Impact case study database

Research by Kariyawasam has changed the understanding of key copyright and end-user stakeholders in China; at a global level it has produced a recommendation for a new definition of internet major suppliers for the WTO to address the international digital divide between main and third-party operators.

Influence on Intellectual Property stakeholders in China

Kariyawasam held a legal drafting workshop in Beijing in April 2017 with 30 key copyright and end-user stakeholders in China which included: the then chief judge of the IP Tribunal, Peoples Supreme Court, Chinese National Copyright Bureau, The Intellectual Property Research Center of Xi'an Jiaotong University, IP Publishing House, Shenzen Library, and Xi'an Film & Television Arbitration Center. These significant stakeholders were invited to comment on the 14 legal recommendations on copyright reform in the digital economy, social media and digital divide issues, produced by Kariyawasam and the research team on amendments to the Third Revision of China’s Copyright Law. These were later included in Output A to the Chinese State Council. The event effected a change in awareness of these stakeholders on how copyright can enable the further promotion of innovation and creativity, while also allowing copyright owners to gain returns on their work (evidenced by their testimonials below).

A preliminary report in October 2016 by China's National Copyright Bureau (NCB) illustrating the downstream impact of this research stated: "Derivative works created by various users pose challenges to copyright owners, administrative supervision, dispute resolution and judicial trial. In order to cope with such a change, the seminar on fair use in the digital domain co-sponsored by Anglia Ruskin University, Peking University Law School, and the School of Law Xi'an Jiaotong University was held in Beijing. Scholars from both China and Britain carried out in-depth discussions on the rights of works on the network and digital conditions as well as the fair use under the Copyright law." [1]

The Managing Editor of the Intellectual Property Publishing House (IPPH) in China said: “The recommendations changed my thinking on copyright law and as an end-user of copyright, I felt it is important that the recommendations were adopted into Chinese law (…) Also, I agreed with the Fair Use Project's suggestion that the range of fair use examples should be expanded. This was an extremely important suggested amendment as it suggested introducing the idea of 'transformative works' (as seen in US copyright law) into Chinese copyright law, where such an example of a work does not currently exist “ [2].

Senior judicial opinion has also changed. For example, the then chief judge of China’s Supreme People’s Court IP Tribunal (China's highest court) said: “The fair use project has had very meaningful impact in changing my judicial opinion on Chinese copyright law.” [3] The judge of the Shenzhen Intermediate People's Court said: "Professor Kariyawasam's fair use project has been extremely useful in demonstrating how judges can view fair use cases in the digital domain. Prior to being introduced to the fair use project, I had not previously appreciated the scope and extent of the use of fair use in China...The recommendations for legislative copyright change suggested by the fair use project are extremely helpful." [3]

The AHRC project impacted the Intellectual Property Research Institute of Xi'an Jiaotong University. The Director of the Institute stated that before Professor Kariyawasam’s work, they had not investigated the fair use terms for copyright. They became aware of the need for such provisions, including for a virtual copyright notice, reverse engineering of software interfaces, and for regulation of user-generated content on social media. Also, the project impacted on the academic training of the Institute’s 20 Masters and 5 PhD students, as it provided guidance on how to design and conduct research questionnaires, not available elsewhere in the highly specialised digital economy area, and to complete field research on digital IP. The Director said the AHRC project produced: "...the largest survey of its kind of fair use of copyright in the digital domain in China at the time." [4].

A key stakeholder of the research has been the Quality Brands Protection Committee (QBPC) in China, a coalition of 200 corporate members, among which 186 are well-known foreign multinationals (e.g., Apple, Samsung, Intel, IBM, L’Oréal) in China. The QBPC recommended Kariyawasam's work to its membership in China and requested its corporate members to complete the fair use survey. The organisation stated that the survey has created awareness on the need for copyright and social media reform among its members [5]. The Vice-Director of the Xi'an Film & Television Arbitration Center stated that “…participation in the research questionnaire made him aware that the copyright law in China needed change to cover areas like cloud technology usage and the introduction of a definition for “new media” [2]. Both the QBPC and the Xi'an Film & Television Centre play significant roles in shaping IP policy in China. Kariyawasam's influence in shaping their thinking on the Third Revision has led to both organisations' increased awareness of the need for expanding fair use provisions in China's copyright law as evidenced by testimonials [2, 5].

Influence on the Third Revision of China’s Copyright Law

As co-investigator in the project, the Director of the Intellectual Property Research Institute at Xi’an Jiaotong University was invited by the Shaanxi Provincial People’s Congress (the federal legislative body in the province) to submit the results of the research. The Shaanxi Congress wrote very approvingly of the research submitted and sent the report directly to the Chinese National People's Congress, for approval at national level [6].

In a project report in April 2018, Kariyawasam's AHRC Newton research on fair use of copyright in the digital domain was presented to and considered by China's National People's Congress Legislative Affairs Working Committee, the highest legislative arm of the Chinese Government. Kariyawasam and co-investigators have asked for amendments to the section on fair use exceptions (draft Articles 44-50). The proposals were welcomed by the Working Committee and at the time of submission in April 2018 were to be considered by the Legislative Affairs Committee of the National People’s Congress. If the suggested amendments are approved (the final Copyright Act is not expected to be published by the State Council until June 2021), they will result in changes to national law, directly impacting circa 840 million internet users in China, as well as circa $2.3 billion of e-commerce trade. Even if the recommendations do not influence the Act, the State Council may still incorporate them in secondary regulations following once the Act is published, as is customary in Chinese law-making.

Proposal of a new definition of internet major suppliers for the WTO

Building on AHRC digital economy research in China and for the World Economic Forum E-15 Digital Economy Expert Group, Kariyawasam produced two ‘think-pieces’, which set out required reforms by the WTO to the regulation of digital services ( Outputs B and C). The recommendations proposed a new definition of a dominant telecommunications provider (a major supplier).

The findings were presented at three World Economic Forum E-15 conferences on the Digital Economy in New York (2015, 2016) and Geneva (2017). Evidence shows that these changed the thinking of decision-makers at the WTO Secretariat (such as Director of the WTO IP and Competition Divisions) about how dominant operators on the internet should be regulated [7, 8]. The Director of Intellectual Property and Competition Divisions at the WTO said: "...I have made use of Professor Kariyawasam’s research and his reports for the WEF/ICTSD to inform my own research on digital divide issues, in particular in a current program on 'trade in knowledge' which is retooling and rebasing our approach to trade policy questions for the benefit of developing countries in the light of the changing landscape for trade resulting from the dissemination of digital technology.... This is why we invited him to contribute a chapter to a forthcoming volume, to be published by Cambridge University Press in [2021], entitled Competition policy and intellectual property in today's global economy. We invited him to provide a paper as we felt it essential to have an authoritative account of the significance of a balanced approach to intellectual property law and competition policy to address the digital divide..”[ 7]. The then Managing Director of the Geneva-based International Centre for Trade and Sustainable Development said: “Kariyawasam's research proposed a fundamental step change in how large internet operators who have monopoly power should be regulated and the advantages to developing countries of embracing the digital economy. As an NGO, we felt that Kariyawasam's ideas for regulatory change could have significant impact on policy on the regulation of dominant internet undertakings and should be widely disseminated.” [8]