On November 11, 2020, the Standing Committee of National People's Congress of P.R. China passed the amendments to the PRC Copyright Law. The amended PRC Copyright Law will enter into force from June 1, 2021.
The amendments of tremendous public concerns are as follows:
1. Statutory damages for copyright infringement have been raised to 5 Million as compared to 500,000 RMB Yuan in the current Copyright Law
Damages for copyright infringement are calculated in consideration of the losses of the copyright owners, illegal profits of the copyright infringers or the copyright royalties when it is hard to calculate the losses of the copyright owners or illegal profits of the copyright infringers.
When it is hard to determine the losses of the copyright owners, illegal profits of the copyright infringers or the copyright royalties, the court may award statutory damages at the amount of 500 RMB Yuan minimum and 5 Million RMB Yuan maximum.
The damages also include reasonable disbursements for the copyright owners to take legal actions to stop the copyright infringement.
2. Punitive damages for copyright infringement are set out
When the second draft was released for comments, it was proposed that in order to strengthen the punishment on copyright infringement, the minimum amount of statutory damages should be specified, and the rules for filing evidence in judicial procedures, along with the measures to destroy infringing reproductions and their producing tools, should be refined. Therefore, the amended Copyright Law includes relevant provisions, including minimum statutory damages of 500 RMB Yuan, and destruction of infringing reproductions and their manufacturing materials, tools and equipment without compensation.
In light of the circumstances of the intentional copyright infringement, the court may award punitive damages at the amount of 1 to five times the losses of the copyright owners, illegal profits of the copyright infringers or the copyright royalties under the amended Copyright Law.
3. The amounts of administrative fine on copyright infringement are specified
Although the current Copyright Law stipulates that a fine may be imposed on the copyright infringers by copyright enforcement authorities, the amounts of fine are not specified. The amended Copyright Law provides that "If the illegal business turnover is more than fifty thousand RMB Yuan, a fine of not less than twice the illegal business turnover and not more than five times the illegal business turnover may be imposed; if there is no illegal business turnover, it is difficult to calculate the illegal business turnover or the illegal business turnover is less than fifty thousand Yuan, a fine of not more than two hundred and fifty thousand RMB Yuan may be imposed."
4. Copyright ownership of audiovisual works is specified
The following amendments to the PRC Copyright Law were adopted.
Article 15 is renumbered as Article 17 and amended to read: "The copyright of a film or TV drama among audiovisual works shall be owned by the producer, whereas other contributors such as screenwriter, director, photographer, lyricist and composer shall have the right of authorship and the right to gain remuneration pursuant to the contract entered into with the producer.
The ownership of copyright of any audiovisual work other than those prescribed in the preceding paragraph shall be agreed upon among the parties concerned; if there is no agreement or the agreement is inexplicit, the copyright of the work shall be owned by the producer, but the authors shall have the right of authorship and right to gain remuneration.
The author of a play, music and any other work among audiovisual works that can be used separately shall have the right to exercise its copyright separately."
5. Reasonable use of copyright: A non-profit purpose restriction is added
The current Copyright Law provides that "Free performance of published work, without the permission from and payment of remuneration to the copyright owner, is permitted when neither fees are charged from the public nor the remuneration is paid to the performers, provided that the name of the author is mentioned."
Some members of the Standing Committee of the National People's Congress and the public suggested that a non-profit purpose restriction should be added to prevent the purposes of making a profit in disguise by such means as collecting advertising fees through free performance.
The amended Copyright Law replaces the aforesaid case of reasonable use with "Free performance of published work, without the permission from and payment of remuneration to the copyright owner, is permitted when neither fees are charged from the public nor the remuneration is paid to the performers and the performance is not for the purposes of making profits..."
6. The definition of technical measures is set out
The second draft provided that copyright owners may take technical measures in order to protect their copyright and copyright-related rights.
Some members of the Standing Committee of the National People's Congress have pointed out that technical measures are important means of copyright protection added to the Copyright Law this time, and a clear definition of them is conducive to the enforcement of the Copyright Law.
A provision is added to the third draft, setting forth the definition of technical measures for copyright protection. "For the purposes of this Law, technical measures are effective technologies, devices or components used to prevent or restrict the browsing or appreciation of works, performances, sound recordings or video recordings without the permission of copyright owners, or the provision of works, performances, sound recordings or video recordings to the public through information networks."
The background and purposes of the amendments to the PRC Copyright Law:
Since its promulgation 30 years ago, the PRC Copyright Law has played an important role in regulating and encouraging the creation, dissemination, protection and management of literary, artistic and scientific works, and in promoting the development and flourishing of socialist culture and sciences. However, as the rapid development of technologies has brought many new problems and challenges to national and social development, the current PRC Copyright Law, which has been amended twice, cannot keep up with the times and therefore require adjustments and improvement.
The completion of the third amendments of the PRC Copyright Law by the NPC Standing Committee is not only a significant move to implement policies such as strict protection of intellectual property rights and improvement of the business environment and intellectual property rights protection system but also a step required to align with international standards and implement the Beijing Treaty on Audiovisual Performances that entered into force this year.
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