Edited by Nari Lee, Niklas Bruun and Mingde Li
Chapter 11: China’s CMC system and its problems from the Copyright Law of 1990 to its third amendment
AbstractSince the coming into effect of the Regulation on the Collective Administration of Copyright (RCAC) in the year of 2005, a system for the collective management of copyright and related rights (CMC) has been formally established and implemented in China. Since then, several collective rights management organizations (CMOs) have been set up and collect levies separately according to the RCAC and their own by-laws. However China’s CMC system has seriously concerned academics and industries in recent years and these concerns have mainly focused on the following four issues: 1) Whether the CMC system is indispensable to China, especially in the information society? 2) Whether non-profitable organizations should be the only permitted CMOs in China? 3) Whether the statutory monopoly of and the use of blanket licenses by CMOs have ruined the ability of copyright holders to differentiate with the price of their works resulting in a loss of bargaining power as private rights for the right holders? 4) Whether, in the era of globalization and the information society, China’s CMC system should be reformed in accordance with international developments and the requirements of innovative business models in the era of the information society. This paper observes that the form of China’s statutory monopoly and non-profit CMC system has been in operation in many western developed countries for many years. This paper argues that this kind of CMC system has jeopardized the essence of copyright as a private right, impairing the fundamental rules of the market economy and stifling new innovative business models. The CMC system in China was quite new compared with those in operation in western developed countries. In comparison with the western experience of more than a hundred years, theory and practice of CMC have not yet fully developed in China. China’s CMC system is a simple institutional transplantation of the system used in continental European countries. Due to the fact that China is currently still constructing its CMC system, it should take the opportunity to adopt it to the recent development of an information society. However, it seems that this has not received specific consideration during the development of China’s CMC system over the past 10 years, including during the discussions regarding the third amendment of copyright law. When and how China’s CMC system will substantially meet the requirements of the Chinese market and match the features of the information society is still in question. This chapter is composed of four sections. In section 1, the definitions, types and functions of CMC organizations are outlined. In section 2, a brief introduction of China’s CMC system and its process of development are discussed. In section 3, the defects of China’s CMC system and its possible changes in the forthcoming third amendment of copyright law are analyzed. In section 4, the chapter concludes with the suggestion of adopting a competitive and market oriented CMC system in China.
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