By Porter Anderson, Editor-in-Chief | @Porter_Anderson
Borghino: ‘Long-Awaited Reform’In its coverage of a third amendment Beijing has made to China’s copyright law, the International Publishers Association (IPA) reports that actual passage occurred on November 11 with June 1 specified as the date of the amendment’s implementation. IPA’s report was issued on January 27 and was part of the organization’s newsletter received this week by members.
In a statement for Publishing Perspectives, IPA secretary-general José Borghino says, “The IPA is pleased that the long-awaited reform of the Chinese copyright act has resulted in a strengthening of copyright in China.
“This is an outcome that we have been working toward for a long time.”
As described by Ben Wodecki in an article for Intellectual Property Magazine, the changes envisioned as a result of the action in November could result in “sizable increases for statutory damages, the introduction of punitive damages, and more consistent definitions among major changes in Chinese copyright law.”
Li Pengyi, speaking to IPA as a spokesman for the Publishers Association of China, is quoted, saying. “I think the new law will, from a legal perspective, provide Chinese publishing enterprises and authors with more powerful and professional support, and help them protect their rights and interests more comprehensively.”
As reported by Cissy Zhou for China Macro Economy, copyright proponents may feel they dodged a bullet on one provision that reportedly was removed in the amendment’s final draft. Zhou writes, “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.'”
But in her writeup, Zhou also says that an amended article of the measure “says the exercising of rights by copyright holders ‘must not harm the public interest’ nor ‘affect normal communications of works.'”
And—independent of the IPA report this week—it seems difficult to understand what the consequences of this new amendment may actually be on the ground until after its implementation in June.
For the world publishing industry’s commercial stakeholders, good copyright law is an indispensable requirement of business, hence its position as a major pillar of IPA’s work. Those stakeholders, both domestic and international, will be looking to discern what opportunities might surface, say, in collective licensing, when China’s amendment comes into force.
‘Measures to Defer Infringements’
In the IPA’s writeup, enforcement is a key issue to watch.
“The bill introduced significant advances to copyright enforcement in China,” the article reads, “long called upon and welcomed by the IPA and other publishing trade organizations.
“Notable steps are an increase in punitive damages to 5 million yuan (US$777,883), which is 10 times the amount set out in [a] 2010 version and new court orders to destroy infringing copies and the materials, tools, and equipment for the purpose of making such items. Another important outcome is the enhanced capacity of copyright administrative bodies to investigate cases, applying measures to deter infringements and preserve evidence, such as on-site inspection, seal-up and detention of suspected venues and items.”
What’s more, IPA says that in an effort to balance exceptions to copyright protection, the new law introduced a “three-step test to affirm the boundaries that must be taken into account to invoke a limitation or an exception to copyright protection.”
The IPA write on this concludes:
Beijing “conducted two consultations in 2020 before the final bill was approved. The second draft bill, published in the summer, no longer contained provisions enabling Chinese administration to pursue copyright owners for alleged abuse of rights, one of the main points opposed by IPA in our first submission.
“Important progress on strengthening enforcement was also achieved at the end of last year through decisions by China’s Supreme People’s Court and the National Copyright Administration of the People’s Republic of China. The decisions application in future criminal procedures eases the burden of proof for copyright owners by considering the copyright statement on the works is sufficient as evidence of ownership, absent counter-evidence.”
More from Publishing Perspectives on copyright issues is here, more of our coverage of the Chinese market is here, more on the International Publishers Association is here, and more from us on the coronavirus pandemic is here. Publishing Perspectives is the media partner of the International Publishers Association.