On 6 June, the State Council Legal Affairs Office published a new draft to revise the Copyright Law (h/t China IPR). This is the third draft that has been published, reviving an process that had fallen someway out of the spotlight during the turbulent first year of the Xi administration. The State Council is accepting responses and opinions concerning this draft until 5 July. After this, it will conceivably be sent to the National People’s Congress for further reading. I am currently comparing the new version with the second revision draft, published by the National Copyright Administration in 2012, and will publish a full translation and comment in due course. In the mean time, the State Council’s accompanying explanatory document is translated below.
Explanation of the “Copyright Law of the People’s Republic of China” (Submission Version of the Revision Draft)
In order to smoothly carry out the revision work of the Copyright Law, the National Copyright Association has established a special “National Copyright Administration Leading Group for Copyright Law Revision Work” and a “National Copyright Administration Expert Committee for Copyright Law Revision Work”, these broadly solicited opinions and suggestions from all walks of society concerning work to revise the law, and have entrusted three education and research work units that are relatively influential domestically in the area of copyright to draft separate expert suggestion drafts for the revision of the Copyright Law. After the first versions of the Copyright Law Revision Drafts were created, the National Copyright Administration solicited opinions respectively from the social public, legislative, judicial and administrative departments, as well as corresponding social organizations, through its official website and special letters, it organized or participated in specific conferences directed at soliciting opinions in specific areas, specific sectors of specific departments, and heard suggestions and opinions in face-to-face meetings with relevant interested subjects. More than a year ago, on the basis of broadly listening to the opinions of the social public and domestic and foreign relevant organs, and through repeated research, analysis and argumentation, it created the “Copyright Law of the People’s Republic of China” (Submission Version of the Revision Draft) (hereafter simply named Submission Version”). Hereby, the relevant content from the Submission Version is explained as follows:
Concerning the necessity of the revision
Copyright law is an important component part of the Socialist legal system with Chinese characteristics, it is the basic norm to regulate property and personal relationships in the process of creation, dissemination and use. Since our country’s current Copyright Law took effect on 1 June 1991, it has had a positive role in encouraging intellectual creation, protecting the rights of authors, stimulating the development of the cultural industries and satisfying the spiritual and cultural demands of the popular masses, generally speaking, it is a good law.
However, in the 22 years since the Copyright Law took effect, the international and domestic circumstances in which our country finds itself have seen profound change, first that our country successfully realized an economic transformation and a social change of tracks, it established the Socialist market economy system, a pluralized structure of social interests has been basically created, and copyright has become more respected; second, global science and technology has developed swiftly, the rapid development and broad use of digital and online technology has changed the ways in which works are created and disseminated, and traditional copyright protection systems face new challenges; third, economic globalization has further deepened, and intellectual property rights – including copyright – have become important vehicles of international trade, as a member of the World Trade Organization, in handling international trading affairs, copyright protection has become an unavoidable and important issue; fourth, since reform and opened up, and especially since entering the new century, our country’s development concepts have seen profound change, strategic policy decisions have been made, such as persisting in the scientific development view, building an innovative country and moving the grand development and grand flourishing of culture forward, the role of intellectual property rights – including copyright – in transforming economic development methods, raising the country’s core competitiveness and stimulating the grand flourishing and development of culture has become more prominent every day. In the face of new trends, new circumstances and new changes, even though the current Copyright Law has been revised twice in 2001 and 2010, it is constrained by its passivity and departmentality, it has not been able to completely reflect and embody the profound changes in our country’s economy and society, the current copyright law “insufficiently protects copyright law, it is difficult to effectively restrain acts of infringement, it insufficiently stimulates the vigour of creators; copyright licensing mechanisms and trading rules are not smooth, it is difficult to guarantee that users are able to gain authorization lawfully, conveniently and effectively, and to disseminate and use works”, these two main contradictions have not been effectively resolved. Because of this, in order to respond to the new trends, new circumstances and new changes of our country’s economic development, technological progress, cultural flourishing, deepening of reform and opening up, and our enhanced intentional position, it is urgently necessary to carry out an active and comprehensive revision of the current Copyright Law.
II, Concerning the main content of the revision
In this revision of the Copyright Law, we have based ourselves on the basic national condition of being in the primary stage of Socialism, upheld the idea of “broadly pooling wisdom and resolving problems”, followed by the principles of independence, balance and internationalization, strived to resolve prominent problems that exist in the reality of copyright protection in our country, and persisted in creating the draft under conditions of openness and transparency.
The Submission Version will revise the current six chapters and 61 articles of the Copyright Law into eight chapters and 81 articles. The main content revisions include:
(1) Encouraging creation, integrating the rights system.
In order to resolve the problem of copyright definitions in practice, the Submission Version has revised aspects such as the objects of rights, the content of rights, the ownership of rights, the protection period of rights, etc., which are mainly manifested as:
1. Concerning the objects of rights. The Submission Version upgrades the definition of works in the “Implementation Regulations of the Copyright Law” into legal provisions; it changes the term “cinematographic works or works that are created in a way similar t cinematography” into “audiovisual works”, and deletes the provisions concerning the object “audio works”, computer files are protected as written works.
2. Concerning the content of rights. The Submission version re-integrates the content of rights, first, it simplifies the items listed under “personal rights” and “property rights”, but does not reduce their powers and functions, it even slightly enhances them, second, it redefines the boundaries of rights by starting from practice. The main revisions include: first, the seventeen types of rights in the current Copyright Law are re-integrated into thirteen types, the four types of right to revision, right to screen, right to produce films and right to compilation are abolished, their powers and functions are covered respectively by the right to protect the integrity of the work, the right of performance, the right to alter and the right of duplication; second, the right of pursuit is added (the wording ‘right of pursuit’ is not present in the Submission Version), at the same time, in consideration of the fact that its essence is the right to demand remuneration, and is different from the basic rights in copyright, it has been listed as an individual clause; third, the right of broadcast is revised into a right of transmission, which applies to the dissemination of works through non-interactive means, in order to resolve questions in practice about fixed-time transmission online, live transmission, etc., fourth, performers’ right to rental as well as a right to remuneration in their audiovisual performances are added, increasing the right to remuneration that recording creators have over other persons’ use of their recorded works by way of performance or transmission, the rights that radio and television stations enjoy are changed from a “right of prohibition” to a “right to licence”, etc.
3. Concerning the ownership of rights. The Submission Version reflects the principle of parties’ “autonomy of will”, the main revisions are: first, the statutory ownership of rights in audiovisual works in the current Copyright Law belongs to producers, this is adjusted to giving priority to agreements between the parties, at the same time, mechanisms are added for the producers of audiovisual work to enjoy their interests; second, the principle of priority for agreement between parties on the ownership of rights in works created in the course of a profession is established, and at the same time, rights for counterparts have been created in view of different statutory circumstances; third, in order to resolve the problem that, under the specific condition where an original copy is the only carrier of the work, the destruction of the original copy may influence the exercise of copyright, provisions for copyright protection of fine art works that are unique carriers have been added.
4. Concerning the term of protection for works. On the basis of the demands of related domestic organizations and related international treaties, the Submission Version changes the period of protection of photographic works to life plus fifty years.
5. Concerning the limitations of rights. According to international provisions, the scope of limitations of rights is suitably adjusted, and principle-based standards are added to limit rights.
(2) Stimulating use, adjusting authorization mechanisms and market transaction rules.
The consistency between protecting copyright holders’ rights and stimulating the broad dissemination of works has been maintained, and scientific, rational and standardized copyright authorization mechanisms and transaction rules have been established, changing the difficulty that on the one hand, copyright holders in our country cannot gain due respect for their rights, and on the other hand, users cannot obtain authorization to a large amounts of works through lawful channels, this is a focus content of this revision, the main revisions include:
1. On the basis of the social practice of copyright transactions in our country over more than two decades and international experience, provisions concerning the registration of copyrights and related rights have been added, in order to provide institutional guarantees to reduce copyright transaction risk and avoid disputes about ownership.
2. In order to effectively resolve the problem that “one right is sold twice” in the process of copyright law transactions, and realistically protect the lawful rights and interests of the counterparts in contracts, provisions on registration of rights in the process of concluding exclusive license contracts and contracts to transfer possession have been added, guaranteeing security in copyright transactions.
3. On the basis of related international treaties and opinions from various walks of society, the five kinds of statutory copyright licensing in the current Copyright Law are adjusted, the statutory licence for reprinting textbooks, newspapers and periodicals is maintained, the two statutory licenses for radio and television stations are merged into one, and the statutory licence for recordings is abolished. At the same time, provisions concerning the application of statutory licenses, and the legal liability for violating statutory obligations have been clarified.
4. In order to respond to the demands of the vast use of works in the digital network environment, and in order to resolve the reality that under specific circumstances, searching for copyright holders is fruitless but works still need to be used, corresponding provisions were added that permit users to use works in digital form after applying with relevant bodies and posting a use fee.
5. In order to fully give rein to the role of collective copyright managing institutions, and to protect the rights and interests of broad rights holders who are the greatest in number but “do not have a consciousness of protecting rights, do not have legislative discourse, and do not have the capacity to protect their rights”, as well as to eliminate the difficulty that users “are willing to respect the law, are willing to gain authorization for works through lawful channels, and are willing to pay remuneration”, but cannot obtain authorization for a vast amount of works from the hands of rights holders who are “broadly scattered and great in number”, the Submission Version has optimized the design of collective copyright management institutions, and strengthened social supervision and government management.
(3) Strengthening protection, perfecting relief measures.
Striving to strengthen copyright protection strength and effectively preventing acts of infringements are focus points of this revision, the main revisions include:
1. Civil infringement elements are changed from an enumerative form in the current Copyright Law into a descriptive form, expanding the scope for copyright holders to defend their rights.
2. In order to clarify the civil legal liability of network service providers in practice, on the basis of the corresponding provisions of the “Tort Liability Law”, provisions on the civil liability of Internet service providers have been added.
3. The procedural provisions in the current Copyright Law concerning defining compensation amounts are revised into selective [provisions], which permits rights holders to choose between real damage, unlawful income of the infringer, a reasonable multiple of the rights transaction fees or an amount of 1 million Yuan or less. At the same time, compensation amounts have been increased, punitive damages have been added, and the evidentiary burden of infringers have been appropriately enhanced.
4. In the area of administrative legal liability, on the basis of the demands of administrative copyright law enforcement practice, the value of fines have been raised on the basis of the provisions of the “Implementation Regulations of the Copyright Law”, the multiplier of fines has raised from three to five times the illegal business volume and from 100.000 Yuan to 250.000 Yuan, on the other hand, administrative copyright management law department law enforcement measures have been added, in particular the powers to seal up [premises] and detain [goods].
5. Other revisions: the provisions in the current Copyright Law concerning the fact that a good will holder of computer software may continue to use the programme after the payment of a reasonable use fee are changed into an obligation for them to again obtain authorization before usage may continue; this broadens the scope to infer fault with the user of works; in order to mitigate the problems that copyright cases are many in number, rapid in speed and great in pressure in practice, and fully give rein to the superiority of administrative copyright management departments’ specialization, efficiency and convenience, provisions concerning administrative copyright dispute mediation are added.
(4) Scientific standards, perfecting layout and structure.
On the basis of considering our country’s other intellectual property laws and in view of the legislative outline of other countries and regions, the Submission Version carried out an adjustment and perfection of the structure and layout of the current Copyright Law, the main revisions are:
1. Adding chapters and sectors. For instance, two chapters on “limitations of rights” and “technological protection measures and rights management information” were added, as well as a section on “collective copyright management”. Among these, the “limitations of rights” were upgraded from a section in the current Copyright Law to a chapter, the chapter on “technological protection measures and rights management information” and the section on “collective copyright management” were added.
2. Revision of the names of some chapters and sections. “Publications, performances, audiovisual and broadcasts” is renamed into “related rights”, and the titles of the corresponding section are changed from “acts” into “subjects”, for instance, “the publication of books and periodicals” is changed into “publishers”; “copyright licensing, use and transfer” is revised into “the exercise of rights”; “legal liability and law enforcement measures” is changed into “the protection of rights.”
3. Adjustment of the sequence of chapters and sections. In terms of the arrangement of chapters and sections, the Submission Version adopts an order in which rights (copyrights and related rights) come firs, then come the limitations of rights, the exercise of rights, technological protection measures and rights management information, and finally the protection of rights, this structure conforms more to the system and logic of the law.
4. Clear provisions have been made concerning linkages to other laws, these are mainly aimed at the criminal punishment of infringing acts, parties applying for pre-trial injunctions, preservation of assets, preservation of evidence as well as the judicial recognition of mediations and agreements, correspondingly, linking provisions have been provided concerning the application of administrative redress, administrative litigation and other such laws.
5. In view of the fact that the main content of the “Computer Software Protection Regulations” and the “Regulations on Implementing International Copyright Treaties” have been absorbed in the Submission Version, it is planned to abolish the “Computer Software Protection Regulations” and the “Regulations on Implementing International Copyright Treaties”.
III, Concerning the situation of opinion solicitation.
In this revision of the Copyright Law, the National Copyright Administration has persisted in legislating with open doors throughout, it has continued the legislative spirit of “scientific legislation, democratic legislation, concentrating the intelligence of the people, reflecting the popular will, and concentrating a consensus”, the entire legislative revision work has been carried out in the sunlight, with a rather high degree of social participation. In the process of creating the Submission Version, we have passed through two rounds of online solicitation of opinions from all walks of society, and have passed two rounds of solicitation of opinions of relevant legislative, judicial and administrative departments and related organizations in written form. At the same time as the second open solicitation of opinion from society, the National Copyright Organization organized or participated in more than 20 dedicated conferences oriented toward opinion solicitation aimed at specific areas, specific sectors and specific departments, and has head the opinions and suggestions of the State Administration of Press, Publications, Radio, Film and Television, the Ministry of Industry and Information Technology, the Chinese Federation of Cultural Circles, the All-China News Workers’ Association, the China Periodical Association, the China Film Directors’ Association, the Internet Society of China, the China Film Company, software companies and other such interested subjects and controlling departments. In the entire process of opinion solicitation, more than 1800 opinions of all kinds were received from at home and abroad.