Cihai defines library as “a cultural institution which collects, arranges, maintains and exchanges books and materials for readers to learn or study as a reference.” Its basic function is to collect and maintain works, spread knowledge, and provide information services. “Library” in English means “a room or set of rooms where books and other literary materials are kept.” A digital library, is, a library which contains not only books and magazines as does a traditional one, but also theses, music works and motion pictures, in a gigantic open information database, all digitizable. In this sense, a digital library would be more appropriately understood as a “gigantic database”; but the term digital library will be used in this article since it has been generally accepted.

Digital libraries can be categorized into two types. One type is the conventional non-profit libraries that have been digitized, covers public libraries, university libraries, and research libraries, which is a nationwide cultural engineering project of China. The digitalization of the conventional libraries mainly involves the building of information resources housed by them. Generally it includes three steps: first, placing traditional works of authorship into the storage of a computer through scanning or other means, that is, to digitalize these works; second, build works digitalized and/or works in digital forms into an electronic database and store such database into a hard disk of a network server; and third, the public gains access to a server, and it will send the required information to the memory or buffer of the accessing computer and such information is then processed by the accessing computer and output and delivered by the display and/or speaker to the public.¹ Because books that are borrowed or reproduced are very limited in a conventional library, such borrowing or reproduction has relatively less impact on the copyright owners of the books. However, after digitalization, the library offers a large number of books and materials to be transmitted on the network (the internet or intranet) so that readers can explore or read them online. This greatly impacts copyright owners, and results in more litigation.

The other type is the non-conventional digital libraries, springing mostly as database makers or commercial website hosters who, with their broad commercial nature, frequently get involved in litigation. These include, e.g., the Beijing Scholar Technology Co., Ltd. (Scholar Technology), Beijing Founder Apabi Technology Limited (Founder Apabi), the Beijing Century Superstar Information Technology Development Co., Ltd. (Century Superstar), Beijing Wanfang Data Co., Ltd. (Wanfang Data), and the Tongfang (Beijing) Knowledge Network Technology Co., Ltd (Tongfang Knowledge). They make databases of works of authorship by obtaining the authorization of the authors in various ways. They also run websites containing a huge number of books and materials.

  1. Accepted complaints

 

 

The right holders in cases relating to digital libraries in Beijing are predominantly authors of literary works (including books, theses and periodicals), and the rights asserted include those of publication, compilation, reproduction and of dissemination through the internet, and the last one in particular. The copyright owner often has the infringement evidence attested by obtaining a notarized download of his works that has been directly uploaded and offered for public viewing or downloading on a commercial website; or by establishing the fact that a database maker has sold its products to a public library which has uploaded them on its LAN for limited viewing or downloading. As to the amount of damages, the copyright owner would generally claim a statutory royalty rate multiplied by a number of copies.

For a majority of the complaints in Beijing, the infringing acts alleged by the plaintiff can be divided into two categories. One category is a commercial website that uploads works of authorship and offers them for readers to view or download, without the authorization of the copyright owners. For this type of infringement, the copyright owner would directly sue the website for infringement of the right of reproduction and information network dissemination. The other category is a professional database maker which sells the database it makes of works of authorship to traditional non-profiting libraries, without the authorization of the copyright owners. For this type of infringement, the copyright owner would sue both the database maker and the library as co-defendants. The court would generally hold that the act of the non-profiting library, be it a library of a higher educational institution or a public library, to buy the database and upload it onto its LAN for its readers constitutes infringement of the right of information network dissemination of the copyright owner. In the case of a public library, the court would generally only order it to stop the infringement, but never award damages to the copyright owner.

The courts in Beijing generally adopt the heightened inquiry approach to examine whether a database maker has been authorized the right of information network dissemination by the copyright owner. Currently, as database makers generally cannot use the “one-to-one” authorization mode that Century Superstar adopts, what they often obtain is the sub-authorized right of network dissemination. Therefore, to examine the completeness of the authorization to the database maker, the key is to examine whether the sub-authorizer has been authorized the right of network dissemination and the right of sub-authorization by the copyright owner. For example, of the many complaints filed by the authors of theses against Wanfang Data for infringement of the right of publication, compilation or network dissemination, the People’s Court of Haidian District, Beijing (Haidian Court) distinguishes between three scenarios and awards different judgments. It orders Wanfang Data to bear infringement liabilities where Wanfang Data failed to obtain the authorization from the authors and the higher educational institutions. It also orders Wanfang Data to bear infringement liabilities where Wanfang Data only has the authorization from the higher educational institutions but not from the authors. It rejects the claims of the complainants where Wanfang Data has the authorization from both the higher educational institutions and the authors.

Our investigation found that a good many disputes were caused due to vicious competition within the digital library sector. For many of the accepted digital library-related complaints in Beijing, superficially it is the authors that sue database makers. But, the actual initiator of the lawsuit may probably be an industrial competitor of the defendant. It takes advantage of the court proceedings as an instrument for ill-intended competition. The final outcome is destined to be a lose-lose result.

 

A traditional library is often a non-profit organization, whose most basic function is to provide free or nonprofit services to the public. However, a digital library is a super-scale storage and service system of knowledge and information. It is easy to use and not limited by time and location. Because of the changes in form, vehicle and operating system, the approaches and functions of the digital library are substantially different from those of the traditional one. The different legal status leads to different legal obligations and responsibilities. Therefore, when trying such cases, the court should first clarify the legal status of the parties.

The TRIPS Agreement does not directly stipulate how profit-seeking affects a digital library. Even if a digital library adopts a non-profit mode, the dissemination of works of authorship through information network will inevitably impact the potential marketing interests of the copyright owner. Therefore, “Non-profiting” cannot be raised as a defense. Under the TRIPS Agreement, profiting or non-profiting will not have major influence on the establishment of the legal properties of a digital library. The Copyright Law of the People’s Republic of China (Copyright Law) does not distinguish between for-profit or not-for-profit digital libraries, nor does it provide for any different legal consequences on account of for-profit or not-for-profit. As a result, whether a digital library is for profit or not cannot be an important factor in determining infringement by the digital library.

The above stipulations are made probably from the perspective of information network dissemination, whether a digital library is profiting or not will not make a big difference in terms of its impact on the rights of the copyright owner. However, in China, the status quo is that a traditional non-profiting library is very limited in its scope of dissemination. Usually, the viewing or downloading of digitalized books or materials is limited to the physical library or school and to teaching or research purposes. In the opinion of this author, it can have two scenarios. One is that the library digitalizes the books and materials that it keeps and then offers them for viewing or downloading by readers. In this case, statutory licensing can be applicable, that is, the library does not need to have the authorization of the copyright owner, but has to pay remuneration to the latter. The other scenario is that the library cooperates with and buys a database product from a professional database maker (which is not properly authorized), and keeps the database as its own virtual collection. In this case, if the library, which has a legal source for the works of authorship, takes effective technical measures to protect them, it can be deemed as the end user that has not employed the database for commercial purposes. It should not be held liable for damages, but should bear the civil liability to stop the infringement.² However, the statutory licensing may not apply in the case of a non-traditional digital library that is both a professional database maker and a commercial website, which is strongly profit-making in nature. Instead, the non-traditional digital library should try various means to obtain the complete authorization from the copyright owner.

To summarize the above, although it does not affect the infringement qualification, the profiting or not of a digital library does have an important influence on what liabilities the digital library has to bear.

If a traditional non-profiting library provides digital resources for viewing or downloading by users inside or outside the library, or if a non-traditional library, in the form of a commercial website, offers digital resources to a wide number of internet users, both provide digital contents to the users by means of the internet/intranet and can be classified in law as “internet content providers (ICP) to provide content services.” To publish works of authorship either on the internet or on its own intranet, the library, traditional or non-traditional, has to obtain the right of information network dissemination from the copyright owners. If it provides only a storage space where other entities or individuals may publish database-based information, it should bear the strict obligation to control such information so published and assist the copyright owners. It will be held liable for infringement liabilities if failing to provide assistance upon notification by the copyright owner. However, the one truly responsible is the entity or individual that publishes information on the space of the library.

In judicial practice, a non-traditional digital library is an ICP if it runs a commercial website to provide internet users with a kind of content service. It is also an internet service provider (ISP), if it may provide a storage space for internet users to upload works of authorship. As stated, the liabilities on an ICP are different from those on an ISP, which have to be distinguished by the court. By far, it often occurs in judicial practice what liability a digital library should bear if it is only an information storage space. Generally speaking, the court will examine an alleged infringing act in accordance with Article 22 of the Regulation on the Protection of the Right of Information Network Dissemination, in order to determine whether the defendant should bear the civil liability and pay damages. For example, in Beijing Lingshida Technology Co., Ltd. v. Beijing Scholar Technology Co., Ltd. for network dissemination infringement dispute,³ the No.1 Intermediate People’s Court of Beijing  found that the defendant, as the operator of the “story web” (www.xiaoshuo.com), provided downloading services to internet users by selling point cards; the defendant had obtained economic benefits from the selling of point cards; and the alleged infringing act was incompatible with the case provided for in Article 22.4, and the defendant should bear the civil liability to pay damages.

In practice, a non-traditional digital library, as a commercial website, should provide a risk-minimizing disclaimer on copyright by first including unauthorized works if it cannot for the time being obtain authorization in light of the large number of copyright owners, and then displaying the copyright, in order to avoid the consequences of infringement. For example, the copyright disclaimer of Century Superstar stated “if you do not wish your work of authorship to be used by readers through digital library, please notify us as soon as practicable. Upon your notification, we will remove your work of authorship from all our libraries within 24 hours and pay you a reasonable remuneration for the prior use of your work of authorship. We also welcome any readers to provide clues on the authors.” Although it is to “act first and report later” and highly risky in law, it can greatly reduce the risk of infringement commercially. In addition, the commercial website should also take appropriate technical measures, such as the digital right management (DRM)⁴, in order to prevent any works of authorship from being pirated, or limit their printing, dissemination or permanent downloading, by, for example, permitting not more than 10 pages to be printed for one time or attaching a copyright mark to the printed page. Considering the current internet bandwidth, it may allow readers to download any books or materials to their local hard disks for reading. It may encrypt the downloaded materials so that they can be read only by the readers on their local downloading computers but cannot be disseminated. The downloaded materials will be invalidated upon expiration of the reading card or after a specified time period, which corresponds with “borrowing” and “returning” in a traditional library. The readers do not have permanent ownership over the downloaded materials. The number of books read and downloaded is calculated so that it can be checked by the authors at any time. All the statistics and the remuneration distribution plan are prepared under the supervision by the China Copyright Protection Center.

A few days ago, Google China (www.google.cn) launched its digital library. It scans books and uploads them into its server. It also edits and arranges books in categories for internet users to explore. In so doing, it relied on the “fair use” defense, and asserted that its acts are governed by the laws of the United States. However, “fair use” has its limited application. All countries, including China, have stringent restrictions over “fair use,” as a protection for the legal rights of copyright owners. In the Copyright Law, Article 22 lists 12 circumstances of “fair use.” Only under a situation compatible with any of these circumstances may unauthorized use of a copyrighted work be justified without remuneration. Any other uses without the authorization of the author cannot be deemed as “fair use”. In addition, it is certain that Google China and its acts are governed by the laws of China. It is no different from other commercial websites of books, since all of them reproduce and disseminate through the information network works of authorship without the authorization of the copyright owners. They directly infringe the rights of reproduction and information network dissemination and should bear the civil liabilities to stop the infringements and pay damages under the Copyright Law. Despite Google China has on its website a copyright disclaimer similar to that of Century Superstar and pays an appropriate contribution fee as compensation to authors asserting their rights, these actions only help partially to lower the legal risks of Google China. Essentially, Google China has knowingly reproduced and disseminated through the information network works of authorship without the authorization of the copyright owners. It should bear the civil liabilities to stop the infringement acts and pay damages.

During the construction of a digital library, it is a very important link to develop and use databases. In judicial practice, a good many parties present themselves as professional database makers.⁵ The Database Directive of the European Union provides that databases which, “by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation” are protected by copyright. Under Article 14 of the Copyright Law, a compilation of works of authorship or parts thereof, or data or other materials which do not make up a work of authorship, which is original in its selection or arrangement of contents, shall be a compilation work; the copyrights in a compilation work shall be owned by the compiler and may be implemented, subject to the copyrights in the original works of authorship that are included in the database. As shown, the Copyright Law protects databases as compilation works, provided that such databases should be original in the selection and arrangement of their contents.

As a digital library has to have an original database, during the development, it must focus on the selection of materials and try to avoid copying the whole or any substantial part of the databases of any others. It should also ensure originality in the arrangement of the contents of the database. In addition to a self-developed database, a traditional non-profiting library will buy databases from professional database makers in order to expand its virtual collection. This is why traditional non-profiting libraries and professional database makers were both sued as co-defendants in a good many complaints accepted by the courts in Beijing.

Currently, in the digital library sector, professional database makers, such as Wanfang Data or Tongfang Knowledge Network, are a force that cannot be neglected. Normally, they make databases of theses, periodicals or books and then sell the self-made databases to public libraries, libraries of higher educational institutions or libraries of research institutions. These databases become an important part of the collections of such libraries and are offered to readers within a limited scope (to teachers and students generally in the case of a higher educational institution library or to registered readers in the case of a public library). On the other hand, the authors and copyright owners, often first have the fact notarized that the intranet of the above libraries contains the works of authorship. Then, they initiate an action against the database makers and the higher educational institutions/public libraries, requesting the database makers AND the higher educational institutions/public libraries to bear the infringement liabilities jointly and severally.

 

According to the Copyright Law, several property rights and personal rights are granted under copyright. Which right the copyright owner asserts depends upon different infringing acts, and the evidential requirements are different. Therefore, it is necessary to analyze the rights asserted in the legal cases involving digital libraries.

The digital processing of literary resources is a necessary step in the resource construction of a digital library. It physically assures the existence of the digital library. “Digital Processing” means to convert information of a certain format (text, value, graph, image or audio) into binary codes with computer technology, and to organize, process, store or transmit and if necessary, restore such digitalized information into its original format.⁶ Digital processing of works of authorship, by its very nature, is similar to the reproduction of software applications. It transforms the natural language of humans into binary codes that can be read by machines. The shift between the media is only a physical transfer. It does not affect the copyright ownership, because it is to copy the works.

Under Article 2 of the Rules on Copyrights in Digitalized Products issued by the National Copyright Administration on December 9, 1999, “any act to make into digitalized products existing works of authorship represented or fixed in whatever way is an act of reproduction under the Copyright Law of the People’s Republic of China”. For this sake, to digitalize any information or resource, a digital library must have the authorization of the right of reproduction from the copyright owner. Therefore, if a professional database maker records existing works of authorship without authorization, or if a commercial website uploads onto it existing works of authorship without authorization, the professional database maker or the commercial website must obtain the authorization of the reproduction right from the copyright owners.

Under Article 10 (1) of the Copyright Law, the right of publication is the right to determine whether to publicize a work of authorship to the general public. It is mostly found in cases involving dissertations.⁷ As dissertations are often unpublished; a database maker which includes any dissertation into its database without the authorization of the author has infringed the right of publication of the author. The database maker should bear the civil liability to apologize to the author.

Under Article 10 (16) of the Copyright Law, the right of compilation is the right to collect by selecting or arranging existing works of authorship or parts thereof and thereby make a new work of authorship. The right of compilation prohibits compilation of any work of authorship into a database without the authorization of the copyright owner. In judicial practice, when making various databases, a professional database maker should obtain the right of compilation authorized by the author.

The right of information network dissemination was added when the Copyright Law was revised in 2001. Before the revision, in the cases tried by the Haidian Court, the defendant was held as having infringed the right of use and the right to remuneration of the plaintiff under the previous Copyright Law.⁸

Under Article 1 of the Regulations on Protection of the Right of Information Network Dissemination, there are three subjects – the copyright owner, the performer and the maker of sound/visual recordings  – that may hold the right of information network dissemination. Therefore, to build up its collection resources, a digital library must obtain the authorization from these three holders of the right of information network dissemination. In judicial practice, problems arise most often with the authorization by the copyright owner of a literary work. Under the usual authorization mode, a database maker would obtain the authorization of the author before making databases of the work of the author, and then sell the databases so made to various libraries to build up their virtual collections. Here is a problem: the database maker must obtain from the author the rights of reproduction and compilation, as well the right of information network dissemination that can be sub-authorized, so that the chain of rights is complete; otherwise, the database maker may incur the risk of infringement.

As this author views it, if a non-profiting digital library uploads onto its LAN digitalized book resources for viewing or downloading by others, it should be governed by the right of information network dissemination. Some comrades argue that as the intranet is limited to a specific space, the public cannot access any works of authorship on the intranet “at the time and location selected on individual basis” – an essential element of the right of information network dissemination under the Copyright Law. They consider it more appropriate that the dissemination through the intranet should be governed by the right of reproduction or any other copyright-related rights. In the opinion of this author, in China, the legislation of the right of information network dissemination is intended mainly to regulate the dissemination of works of authorship by “wired or wireless means” as different from traditional disseminating approaches, rather than being focused on “the time and place selected on individual basis”. Therefore, as far as this author can see, where any dissemination of works of authorship within an intranet constitutes infringement, the object of infringement is still the right of information network dissemination. In addition, this author thinks that the scope of fair use for works of authorship may be appropriately expanded towards non-profiting libraries, that is, a non-profiting library may offer works of authorship for online viewing and downloading to a certain extent without the authorization of or payment to the copyright owners, which does not constitute infringement of the right of information network dissemination of the copyright owners.⁹

In the cases filed in Beijing involving digital libraries, the disputes are often due to the non-traditional digital libraries’ failure to obtain the complete authorization from the copyright owner. As different non-traditional digital libraries adopt different modes to obtain authorizations, we will probably find the complex through an analysis of the authorization modes.

As a professional database maker, Wanfang Data has a main product called China Dissertation Full-text Database (CDFD). The authorizations that Wanfang Data obtains for the CDFD are mostly sub-authorizations from the China Science and Technology Information Institute, and these sub-authorizations are sub-authorized to the China Science and Technology Information Institute by the colleges and universities from which the authors of the dissertations graduate. These sub-authorizations may probably be defected. Due to national policy support, the China Science and Technology Institute is out of the question. Now, the sub-authorization from the colleges or universities cannot be deemed as complete until and unless the colleges or universities have been authorized by the author the rights of reproduction, compilation, information network dissemination and sub-authorizing with respect to his (or her) dissertation.

As to the liabilities in law of Wanfang Data, we may take as an example the complaints filed by hundreds of dissertation authors against Wanfang Data that Haidian Court accepted in the first half of 2008. Generally, these cases can be divided into three categories. The first category is that Wanfang Data has the authorizations from the dissertation author and the college or university from which the author graduates; the second category is that Wanfang Data has the authorization from the college or university, but not from the author; and the third category is that Wanfang Data does not have any authorization from either the authors or the college or university. During the trial, the Haidian Court first identifies the copyrights that an author has to the doctoral or master dissertation concerned. It goes on to find that Wanfang Data has commercially used the dissertation concerned in the selling of its databases to the libraries concerned. It holds that although Wanfang Data has taken technical measures to limit the use of those databases to a certain range of IP addresses on the intranet of the database users (the libraries concerned), it cannot exclude the possibility that the public may gain access to the dissertation concerned through the intranet of the database users and such access by the public is without the fair use by a library under the Copyright Law. The act of Wanfang Data has infringed the author’s rights of reproduction, compilation, information network dissemination and publication (if it involves an unpublished dissertation). In the final judgment, the Haidian Court distinguishes between two scenarios: 1. The court holds Wanfang Data as the infringer of the author’s rights of publication, reproduction, compilation and information network dissemination, if Wanfang Data has not obtained any authorization from either the college or university or the author, or if it only has the authorization from the college or university but not from the author; and 2. the court rejects the claims by the complainant, if Wanfang Data has the authorizations from both the college or university and the author. All these judgments have been affirmed by the second-instance court.¹⁰

Among digital library companies, Century Superstar has almost finished with volume authorization by obtaining the authorization from the authors one by one. Century Superstar is a database maker that runs a commercial website called “Superstar Digital Library” (www.sslibrary.com). It sells the self-made databases through the Beijing Superstar Digital Library Information Technology Co., Ltd. (“Superstar Digital Library”). Century Superstar concludes with each author an authorization agreement which specifies that the author authorizes Century Superstar the right of information network dissemination to his (or her) “personal works” with an exclusive license. As consideration, Century Superstar will provide the author with a ten-year reader’s card which can be renewed upon expiration.

In addition, at “Contact Us for Authorization” on the Superstar Digital Library website, Century Superstar provides three alternatives: it may offer as gift a 10-year reader’s card to the author, pay the author a fee based on the downloading of the author’s work or charge the users separately if the author requests his (or her) work to be separately priced. For the current authorizations that Century Superstar has, an absolute majority of the authors have chosen the first alternative, that is, to receive a ten-year reader’s card. To exchange a right for another right without making direct payments, this authorization approach saves considerable expenses for Century Superstar.¹¹ However, for such a mode, the biggest problem is that Century Superstar cannot find and sign an authorization agreement with all the authors of the works included in its database. More often than not, it is not properly authorized.

The non-profiting libraries, which are the “consumers” of the databases that Century Superstar sells, may have access to the databases using a user name and password allocated by Century Superstar on a paid basis. With the user name and password, the non-profiting libraries may download certain contents of the Superstar Digital Library from the website www.sslibrary.com. In this case, because the non-profiting libraries use the databases in a way similar to that of an internet user, this act of the non-profiting libraries is not considered as infringing.12 The Haidian Court finds that Century Superstar and Superstar Digital Library have jointly infringed the rights of reproduction and information network dissemination of the copyright owners and shall bear the civil liabilities to stop the infringement and pay damages.

Founder Apabi obtains from the publisher the authorization for works of authorship. The publisher ensures that the rights it authorizes Founder Apabi include the right of information network dissemination of the authors. However, the risk of defected rights may be hidden in this authorization mode. First, the publishing contract between the author and the publisher may not authorize the publisher the right of information network dissemination with respects to the author’s work. Second, even if the right of information network dissemination is authorized, but the publisher may not be allowed to sub-authorize this right. In these two scenarios, Founder Apabi has the risk of being sued for infringement of the author’s right of information network dissemination.¹³ From the perspective of judicial practice, Founder Apabi, if found as infringing, can claim against the publisher for default liabilities on account of the defected right. However, from a business perspective, it is almost impossible for Founder Apabi to sue the publisher as it wants to have the resources of the latter. 

Moreover, Founder Apabi sells to non-profiting libraries “eBooks” before the authorization of the right of information network dissemination expires, together with a piece of operating system software so that users may “view” or “borrow” the eBooks.¹⁴  The non-profiting libraries implement a borrowing mode similar to that for traditional paper-based books and offer the eBooks to the users within a LAN. For this authorization mode, the Haidian Court holds that because the infringement occurs after the authorized period expires, Founder Apabi shall bear the liabilities to stop the infringement and pay damages.

Currently, in the cases involving digital libraries, the most prominent issue is the volume authorization of works of authorship. The copyright owner often sues database makers, commercial websites or various libraries due to infringement of the right of reproduction, compilation or information network dissemination. For this sake, how to solve the volume authorization issue should be a primary focus of the digital library sector.

Under the existing legal framework, copyright pooling is a relatively feasible solution to massive authorization, which is also internationally adopted. However, the pooling system of China is far from perfect.

For the pooling of literary works, the China Written Works Copyright Society, for which people have had great hopes, has just had itself established with the approval of the National Copyright Administration. It has not yet entered into formal operation. It will mainly operate to accept authorizations from domestic or international copyright owners to manage their copyrights or related rights through the statutory collective management system or membership system; to register and manage their works of authorship and copyrights; to issue copyright licenses and collect usage fees from users of such works of authorship; and to distribute the usage fees to the copyright owners.¹⁵ According to the statement in the Member Directive, the society will not manage all the copyrights of copyright owners, but only the rights that are managed by a collective management organization under the relevant laws, regulations or rules of China, which are difficult to exercise for the copyright owners on individual basis, such as (1) the right of information network dissemination; (2) the right of compilation involving multimedia or database making; (3) the right of reproduction involving newspapers and magazines; and (4) any other rights to be managed by a collective management organization under the relevant laws, regulations and rules. ¹⁶As shown, the functions of society include the management of the right of information network dissemination in literary works.

Therefore, the key to volume authorization becomes whether the author understands and is willing to authorize his (or her) work to a collective management organization. If this link is streamlined, it will be the most cost effective means of copyright authorization.

A collective management organization mainly functions to obtain the authorization from authors and collect and distribute to the authors copyright royalties. Here, as a precondition for its proper functioning, the collective management organization has to obtain the authorization from authors; without the authors’ authorizations, the collection and distribution of copyright royalties will be mission impossible. The willingness or consciousness of the authors to actively participate in a collective management organization is an issue of free will. If an author is unwilling or does not give his (or her) authorization for causes whatever, it will be very difficult, if not impossible, for the collective management organization to obtain the author’s authorization, just as in the case of a digital library. Therefore, as the consciousness of the author falls behind, the collective management organization is restrained from contributing to the construction of a digital library. On the other hand, the existence of the collective management organization is founded on the service to a small number of famous authors. Those few famous authors of musician, writer or painter as relatively easy to contact with, if the collective management organization wishes. However, as the digital library faces a large number of common authors, it is simply impossible to ask all of them to participate in the collective management organization. In this Internet Age, everybody is an author and a user. It will be a hugely complicated project if everybody is required to join and sign an authorization agreement with the collective management organization of literary works so that such collective management organization will collect a fee from each user and distribute the fees so collected to each author.

To disseminate works of authorship on its information network, a non-profiting library will set up different limitations to different users. What an outside user can view is far less than a user inside the library. For the offering of some of the contents by the library for an outsider to view, which will seriously damage the rights and interests of the authors of the contents, the statutory licensing system may not apply and the library should obtain the authorizations from and pay a license fee to the authors. For users inside the library, if the library has taken effective technical measures to limit the access to a certain section (or sections) of IP addresses, restrict the maximum number of active viewers and prohibit downloading or printing of any works of authorship, then the statutory license system may apply. Moreover, to realize their economic benefits, authors are usually willing to have their personal works spread more widely. This lays a realistic basis for the application of the statutory licensing system to the non-profiting library. Despite this, the non-profiting library should add a notice to its website: any author who does not want his (or her) work to be spread through the internet may notify this library. Upon the notification, this library will immediately remove such work and pay him (or her) a reasonable remuneration for the previous use by the library of such work.

To obtain the authorization from the publisher, as Founder Apabi has done, is worth trying by other companies in the digital library sector. In China, a book must be published by a publisher and the latter often holds a large resource of books. The publishers are few, as the authors are numerous. Therefore, it is relatively easy and very cost effective to obtain from the publisher the authorization of the right of reproduction and information network dissemination of the authors. However, in practice, a publisher often refuses to provide a database maker with the publishing contract between an author and the publisher on the grounds of business privacy. As a result, the database maker is impossible to know whether the publisher has been authorized the right of information network dissemination by the author and may incur the risk of infringement. This is a disadvantage of this authorization mode.

This mode means that the copyright owner may volunteer to offer to the public, through a copyright notice in the book, that the public may use its work of authorship under specific conditions and in specific ways. Any individual or organization, as long as it is willing to accept the conditions, will automatically enter into a contractual relationship with the copyright owner and may use such works of authorship in the ways specified by the copyright owner.

It is significant to publish a work of authorship with an authorization offer, because it ensures that the offeror must be the author, which eliminates the cost of author identification and possibly any error from such identification; it also ensures any user who intends to use the work of authorship can definitely find the corresponding offer without incurring any expenses; and it provides the most easy opportunity for the author to express his (or her) wishes with minimum expenses, if he (or she) wishes the work of authorship to be spread under certain conditions.

Since a contract should be the result of concurrence of declarations of will by the parties, the above authorization mode has a biggest disadvantage – it does not take into account the will of the licensee. It uses a “formal contract” made by the licenser unilaterally and as a result, the licensee can only “either accept or refuse” the offer.

To sum up, there is no mode that is good for all. Each authorization mode has its own advantages and disadvantages. Notwithstanding this, if the copyright authorization problems are not solved, the digital library sector will come to have endless disputes and its healthy growth will be hindered. Therefore, the digital library sector should combine and use various authorization modes and try to find a solution to copyright authorization as soon as practicable.

A legal issue involving digital libraries will have three stakeholders: – the copyright owners, the digital library industry and the public. Two acute conflicts exists between the three parties – the copyright owners versus the digital library industry with respect to the cost of copyright authorization; and the  public versus the copyright owners and the digital library industry with respect to a lower cost of information acquisition. As the cost of information acquisition is dependent upon the cost of copyright authorization, the mode and cost of copyright authorization is centered at the core of the digital library industry and its development, under the existing legal framework.

Considering many hard-to-solve problems for the digital library sector, particularly the non-traditional digital libraries (including database makers and commercial websites) to obtain copyright authorizations, there will continue to be many similar cases for a long run into the future. For a solution, this author suggests the following key points. 1. The court should examine if the database maker or commercial website has been authorized all the necessary rights by the copyright owner; 2. The court should also examine whether a traditional non-profiting library that purchases a database has taken necessary technical measures to limit the viewing times and spreading range of the works of authorship that the database contains; and 3. For the amount of damages to award, the court should consider the actual profitability of the digital library sector and its difference from the traditional paper-based publishing industry, and reasonably determine an amount of actual losses incurred by the copyright owner.

In addition, this author believes that the disputes here cannot be solved solely by the court, but depends upon the joint efforts between legislators, industrial regulators, and industrial societies, copyright collective management organizations and publishers, as well as society as a whole. The legislators should further perfect the laws, regulations and rules relevant for the digital library sector, particularly with respect to statutory licensing. The industrial regulators and the industrial societies should coordinate the interrelationships between the companies in the digital library sector, to reduce any unnecessary “internal friction” and unite them to participate in the international competition. The literary copyright societies and the publishers should undertake the central task of volume authorization and strive for a final solution.

In short, despite the various problems, the digital library sector is needed and necessary for the development of society and progress of human civilization and its growth can never be stopped. Therefore, we should face up to the challenges and make greater contributions to the healthy growth of the digital library sector.

Endnotes:

1. See Legal Issu,es in the Construction of Digital L,ibraries, Cao Hairong, Application of Law, 2003, 10^th edition, Page 63-64

2. For detail, see Zhou Daxin v. Beijing Century Superstar Information Technology Development Co., Ltd. and University of International Business and Trade for copyright infringement, (2008) Yi Min Zhong Zi No. 10367

3. For detail, see the case (2008) Yi Zhong Min Zhong Zi No. 4055 

4. Digital Rights Management, or DRM, means to protect digital contents, including eBooks, video recordings, audio recordings and images by using certain algorithms. It technically prevents unauthorized reproduction or makes it very difficult to some extent, and the end user must obtain a license before accessing the digital contents.

5. In many accepted complaints involving digital libraries in Beijing, database companies are sued because they did not obtain the complete authorization from the authors when they made databases of works of authorship.

6. Copyright and the Freedom of Public Learning - the legal dilemma of digital library, Bao Minming, Legal System and Society, 2006, 10^th edition

7. For detail, see Li Zhiming v. Wanfang Data Co., Ltd. for copyright infringement dispute, (2008) Hai Min Chu Zi No. 8800

8. See Wang Meng v. Century Interaction Communication Technology Co., Ltd. for copyright infringement dispute, (1999) Hai Zhi Chu Zi No. 00057.

9. Under Article 22 of the Copyright Law, “under the following circumstances, an entity or individual may use any work of authorship without the authorization of or payment to the copyright owner, but shall indicate the name of the author and the title of the work, subject to any other rights of the copyright owner under this Law:… (6) For purposes of class teaching in a school or scientific research, one may translate or reproduce in a small amount any published work of authorship so that such work of authorship can be used by teachers or researchers, but shall not offer such translation or reproduction to a publisher for publishing.”

10. For detail, see the civil judgments (2008) Yi Zhong Min Zhong Zi No. 12223, 12255 and 12256.

11. For detail, see the appellants Jiang Guanghui, Zhang Wenxiu, Wang Zhongjiang, Xing Wen, Zhang Haiyan, Pu Weizhong, Chen Qitai, Liang Tao and Zhang Jianyin v. the appellee Beijing Century Superstar Information Technology Co., Ltd., the defendant Beijing Century Superstar Digital Library Information Technology Co., Ltd and the defendant University of Shanghai for Science & Technology for copyright dispute (2008) Yi Zhong Min Zhong Zi No. 2305

12. Same as Endnote 9.

13. For detail, see the appellant Li Changkui v. the appellees Shenzhen Nanshan Library, Beijing Founder Apabi Technology Co., Ltd. (“Founder Apabi) and Beijing Founder Electronics Co., Ltd. (“Founder”) for copyright infringement dispute (2007) Yi Zhong Min Zhong Zi No. 12295

14. For detail, see Beijing Scholar Internet Technology Co., Ltd. v. Beijing Founder Electronics Co., Ltd. for copyright infringement dispute (2008) Yi Zhong Min Zhong Zi No. 16628.

15. http://www.ccopyright.com.cn/1center/copyrightclub.html.

16. The Directives is provided by China Copyright Protection Center. See Copyright Anthology, edited by Chinese University Journal Society, Sept. 2001.