On November 11, 2020, the Standing Committee of the National People's Congress of the PRC passed amendments to China's Copyright Law. The amended Chinese Copyright Law comes into effect on June 1, 2021. The key points include an increase in statutory damages and an increase in fines for copyright infringement. China's Copyright Law has been amended to improve copyright protection, align with international standards, and implement the Audiovisual Services Treaty that came into force this year. The current Chinese Copyright law has largely existed since 1991 and was changed in small parts in 2001 and 2010. The 2020 revision of the Chinese Copyright Law is essentially the first major change to Chinese Copyright Law in nearly 20 years. With the latest changes, Chinese Copyright Law now consists of six chapters and a total of 67 articles.
The main changes to the PRC Copyright Law include the following:
In accordance with Chapter IV, Part I “General Provisions” of the Civil Code of the People's Republic of China, which was adopted at the 3rd session of the 13th National People's Congress on May 28, 2020, the newly revised Copyright Law also uses the term “unincorporated organizations" adopted to replace the term "other organizations".
The term “citizen” is changed to “natural person” in accordance with Article 3 of the provisions on the principle of national treatment of the Bern Convention for the Protection of Literary and Artistic Works. This shows efforts to bring Chinese copyright law into line with international standards.
II. According to Article 5, the subject matter of copyright was expanded to include:
(a) literary works;
(b) oral works;
(c) musical works;
(d) dramaturgical works;
(e) dance works;
(f) acrobatic works of art;
(g) works of art;
(h) applied arts;
(i) architectural works;
(j) photographic works;
(k) audiovisual works;
(l) charts and graphs;
(m) three-dimensional works;
(n) computer programs; and
(o) other literary, artistic or scientific works.
III. Changes in terms
For example, Computer software was renamed to “Computer Program” to add protection to literary works over computer files; In Article 3, "cinematographic works and works created using a process analogous to cinematography" have been renamed to "audiovisual works", which is a broader and more comprehensive term. It appears that audiovisual content such as sports programs and music videos may be protected as copyrighted works more than before.
IV. Refined rules for administrative organizations, Article 8
Specifically, the amended Copyright Law provides that these organizations collect royalties from users on the basis of authorization and that the royalties are negotiated and determined by the copyright management organization and the respective user representative. If such negotiation fails, it is possible for both parties to apply to the copyright administration for ruling which can be further appealed to the courts. It is also possible for the parties to bring such a case directly to court. Collective management organizations are also required to regularly publish general information such as information on license fees, management fees, the non-distributed portion of license fees, etc. This allows for a degree of control over their activities.
V. Copyright in cooperative works
For works created by two or more authors, the copyrights are shared by the co-authors and exercised by mutual consent.
If consensus cannot be reached through consultation and there is no valid reason, neither party may prevent the other party from exercising any rights other than the transfer or licensing of the exclusive use or pledge of others. The proceeds will be appropriately distributed to all authors. Those who do not participate in creation cannot become co-authors.
VI. Non-profit Restriction
The legislative purpose of copyright law is to promote the creation and dissemination of knowledge by granting protection to works. The restrictions on copyright protection in China at present mainly relate to fair use and legal licensing, Article 24.
Article 24 I is now being changed by specifying the constitutive element of fair use: (1) specific names / titles of the author and the work; (2) without prejudice to the normal use of the work; and (3) no undue harm done to the legitimate rights and interests of the copyright owner. The free performance is subject to an additional restriction of "not for profit purposes". The free performance is offered by not charging the public any compensation for the performers. The purpose is to prevent a profitable activity from being disguised as a free service (e.g. by charging advertising fees), which corresponds to the legal purpose of the provisions on fair use.
VII. Photographic works, Article 23
For works of natural person: protection duration is life plus 50 years.
For audiovisual works or works of juristically person and organization: protection duration of its right of publication is 50 years after completion of its creation; protection duration of its rights of reproduction, publishing and rental is 50 years after first publication, such rights will not be protected by this law, if the audiovisual works or the works of juristically person and organization have not been publicated 50 years after completion of creation.
VIII. Copyright in audiovisual works, Articles 15 and 17
The old Article 15 is renamed to Article 17 and amended as follows: "The copyright in a film or television drama among audiovisual works rests with the producer, while other contributors such as screenwriter, director, photographer, copywriter and composer have the right of authorship and the right to remuneration according to the contract concluded with the manufacturer.
The copyright in audiovisual works other than those prescribed in the previous paragraph is agreed between the parties concerned. If there is no agreement or the agreement is inexplicable, the copyright in the work belongs to the producer, but the authors have the right to authorship and the right to remuneration.
The author of a play, music or other audiovisual work that can be used separately has the right to exercise its copyright separately.
Definition of works: “Works” in copyright law refer to the intellectual achievements that are original and can be expressed in a certain form in the fields of literature, art, science, etc. Other intellectual achievements that correspond to the characteristics of works are also protected by copyright.
Definition of "audiovisual works": So-called "cinematographic works, television works and other audiovisual works" and "films and works that were created using similar methods of film production".
IX. Broadcasting and online streaming, webcasts, Articles 10 in conjunction with 45 and 47
Article 10, Article 45 and Article 47 extend the scope of broadcasting law to include wired and wireless means which are now wide enough to cover live sports streaming, specifically excluding interactive communication (which is covered by the right to communicate over an information network) out. This newly defined right applies to online sports streaming as well as to other copyrighted programs. It also adds the right to communicate over an information network for broadcasters that covers on-demand and other interactive communications and achieves a new level of protection not required by any international treaty. In view of the more frequent infringement of audiobooks in recent years, the Copyright Law 2020 made the above change in response to practical needs to better protect the interests of audio recording manufacturers.
The redefinition of "broadcasting law" always refers to the right to broadcast. For example, to publicly distribute or forward a work wired or wirelessly and to distribute a radio work to the public via loudspeakers or the like by means of the transmission of symbols, sounds, and images.
The reporting and broadcasting of the works of others by a network provider without permission is subject to liability for infringement of the rights holder's broadcasting rights.
X. Actor performance, Article 40
The law now speaks of the actors performing tasks of their performing units. What is meant is the performance of the actors in fulfilling the agreed performance tasks. The actors have the right to show their identity and protect the performance image from being distorted, other rights will be agreed between actors and their performing units. If the parties have not made an agreement or the agreement is not clear, the performing units have the rights.
XI. Technical measures to protect copyright
The rights holder can take technical measures to protect copyright and related rights. The term "technical measures" used in the law refers to technologies, devices or components that are used to protect works, performances, audio and video recordings and to prevent or limit their provision without the permission of the rights holder.
XII. Changed damage compensation regulations
Article 54 of the newly amended law provides for fivefold compensation for intentional violations if the violation is serious. In the event of intentional infringement of copyright or copyright related rights and in serious circumstances, the compensation can therefore amount to up to five times the determined damage.
Furthermore, statutory minimum and maximum damages were specified. In the event that the actual loss of the rights holder, the infringer's illegal income, and license fees are difficult to calculate, the People's Court will now grant compensation of a minimum of 500 yuan and a maximum of 5 million yuan based on the circumstances of the violation.
In addition, Copyright Office is also empowered to confiscate illegal income, destroy infringing products and equipment that was used to manufacture the products (Article 53 and Article 55. In addition, the Copyright Office can issue a warning. If the illegal income is more than 50,000 yuan, a fine from one to five times the illegal business amount can be imposed at the same time. If there is no illegal business income, or the illegal business income is difficult to calculate or is less than 50,000 yuan, a fine of less than 250,000 yuan can be imposed.
XIII. Burden of proof
Similar to the newly amended Patent Law, the burden of proof for damage can shift. If the infringer's books and materials are in the hands of the infringer, the court may order the infringer to provide the books and materials associated with the infringement. If the infringer does not provide any books or materials, or provides false books, the People's Court may determine the amount of compensation based on the rights holder's claims and the evidence presented.
XIV. Conclusion
The draft introduces changes that aim to reflect and strengthen the principle of autonomy vis-à-vis the copyright holder. For example, under Article 16, permission must be obtained from the copyright holder of the derivative work and the copyright holder of the original work, and under Article 17 and 19, the copyright holders enjoy the exclusive right to use audiovisual works. This is in stark contrast to the existing law that foresees the manufacturer's works, while in the draft it now allows the parties to enter into an agreement on recognition of ownership.
However, the granting of significant discretionary powers to the Copyright Administration Department is a matter of concern as there is a potential for abuse of those powers.
In contrast, the standards for compensation in the event of violations have been specifically improved.
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