The latest draft amendments to China's copyright law have raised controversy in the music industry over the rights of songwriters. The proposed change would allow musical recordings to be used without the consent of recording artists and musicians. The draft amendments state that if three months have passed since a song is released, the song can be used by others without the permission of the owner.

The users need only to apply to the National Copyright Administration of China (NCAC) by stating the song's title and the owner's name. Remunerations, set by industry standard, are transferred to the owner through the Music Copyright Society of China (MCSC), an administrative organization in charge of copyrights cases in the music industry.

Released on March 31 by the NCAC, the draft amendments will undergo a pre-trial period for a month. According to the official website, the public can express their views through e-mail, fax or letters to the NCAC before April 30.

Violating rights 

Contrary to the current stipulation in the copyright law that "no such work may be used if the copyright owner does not permit," the new draft amendment does not grant any agency to the song owner, regarding the use of recordings. This incurs condemnation from many songwriters.

"While other countries are creating stricter laws to combat bootlegging and honor copyrights, we are doing the opposite. This is quite sad," said Wang Feng, a rock singer and songwriter in China.

"The new draft violates the owner's copyrights of the recording," said Zhou Yaping, a pop music producer. "This proposed amendment is not for the benefit of public but for the MCSC," he said.

During the 2011 spring festival gala on CCTV, Xuri Yanggang, the name of a singing duo of two migrant workers, attained overnight success in China after signing "In Spring," a pop song written by Wang Feng. Since then, the duo has performed the song in public  many times, without permission from Wang Feng.

On February 11, 2011, Wang Feng posted on his blog a request for the duo stop singing his song.

"According to current copyright laws, the owner of the song, Wang Feng, has the right to ask Xuri Yanggang to stop singing it," wrote domestic composer Li Guangping on his Sina Weibo. "But under the new draft amendments, Wang's right would no longer be protected," Li wrote.

Wang Feng's case is not isolated. The proposed amendment will deprive all songwriters the right to give or dismiss requests of song use.

"[Without legal protection], who can protect the songs that we have worked so hard to create?" Li Guangping lamented on his Sina Weibo.

Legal debates

"This new provision is like publicly encouraging plagiarism," said domestic songwriter Gao Xiaosong. He questions why the proposed regulation only applies to sound recordings and not films or television dramas. "It's unfair to music writers. This proposed revision sides with bigger corporations, like Internet companies," he said.

"If the draft amendments are passed, it will dampen the enthusiasm of songwriters to produce original work. The proposal encourages singers to simply perform existing songs. Recording companies will subsequently put emphasis on singers instead of songwriters," said Zhou Yaping.

Zhou believes that the proposals to forward all remunerations through the MCSC will also redirect the copyright income songwriters receive. The MCSC becomes more powerful while recording artists and musicians lose control.

Lawyers offer a legal perspective. "The new draft amendments in China parallel some of the laws in the United States," said Hai Ming, a Chinese American lawyer.

"American copyright laws allow the re-use of recordings without the owner's permission, but the time period is much longer than three months," he said. But Hai is optimistic about the amendments.

"It is only a draft, I believe there will be revisions of these amendments, for the better of those invovled," he said.

Striking a balance

"The amendment's purpose is to encourage the popularity of a recording," said Chen Zhong, vice president of Zhejiang Zhelian Lawyer Office.

There are prerequisites to the process. Those who want to use existing recordings must apply through administrative institutions and pay remunerations.

"The proposal is trying to strike a balance between the parities involved," he said.

Li Mingde, an intellectual property rights (IPR) professor at the Chinese Academy of Social Sciences, shares this view.

"We need to take everyone's interests into account," he said. "It's wrong for a song to be monopolized by a few. A wider distribution brings the original singer and songwriter economic benefits," said Li.

Take the universally known song "Happy Birthday to You." This birthday favorite earns about $2 million in copyright fees each year, according to the Warner Brothers Entertainment Inc., the corporation that owns the copyright of the song. Although the writer of the song has since passed away, any commercial usage of the song requires a copyright fee paid to Warner Brothers.

America's copyright law has detailed and specific regulations, but the Chinese government must earn the public's trust and approval.

On April 4, in response to the mixed feedback, Wang Ziqiang, head of copyright department of the NCAC replied that they take public's opinion seriously and will weigh all options.