One thousand people may have one thousand understandings of the same law. Some may call it a “good” law while others regard it as a “bad” one. The current Opinion Solicitation Version Draft Amendment to the Copyright Law (Draft) has made many modifications to the original law which are intended to promote economic development and cultural transmission. For example, it adds the droit de suite to fine art, and further clarifies the rights of performers and publishers. The changes to the Draft are regarded as adaptions to historical development and social progress. However, its chapters and articles in collective management and right limitation arouse many controversies and questions, which may even make it a “bad” law.
How should we evaluate the pros and cons of a law? Generally speaking, there are four standards: 1) its legal form; 2) the essence of the legislation; 3) the generation mechanism; and 4) the protection mechanism. A review of the second standard shows that the essence of legislation is to protect personal and property security, maintain equality, guarantee freedom and promote efficiency. The third and fourth standards reveal that China has a relatively complete legislative system and comprehensive generation and protection mechanisms. With these three standards satisfied, logically, the only remaining standard for evaluation of a specific law, such as the pros and cons of the Draft, should be based on the first standard, the legal form.
The form of a good law should have the following four characteristics. The first is universality, which means the legislation is not made for specific persons and groups. The second is clarity, which means that the law must clarify its legal rules and conditions, rights and obligations as well as breach and accountability, and state them in language or text with clear and fixed meaning. The third is integrity, which means the rules of a country’s law should be unified and consistent and should not conflict with each other. The last one is feasibility or practicality, which means that the requirements by legal rules or system must be achievable for citizens or organizations.
The above-mentioned four characteristics are the basic principles that must be reflected in the forms of the laws in a society. Consequently the Draft should also have these four characteristics. From the point of view of ordinary people, it is reasonable to assume that different feelings and conclusions will inevitably arise in evaluating each of these four characteristics. For professional legislators however, such differences are not reasonable. The slightest doubt should not exist, because the new amendment must be in line with all these four points.
The amendment to the Copyright Law touches the nerves of the general public. Moreover, the magnitude of the amendments is a big event. It will greatly impact China’s economic development and its cultural transmission and development; related authorities must think twice before doing anything rash.
