The Noteworthy Points in Copyright Law of the People’s Republic of China (Amended in 2020)

Voice: Lucy GE

Project Administrator
 

The newly amended Copyright Law of the People’s Republic of China will enter into force as of June 1, 2021.There are many changes in the amended law. For example, in order to protect copyright and neighboring rights, the right holder may take technical measures to prevent and restrict the acts, without the permission of right holders, browsing and appreciating works, performances or audio-visual recordings, or providing works, performances, and audio-visual recordings to the public via information networks. And “news on current affairs” is amended to “news on pure facts”, which strongly supports the right exploitation of news work. Besides, the amended law adds “disseminating to the public via information network” to the article regarding the dissemination way of copyright to highlight the protection on the cyberspace copyright.

As far as we are concerned, among the amended Copyright Law, attentions should be paid to the followings:

Clarifying the principle of punitive damages and improving upper limit of damages

As stipulated in the amended Copyright Law, if the circumstances of intentional infringement of copyright or copyright-related rights are serious, punitive damages may be awarded from one time to five times the claimed damages by the right holder, which  is the actual loss, illegal gains or licensing fee.

And where it is difficult to calculate the actual loss of the right holder, the illegal gains of the infringer, or the licensing fee, the court may, on the basis of the circumstances of the infringing act, award the damages of less than RMB 5 million.

After this amendment, the Copyright Law will be in conformity with the Patent Law, the Trademark Law and the Anti-Unfair Competition Law in terms of punitive damages and statutory damages, which further strengthens the protection of intellectual property.

The transfer of burden of proof

The amended Copyright Law stipulates that if the evidence are mainly under the control of infringer, i.e. account books and materials, the burden of proof should be transferred to infringer after the right holder has fulfilled necessary burden of proof, which, to some extent, will solve the difficulty in producing evidence faced by right holders. In addition, when investigating the evidence on the damages, if the infringer fails to provide, or provides false account books and materials, etc., the court may determine the amount of damages by referring to the claims of the right holder and the evidence provided.

These amendments keep pace with patent law and trademark law. In practice, in order to satisfy the conditions of transferring the burden of proof, the right holder should produce as much evidence as possible for the calculation of damages.

ntroducing the concept of “Audiovisual Works”

The amended Copyright Law amends the expression of “Cinematographic works and works created by virtue of the analogous method of film production” to “audiovisual works”.  In the literal sense, more new forms of works and intellectual achievements will fall into the protection scope of Copyright Law, such as instant videos, game live, lighting show, fireworks show and music fountain.  

Clarifying using rules and copyright ownership of a joint work

The amended Copyright Law provides that the copyright of a joint work shall be enjoyed jointly by the co-authors on the basis of consensus; if consensus cannot be reached and there is no justifiable reason, neither party shall prevent the other party from exploiting its rights other than the assignment, the licensing of exclusive use to other, and the pledge, but the incomes shall be reasonably distributed to all the co-authors.

This amendment aims to solve the issues of copyright shelving when consensus on right exploitation cannot be reached between co-authors, which is beneficial to maximizing the value of a work.

The limitation on the free performance of a published work

The amended Copyright Law stipulates that under the following circumstances, a work may be exploited without permission from, and without payment of remuneration to, the copyright owner, but the name or title of the author and the title of the work shall be mentioned, the normal use of the work shall not be affected, and the legal rights and interests of the copyright owner shall not be unreasonably harmed:…(9) performing a published work free-of-charge, where said performance neither collects any fees from the public nor pays remuneration to the performers, and is not for profit;……”, in which “not for profit” is newly added as limitation. According to the amended law, advertising revenues gained from “free performance” should also be regarded as the form “for profit” and needs to obtain permission and pay for remuneration. Therefore, the act of “free performance” may be under limitation in the future.

The above are the noteworthy points of the amended Copyright Law. Hope it can be useful to you.