China Laws and Regulations Update in November 2020

1.CopyrightLaw of China (Revised)

Promulgated by the Standing Committee of the National People’s Congress

Promulgation date: 1 November 2020

Implementation date: 1 June 2021

Document number: No.62 Chinese President Order

Major clauses revised this time are as follows.

I.Changes of relevant wordings and new rules and measures to meet practical needs

Changing movies and works created in a similar way of making a film to “audiovisual works”; creating rules on recordation of works, making the public accessible to information about owners of rights in works; changing wordings relating to the broadcast right to adapt to new technologies for simultaneous online broadcast and use of works; clearly stating that as owners of neighboring rights radio and IV stations have the right to broadcast through information network in “signals containing programs” they broadcast; adding provisions on technical measures and right control information to solve problems in protecting them online and offline as a whole.

II.Strengthening the administration of copyright related laws and punishment for acts of infringement

Allowing punitive damages of one to five times the amount of compensation for infringement in serious circumstances; increasing the upper limit on statutory damages from RMB 500,000 to RMB 5,000,000; adding a number of times a license fee to factors that should be considered for calculation of the amount of damages and adding rules on ordering people doing acts of infringement to provide infringement related books and materials.

III.Strengthening connections with other laws and performing obligations relating to international conventions signed by our country in recent years

clarifying the object of the leasing right which is originals or copies of audiovisual works and computer software; extending the term of protection of photographic works; providing in reasonable use clauses that “do not affect reasonable use or unreasonably damage legal rights of copyright owners of such works and making reasonable use clauses relating to blind also applicable to people who are not able to read; adding performers’ rights to grant licenses to lease audio and video recordings of their performance and be awarded for it; and adding audio recording creators’ rights to be awarded for broadcasting their recordings and of mechanical performance”.

(Source: Website of the National Congress)  

2.Veteran SupportLaw of the People’s Republic of China (Revised)

Promulgated by the Standing Committee of the National People’s Congress

Promulgation date: 1 November 2020

Implementation date: 1 January 2021

Document number: No.63 Chinese President Order

The law mainly contains eleven parts, including basic guidelines, principles and mechanism of support work, handover procedures, different arrangements and support measures, rules on arrangements for veterans, innovation in education and training, measures to support employment and startup, preferential treatment and support, award and incentive rules, capabilities as support service providers, supervision and administration rules and relevant laws, regulations and policies.

(Source: Xinhua News)

3.Regulations of the Supreme People’s Court on Evidence Used in Civil Actions for Intellectual Property Rights

Promulgated by the Supreme People’s Court

Promulgation date: 16 November 2020

Implementation date: 18 November 2020

Document number: L.I.(2020) No.12

The Regulations consists of thirty-three clauses, mainly improving evidence submission, obstruction and preservation and legal examination rules. It points out that if a party to a case with the burden of proof requests reasonably in writing a court order the other party to the case provide evidence under its control, the court should decide to order it provide the evidence. If a court legally requires a party to a case provide evidence and the party refuses to provide evidence without a good reason, provides false evidence, destroy evidence or take other action causing evidence useless, the court can presume arguments of the other party to the case based on the above evidence are acceptable. In addition, courts should preserve evidence to the extent that is necessary to fix evidence effectively and minimize loss of value of preserved items and its impact on business operation of people possessing evidence. The Regulations also clarifies confidential measures by courts and people with limited access to evidence. (Source: Website of the Supreme People’s Court)

4.Instructions of the Supreme People’s Court on Strengthening Protection of Copyrights and Related Rights

Promulgated by the Supreme People’s Court

Promulgation date: 16 November 2020

Document number: L.I.(2020) No.42

The Instructions points out that a natural or legal person or other organization whose name is shown in a work, performance or audio product in a usual way should be presumed to be copyright owner of the work, performance or audio product or owner of other right relating to the copyright unless otherwise evidenced to the contrary. It also notes the importance of new developments of technologies relating to the internet, AI and big data, identification of works of different types under copyright law, criteria for identification of works, legal and appropriate hearings of new types of cases such as live broadcasting of sport and online games and data infringement cases and sound developments of new industries. The Instructions clarifies issues relating to experimental simplified case handling procedures, treatment of illegal copies, materials and tools, full compensation for losses of persons whose legal rights are infringed, identification of criminal intent and actions in good faith. (Source: Website of the Supreme People’s Court)

5.Provisional Regulations of Examination of Concentrations of Operators

Promulgated by the State Administration for Market Regulation

Promulgation date: 28 October 2020

Implementation date: 1 December 2020                         

Document number: No.30 Order of the State Administration for Market Regulation

Regulations contains seven chapters of reports on concentrations of operators, examination of concentrations of operators, supervision and implementation of restrictions, investigations of illegal concentrations of operators, legal responsibilities, etc., clearly stating that the State Administration for Market Regulation should conduct a preliminary examination of a concentration of operators reported, decide whether to take further examination and send operators written notices within thirty days after the case is filed. Six factors including “the market share and power of control held by a concentration of operators in the related market” should be considered in the examination of the concentration of operators. Regulations also states that if operators in a concentration that will or could restrict or exclude competition make a plan for making a commitment to additional restrictions that can alleviate the adverse effect of the concentration on competition, the State Administration for Market Regulation can grant approval for such restrictions. (Source: Website of the State Council)

6.Instructions on Several Issues Concerning Improvement of Sentencing Procedures

Promulgated by the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of National Security and Ministry of Justice

Promulgation date: 5 November 2020

Implementation date: 6 November 2020

Document number: L.I.(2020) No.38   

The Instructions clearly states that courts should ensure the process of deciding what punishment should be given works as a relatively independent process during a hearing of a criminal case in court and public prosecutors should give appropriate opinions on what punishment should be given in the course of examining and bringing an action,

Based on the Criminal Proceedings Law and relevant legal interpretations, the Instructions gives detailed provisions on hearing and sentencing procedures that apply in cases where quick or simplified procedures apply and cases where general procedures apply and the defendant pleads guilty or not guilty. It provides that in cases where the defendant may be put under control or on probation. According to the Instructions, official investigators, public prosecutors and courts might entrust community rectification organizations or social groups concerned to conduct investigation and evaluation and give opinions which will be considered when deciding if the defendant should be put under control or on probation.

To ensure the defendant and the victim can exercise their rights relating to legal actions, Instructions allows them to take part in the process of deciding what punishment should be given and clearly states that in criminal proceedings the plaintiff, defendant and his/her advocate, victim and his/her attorney can give opinions on and reasons for what punishment should be given, which the public prosecution authority and the court should keep on record and include in case files. (Source: Website of the Supreme People’s Procuratorate)


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