The National People’s Congress released a draft of the Copyright Law for public comment. Comments are due by June 13, 2020. The NPC comments on the draft are found here. The NPC Observer’s concise summary of the legislative history is here. I had discussed the earlier draft, along with the NPC observer predictions regarding consideration in late 2019, here. The draft will likely be reviewed again near the end of this year and could pass in late 2020 or 2021.
There have already been some reactions to this draft. Aaron Wininger pointed out in a recent article the provisions regarding quintuple damages, increased statutory damages, shifting of the burden of proof, and improvement in digital rights management. He also briefly discusses some other changes, such as the change from “audiovisual works” to “cinematographic works.” On first glance, the draft does appear to have expanded provisions on technological protection measures and anti-circumvention of technological protection measures, although further study is necessary to determine their consistency with prior laws, regulations, China’s commitments under the WIPO Internet Treaties, etc. (See Art. 48).
“Quintuple damages” and burden-shifting appear to be the “new normal” in revisions to Chinese IP laws. These changes predate the current trade war and are part of a mounting effort to increase civil deterrence. It remains to be seen how they will be implemented in judicial interpretations and how observable they will be in judicial practice through the publishing of relevant cases.
Prof. Liu Chuntian, a friend and colleague from Renmin University, has written an insightful quick response article regarding the draft on weixin (Chinese language only). Prof. Liu participated in the drafting of the PRC’s first copyright law. His principle concerns with the draft include:
- The concept of “audiovisual works” replaces the expression “movies and works obtained by methods similar to filming.” This change in definition will provide protection for video games regardless of the technology that employed. It may also have implications for expanded protection of live webcasting of sporting events, which has been a continual problem under Chinese copyright law, which were often thought be in sufficiently creative to be protected as a cinematographic work. Prof. Liu suggested that China’s drafters consider borrowing from the practice of other countries, notably Brazil, which expanded copyright protection using the concept of “audiovisual works” regardless of the technology. This can mitigate the possibility of continuing the conflict in Chinese IP law (and the law of other jurisdictions) between “cinematographic works” and “audiovisual works” which have provided uncertain protections depending on the technology employed. At the same time, according to Prof. Liu, as the new law stipulates that the right owner in an AV work belongs to the producer, it will also be important to clarify the rights of authors and composers whose works are incorporated into AV works. He suggests that the new law should clearly stipulate that the rights in these works should be controlled by the copyright holder.
- Prof. Liu agrees on the importance of the improvements to the civil system, including increased damages and rights to demand production of evidence.
- Prof. Liu generally opposes the expansion of copyright administrative authorities to the county (xian) level, noting that it would lead to the creation of over 3,000 copyright offices in China – more than the rest of the world combined. He also takes issue, as do I, with the expansion of administrative enforcement power in the copyright law, and notes that as a private property right the civil system should be the principal vehicle for enforcement. This also appears to be a “new normal” in Chinese IP legislation, which has also been urged on in recent years by US demands for enforcement campaigns and increased punishment, including increased online enforcement for copyright in the Phase 1 Trade Agreement (Arts. 1.13, 1.14).
- Prof. Liu also notes that it is important that copyright is considered an aspect of civil law, and that it is guided by civil law principles, including tort and contract law, as well as the on-going drafting of the Civil Code. He notes that currently there is no IP chapter in the Civil Code and it is therefore even more important for the civil law and the copyright law to be integrated. Consistent with China’s civil law tradition and his desire to ensure that copyright is protected as a private civil right, Prof. Liu places the primacy of the creator of the work as the first subject of protection. He notes “[t]he rights of other people are all rights that come from, are obtained through legal acts, through contracts or authorization mechanisms, and regulate the rights of the acts passed on. This is the task of other laws.”
I hope to be able to post a translation of the draft soon. Once a translation is available, Berkeley Law hopes to convene a round table discussion on the amendments to exchange views and assist in providing informed comments. Please also post your comments or corrections to this posting and send us any translation you have prepared or comments you have submitted so that I may include them in a future blog.
Update of July 20, 2020: Here are the comments of Prof. Andy Sun.