Chinese copyright law and its relation to fandom
Given the international scope of fandoms, it is often important to understand how copyright law and its relation to fan labor varies from country to country. Our Communications staffer, John Bayard discussed this topic with Michael Mao, an Intellectual Property attorney at Allbright Law offices in Shanghai. In this post they cover the basics of Chinese copyright law and how it differs from the US, as well as a look at fandom activity in the country.
Copyright protection in China
The Copyright Law (1990, revised 2001 and 2010) and The Provisions on Implementing International Copyright Treaties and The Berne convention are the basic copyright laws of the People’s Republic of China. Chinese copyright law provides for full copyright protection for works of literature, art, natural sciences, social sciences, engineering, and technology, among other fields, created in any of the following forms: written works, oral works, musical works, dramatic works, choreographic works, and acrobatic works; works of the fine arts and architectural works; photographic works; cinematographic works; engineering design drawings, product design drawings, maps, sketches, and other pictorial and graphic works; computer software; and other works as provided by relevant laws and administrative regulations.
In most cases the copyright term is the life of the author plus 50 years, but for cinematographic and photographic works and works created by a company or organization the term is 50 years after first publication. Protected rights now include the exclusive right to copy, publish, rent, perform and alter a given work. Most of these rights can be exercised by others with permission. However as with U.S. copyright law, no permission or remuneration is required for certain types of uses, including private use for study, research, or amusement; quoting or publishing the work by the media for general circulation; or translating or copying the work in limited quantities for use in teaching or government.
Unlike the U.S., China is consistent with the International Berne Convention by recognizing what are known as "moral rights" in addition to economic rights. Moral rights are the right of authorship, preventing alteration to the original work, and upholding the integrity of the full original work. Unlike economic rights, moral rights do not expire and instead last forever.
The addition of moral rights can limit fans in creating derivative works since the author of the original work can object to any distortion or modification of the work. For example, Article 20 of China's copyright law provides unlimited term of protection of the rights of the authorship, alteration, and integrity of the author. These rights are retroactive and apply to all copyright works made before the passing of the current law.
In this case if a fan wants to write a fan fiction which alters character traits or story elements of the original, this would not be allowed without the author's express support since any changes or additions to a story or character is an alteration from the original. Since virtually all fan labor is an alteration from the original, this in fact prohibits any type of fan labor since it could hurt the integrity of the author. Further, the fact that the protection is forever would mean that even if the original work is in the public domain, no alterations could be made without express support from the original creator. China and other countries that have similar moral rights laws can therefore, in application of such laws, prohibit virtually all forms of fan labor since it would potentially create an alteration or hurt the integrity of the work.
While the notion of a transformative work exists in China, the notion of a transformative work under the legal doctrine of fair use does not apply. While many countries recognize elements of fair use, only the United States and Israel fully recognize the concept of fair use. Other regimes, such as the U.K. and Canada, recognize similar, but more limited, rights of "fair dealing." In China, however, outside of educational uses, fair use concepts are fairly limited.
Fandom activity in China
As with other elements of Intellectual Property, copyright piracy is a major concern in China so even though the notion of fair use is limited under Chinese law, authors are often unable to stop people from copying and/or creating derivative works from their creations.
Fanfiction known as 同人小说 (tongren xiaoshuo), is found in virtually every fandom and China is no exception. In the last decade or so, there has been a rapid increase in China of entertainment including film, music, but above all television. Greater access to foreign entertainment has in many ways spurred on the growth of both fandom and fanfiction writing in China.
Larger fandoms and more fanfiction have resulted in several websites and forums devoted solely to Asian fandoms. While there are some found on Chinese sites such as ReadNovel, Chinese censorship laws have forced many such sites to be based in other countries. One such site found in the US is Asian Fan Fiction, which offers thousands of stories. Internet censorship laws discourage many sites that could be considered "provocative" and this often includes many fan fiction sites. This is one major reason why many Chinese oriented fan sites such as Asian Fan Fiction, are actually based in the US or in other countries. Many are written in multiple languages and cover fandoms from multiple countries including mainland China, Korea, Japan and Singapore. Numerous Chinese dramas such as New Shanghai Bund are often the inspiration for these works.
With the popularity for these shows, and China's history of copyright violations and infringement of western media, there has been increased pressure on content owners to air shows in China, before they are shown in their home countries.
While it is still too early to determine what sort of impact growing fandom and fanfiction will have on Chinese law and, in particular, copyright law, it is important to note that fanfiction is allowing many Chinese to express themselves. Internet Censorship is a major concern in China today and fanfiction has allowed many Chinese to express views and ideas which they might not be able to do in a more formal setting. While some types of fanfiction, namely slashfics, are generally not allowed, many writers get around such restrictions by inserting random Chinese characters into their works to confuse search filters.
Greater copyright protection in China may prove to be a double edged sword. While foreign copyright holders would welcome increased protection for their output, such copyright protection could be used to limit the sites that support fandom and fan labor.