Ling Zhao of the MARQUES China Team introduces the latest changes to China’s Copyright Law
On 11 November 2020, the Standing Committee of National People’s Congress of China passed the amendments to the China Copyright Law. The amended China Copyright Law will be effective as of 1 June 2021.
The China Copyright Law has been amended to address the concerns of copyright holders, enhance copyright protection, align with international standards and implement the Beijing Treaty on Audiovisual Performances that entered into force this year.
The current China Copyright Law has been enforced since 1991 and was amended in 2001 and 2010. After amendments, the China Copyright Law now consists of six chapters and 67 articles in total. The key amendments to the PRC Copyright Law include the following issues:
Statutory damages for copyright infringement have been raised to RMB5 Million compared to RMB500,000 in the current Copyright Law. And punitive damages for copyright infringement are set out.
According to the amendments to the Copyright Law, if the circumstances are serious for intentional infringement of the copyright or the rights related to the copyright, damages of one to five times the determined amount of loss or illegal income can be awarded.
Definition of works: “works” in the Copyright Law refer to the intellectual achievements that are original and can be expressed in a certain form in the fields of literature, art, science, etc. Other intellectual achievements in line with the characteristics of works are also protected under the copyright law.
Definition of “audio-visual works”: so-called "film works, television works and other audio-visual works" and "films and works created by similar methods of film production" are unified as “audio-visual works” in the new Law. This change reflects the challenges brought by the rapid development of the industry in recent years, such as the rise of online games, which are now worth hundreds of billions of dollars. We are faced with problems such as how to determine the nature of online game live broadcast, how to determine the nature of online game screens, and how to classify and determine the nature of music fountains, light shows, firework shows, etc., which give rise to the legislation on audio-visual works.
Redefinition of “the right of broadcasting”: In the new Copyright Law, the right to broadcast refers to the right to publicly disseminate or relay a work by wired or wireless means, and to disseminate a broadcast work to the public through loudspeakers or other similar means for transmitting symbols, sounds and images. The redefinition of the right of broadcasting addresses the problem of copyright infringement of webcasts. Without permission, the act of covering and broadcasting the works of others by a network anchor will be subject to liabilities of infringement of the right holder's broadcasting right.
Copyright ownership of cooperative works: in the case of a work created by two or more authors, the copyright shall be jointly enjoyed by the co-authors and exercised by consensus through consultation.
If consensus cannot be reached through consultation and there is no justifiable reason, neither party shall prevent the other party from exercising rights other than transferring or licensing others' exclusive use or pledging, but the proceeds shall be reasonably distributed to all the authors. Those who do not participate in the creation cannot become co-authors.
Rights of duty performance of actors: The amendment to the Copyright Law adds the duty performance of actors, that is, the performance performed by actors to complete the performance tasks of hire is duty performance.
Actors have the right to show their identity and protect the performance image from distortion, and other rights as agreed by the parties. If the parties have not agreed or the agreement is not clear, the employer shall enjoy the rights of duty performance.
Technical measures: in order to protect copyright and related rights, the right holder may use technical measures.
The term "technical measures" as used in this Law refers to the effective technologies, devices or components used to prevent or restrict the browsing and appreciation of works, performances, audio and video recordings without the permission of the right holder, or the provision of works, performances, audio and video recordings to the public through information networks.
Ling Zhao is a Trade Mark Attorney with CCPIT Patent and Trademark Law Office and a member of the MARQUES China Team