In recent years, the rapid development of technology, especially information network technology, has greatly transformed the cultural industry and has given rise to the emergence of new genres and changes in the way of communication. The Copyright Law needs to be continuously adjusted and improved to adapt to and promote the development of emerging cultural industries. As the Decision of the Standing Committee of the National People’s Congress (NPC) on Amending the Copyright Law of the People’s Republic of China was approved at the 23rd session of the 13th NPC Standing Committee on November 11, 2020, the newly-revised China’s Copyright Law is formally issued, which is a third amendment after the amendments in 2001 and 2010. To keeps pace with the developments of our times, the Third Amendment demonstrates major changes in three aspects: expansion of the scope of works, strengthened protection of right owners and intensified crackdown on infringement, which are briefly introduced and discussed below.
1. Adopting “audio-visual works” to define the subject matter accurately and relevantly
Under the current Copyright Law, practically a work has to be fixed in a medium to be identified as “a cinematographic work and works created by a process analogous to cinematography”. However, as the technology advances, new types of works like short videos and animations, which are not filmed or stored with conventional methods, are proliferating on the internet. The Third Amendment revises the wording “cinematographic and works created by a process analogous to cinematography” to “audio-visual works”, eliminating the limitation of filming method and medium to affirm that these new forms of works will also be within the protection scope of the Copyright Law.
2. Specifying concerned owners’ right to take technical measures to protect their works, infringers’ legal liability for circumventing the technical measures & the exemptions
The Third Amendment adds provisions on technical measures, supporting right owners to use technical measures to protect their copyrights and copyright-related rights and, with exceptions prescribed, prohibiting others from deliberately circumventing or destroying technical measures. The added provisions encourage the right owners to take legal measures to defend their rights and interests, which protects the creative enthusiasm of right owners while taking into account the legitimate use of the works by the public.
3. Elevating the maximum of statutory compensation to 5 million RMB & introducing punitive compensation
In practice, an infringer’s unlawful gains and a right owner’s actual loss in a copyright infringement disputes are hard to determine due to the difficulty in evidence collection. As the value of copyright becomes increasingly prominent in the era of information network, the maximum statutory compensation of 500,000RMB (approx. 76,000 USD) provided by the Second Amendment can no longer meet the needs of defending the right owner’s legitimate rights and interests. Moreover, since litigation can be taxing and expensive, the right owner often forgo defending his right after weighing the compensation against the litigation costs, and the infringing acts are thus left unstopped.
The Third Amendment defines a minimum compensation of 500 RMB (approx. 76 USD), augments the maximum tenfold from 500,000 RMB (approx. 76,000 USD) to 5 million RMB (approx. 760,000 USD) and states explicitly that the compensation should include the reasonable expenses paid by the right owner to stop the infringement. These revisions give incentive for right holders to defend their rights. In addition, for serious infringement, the Third Amendment introduces punitive compensation ranging from one to five times the amount of losses suffered by a right owner, profits earned by an infringer or that by reference to the exploitation fee. Compared with the Second Amendment, the new revision demonstrates the determination to crack down infringement acts, to increase the costs of violating the law and to deter the infringers.
While laws are increasingly lagging behind social development in the internet era, the making and amendment of laws as affairs of national significance still require extensive and repeated discussion and deliberation. The amended Copyright Law keeps up with the developments of our society and is more applicable to the solution of controversial issues appearing recently. It is believed that the Copyright Law will be further perfected with the progress of society and development of economy.
