Protecting Internet content

Editor's Note: While the Internet offers great opportunities for businesses due to the extensive range of customers, copyright piracy is a global challenge for content providers. In addition to protecting their own content, businesses are also challenged by the protection of customer data in today's online world. How do rights holders effectively protect copyright works in China? Given the fact that in China most websites do not have a formal privacy policy, how do Internet users expect the Chinese legal framework to protect their personal privacy?

Richard W. Wigley, a consultant of King & Wood's IP Litigation Group in Beijing, gives a comparison of laws and practices in China and the United States on copyright enforcement and privacy protection over the Internet.

China Business Weekly will publish the article in the following weeks. Below is the first part of it. The views expressed here are the author's own.

Today's online world offers great opportunities for businesses as they reach out to current and prospective customers worldwide, but where opportunities exist, there are also challenges.

One of the great challenges for companies which rely heavily on content to drive their business models has been protecting said content once it is available on the Internet. The challenges and opportunities are no greater anywhere than in China, which has recently surpassed the United States in the number of Internet users, as well as mobile phone users. Copyright piracy is a global challenge for content providers. Is it possible for rights holders to effectively protect copyright works in today's China?

In addition to protecting their own content, businesses must also consider the protection of customer data in today's online world. While customer data has great value to marketers worldwide and each "click" provides some insight into each respective online citizen, there is an expectation of a certain degree of privacy protection - whether reasonable or not - from online service/content providers.

Public concern over online privacy in China will likely grow as Chinese citizens increasingly transact personal business online. In China, while there is extensive collection of personal data by websites, most do not have a formal, posted privacy policy and those privacy policies which are posted are often not consistent with international norms. Given this landscape, can Internet users in China expect the Chinese legal framework to protect their personal privacy?

To be fair and balanced, it must be noted that copyright infringement over the Internet exists in the United States and other developed countries and privacy concerns persist among online citizens worldwide. It is, however, the primary purpose of this paper to examine the laws and enforcement mechanisms in today's China with regards to copyright protection and data privacy, with a comparison to the relevant US legal regime used solely as a reference point.

Copyright protection in China

With its accession to the World Trade Organization (WTO) in 2001, China was required to be in compliance with the intellectual property protection treaty known as the Trade-Related Aspects of Intellectual Property Rights or, more commonly referred to as TRIPS. With TRIPS, however, as a framework, all WTO member countries, including now China, are moving towards the goal of relative global consistency in copyright protection.

The PRC Copyright Law (Copyright Law), China's first law addressing copyrights, was promulgated at the 15th Plenum of the Standing Committee of the Seventh National People's Congress (NPC) on September 7, 1990. Though the Law diverged in some ways from the Berne Convention and initial drafts of TRIPS, it was seen as a significant step forward in the protection of copyrights in China. As a requirement for WTO membership, the revised Copyright Law of China was promulgated in 2001 and it was structured to be consistent with TRIPS.

In essence, China's IPR laws, as they relate to US-China IPR enforcement, have, theoretically, been in compliance with TRIPS long before TRIPS itself (in 1995) was formally adopted.

This then begs the following question: If the Chinese IPR Laws are consistent with TRIPS and have been so for a number of years, then why do other countries such as the United States - which has had a TRIPS-like agreement with China since 1992 - raise concerns about IPR enforcement in China?

The answer is that the laws themselves are not in question, but rather the scope and consistency of the Chinese IPR enforcement regime. The US and other countries should not question the copyright laws in China because they are, in general, the same laws as those which they helped create and advocate compliance.

(China Daily 11/17/2008 page9)