A LEGAL FRAMEWORK FOR THE DEVELOPMENT OF THE CONTENT INDUSTRY IN THE PEOPLE’S REPUBLIC OF CHINA

Abstract

Developing the digital content industry is ranked as a key part of the Chinese informationisation strategy and an important strategic measure necessary to build a creative nation. The distribution activities related to network cultural products can be grouped into two categories, with one category subject to private laws such as copyright or contract laws, and the other related to public or regulatory laws. Therefore the digital content industry requires two types of order: copyright order and regulatory order. However a favourable industry order is hard to achieve given the many challenges present. Both digital works and network communication challenge the copyright order. Network communication is also a new media and the convergence of networks challenges the regulatory order. This chapter highlights that the focus of the modern copyright regime is to seek a balance between the interests of the copyright owners and the public. A feasible copyright order should rationally assign rights and responsibilities among the stakeholders to construct a trade or market mechanism that is capable of inspiring creators whilst facilitating the distribution and consumption of digital content products. As for the regulatory order, innovations in regime and policies are required to cater for any new particulars of network media. This chapter proposes three principles for regulating the digital content industry: 1) Separating the regulation of content from the network to ensure the openness of networks and communication channels, specifically the openness of industry entrance. 2) Adopting a registerapproval instead of a licence-based system for market entrance. 3) Abandoning or removing the application based preconditions for network content by setting up enforceable standards for content legality. These principles will change subject-orientated regulations on the digital content industry to behaviour-oriented regulations. As the digital content industry is an integrated and inclusive industry, it is necessary to coordinate or merge the current framework of disparate government functions. The Chinese government may find this challenging, because the development of the digital content industry heavily depends on forces operating inside the industry itself. It is not only impractical but also impossible to solely rely on the government to control cyberspace and its social intermediaries - industry self-discipline should come into effect. A dual governance mode combining government regulation with industry self-regulation will have significant consequences for the digital content industry.