A highly controversial clause in an amendment to China’s Copyright Law that would hand regulators great power was significantly played down when lawmakers passed the final version this week.
The proposed provision within Article 4, which covers literary and artistic properties, as well as scientific works such as computer programs, was intended to prevent copyright owners from hindering the “normal distribution of works” and “harming the public interest”. This triggered strong opposition from legal experts, and did not make it into the final version of the law.
The amended Article 4 stipulates that the exercising of rights by copyright holders and copyright-related rights holders “must not violate the Constitution and laws, and must not harm the public interest”, excluding the proposed provision that said copyright holders “must not affect normal communications of works by abusing their rights”.
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If the provision had been included in the final version, copyright owners could have been subject to a complaint if they did not share access to their property, as they could be viewed to be preventing “normal distribution”.
Law experts had unanimously argued that such an allowance did not exist in any other international conventions or treaties, and they warned that it could have significant legal ramifications if it were adopted.
The new amendment also stipulates that penalties for intentional infringement include the “confiscation of illegal gains” and a fine of up to four times the value of the gains if the abusive use of the copyright “disturbs the order of the dissemination”.
In addition, the amendment set 500 yuan (US$75.60) as the lowest compensation for a loss by copyright holders if the actual loss of the right holder, the illegal income of the infringer, and the royalties are difficult to calculate, and the ceiling for compensation that pirates can face has risen to 5 million yuan (US$755,600) from 500,000 yuan.
The amendment also extends the policing of copyright down to county-level copyright offices, meaning local authorities could make administrative judgments outside the normal practice of perusing disputes through judicial channels. Local copyright offices are granted the power to confiscate illegal income; destroy infringing products and equipment used to make the products; and fine the infringer.
Zhang Hongbo, the director general of the China Written Works Copyright Society, said the new amendment will effectively curb any potential infringement and piracy, and will significantly enhance rights holders’ awareness of the protection of their rights.
The newly revised copyright law will certainly play its due role in the economic and social development of [China] in the new era
“The scientific and technological progress and social development have brought many new problems and challenges, and the Copyright Law still lagged behind after the previous two amendments [in 2001 and 2010] … The newly revised copyright law will certainly play its due role in the economic and social development of the country in the new era,” Zhang said in a commentary this week.
Jiarui Liu, a professor specialising in intellectual property and technology law at the University of San Francisco, said the 2020 Amendment to the Chinese Copyright Law is essentially the first comprehensive amendment to the law since 2001.
Those amendments in 2001 and 2010 came after the law was promulgated in 1990. The amendment in 2001 was made to comply with requirements for China’s accession to the World Trade Organization (WTO), and the amendment in 2010 was simply to comply with a WTO ruling that required China to remove any censorship approval as a prerequisite for copyright protection.
“The 2020 Amendment, for the most part, brings cosmetic changes to the extent that it incorporates existing provisions in various regulations in copyright areas, including the Regulations for the Implementation of the Copyright Law (2002) and the Regulations on Protection of the Right of Communication through Information Network (2006),” Liu said in a note on Thursday.
The new changes to the Copyright Law were passed on Wednesday by the Standing Committee of the National People’s Congress, the country’s top legislative body. They will go into effect on June 1.
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