China Mainland Substantial Changes

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Revision as of 06:55, 25 December 2010 by XIN Xingzhi (talk | contribs) (4. Public Perform)
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Summary of Changes

The BY-NC-SA 3.0 CC license draft adapted to P.R.China copyright laws is ready for public discussion. To facilitate its process, China Mainland team has summarized their contemplated substantial changes to CC 3.0 generic version. Please note that the following summary includes only changes to CC 3.0 generic version, not existing changes already reflected in CC 2.5 version. You comments, whether in regards to legal, linguistic or usability issues, would be much appreciated.

1. Neighboring Right 邻接权问题

Section 1(a) -- “performance or phonogram” is omitted, and “For purposes of this License, this License will be applicable to a work based upon performances, phonograms and broadcasts’” is added. Pursuant to P.R.China Copyright Law, a performance, phonogram or broadcast is not treated as a type of Work but object of neighboring rights, and therefore it can not be treated as the foundation of an adaptation.


Section 1(g) -- “a performance; a broadcast; a phonogram;” is omitted because a performance or phonogram is not treated as a type of Work under P.R.China Copyright Law. The creator of a performance, phonogram or broadcast is granted a neighboring right rather than copyright under Article 41 of P.R.China Copyright Law.


Section 1(g) -- Pursuant to P.R.China Copyright Law, “a work performed by a variety or circus performer to the extent it is not otherwise considered a literary or artistic work” does not fall under the definition of “Work”, but “Performance”, which is legally regarded an object of neighboring rights.


Section 1(g) -- “For the purposes of this License, this License will be applicable to performances, phonograms and broadcasts” is added at the end of “Work” so as not to narrow down the applicable scope of the CC licenses.


2. Database 数据库有关的问题

Section 1(b) -- “a copyrightable compilation of data” is incorporated into the scope of the definition. China Mainland does not have any sui generis database rights and a copyrightable compilation of data falls under the category of compilation, rather than work.


Section 1(g) -- “a compilation of data to the extent it is protected as a copyrightable work” is deleted for the same reason as stated above.


3. Original Author 关于“原始作者”

Section 1(f) -- “or if no individual or entity can be identified, the publisher” is omitted. Under P.R.China Copyright Law, even if no natural person, legal person or other organization is identified as the original author, the publisher will not be presumed as the original author.


Section 1(f) -- “for the purposes of this License, this License will be applicable to the following natural person(s), legal person(s) or other organizations” is added because performers, phonogram producers or broadcasting organizations fall under the definition of neighboring right owner rather than author under P.R.China Copyright Law.


4. Public Perform 关于“公开传播”

Section 1(i) -- “The preceding definition includes without limitation, ‘publicly display’, ‘publicly perform’, ‘publicly present’, ‘publicly broadcast’ and ‘publicly transmit via network’” is added at the end in order to make "Publicly Perform" more clear and concrete under P.R.China Copyright Law.

原文关于“公开传播”(即public perform)的规定,所包含的内容非常丰富,涵盖我国著作权法的展览权,表演权,放映权,广播权,信息网络传播权等项权利。本着尊重原文的态度,我们保留公开传播这样一项概念,同时为避免歧义或者遗漏,增加了“上述定义包括但不限于《中华人民共和国著作权法》规定的展览、表演、放映、广播或通过信息网络向公众传播等作品传播方式”。

5. License Scheme

Section 4(e) -- Pursuant to P.R.China Copyright Law, China Mainland’s license schemes fall under the category of Voluntary License Schemes, rather than Non-waivable or Waivable Compulsory Schemes. Therefore, provisions of Non-waivable and Waivable Compulsory License Schemes are completely deleted but only keep languages of the Voluntary License Schemes, which also have been adapted to Chinese laws.

6. Moral Rights

“Moral Rights” was defined in China Mainland 2.5 version of CC licenses.

Section 4(f) -- “honor and reputations” is replaced with “Moral Rights” to make this clear under Chinese laws.

Section 4(f) -- “Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by applicable law” and the whole last sentence are deleted because these provisions are against P.R.China Copyright Law.

7. International Conventions

Section 8(f) -- Since China is member state of these international conventions and generally substantive provisions of these conventions have been assimilated into Chinese Copyright laws, there is no need to keep this paragraph.

8. Others

Section 3 – “to the extent permitted by applicable law” is added at the end of the first sentence, following “whether now known or hereafter devised”. Under current Chinese law, the media and formats in which the rights may be exercised are specified. So “to the extent permitted by applicable law” is added as a caveat, so as not to narrow down the applicable scope of Chinese version of CC licenses.