-   Legal Basis 

 

The Chinese Copyright Law was issued on September 7, 1990 and entered into effect on June 1, 1991. It was revised on October 27, 2001 and the revised law became effective on the same day. The Implementing Regulations of the Chinese Copyright Law was enforced on September 15, 2002. It was revised for the second time on February 26, 2010 and for the third time on November 11, 2020. The revised law became effective on June 01, 2021

 

China became a member of the World Intellectual Property Organization (WIPO) on June 3,1980. On March 19, 1985, China acceded to the Paris Convention for the Protection of Industrial Property (Stockholm Act). China became party to Universal Copyright Convention on October 30, 1992, Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) on October 15, 1992, and Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms on April 30, 1993.

 

-   Infringement

 

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

1.      publishing a work without the permission of the copyright owner;

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

3.      having one's name mentioned in connection with a work created by another, in order to seek personal fame and gain, where one has not taken part in the creation of the work;

4.      distorting or mutilating a work created by another;

5.      plagiarizing a work of another person;

6.      exploiting by exhibition, film production or any analogous method of film production, or by adaptation, translation, annotation, or by other means, without the permission of the copyright owner, unless otherwise provided in the Copyright Law;

7.      exploiting a work created by another person without paying remuneration as prescribed by regulations;

8.      rending a work, sound recording or video recording, without the permission of the copyright owner of a cinematographic work, a work created by virtue of an analogous method of film production, computer software, sound recording or video recording or the owner of a copyright-related right, unless otherwise provided in the Copyright Law;

9.      exploiting the typographic arrangement of a book or periodical without the permission of the publisher;

10. broadcasting live a performance or communicating the live performance to the public, or recording his performance without the permission of the performer; or

11. committing any other act of infringement of copyright and of other rights and interests relating to copyright.

 

Anyone who commits any of the following acts of infringement shall bear such civil liability as ceasing the infringing act, eliminating the effects of the act, making an apology or paying damages, depending on the circumstances and may, in addition, be subjected by a copyright administrative authority to such administrative penalties as ceasing the infringing act, confiscating gains obtained from the infringement, confiscating and destroying infringing reproductions and imposing a fine; where the circumstances are serious, the copyright administrative authority may also confiscate the materials, tools, and equipment mainly used for making the infringing reproductions; and if the act constitutes a crime, the infringer shall be prosecuted for his criminal liability:

1.      reproducing, distributing performing, showing, broadcasting, compiling or communicating to the public on an information network a work created by another person, without the permission of the copyright owner, unless otherwise provided in the Copyright Law;

2.      publishing a book where the exclusive right of publication belongs to another person;

3.      reproducing and distributing a sound recording to video recording of a performance, or communicating to the public his performance on an information network without the permission of the performer, unless otherwise provided in the Copyright Law;

4.      reproducing and distributing or communicating to the public on an information network a sound recording or video recording produced by another person, without the permission of the producer, unless otherwise provided in the Copyright Law;

5.      broadcasting and reproducing a radio or television program produced by a radio station or television station without the permission of the radio station or television station, unless otherwise provided in the Copyright Law;

6.      intentionally circumventing or destroying the technological measures taken by a right holder for protecting the copyright or copyright-related rights in his work, sound recording or video recording, without the permission of the copyright owner, or the owner of the copyright-related rights, unless otherwise provided in laws or administrative regulations;

7.      intentionally deleting or altering the electronic right management information of a work, sound recording or video recording, without the permission of the copyright owner or the owner of a copyright-related right, unless otherwise provided in laws or administrative regulations; or

8.      producing or selling a work where the signature of another is counterfeited.

 

-   Preliminary Injunction

 

Where any copyright owner or owner of a copyright-related right has evidence to prove that another person is infringing or will soon infringe his copyright right and that if such an infringing act is not stopped or prevented from occurring in time, it is likely to cause irreparable damages to his right, he may, before any legal proceedings are instituted, request the court to issue an injunction order to stop the alleged infringing act or to prevent such act from occurring, and take measures for the preservation of property.

 

-   Preservation of Evidence

 

To stop an act of infringement, where evidence may be destroyed or lost or become difficult to obtain in the future, the copyright owner or the owner of a copyright-related right may, before instituting legal proceedings, apply to the court to have the evidence preserved.

 

The court shall make a decision within 48 hours from receipt of the application. Where the court decides to preserve the evidence, the decision shall be executed immediately.

 

The court may order the applicant to provide security. If no security is provided, the court shall reject the application.

 

Where the applicant fails to institute legal proceedings within 15 days counted from the date on which the court undertakes the preservation measures, the court shall revoke the measures.

 

-   Damages

 

Damages for copyright infringement may be calculated based on the losses suffered by the owner of copyright or a copyright-related right. If the actual losses are difficult to calculate, the damages shall be paid on the basis of the unlawful profits gained by the infringer.

 

When it is difficult to determine either the losses suffered by the owner of copyright or a copyright-related right or the profits gained by the infringer through the infringement, the damages should be assessed not exceeding RMB 500,000 (about USD60, 000), depending on the seriousness of the infringing act.

 

The court may, upon the request of the owner of copyright or a copyright-related right, incorporate reasonable expenses disbursed in investigating and stopping the infringement into the damages rewarded.

 

-   Criminal Sanction

 

Reproducing and distributing, without the authorization of the copyright owner, works for profit-gaining purposes shall constitute a criminal offense if the circumstances are serious.

 

The infringer shall be subject to a maximum of seven years' imprisonment.

 

-   Judicial or Administrative Action

 

The owner of copyright or a copyright-related right may bring a legal action against copyright infringer directly in court. Where the copyright infringement damages the public interests, in addition to the interests of the owner of copyright or a copyright-related right, the copyright administrative authority may handle the dispute.

 

Where the copyright infringement damages the public interests, the copyright administrative authority may impose a penalty of up to three times of the illegal turnover of the infringer or RMB 100,000 (about USD 12,000), if it is difficult to calculate the illegal turnover.

 

-   Jurisdiction

 

The copyright infringement cases should be under the jurisdiction of the court in the place where the infringing act is conducted; where the infringing products are stored; where the infringing products are confiscated or seized; or where the infringer has his domicile.

 

The courts of first instance hearing the copyright infringement cases are intermediate courts or courts at higher level and selected basic courts.

 

For administrative resolution, the request should be filed with the copyright administrative authority in the place where the infringement takes place.

 

-   Prescription of Action

 

Court actions against copyright infringer must be initiated within two years from the date on which the owner of copyright or a copyright-related right obtains or should have obtained the knowledge of the infringing act.

 

Where the owner of copyright or a copyright-related right initiates a lawsuit against infringer after the expiration of the prescription of action, i.e. two years counted from the date on which the owner of copyright or a copyright-related right obtains or should have obtained the knowledge of the infringing act, and when the legal proceedings are initiated, the infringing act is continuously taking place and the copyright is still valid, the court shall make a judgment to order the infringer to stop the infringing act. However, in determining the damages, only the losses incurred to the owner of copyright or a copyright-related right or the profits gained by the infringer through the infringement within the last two years, counted from the date on which the owner of copyright or a copyright-related right initiates the lawsuit, can be taken into consideration.

 

-   Burden of Proof

 

The plaintiff has to submit evidence to prove his claim against infringer and to support his claim for damages.

 

Where publishers or producers of duplicated can not prove the legal authorization of their publication or production, or where issuers of duplicates or lessors of duplicates of cinematographic works or works created in ways similar to the making of cinematographic works, computer software, audio recording or video recording can not prove the legal source of the duplicates they have issued or leased, they shall bear legal responsibility.

 

-   Appeal

 

The decision of the court of first instance can be appealed to the court at higher level whose decision is final. The statutory time limit for an appeal is 15 days counted from the date on which a written judgment is served for domestic parties, or 30 days for foreign parties having no residence in China.