embodied in dissemination after authorization or permission, such as the infringement on works related to the protection of personal privacy and reputation. Article 4 of the Copyright Law of the People’s Republic of China stipulates that “Copyright holders shall not violate the Constitution or laws or jeopardize public interests when exercising their copyright. The State shall supervise and administrate the publication and dissemination of works in accordance with the law.”
This article may serve as a limitation on the enjoyment of copyright and the dissemination of infringed works without authorization. In addition, relevant departments shall conduct supervision on and administration of the publishing and dissemination of works when protecting the legitimate rights of copyright owner in accordance with the law. Pornographic related to Edison Chen is a good example in this regard. Without permission from the obligee, the act of the infringer constitutes infringement with illegal contents involved, which not only violated the interest of the obligee, but also impaired the public order of the State administration on content dissemination, and the public interest as well.
4. Commercial purpose
Commercial purpose refers to commercial exploitation of infringed works for economic interest. Unauthorized commercial uses of copyright works and economic benefits can be identified as operating infringement. The subparagraph (2) of Article 19 of Regulation on Protection of the Right to Network Dissemination of Information stipulates that the copyright administrative department shall issue a warning to anyone who violates the provisions of this regulation and commits any of the following acts of, such as providing others’ works, performances, or audiovisual recordings through the information network and obtaining economic benefits.
Although public interest can not be found in this article, we can see that “commercial purpose” is clearly defined as damage to public interest, which shall be investigated by the copyright administrative department. The act of providing works to the public for charge by way of Video-on-Demand through the information network without permission the from obligee shall be deemed as commercial purpose. In addition, the introduction of unauthorized reproduction and commercial use of computer software to designation, products manufacturing to yield economic benefits not only disrupts public administrative order, but also violates the principle of fair competition, and undermines public interest in the end. Copyright owners have found it is difficult for them to, timely and efficiently, safeguard their legitimate rights and interests through civil litigation where there is open or intentional infringement upon copyright on a large scale.
Therefore, the administrative supervision and interference of the governmental department can safeguard the legitimate rights and interests of copyright owners, citizens, legal persons, and other entities to the greatest extent at present. In conclusion, repeated offense, intentional infringement, infringement with illegal contents, and infringement for commercial purpose have not only violated the principle of fair competition, but also undermined good morals, and disrupted the public order. All of the four kinds of infringement can be ascertained as detrimental to public interest, which shall be given administrative penalties by the copyright administrative law enforcement departments in accordance with the law.
(Translated by Yuan Renhui)

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