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Third Amendment to China’s Copyright Law

30

DEC

2020

Xi Jinping, President of People’s Republic of China, issued Presidential Decree No.55 on November 11, 2020, announcing The Decision of the Standing Committee of the National People’s Congress on Amending the Copyright Law of the People’s Republic of China which was approved at the 23rd session of Standing Committee of the 13th National People’s Congress.

This amendment is the third amendment made to the Copyright Law following the amendments in 2001 and 2010. The newly-amended Copyright Law will come into effect as of June 1, 2021. This article gives a full review of the changes in the law in four major aspects: copyright ownership, subject matters of copyright, copyright administrative body and copyright protection.

I. Amendments related to copyright ownership

1. Specifying entities which are entitled to copyrights

1.1 Amending the term “other organizations” to “unincorporated organizations” in several provisions

In accordance with Chapter IV, Part I “General Provisions” of Civil Code of the People's Republic of China approved at the 3rd session of the 13th National People’s Congress on May 28, 2020, the newly revised Copyright Law also adopts the term “unincorporated organizations” to replace the term “other organizations”, which not only avoids term inconsistency between laws but also adapts to the trends and needs of China’s social development.

1.2 Amending the term “citizen” to “natural person” in several provisions

The term “citizen” is amended to “natural person” in accordance with the provisions on national treatment principle under Article 3 of the Berne Convention for the Protection of Literary and Artistic Works, which represents the effort of gearing the Copyright Law to international standards.

Some of the Articles involving the above two amendments are listed below.

Article 2

Chinese citizens, legal entities or other organizations unincorporated organizations shall, in accordance with this Law, enjoy the copyright in their works, whether published or not.

Article 9

Copyright owners include:

(1) authors; and

(2) other citizens natural persons, legal entities and other organizations unincorporated organizations enjoying the copyright in accordance with this Law.

Article 11

Except where otherwise provided for in this Law, the copyright in a work shall belong to its author.

The author of a work is the citizens natural persons who creates the work.

Where a work is created under the auspices and according to the intention of a legal entity or other organization an unincorporated organization, which bears responsibility for the work, the said legal entity or other organization unincorporated organization shall be deemed to be the author of the work.

The citizen, legal entity or other organization whose name is mentioned in connection with a work shall, in the absence of proof to the contrary, be deemed to be the author of the work.

Article 12

(added)

The natural person, legal entity or unincorporated organization whose name is mentioned in connection with a work is the author of the work and enjoys corresponding rights in the work, unless there is proof to the contrary.

Copyright owners such as authors may register their works with the registration authority recognized by the national administration department for copyright.

The provisions in the preceding two paragraphs shall apply by reference to copyright-related rights.

Article 19

Article 21

Where the copyright of a work belongs to a citizen a natural person, his rights in respect of the work as provided in Items (5) through (17) of Paragraph 1 of Article 10 of this Law shall, after his death, during the term of protection provided in this Law, be transferred in accordance with the Inheritance Law the law.

Where the copyright of a work belongs to a legal entity or other organization an unincorporated organization, its rights in respect of the work as provided in Items (5) through (17) of Paragraph 1 of article 10 of this Law shall, after the change or the termination of the status of the legal entity or organization unincorporated organization, during the term of protection provided in this Law, be enjoyed by the succeeding legal entity or organization unincorporated organization which has taken over the rights and obligations of the previous legal entity or organization unincorporated organization, or, in the absence of such succeeding legal entity or organization unincorporated organization, by the State.

2. Determining copyright ownership of co-authored works

In consistency with its Implementing Regulations, the revised Copyright Law, while retaining the definition of co-authorship, further provides the exercise of copyrights with or without the agreement of all the co-authors. Specifically, where negotiation fails, and there is no justified reason, no party may hinder other parties from exercising rights other than transferring, granting an exclusive license to others and pledging, but the benefits gained thereby shall be reasonably distributed to all the co-authors. The revision guarantees the economic gains of the co-authors and meantime gives full respect to the autonomy and will of the parties involved. It also mitigates possible hinders posed by co-authorship to the lawful dissemination of a jointly created work.

Article 13

Article 14

Where a work is created jointly by two or more authors, the copyright in the work shall be enjoyed jointly by the co-authors. No co-authorship may be claimed by anyone who has not participated in the creation of the work.

The copyright of a work of joint authorship shall be exercised by the co-authors through negotiation; where negotiation fails, and there is no justified reason, no party may hinder other parties from exercising rights other than transferring, granting an exclusive license to others and pledging, but the benefits gained thereby shall be reasonably distributed to all the co-authors.

Where a work of joint authorship can be separated into parts and exploited separately, each co-author may be entitled to independent copyright in the part that he creates, provided that the exercise of such copyright does not prejudice the copyright in the joint work as a whole.

3. Specifying requirements on exploitation of derived works

The newly-added Article 16 and Article 45 clearly define that derived works shall be exploited only with “double approval”, i.e., both the approval from the copyright owner of the derived works and the approval form the copyright owner of the original work. The Articles also stipulate the payment of remuneration. The related provisions were previously scattered in Article 35, Article 37, Article 40 in the Second Amendment issued in 2010. The revised provisions are more concise and can help prevent misconception about “double approval”. The revision is more in line with the fundamental purpose of the copyright law and also facilitates the solution of disputes of the kind.

Article 16

(added)

Publishing, performing and producing sound recordings and video recordings by using a work created by adaptation, translation, annotation, arrangement or compilation of a preexisting work shall be approved by the copyright owner of the work and the copyright owner of the preexisting work, with remuneration being paid.

Article 45

(added)

Where a sound recording is used for wired or wireless public dissemination or is publically communicated to the public using a technical device that transmits sound, remuneration shall be paid to the maker of the sound recording.

Article 35

When publishing works created by adaptation, translation, annotation, arrangement or compilation of pre-existing works, the publisher shall obtain permission from and pay remuneration to both the owners of the copyright in the works created by means of adaptation, translation, annotation, arrangement or compilation, and the owners of the copyright in the original work.

Article 37

Article 38

A performer (an individual performer or a performing group) who for a performance exploits a work created by another shall obtain permission from and pay remuneration to the copyright owner. A performance organizer who organizes a performance shall obtain permission from and pay remuneration to the copyright owner.

A performer who for a performance exploits a work created by adaptation, translation, annotation or arrangement of a pre-existing work shall obtain permission from and pay remuneration to both the owner of the copyright in the work created by adaptation, translation, annotation or arrangement and the owner of the copyright in the original work.

Article 40

Article 42

A maker of sound recordings or video recordings, who, for the production of a sound recording or video recording, exploits a work created by another, shall obtain permission from and pay remuneration to the copyright owner.

A maker of sound recordings or video recordings who exploits a work created by adaptation, translation, annotation or arrangement of a pre-existing work shall obtain permission from and pay remuneration to both the owner of the copyright in the work created by adaptation, translation, annotation or arrangement and the owner of copyright in the original work.

A maker of a sound recording who, for the production of a sound recording, exploits a musical work which has been lawfully recorded as a sound recording by another, does not need to obtain permission from, but shall, as provided in regulations, pay remuneration to the copyright owner; such work shall not be exploited where the copyright owner has declared that such exploitation is not permitted.

Article 44

A radio station or television station that broadcasts a published sound recording does not need to obtain permission from, but shall pay remuneration to the copyright owner, unless the parties concerned have agreed otherwise. The specific measures shall be provided by the State Council.

4. Amending the term for copyright owner of audio-visual works from “producer” to “maker”

The word “producer” in the second Amendment is intended to refer to the owner of the copyright of a cinematographic work or a television drama work. However this legal concept is often conflated with the producer in the cinema industry, which is a professional title generally for the one who is responsible for the production process of an audio-visual work. In practice, “producer” is a slippery concept, varying in meaning depending on the types of audio-visual works, conventions in the industry and investment modes of the works, so the term “producer” can result in disputes over authorship and copyright ownership.

Therefore, in terms of copyright owner of a cinematographic work or a television drama work, the Third Amendment replaces “producer” with “maker” to distinguish the legal term from the general usage in the cinema industry.

Article 15

Article 17

The copyright in a cinematographic work and that in a work created by a process analogous to cinematography or in a television drama work which is included in an audio-visual work shall be enjoyed by the producer maker of the work, while its scriptwriter, director, cameraman, lyricist, composer and other authors shall enjoy the right of authorship therein and shall be entitled to receive remuneration in accordance with the terms of the contracts concluded between them and the producer maker.

The ownership of copyright in audio-visual works other than those provided for in the preceding paragraph shall be agreed upon by the parties concerned; where no agreement is made or the agreement is not clear, it shall be enjoyed by the maker, while the author shall enjoy the right of authorship therein and shall be entitled to receive remuneration.

The authors of the screenplay, the musical works and the other works which are included in a cinematographic work or a work created by a process analogous to cinematography an audio-visual work or which can be exploited separately shall be entitled to exercise their copyright independently.

5. Specifying copyright ownership of service performance

The revised Copyright Law adds new provisions on service performance and ownership of the rights therein, under which the rights and benefits of the performer can be better protected.

Article 40

(added)

A performance given by a performer in the fulfillment of performance tasks assigned to him by the performing entity he works for is a service performance. The performer shall enjoy the rights to show his identity and to protect the character in his performance from distortion, and the ownership of other rights shall be agreed upon by the parties concerned. Where no agreement is made by the parties concerned or the agreement is not clear, the rights in the service performance shall be enjoyed by the performing entity.

Where the rights in a service performance are enjoyed by the performer, the performing entity may use the performance for free within its business scope.

II. Amendments related to subject matters of copyright

1. Defining “works” in a more inclusive manner

Compared with the Second Amendment which defines “works” as “among other things, works of literature, art, natural sciences, social sciences, engineering and technology”, the Third Amendment adopts a more inclusive definition: “intellectual achievements in the fields of literature, art and science, which are new and original and can be presented in a certain form”, providing more flexibility about the form of “works”.

2. Using “audio-visual works” to more precisely define certain subject matters

Under the current Copyright Law, practically a work has to be fixed in a medium to be identified as “a cinematographic work and works created by a process analogous to cinematography” as prescribed by the Law. However, emerging forms of works like short videos and animations are beyond the scope of the definition “cinematographic work” or the like, which renders the Law inapplicable when it comes to the protection of such works as short videos. The Third Amendment revises the wording of “cinematographic and works created by a process analogous to cinematography” to “audio-visual works”, manifesting an effort to keep abreast of the industrial development.

3. Amending “news on current affairs” to “purely factual information”

News on current affairs is not protected by the current Copyright Law. However, the content and photographs in a piece of news show not only simple facts but also commentary created with writing techniques which should be regarded as original intellectual achievements of the news writer and thus should be included as a subject matter of copyright.

The Supreme People’s Court specifies that purely factual information spread through the mass media is news on current affairs, as is prescribed by Article 16 its Interpretations on Application of Laws in Adjudicating Civil Disputes over Copyright. The amended Copyright Law replaces “news on current affairs” with “purely factual information”, which is consistent with the aforementioned judicial interpretation and further clarifies that “news on current affairs” which is creative and original is a subject matter of copyright.

Article 3

For purposes of this Law, the term “works” includes, among other things, works of literature, art, natural sciences, social sciences, engineering and technology created in any of the following forms means intellectual achievements in the fields of literature, art and sciences which are creative new and original and can be presented in a certain form, including:

(1) written works;

(2) oral works;

(3) musical, dramatic, quyi, choreographic and acrobatic works;

(4) works of the fine arts and architecture;

(5) photographic works;

(6) cinematographic and works created by a process analogous to cinematography audio-visual works;

(7) graphic works such as drawings of engineering designs and product designs, maps and sketches, and model works;

(8) computer software; and

(9) other works as provided for in laws and administrative regulations intellectual achievements that fit the characteristics of works

Article 5

This Law shall not be applicable to:

(1) laws and regulations, resolutions, decisions and orders of State organs, other documents of a legislative, administrative or judicial nature and their official translations;

(2) news on current affairs purely factual information; and

(3) calendars, numerical tables and forms of general use, and formulas.

Article 46

Article 48

A television station that broadcasts another's cinematographic work, work created in a way similar to cinematography audio-visual work or video recording shall obtain permission from and pay remuneration to the copyright owner of the audio-visual work or the producer maker of the video recording. A television station that broadcasts another's video recording shall also obtain permission from and pay remuneration to the copyright owner.

Article 47

Article 52

He who commits any of the following acts of infringement shall bear the civil liability for such remedies as ceasing the infringing act, eliminating the effects of the act, making a public apology or paying compensation for damages, depending on the circumstances:

(1) publishing a work without the permission from the copyright owner;

(2) publishing a work of joint authorship as a work created solely by oneself, without the permission from the other co-authors;

(3) having his name mentioned in connection with a work created by another, in order to seek personal fame and gain, where he has not taken part in the creation of the work;

(4) distorting a work created by another;

(5) plagiarizing the works of others;

(6) exploiting a work by means of exhibition, making cinematographic productions or a means similar to making cinematographic productions works audio-visual works, or by means of adaptation, translation, annotation, etc. without the permission from the copyright owner, unless otherwise provided in this Law;

(7) exploiting a work of another without paying the remuneration;

(8) without the permission from the copyright owner of a cinematographic work or a work created in a way similar to cinematography an audio-visual work, computer software, a sound recording or video recording, the permission from the oblige related to the copyright owner from a performer, or from the maker of a sound recording or video recording, leasing the original copy or reproductions of his work or sound recordings or video recordings, except where otherwise provided in this Law;

(9) without the permission from a publisher, exploiting the format design of his published book or periodical;

(10) without the permission from the a performer, broadcasting or publicly transmitting his live performance or recording his performance;

(11) committing other acts of infringement upon copyright and upon copyright-related other benefits rights related to copyright.

Article 53

Article 59

Where a publisher or producer of reproductions is unable to prove the lawful authorization of his publication or production, or the distributor of the reproductions or the lessor of the reproductions of a cinematographic work or a work created in a way similar to cinematography an audio-visual work, computer software, sound recordings or video recordings is unable to prove the lawful sources of his distribution or lease of the reproductions, he shall bear the legal liabilities.

In legal proceedings, where the sued infringer claims that he is not liable for tort, he shall provide evidence that he has obtained permission from the right owner, or that there is circumstance under which he may use such work without permission from the right owner as provided for in this Law.

4. Redefining right of broadcasting & right of communication through information network

In the current Copyright Law, the wording “wired rebroadcast” contained in the expression “to communicate the broadcast of a work to the public by wired dissemination or rebroadcast” is narrowly interpreted as broadcasting through a cable television and a wire radio, excluding broadcasting via the internet. Meanwhile, in practice, it is difficult to verify whether the initial signal source of internet broadcasting is a wirelessly broadcasted work, which causes infringement actions on internet broadcasting to fall beyond the scope of the right of broadcasting. The revised Copyright Law defines the right of broadcasting as the right to “publically communicate or rebroadcast a work by wire or by wireless means”, bringing the communication through internet into the scope of the right of broadcasting and accommodating the developments and needs of Internet era.

Article 10

Copyright includes the following personal rights and property rights:

(1) the right of publication, that is, the right to decide whether to make a work available to the public;

(2) the right of authorship, that is, the right to claim authorship in respect of, and to have the author’s name mentioned in connection with, a work;

(3) the right of revision, that is, the right to revise or authorize others to revise a work;

(4) the right of integrity, that is, the right to protect a work against distortion and mutilation;

(5) the right of reproduction, that is, the right to produce one or more copies of a work by printing, photocopying, lithographing, making a sound recording or video recording, duplicating a recording, or duplicating a photographic work, digitizing or by other means;

(6) the right of distribution, that is, the right to provide the original copy or reproductions of a work to the public by selling or donating;

(7) the right of lease, that is, the right to authorize others to use temporarily the original copy or reproductions of a cinematographic work or a work created by a process analogous to cinematography an audio-visual work, or computer software, except where the software itself is not the essential object of the lease;

(8) the right of exhibition, that is, the right to publicly display the original copy or reproductions of a work of the fine arts or of a photographic work;

(9) the right of performance, that is, the right to publicly perform a work, and to publicly communicate the performance of a work by any means or process;

(10) the right of presentation, that is, the right to publicly present a work of the fine arts, a photographic work, a cinematographic work or a work created by a process analogous to cinematography an audio-visual work, or other works, by projector, slide projector or any other technology or instrument;

(11) the right of broadcasting, that is, the right to broadcast a work or disseminate to the public by wireless means, to communicate the broadcast of a work to the public by wired dissemination or rebroadcast publically communicate or rebroadcast a work by wire or by wireless means, and to communicate the broadcast of a work to the public by loudspeaker or any other analogous instrument transmitting signs, sounds or images, except the right provided for in Item (12) of this Paragraph;

(12) the right of communication through information network, that is, the right to make a work available to the public by wire or by wireless means, so that the public may have access to the work a work at a place and time chosen individually by the public themselves;

(13) the right of cinematography, that is, the right to fix a work in a medium by producing a cinematographic work or a work created by a process analogous to cinematography an audio-visual work;

(14) the right of adaptation, that is, the right to change a work into a new one with originality;

(15) the right of translation, that is, the right to change the language in which the work is written into another language;

(16) the right of compilation, that is, the right to compile by selection or arrangement preexisting works or passages therefrom into a new work; and

(17) other rights to be enjoyed by copyright owners.

Copyright owners may authorize others’ exercising of the rights provided for in Subparagraph (5) through Subparagraph (17) of the preceding paragraph and receive remuneration in accordance with the terms of contracts or the relevant provisions in this Law.

Copyright owners may transfer, wholly or in part, the rights provided for in Subparagraph (5) through Subparagraph (17) of the first paragraph in this Article and receive fees in accordance with the terms of contracts or the relevant provisions in this Law.

5. Further specifying the exclusive rights of radio stations and television stations to prohibit certain acts regarding radios or televisions

The amended Article clearly defines the scope of exclusive rights owned by a radio station and a television station, thereby defining the subject matter protected by the neighboring rights of radios and televisions.

Article 45

Article 47

A radio station or television station is entitled to prohibit the following acts which it has not permitted:

(1) rebroadcasting by wire or by wireless means the radio or television which it has broadcasted;

(2) recording or reproducing the radio or television which it has broadcasted in the audio or video carrier and to reproduce the audio or video carrier;

(3) disseminating to the public through information network the radio or television which it has broadcasted.

The radio station or television station, in exercising the rights provided for in the preceding paragraph, shall not affect, limit or infringe other’s exercise of copyright or copyright-related rights.

The term of protection of the rights provided in the preceding first paragraph of this Article shall be fifty years, expiring on December 31 of the fiftieth year after the first broadcasting of the radio or television.

III. Amendments related to copyright administrative bodies

1. Determining the respective power of national and local authorities for copyright

In the Third Amendment, it is stipulated that local administration departments for copyright at and above the county level shall be responsible for the administration of copyright in their respective administrative regions.

Article 7

The administrative department for copyright under the State Council national administration department for copyright shall be responsible for the administration of copyright nationwide. The administrative departments for copyright under the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government The local administration departments for copyright at and above the county level shall be responsible for the administration of copyright in their respective administrative regions.

2. Specifying the non-profitability, management and information transparency of collective copyright administration organizations

The Third amendment further emphasizes that collective copyright administration organizations are non-profit legal entities and also defines the power of collective copyright administration organizations. It also adds a clause stipulating information publication procedures of collective copyright administration organizations.

Article 8

Copyright owners or and owners of the copyright-related rights may authorize collective copyright administration organizations to exercise the copyright or the copyright-related rights. A collective copyright administration organization which is established in accordance with the law is a non-profit legal entity and may, upon authorization, exercise the copyright or the copyright-related rights in its own name for the copyright owner or the owner of the copyright-related rights and participate as a party in litigation, or arbitration or mediation proceedings concerning the copyright or the copyright-related rights.

Collective copyright administration organizations, based on their authorization, collect exploitation fees from the users. The standard for collection of exploitation fees shall be determined by negotiation between the copyright collective management organization and the representative of the users, and if the negotiation fails, a request for a decision may be made to the national competent administration department for copyright, and if the decision is not accepted, a lawsuit may be brought in a people's court; the concerned parties themselves may directly bring a lawsuit in a people’s court.

Collective copyright administration organizations shall regularly announce to the society the general situation of the collection and transfer of exploitation fees, the extraction and use of management fees, and the undistributed portion of the exploitation fees, and shall establish a rights information query system, for the right owners and users to inquire. The national administration department for copyright shall supervise and manage the collective copyright administration organizations in accordance with the law.

Collective copyright administration organizations are non-profit organizations, and regulations concerning the way of their establishment, their rights and obligations, their collection and distribution of copyright licensing exploitation fees, and their supervision and administration shall be formulated separately by the State Council.

IV. Amendments related to copyright protection

1. Specifying that the exhibition of a work of fine art or a photographic work by an assignee does not infringe upon the author’s right of publication

Article 18

Article 20

The transfer of ownership of the original copy of a work of fine art or another work shall not be deemed to include the transfer of change the ownership of the copyright in such a work, however, the right to exhibit the original copy of a work of fine art or a photographic work shall be enjoyed by the owner of such original copy.

Where the author assigns to others the ownership of the original copy of a work of fine art or a photographic work which has not been published, the exhibition of such original copy by the assignee shall not constitute infringement on the author’s right of publication.

2. Specifying the term of protection of various rights regarding various works

Article 21

Article 23

In respect of a work of a citizen natural person, the term of protection of the right of publication and of the rights provided for in Items (5) through (17) of Paragraph 1 of Article 10 of this Law shall be the lifetime of the author and fifty years after his death, expiring on December 31 of the fiftieth year after his death. In the case of a work of joint authorship, such term shall expire on December 31 of the fiftieth year after the death of the last surviving author.

In respect of a work of a legal entity or other organization an unincorporated organization, or a service work of which the copyright (except the right of authorship) is enjoyed by a legal entity or other organization an unincorporated organization, the term of protection of the right of publication and of the rights provided in Items (5) through (17) of Paragraph 1 of article 10 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the first publication completion of the creation of the work; the term of protection of the rights provided for in Items (5) through (17) of Paragraph 1 of Article 10 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of the work, however, any such work that has not been published within fifty years after the completion of its creation shall no longer be protected by this Law.

In respect of a cinematographic work or a work created by a process analogous to cinematography an audio-visual work, the term of protection of the right of publication and of the rights provided in Items (5) through (17) of Paragraph 1 of article 10 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the first publication completion of the creation of the work; the term of protection of the rights provided for in Items (5) through (17) of Paragraph 1 of Article 10 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of the work, however, any such work that has not been published within fifty years after the completion of its creation shall no longer be protected by this Law.

3. Elaborating the legitimate uses of copyright-protected works

The legitimate uses of copyright-protected works are further defined, and a clause is added specifying that provision of a published work to those with reading disorder is legitimate exploitation of the work, which embodies the consideration for the disabled.

Article 22

Article 24

In the following cases, a work may be exploited without the permission from, and without payment of remuneration to, the copyright owner, provided that the name or title of the author and the title of the work are mentioned, the normal use of the work is not affected and other rights enjoyed by the copyright owner by virtue of this Law are not infringed upon the legitimate rights and interests of the copyright owner are not unreasonably damaged:

(1) use of a published work for the purposes of the user's own private study, research or self-entertainment;

(2) appropriate quotation from a published work in one's own work for the purposes of introduction of, or comment on, a work, or demonstration of a point;

(3) inevitable reappearance or citation of a published work in newspapers, periodicals, radio stations, television stations or other media for the purpose of reporting current affairs news;

(4) reprinting by newspapers or periodicals or other media, or rebroadcasting by radio stations or television stations or other media, of the current event article s on the issues of politics, economy and religion, which have been published by other newspapers, periodicals, radio stations or television stations or other media, except where the author copyright owner has declared that publication or broadcasting is not permitted;

(5) publication in newspapers or periodicals or other media, or broadcasting by radio stations or television stations or other media, of a speech delivered at a public assembly, except where the author has declared that publication or broadcasting is not permitted;

(6) translation, adaption, compilation, broadcasting or reproduction in a small quantity of copies, of a published work for use by teachers or scientific researchers in classroom teaching or scientific research, provided that the translation adaption, compilation, broadcasting or reproduction is not published or distributed;

(7) use of a published work by a State organ within the reasonable scope for the purpose of fulfilling its official duties;

(8) reproduction of a work in its collections by a library, archive, memorial hall, museum, art gallery, cultural center or similar institution, for the purpose of the display or preservation of a copy of the work;

(9) free of charge performance of a published work, that is, with respect to the performance, no fees are charged from the public, no remuneration is paid to the performers and it is not for the purpose of making profits;

(10) copying, drawing, photographing, or video recording of an artistic work located or on display in a public place outdoor;

(11) translation of a work published by a Chinese citizen, a legal entity or other organizations an unincorporated organization, which is created in Han language a national common language, into a minority nationality language for publication and distribution within the country;

(12) provision of a published work to people with reading disorder in a manner perceptible and accessible to them;

(13) other circumstances provided for in laws and administrative regulations;

The provisions in the preceding paragraph shall be applicable to the limitations on rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations copyright-related rights.

4. Specifying the legal liability for circumvention or destruction of the technical measures for copyright protection and the exemptions

Article 49

(added)

In order to protect their copyrights and copyright-related rights, right owners may take technical measures.

Without the permission of the right owner, no organization or individual may intentionally circumvent or destroy the technical measures, manufacture, import or provide relevant devices or components to the public for the purpose of circumventing or destroying the technical measures, or intentionally provide technical services for others to circumvent or destroy the technical measures, except where otherwise provided in laws and administrative regulations.

For purposes of this Law, the term “technical measures” means effective technologies, devices or components used for preventing or restricting others from browsing or enjoying works, performances, sound recordings or video recordings or providing the public through information network works, performances, sound recordings or video recordings without permission of the right owners.

Article 50

(added)

In the following cases, technical measures may be circumvented, but the technologies, devices or components that circumvent the technical measures shall not be provided to others, and the other rights enjoyed by the right owners in accordance with the law shall not be infringed:

(1) providing a small quantity of published works to teachers or scientific researchers for classroom teaching or scientific research in schools, where the works cannot be obtained through normal channels;

(2) providing published works to people with reading disorder in a manner perceptible and accessible to them, where the work cannot be obtained through normal channels;

(3) fulfilling official duties by State organs in accordance with administrative, supervisory and judicial procedures;

(4) testing the security performance of a computer and its system or network; and

(5) conducting encryption researches or computer software reverse engineering researches.

The provisions in the preceding paragraph shall be applicable to the limitations on copyright-related rights.

Article 51

(added)

The following may not be carried out without the permission of right owners:

(1) intentionally deleting or altering the information on the management of rights on a work, layout design, performance, sound recording, video recording, or radio or television, except where it cannot be avoided for technical reasons;

(2) making a work, layout design, performance, sound recording, video recording, radio or television available to the public, while knowing or supposed to know that the information on the management of rights thereon has been deleted or altered without permission.

5. Introducing punitive compensation

The Amendment introduces punitive compensation, and increases the maximum amount of compensation from 500,000 RMB (approx. 76,000 USD) to 5 million RMB (approx. 760,000 USD).

Article 48

Article 53

He who commits any of the following acts of infringement shall bear the civil liability for such remedies as ceasing the infringements, eliminating the effects of the act, making a public apology or paying compensation for damages, depending on the circumstances; where he damages public interests at the same time, the copyright administration department may order him to cease the act of tort, may confiscate his illegal gains, confiscate and destroy the reproductions of infringement, and impose a fine on him; if the case is serious, the copyright administration department may also confiscate the materials, instruments and equipment, etc. mainly used to make the reproductions of infringement; provided for in the Article 52 of this Law, depending on the circumstances; where the act of infringement damages public interests at the same time, the administration department for copyright may order him to cease the act of infringement, give him a warning, confiscate his illegal gains, confiscate and harmlessly destroy and dispose of the reproductions of infringement and the materials, instruments and equipment, etc. mainly used to make the reproductions of infringement; where the illegal business gains are not less than RMB50,000 Yuan, a fine of not less than one time and not more than five times the amount of the illegal business gains may also be imposed; where there is no illegal business gain or the illegal business gains are difficult to calculate or are less than RMB50,000 Yuan, a fine of not more than RMB250,000 Yuan may also be imposed; where his act has constituted a crime, he shall be investigated for criminal liabilities in accordance with the law:

(1) without the permission from the copyright owner, reproducing, distributing, performing, projecting, broadcasting, compiling, disseminating to the public through information network his works, except where otherwise provided in this Law;

(2) publishing a book where the exclusive right of publication belongs to another;

(3) without the permission from a performer, reproducing, distributing the sound recordings or video recordings of his performance, or disseminating his performance to the public through information network, except where otherwise provided in this Law;

(4) without the permission from a producer of sound recordings and video recordings, reproducing, distributing, disseminating to the public through information network the sound recordings or video recordings produced by him, except where otherwise provided in this Law;

(5) without the permission, broadcasting, reproducing, disseminating to the public through information network the radio or television, except where otherwise provided in this Law;

(6) without the permission from the copyright owner or the owner of copyright-related rights, intentionally circumventing or destroying the technical measures taken by the obligee on his works, sound recordings or video recordings, etc. to protect the copyright or the rights related to the copyright, intentionally manufacture, import or provide others devices or components mainly used to circumvent or destroy the technical measures, or intentionally provide technical services for others to circumvent or destroy the technical measures, except where otherwise provided in laws or administrative regulations;

(7) without the permission from the copyright owner or the owner of copyright-related rights, intentionally deleting or altering the electronic information on the management of the rights on a work, layout design, performance, sound recording, video recording, radio or television, or making a work, layout design, performance, sound recording, video recording, radio or television available to the public while knowing or supposed to know that the information on the management of rights thereon has been deleted or altered without permission, except where otherwise provided in laws or administrative regulations;

(8) producing or selling a work where the signature of another is counterfeited.

Article 49

Article 54

The infringer shall, when having infringed upon the copyright or the copyright-related rights, make a compensation on the basis of the right owner's actual losses suffered therefrom or the infringer’s illegal gains; where the right owner’s actual losses or the infringer’s illegal gains are difficult to calculate, the compensation may be made by reference to the infringer’s illegal gains; the compensation should also include the reasonable expenses paid by the right-owner for stop the act of infringement the compensation may be made by reference to the exploitation fee of the right. For intentional infringement on the copyright or the copyright-related rights with serious circumstances, the amount of compensation may be determined at more than one time and less than five times the amount determined according to the above method.

Where it is unable to determine difficult to calculate the right owner’s actual losses, the infringer’s illegal gains and the exploitation fee of the right, the people's court may award the damages of not more than 500,000 Yuan not less than RMB 500 Yuan and not more than RMB 5, 000, 000 Yuan in light of the circumstances of the infringing act.

The amount of compensation shall also include the reasonable expenses paid by the right owner for stopping the act of infringement.

In order to determine the amount for compensation, under the circumstances where the right owner has endeavored to present evidence, and the related account books or materials are mainly in control by the infringer, the people’s court may order the infringer to provide account books and materials relating to the act of infringement; if the infringer does not provide or provides false account books or materials, the people’s court may rule on the amount of compensation based on the claims of and the evidence provided by the right owner.

In trying copyright dispute cases, the people's court shall, at the request of the right owner, order the destruction of reproductions of infringement, except in special circumstances; order the destruction of materials, tools and devices mainly used to manufacture the reproductions of infringement, without compensation; or, in special circumstances, order the prohibition of the aforementioned materials, tools and devices from entering commercial channels, without compensation.

V. Other amendments:

Article 4

Copyright owners and owners of copyright-related rights, in exercising their copyrights rights, shall not violate the Constitution or laws or jeopardize public interests. The State shall supervise and administrate the publication and dissemination of works in accordance with the law.

Article 16

Article 18

A work created by a citizen a natural person in the fulfillment of tasks assigned to him by a legal entity or other organization an unincorporated organization is a service work. Subject to the provisions of the second paragraph of this Article, the copyright in such work shall be enjoyed by the author; however, the legal entity or other organization unincorporated organization shall have priority to exploit the work within the scope of its professional activities. Within two years after the completion of the work, the author may not, without the consent of the legal entity or other organization unincorporated organization, authorize the exploitation of the work by a third party in the same manner as the legal entity or other organization unincorporated organization exploits the work.

In any of the following cases, the author of a service work shall enjoy the right of authorship, while the legal entity or other organization unincorporated organization shall enjoy the other rights included in the copyright and may reward the author:

(1) drawings of engineering designs and product designs, maps, computer software and other works which are created in the course of employment mainly with the material and technical resources of the legal entity or other organization unincorporated organization and for which the legal entity or other organization bears responsibility;

(2) service works created by the staff of a newspaper or a periodical publisher, news agency, radio station or television station;

(3) works created in the course of employment the copyright in which is, in accordance with laws, administrative regulations or contracts, enjoyed by the legal entity or other organization unincorporated organization.

Article 23

Article 25

Anyone who compiles or publishes textbooks for the purpose of implementing the nine-year compulsory education or State education planning may, without the permission from the copyright owner, except that the author has declared in advance that the exploitation is not permitted, compile published fragments of works, short written works or musical works, a single work of fine art, photographic works, or graphic works, into the textbooks, however, he shall pay remuneration to the copyright owner as provided in regulations, mention the name or title of the author and the title of the work, and shall not infringe upon other rights which the copyright owner shall enjoy in accordance with this Law.

The provisions in the preceding paragraph shall be applicable to the limitations on the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations. copyright-related rights.

Article 26

Article 28

In case of pledge of property rights included in the copyright, the pledger and the pledgee shall go through registration of the pledge with the copyright administration under the State Council in accordance with the law.

Article 28

Article 30

The standards of remuneration for the exploitation of a work may be either agreed upon by the parties concerned or be made by the copyright administration under the State Council the national administration department for copyright in collaboration with other departments concerned. Where the parties concerned fail to reach a clear agreement, the remuneration shall be paid in accordance with the standards of remuneration made by the copyright administration under the State Council the national administration department for copyright for copyright in collaboration with other departments concerned.

Article 43

Article 46

A radio station or television station that broadcasts an unpublished work created by another shall obtain permission from and pay remuneration to the copyright owner.

A radio station or television station that broadcasts a published work created by another does not need to obtain permission from, but shall pay remuneration to the copyright owner as provided in regulations.

Article 44

A radio station or television station that broadcasts a published sound recording does not need to obtain permission from, but shall pay remuneration to the copyright owner, unless the parties concerned have agreed otherwise. The specific measures shall be provided by the State Council.

Article 55

(added)

The administration department for copyright, in investigating suspected acts of infringement of copyrights or copyright-related rights, may inquire of relevant parties concerned, investigate into the circumstances relating to the suspected illegal acts, conduct an on-site inspection of the premises where the parties concerned have carried out the suspected illegal acts and of the articles relating to the suspected illegal acts, examine or reproduce the contracts, invoices and account books and other materials relating to the suspected illegal acts, and seal, seize or close down the articles and premises relating to the suspected illegal acts.

When the administration department for copyright exercises the powers as provided for in the preceding paragraph, the parties concerned shall give assistance and cooperate, and must not refuse or obstruct to do so.

.

Article 50

Article 56

Where a copyright owner or an owner of copyright-related rights has evidence to prove that another is committing or is going to commit an act infringing upon his right or hindering its realization, and that his lawful rights and interests will suffer the damage which is difficult to be remedied if he does not stop it in time, he may, before bringing a lawsuit, petition the people's court for an order to cease the relevant acts to adopt property preservation, order certain actions, or prohibit certain actions in accordance with the law.

The people's court shall handle the application in the preceding paragraph in accordance with article 93 through article 96 and article 99 of the Civil Procedure Law of the People's Republic of China.

Article51

Article 57

For the purpose of stopping the acts of infringement, a copyright owner or an owner of copyright-related rights may, under circumstances that the evidence may be destroyed or lost or difficult to obtain later on, petition the people's court for evidence preservation in accordance with the law.

The people's court must, after receiving the application, make an order within 48 hours; if the preservation is granted by an order, its implementation shall start immediately.

The people's court may order the applicant to provide a surety; if the applicant fails to do so, his application shall be rejected.

If the applicant fails to bring a lawsuit within 15 days after the people's court has adopted the preservation measures, the people's court shall cancel the property preservation.

Article 54

Where a party concerned does not implement his contractual obligations or his implementation of the contractual obligations does not conform to the stipulated requirements, he shall bear the civil liabilities in accordance with the General Principles of the Civil Law of the People's Republic of China, the Contract Law of the People's Republic of China and other laws.

Article 61

(added)

Where a party concerned bears civil liabilities because he does not implement his contractual obligations or his implementation of the contractual obligations does not conform to the stipulated requirements, and where a party concerned exercises his litigation rights and petitions for preservation, etc., the provisions of relevant laws shall be applicable.

Article 56

Article 65

(added)

Any party who objects to an administrative penalty may bring a lawsuit to the people's court within three months as of the date when it received the written decision on the penalty. If a party neither bring a lawsuit nor implements the decision within the above time limit, the copyright administration department concerned may apply to the people's court for enforcement.

In terms of a photographic work, where the term of the right of publication and the rights provided for in Items (5) through (17) of Paragraph 1 of Article 10 of this Law has expired but such rights are still within the term of protection in accordance with the provisions of Paragraph 1 of Article 23 of this Law before June 1, 2021, they shall no longer be protected.

We hope you may find the above information helpful. Should you have any question about relevant matters, please feel free to contact us.

About the Firm

AFD China Intellectual Property Law Office
Address Golden Towers, Tower B, 21st floor, 38 Xueqing Road, Haidian, Beijing 100083, China.
Tel 86-10-8273 0790
Fax 86-10-8273 0820
Email afdbj@afdip.com
Link www.afdip.com

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