China 2011

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period mandated by the Berne Convention? Yes
With respect to applied art, CL does not grant any special protection. Therefore, applied art is protected as artistic works, as prescribed in Article 2(7) of the Berne Convention.
Article 3 of CL
Are works that are not fixed in some material form excluded from copyright? No
Oral works that are not fixed on any physical carrier are protected by CL.
Article 3 of CL
Has a court or tribunal ever limited the exercise of copyright under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders? In part
China enacted the Anti-Monopoly Law, Article 55 of which provides that the Law does not interfere entrepreneurs or firms in their legitimate exercise of intellectual property rights; however, Law may apply to business conduct tending to eliminate or restrict market competition by the abuse of intellectual property rights. But the Anti-Monopoly Law does not specify how to handle the abuse of intellectual property rights, neither does the Copyright Law contain the relevant provision. There are categorized statutory licensing provided in the CL but not directly relevant to competition law. A producer of sound recordings who exploits a music work another person has duly made into a sound recording to produce sound recordings, may not obtain permission from, but shall pay remuneration to the copyright owner as prescribed by regulat1ons, such Work shall not be exploited where the copyright owner has declared that such exploitation is not permitted. A radio station or television station that broadcasts a published work created by another person does not need a permission from, but shall pay remuneration to, the copyright owner. In compiling and publishing textbooks for implementing the nine-year compulsory education and the national educational program, parts of published works, short written works, music works or single copies of works of painting or photographic works may be compiled into textbooks without the authorization from the authors, except where the authors have declared in advance the use thereof is not permitted, with remuneration paid according to the regulations, the name of the author and the title of the work indicated and without prejudice to other rights enjoyed by the copyright owners according to this Law.
Article 23, 39(3), 42(2), 43
Has a court or tribunal ever limited the exercise of copyright pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? No
Copyright has dichotomy of idea and expression, which may slightly relevant to free speech.
Article 2 of IRCL; Article 29 of Computer Software Copyright Regulations
Are databases of non-original material excluded from copyright? No
A work created by compilation of several works, parts of works, data that do not constitute a work or other materials and having originality in the selection or arrangement of its contents is a work of compilation. The copyright in a work of compilation shall be enjoyed by the compiler, provided that the exercise of such copyright shall not prejudice the copyright in the preexisting works.
Article 14 of CL
Are rights holders prohibited from excluding user rights under copyright law? In part
The question is not clear. There is no such concept as "user right." If it means consumer right, it could be theoretically true. The Contract Law states, in concluding and performing a contract, the parties shall abide by the laws and administrative regulations and observe social ethics. Practically the validity of a licensing agreement is rarely challenged for limiting exceptions or limitations provided in CL.
Article 7 of the Contract Law
Is computer software excluded from the scope of patentable subject matter? No
Computer software combined with hardware and has technological features are patentable under PL.

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? No
CL only allows a work to be exploited without permission from, and without payment of remuneration to, the copyright owner in specified cases, which is consistent with the three-step test of Berne Convention.
Article 22 of CL
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? In part
Legality of shifting is yet to be tested in the Chinese copyright system. At least, it should be allowed for "private use", i.e. use of a published work for the purposes of the user's own private study, research or self-entertainment.
Article 22(1) of CL
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? Yes
As far as not communicated to the public, backup copies by consumers are permitted.
Article 22 (1) of CL and Article 16 (2) of Computer Software Copyright Regulations
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? In part
Private use for study, research or entertainment is permitted. Sharing within family or a circle of close friends can be analogous to private use. But the flexibility won't be extended to hundreds of "friends" or "contacts" on Facebook or LinkedIn.
Article 22 (1) of CL
For EducationMay students copy works for private research or study? Yes
Private study, research or self-entertainment is allowable. It's allowed to translate, or reproduce in a small quantity of copies, of a published work for use by teachers or scientific researchers, in classroom teaching or scientific research, provided that the translation or reproduction shall not be published or distributed.
Article 22 (1)(6) of CL
Does any such research and study provision cover distance and online education? Yes
It is permitted to provides others’ works through the information network where a small quantity of a published work is provided for teaching or scientific research purposes to those engaged in teaching or scientific research. Uncertainty remains whether the works may be provided to "students" of distant and online education. It seems the fair use is only applicable to "those engaged in teaching or scientific research."
Article 6 (3) of RPRCIN
May translations of works be made for educational purposes? Yes
Translation, or reproduction in a small quantity of copies, of a published work for use by teachers or scientific researchers, in classroom teaching or scientific research is permitted, provided that the translation or reproduction shall not be published or distributed.
Article 22 (6) of CL
May educators copy works for use in the classroom? In part
For class-room teaching purpose, works can be reproduced in a small quantity of copies. Works are not allowed to be "published" if assimilating distribution of the copies to the public.
Article 22 (6) of CL
OnlineAre temporary or transient copies, incidental to a lawful use, excepted from copyright? Yes
RPRCIN avoids issue of temporary copies. However, ISPs are exempted from compensatory liability for automatic access service(conduit)or automatic storage services (caching) if certain conditions are met. Presumably, transit or temporary copies are protectable, although lawful use may be excepted from liability partially. The issue is yet to be tested in any case.
Article 20, 21 of RPRCIN
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? Yes
Under the following circumstances, a network service provider that provides information storage space to a service object or provides works, performances, or audio-visual recordings to the public through the information network, shall not be liable for compensation: 1. Having clearly mentioned that the information storage space is provided to the service object, and also having publicized the name, contact information, and web address of the network service provider; 2. Having not altered the work, performance, or audio-visual recording provided to the service object; 3. Having not known and having no justified reason to know that the works, performances, or audio-visual recordings provided by the service object have infringed upon an other’s right; 4. Having not directly obtained economic benefits from the service object’s provision of the work, performance, or audio-visual recording; 5. After receiving the notification from the owner, having deleted the work, performance, or audio-visual regarded as infringing on the right of the owner according to the provisions of this regulation.
Article 22 of RPRCIN
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? No
ISPs have the legal obligation to filter or monitor their system to prevent copyright infringement.
Regulations on Internet Information Services
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? No
Both the adaptation right and moral right of alteration of works are involved. Where a work is created by adaptation of a preexisting work, the copyright in the work thus created shall be enjoyed by the adapter, Provided that the exercise of such copyright shall not prejudice the copyright in the original work. An author is entitled the right of alteration, that is, the right to alter or authorize others to alter one's work.
Article 9 (3), 12 of CL
May computer software be copied for the purpose of reverse-engineering interoperable software? Yes
Where Software is used in the forms such as installing, displaying, transmitting or saving the Software to learn and study the design concepts and principles, permission from, and payment of remuneration to, it does not need to be licensed by copyright owner.
Article 17 of Computer Software Copyright Regulations
Is the incidental inclusion of a work in other material permitted? In part
The incidental is unclear under CL. It is only permitted to reuse or cite, for any unavoidable reason, of a published work in newspapers, periodicals, at radio stations, television stations or any other media for the purpose of reporting current events.
Article 22 (3) of CL
Is there are copyright exception for parody or satire? In part
If Parody does not involve substantive reproduction of the original work, infringement can hardly be found. But there is no specific stipulation or case on this.
By the pressIs there a copyright exception for the news of the day? Yes
News of current affairs is excluded from the scope of copyright protection. Reuse or citation, for any unavoidable reason, of a published work in newspapers, periodicals, at radio stations, television stations or any other media for the purpose of reporting current events is permitted.
Article 5, 22 (3) of CL
May copyright material be reproduced for the purposes of review and criticism? Yes
Appropriate quotation from a published work in one's own work for the purposes of introduction to, or comments on, a work, or demonstration of a point is permitted.
Article 22 (2) of CL
May quotations be used for any purpose? No
Not for any purpose. Appropriate quotation from a published work in one's own work for the purposes of introduction to, or comments on, a work, or demonstration of a point is permitted.
Article 22 (2) of CL
By LibrariesMay libraries copy works if they cannot reasonably be obtained commercially? In part
Generally libraries can only copy works in their collection. Specifically, a library may reproduce a work in digital form for the purpose of displaying or preserving provided that work has been destroyed or close to destroyed, lost, or stolen, or whose storage mode is outdated, and cannot be bought on the market or can only be bought at an obviously higher price than that appearing on the label.
Article 22 (8) of CL; Article 7 of RPRCIN
May librarians copy works for users for the purpose of research or study? In part
It is not clear what means "copying works for users." Provision of any hard copy is absolutely impermissible. But a library, archive, memorial hall, museum, art gallery, etc. can provide relevant digital works that have been legally published and preserved by the institution to their service objects and can legally reproduce a work in digital form for the purpose of displaying or preserving a copy of an edition, without the permission from, or paying remuneration to, the copyright owner, but shall not directly or indirectly obtain any economic benefits, except when stipulated by the owner.
Article 7 of RPRCIN
Are libraries allowed to make preservation or archive copies of materials in their collections? Yes
Reproduction of a work in its collections by a library, archive, memorial hall, museum, art gallery or any similar institution, for the purposes of the display, or preservation of a copy, of the work is permitted.
Article 22 (8) of CL
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? In part
It is permitted to transliterate a published work into Braille and publish the work so transliterated, or provide the published written work via information network to the blind in a manner that they can perceive it without the purpose of seeking a profit.
Article 22 (12) of CL; Article 6 (6) of RPRCIN
In public affairsAre laws excluded from copyright? Yes
Laws are not copyrightable.
Article 5 (1) of CL
Are other governmental works excluded from copyright? Yes
Regulations, resolutions, decisions and orders of State organs, other documents of a legislative or administrative nature and their official translations are not copyrightable.
Article 5 (1) of CL
Are the results of publicly funded research required to be published under an open access license? In part
Intellectual property rights, inclusive of computer software copyright or IC layout designs, derived from the governmental fiscal funded research projects belong to the researchers. In the case where the researchers fail to implement the relevant intellectual property in reasonable period or for the purpose of protection of national security,national interests or important public interests, the State may implement it for free or grant licenses to others for free or for charge.
Article 20 of Law for Advancement of Science and Technology

Freedoms to share and transfer

Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment? No
This is not clear yet. Theoretically, copyright owners may declare waiver of the rights. However, there is no procedural stipulations as prescribed in PL. There are some discussions on orphan works. It is still under debate whether they should be released to the public domain or attributed to interested parties.
Can public domain works be used without the need for any payment or registration of the use? Yes
If a work is really in public domain, it is available for any use for free.
Does the law make special provision for the legal use of orphaned works? No
No special provision. In the case where the copyright owner cannot be identified, the property owner of the original copy of the work may exercise the rights related to the work except for right of authorship. The term of protection is until 50th year of the publication of the work.
Article 13, 18 of IRCL
Is parallel importation of copyright works permitted? In part
The issue is unclear. CL does not equip copyright owners with the right of import or export. It is arguable that the distribution right could cover parallel import. However with the prevalence of communications of works on the Internet, parallel import is large out of the question because new copies are always made in the process.
Article 9 of CL
Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? No
On the contrary, Chinese software association, under the support of Business Software Alliance, published a paper to warm users of the potential security risks of free or open source software, compared with proprietary software.
Are there national programmes or policies that specify or promote the use of open document formats? No
Not at all.

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? No. Infringement are subject to civil and/or administrative liabilities irrespective of whether the infringer is an entity or individual. With respect to criminal penalty, Whoever, for the purpose of reaping profits, has committed the acts of copyright infringement and gains a fairly large amount of illicit income, or when there are other serious circumstances, is to be sentenced to not more than three years of fixed-term imprisonment, criminal detention, and may in addition or exclusively be sentenced to a fine; when the amount of the illicit income is huge or when there are other particularly serious circumstances, he is to be sentenced to not less than three years and not more than seven years of fixed-term imprisonment and a fine. Article 46;47 of CL; Article 217; 218 of Criminal Law
What is the maximum penalty for copyright infringement for a corporation? When a unit commits the crimes against copyright, it is to be sentenced to a fine; its directly responsible person in charge and other personnel of direct responsibility should be punished in accordingly. Article 220 of Criminal Law
Is innocent infringement of copyright treated differently by the law? Yes
Penalty is not an accurate term. It refers to criminal penalty particularly. If it means "punishments" generally. Then of course there is an obvious distinction. Use of a work in any manner for personal study, research or entertainment is not infringing at all. Large scale commercial use is the prerequisite of any criminal penalty. With respect to civil liability of copyright infringement, there is hardly any distinction between innocent infringements and willful ones. One exception is for intermediary liability. Article 52 provides, the publisher or producer of a reproduction who cannot prove that his publication or production has been authorized, the distributor of a reproduction or the renter of the reproduction of a cinematographic work, a work created by virtue of an analogous method of film production, computer software, sound recording or video recording who cannot prove that his distributed or rented reproduction has been from a lawful source, shall bear legal liability.
Article 217-218 of Criminal Law; Article 22 (1), 52 of CL
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes? In part
No organization or person shall intentionally manufacture, import, or provide the public with devices or components mainly used to circumvent or destroy the technical measures, and shall intentionally provide technical services to others to avoid or destroy the technical measures, unless it is provided for by any law or administrative regulation that the technical measures may be avoided. RPRCIN provides four circumstances under which technical measures can be circumvented, but technical devices or components used to avoid technical measures shall not be provided to others, and the other rights legally enjoyed by the owners shall not be infringed upon. Presumably, only the part who is entitled to circumvent the technological measures can create or develop the device needed for such purpose, although any attempt to distribute the device is prohibited.
Article 4; 12 of RPRCIN
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? No
Under the following circumstances, technical measures can be avoided, but technical devices or components used to avoid technical measures shall not be provided to others, and the other rights legally enjoyed by the owners shall not be infringed on: 1. When providing a small quantity of copies of a published work for use by teachers or scientific researchers for classroom teaching or scientific research through the information network, and the works, performances, or audio-visual recordings can only be obtained through the information network; 2. When published written works are provided not for profit to the blind in a manner they can perceive them through the network and the said works can only be obtained through the information network; 3. A government organ is fulfilling its official duties according to administrative and juridical procedures; 4. Any test of the computer system or the safety capability of the network is carried out through the information network.
Article 12 of RPRCIN
Does national copyright or consumer protection law require that the use of TPMs on copyright works be disclosed to consumers? No
No law has the requirement per se, although Consumer Protection Law provides that consumers have the right to know the true information about the product or service he/she purchases.
Article 8 of the Consumer Protection Law
Are there cases in which the availability of injunctive relief for copyright infringement is limited by the law on public policy grounds? In part
Article 30 of Software Regulations provides,a holder of copies of a piece of software that neither knows nor has reasonable grounds to know that such copies are infringing ones does not bear liability of compensation but shall cease the use of, and destroy, the infringing copies. Nevertheless, if the cease of use or the destruction of such copies is likely to cause heavy losses to him, the holder of such copies may, after paying reasonable remuneration to the software copyright owner, continue to use such copies.
Article 30 of RCSL
Have major ISPs resisted requests from copyright owners to pass on allegations that their users have engaged in copyright infringement? No
The answer is largely no. Under RPRCIN, the network service provider, after receiving notification from the owner, shall immediately delete or disconnect the link to the work, performance, or audio-visual recording suspected of infringing on an other’s right, and meanwhile shall transfer the notification to the service object of the work, performance, or audio-visual recording; if the network address of the service object is not clear and the notification cannot be transferred, the network service provider shall publicize the content of the notification through the information network. An ISP that fails to comply with the above requirement is subject to civil and administrative liability.
Article 15 of RPRCIN
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? Yes
Under Criminal Law, only where an actor gains a fairly large amount of illicit income, or when there are other serious circumstances, should the infringing act subject to criminal penalties. On the other hand, "Counterfeit" normally refers to trademark counterfeit. I oppose to extend its application to copyright law, as is being done by ACTA. The question may be paraphrased.
Article 217 orf Criminal Law
Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award? No
Where a copyright or a copyright-re1ated right is infringed, the infringer shall compensate for the actually injury suffered by the right holder; where the actual injury is difficult to compute, the damages shall be paid on the basis of the unlawful income of the infringer. The amount of damages shall also include the appropriate fees paid by the right holder to stop the infringing act. Where the right holder's actual injury or infringer's Unlawful income cannot be determined, the People's Court shall Judge the damages not exceeding RMB 500,00 Yuan depending on the circumstances of the infringing act.
Article 48 of CL
Is there provision to penalise the wrongful allegation of copyright infringement? In part
If the notification of the copyright owner results that the network service provider has wrongly deleted the work, performance, or audio-visual recording, or wrongly disconnected the link to the work, performance, or audio-visual recording, causing a loss to the service object, the owner shall be liable for compensation.
Article 24 of RPRCIN
Is there provision to penalise the obstruction of consumers' exercise of user rights? No
No. Microsoft had deployed the so-called screen black-out TPM to "lock up" the users' computers on which unauthorized copies of Windows were installed. A leading IM program provider disabled the users' computers from running a competitor's free anti-virus program.

Conclusions

Unlike the development of copyright legislation in developed countries where the domestic legal framework was set up prior to acceding to international obligations, China’s legislative development adopted the reverse course. This unusual legislative development was necessitated by China’s policy to reform its economy, from a state-planned economy which denied “private rights”, to an open market economy which protected such rights. As a result, Chinese copyright law that was largely copied from international treaties or developed countries' laws offers high level copyright protection for right owners. In certain aspects, Chinese copyright protection is higher or more rigid than what is required by international treaties. Overall the high level protection is not consumer-friendly and fails to contemplate the international trend of open access to copyright works.

With the solid growth that gradually makes China a world economic giant in 21st century, the copyright legislation has become more responsive to the domestic need than satisfactory to the trade partners’ demand. The national intellectual property strategy enacted in 2008 benchmarks the conscious policy shift that is being translated into legislative activities. The range of exceptions specifically geared towards consumers is quite broad, including exceptions for the translation of works into minority languages, for adaptation of works into Braille, and for free-of-charge live performances.  Further, much Chinese copyright law is not strictly enforced. Of course, the ideal would be for a more balanced law to be enforced more consistently.

On the other hand, it should be noted that there are many other legal restrictions, beyond IP, on contents and dissemination of information in China. For example, the Chinese General Administration of Broadcasts, Films and Televisions issued a new regulation requiring that all the videos communicated or shared on any website be licensed by the authority, irrespective of whether a website has acquired the copyright license. In 2009, more than 4000 websites were shut down in the anti-vulgurity campaign. Therefore, when assessing the A2K scenario , it is important to look beyond the copyright system and take into account the other correlated factors.

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