On 11 November 2020, the Standing Committee of the National People’s Congress passed the amendments to the China Copyright Law (the Amendments), which will take effect on 1 June 2021. This is the third time the Copyright Law has been amended since it was promulgated in 1990. The first comprehensive amendment took place in 2001, and in 2010 it was amended again in response to a WTO decision resolving a U.S. complaint. Since the first amendment in 2001, the Amendments are the first comprehensive and substantial amendments in almost 20 years. In addition to some cosmetic changes, the Amendments will strengthen the protection for the copyright owners. Set out below are a number of the key updates to the Copyright Law:
- The copyrightable subject matter has been expanded from “works in fields of literature, arts, natural science, social science, engineering etc.” to “original intellectual products in fields of literature, arts, and sciences that may be expressed in certain forms”.
- The former class of “cinematographic works” has been replaced with “audiovisual works”, which expands the copyrightable works to cover for example, live streaming sports broadcasts and other copyrighted programs.
- Fair use
- The condition to argue fair use of a copyrighted work has been tightened, from “not prejudicing the other rights enjoyed by the copyright owner by virtue of the Copyright Law”, to “must not conflict with a normal exploitation of the work nor unreasonably prejudice the legitimate interests of the copyright owner”.
- A new form of fair use is introduced to allow for copyrighted work to be made available to persons with print disabilities in an accessible format to them.
- A new catch-all provision is also introduced to allow other statutes and administrative regulations to specify other forms of fair use.
- Punitive damages of up to 5 times of the compensation has been allowed for willful copyright infringement in serious circumstances.
- The ceiling of statutory damages has been raised from RMB 500,000 to RMB 5 million.
- A compensation floor of RMB 500 for violators of the Copyright Law has been created.
The Amendments demonstrate China’s continued efforts to improve intellectual property and copyright protection. The amendment to allow the court to award punitive damages of up to five times is also consistent with its earlier amendments to the PRC Trademark Law in 2019. It remains to be seen how often this provision will be invoked before other Chinese Courts across China when the Amendments takes effect next year and how copyright owners will protect and enforce their legal rights under the Amendments.