Jolene Chen
On November 11, 2020, the 23rd Session of the Standing Committee of the 13th National People’s Congress adopted the Third Amendment to the Decision on Amending the Copyright Law of the People’s Republic of China. The third amendment is finally adopted ten years after the second amendment to the Copyright Law with, relatively more significant changes, which are briefly introduced in this article.
1. This amendment redefines works and amends the conditions for reproduction in tangible form in the Implementing Regulations of the Copyright Law. A work is now considered as an original intellectual achievement in literature, arts and science that can be expressed in a certain form, and the previous requirement for a work to be fixed in order to obtain protection is now removed.
2. Cinematographic works and works created by methods similar to filmmaking are amended as audiovisual works, thereby expanding the scope of protection. Therefore, short videos, livestreams, online games, computer-made animations or videos, etc., are now officially protected by the Copyright Law as audiovisual works. However, this amendment does not define audiovisual works, and how they can be distinguished from video products remains to be tested in practice.
3. The Copyright Law redefines broadcasting rights, i.e., the right to publicly disseminate or rebroadcast works by cable or over-the-air means, as well as the right to disseminate broadcasted works to the public through loudspeakers or other similar means of transmitting symbols, sounds or images. To wit, a broadcasting right can include the right to engage in non-interactive communications to the public by any means, which compensates the previous inability of the Copyright Law to regulate non-interactive communications to the public through cable, the Internet and other means.
4. The Copyright Law also expands the scope of restrictions when the authors of a collaborative work are unable to reach an agreement, which now prohibits allowing others exclusive use of such work or putting up such work as collateral if no agreement is reached.
5. Like the amendments to the Patent Law, Trademark Law and Anti-Unfair Competition Law in the past two years, the Copyright Law has added punitive damages provisions of between double to quintuple the amount of actual losses or benefit obtained from the infringement, while also increasing the statutory ceiling of compensation for infringement to RMB 5 million for cases where it is difficult to calculate the actual loss of the rights holder, the illegal income of the infringer or the royalty of the right, thereby effectively protecting the interests of copyright holders.