Chinese Copyright Law Amendment 2020
On November 11, 2020, the 23rd Meeting of the Standing Committee of the 13th National People’s Congress deliberated and voted to pass the “Decision on Amending the Copyright Law of the People’s Republic of China,” which marked the completion of the third revision of Copyright Law. The newly passed “Copyright Law” (hereinafter referred to as Copyright Law 2020) consists of 6 chapters and 67 articles, which will be implemented on June 1, 2021. Here are the main changes in Copyright Law 2020 compared to Copyright Law 2010.
The amendment extended scope of subject matters with a set of provisions. Article 3 provides a definition for “works” which is primarily based on Article 2 of the Regulation for the Implementation of the Copyright Law of the People’s Republic of China (2013 Revision), clarifying that “works means intellectual creations with originality in the literary, artistic or scientific domain, insofar as they can be presented in a certain form.” In order to implement Beijing Treaty on Audiovisual Performances, Article 3(6) replaced the expression of “cinematographic works and works created by a process analogous to cinematography” as an inclusive term “audiovisual works” which will cover new works such as movies, TV, online videos, sports events, and online games. Moreover, Article 3(9) replaced the restrictive requirement for works with “other intellectual creations that satisfy the characteristics of work,” which provides the availability of protection for new types of works, and also leaves room for courts to apply and interpret the law. Article 5(2) changed “current news” to “mere facts and happenings,” which further narrows the scope of “news” and restricts the subject matters that are not protected by copyright law as “mere facts and happenings.”
The amendment provided rightsholders of works and other subject matters a broader scope of control over more acts of reproduction and communication. Reproduction carried out by digitalization is covered by the right of reproduction, and rightsholders are entitled to the right of rental on the original or copies of audiovisual works and computer software, except where the software itself is not the essential object of the rental. The definition of right of broadcasting is amended as “the right to communicate or retransmit a work to the public by wired or wireless means, and to publicly communicate the broadcast of a work by loudspeaker or any other analogous instrument transmitting signs, sounds or images, but not include right of communication through information network,” which will bring online live broadcasting activities under the scope of right of broadcasting. It is worth noting that, for a long time, neither the right of broadcasting nor the right to communication through information network has been able to control acts of online streaming/live broadcasting. What is more, Article 10(12) revised the definition of right to communication through information network as “the right to make a work available to the public by wire or by wireless means, so that people may have access to the work at their chosen time and place.” The deletion of the word “work” in this definition means that the right to communication through information network covers acts of not only providing works, but also providing links and other services. As for owners of copyright-related rights, right of rental was provided for performers in Article 40, and the provision of “service performances” (performance made in the course of employment) was added, which clarified the rights of service performances. In order to better protect the rights of sound recording producers, Article 45 stipulated that “anyone who publicly transmits a sound recording by wired or wireless means, or publicly communicates to the public a sound recording by audio communication technology or instrument shall pay remuneration to the producer of the sound recording.” Right of communication through information network was provided to broadcasting organizations in Article 47. Broadcasting organization has the right to prohibit acts of communicating its radio or television which it has transmitted to the public through information network without its permission.
Several revisions on ownership of different types of works were adopted. Article 12 combined rules of presumed authorship and the copyright registration system, the prior is often applied as a rule of evidence in practice, while the latter could also be used as preliminary evidence of ownership of copyright in practice. Article 14 adopted a new provision for co-authorship works that copyright of work of joint authorship shall be exercised under a unanimous agreement through negotiation; where an agreement thereupon cannot be reached through negotiation, any party may not, without proper justifications, prevent another party from exercising the copyright, except the rights to transfer, grant an exclusive license, and pledge; however, the gains thus obtained shall be distributed reasonably among all the co-authors. Article 16 added a provision for derivative works and compilation works. Those who use a work created by adaptation, translation, annotation, arrangement, or compilation of a preexisting work for publication, performance and making of sound or video recordings, shall obtain permission from the owner of the copyright in such works and the owner of the copyright in the preexisting work, and pay them remuneration. Article 17 improved the rules on the attribution of audiovisual works, the special rules on the attribution of audiovisual works under current law are maintained for cinematographic works and TV dramas, and the copyright belongs to the producer. For audiovisual works other than cinematographic works and TV dramas, the agreement of the parties will take precedence, and in the absence of agreement or the agreement is ambiguous, the copyright shall be enjoyed by producer. In addition, a new case of special service work for work created in the course of employment by employees of newspapers, periodicals, presses, radio and television stations was added to Article 18.
The amendment updated limitations on rights with introduction of three-step tests and semi-open-ended legislative mode, and implementation of Marrakesh Treaty. Article 22, paragraph 1, clarified that the elements of fair use are: (a. specify the author’s name or title and the title of the work; (b. such use does not affect the normal exploitation of the work; (c. does not unreasonably prejudice the legitimate interests of the copyright owner: A new provision that “other circumstances stipulated by laws and administrative regulations” was added, which reflected that the legislators adopted a semi-open-ended legislative mode, to solve the problems caused by a completely close-ended enumeration legislative mode. Article 22 also reflected more humanistic care for print-handicapped people, and expanded the fair use to making available of a published work to print disabled persons in a barrier-free format accessible to them.
The newly amended law provided provision about calculation for damage, punitive damage and statutory damage. The infringer shall pay compensation based on actual losses thus caused suffered by the right owner, or the amount of the unlawful gains of the infringer; if it is difficult to determine both, the compensation may be reasonably determined in reference to the license fee for the right. In order to implement the punitive damage of Article 1185 of Civil Code, Article 54 sets tougher punishment for copyright infringement. Punitive damages can be granted in a range of 1 to 5 times of the calculated damages where an infringer intentionally infringes copyright or rights related to copyright and falls under serious circumstances. Meanwhile, minimum and maximum statutory compensation are specified. Statutory damages range from 500 to 5,000,000 yuan will be applied where the actual losses of the right holder, the unlawful gains of the infringer, or the license fee for the right cannot be determined. Other than punitive damage or statutory damage, court may order at the request of the right holders, the destruction of infringing copies, materials, tools, equipment, etc., without compensation; or under special circumstances, order prohibiting the aforementioned materials, tools, equipment, etc. from entering commercial channels, and without compensation. What is more, the amendment introduced a set of rules for Technological Measures and Rights Management Information in Article 49, 50 and 51. Article 49 provided a definition of Technological Measures as “effective technologies, devices, or components used to prevent or restrict browsing or appreciation of works, performances, sound and video recording, or providing works, performances, sound and video recording to the public through information networks.”
Xiao Baiyang, born in September 1995, is a Chinese PhD student in Faculty of Law and Political Science, University of Szeged. He graduated from Southwest University of Political Science and Law in 2020 with a Bachelor’s degree in Law and a Master’s degree in Intellectual Property Law. From 2017-2020, he participated in several academic projects related to the field of Artificial Intelligence (2017), Connected Vehicles (2018-2019), and Geographic Indications (2019-2020). His main research area is Liability of Online Intermediaries.