The first substantial amendments to China’s Copyright Law in 20 years come into effect on June 1, 2021. They focus on enhancing protections for copyright owners, better aligning China with international standards, and implementing the Beijing Treaty on Audiovisual Performances.
Damages
Maximum statutory damages chargeable to an infringing party has increased from RMB500,000 to RMB5 million (from about $75,000 to $750,000), and cannot be below the new RMB500 ($75) minimum.
Damages calculation is also changed. The infringer must pay damages based either on the actual loss suffered by the rights holder or the illegal income of the infringer, as chosen by the rights holder. If it is difficult to calculate actual losses or illegal income, royalties can be the basis of damages.
Punitive damages have also been introduced to penalize parties that commit serious and willful copyright infringement. Damages can be 1 to 5 times the ordinary damages awarded.
Scope
China’s copyright law will have a broader definition of “works” to “intellectual achievements in the fields of literature, art and sciences which are creative new and original and can be presented in a certain form” “Other intellectual achievements that fit the characteristics of works” are now also protected under the law. These amendments are intended to provide new and emerging copyright subject matter with greater protection.
“Cinematographic and works created by a process analogous to cinematography” is replaced with the a more broadly defined “audio-visual works”. This is consistent with the Beijing Treaty on Audiovisual Performances implemented in 2020. The broader definition is focused on preventing piracy of live-streamed sports and online gaming broadcasts and protecting emerging forms of works like short videos and animations.
Another adjustment targeting misuse of online gaming and sports materials is the redefinition of “the right of broadcasting”. The “right to broadcasting” now means 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. Communication through the Internet will be included in the scope of the right of broadcasting. This will particularly impact network broadcasters and those who stream content online in China.
Cooperative & Derived Works
The revised copyright law keeps the definition of co-authorship: where a work is created by two or more authors, copyright is joint in the co-authors. Those who do not participate in the work’s creation cannot become co-authors.
Conversely, new language says that derived works may be exploited only with double approval; both the approval from the copyright owners of the derived works and of the original work.
Actor Rights
A new duty better protecting the rights and benefits of performers is added. New actors’ rights include the right to show their identity; the right to protect the character in their performance from distortion; and other rights as agreed by the parties. If the parties have not agreed or the agreement is unclear, the employer or performing entity shall enjoy the rights of service performance. 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.
Technical Protection Measures
New language allows copyright owners to take technical measures to protect their copyright and copyright-related rights. Technical measures include “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”.
Subject to limited exceptions, these technical measures may not be intentionally circumvented or destroyed; and people may not manufacture, import or provide relevant devices or components to the public for the purpose of circumventing or destroying the technical measures.
Permission of rights owners must be sought to intentionally delete or alter 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; or make 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.
Burden of Proof Shifted
The revision introduces a shift in the burden of proof. If the rights holder has provided evidence about the infringement, but relevant account books or materials are in the possession of the alleged infringer, the infringer may be ordered to produce these materials. Refusal to do so will increase the damages.
Courts may also now order the destruction of infringing copies, including destroying or preventing entry into commercial channels of the materials, tools, and equipment used for manufacturing the infringing copies.