China releases second draft of amended copyright law

31 August 2020

On August 17, 2020, the National People’s Congress released the amendments to the copyright law (second deliberation draft) for comment. The deadline for comments is September 30, 2020 and the comments will likely focus on issues such as defining copyrightable works and the scope of fair use.

“Compared to the first revision, there aren’t many significant changes made in the second revision. As such, there may not be so many comments in by the public compared with the first revision and data on the Congress’ website reinforce this point,” expects Xiang Wang, partner-in-charge of Orrick’s Asia offices. “More than 50,000 individuals posted over 167,000 comments to the first revision, while as of August 26, 2020, only 49 individuals posted 117 comments to the second revision.”

While not many, there are significant changes between the first and the second revision

The definition of copyrightable works in Article 3. In the first revision, works are defined as “an intellectual achievement in the fields of literature, art and science that is original and may be reproduced in some tangible form” to “an intellectual achievement in the fields of literature, art, science and others that is original and may be expressed in certain form,” says Xiang Wang, partner-in-charge of Orrick’s Asia offices. “This change may lower the evidentiary burden on the existence of a copyrightable work and expands work to other fields outside of literature, art and science.”
In the list of various types of copyrightable works in Article 3, the catchall category of “other works as provided by laws and administrative regulations” in the first revision is now replaced by “other intellectual achievements conforming to the characteristics of works” in the second revision, Wang says. “This change would technically allow courts to recognize new types of copyrightable works that are not explicitly specified by law, thus giving both courts and copyright owners more legal space to enforce potential works that may be argued as within the protection scope of copyright law.”

In the second revision, Article 17 divides audio-visual works into three categories: i) cinematographic works, ii) television drama works; and iii) other audio-visual works, and sets different default rules in terms of copyright owners for the first two categories of audio-visual works and other audio-visual works. “Specifically, copyright in cinematographic works and television drama works is owned by producers who organize the production and assume responsibility of such works, while for other audio-visual works, general copyright ownership rules apply to works of joint authorship and works for hire,” he says. “In addition, for other audio-visual works that are neither works of joint authorship or works for hire, the ownership of copyright may be agreed between producers and authors. In the absence of such agreements, producers own the copyright, while authors have the right of attribution and are entitled to receive compensation. This is intended to address the issue on who owns the copyright of audio-visual works that may be the work product of joint effort between producers and authors.”

Article 54 now appears to lower copyright owners’ burden in proving the amount of damages. “In the first revision, right holders were asked to make every effort to present evidence to the courts before courts may order infringers to produce ledgers and materials relating to infringement. By contrast, the second version only requires a right holder’s discharge of necessary burden of proof as a prerequisite for courts to order infringers to do so,” he adds. “This revision is important since it provides the possibility for courts to shift the burden of proof to the infringers, given that China does not provide a formal discovery process.”

The second revision deleted Article 50 which was present in the first discussing administrative penalties against copyright owners for alleged abuse of copyright and copyright related rights that disturbs the order of transmission. “Similarly, alleged abuse of copyright by copyright owners was also removed from Article 4,” he says. “This appears to be responding to comments that the proposed penalties in the first revision were too harsh on copyright owners who had not been afforded with adequate protection of copyright protection to begin with.”

All in all, the second revision suggests a positive step towards enhancing copyright protection in China, where copyright infringement has been prevalent, he adds. “With the fast development of an online content providers industry today, China needs to strengthen its copyright law in order to provide a viable environment for the survival of this industry.”

Johnny Chan

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