China’s National People’s Congress Releases Translation of the Amended Copyright Law

Share Post:

China’s National People’s Congress has recently released a translation of the amended Copyright Law.  The full text in English is available here. The original Chinese text is available here.  The amended Copyright Law is effective as of June 1, 2021.   Some of the highlights in the amended Copyright Law include punitive damages for intentional infringement, an increase in statutory damages, and an increase in civil fines for copyright infringement. For ease of reference, the full English translation is reproduced here.

Copyright Law of the People’s Republic of China

 

(Adopted at the 15th Meeting of the Standing Committee of the Seventh National People’s Congress on September 7, 1990; amended for the first time in accordance with the Decision on Amending the Copyright Law of the People’s Republic of China at the 24th Meeting of the Standing Committee of the Ninth National People’s Congress on October 27, 2001; amended for the second time in accordance with the Decision on Amending the Copyright Law of the People’s Republic of China at the 13th Meeting of the Standing Committee of the Eleventh National People’s Congress on February 26, 2010; and amended for the third time in accordance with the Decision on Amending the Copyright Law of the People’s Republic of China at the 23rd Meeting of the Standing Committee of the Thirteenth National People’s Congress on November 11, 2020)

Contents

 

Chapter I  General Provisions

Chapter II  Copyright

  Section 1  Copyright Owners and Their Rights

  Section 2  Ownership of Copyright

  Section 3  Term of Protection of Rights

  Section 4  Limitations on Rights

Chapter III Copyright Licensing and Transfer Contracts

Chapter IV Copyright-related Rights

  Section 1 Publication of Books, Newspapers and Periodicals

  Section 2 Performance

  Section 3 Sound Recording and Video Recording

  Section 4 Broadcasting by a Radio Station or Television Station

Chapter V  Protection of Copyright and Copyright-related Rights

Chapter VI  Supplementary Provisions

Chapter I

General Provisions

 

Article 1  This Law is enacted, in accordance with the Constitution, for the purpose of protecting the copyright of authors in their literary, artistic and scientific works and the rights and interests related to copyright, encouraging the creation and dissemination of works conducive to the building of a socialist society that is advanced ethically and materially, and promoting the development and flourishing of socialist culture and sciences.

 

Article 2  Works of Chinese citizens, legal persons or unincorporated organizations, whether published or not, shall have copyright in accordance with this Law.

 

The copyright enjoyed by foreigners or stateless persons in any of their works under an agreement concluded between China and the country to which the authors belong or in which they have their habitual residences, or under an international treaty to which both countries are parties, shall be protected by this Law.

 

Any work of foreigners and stateless persons published for the first time within the territory of China shall have copyright in accordance with this Law.

 

Any work of an author from a country that has not concluded any agreement with China or does not join an international treaty to which China is a party and any work of a stateless person, which is published for the first time in a member country of an international treaty to which China is a party, or simultaneously published in a member country of the treaty and in a non-member country, shall be protected by this Law.

 

Article 3  For purposes of this Law, the term “works” means intellectual achievements in the fields of literature, art and science, which are original and can be expressed in a certain form, including:

 

(1) written works;

(2) oral works;

(3) musical, dramatic, quyi, choreographic and acrobatic art works;

(4) works of the fine arts and architecture;

(5) photographic works;

(6) audiovisual works;

(7) graphic works such as drawings of engineering designs, product designs, maps and sketches, and model works;

(8) computer software; and

(9) other intellectual achievements conforming to the characteristics of the works.

 

Article 4  Copyright owners and copyright-related right owners may not violate the Constitution and laws,  and may not harm public interests when exercising their rights. The State shall supervise and administrate the publication and dissemination of works in accordance with the law.

Article 5  This Law shall not apply to:

 

(1) laws and regulations, resolutions, decisions and orders of State organs, other documents of a legislative, administrative or judicial nature and the official translations thereof;

(2) mere information about facts or happenings; and

(3) calendars, numerical tables and forms of general use, and formulas.

 

Article 6  Measures for the protection of copyright in works of folk literature and art shall be formulated separately by the State Council.

 

Article 7  The competent department of copyright of the State shall be responsible for the administration of copyright nationwide; the local competent departments of copyright at or above the county level shall be responsible for the administration of copyright in their respective administrative areas.

 

Article 8  Copyright owners and copyright-related right owners may authorize collective administration organizations of copyrights to exercise their copyright or copyright-related rights. A collective administration organization of copyrights established in accordance with the law is a not-for-profit legal person, which may, upon authorization, claim rights in its own name for the copyright owners or the copyright-related right owners and participate as a party in litigation, arbitration or mediation activities concerning the copyright or copyright-related rights.

 

Collective administration organizations of copyrights shall collect royalties from users based on the authorization. The standard for the collection of royalties shall be determined by the collective administration organizations of copyrights and representatives of the users through consultation; if consultation fails, the parties may file an application to the competent department of copyright of the State for a ruling; if the said parties are not satisfied with the ruling, they may bring a lawsuit in the people’s court, or the parties may directly bring a lawsuit in the people’s court.

 

Collective administration organizations of copyrights shall regularly publicize to the public the collection and transfer of royalties, the withdrawal and use of management fees, and undistributed royalties and other overall situation, and establish a rights information inquiry system for the inquiry of right owners and users. The competent department of copyright of the State shall supervise and administrate the collective administration organizations of copyrights in accordance with the law.

 

The way to establish collective administration organizations of copyrights, their rights and obligations, collection and distribution of royalties, and supervision and administration of them shall be prescribed separately by the State Council.

Chapter II

Copyright

Section 1
Copyright Owners and Their Rights

Article 9  Copyright owners include:

 

(1) authors; and

(2) other natural persons, legal persons and unincorporated organizations enjoying copyright in accordance with this Law.

 

Article 10  Copyright includes the following personal rights and property rights:

 

(1) the right of publication, that is, the right to decide whether to make a work available to the public;

(2) the right of authorship, that is, the right to claim authorship, and to have the author’s name mentioned in connection with the work;

(3) the right of alteration, that is, the right to alter or authorize others to alter one’s work;

(4) the right of integrity, that is, the right to protect one’s work against distortion and mutilation;

(5) the right of reproduction, that is, the right to produce one or more copies of a work by printing, photocopying, rubbing, sound recording, video recording, ripping, duplicating a photographic work, digitizing, or by other means;

(6) the right of distribution, that is, the right to provide the original copy or reproduced copies of a work to the public by sale or donation;

(7) the right of rental, that is, the right to non-gratuitously permit others to temporarily use an audiovisual work, or the original or copies of a computer software, except where the software itself is not the main object of the lease;

(8) the right of exhibition, that is, the right to publicly display the original copy or reproduced copies of a work of fine arts or of a photographic work;

(9) the right of performance, that is, the right to publicly perform a work, and to publicly communicate the performance of a work by various means;

(10) the right of projection, that is, the right to publicly reproduce works of fine arts,  photographic works, audiovisual works, or other works, by a projector, slide projector or any other technical equipment;

(11) the right of broadcasting, that is, the right to publicly disseminate or rebroadcast  works by wire or by wireless means, and to disseminate broadcast works to the public by loudspeaker or any other similar instruments for transmitting signs, sounds or images, but excluding the right mentioned in Subparagraph (12) of this paragraph;

(12) the right of communication through information network, that is, the right to make a work available to the public by wire or by wireless means, so that the public may have access to the work at time and place chosen by them;

(13) the right of cinematography, that is, the right to fix awork on the medium by producing an audiovisual work;

(14) the right of adaptation, that is, the right to modify a work to create a new one with originality;

(15) the right of translation, that is, the right to transform the work from one language into another language;

(16) the right of compilation, that is, the right to compile, by selection or arrangement, the works or fragments of works into a new work; and

(17) other rights which shall be enjoyed by the copyright owners.

 

Copyright owners may authorize others to exercise the rights provided in Subparagraphs (5) to (17) of the preceding paragraph and receive remuneration in accordance with the agreements or the relevant provisions of this Law.

 

Copyright owners may transfer, wholly or in part, the rights provided in Subparagraphs (5) to (17) of the first paragraph of this Article and receive remuneration in accordance with the agreements or the relevant provisions of this Law.

Section 2
Ownership of Copyright

Article 11  Unless otherwise provided by this Law, the copyright in a work shall belong to its author.

 

The author of a work is a natural person who creates the work.

 

Where a work is created under the auspices of, representing the will, and under the responsibility of a legal person or unincorporated organization, such a legal person or unincorporated organization shall be deemed the author of the work.

 

Article 12   The natural person, legal person or unincorporated organization whose name is affixed to a work shall be the author of the work and have corresponding rights in the work, unless there is proof to the contrary.

 

Authors and other copyright owners may register their works with the registration organs recognized by the competent department of copyright of the State.

 

The provisions of the preceding two paragraphs shall apply mutatis mutandis to the copyright-related rights.

 

Article 13  The copyright of  a work created by adaptation, translation, annotation or arrangement of a preexisting work shall be enjoyed by the adapter, translator, annotator or arranger, provided that the exercise of such copyright does not infringe upon the copyright in the original work.

 

Article 14  Where a work is created jointly by two or more authors, the copyright in the work shall be enjoyed jointly by the co-authors. A person who does not participate in the creation shall not be a co-author.

 

The copyright of a joint work shall be exercised by the co-authors through consensus; where consensus cannot be reached and there are no justifiable reasons, no party shall prevent the other parties from exercising rights other than transferring, permitting others’ exclusive use of and pledging the copyright, but the proceeds obtained shall be reasonably distributed to all co-authors.

 

Where a joint work can be used separately, each co-author may be entitled to independent copyright in the part that he creates, provided that the exercise of such copyright does not infringe upon the copyright in the joint work as a whole.

 

Article 15  A work created by compilation of several works, fragments of works or of data or other materials which do not constitute a work is a compilation when the selection or arrangement of the contents thereof reflect the originality. The copyright in such compilation shall be enjoyed by the compiler, provided that the exercise of such copyright does not infringe upon the copyright in the original works.

 

Article 16  Whoever use a work created by adaptation, translation, annotation, arrangement or compilation of a preexisting work for publication, performance, or production of a sound or video recording, shall obtain permission from and pay remuneration to the copyright owner of the work and the copyright owner of the original work.

 

Article 17  The copyright of a cinematographic work or a television play work, which are audiovisual works, shall be enjoyed by the producer, but the scriptwriter, director, cameraman, lyricist, composer and other authors shall enjoy the right of authorship and shall be entitled to remuneration in accordance with the contracts concluded with the producer.

 

The ownership of the copyright in audiovisual works other than those prescribed in the preceding paragraph shall be agreed upon by the parties concerned; where there is no agreement or the agreement is unclear, the copyright shall be enjoyed by the producer, but the author shall enjoy the right of authorship and the right to remuneration. The authors of the scripts, music and other audiovisual works that may be used separately shall be entitled to exercise their copyright separately.

 

Article 18  A work created by a natural person in the fulfillment of tasks assigned to him by a legal person or unincorporated organization is a work for hire. Unless otherwise provided in the second paragraph of this Article, the copyright in such a work shall be enjoyed by the author; but the legal person or unincorporated organization shall have priority to use the work within the scope of its professional activities. Within two years after the completion of the work, the author shall not, without the consent of the legal person or unincorporated organization, authorize a third party to use the work in the same manner as the legal person or unincorporated organization does.

 

In any of the following cases, the author of a work for hire shall enjoy the right of authorship, while the legal person or unincorporated organization shall enjoy other rights included in the copyright and may reward the author:

 

(1) drawings of engineering designs and product designs, maps, sketch maps, computer software and other works for hire which are created mainly with the material and technical resources of the legal person or unincorporated organization and under its responsibility;

(2) works for hire created by employees of newspaper, periodical presses, news agencies, radio stations and television stations; or

(3) works for hire of which the copyright is enjoyed by the legal person or unincorporated organization in accordance with laws, administrative regulations or contracts.

 

Article 19  The ownership of the copyright in a commissioned work shall be stipulated in a contract between the commissioning party and the commissioned party. Where there is no explicit stipulation in the contract or no contract is concluded, the copyright in such a  work shall belong to the commissioned party.

 

Article 20  The transfer of ownership of the original work shall not change ownership of the copyright of the work, but the right to exhibit the original work of fine art or of a photographic work shall be enjoyed by the owner of the original work.

 

Where an author transfers the ownership of the original copy of an unpublished work of fine art or photographic work, the transferee’s exhibition of the original copy does not constitute an infringement upon the author’s right of publication.

 

Article 21  Where the copyright in a work belongs to a natural person, his rights in respect of the work as provided in Subparagraphs (5) to (17) of the first paragraph of Article 10 of this Law shall, after his death and during the term of protection provided in this Law, be transferred in accordance with the law.

 

Where the copyright of a work belongs to a legal person or unincorporated organization, the rights provided in Subparagraphs (5) to (17) of the first paragraph of Article 10 of this Law shall, after the change or termination of the status of the legal person or unincorporated organization and during the term of protection provided in this Law, be enjoyed by the succeeding legal person or unincorporated organization which takes over its rights and obligations; where there is no succeeding legal person or unincorporated organization to take over the said legal person or unincorporated organization’s rights and obligations, the copyright shall be enjoyed by the State.

Section 3

Term of Protection of Rights

Article 22  The term of protection of an author’s right of authorship, alteration and  integrity shall be unlimited.

 

Article 23  In respect of a work of a natural person, the term of protection for the right of publication and the rights as provided in Subparagraphs (5) to (17) of the first paragraph of Article 10 of this Law shall be the life of the author and fifty years after his death, expiring on December 31 of the fiftieth year after his death. In the case of a joint work, the term shall expire on December 31 of the fiftieth year after the death of the last surviving author.

 

For a work of a legal person or unincorporated organization, and a work for hire whose copyright (excluding the right of authorship) is enjoyed by a legal person or unincorporated organization, the term of protection for the right of publication shall be fifty years, expiring on December 31 of the fiftieth year after the completion of its creation; and the term of protection for the rights as provided in Subparagraphs (5) to (17) of the first paragraph of Article 10 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such a work;  but if a work is not published within fifty years after the completion of its creation, it shall no longer be protected by this Law.

 

For an audiovisual work, the term of protection for the right of publication shall be fifty years, expiring on December 31 of the fiftieth year after the completion of its creation; and the term of protection for the rights as provided in Subparagraphs (5) to (17) of the first paragraph of Article 10 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such a work;  but if a work is not published within fifty years after the completion of its creation, it shall no longer be protected by this Law.

Section 4

Limitations on Rights

Article 24  In the following cases, a work may be used without permission of, and without payment of remuneration to the copyright owner, provided that the name or appellation of the author and the title of the work are indicated, the normal use of the work is not affected and the legitimate rights and interests enjoyed by the copyright owner are not unreasonably prejudiced:

 

(1) use of a published work of another for purposes of personal study, research or appreciation;

(2) appropriate quotation from a published work of another in one’s own work for the purpose of introducing or commenting a certain work, or illustrating a point;

(3) unavoidable reproduction or quotation from a published work in newspapers, periodicals, radio stations, television stations or other media for the purpose of reporting news;

(4) publication or broadcasting by newspapers, periodicals, radio stations, television stations or other media of current event articles on issues of politics, economy and religion, which have been published by other newspapers or periodicals, or broadcast by other radio stations or television stations, except where the copyright owner declares that such publication or broadcasting is not permitted;

(5) publication or broadcasting by newspapers, periodicals, radio stations, television stations or other media of a speech delivered at a public gathering, except where the author declares that such publication or broadcasting is not permitted;

(6) translation, adaptation, compilation, broadcasting, or reproduction in a small quantity of copies, of a published work by teachers or scientific researchers for use in classroom teaching or scientific research, provided that such a work shall not be published or distributed;

(7) use of a published work by a State organ to a reasonable scope for the purpose of fulfilling its official duties;

(8) reproduction of a work in its collections by a library, archive, memorial hall, museum, art gallery, cultural center or similar institution for the purpose of display, or preservation of a copy of the work;

(9) free performance of a published work for non-profit purposes, for which the public does not pay any fees and no remuneration is made to the performers;

(10) copying, drawing, photographing or video-recording of a work of art put up or displayed in public places;

(11) translation of a published work of a Chinese citizen, legal person or unincorporated organization from the standard spoken and written Chinese language into minority nationality languages for publication and distribution in the country;

(12) provision of published works to dyslexics in a barrier-free way through which they can perceive; and

(13) other circumstances as provided by laws and administrative regulations.

 

The provisions of the preceding paragraph shall apply to the copyright-related rights.

Article 25  Those who compile and publish textbooks for the purpose of implementing compulsory education or State education planning may, without permission of copyright owners, compile published fragments of works, short written works, musical works, a single work of fine art, photographic works, or graphic works in the textbooks, but shall pay remunerations to copyright owners according to the provisions, and indicate the names or appellations of authors and titles of works, and shall not infringe upon other rights enjoyed by the copyright owners in accordance with this Law.

 

The provisions of the preceding paragraph shall apply to the copyright-related rights.

Chapter III

Copyright Licensing and Transfer Contracts

Article 26  Anyone who uses a work of another shall conclude a licensing contract with the copyright owner, except where no license is required as provided in this Law.

 

A licensing contract shall include the following main contents:

 

(1) types of rights licensed for use;

(2) the exclusive or non-exclusive nature of the right to exploit the work covered by the license;

(3) territorial scope and the term of the license;

(4) rates of remuneration and the means of payment;

(5) liability for breach of contract; and

(6) other contents that both parties deem necessary to be agreed upon.

 

Article 27  Anyone who transfers any of the rights provided in Subparagraphs (5) to (17) of the first paragraph of Article 10 of this Law shall conclude a written contract.

 

A copyright transfer contract shall include the following main contents:

 

(1) title of the work;

(2) type and territorial scope of the transferred right;

(3) transfer fee;

(4) date and means of payment of the transfer fee;

(5) liability for breach of contract; and

(6) other contents that both parties deem necessary to be agreed upon.

 

Article 28  Where property rights under a copyright are pledged, both the pledger and the pledgee shall undergo pledge registration in accordance with the law.

 

Article 29   Without the consent of the copyright owner, the other party may not exercise any right that the copyright owner has not explicitly licensed or transferred in the licensing and transfer contract.

 

Article 30  The remuneration standards for the use of a work may be agreed upon by the parties and may also be paid in accordance with the standards fixed by the competent department of copyright of the State in conjunction with the relevant departments. Where the agreement between the parties is unclear, the remuneration shall be paid in accordance with the standards fixed by the competent department of copyright of the State in conjunction with the relevant departments.

 

Article 31  Publishers, performers, producers of sound and video recordings, radio stations, television stations and other entities that use works of others in accordance with the relevant provisions of this Law may not infringe upon the rights of authorship, alteration,  and integrity, and the right to remuneration of the authors.

 

Chapter IV

Copyright-related Rights

Section 1

Publication of Books, Newspapers and Periodicals

 

Article 32  To publish a book, the book publisher shall conclude a publishing contract with and pay remuneration to the copyright owner.

 

Article 33   With respect to a work delivered to a book publisher by the copyright owner for publication, the exclusive right to publish the work enjoyed by the book publisher as stipulated in the contract shall be protected by law, and the work may not be published by others.

 

Article 34  A copyright owner shall deliver the work within the term stipulated in the contract. A book publisher shall publish the work in compliance with the publication quality and time limit as stipulated in the contract.

 

A book publisher that fails to publish the work within the time limit as stipulated in the contract shall bear civil liability according to the provisions of Article 61 of this Law.

 

Where a book publisher reprints or republishes a work, it shall notify and pay remuneration to the copyright owner. Where the publisher refuses to reprint or republish the work after the stock of books is exhausted, the copyright owner has the right to terminate the contract.

 

Article 35  Where a copyright owner has submitted the manuscript of his work to a newspaper or periodical publisher for publication and has not received any notification of the said newspaper’s or publisher’s decision to publish the work within 15 days from the newspaper or within 30 days from the periodical publisher, counted from the date of submission of the manuscript, the copyright owner may submit the manuscript of the same work to another newspaper or periodical publisher for publication, unless otherwise agreed by the parties .

 

Except where the copyright owner declares that no reprinting or excerpting of his work is permitted, other newspaper or periodical publishers may, after the work is published by a newspaper or periodical publisher, reprint the work or print an abstract of it or print it as reference material, but shall pay remuneration to the copyright owner according to the provisions.

 

Article 36  A book publisher may, with the permission of the author, modify or abridge the work.

 

A newspaper or periodical publisher may make editorial modifications and abridgments in the language of a work. Any modification in the contents of the work shall be subject to permission of the author.

 

Article 37  A publisher shall be entitled to license others to use or prohibit others from using the format design of a book or periodical it has published.

 

The term of protection for the right specified in the preceding paragraph shall be ten years, expiring on December 31 of the tenth year after the first publication of the book or periodical in which the format design is used.

Section 2

Performance

Article 38  A performer who uses, for a performance, a work created by another shall obtain permission from and pay remuneration to the copyright owner. Where a performance organizer organizes a performance, the organizer shall obtain permission from and pay remuneration to the copyright owner.

 

Article 39  A performer shall, in respect of his performance, enjoy the following rights:

 

(1) to claim performership;

(2) to protect his performance image from distortion;

(3) to permit others to make live broadcasts or to publicly transmit his live performance, and receive remuneration therefor;

(4) to permit others to make sound and video recordings, and receive remuneration therefor;

(5) to permit others to reproduce, distribute and lease the sound and video recordings of his performance, and receive remuneration therefor; and

(6) to permit others make his performance available to the public through information network, and receive remuneration therefor.

 

A licensee that is permitted to use a work in the manner provided in Subparagraphs (3) to (6) of the preceding paragraph shall, in addition, obtain permission from and pay remuneration to the copyright owner.

 

Article 40  A performance by a performer for the purpose of accomplishing the tasks assigned by his performing entity is a performance for hire, in which the performer shall enjoy the rights to claim performership and to protect his performance image from distortion, and the ownership of other rights shall be agreed upon by the parties. Where the parties have not reached an agreement or the agreement is unclear, the right to  performance for hire shall be enjoyed by the performing entity.

 

Where the right to performance for hire is enjoyed by performers, the performing entity may use the performance free of charge within the scope of its business.

 

Article 41  The term of protection for the rights provided in Subparagraphs (1) and (2) of the first paragraph of Article 39 of this Law shall not be limited.

 

The term of protection for the rights provided in Subparagraphs (3) to (6) of the first paragraph of Article 39 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the performance takes place.

Section 3

Sound Recording and Video Recording

Article 42  A producer of sound recordings or video recordings that uses, for making a sound recording or video recording, a work created by another shall obtain permission from and pay remuneration to the copyright owner.

 

A producer of sound recordings that uses, for making a sound recording, a musical work which has been lawfully recorded as a sound recording by another, may do so without obtaining permission from the copyright owner, but shall pay remuneration to the copyright owner according to the provisions; such a work shall not be used where the copyright owner declares that such use is not permitted.

 

Article 43  When making a sound recording or video recording of a performance, the producer shall conclude a contract with and pay remuneration to the performer.

 

Article 44  The producer of sound recordings or video recordings shall enjoy the right to permit others to reproduce, distribute or lease the sound recordings or video recordings and disseminate them to the public through information network and to receive remuneration therefor. The term of protection for such right shall be fifty years, expiring on December 31 of the fiftieth year after the completion of the recording for the first time.

 

A licensee that reproduces, distributes, and disseminates sound recordings or video recordings to the public through information network shall obtain permission from and pay remuneration to both the copyright owner and the performer; a licensee that leases sound recordings or video recordings shall also obtain permission from, and pay remuneration to the performer.

 

Article 45  Where sound recordings are disseminated through wired or wireless means, or broadcast to the public through technical equipment for transmitting sound, remuneration shall be paid to the sound recording producer.

Section 4

Broadcasting by a Radio Station or Television Station

Article 46  A radio station or television station that broadcasts an unpublished work created by others shall obtain permission from and pay remuneration to the copyright owners.

 

A radio station or television station that broadcasts a published work created by others do not need to obtain permission from the copyright owners, but shall pay remuneration to the copyright owners according to the provisions.

 

Article 47  A radio station and television station shall have the right to prohibit the following acts performed without its permission:

 

(1) rebroadcasting the radio or television programs broadcast by it by wire or by wireless means;

(2) recording and reproducing the radio or television programs broadcast by it; and

(3) disseminating the radio or television programs broadcast by it to the public through information network.

 

The exercise of the rights prescribed in the preceding paragraph by a radio station and television station shall not affect, restrict or prejudice others’ exercise of copyright or copyright-related rights.

 

The term of protection for the rights prescribed in the first paragraph of this Article shall be fifty years, expiring on December 31 of the fiftieth year after the broadcasting of a radio or television program for the first time.

 

Article 48  A television station that broadcasts audiovisual works or video recordings produced by others shall obtain permission from and pay remuneration to the copyright owners of the audiovisual works or the video producers; in the case of broadcasting video recordings produced by others, the television station shall also obtain permission from and pay remuneration to the copyright owners.

Chapter V

Protection of Copyright and Copyright-related Rights

Article 49  In order to protect copyright and copyright-related rights, the right owner may take technical measures.

 

Without permission of the right owner, no organization or individual shall intentionally circumvent or destroy the technological measures, or manufacture, import or provide the relevant devices or components to the public for the purpose of circumventing or destroying the technological measures, or intentionally provide technical services for others to circumvent or destroy the technological measures, except for the circumstances under which such circumvention is permitted by laws or administrative regulations.

 

For the purposes of this Law, the term “technological measures” refers to the effective technologies, devices, or components that are used to prevent or restrict the viewing or appreciation of works, performances, sound and video recordings, or the provision of works, performances, sound and video recordings to the public through information network without the permission of the right owners.

 

Article 50  Technological measures may be circumvented under the following circumstances, provided that technologies, devices or components used to circumvent technological measures are not provided to others, and that other rights enjoyed by the right owners in accordance with the law are not infringed:

 

(1) providing a small amount of published works to teachers or scientific researchers for use in classroom teaching or scientific research, in the case that such works are not accessible through normal channels;

(2) providing, not for profit, published works to dyslexics in a barrier-free way through which they can perceive, in the case that such works are not accessible through normal channels;

(3) fulfillment of official duties by a State organ in accordance with the administrative, supervisory and judicial procedures;

(4) testing the security performance of computers and their systems or networks; and

(5) conducting encryption research or research on reverse engineering of computer software.

 

The provisions of the preceding paragraph shall apply to restrictions on copyright-related rights.

 

Article 51  The following acts shall not be carried out without permission of the right owner:

 

(1) intentionally deleting or altering the rights management information on works, format designs, performances, sound or video recordings, or radio or television programs, except for those which cannot be avoided due to technical reasons; and

(2) making available to the public works, format designs, performances, sound or video recordings, or radio or television programs when the provider knows or should know that the rights management information attached thereto has been deleted or altered without permission.

 

Article 52  Anyone who commits any of the following infringing acts shall, depending on the circumstances, bear civil liability such as ceasing the infringement, eliminating the effects of the act, making an apology or paying compensation for loss:

 

(1) publishing a work without permission of the copyright owner;

(2) publishing a work of joint authorship as a work created solely by oneself, without permission of the other co-authors;

(3) having one’s name mentioned in another’s work, without participating in the creation of the work in order to seek personal fame and gain;

(4) distorting or tampering with works of others;

(5) plagiarizing works of others;

(6) using a work by means of exhibition or production of an audiovisual work, or by means of adaptation, translation, annotation or similar means without permission of the copyright owner, unless otherwise provided in this Law;

(7) using a work of another without paying remuneration as one should;

(8) leasing an audiovisual work, computer software, or the original or a copy of a sound or video recording, without permission of the copyright owner, the performer or the producer of the recording, unless otherwise provided in this Law;

(9) using the format design of a published book or periodical, without permission of the publisher;

(10) live broadcasting, publicly transmitting or recording a performance, without permission of the performer; or

(11) committing other acts infringing upon the copyright and the copyright-related rights.

 

Article 53  Anyone who commits any of the following infringing acts shall, depending on the circumstances, bear civil liability prescribed in Article 52 of this Law; where public rights and interests are concurrently impaired by the infringement, the competent department of copyright shall order the infringer to stop infringement, give him a warning, confiscate his unlawful gains, and confiscate and harmlessly destroy the infringing copies and the materials, tools and instruments mainly used to produce the infringing copies, and may, where the illegal turnover exceeds 50,000 yuan, concurrently impose a fine of not less than one time but not more than five times the illegal turnover; where there is no illegal turnover or the illegal turnover is difficult to calculate or is less than 50,000 yuan, a fine of not more than 250,000 yuan may be imposed concurrently; where a crime is constituted, criminal liability shall be investigated in accordance with the law:

 

(1) without permission of the copyright owner, reproducing, distributing, performing,  projecting, broadcasting, compiling a work or disseminating a work to the public through information network, unless otherwise provided in this Law;

(2) publishing a book whose exclusive right of publication is enjoyed by another;

(3) without permission of the performer, reproducing or distributing sound or video recordings of his performance, or making the performance available to the public through information network, unless otherwise provided in this Law;

(4) without permission of the producer, reproducing, distributing, disseminating sound or video recordings produced by him to the public through information network, unless otherwise provided in this Law;

(5) without permission, broadcasting, reproducing or disseminating radio or television programs to the public through information network, unless otherwise provided in this Law;

(6) without permission of the copyright owner or copyright-related right owner, intentionally circumventing or destroying the technological measures, intentionally manufacturing, importing or providing to others the devices or components mainly used for the purpose of circumventing or destroying the technological measures, or intentionally providing technical services to others to circumvent or destroy the technological measures, unless otherwise provided in laws or administrative regulations;

(7) without permission of the copyright owner or copyright-related right owner, intentionally deleting or altering the rights management information on works, format designs, performances, sound or video recordings, or radio or television programs, or disseminating to the public the works, format designs, performances, sound or video recordings, or radio or television programs when the provider knows or should know that the rights management information has been deleted or altered, unless otherwise provided in laws or administrative regulations; or

(8) producing or selling a work the authorship of which is counterfeited.

 

Article 54  In case of infringement upon the copyright or the copyright-related rights, the infringer shall make compensation on the basis of the actual loss suffered by the right owner or based on the illegal gains of the infringer; where the actual loss of the right owner or the illegal gains of the infringer are difficult to be calculated, compensation may be made by reference to the amount of royalties for that right. In case of intentional infringement upon the copyright or the copyright-related rights, if the circumstances are serious, compensation may be made not less than one time but not more than five times the amount determined according to the abovementioned methods.

 

Where the actual loss of the right owner, the illegal gains of the infringer or the royalties are difficult to be calculated, the people’s court shall, in light of the circumstances of the infringement, decide on a compensation not less than 500 yuan but not more than 5,000,000 yuan.

 

The amount of compensation shall also include the reasonable expenses paid by the right owner for stopping infringement.

 

Where the right owner has met the necessary burden of proof in order to determine the amount of compensation, the people’s court may order the infringer to provide the account books and materials related to the infringing act in the case that the account books and materials are mainly in the control of the infringer; if the infringer refuses to provide or provides the false account books and materials, the people’s court may determine the amount of compensation by reference to the claims and evidence provided by the right owner.

 

When trying a case concerning a copyright dispute, the people’s court shall, at the request of the right owner, order the destruction of the infringing copies, except in special circumstances; order the destruction of the material, tools and instruments mainly used to produce infringing copies without compensation; or in special circumstances, the prohibition of the aforesaid material, tools and instruments, among others, from entering commercial channels without compensation.

 

Article 55  When investigating and dealing with the acts suspected of infringing upon copyright and copyright-related rights, the competent department of copyright may question the parties and investigate the circumstances related to the suspected illegal acts; conduct on-site inspections of the premises and articles involved in the suspected illegal acts; consult and duplicate contracts, invoices, account books and other materials related to the suspected illegal acts; and seal up or seize the premises and articles involved in the suspected illegal acts.

 

When the competent department of copyright exercises the functions and powers prescribed in the preceding paragraph in accordance with the law, the parties shall assist and cooperate, and shall not refuse or obstruct the exercise of such functions and powers.

 

Article 56  Where a copyright owner or a copyright-related right owner has evidence to prove that another person is committing, or is about to commit, an infringement upon his rights or an act hindering the realization of his rights, and failure to stop such acts in a timely manner will cause irreparable damage to his legitimate rights and interests, he may, before bringing a lawsuit, apply to a people’s court in accordance with the law for taking such measures as preserving property, ordering performance of a specific act, or prohibiting a specific act.

 

Article 57  In order to prevent infringement, a copyright owner or a copyright-related right owner may, before bringing a lawsuit, apply to a people’s court in accordance with the law for evidence preservation, where the evidence may be destroyed or lost or is difficult to be obtained later.

 

Article 58  When trying a case concerning the infringement upon copyright or the copyright-related rights, the people’s court may confiscate the illegal gains, the infringing copies and money and property used for illegal activities.

 

Article 59  Where a publisher or producer of copies fails to prove that its publication or production is legally authorized, or a distributor of reproductions or a lessor of copies of an audiovisual work, computer software, sound recording or video recording fails to prove the legal source of the copies for distribution or lease, it shall bear legal liability.

 

During the litigation process, where the defendant-infringer claims that he is not liable for the infringement, he shall present evidence to prove that he has obtained the permission of the right owner, or that he falls under the circumstances under which use is allowed without permission of the right owner as provided in this Law.

 

Article 60  A copyright dispute may be settled through mediation, or be submitted to an arbitration institution for arbitration under a written arbitration agreement between the parties or under the arbitration clause in the copyright contract.

 

Where there is neither a written arbitration agreement between the parties nor an arbitration clause in the copyright contract, that parties may directly bring a lawsuit in a people’s court.

 

Article 61  The provisions of the relevant laws shall apply where the parties bear civil liability for failure to perform contractual obligations or failure to perform contractual obligations in conformity with the agreement, and where the parties exercise their litigation rights or apply for preservation, etc.

Chapter VI

Supplementary Provisions

Article 62  The term “copyright” as mentioned in this Law shall have the same meaning as “author’s right”.

 

Article 63  The term “publication” as mentioned in Article 2 of this Law means reproduction and distribution of works.

 

Article 64  Measures for the protection of computer software and the right of communication through information network shall be formulated separately by the State Council.

 

Article 65   Where the protection period for photographic works, right of publication, and rights prescribed in Subparagraphs (5) to (17) of the first paragraph of Article 10 has expired before June 1, 2021, but they are still within the protection period according to the first paragraph of Article 23 of this Law, they shall no longer be protected.

 

Article 66  The rights of copyright owners, publishers, performers, producers of sound recordings and video recordings, radio stations and television stations as provided in this Law of which the term of protection specified in this Law has not yet expired on the date this Law goes into effect, shall be protected in accordance with this Law.

 

Any act of infringement or breach of contract committed prior to the implementation of this Law shall be dealt with according to the relevant provisions in force at the time when such an act of infringement or breach of contract was committed.

 

Article 67  This Law shall go into effect on June 1, 1991.

Author: Aaron Wininger

Aaron Wininger is a Senior Attorney and Director of China Intellectual Property at Schwegman Lundberg & Woessner.

Author: Aaron Wininger

Aaron Wininger is a Senior Attorney and Director of China Intellectual Property at Schwegman Lundberg & Woessner.