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After nearly ten years of efforts, the third revision of Copyright Law of China finally moved to its final stage. On April 26, 2020, the Standing Committee of National People’s Congress of China reviewed a draft amendment to the law. On April 30, the National People’s Congress released the draft for public comment.
After nearly ten years of efforts, the third revision of Copyright Law of China finally moved to its final stage. On April 26, 2020, the Standing Committee of National People’s Congress of China reviewed a draft amendment to the law. On April 30, the National People’s Congress released the draft for public comment. The Copyright Law of China was first enacted in 1990, and was revised twice in 2001 and 2010, respectively.
The draft amendment contains some changes made to keep up with the development and application of new technologies. For example, “cinematographic works and works created by a process analogous to cinematography” is renamed “audiovisual works” to incorporate new forms of works that are not “filmed on certain media”, such as video game images and sports event images. The definition of “the right of broadcasting” is changed to cover simulcasting of works online. Moreover, three new articles are introduced to prohibit deletion/alteration of rights management information, and circumvention of technological measures adopted by copyright owners to prevent others from accessing and copying their works.
Revisions have been made to increase the costs of copyright infringements. First, the statutory damages is raised by ten times, from CNY 0.5 million to 5 million. Second, punitive damages become available. For severe cases of willful infringement, the court can award damages in an amount that is up to 5 times of the actual loss of right owner or illegal gain of the infringer. Third, to help determine the illegal gain of the infringer, the draft amendment allows the courts to order the defendant to surrender account books and documents related to the infringement under the condition that the plaintiff has made his/her/its best effort to collect the relevant evidence. If the defendant refuses to comply, or produces falsified materials, the court can decide on the amount of damages purely based on the plaintiff’s claim and evidence.
Changes are also made to comply with international treaties entered by the country. For example, the term of protection for photographic work is prolonged from fifty years after first publication to fifty years after the death of the author. Performers are granted the right to permit others to lease the sound or video recordings of his/her performance, and to receive remuneration.
Furthermore, in the draft amendment, the authority responsible for administration of copyright matters nation-wide is changed from “the copyright administration department under the State Council” to “state copyright administration department”. This change is a result of the reform of the Communist Party and state institutions of China in 2018. After the reform, National Copyright Administration of China (NCAC) is no longer under the control of the State Council, but becomes a department of the Central Committee of the Communist Party of China. One may wonder how the administrative enforcement work of NCAC may be affected after being put under the direct control of a political party.
Some of the revisions have received much criticism. The draft amendment redefines the rights of radio and TV stations. The object of protection is changed from “radio and television” to “signals carrying the programs”, and the stations are granted the right to license others to disseminate the “signals” on information network. Copyrights protect expression of idea, whilst “signal”, as a medium helping propagate audiovisual works, is not. Thus, it makes no sense to make “signals carrying the programs” the object of protection. Moreover, when a radio or TV station is not the creator or producer of a program, they do not own the right of information network dissemination over the program. Therefore, licensing others to disseminate the “signals” on information network will result in an infringement of the right of the creator or producer.
Another focus of criticism is “abuse of copyrights”, a new concept brought in by the draft amendment. Article 4 of the law is revised to prohibit abusive use of copyrights to hinder “normal dissemination of works”. At the same time, a new article — Article 50 is added to empower copyright administration authorities to penalize parties who use copyrights or copyright-related rights abusively and cause “disturbance of dissemination order”. Penalties include confiscation of illegal gains and administrative fines. Many have questioned the necessity of introducing the concept of “abuse of copyrights”, arguing that copyright owners profit from dissemination of their works, so that they are not willing to “disturb dissemination order”. Certainly, there may exist conduct to eliminate or restrict market competition by abusing copyrights. However, such conduct is governed by Anti-monopoly Law of China. Also, there are concerns that, in an environment that copyright infringements have become more and more rampant, the focus should be placed on strengthening copyright enforcement, rather than limiting it. Since the concept of “abuse of copyrights” is too broad and vague, and the law does not explain what kind of conduct shall be deemed “disturbing dissemination order”, the new stipulations will cause fears among right owners while enforcing their copyrights. Finally, some worry that the new provisions will result in abuse of power. The draft amendment allows over 3,000 copyright administration offices throughout the country to enforce Article 50 based on their own interpretation of a vague term – “disturbing dissemination order”, which will create a hotbed for corruption.