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The Copyright Law of China was first enacted in 1990, and was revised twice in 2001 and 2010, respectively. The third revision of the law, which commenced on 13 July 2011, finally came into place after 10 years of efforts. The revised law was approved by the Standing Committee of National People’s Congress of China on 11 November 2020, and took effect on 1 June 2021. This article introduces some of the major changes this new amendment has made to the law.
The term “work” redefined
The term “work” has been redefined. Previously, “work” was not defined in the Copyright Law, but in the Implementing Regulations of the Copyright Law (2002) as “original intellectual creations in the literary, artistic and scientific domain, insofar as they are capable of being reproduced in a certain form”. The revised law provides in its Article 4 a definition of the term, and at the same time, changes the definition into “original intellectual creations in the literary, artistic and scientific domain, insofar as they are capable of being expressed in a certain form”. The change is the result of recognition that the very subject matter of copyright protection is the “expression” of intellectual creation, and at the same time, not all works are “reproducible”, for example, oral works.
Scope of copyright broadened
First, under the old law, only those works, the types of which are provided in laws and administrative regulations, are subject matters of copyright. With the new law, all intellectual creations that meet the criteria of work are entitled to copyright protection (Article 4.9). As a result, as soon as a new type of work emerges, it is protected under the Copyright Law before any legislative change is made.
Second, a few changes are made to broaden scope of copyright in response to 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 forms of works that are not “filmed on certain media”, such as animation and video game (Article 4.6). The definition of “the right of reproduction” is revised to include reproduction of works by means of digitisation (Article 10.5). The definition of “the right of broadcasting” is changed to cover simulcasting of works online (Article 10.11).
Protection of copyrights strengthened
The old law excludes “news on current affairs” from copyright protection. Since the term “news on current affairs” does not clearly distinguish news reports that are the fruits of creative work of journalists from simple narrations of time, place and event, the stipulation has made it difficult for journalists to enforce their copyrights, and permitted plagiarism to grow rampantly in the news industry, where digital media frequently publish original, translated or doctored version of news reports of traditional media without permission, pay, or even giving credit to the authors. The new law replaces “news on current affairs” with “mere factual information” as an item being excluded from copyright protection (Article 5.2), which makes it clear that news reports are entitled to copyright protection, hence provides a solid legal basis for journalists to combat plagiarism.
The old law prohibits intentional circumvention or destruction of technological protection measures taken by right owners on their works or sound/video recordings without permission. The new law introduces two new articles (i.e. Article 49 & 50) in relation to technological protection measures, which are defined as “effective technology, devise and component deployed to prohibit or restrict others from accessing works, performance, and sound/video recordings, or transmitting same on information network”. Besides intentional circumvention or destruction of technological protection measures, the new articles also prohibit (i) intentional manufacturing, import and provision, to the public, of device and component intended to circumvent or destroy technological protection measures, and (ii) intentional offering of technical services aimed to circumvent or destroy technological protection measures.
The new law has also amended provisions concerning rights management information. While the old law forbids intentional removal and alteration of rights management information without permission, the new law also prohibits provision of works, format designs, performances, sound/video recordings, or radio/television programmes to the public where the provider knows or should have known that the rights management information attached thereto has been removed or altered without permission.
A number of revisions are made to increase the costs of copyright infringements, which are among the most welcomed changes to the law. First, the statutory damages is raised by 10 times, from CNY 0.5 million to 5 million. Second, punitive damages become available. For severe cases of intentional infringement, the court can award damages in an amount that is up to five times of the actual loss of the right owner or illegal gain of the infringer. Third, to help determine the illegal gain of the infringer, the new law allows the courts to order the infringer to provide account books and other documents related to the infringement under the condition that the right owner has met the necessary burden of proof in order to determine monetary damages. If the infringer refuses to comply, or produces falsified documents, the court can decide on the amount of damages purely based on the claims made and evidence filed by the right owner.
Besides those introduced above, there are some other notable changes to the Copyright Law in the new amendment. To name a few, the term of protection for photographic work is prolonged from 50 years after first publication to 50 years after the death of the author. Performers are granted rights independent from the performing entity they work for. For a performance for hire, they enjoy the right of attribution of performership and the right to protect image inherent to their performance from distortion, while the ownership of other rights shall be agreed upon between them and the performing entity. Government bodies responsible to copyright enforcement are granted the power to conduct on-site inspections, question the parties, seal up premises, and seize articles related to the suspected illegal acts when investigating on copyright infringements.