Some in the West might assume that copyright law in China doesn't exist, but this is quite wrong. China has been a signatory to the Berne Convention on copyright since 1992 ...
China's copyright law was first enacted in 1990 and was revised and updated in 2001, 2010, and most recently in November 2020. It is the latter revision that we will look at today. The 2020 revision of the copyright law is set to take effect on June 1st 2021!
Hitherto, much uncertainty has existed when filing copyright lawsuits in China. However, the latest amendments are an attempt to bring clarity to this area of law while bringing it up-to-date in other ways.
The 2020 revision of the Copyright Law lists numerous activities that from June 2021 will be classed as copyright infringement, many of which parallel copyright law in other jurisdictions, such as the UK. Infringements will also mirror Economic and Moral rights that exist in most other countries with copyright protection.
Some of the acts that the new Copyright Law in China deems as an infringement are listed below:
- Reproduction: as in the UK, Chinese copyright law will not allow the reproduction of a copyrighted works where no consent or license has been granted by the rights holder.
- Distribution: the act of making the work available by selling, renting or lending without permission from the rights holder will be classed as an offence.
- Using intentional measures that will allow someone to circumvent copyright protection of a work will also be classed as an infringement. This also comes with an amendment that increases the amount of damages if the act is done so knowingly.
The new copyright law in China will also now acknowledge 'serious and wilful' infringement of copyright, although there is little knowledge as to how the courts will interpret these two elements in practice.
Alongside these changes, China is considering the implementation of a new administrative authority for copyright. There is no definitive indication yet as to how exactly this will work. However, there are similar authorities in place for China's trademark law, and, in consequence, one for copyright seems likely.
Copyright law in China, as in the UK, does not require any registration or notice. At the same time, similar to China's patent law, the 2021 copyright law amendments see a significant change to the burden of proof. The burden is now set on the defendant to evidence that they are not infringing the claimant's work, as a court will deem the author to be the rights holder unless evidence to the contrary is presented ... such as a usage license or a rights transfer agreement.
In short, from June 2021, the copyright law in China considerably strengthens the position of rights holders, making it easier for them to protect their content and control its use. It also makes unauthorized use riskier.
In such circumstances, it makes sense to secure a license before using their work.
If you feel inspired to find out more about anything we've said here, do call us on +44 1908 041290 or leave a comment below and I'll be in touch as soon as I can.