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Communication Laws In China 1990 2010
- 1. Communication Laws in China 1990-2010 Bolin Zhang Duke University 2012 International Conference on Law and Society
- 2. 2 Media Blockbusters in 2012 • Wanda Group buys AMC Entertainment for 2.6 billion USD • National Copyright Administration gets 1506 proposals concerning 81 out of 88 articles of the Copyright Law Draft Amendment
- 3. Communication Laws • The Constitution NPC • Statutory Law NPCSC • Administrative Law SC, Ministries & Commissions • Local Rules Provincial Gov’ts • Departmental Provisions Central/Provincial • Judicial Interpretations • White Papers • Law Year Books
- 4. All the King’s Media Telecommunication Broadcasting Service The Internet
- 5. The Hohfeldian Approach • Communication sectors and bureaus as collective communities • Communication laws as public policies Jural Opposites Right Privilege Power Immunity No right Duty Disability Liability Jural Correlatives Right Privilege Power Immunity Duty No right Liability Disability Table 1 Hohfeld's fundamental legal conceptions (Hohfeld, Fundamental Legal Conceptions as Applied in Judical Reasoning, 1916)
- 6. Nodes Entities • 1. Institutions (Departmental Agencies, Local Government, State Council, NPC & NPCSC, SPC&SPP, and CPC& CPCCC); • 2. Objects (Statutes, Administrative Law, Judicial Interpretation, Local Regulations, Departmental Regulations, and Legal Scholarship); • 3. Municipal representatives (Beijing, Shanghai, and Hongkong)
- 7. Elements Coding • Equation 1 Rights • Rights OR the right of OR Claim OR 权利 NOT 无权利 NOT immunity NOT power NOT privilege NOT liberty NOT 豁免 NOT 特权 NOT 免责 NOT 特许 NOT 权力 NOT duty NOT 义务 NOT 自由 • Equation 2 No-Rights • No rights OR 无权 OR 无权利 OR no right NOT Rights NOT 有权利 NOT 义务 NOT duty NOT liability NOT disability NOT 无资格 NOT 责任 NOT 特权 NOT 特许 NOT privilege • Equation 3 Duty • Duty OR 义务 NOT liability NOT 无权 NOT责任 NOT 无资格 NOT disability NOT privilege NOT liberty NOT 自由 NOT 特权 NOT 特许 NOT liability NOT 无权利 NOT 无权力 • Equation 4 Power • Power OR 有权 OR 权力 OR 势力 NOT disability NOT 无权 NOT 无资格 NOT privilege NOT 特权 NOT 特许 NOT immunity NOT duty NOT 豁免 NOT 免责 NOT 权利 NOT rights NOT liability NOT 责任 NOT 义务 • Equation 5 Immunity • Immunity OR 豁免 OR 免责 NOT liability NOT 责任 NOT Power NOT 权力 NOT privilege NOT 特权 NOT 特许 NOT 无权 NOT disability NOT rights NOT 权利 • Equation 6 Disability • Disability OR 无资格 OR 无权 NOT Power NOT 有权 NOT 权力 NOT 势力 NOT liability NOT 责任 NOT 义务 NOT duty NOT 无权利 NOT no-rights • Equation 7 Liability • Liability OR 责任 OR 有责 NOT immunity NOT 豁免 NOT 免责 NOT disability NOT 无资格 NOT 无权力 NOT 无权 NOT no-rights NOT 无权利 NOT 义务 NOT duty • Equation 8 Privilege • Privilege OR Liberty OR 特权 OR 特许 OR 自由 NOT 权力 NOT Power NOT rights NOT 权利 NOT 豁免 NOT immunity
- 8. Content Analysis w/ NVIVO 9
- 9. Coding References Nodes = law articles or policy directives Categories = Each Collectives Color = Directive similarity Red: most similar Green: most distinctive
- 10. The Walk of Fame Case • Program starts 1994 • Trademark Registered • Trademark Review in in 2003 2005 • No trademark registered • Used in performance • Trademark contest in 2003 Oppositions in 2009 • Program was • Opposed trademark renamed passed review and registered Trademark Appeal Board Beijing Xingguangdadao of the State CCTV Film & TV Production Administration for Co., Ltd. Industry and Commerce
- 12. Jural Correlatives cont’d A : Disability in Law B : Duty in Law C : Liability in Law D : No-Rights in Law 1 : Rights in Law 394 654 819 394 2 : Privilege in Law 31 291 456 31 3 : Power in Law 4 264 429 4 4 : Immunity in Law 2 262 427 2
Editor's Notes
- 截至5月10日，国家版权局共收到社会各界关于草案的意见和建议1560份，涉及草案88个条款中的81个条款，其中包括备受音乐界争议的第46条、48条、60条、70条中关于录音制品法定许可和著作权集体管理等有关条款。Compulsory licensing, music reproduction, and copyright collective administration
- Article (hereafter Art.) 22 of the Constitution envisions that serving the People and socialism is the only politically correct direction for communications sectors of all kind; Art. 35 notes Chinese citizens’ freedom of speech and press; Art. 41 acclaims citizens’ rights to criticize and to advocate on public affairs and administrative functionality; and Art. 47 ensures citizens’ freedom in scientific, literary, and artistic creations.Statutes concerned of communications are Law of the People's Republic of China on Public Security Administration Punishments (2005), Archives Law of the People's Republic of China (1996), Law of the People's Republic of China on Guarding State Secrets (2010 Revision), Copyright Law of the People's Republic of China (1991), Anti-Unfair Competition Law of the People's Republic of China (1993), Advertising Law of the People's Republic of China (1995).Art. 56 of Legislation Law of the People's Republic of China categorizes the Administrative Laws as (行政法规 XingzhengFagui), which are usually introduced in forms of Ordinances (条例 Tiaoli), Provisions (规定 Guiding), and Instructions (办法 Banfa). . For example, “Instructions on Protecting and Managing Computational Information Network and International Web Security” (1997) was approved by the SC and delivered by the Ministry of Public Security (hereafter MPC). In the communications sector, the major departmental provisions are issued by Ministry of Foreign Affairs, Ministry of Science and Technology, National Development and Reform Commission, Ministry of Industry and Information Technology, Ministry of Culture, State Administration for Industry and Commerce, State Administration of Radio, Film, and Television, State Intellectual Property Office, and General Administration of Press and Publication (National Copyright Administration).
- These eight concepts are the heart of a Hohfeldian analysis. They allow one to describe any legal position that a collective can occupy in a certified legal speech. Hohfeld also remarked, “If a homely metaphor be permitted, these eight conceptions…seem to be what may be called the ‘the lowest common denominators of the law (the substantive laws not procedural ones).’” (Hohfeld, 1913, Page 63)A collectivity’s jural position --- in particular collectively held rights --- must be thought of as equivalent to the distributed positions of a set of separate agencies in our case.
- With the NVIVO 9, I managed to code the legal corpora and break them down into manageable and reasonable pieces in the presences of nodes, sets, and classifications. The data sets were collected from the China Law Info database operated by Peking University School of Law as well from as the Legal Info site of the China Economic Information Network (CEIN). The “Sources” were classified into Law Articles, Judicial Cases, Scholarships and Reviews, Law Yearbooks and White Papers. The “Nodes” were coded into three major categories:
- One of the advantages of NVIVO 9 is its impressive digesting programs that could attribute thematic connections among nodes in specific classifications to generate a tree map of nodes with tied wording-similarity correlatives. Another contribution is its reading and interpreting capacity in simplified Chinese which can diagnose similar contexts, multiple synonyms, and perceive inter-textual links automatically.
- Whilst the searching facilities in NViVO can add rigor to the analysis process by allowing the researcher to carry out quick and accurate searches of a particular type (which I have manually coded during importing the documents into NVIVO), and can add to the validity of the results by ensuring that all instances of a particular usage are found after each query, this searching needs to be matched seamlessly with manual scrutiny techniques so that the data are in fact thoroughly interrogated just as Jackson (1995) advocated in his legal semiotics theory. Furthermore, cluster analysis is an exploratory technique I have used to visualize the patterns of each kind of speech act (classified by the sources of law listed above) by grouping sources or nodes that share similar words, similar attribute values, or similarly coding labels by nodes. Cluster analysis diagrams provide a graphical representation of sources or nodes to make it easy to see similarities and differences. Sources or nodes in the cluster analysis diagram that appear close together are more similar than those that are far apart.In order to program how the different nodes knit together in certain theme (telecom, broadcast, or Internet) to form a bird’s-eye of the communications landscape, it is necessary to analyze individual themes. Using NVIVO, I managed to extract the “who said what” lines within a theme as assigned queries in order to match each collective entity with its speech act and other interactive entities. The model explorer tool in NVIVO is useful at this point for mapping out diagrammatically how the themes relate to each other.
- From the map, we can draw the conclusion that departmental institutions, i.e. the ministries and organizations under the State Council, have been the most notable legal statement issuers, the major sources of administrative regulations in communications law. The hue and size of the chunks demonstrate the frequency of highlights in each sector. The secondary provisions issuers have been the local government collective at the provincial and municipal level. An interesting thing to note here is the massive body of legal directives enacted by major cities such as Beijing and Shanghai which reside on the red to orange corner of the chart. The wording and coding of these texts share greater similarities with each other, as compared with those in departmental and local regulations. Also, as for the regulations on Internet, Shanghai precedes Beijing in the amount of regulations that have been issued, while Beijing surpasses Shanghai in the Press and Publication field.
- In this case, people would think that CCTV would be immune from civil lawsuits as its official actions are deemed as governmental “gestures” in many ways. However, both parties have claimed their “rights” in using “The Walk of Fame” as their trademarks in daily commercial/operational uses. And unfortunately, this case is not a challenge of CCTV’s immunity in official actions (e.g. CCTV’s 2008 Olympic licensing case).This case is about the ownership of the trademark “The Walk of Fame.” Although CCTV has been successful in claiming the trademark’s usage in wide and well-received public exposure, which has established a legal presumption of its ownership, CCTV does not use the mark in commerce and the broadcasting services (the show) it provides are financially independent and not for profit. Moreover, the Trademark Office does not decide whether the company (or CCTV) has the right to use a mark (which differs from the right to register). In this case, it is not mandatory to obtain a national registration in order to acquire rights to a mark. For the defendant company, the ownership is a claimed right obtained when it registers the trademark in the Trademark Appeal Board of the State Administration for Industry and Commerce. In Hohfeld’s point of view, the company has a claim right to deliver entertainment production services to the market. On the contrary, CCTV only holds a privilege or liberty of using the mark under the absence of a duty to abstain from the action in the piloting period of the show. Without Hohfeld’s scheme, we would draw the hasty conclusion in line with the “legal presumption” that the CCTV too has a right to claim the ownership of the “Fame” because of its already publicly recognized and “non disputed” usage in China. What CCTV holds is merely a Privilege (or liberty, a weaker right). Although confusing, right differs with privilege in Hohfeld’s chart. The correlativity of the jural relationship in this case shows that the defendant company has a no-right concerning the activity of CCTV’s daily show (which is still on air) for the nature of services and goods are different. Ignorant of the difference of right and privilege, CCTV filed the complaint in order to prove or try to claim it holds a right (exclusive ownership) over the “Fame” which is not a liberty enjoyed by a public sector. In the “bad” old days, the CCTV may have enjoyed what Hohfeld defined as Power in order to alter the legal relations, in which case CCTV had the power to enter a contract with the defendant to refrain from using the mark in the show’s presence. Therefore, the defendant would have a liability, which is correlative to power, in that it is liable to having its legal relations/positions altered by CCTV’s exercise of power. All in all, the CCTV has been disenfranchised in the legal and economic reforms in the communications sector in that it does not possess the power to alter the legal speech in this specific case. In 2008, CCTV.com, the official website of China Central Television, recently won its lawsuit against a Guangzhou-based website for illegally broadcasting an Olympic torch relay program without permission.
- One way of visualizing the legal speech community in question is to build a three-dimensional model in which the first dimension represents the “Rights” in Law (Right/Claim, Privilege, Power, and Immunity), and the second, the jural opposites and correlatives (No Right, Liability, Duty, and Disability).The horizontal dimension represents the actual account of legal statement entries of extended circumstances pertaining to a specific factual matrix, the panoply or manifold (Hohfeld, 1913). Here I am introducing a case that holds several elements in question.In general, there seems no reason not to entertain the possibility of intrinsic reciprocity between rights held collectively and correlative obligations (duties) also held collectively, between collective immunities and collective disabilities, for it is often practiced in an active collectivism regime. In Hohfeld’s framework, an entitlement that is described as a right by its bearers, yet fails to correspond precisely to an identifiable duty, is a no-right. In turn, a privilege or liberty correlates with a “no-right” (see case study in the previous section), since liberty consists of an untrammeled permission to do something (i.e., to make a choice about doing something) so that the trammeling of that exact facility, in the form of a right to forbid others from doing that something, is specifically proscribed in tandem (Morss, 2009). If some collective enjoys a particular liberty, then some other collective or perhaps individual suffers a corresponding no-right (recall the very immature ordinance on illegal books and magazine, which barely underlined “liberty” or “freedom”, was only three hundred words in total words count, specifying only the cons of certain deeds). Power is the ability to modify certain legal relations, and liability means being at the disposal of the former. Hohfeld included the ability of transferring and abandoning, certain discretions and interests by wielding power. In such cases, corresponding liabilities may be identified. Power is incompatible with disability, which connotes an absence of power to change specified legal relations (Morss, 2009). As the mouthpiece of the Party, the communications sector may enjoy various powers, but in the case of CCTV v. Xingguangdadao Co., in which CCTV had been disabled in its attempt to alter an enforced legal action (i.e., the other party’s registration of the trademark in question). Disability comes with immunity, which is a curb on the scope of effective control corresponding to a protection extended to another or the others (Morss, 2009). Immunity is incompatible with liability, and the latter acquires an alteration in legal relations at the hands of others. Immunity with respect to one matter is entirely consistent with liability with respect to another, even when all other factors are the same. . In the model, one can see the communications law has codified more “Rights” than the other specified rights (Privilege, Power, and Immunity). Moreover, although the proportion of rights’ presences around the correlative statements that should be underlined with Disability, Duty, Liability and Disability, the codes tend to correlate Liability in legal speech with significant higher proposition than other elements
- With a close look at the jural opposites and jural correlatives of each element, we can see that Rights and No-Right have a much lower frequency of presence than that of Rights and Duty in general, which spportsHohfeld’s argument that legal corpora usually omit No-Right and highlight Duty. Another reason for this might be a Chinese characteristic, for No-Right is negative and passive in authoritative rhetoric, compared with the stylistic and active usage of Duty in abstract legal speech. Moreover, No-Right is often drawn upon in judicial cases and law reviews, given the negotiating nature of the term and its jural correlativity with privilege (another suitable right the communications sector usually refers to in lawsuits with class actions). . This indicates that a lot of Liberty out there is not correlated with No-Claim, and corresponding Duty is also paralyzed at least in a literal sense. In Hohfeld’s philosophy of correlatives, Liberty without Duty or No-Right is not accounted as liberty in most cases. For instance, the liberty to access Peer to Peer (P2P) file sharing programs is enjoyed by most Chinese citizens who are connected to the net. Today, only undergraduate and graduate students are entitled to the Right of using P2P services to download seeded files in their educational networks. While the general public still enjoy the web’s P2P services, the communications sector does not have a codified right to put their Liberty to any limits (the sector holds a No-Right toward the public’s downloading actions).