Comments to the NPC on the Amendments on the Copyright Law

2020-06-13 | Beijing, Shanghai

The draft Amendment to the Copyright Law has the positive effects upon the copyright protection and has reflected China’s determination to strengthen copyright protection in the digital era, which reflects into the following aspects:

I.                 Revise the description of some concepts/terms in the Copyright Law, for example clearly defining the copyrighted works must be “originally created” and can be “replicated in a certain tangible form” (Article 3); revising “film and works created using methods similar to film making” to “audio-visual works” (Article 3 and other related Articles), revising “citizens” and “other organizations” to “natural persons” and “unincorporated organizations” respectively (Article 2 and other related Articles);

II.               Add the new copyright administrative systems, for example, adding the provision of “register the works with the competent copyright

             authorities of the State” (Article 3);

III.              Increase the punishment against the copyright infringement, for example, adding the provision of “against the abuse of copyright” (Article 50); increasing the maximum of statutory damages to 5 million RMB (Article 53).

IV.              It both empowers and regulates the role of collective copyright management organization under Article 8;

V.               It introduces the Three Step Test to define where the “limitations of rights” end under Article 22;

VI.              It empowers stronger administrative enforcement under Article 54.

However, recent years have seen the abuse of the "Rights Restrictions" clause under the name of "fair use" to conduct infringement. Moreover, the rapid development of Internet technology has increased and expanded the speed and breadth of the spread of such infringing content. This would undermine the creativity and investment of rights holders and removing the incentives for the creation of the works in the first place.

Firstly, there are serious concerns regarding the general limitation of a copyright owners’ exclusive rights by the amendment of Article 4 and power of the competent copyright administration to impose fines on the copyright owner for exercising its exclusive rights in certain circumstances as set out in Article 50. Any provisions concerning abuse, should they exist at all, would more appropriately appear in China’s Anti-Monopoly Law and should include clear conditions for an act of an exclusive right holder to constitute market abuse. We do not see the justification for inclusion of such a provision in the copyright law.

Secondly, while we welcome the effort to expressly include the Three Step Test in Article 22, the reference is incomplete as it only identifies two prongs of the three-step test. Strict adherence to the Three Step Test is absolutely critical; this means compliance with all three limbs of the Three Step Test, i.e. that: (i) limitations or exceptions are confined to certain special cases which (ii) do not conflict with the normal exploitation of the work and (iii) do not unreasonably prejudice the legitimate interests of the right holder.  We recommend revising Article 22 to state all three prongs.