China IPR

NPC Passes Revised Copyright Law — Concluding a Robust IP Legislative Agenda For the Past Two Years

According to press reports, an amended Copyright Law was passed on Singles Day, November 11, 2020.  The prior NPC drafts was discussed here, and the State Council draft was discussed  here.  An earlier NCA draft from 2012 (!) was discussed here.

With the passage of the Copyright Law, China has completed the unenviable and huge task of revising all its major IP laws in the space of approximately two years, including its: Patent Law, Anti-Unfair Competition Law (which includes trade secrets), Trademark Law, Technology Import/Export Regulations, as well as numerous judicial interpretations, rules and other guidance and the Civil Code itself. 

Prof. Jiarui Liu translated the prior draft of the copyright law.  Based on a cursory review, the law removes onerous public interest provisions, which I objected to here  It maintains the use of audio-visual works to encompass motion pictures, which I hope will be useful in protecting against piracy of live streaming sports broadcasts.  It also continues the expansion of administrative copyright authority to the county level.  This is also consistent with other trends towards increasing administrative involvement in China’s IP enforcement regime.  I most recently discussed this long-term trend in my blog on the Horse Before the Cart in China’s Patent Linkage Regime (Oct. 28, 2020).

Although the Copyright Law appears to have backed off from giving copyright authorities a vague antimonopoly law-like authority to address “disruption to the order of communication” and “abuse of rights” that causes “harm to public interests”, there are other administrative rules regarding online service providers that have since emerged to address regulation in the on-line environment.  One day prior to the Copyright Law passage, SAMR released its Notice of Public Comment on the draft Antitrust Guidelines for Platform Economy (关于平台经济领域的反垄断指南) (Nov. 10, 2020). Comments are due November 30, 2020.   The stocks of Alibaba and JD.Com both dropped despite record singles day receipts on November 11, most likely due to the proposed rule. 

In another unrelated development, SAMR promulgated on October 20 a draft for public comment of its Measures for the Supervision and Administration of Online Transactions (网络交易监督管理办法). Comments were due November 2. This document primarily concerns protection of consumer interests in online transactions.  However, it does address some IP issues, including misleading indications of the source of goods, as well as establishing time frames for publication of information regarding IP notices or counter-notices  as provided in the e-commerce law (Art. 30).

The revised IP laws provide fertile ground for analysis and research regarding general trends in China’s IP regime in such areas as administrative and civil law, civil remedies and compensation, and employee ownership of the IP they have created. The new e-commerce provisions and the IP laws together, once finalized, will likely provide additional insights into Chinese regulation of e-commerce platforms and merchants.

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