On 11 November 2020 the Standing Committee of the National People's Congress adopted the third amendment to the Copyright Law, which is the result of decade-long legislative efforts of the Legislation Office of the State Council and the National Copyright Administration. The amendment will enter into force on 1 June 2021. This article provides an overview of the key highlights of the new law.

Key highlights

Making copyright subject matters open-ended

Article 3(9) allows other intellectual creations (those not enumerated in the preceding paragraphs of the article) with the features of works to be recognised as copyrightable subject matters.

Revising definitions

The new law revises certain definitions (eg, 'audiovisual works' and 'broadcasting right') to cover new fields and cater to technological development.

Enhancing compatibility of copyright law with other laws

The new law enhances the compatibility of copyright law with other laws (eg, replacing 'citizen' and 'other entity' with 'natural person' and 'unincorporated organisation' to align with the terminology adopted by the new Civil Code).

Aligning with international treaties

The new law aligns with international treaties (eg, incorporating 'the right of rental' into performers' right to comply with the Beijing Treaty on Audiovisual Performances).

Imposing heavier penalties on infringers

The amount of punitive damages cannot be less than one time but cannot be more than five times the amount of:

  • actual losses suffered by the copyright owner;
  • the infringer's illegal gains; or
  • the royalty of the copyright at issue.

The new law has also raised the ceiling of statutory damages from Rmb500,000 to Rmb5 million.

Specifying protection terms of certain rights

The right of publication of the works owned by a legal person or an unincorporated organisation expires on 31 December of the 50th year after the work's completion. This also applies to audiovisual works.

Comment

The Copyright Law has been in force for 30 years. The copyright landscape has changed drastically in the past decade, bringing a seismic shift to copyright subject matters in respect of creation form, transmission method and transaction mode. Copyright owners, industry organisations and the public have been weighing in on the draft of the third amendment, which seeks to balance internationalisation and localisation and the interests of industries and the public.

The amendment incorporates some provisions of the Beijing Treaty on Audiovisual Performances, which entered into force on 28 April 2020. For example, by replacing "movie works and works created by virtue of the analogous method of film production" with "audiovisual works" to streamline the classification of works and include the 'right of rental' in the rights of performance.

Most changes are welcomed by copyright owners, particularly with regard to:

  • the making of copyright subject matter open-ended to accommodate the fast-paced evolution of the technology and internet era;
  • the introduction of punitive damages; and
  • the raising of the ceiling of statutory damages to Rmb5 million to bring more deterrence to infringers.

However, concerns still remain. Article 53 confers the administrative agency with the authority of ordering correction, issuing warnings, confiscating unlawful proceeds and imposing fines. It is yet to be seen whether the judiciary will perceive the stronger (and more aggressive) administrative intervention as an encroachment of its authority. The shift of enforcement power could also pose new challenges to the administrative agency in respect of ascertaining copyright infringement and the efficacy in executing administrative punishment decisions.