Guest post by OUYANG Yini, JD and JM candidate at PKU STL.
Recently, one of the most remarkable hot news, occurred in the IP field in China: the latest amendment of the Copyright Law. This Third Amendment to the Copyright Law was adopted on 11 November 2020 and will become effective on 1 June 2021. The legislature makes many changes in the new version of the Copyright Law, which may lead to vigorous debates among the legal profession. The purpose of this blog is to give a brief introduction to some of the most significant modifications in this new reform of China’s Copyright Law.
I. The range of protectable works is largely expanded
Previously, eight protectable forms of works were rigidly enumerated in the old Article 3, with the catch-all provision providing that “other works as provided in laws and administrative regulations” could also be protected. However, the catch-all provision has not been triggered so far, therefore when courts confront an emerging form of work sought to be protected under Copyright Law, the judges must interpret the emerging work into one of the eight categories, otherwise such work is not copyrightable unless the laws or administrative regulations have had been developed to cover it.
The situation is different now: the new Article 3(9) gives an open-ended definition that “works … shall refer to ingenious intellectual achievements in the fields of literature, art and science that can be presented in a certain form,” reflecting two fundamental elements globally recognized for copyright law protection, namely originality and expression. Accordingly, the revised catch-all provision is now reading “other intellectual achievements that meet the characteristics of works,” which gives judges much more discretion to determine whether or not an emerging type of work is copyrightable.
Five fingers, five highlights
II. Audiovisual work is introduced into the Copyright Law
Another eye-catching change is that “cinematographic works and works created by a process analogous to cinematography,” an explicitly enumerated category, is replaced by “audiovisual works”. This replacement is able to expand the scope of protection to include works created in a way different from cinematography, including online game graphics, short videos, etc. The remaining questions are that the new version of the Copyright Law does not clearly define what constitutes audiovisual works, and the relationship between audiovisual work and video recording is confusing since video recording is protected by neighboring rights in Chapter 4 of the Copyright Law. A further interpretation is necessary.
III. Right of broadcast is broadened
The right of broadcast is redefined to incorporate cable broadcasts, no longer emphasizing that the initial dissemination of works must be in a wireless form. Before this amendment, only wireless broadcasts were protected. Hence, many behaviors during live webcast may infringe the right of broadcast, such as covering songs without permission.
IV. Regulation of collective work is added
The Second Amendment of the Copyright Law only states that a co-author enjoys copyright in his own contribution if the collective work is separable, but does not mention what to do if the collective work is not separable. The new added clause provides that a co-author of an inseparable work could enforce copyright regarding the whole work, except for transferring, exclusively licensing and pledging, but the profits shall be shared with the other co-authors. Such regulation promotes the dissemination of works to the public, otherwise many great works would not even be created because the co-authors could not agree on the exploitation conditions and works that are finished would be kept from the public because the co-authors have different opinions concerning exploitation.
V. Punitive damages are incorporated
As both Trademark Law and Patent Law have incorporated punitive damages clauses, it is not surprising that punitive damages will also be included in the Copyright Law, and it marks that the system of punitive damages is established in the IP field in China. The plaintiff has to prove that the defendant’s conduct was in bad faith and the infringement serious.
OUYANG Yini