Preserving Originality in Cyberspace

Abstract

Although China has long been criticized for her half-heart in copyright enforcement, she is actually one of few countries that, under international pressures and obligations, establish a basic modern copyright system in an extremely short period of time. It is undeniable that response to international pressures has increasingly become one of primary motives behind domestic copyright legislation efforts. Yet, Chinese copyright law as well as those of most modern countries is also proposed to further the other two equally, if not more, important ends: (1) to recognize and encourage intellectual creation of authors; and (2) to promote the pubic interest in progress and dissemination of science and knowledge. The awareness of these dual purposes of copyright law is particularly crucial in cyberspace, where the international community has not yet achieved a final consensus on the appropriate level of copyright protection. Taking as case study electronic database protection, this article argues that China should start to build a more balanced copyright system in cyberspace to tame new technologies into maximizing the welfare not only of individual authors but also of the society as a whole. This article points out, inter alia, a troubling tendency of overprotecting unoriginal databases and diminishing the public domain by circumventing such traditional copyright safety valves as the originality requirement. Database protection may not be classified as an entirely novel issue in cyberspace. Literally speaking, any collection of information is a “data-base”, such as yellow pages and encyclopedias which has long been existing in the printing form. Nonetheless, digital technology dramatically reactivated and exaggerated the database concern in at least two aspects: On the one hand, the use of computers makes it economically feasible to create highly comprehensive but still user-friendly databases by collecting, storing and processing a huge amount of data. On the other hand, it is also not hard to image that electronic databases are particularly vulnerable to piracy. Once they become available on the Internet, several clicks on the mouse may turn an end-user into a potential competitor. Nonetheless, what bring database protection to the front of digital copyright agenda worldwide are not only the bright economic prospects and exacerbated vulnerability of database industries in cyberspace, but also the potential effects of expansive database protection on the public interest in free flow of information. Section II will briefly survey the database protection regimes in the United States (the “U.S.”) and the European Union (the “E.U.”), which lays the comparative ground for further analysis on their Chinese counterpart. Section III will trace the history of database protection in China, with a particular emphasis on the recent trend of applying unfair competition law to protect uncopyrightable databases. Based on the U.S. and the E.U.’s successful experience, Section IV will articulate constitutional and economic implications of originality and propose how China should preserve originality in cyberspace to strike the dedicate balance between providing incentive to intellectual creation and safeguarding the public domain. Section V will conclude the main points of this article and try to invoke some further policy considerations, though beyond the scope of this article, yet entailing even more serious attention from Chinese copyright profession.