Further Observations on the Recent Copyright Law Amendments

Prof. Jiarui Liu at the University of San Francisco, has offered the following observations on the recently passed copyright law reforms, which he has authorized me to share with readers:

“- This 2020 Amendment to Chinese Copyright Law, while officially called the third amendment, is essentially the first comprehensive amendment to Chinese Copyright Law since 2001, for almost 20 years. The so-called second amendment in 2010 was motivated primarily to make one change only, i.e. to implement a WTO decision that required China to remove any censorship approval as a prerequisite for copyright protection. 

– The 2020 Amendment for the most part brings cosmetic changes to the extent that it incorporates existing provisions in various regulations in copyright areas, including the Regulations for the Implementation of the Copyright Law (2002) and the Regulations on Protection of the Right of Communication through Information Network (2006). These “new” provisions, e.g. on originality, technological protection measures and copyright management information, transferred from regulations to law will not affect legal practice. However, there are a few substantive changes that are noteworthy.

– Article 3 of the 2020 Amendment makes copyright subject matters open-ended by including a catch-all phrase: “other intellectual creations that satisfy the characteristics of works”. Accordingly, courts and administrative authorities have discretion to recognize new subject matters in individual cases outside of the legislative process.

– Article 3 replaces the term “cinematographic works” with a potentially more inclusive term “audiovisual works.” It appears that audiovisual content such as sports programs and music videos may be more likely to be protected as copyrighted works than they were before.

– Article 10 expands the scope of the right of broadcasting to cover both wired and wireless means, and explicitly excludes interactive communication (which is covered by the right of communication through information network). This redefined right apparently covers online streaming of sports and other copyrighted programs.

– Article 23 extends the duration of a photographic work from 50 years as of publication to life plus 50 years.

– Article 45 adds the right of broadcasting and the right of mechanical performance for sound recordings. However, these two rights are limited to the right of remuneration (or, in other words, subject to compulsory licenses) and do not enjoy exclusivity. This new level of protection for sound recordings is not required by any international treaty, and higher that that provided under the U.S. Copyright Act.

– Article 47 clarifies that the right of retransmission for broadcasting organizations comprises of both wired and wireless means, which is now broad enough to cover live sports streaming. It also adds the right of communication through information network for broadcasting organizations, which covers on-demand and other interactive communications and reaches a new level of protection not required by any international treaty.

– The one provision in the 2020 Amendment that may really excite copyright owner is Article 54. It not only provides for a higher ceiling for statutory damages (up to RMB 5 million) but also sets a floor for statutory damages (no less than RMB 500). Additionally, it adds one to five times of ordinary damages as punitive damages imposed on serious willful infringements. However, it appears from the structure of the provisions that statutory damages may not be used as the base for calculating punitive damages. Notably, a floor for statutory damages has first appeared in the Patent Law amended in 2020 (i.e. RMB 30,000).  The Trademark Law and Anti-Unfair Competition Law do not provide for such a floor yet.

– The new Copyright Law as amended will take effect on June 1, 2021, which presumably allows time for the government to update copyright regulations areas accordingly.”

The NPC Observer has also published its own observations on changes in the law as has Aaron Wininger in China IP Law Update.  A Chinese judge, Bai Fan, 白帆 from the Guizhou High People’s Court, in a Chinese language article released by zhichanli.com, pointed to  the following improvements made by the Copyright Law: (a) adjusting to the challenges of technological progress, including by adding the concept of “audio-visual works” ; (b) dealing with practical implementation issues, such as the possibility of an expanded scope of works and fair use concepts;  (c) clarification of the continuity and status of legal concepts, as similarly identified by Prof. Liu, by placing concepts previously found in regulations into the law; (d) implementing international obligations such as the presumption of legal ownership of copyright as provided in the Phase 1 Trade Agreement (note: this is found in Art. 1.29), access to copyrighted works by the blind in the Marrakesh Agreement (Art. 24), and rental rights for performers in the Beijing Convention (Art. 52); (e) clarifying ownership of rights – a topic that is also shared with the patent law, in this case for joint works, news reporting, droit de suite for fine art and fine art and photographic works, and “service performance rights” for rights of performers; and (f) strengthening IP enforcement, including the broadcast of phonographic works, lengthening the copyright term of photographs, increasing damages for copyright infringement, “action preservation” or provisional measures, collective management, and protecting the broadcast of televised works over information networks.   

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