A Brief Explanation concerning the Revision and Perfection of the “Copyright Law of the People’s Republic of China” (Second Revision Draft)
(National Copyright Administration, July 2012)
I, The basic situation of the Opinion-seeking Draft
On 31 March 2012, the National Copyright Administration published the “Copyright Law of the People’s Republic of China” (Revision Draft) through the official websites of the National Copyright Administration and the General Administration of Press and Publications, and openly solicited the opinions and suggestions from all walks of society. In early April, the National Copyright Administration legislative work leading small group chair, General Administration of Press and Publications Director and National Copyright Administration Director Liu Binje and legislative work leading small group vice-chair, GAPP vice-director and NCA vice-director Comrade Yan Xiaohong respectively sent letters to the responsible comrades of 35 relevant departments to solicit opinions in their personal name; the National Copyright Administration Secretariat sent letters to 40 relevant State Council ministries and commissions to solicit opinions.
The Draft attracted broad attention and heated discussion from all walks of society, relevant departments of Chinese and foreign governments, rights holders’ associations, the industrial world as well as education and scientific organs, etc., expressed their attention to the legislative revision work through all sorts of channels and means. After the opinion-seeking period ended (30 April 2012), the National Copyright Administration still incessantly received opinions and suggestions concerning legislative revisions from all sides. According to statistics, by 31 May 2012, the National Copyright Administration had received more than 1600 opinions and suggestions from all walks of society.
On 11 May 2012, the National Copyright Association convened the legislative revision work expert committee members and corresponding legislative and judicial departments, and organized the third expert committee meeting, reported the basic situation of the draft opinion-seeking, and heard the concrete opinions from the experts on articles in the draft and especially the controversial articles.
The National Copyright Administration, after completely and earnestly combing through the opinions and suggestions from all walks of society, classifying them and meticulously analysing their reasonability and repeatedly expounding their feasibility, and integrating the concrete opinions of the expert committee members, have further revised and perfected the draft, forming the present version.
II, The main content of this revision and perfection
This revision deletes three articles from the original draft (Article 39, Article 47 and Article 47), adds three articles (Article 20, Article 35 and Article 62), and modifies 48 articles, among these, 27 articles have undergone content modification, 21 articles have undergone language modification. In order to convenience all walks of society to understand the corresponding adjustments, hereby, the main content of this revision and perfection is briefly explained as follows:
(1) Concerning copyright content
This revision starts from the angle of further simplifying the content of rights, cleaning up the definition of rights as well as reducing the overlap and intersection of rights, and the following adjustments have been made to the content of copyright: (1) with reference to the legislative practice of many countries and regions worldwide, the right of screening is cancelled, and it is merged into the right of performance; (2) considering that the original draft’s constructions concerning broadcasting rights and information network dissemination rights have broadcast mediums and non-broadcast methods as basis, and cannot completely cover the present conditions and trends of technological development and especially “three network integration”, the right to broadcast will be applicable to non-interactive dissemination, information network dissemination rights are applicable to interactive dissemination, in order to resolve problems in practice of fixed-time broadcast, online streaming as well as relay, etc.; (3) considering that after the draft merges the right of revision into the right to preserve the integrity of the work, the right to revision of computer programmes has been added in the part on property rights, the right of revision of computer programmes is merged into the right to adapt, in order to avoid causing confusion and misunderstanding; (4) considering that the right of pursuit essentially falls under the right to receive remuneration, the right of pursuit is listed separately in one article (Article 12), and at the same time, with reference to legislation in other countries and regions worldwide, and to increase feasibility, the scope of the right to pursuit is limited to sales through auction or sub-selling activities.
(2) Concerning audiovisual works
Audiovisual works are collectively created works, their copyright protection mainly includes clarifying the two aspects of rights ownership over the audiovisual work itself and protecting all sorts of authors participating in the creation. Our country’s existing law does not provide for “secondary rights to obtain remuneration” of all sorts of creative authors of audiovisual works – meaning the right of all creative authors to obtain remuneration from subsequent use. This revision makes adjustments in the following three aspects: (1) based on the real situation in the industry, and with reference to legislation and practice in main countries and regions worldwide, ownership of the overall copyright over the audiovisual work is changed back from the provision permitting contractual agreement in the original draft into the provision in the existing law of directly endowing the producer; (2) it is clearly provided that the original authors the right to sign a name concerning audiovisual works; (3) it clearly provides that the five categories of original authors, screenwriters, directors as well as lyric and music writers enjoy the “secondary right to obtain remuneration” concerning subsequent use of the audiovisual work.
(3) Concerning fine art works with unique carriers
In recent years, after fine artworks exhibited in public venues were destroyed or torn down, it happened occasionally that copyright holders and owners of the original work would file cases in court, the fine art world, the judicial world, etc., also have often called for strengthening and perfecting legislation. Because of this, in order to respond to the calls from society, and resolve real problems, this revision will add a paragraph in Article 20 that on the one hand, limits the factual acts of disposition of the owner of the original work, and on the other hand clearly provides the applicable circumstances – it only applies to fine art works with unique carriers displayed in public venues, furthermore, if the parties have agreed otherwise contractually, this agreement is followed.
(4) Concerning “orphan works”
In order to resolve the difficulties of obtaining authorization for using works in a digital environment, the original draft added an “orphan works” authorization mechanism article. Considering that the provisions related to “orphan works” are legislative innovations, for the sake of caution, this revision has, on the basis of the draft and absorbing the opinions and suggestions from all walks of society, limited the scope of application of “orphan works” clearly to two circumstances: newspaper publishers conducting digitized reproduction of already published works in newspapers and periodicals, as well as other users reproducing works through digitized means or disseminating them to the public through information networks. At the same time, the fee storage organ is changed from the State Council administrative copyright management department into an organ appointed by the State Council administrative copyright management department.
(5) Concerning professional performances
Considering that in practice, there is an urgent need to resolve the question of the relationship between performers and performance work units, this revision, with reference to the provisions on professional works, has added provisions concerning professional performances in Article 35. The ownership of professional performances rights is to be agreed contractually by the parties, where the parties have no agreement or the agreement is unclear, ownership reverts to the performer. But in case of collective professional performances, such as theatres performing dramas, theatre troupes performing operas or choral works, and other performance activities, the rights revert to the performing work unit. At the same time, in order to guarantee the rights of the performance work unit, this revision also endows the performance work unit with the right to use performances within their professional scope free of charge.
(6) Concerning audiovisual performers’ rights
With reference to the provisions of Article 12 of the “Beijing Convention of Audiovisual Performance” passed on 26 June 2012 by the World Intellectual Property Organization diplomatic convention, and in order to maintain consistency with the abovementioned adjustments to the provisions on audiovisual work copyright, this revision endows the rights of performers in audiovisual works to the producer, and at the same time provides that the main actors enjoy the right to sign a name and the “secondary right to obtain remuneration.”
(7) Concerning the right of performers and audio producers to obtain remuneration for broadcast and performance activities of their audio products.
This revision has further clarified two sorts of circumstances concerning the right to obtain remuneration of performers and audio producers in Article 39: (1) broadcasting acts – using wireless or cable means to openly broadcast audio products or broadcasts disseminating audio works, as well as broadcasting of dissemination of the said audio works to the public through technological equipment; (2) performance acts – dissemination of audio works to the public through technological equipment.
(8) Concerning the rights of radio stations and television stations
This revision starts from the angle of promoting radio and television programme market trading and stimulating the development of our country’s radio stations and television stations, learning from relevant international treaties and the legislation in main countries, the following adjustments are made to the rights of radio stations and television stations: (1) the rights of radio stations and television stations are changed from rights of prohibition to exclusive rights; (2) on the basis of the above-mentioned adjustment of the content of the rights of broadcast and right of dissemination through information networks, and considering that non-interactive dissemination is already brought into the scope of control of the right of broadcast, Item 4 of Paragraph 1 of Article 38 of the original draft is deleted.
(9) Concerning the “fair use” system in copyright
What is called “fair use” refers to the system under which other persons using works that are protected by copyright under special circumstances, are permitted to not obtain permission from the copyright holder, and not pay remuneration to him, but must clearly indicate the origin of the work or the source. The “fair use” system is the basic system in relevant international treaties as well as copyright law in all countries and regions. This revision mainly makes the following adjustments: (1) an open provision on “fair use” is added – other circumstances, and at the same time, Article 39 of the original draft is merged into Article 42 of the new draft, to become Paragraph 2, limiting the circumstances of all 13 kinds of “fair use”; (2) the part on reproducing literary works for circumstances of using other persons’ works for individual study and research is clarified; (3) provisions concerning that using other persons’ works may not constitute using the main or substantive part of other persons’ works are added; (4) provisions on “information network” media are added in corresponding circumstances; (5) provisions concerning subsequent use of the results of modelling, painting, photographing or recording of outdoor artworks are added.
(10) Concerning the “statutory licensing” system in copyright
This revision contains the following adjustments to the “statutory licensing” system in copyright: (1) according to the opinions of rights holders, relevant collective copyright management organizations as well as corresponding organs, the “statutory licensing” system in copyright is further limited to the two circumstances of statutory licensing for educational materials and for reprinting in newspapers and periodicals, the provisions concerning statutory licensing for audio works in Article 46, and for statutory licensing for radio and television stations’ broadcasts in Article 47 of the original draft are deleted, and they are restored as the exclusive rights of the author; (2) concerning statutory licensing for reprinting in newspapers and periodicals, the parties are permitted to contractually agree on exclusive publishing rights, where newspaper and periodical publishers enjoy exclusive printing rights, other newspapers and periodicals may not reprint them, and at the same time, the period of the exclusive publishing right provided in Article 51 for where there is no agreement or the agreement is unclear is determined at one year; (3) it is clarified that users are to conduct a one-time filing before the first use, and the filing organ is adjusted to be the corresponding collective copyright management organization; (4) provisions that users may directly pay remuneration to the rights holders during a statutory period are added.
(11) Concerning the extended collective management by collective copyright management organizations
This revision further limits the scope of ability of collective copyright management organizations’ extended collective management: (1) literary, music, fine art or photographic works already published by radio stations and television stations; (2) music or audiovisual works disseminated to the public by self-service music selection operators through self-service song-selection systems. At the same time, the provision that rights holders may prohibit extended collective management in written form is preserved, and the provision that collective copyright management organizations treat all rights holders equally is added.
(12) Concerning technological protection measures and rights management information.
On the basis of the relevant provisions of the “WIPO Copyright Treaty” and the “WIPO Performances and Phonograms Treaty”, technological protection measures and rights management information are only applicable to works, performances and audio products. Given that the “WIPO Broadcasting Organization Treaty” has not yet been concluded, technological protection measures and rights management information is not applicable to radio and television programmes at present. But looking from the World Intellectual Property Organization consultations, at present, all member States basically have no disputes about this. Therefore, this revision expands technological protection measures and rights management information in Article 64 to radio and television programmes, and conducts revision over the corresponding articles.
(13) Concerning civil responsibility.
This revision makes the following adjustment to civil responsibility: (1) in Article 69, provisions are added concerning that where network service providers instigate or assist infringement, they bear joint responsibility with the infringer; (2) in Article 70, the civil liability that users shall bear for using works of rights holders who are not members of collective copyright management organizations, under the presupposition that it is hard for the copyright holder to exercise and control his rights and the user is willing to obtain authorization through lawful channels. In the aspect of bearing responsibility for compensation, of users have already concluded contracts with the relevant collective copyright management organization, then damage to the non-member rights holder is to be compensated according to the collective copyright management use fee standards; of no contract has been signed with the collective copyright management organization, then damage to the non-member rights holder is to be compensated according to the general civil infringement damage compensation principles. At the same time, Paragraph 2 of this Article provides that, in three sorts of circumstances where users maliciously use other persons’ works, the collective copyright management use fee standards do not apply for damage compensation, and the general civil infringement damage compensation principles shall apply. (3) In Article 27, the preconditions concerning statutory compensation are cancelled – the provisions on concocting copyright or related rights registration, exclusive license contract or transfer contract registration, at the same time, where there is wilful infringement two times or more, the punitive compensation is adjusted to be two or three times.
(14) Other content
This revision also further clarifies and perfects a number of provisions on the basis of the opinions and suggestions of all walks of society, such as the fact that mutual foreign-related protection principles are distributed across corresponding articles, that professional works created under employment in newspaper publishers or press agencies are limited to works created by journalists in the completion of their reporting duties, that performers are clarified to be natural persons, that the content of the information network dissemination rights of writers, performers and record producers is expressed uniformly, it is clarified that fee standard formulation organs for copyright registration and other matters are clarified, it is clarified that collective copyright management organizations are non-profit social organizations, and it is clarified that the all relevant State Council departments have supervision and management duties over collective copyright management organizations, etc.
The above explanation is provided for reference.