On the beginning of April 2012, the National Copyright Administration of China (NCAC) released the exposure draft for revision of China Copyright Law (the “Draft”) accompanied with the interpretations on the draft. Today, we are going to introduce you the revision. (the image is the cover of China Copyright Law)
(I) the works
(1) The original “cinematographic works” is revised to the “audiovisual works”, and the original “video recording” is deleted which will be protected as the audiovisual works;
(2) The “works of applied art” is added. By the Berne Convention, the works of applied art is added as a protective sort with the protection term of 25 years.
(3) The original “computer software” is revised to computer program, for the document could be protected as literary works and with no need for otherwise regulation.
(II) The content of copyright
The personal right: the Draft deletes the right of alteration with the right is now included in the right of integrity, therefore the personal right is reduced to the right of publication, the right of authorship and the right of integrity.
The property right: (1) The right of reproduction is extended to any methods with the digital one included in;
(2) The right of distribution is added with the way of other property transfer methods
(3) The object of the right of rental is added with the sound recording;
(4) The right of playing is added with cable casting, and the current name replaces the original “the right of broadcasting” for the avoidance of confusion;
(5) The right of communication of information on networks is extended from the current interaction way to the way of live broadcasting and rebroadcasting for the settlement of the problems of timing playing and rebroadcasting;
(6) The right of reproduction is deleted for the consideration that it could be governed by the right of compilation;
(7) The right of pursuit is added;
(8) The right of alteration to the computer program in the Regulations on the Computer Software Protection is added to the Draft.
(III) The orphan works
The “orphan works” refers to the copyrighted work for which the copyright owner cannot be contacted or the name of the creator or copyright owner of an orphan work may be known but other than the name no information can be established. The Draft regulates the principal articles for exploration that the applicant may use the works on the application to the copyright administration in the State Council and the drawing of the using fee.
(IV) The right of rental for the performer
The Draft adds the right of rental for the performer, namely the performer has the right to license others for reproducing, distributing and renting the recording of his/her performance or the recording’s copy.
(V) The right of playing for the performer and the sound recording producer
The Draft adds the article concerning the right of remuneration of the performer and the sound recording producer.
(VI) The radio & TV station
The draft also has the new regulation that the radio and television station has the right to prohibit any unauthorized rebroadcasting of its programs by networks.
(VII) The reverse engineering of the computer program
It’s explicitly provided in the Draft that the legal licensor of the computer program may reproduce and translate the information of the compatibility of the program, while it also regulates that the information detained hereby shall not be used for other purposes or for the infringement.
(VIII) The system of statutory license of the Copyright Law
The prior administrative record of statutory license, the fee payment through collective management organization and the labeling of origin are added to the Draft, while the regulation that “unless it’s declared not licensed for use in the statutory license” is deleted, by which the declaration made by the owner will not influence the statutory license excluding those made by the owner of the exclusive right of newspaper and magazine; the statutory license of textbook has a new license of graphic works; the license of reprinting is added with exclusive publication declaration; the statutory license for sound recording is adjusted to within the 3 months after the publication of legal sound recording product; the statutory license for sound recordings broadcasted in radio is now combine with the licensed broadcasting in radio and television station.
(IX) The extended collective organizational administration for the copyright
The Draft regulates the system of extended collective administration in principle, that means the collective administration organization with wide representation may be licensed by the copyright administration of the State Council for the extended copyright collective administration in the name of nonmembers.
(X) The dispute over the fee for the licensed using by the copyright collective administration organization
The Draft regulates that once there emerges the dispute over the fee for the licensed using by the copyright collective management organization, the dispute shall be arbitrated by the expert board of the copyright administration in the State Council.
(XI) The civil liability
The modification by the Draft in the civil liability mainly includes:
(1) It explicitly regulates the internet server purely providing the technology shall take no obligation on the examination concerning the copyright and other related rights, and also provides the procedure of deletion on notice;
(2) For the lawsuit charged against those users have paid the fee to the collective administration organization, the Draft has granted them the exemption for compensation but the fee payment and infringement stop are still demanded;
(3) The new regulation in the Draft also includes the multiple of the transaction expenses; for the right owner’s actual losses or the illegal income of the infringer is difficult to determine, therefore such shall be calculated by the multiple of the normal transaction expenses. The statutory compensation of the highest amount is increased to 1 million yuan.
(XII) Measures taken in copyright administration
The Draft adds the regulations on the measures enforced in the copyright administration, and especially the right of seal and detainment.
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Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
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