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New Changes to Copyright Protection in China
by Vincent Wang, Legal
Consultant and Ron (Rongwei)
Cai, Resident Partner
[October 2001]
On October 27, 2001, China promulgated the amendment to its PRC,
Copyright Law of 1990 (the Copyright Law). The amendment came into
effect upon its promulgation. The purpose of this amendment was
to bring China's copyright protection to full compliance with relevant
international conventions. It seems more than coincidental that
the amendment was promulgated one week before China signed its WTO
accession documents; the amendment was issued in all likelihood
to prove that China is making efforts to honour its WTO commitments.
The Amendment
Compared with the old Copyright Law, the amendment Copyright Law
has the following new features:
- the copyright protection provided by the amendment is more in
line with the Berne Convention and TRIPs requirements for copyright
protection;
- the copyright protection provided by the amendment attempts
to meet the demands of a modern "digitalisation" environment;
and
- the copyright protection provided by the amendment enhances
law enforcement against infringements.
Compliance
Many provisions in the old Copyright Law have been revised for
the purposes of treaty compliance. The most important ones are as
follows:
Sources of Protected Works
One good example of treaty compliance is sources of the works that
are eligible for protection under the new amendment. According to
Article 2, the works protected by the new amendment include:
- the works, regardless of whether they are published or not,
of Chinese citizens, legal entities and other organizations;
- the works of foreigners or persons without nationality, if the
following conditions are satisfied:
a. the works of foreigners or the persons without
nationality are initially published in China;
b. the country of the foreign authors, or the country
where the persons -without nationality authors usually live,
has signed bilateral copyright protection agreements with
the Chinese government or has participated in an international
convention regarding copyright protection of which China is
also a member country; or
c. if neither of the above is satisfied, the works
of the foreigners or the persons without nationality are initially
published in a member country to an international convention
of which China is also a member country or at least initially
published both in a member country and a non-member country
simultaneously.
This provision authorizes the Chinese resident and non-Chinese
resident with equal national treatment. In particular, the newly-added
provision regarding the persons without nationality and publication
of works in another member country brings the Copyright Law in full
compliance with the national treatment requirement of the Berne
Convention.
Definition of Works
Another example of treaty compliance is the new definition of works.
The Berne Convention requires its member countries to provide full
copyright protection for all natural and social science, literary,
artistic and engineering works, including but not limited to architectural
works, model works and software works. However, the old Copyright
Law does not directly provide protection for the above-mentioned
types of works. Authors of the above types of works have had to
resort to other laws and regulations for implied or indirect protections,
which are not sufficient compared with those required by international
conventions. The amendment provides full copyright protection on
all the above type of works. In addition, for the purpose of protecting
Chinese national arts, the amendment also lists acrobatic works
as one of the items that shall be under protection.
Definition of Rights
A third example of treaty compliance is the definition of rights.
The Berne Convention lists different types of rights that shall
be protected by its member countries. However, the old Copyright
Law only consolidates those rights as one single right, which is
the right to exploitation and the right for remuneration. The new
amendment clearly defines in Article 10 all those rights called
for by the Berne Convention.
Keeping up with Changes in IT
The legal development of copyright protection in China lags far
behind the country's rapid development and use of information technology
products and services. As a result, infringement on Internet products
(such as a domain name), software piracy, and database piracy are
rampant. The amendment also makes efforts to provide practical measures
against these infringements.
Software
Under the original terms of the Copyright Law, the protection of
software was treated differently from the protection of other works.
Under the 1990 legislation, software was not automatically eligible
for protection by the administrative and judicial system upon completion,
nor did it enjoy 50-year protection as enjoyed by other non-software
copyrighted works. According to the amendment, software is redefined
as one type of ordinary copyrighted works so that it is entitled
to the same full protection as other ordinary copyrighted works.
Furthermore, Article 47 imposes administrative or even criminal
liabilities on those acts that circumvent and deliberately destroy
the technological measures that the copyright owners or their related
persons took for copyright protection purposes. Moreover, as a response
to the requirement of TRIPs on copyright protection, the amendment
also for the first time confirms the right to lease as a right under
the copyright of a software work.
Internet Infringement
Loopholes or omissions under the old Copyright Law were fully exploited
by copyright infringers, and the Internet became synonymous with
pirated products and intellectual and copyright infringement. The
old Copyright Law did not define dissemination on electronic networks
as a right of the copyright owner. The amendment grants the copyright
owners the right to disseminate works through information networks,
whose definition is the right to provide works to the public in
a wireless method or by fixed line, through which the public may
obtain the works at the time and place they select. Copyright protection
can now cover Internet activities and products disseminated on the
Internet.
Database Protection
Although the discussions on how databases shall be protected are
continuing, the amendment takes a positive step forward on this
issue. Article 14 of the amendments provides that a collection and
assembly of several pre-existing works are eligible for copyright
even if a part of pre-existing works or of data or other materials
are not protected under the Copyright Law if they are selected,
coordinated, or arranged in such a way that the resulting work as
a whole constitutes an original authorship. Under such definition,
databases will be protected under the amendment.
Enforcement
Injunctions Available
The TRIPs agreement requires member countries to provide tentative
measures, such as injunctions, as a means of remedy against copyright
infringement. According to the amendment, in the event that a
plaintiff can prove that a defendant is committing or is about
to commit copyright infringement, and if such an act is not stopped
immediately, the rights and interests of the copyright owners
or other holders of interests relating to the copyright will be
permanently damaged, the copyright owner or other holders of interests
relating to the copyright may apply to the People's Court for
an injunction order against the infringement and to preserve the
property involved in the infringement before a lawsuit is filed.
In a similar circumstance, if the evidence of infringement may
disappear or if it will be difficult to obtain in the future,
pre-trial evidence preservation orders are also available in the
People's Court.
Enhancement of Administrative Measures
China uses both its administrative and judicial systems against
copyright infringements. Copyright owners usually prefer the administrative
system as their first step in a campaign against infringements
because it is faster and more effective than the judicial system.
However, the old Copyright Law only authorized two measures for
the administrative system to use against infringement: confiscation
of illegal income and imposition of fines. These measures can
only work temporarily, and typically are not that threatening
to those who infringe upon copyrights. To create more of a deterrence,
Article 47 of the amendment authorizes more measures for solutions
via the administrative system, such as the issuance of orders
to stop infringement activities, confiscation of illegal income,
confiscation and demolition of reproduction equipment, and imposition
of fines, as well as the confiscation of the materials, tools
and equipments which are mainly used for infringement purposes.
Statutory Damages Defined
Article 48 and Article 52 of the amendment fully reflect the requirement
of TRIPs on financial liability for copyright infringement. According
to these two articles, the following persons shall be liable for
infringements:
Other Changes
In addition to the major changes mentioned above, there are other
changes to the limitations of rights and the neighbouring rights.
Limitations of Rights
There are two exceptions to copyrights. One is free performance,
and the other is the use of works in the textbooks for the country's
nine-year compulsory education, as follows:
a. Clear Definition of Free Performance. The old Copyright
Law does not define the meaning of free performance, which has
resulted in many disputes. The amendment defines free performance
as performance without charge to the general public and without
remuneration to the performers.
b. Works Used in Textbooks. It is not clear under the
old Copyright Law whether authors shall be paid if their works
are used in the textbooks of nine-year compulsory education.
With certain administrative interference, many such authors
have not been paid. The amendment provides that textbooks for
nine-year compulsory education can only use works already published,
and the authors for such works are eligible for payments.
Neighbouring Rights
The neighbouring rights under copyright include the rights enjoyed
by publishers, by performers, by record and video makers, and
by radio and television stations. The changes to the neighbouring
rights include:
a. Format Design Right of Publishers. Under the old
copyright protection system, it is only provided that the format
design shall be protected. The term of such right is not defined.
The amendment provides that the publisher shall have the right
to decide whether to authorize others to use his/her format
design. The term of protection for such design is 10 years,
starting from the time the format design is used and ending
at the end of the 10th calendar year thereafter.
b. Use of Works by Neighbouring Rights Holder. Under
the old law, a neighbouring rights holder can use works that
have been published without the consent of the original authors
as long as the user pays royalties to the original author. The
amendment provides that neighbouring right holders, with the
exception of radio or television stations, can only use works
upon receipt of the original author(s) consent.
The WTO Commitments
As mentioned at the beginning of this article, one week after the
promulgation of the amendment, the WTO admitted China as a member
country. In the accession agreement, China made the following commitments
on copyright protection for its accession of WTO:
- China will amend the Copyright Law, Regulations for Implementation
of the Copyright Law, and the Regulations for the Protection of
Computer Software upon its accession;
- China will grant national and Most Favoured Nation treatments
to foreign right holders regarding copyright and will ensure such
treatments are in full compliance with TRIPs;
- China will also clarify the payment system by broadcasting organizations,
rental rights in respect of computer programmes and movies, rights
of publication to public and related protections, and protection
of database compilations; and
- China will provide provisional measures in copyright protection,
increase the statutory compensation amount and strengthen the
measures against copyright infringements.
Based on the commitment and the amendment, two amendments to copyright-related
regulations are anticipated: the amendments to Regulations for Implementation
of the Copyright Law, and to the Regulations for the Protection
of Computer Software.
The amendment has met most of China's copyright-related commitments
of WTO. The new changes in the amendment make copyright protection
in China more closely compliant with the international conventions.
However, this is only another step in a long march towards a society
governed by clearly-defined rules and laws. It will take a significant
amount of time and further efforts for China to improve its law
enforcement against copyright infringements, and for the general
public to respect copyrights as intellectual property that cannot
be stolen.
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