Some China IP Resources While Sheltering in Place

An unofficial translation of the proposed Copyright Law amendments that have been made available for public comment, is available here.  Thanks to Prof. Jiarui Liu for sharing his translation! All translations are unofficial and are being provided for the convenience of non-Chinese readers, with no representations and warranties whatsoever.

The next event in our series of webinars is with Mara Hvistendahl, author of The Scientist and the Spy: A True Story of China, the FBI, and Industrial Espionage. Although Ms. Hvistendahl has already appeared in several interviews,  this one promises to offer different perspectives on the book.  She will be joined in this webinar by Mark Betten, an FBI agent who is chronicled in the book, Jennifer Johnson, DuPont’s attorney who was also involved in the investigation, as well as Jim Pooley, who teaches trade secrets at Berkeley Law and me.   The webinar will be held on May 13, 2020, at 10:30 AM (PST).   The registration page is here.

A video recording of our successful May 6  webinar, with Amb. Craig Allen, Wendy Cutler and Warren H. Maruyama on The Phase 1 Agreement and its Implementation is also now available here.

All of the above are being provided free of charge.

Draft Copyright Law Up for Public Comment

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:

  1. 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.
  2. Prof. Liu agrees on the importance of the improvements to the civil system, including increased damages and rights to demand production of evidence.
  3. 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).
  4. 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.”

Update of July 20, 2020: Here are the comments of Prof. Andy Sun.

Update of August 15, 2020: Here is a blog post of Matthew Alderson from Harris Bricken on the originality issues involving the protection of sports broadcasts under the proposed revisions to the copyright law. 

Update of August 15, 20202: Here is a translation of the proposed Copyright Law amendments by Prof. Jiarui Liu.

Please also send us any translation or comments you have prepared to post on this blog.

Beijing IP Court Rules on Copyright Protection for Sports Broadcasts

jordan

According to a recent posting on the Weixin account of IPHouse (结案信息 ┃ 北京知识产权法院审结涉及体育赛事节目的两起著作权侵权纠纷案, March 30, 2018), the Beijing IP Court has now decided the second instance appeals of two cases involving online piracy of sports broadcasts, an issue that is important to the development of China’s professional sports, as well as Olympic broadcasters and foreign leagues with large Chinese audiences, such as the National Basketball Association.

Most Chinese academics have been in agreement that live broadcasts (including webcasts) of professional sports broadcasts need to have some form of IP-related protection, whether under the Anti-unfair Competition Law, as a subject of the Copyright Law, or as a form of “neighboring rights” under China’s Europe-inspired copyright system.   During the 2008 Beijing Olympics, the broadcasts of the Olympic games also enjoyed a form of sui generis protection against piracy – an issue that I had been involved with along with rightsholders at that time.  The controversies surrounding the consequences of each form of possible protection were detailed in an article in 2010 by Prof. Seagull Song,  as well as a more article by Wei Liu and  Jiarui Liu (“Copyright Protection of Sports Programs in China,” 63 Journal of the Copyright Society of the USA (2017)).  It has also been the subject of meetings and conferences hosted by the United States and others, experts dialogues and numerous blogs posted here, including a blog on the lower court case posted on here.

Copyright protection would afford address interactive streaming over the internet, while neighboring rights protection affords rights to broadcasters.  Many believed that unfair competition was too vague and could create difficulties in licensing internationally.  These issues were raised in the context of the long-overdue, proposed amendments to China’s Copyright Law.  For these reasons, the 2013 US-China Experts Dialogue, in particular, made the following recommendation:

“4.3 Live Sports Programming and Non-interactive Streaming

The experts unanimously agreed that when the production of live sports programming involves creativity and originality, it shall be protected under current China Copyright Law.  The experts supported the provisions of the latest available amendment of the Copyright Law which provides a bifurcated approach – the adoption of “broadcast rights” to give protection to non-interactive streaming media and the right of communication through information networks to protect interactive streaming media. This approach should provide greater flexibility and depth to the protection of the copyright.”

Delays in resolving these two cases were understandable in light of the uncertainty around the proposed amendments to the copyright law, the significance of these issues to numerous rightsholders and sporting events, the increasing importance of licensing revenue in the China market using international copyright standards,  the impact on Chinese rightsholders that may be pursuing cases overseas where copyright protection is more secure, and the role of copyright protection in providing a foundation for a diversity of revenue streams in order to provide greater stability to the beneficiaries of the system (see the “Jordan” store that has recently opened up in Beijing, above).

In the Sina case, which was the subject of my previous blog, the lower court had determined after some exhaustive analysis that the live broadcast of a sporting event constituted a cinematographic “work” under China’s copyright law.  The Beijing High Court reversed noting that cinematographic works have to be fixed/stable and creative.  In the case in suit, the production had not been stable and fixed in a material form and therefore did not constitute a cinematographic work.  Moreover, as Sina did not pursue the anti-unfair competition claim on appeal, the Court had no basis to adjudicate that claim to provide an alternative avenue of relief for it.

In the companion case involving CCTV and its recorded broadcasts of the Brazilian World Cup (2014), CCTV had advocated that the broadcast constituted either a cinematographic work or an audiovisual recording (entitled to neighboring rights protection).  The lower court had determined that it was entitled to be considered an AV recording and had awarded 670,000 RMB in damages.  The Beijing IP Court confirmed that it was also entitled to protection as an AV recording which is protected over information networks in part because it was stable and fixed on a physical medium and, as with the prior case, it was not sufficiently creative to be a cinematographic work.  The court however increased the damage award to 4,000,000 RMB.

Based on this summary, the cases seem to leave open the question of whether AV recording protection afforded as a “neighboring right” to a broadcaster, also permits the broadcast to claim infringement for a live/interactive retransmission of the broadcast over the internet, which was not a fact at issue in this case.  Broadcasting organizations do enjoy neighboring rights protection under Article 44 of the Copyright Law.   However, this neighboring rights protection most directly addresses wired and wireless retransmission of the signal, rather than interactive communication over the Internet (See article by Seagull Song, and quote above).  Moreover, this was exactly the problem that was faced by the Beijing Copyright Administration in the 2008 Olympics when it enacted short-term, sui generis rules to address this problem.  I hope that the full case will explain this further.

Article 41 of the PRC Copyright Law grants the owner of video recordings the right to distribute the recordings over an information network.  The court could have resolved the issue of the stability/fixation of the broadcasts in both cases by acknowledging any momentary delay in broadcasting and consequent fixation in real time broadcasting as a “recording” (see video of editing at an NFL game, below).  Moreover, the level of creativity being required of a cinematographic work seems unduly high, particularly when compared to comparably lower levels of creativity required of photographic works, as well as the professional editing, narration and script line that goes into any professional broadcast, along with the copyright attributable to various elements of the broadcast, such as the narration, mid-game performances, etc.  Thus, these cases do not fully address protection for the less controversial creative aspects of professional sports broadcasts.  Due to the temporal value of a live sports broadcast, it is also important that rights are clearly defined in advance, a task for which local case law developments are ill-suited under China’s system, and that must apparently wait until legislative reform.  The Beijing IP Court did use the tool of enhancing damages to help address the need for greater deterrence, however it appears on the substance of copyrightability, its hands were tied by current legislation.

I welcome any further analyses, and postings of the Chinese and/or English texts of the case that may help further clarify these decisions and their impact.