Understandings of Revised Draft of the Copyright Law

On June 6th, 2014, the “Copyright Law of People’s Republic of China” (Revised Draft) (hereinafter called as “the Draft”), which was submitted to the State Council by National Copyright Administration (hereinafter referred to as NCA) for review, was published in www.chinalaw.gov.cn to solicit public opinions.

It is for the third time for the Copyright Law to be modified since 1982. In the revision notes, NCA points out that by the current Copyright law, it is not well done to fully protect copyrights, neither to effectively curb infringements nor to inspire the enthusiasm of originators. The authorization systems and trading rules are running not so smoothly that it is difficult to ensure the users to legally, expediently and effectively acquire the authorization and disseminate information. The Draft involves the integration of the rights’ systems, adjustments of authorization systems and trading rules as well as consummation of relief measures.

Important changes in the Draft are as follows:

Firstly, the penalty amounts will rise up to 5 times the illegal business turnover.

The Draft increases the penalty amounts, which rises up to 5 times the illegal business turnover from the former 3 times the illegal business turnover, or to 250,000 yuan from the former 100,000 yuan on the basis of the “Regulations for the Implementation of the Copyright Law of the PRC”. It also adds administrative law enforcement means by copyright administrative authorities, especially the power of seizure and sequestration.
Secondly, the term of protection for works of applied art will be 25 years.

To solve the problem of copyright determination in practice, the rights’ object, the rights’ content, the rights’ ownership and the protection term of copyright, etc. have been modified in the Draft.

In the Draft, “works” is defined asa legal provision, “works of applied art” is provided with 25 years term of protection; Film works and works created by a process analogous to cinematography are renamed as audio-visual works, the object “video recordings” of neighboring rights’ is canceled; “Computer software” is modified as “computer program” for protecting computer documents in terms of literary works.

The rights’ content in the Draft has been reintegrated as follows: the 17 rights under the existing Copyright Law are reintegrated into 13 rights, 4 rights including right of revision, right of showing, right of making cinematographic works, right of compilation are canceled, which will be covered by original work of authorship, right of performance, right of adaptation and right of reproduction; The broadcast right is renamed as right of “broadcast and play” to be applicable to disseminate in non-interactive ways including fixed time broadcast and live broadcasting cases in terms of network, while right of dissemination via information networks is applicable to disseminate works in interactive ways; For neighboring rights, performers’ right of rental and right of remuneration in return for their audio-visual performances are added as well as of phonogram producers’ right of remuneration in return for others’ performing and playing their phonograms; “Right of prohibition” enjoyed by radio stations and TV stations is renamed to “right of license” and so on. 　

The Draft embodies party autonomy principle, which includes the following changes: The ownership right in audio-visual works is legally regulated to prefer the principle of contract parties’ agreement to be vested in producers under the current copyright law, as well as addition of profit-sharing mechanisms among originators of audio-visual works; The ownership right in employees’ works is established with the preference of the principle of contract parties’ agreement, and the rights of the parties are prescribed under different legal situations; In order to solve the problem that when the carrier of original works loses, the exercise of right will be affected especially in the case of the carrier is unique, the protection provisions are imposed in the Draft for artworks of unique carrier.

In addition, according to requirements of relevant domestic organizations and regulations of relevant international conventions, photography workswill be protected within the originator’s lifetime and until fifty years after the death of the originator.　
Thirdly, to use the works in digital form is allowed in the Draft.

The protection of copyright and making works widely spread is kept in consistency in the Draft. Scientific, rational, standardized copyright authorization mechanism and trading rules are established with such main modifications as provisions of registration on copyright and neighboring rights, system guarantee provisions for both reducing risks of trading copyright and avoiding disputes of right ownership.
To effectively protect legitimate rights and interests of both parties of the contract and solve the problem of selling the same copyright twice during copyright transaction, new provisions on registering rights due to contracts of exclusive license and transfer are added with copyright transaction security.

According to relevant international conventions and opinions of social communities, five kinds of statutory licenses in current copyright law are adjusted with statutory license of reprinting in textbooks and statutory license of reprinting between newspapers and periodicals retained, two statutory licenses of radio and TV stations merged into one, the statutory license of recording canceled. Meanwhile, it is explicitly stipulated that the applicable conditions of the statutory licenses as well as the legal liability in case of breach of statutory duties.

In order to adapt to use massive works in the Internet and solve the issue in the particular case when the users need to use works from the internet but it’s difficult to find the copyright owners, correspond provisions are added to allow to use works in digital form after the users make applications and escrow usage fees to relevant agencies.

In order to give full play to the role of collective management system of copyright, copyright collective management system is optimized with strengthened social supervision and government regulation, not only giving best protection for rights of majority copyright owners who have no awareness of their rights, have no legislative discourse right and no right-safeguarding ability, but also help to solve the dilemma that the users can’t have possibilities to be authorized by great numbers of copyright owners who distributed widely though the users are willing to abide by copyright law to perform the obligation of paying remuneration through legal ways. (Revised by Shan Yuqiu, Translated by FanRong and Shan Yuqiu)