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.

Welcome to a new year! The OTW has certainly seen a lot of changes in the past year. In the case of the Board, we recently have said goodbye to veteran Directors Ira Gladkova and Kristen Murphy, and hello to new Director Anna Genoese.

In our first post of the year, we’d like to focus on the criticism the OTW has received about the abrasive nature of interpersonal relations within the org. Personnel difficulties have accounted for what we consider to be a high rate of volunteer attrition. Due to this, many of Board's Directors have publicly indicated their interest in working to fix this problem.

We'd like to give a status update.

In the last year, one of the biggest changes the OTW has seen is the introduction of the Code of Conduct (COC) and its enforcement thanks to the Volunteers & Recruiting Committee. The COC offers specific rules and procedures for use in reporting harmful behavior, as well as conflicts between staffers and chairs.

The COC is executed through the use of the Constructive Corrective Action Procedure (CCAP), also administered through the Volunteers & Recruiting Committee. The CCAP focuses on clarity of communication, rather than punishment. It is action-oriented, and carried out in a manner that respects the nondiscrimination statement in the Code of Conduct.

The COC and CCAP do still have few rough edges, which is only to be expected. They are being addressed as they are noticed, and we definitely welcome input to help the OTW better serve its volunteers.

Despite the rough edges, we're hopeful that OTW volunteers see the COC and CCAP as something that helps define our organizational culture--we want people to feel safe volunteering for the OTW. We want people to feel that their work is appreciated. We can do that in part by providing a safe and welcoming space for them to work in, and in part by ensuring that problematic and/or hurtful interactions can be dealt with fairly and confidentially.

Another part of our work on this is the Board's documentation project. The main limitation of Constructive Corrective Action Procedure is that it cannot be applied to members of the Board of Directors. The Board is governed by the bylaws of the OTW, and therefore is not accountable to committees. Currently, the only way a Director can be removed is through a recall vote of the membership. Therefore, the Board is currently working on--with input from our committees--documents that deal with how to address complaints to Directors, a procedure to take action against a Director, and an outline of what reasonable expectations are for a Director.

What we as Directors hope is that people see these as the first steps we're taking toward becoming a better organization--which is, as any organization will tell you, a process that never ends.

As always, we welcome comments, critique, and suggestions for how to help shape the OTW into an organization you want to be part of and support. We'd also love for you to come join us to help us implement these changes over the next year and beyond.

Sincerely,
The Board of Directors

As many fans know from personal experience, copyright laws and their enforcement can be problematic when it comes to either serving creators or the public well. Currently, some groups in the European Union are looking for public input when it comes to their own experiences with copyright.

These organizations, such as The Open Knowledge Foundation, are encouraging members of the public to fill out a questionnaire. With these responses they are hoping to begin action on copyright reform.

"If the Commission gets lots of replies from citizens and NGOs, it must acknowledge that there is high interest in this topic. Only the Commission can start legislative initiatives on the European level, so we need to convince them that copyright reform is necessary."

A variety of public input is needed to make clear how many ways that copyright can affect individuals on a personal level:

"Many of us are involved in creative projects that are restricted by the current copyright regime. By sharing your personal issues with copyright in the consultation, you are giving the Commission insight into the wide variety of creative and innovative projects that are affected by copyright, not just those of big business."

The questionnaire has a total of 80 questions but there is a guide available that will allow people to focus on issues close to their own experiences. Additional organizations are also encouraged to submit replies, but since the organizers are looking for a wide variety of input, interested fans in the EU are encouraged to participate.

• The OTW recently submitted comments to the NTIA/PTO with the help of fan contributions. Rebecca Tushnet, an OTW Legal Committee staffer will speak in person on December 12 at the United States Patent and Trademark Office. A webcast will be available. Rebecca is part of a panel on Legal Framework for Remixes which will speak at 1700 UTC.
• Rebecca also posted a summary of comments from other organizations to the NTIA/PTO on her blog. The groups include Deviant Art, Creative Commons, the Center for Democracy and Technology, and the Consumer Electronics Association.
• The always busy Rebecca also took questions from users at io9 about fanfiction and mashups. One of the first questions regarded the legality of RPF. Rebecca's answer? "[T]hat doesn't implicate copyright at all. The possible issues involve defamation—but defamation requires that the audience believe that it's getting a statement of fact, and that's unlikely to happen with RPF...The other possibility is what's known as a right of publicity claim. But noncommercial fiction is outside the scope of the right of publicity, and even commercial fiction—the kind Joyce Carol Oates writes with her romans a clef—should be. There are some troubling cases finding that video games violate football players' right of publicity, but nobody thinks that a novel could do so, even one sold for profit."