New Changes to Copyright Protection in China

• the copyright protection provided by the amendment attempts to meet the demands of a modern "digitalization" 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.

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 I T

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 is 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:

• the infringers;

• the publishers and producers of a reproduction who cannot prove the legal right or authorization for their reproductions; and

• the publishers and lessors of reproductions of films, software, video and music tapes who cannot prove the legal sources of their reproductions.

Damages shall be calculated based on the following:

• the actual losses of the copyright owners;

• the illegal income of the violators, if the losses of the copyright owners are unusually difficult to calculate;

• the reasonable expenses of the copyright owners incurred for stopping the infringement, such as legal and investigation fees, shall also be regarded as part of the above compensation claims; and

• damages of no more than Rmb500,000, if both the losses of the copyright owners and the illegal incomes of the violators cannot be ascertained.

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 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 the nine-year compulsory education system. 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 to 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.