| Database Copyright in a Library: China’s Legislation, Judicial Case and Their Revelation |
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China laws and regulations on legal protection of database
From 90s of last century the Chinese National People’s Congress (NPC) and the State Council have enacted or promulgated several laws and regulations with regard to the protection of copyright, such as:
Copyright Law（as amended on 27 October 2001）. 8
Regulations of Implementation of Copyright Law (as amended on 2 August 2002 and effective as of 15 September 2002). 9
Measures on Implementation of Administrative Punishment to Copyright (promulgated by State Council on January 4, 2000 and come into force as of the date April 1, 2000). 10
Regulations for the Protection of Computer Software (promulgated on 4 June 1991 and effective as of 1 October 1991) 11
Provisions on the Implementation of the International Copyright Treaties (Promulgated on 25 September 1992 and effective as of 30 September 1992). 12
In addition to central legislation the local legislatures at provincial level have enacted scores of local statutes on protection of copyright. And meanwhile, the Supreme People’s Court has issued dozens of judicial interpretations on copyright. Apart from domestic legislation China also acceded to the two international conventions, the “Berne Convention for the Protection of Literary and Artistic Works” and “Universal Copyright Convention” both in 1992. Nowadays a legal system on protection of copyright has already been set up in China.
Although there have not been direct provisions involving copyright of database in China’s legislation and international conventions China acceded at present, it does not mean that database is not to be protected by copyright law in China. The newly amended Copyright Law provides in item16 of article 10 that the copyright owner enjoys the right of compilation, that is, the right to compile works or parts of works into a new work by reason of the selection or arrangement. The article 14 of the law also states that a work created by compilation of several works, parts of works, data that do not constitute a work or other materials and having originality in the selection or arrangement of its contents is a work of compilation. The copyright in a work of compilation shall be enjoyed by the compiler, provided that the exercise of such copyright shall not prejudice the copyright in the preexisting works. These provisions, though pertaining to the compilation, have a potential meaning on protection of database, a type of compilation.
Before Chinese copyright law being amended the protecting scope of copyright is different to those compilations (databases) produced at home and abroad. In Copyright Law adopted in 1991, it stipulates in article 14 that a work created by collection of several works, parts of works, data that do not constitute a work or other materials and having originality in the selection or arrangement of its contents is a work of collection. The copyright in a work of collection shall be enjoyed by the editor, provided that the exercise of such copyright shall not prejudice the copyright in the preexisting works. Meanwhile, the Regulations of Implementation of Copyright Law promulgated in 1991 there is a definite explanation to the word of “collection”. In item 11 of article 5 it provides that “collection” means the creation of a work by assembling a number of selected preexisting works, in whole or in part, according to an arrangement designed for a specific purpose. In Berne Convention there is also similar clause to the stipulations above mentioned. The section 5 of the article 2 in the convention states that “Collections of literary or artistic works such as encyclopedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.”
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