Copyright infringement and remediesInfringing acts
What constitutes copyright infringement?
The Copyright Law offers a non-exhaustive list of specific acts of infringement. In practice, the court would consider the following when judging a direct infringement: whether the acts committed are controlled under copyright; whether the acts are prohibited by the rights holder; and whether the acts cannot be admitted as an exception or limitation by the Copyright Law.
An infringement would be actionable if these three elements are all established.
Whether the acts are committed deliberately will only influence the amount of the damages but not infringement liability.Vicarious and contributory liability
Does secondary liability exist for indirect copyright infringement? What actions incur such liability?
Although there is no secondary liability for indirect copyright infringement clearly laid down in the Copyright Law, the Interpretation of the Supreme People’s Court Concerning Several Issues on Hearing Cases in Internet Copyright Disputes provides for secondary liability for indirect infringement over a network. In addition, this secondary liability is also actionable under Chinese Tort Law. Article 9 of the Tort Law states that, ‘One who abets or assists another person in committing a tort shall be liable jointly and severally with the tortfeasor.’ Thus, secondary liability for indirect copyright infringement would be incurred when one abets or assists in direct copyright infringement.
In practice, courts seem to believe that a preparatory act leading to a direct infringement or an act that would increase infringement damages may also incur secondary liability.Available remedies
What remedies are available against a copyright infringer?
China has a two-track protection system. On one track, the copyright owner may file a complaint with the local copyright administration and enforcement department, requesting the enforcement of administrative measures against the infringer, including an order to stop infringement and the imposition of a fine.
Alternatively, the injured party may bring a lawsuit against the copyright infringer that includes a request for the cessation of infringement, the elimination of adverse effects, an apology, and compensation. When filing legal proceedings, the rights owner may request an order for the cessation of infringement and the preservation of property, if they can present preliminary evidence to prove that the defendant is committing or is about to commit copyright infringement that will likely cause the rights owner irreparable harm unless prompt action is taken.
Further, if criminal liability is involved, the rights owner may also make a report to the police.Limitation period
Is there a time limit for seeking remedies?
Yes. The General Principles of Civil Law of the People’s Republic of China provide that the period of limitation of actions for the protection of civil rights is two years. Accordingly, the Interpretation of the Supreme People’s Court Concerning Several Issues on the Application of Law in Adjudication of Civil Cases Involving Copyright states that the time limit for seeking remedies in copyright infringement actions is two years.
The General Rules of the Civil Law of the People’s Republic of China effective on 1 October 2017 changed the time limit for seeking remedies from two years to three years. Therefore, the time limit for copyright infringement actions is also three years starting from the date when a copyright holder knows or should have known of the infringement. In cases where the copyright holder initiates a lawsuit after three years and infringement is still ongoing, the court will, within the protection period of the copyright, order the defendant to stop its infringement and pay damages that covers the three years preceding the date when the copyright holder initiated the lawsuit.
Furthermore, in some circumstances general limitation periods for civil cases in China can be reset. Those circumstances include:
- the rights holder requesting a performance;
- the obligor agreeing to fulfil its obligations; or
- the rights holder suing or seeking arbitration, or other similar circumstances arise.
Are monetary damages available for copyright infringement?
Yes. Article 49 of the Copyright Law stipulates that monetary damages shall be paid in terms of the actual losses suffered by the rights owner, or the amount of the unlawful gains of the infringer when the actual losses are difficult to calculate.
Damages are based on a combination of the level of fault exhibited by an infringer, the rights holder’s losses, the infringer’s proceeds and other factors. The order of application for methods of assessing damages is:
- the actual loss suffered;
- illegal proceeds; and
- statutory damages.
If losses or illegal proceeds cannot be accurately proven, the court may determine damages on a discretionary basis, which may be higher than the maximum statutory damages. If losses or illegal proceeds cannot be accurately proven, and they cannot be determined, statutory damages will apply. Statutory damages are capped at 500,000 yuan.
Damages are not generally available for infringing moral rights. However, in circumstances where severe moral damages are sustained that cannot be remedied by the cessation of infringement, the courts may award compensationAttorneys’ fees and costs
Can attorneys’ fees and costs be claimed in an action for copyright infringement?
Yes. Compensation shall include the reasonable expenses that the rights owner has paid for stopping the infringement, which would include reasonable attorneys’ fees and costs such as notarisation fees. The court usually exercises discretion on how much is deemed reasonable to cover attorneys’ fees.Criminal enforcement
Are there criminal copyright provisions? What are they?
Yes. Article 48 of the Copyright Law states that criminal liabilities shall be investigated in accordance with law where a crime is constituted. In the Criminal Law, Article 217 declares that whoever, for the purpose of making profits, commits any infringement on copyright shall, if the amount of illegal gains is relatively large, or if there are other serious circumstances, be sentenced to fixed-term imprisonment or criminal detention and shall also, or shall only, be fined.Online infringement
Are there any specific liabilities, remedies or defences for online copyright infringement?
Yes. The Regulation on Protection of Information Network Transmission Right focuses on the online copyright infringement issue. Specifically, notice-takedown procedures have been introduced in this Regulation.
Where a rights holder believes there has been online infringement, he or she may notify the network service provider in writing and request that network service provider to delete his or her copyrighted works, performances, audio and video products or to remove the links to such works, performances, audio and video products. Upon receipt of the notice from the rights holder, the network service provider should immediately delete the allegedly infringing content or remove the links to the allegedly infringing content, or they may be held liable for infringement.Prevention measures
How may copyright infringement be prevented?
Rights holders may adopt technical measures to prevent their information network transmission rights from being infringed. It is forbidden to intentionally avoid or destroy such technical measures. Entities may not intentionally manufacture, import or provide devices or parts used principally for the avoidance or destruction of technical measures, and shall not provide technical services for others to avoid or destroy technical measures.