On June 1, 2021, the revised copyright law went into force. Over the past ten years, the three revised amendment is clearly committed to developing a new law compatible with the digital economy and reality, focusing on the world and the future. The new CL fully strengthens the protection of copyright owners and creators under the New Age.
The revision involves the definition of a copyright work, collective management organization of copyright, fair use, and copyright protection among other aspects. This article will primarily focus on two points of the revision, namely the definition of a copyright work and copyright protection, to help gain a deeper understanding of the new Chinese Copyright Law.
How has the definition of a copyright work changed in terms of adapting to technological advances?
Protecting new users has become a lingering challenge in the digital content industry as technology advances and the channels and methods of content distribution change.. In this regard, the revised law has tweaked the definition of copyright works and their types within Article 3 of the revised Copyright Law. For example, the definition of copyright works has been changed to “intellectual achievements that are original in the fields of literature, art and science, and can be expressed in a certain form” and adjusting the expression “cinematographic works and works created in a way similar to cinematography” to “audiovisual works”, all of which mean that the scope of copyright protection has been further expanded. It’s expected to facilitate copyright protection of new media works such as live-streamed sports, e-sports, and emerging forms of works such as short videos and animations.
In a bid to follow this technical development trend, the revision clarifies relevant rules and laws involving the application of digital technology. For example, provisions related to “digitized” reproduction of works have also been added to the revised law.
Regarding IP Protection, what are the relevant measures to crack down on infringements?
Article 54 of the newly amended copyright law states that where copyright or copyright-related rights are infringed, the infringer shall pay according to the actual losses suffered by the rights holder or the illegal gains of the infringer. The amended law also states that for serious and intentional infringement/s, the infringer can be fined by the People’s Court for an amount up to 5 times in punitive damages – marking the first time that punitive damages are adopted in China’s Copyright Law.
Punitive damages are based on the actual losses suffered by the rights holder or illegal gains by the infringer, as chosen by the rights holder. Thus, those engaged in the intentional infringement of a copyright holders rights to a specific work now face damages to the amount of 1 – 5 times their illegal gains in damages.
In scenarios where the copyright holder’s losses or the infringer’s illegal gains are difficult to calculate or evidence is insufficient, the courts can impose statutory damages on the infringer in the form of a lump-sum payment to the copyright holder. The amendments increase the upper limit for statutory damages tenfold – from RMB 500k (USD $76,800) to RMB 5 million (USD $768,000) – and introduce a new minimum of RMB 500 (USD $76).
Article 54 also provides the courts with greater powers to investigate copyright claims and determine the amount of compensation based on the copyright holder’s losses and the infringer’s illegal gains.
Where the evidence needed to calculate damages includes items such as accounting records and books, the court can order the infringer to hand-over such evidence in their possession. If the infringer does not provide the relevant records, or provides false records, the People’s Court may determine the amount of compensation by referring to the claims of the copyright holder and the initial evidence provided by the claimant.
The reform of the Copyright Law is the response of the Chinese government towards the modern digital age and increasing number of lawsuits for copyright infringement in China, including those for digital piracy. Hence, the law establishes a system of fines for infringements, and strengthens the judicial protection of copyrights.
In this regard, increasing the statutory damages together with the introduction of punitive damages, as well as the shift of the burden of proof in judicial proceedings, all cumulatively produce a heavy deterrent effect and, provide greater recourse in China for copyright holders for infringements on their rights and provides the courts with more power to investigate copyright claims and levy punitive damages for violations.
We at D’Andrea & Partners Legal Counsel constantly monitor the latest developments in the China IP market. Please feel free to contact us at info@dandreapartners.com for more information.
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