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September 19, 2006
Event: Bilateral Investment Treaties and Political Risk Insurance
The Federation of International Trade Associations and Dutch company Omni Bridgeway will present a free event in Manhattan:
Date: 28th September 2006
Time: 5:00 PM until 7.30 PM
Location: AIG - 70 Pine Street, 60th floor, New York, NY
(The seminar will be followed by cocktails & hors d’oeuvres.)
For further information, visit this page on the Omni Bridgeway website.
Posted by Richard at 5:13 PM | Comments (0)September 12, 2006
Audio: Pirated Editions and American Copyright Law: Part I
Click the little triangle to hear today's post.
Pirated Editions and American Copyright Law: Part I
[Editor's Note: This paper was commissioned by the Chinese-American Librarians Association and presented in a talk given at the Queens Public Library in New York City. Anyone interested in pirated products and copyrights may find this a worthwhile read.]
Pirated Editions and American Copyright Law:
Implications for Libraries Building a Chinese Language Collection
ABSTRACT: This paper discusses the phenomenon of pirated Chinese publications, relevant aspects of American copyright law and the implications for libraries building Chinese collections.
Part I
I. Introduction
There is a large bookstore on Hongqiao Road (虹桥路) in Shanghai which takes up an entire floor of a major electronics mall. It is not nearly as prolific as the 6 floors of Shanghai Shucheng (上海书城 -- Shanghai Book City) on Fuzhou Lu Road (福州路), nor does it have the specialty books such as the reproductions of ancient works, like the bookstore Shanghai Guji Shudian (上海古籍书店), but it is still extensive and modern, and since it was close to where I was living at the time, I visited it often.
One day I decided to walk all the stacks, and quickly noticed the computer books section – several walls stocked to the brim with textbooks – all pirated, that is, printed without permission of the copyright holder.
I then walked through the business section where a large number of best sellers in the US had been translated and put into print in China, again without permission of the copyright holder. Then I traveled over to the CD section, where I could choose from the genuine Deutsche Grammophon CDs imported from Germany at 300 RMB (about US$40) and up, or, the illegal copies made in China, at 1/10 that price. Then over to the VCD section (as DVDs are known in China), where…well you get the picture.
It is not just the traditional street sellers who are the distribution channel for counterfeit book materials. Mainstream bookstores in China carry huge inventories of unlicensed works of copyrighted material for sale to the domestic market. Pirating is a mainstream in China. And it is everywhere.
II. Pirated Chinese Editions and Copyright Infringement in the U.S.
What concerns us today is the purchase of Chinese book materials (books, audio CDs and DVDs) by US library buyers, and its implications. We’ll examine this question: Does library use of unauthorized Chinese publications, commonly known as “pirates” or “pirated editions,” constitute an infringement of intellectual property rights? If so, when and to what extent? And what, if anything, can be done to protect a library from claims of infringement that may be made against it?
What is intellectual property, anyway? There are many definitions. Let us describe it generally, the easy way. Very briefly, it refers to just about anything you can think up and express, and which you might be able to make some money from. In this country, and in most others, government protects assets created by the intellect in a variety of forms, for example, in patents for inventions and designs and the like; in trademarks, like brand names and logos; and in copyrights, of stories, songs, films, etc., even of pantomimes. In other words, the person who comes up with these imaginative inventions of the mind has certain rights in them and others can not make use of them, generally speaking, without permission, usually procurable by the payment of money. This discussion will focus on copyrights, leaving aside patents and trademarks.
How do people protect themselves against the theft of intangible assets, such as these? You can put valuables, like coins and jewelry, in a safe deposit box in the bank. But to make commercial use of them, by selling them, for example, they must be displayed, and you would go to great lengths to ensure that physical valuables are not easily stolen by someone who sees what you have got. Intellectual property laws and the mechanisms to enforce them are the means by which intangible assets are protected. While there are similarities between Chinese and American intellectual property law, there are differences; but enforcement of the law is so very different in effect that where one may be well protected in the U.S., one may be virtually unprotected in China.
Who hurts and who gains when copyright is infringed? The copyright holder is not paid for his work; the seller of an unauthorized work profits while failing to uphold the law. The purchaser usually receives a poor quality substitute, but saves money, and may run the risk of infringing upon the rights of the copyright holder as well. Infringement, in the larger scheme of things, is an attack upon the system of laws and enforcement established to maintain market order and to encourage invention and creation.
Despite a Copyright Act in existence since 1790, America has seen significant book pirating in its history. 19th century American publishers pirated thousands of popular English works without obtaining permission from copyright holders across the Atlantic. One often sees on the cover or title page of works of the time the label “Authorized Edition,” which the reading public may have considered a signal as to the quality and integrity of the text. These days, book pirating in the U.S. is negligible. In modern China, despite the existence of intellectual property laws, albeit in their infancy, and a regime that professes to their enforcement, there is, similar to 19th century America, little check on the infringement of intellectual property rights.
It is cheaper not to pay the rights holder and then force him to sue. The rights holder who sues finds that his chances of success are much more doubtful in China than in the U.S. The infringer in China is more likely to get away with it. Besides, someone else will do it if you do not, creating a cheaper product that will take market share away from you. What is important in understanding this phenomenon is that mainland Chinese, who have only recently been introduced to the idea of personal rights in any form, have not yet gotten their minds around their fundamental nature, which is that rights, which are abstractions, can have finite value in and of themselves. Intellectual property is a complex bundle of intangible rights with real value. This is a difficult concept to grasp.
When I first sold computer hardware into China in the early 1990s, Chinese buyers would not think of paying extra for service (maintenance) on the machines. After a few years, they began to realize the value of service, and began paying for it with greater willingness. It took a combination of the customer’s inability to reproduce the service, as well as their recognition of its value to them, for them to willingly pay for it. Gradually, some intangible services are now recognized by mainland Chinese as having such value that people are willing to pay for it. A similar change may come in the area of intellectual property in China.
But in the short term, one can not expect rapid and radical change in intellectual property rights consciousness. Mainland Chinese seem to recognize that they may have certain legal rights, but apparently they have not yet extended that idea to the general public. In more traditional Chinese parlance, we might even say there remains a serious lack of social ethics (公德心).
In other words, “I have rights,” but there is little recognition that “you as well have rights.” A further complication finds the modern extension of an historically traditional disrespect Chinese generally feel towards the concept of rule of law, in great contrast to their more respectful attitude towards (or perhaps fear of) the rule of man. In such an environment, one can expect relatively lethargic and stuttering progress towards the development of a consciousness in China that equates the unauthorized use of intellectual property with theft; that the theft itself is unlawful and unethical; and is, as well, an attack upon the developing structure of legal rights. With greater exposure to the ideas of intellectual property and the rights involved, China may see progress over the next few generations. It took the United States a long time before a system of intellectual property rights became well established, not only in law, but in the American consciousness. However, even now, as we all know, digital technologies and the ease of cheap copying have once again posed a challenge in the American mindset.
TO BE CONTINUED
Posted by Richard at 4:52 PM | Comments (2)September 11, 2006
Event: International Arbitration in China -- To Be Held in Chicago
Title: Doing Business in Hong Kong and China
Date: Tuesday, September 19, 2006, 8:30 a.m.
Place: University Club, 76 East Monroe Street, Chicago
Speaker: Dr. Michael Moser, partner, O’Melveny & Myers LLP, Hong Kong. Vice-Chairman of the Hong Kong International Arbitration Centre, Co-Chair of the China Arbitration Forum, China International Economic and Trade Arbitration Commission (CIETAC) panel member.
Topic: "Dr. Moser will share his insights and extensive Hong Kong/China experience in arbitration, mediation and counsel to American companies transacting business in China." Breakfast is provided.
Sponsor: Hong Kong International Arbitration Center and Hong Kong Trade Development Council.
RSVP: All are welcome. Contact Ms. Lillian Lee at the Trade Development Council (Lillian.lee@tdc.org.hk, 312-826-4515).
Posted by Richard at 1:11 PM | Comments (0)September 8, 2006
Event: A Panel Discussion on China's New Bankruptcy Law and Distressed Investment Market
Date and Time: Thursday, September 14, 2006, 8:30am-10:30am
Place: 125 East 65th Street, New York, New York 10021
RSVP: 212-744-8181 ext. 125
"On August 27, 2006, China passed a new Enterprise Bankruptcy Law after more than a decade's preparation and debate. The law gives tougher backing to creditor claims on insolvent companies and creates, for the first time, a formal corporate-bankruptcy process, a Wall Street Journal article comments. What are the significant changes under the new law? How would it affect international investors current and future investments in China?"
Moderator:
- Deryck Palmer, Partner, Weil, Gotshal & Manges LLP
Speakers:
- Professor Shuguang Li, Member, Drafting Working Team of the National People's Congress on China's new Bankruptcy Law; Director, Bankruptcy Law and Restructuring Research Center, China University of Politics and Law
- John Rapisardi, Partner, Weil, Gotshal & Manges LLP
- Michael O'Hanlon, Independent Director, Shenzhen Development Bank
- Stephen Lukow, In-house Counsel & SVP, Lehman Brothers, Inc.
Sponsor: China Institute
Posted by Richard at 10:58 AM | Comments (0)
