Opinions of the Supreme People’s Court on Strengthening Copyright Protection and Copyright-Related Rights (Mainland China)

Di Wu

In order to effectively strengthen copyright protection in literature, arts and science, and to give full effect to the role of copyright cases in the regulation, guidance, promotion and protection of cultural development, the Supreme People’s Court issued its opinions on November 16, 2020 regarding the strengthening of copyright protection and copyright-related rights in accordance with the Copyright Law of the People’s Republic of China and other legal requirements, as well as the actual trial practices.  The opinions are highlighted below:

1. The protection of authors’ rights and interests is enhanced; the interests of both the disseminators and the general public shall be balanced, thereby greatly raising the quality and efficiency of trials. The pilot program for separating cases based on complexity shall be promoted, with a focused effort to shorten the duration of cases involving copyright and copyright-related rights. In addition, the rules of evidence in intellectual property rights litigation shall be improved, and the parties to such cases shall be allowed to preserve, fix and submit evidence through a block chain and other means so as to effectively resolve the difficulties faced by intellectual property rights holders in collecting evidence.  Requests for evidence and property preservation shall be supported, with comprehensive application of multiple forms of civil liability to provide rights holders with sufficient remedies.

2. The natural persons, legal entities and unincorporated organizations that affix their signatures in a common way to a work, performance or audio recording shall be presumed as the holders of the copyright or copyright-related rights to such work, performance, and audio recording, unless such presumption can be overturned by sufficient evidence to the contrary. If the signature presumption rule is used to determine the ownership of the copyright or copyright-related right while the defendant does not produce evidence to the contrary, the plaintiff would not be required to further submit an assignment agreement or other written evidence. In the proceedings, if the defendant claims that it is not liable for infringement, it shall produce evidence to prove that it has obtained a license from the rights holder or there exist the circumstances stipulated in the Copyright Law where exploitation of the work is allowed without a license from the rights holder.

3. If a party requests the immediate destruction of the infringing copies as well as the materials and tools used for the production or manufacture of the infringing copies, the people’s court shall uphold the request in civil proceedings unless there are special circumstances, and shall ex officio order the destruction of such infringing copies in criminal proceedings. In special circumstances where destruction is not appropriate, the people’s court may order the infringer to dispose of the above materials and tools in an appropriate manner outside of commercial channels so as to eliminate the risk of further infringement to the extent possible. The cost of destruction or disposal shall be borne by the infringer, and the people’s court shall not entertain any request from the infringer for compensation of such costs.  In criminal proceedings, the people’s court may grant a request from the rights holder to preserve evidence for the subsequent civil or administrative proceedings that may be filed, and to temporarily not destroy the infringing copies and the materials and tools.  If the rights holder requests the infringer to provide compensation for the storage costs advanced in the subsequent civil or administrative case, the people’s court may grant the request.

4. If it is difficult to calculate the actual loss incurred by the rights holder, the illegal proceeds of the infringer or the royalty, the compensation amount shall be reasonably determined in accordance with relevant provisions of the Copyright Law and other judicial interpretations by generally taking into account the type of right to be protected, the market value and the subjective fault of the infringer, the nature and scale of the infringement, and the severity of the consequences. If the infringer intentionally infringed to a serious extent, and the rights holder requests punitive damages, the people’s court shall review the matter and make a determination. The people’s court shall uphold and separately calculate the compensation amount based on the extent the rights holder can prove the litigation cost, attorney’s fees, etc., through evidence.  If an infringer had been found to have infringed by a court decision or administrative decision or had reached a settlement agreement with the rights holder, but still continued to infringe or otherwise effectively continued to repeatedly infringe, the infringer shall be deemed to have infringed intentionally, and the people’s court shall take this into full consideration when determining the civil liability.

5. The parties shall be informed through a good faith litigation commitment letter or other ways of their legal liabilities if they conduct the litigation in bad faith.  The parties shall be prompted to properly exercise their litigation rights, actively perform their litigation obligations, produce evidence in good faith within a reasonable period of time and make truthful and complete statements in the course of litigation.