China’s New Copyright Law

In preparation for World Trade Organization entry, the Chinese Government made significant changes to its Copyright Law. The Amended Law was adopted on 27 October 2001 and took effect on the same day. Some of the major revisions to the Copyright Law are discussed below.

1.      Expansion of copyright works

The Amended Law effectively offers protection to the following works:

1.  works of foreign nationals and persons without nationality, whose national countries or countries of domicile are signatories to agreements with China or any international treaties to which China has acceded;

2.  works first published in China; and

3.  works first published in a signatory country or first published simultaneously in a signatory country and a non-signatory country.

With regard to types of copyright works, the Amended Law extends protection to works of acrobatic art, architectural works and works of compilation or databases having originality in the selection and arrangement of their contents.

2.      Rights of copyright owners

The right of exploitation and the right to be remunerated provided under the previous law have been expanded into seventeen rights, including the right to publish, the right to be identified, the right to reproduce, rent, exhibit, broadcast, perform, transmit through computer information network, translate, compile etc.

 

3.      Assignment of copyright

The previous law did not permit assignment of copyright. Except for the right to publish, the right to be identified as the author, the right to amend and the right to protect the work against derogatory treatment, the Amended Law permits assignment of copyright.

 

4.      Cinematographic works

The copyright in cinematographic works vest in the producers but the scriptwriter, director, photographer, lyricist, songwriter enjoy the right to be identified and the right to be remunerated according to the contract with the producer.

5.      Broadcast of published sound recording works

Television broadcasting and radio stations may broadcast published sound recording works without the permission of the copyright owners but are required to remunerate the copyright owners.

 

6.      Collective administration of copyright

The Amended Law permits copyright owners to authorize organizations for collective administration of copyright to exercise their rights. The authorized organization may exercise the rights of the copyright owners either in the name of the copyright owners or in its own name. The authorized organization shall have the right to engage in litigation and arbitration proceedings.

The organizations shall be non-profit making organizations. The manner of their establishment, their powers and duties, the manner of collection and distribution of license fee, their supervision and control shall be prescribed separately by the State Council.

 

7.      Damages for infringement

The amount of damages payable should represent the loss actually suffered by the copyright owner. In the event that it is difficult to quantify such loss, the amount of damages payable shall represent the amount of wrongful gains made by the infringer. The amount of damages payable shall include the reasonable cost and expenses incurred by the copyright owner in restraining the infringement activities.

If neither the loss suffered by the copyright owner nor the wrongful gains made by the infringer can be quantified, the amount of damages payable shall be determined by the court and the court has the power to order payment of damages of not more than Rmb 500,000.

8.      Preliminary injunctions

If there is evidence that an infringer is or is about to engaged in infringing acts and the loss which may be suffered by the copyright owner is irreparable, the copyright owner may prior to issue of legal proceedings, apply to the court for a preliminary injunction order to restrain the infringing acts and an order to preserve the infringer’s property.

Further, if it is likely that the evidence of infringement may be destroyed or may not be retrievable subsequently, the copyright owner may prior to issue of legal proceedings, apply to the court for an order for preservation of evidence. The court is required to decide on the application within 48 hours. The court may require the provision of guarantee by the copyright owner.

The court may discharge an order for preservation of evidence if the copyright owner does not issue legal proceedings within 15 days after the grant of the order.