The current Copyright Law came into force as of June 1, 1991. It underwent one minor amendment in October 2001 before China entered the WTO, and a second amendment was made to a specific article under the pressures from outside parties. Other than that, no substantial amendments have ever been made since it was promulgated and put into practice.
The Copyright Law has been in operation for about twenty years, a period when technology saw rapid progress and industrial culture experienced dramatic changes. At present, due to the obsolete clauses, it cannot meet the requirements needed to stimulate socialist culture and science and allow it to flourish. In some cases it even runs against its mission designed by the enactors by impeding industrial culture from developing. Besides, flagrant piracy and copyright owners' difficulty in safeguarding their interests also entail a wholesale reformation of the Copyright Law.
I hereby give some suggestions on the coming revision.
I. Strengthen Piracy, Crack Downs, Add New Methods for Calculating Damages and Raise Upper Limits of Damages
Piracy is rampant, damages are peanuts compared to actual damages, and the costs for safeguarding interests are skyrocketing. This is the status quo of copyright protection in China. New measures are badly needed to enhance administrative and criminal strike on piracy, and to further the judiciary protection with larger volumes of damages and more effective enforcement.
In China, intellectual property is protected by both administrative and judicial bodies. The administrative channels are known for their effectiveness and convenience in practice, especially in protection for trademarks, but currently the administrative processes have marginal roles to play in copyright protection. The major reason for this is that current laws are deficient and fail to define their responsibilities and protection methods. I suggest that new clauses be added to the Copyright Law to further administrative protection by laying down their specific responsibilities, increasing the methods of operation, while trying to avoid redundancy of staff and seeking.
Criminal protection for copyright has seen major improvements in recent years. At one point, in some places, piracy and fake products were flagrant. Copyright owners' employees conspired with outside pirates, there were large volumes of infringement cases, piracy chains were organized for the production, supply and sales of infringed products, and those engaged in copyright infringement crimes were involved in other forms of criminal activity.
To solve these problems, the Supreme People's Court and Supreme People's Procuratorate, in September 2004 and April 2007 respectively, have both issued interpretations on issues regarding the application of the law to the resolution of criminal cases involving intellectual property. These two judicial interpretations clearly and appropriately lowered the standards for charging offenders with copyright infringement offences. The Opinions on Several Questions in the Application of Law to Criminal Cases Involving Intellectual Property Infringement, issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice in January 2011 brought increased criminal penalties and has offered more protection for copyright holders by targeting the problems that emerged from technological progress and development of the Internet. China has taken to the path of having each separate branch responsible for protecting intellectual property pass separate laws. It is worth incorporating all of the above progress into the Copyright Law.
Article 48 of the Copyright Law is the major means of compensation for right holders against copyright infringement. Section a provides for compensation equal to the actual losses of the copyright owner, section "b" permits authorities to confiscate the unlawful gains of the infringer, and section "c" imposes lawful damages of up to 500,000 Yuan.
Given the copyright owner's difficulty in evidence production, it is almost impossible to prove actual losses caused by infringing businesses or persons. It is also hard to legally establish an accurate figure for the unlawful gains of the infringers because the administrative investigators and copyright owners have limited capacities. For violations involving small volumes infringing products, the profits from the infringing products calculated thereby are always marginal, and thus damages imposed on infringers are not worth mentioning. This author suggests improving the procedure for establishing damages.
Punitive damages had long been applied to consumer protection alone before the principles for punitive damages were further established in the Tort Law that was officially promulgated in 2010. In terms of copyright law amendment, the principle of punitive damages may be introduced for better safeguarding copyright owners' interests, targeting the status quo that copyright piracy is flagrant, costs of piracy are low, while those for safeguarding the right owners' interests are high. Maybe the licensing fee under the Patent Law can be referred to when calculating damages.
In its reply to the Request for Instructions on Determination of Compensation Volume for Infringement of Copyright of Photographs and Other Fine Arts Works, The State Copyright Bureau provided in 1994 that the compensation "may be calculated by two to five times the copyright owner's reasonably expected income. Compensation for books, for example, can be calculated by two to five times the remuneration standard regulated by the State." This calculation method means nothing for the time being as inflation in the past twenty years has offset its effect. The calculating manner by times, however, can be preserved and improved for future use. The Patent Law has adopted this method, and has been proven effective in practice. It is needed in practice to prescribe specific analysis and judgment on the grounds of particular cases and relevant evidence for particular circumstances.
The upper limit of damages should be one million Yuan, a figure admitted in the newly revised Patent Law. It deserves attention that the figure does not mean there are not exceptions. When it is proven with sufficient evidence that the actual losses or unlawful gains exceed one million Yuan, the judge still is to decide, by the preponderance of evidence principle, on the reasonable damages that exceed the upper limit, even though no specific figure for damages can be given. The cap of one million Yuan may, and should be surpassed under such a circumstance.
II. Reasonably Distribute Burden of Proof under the Preponderance of Evidence Principle
One major reason which explains the high costs of safeguarding copyrights and low damages from copyright pirates is that infringers bear no burden of proof to provide evidence regarding the volume of their offences. China lacks effective rules for evidence production, as some other countries have adopted. To solve this problem, a reverse evidence system should be introduced for infringers to prove their claims regarding the volume of infringement. Those who fail to produce evidence or present false evidence are subject to judicial penalties. The court may apply the preponderance evidence principle in calculating damages since its decision is grounded on the plaintiff 's evidence or circumstances that have been proven.
In revising the Copyright Law, special attention should be paid to the protection of right owners' interests and the balance of rights of all parties involved.
III. Lay Emphasis on Citizens' Right to Know and Decrease the Items for Copyright Law Protection
In revising the Copyright Law, a correct attitude should be adopted that considers the overall situation and balance the interests of all related parties. While striking against piracy and protecting copyright owners' rights and interests, citizens' right to know should not be neglected.
Article 5 of the existing Copyright Law stipulates the objects excluded from the law. Article 5.1 provides that it does not apply to "laws, administrative regulations, the resolutions, decisions, orders and other legislative, administrative, judicial documents of State organs, as well as their translations." This coverage is too narrowly prescribed. It should have included the policy documents of the Communist Party, government organizations, the Chinese People's Political Consultative Conference and other democratic parties, as well as the explanation, interpretation and declaration thereof, and other publicity works. A higher transparency of these files may help protect citizens' right to know. A proposed alternative is that Article 5.1 be revised to state, "laws, administrative regulations, the resolutions, decisions, orders and policy documents of State organs, other legislative, administrative, judicial and law enforcement documents, and the official explanation, speeches, comments and other publicity works thereof, as well as the official translations of all the above." This suggested version is aimed to strengthen the protection for the public's right to learn the truth, and to preserve the balance of copyright protection and people's right to know. Meanwhile, it reflects the requirements in our construction of democracy and rule of law.
The Copyright Law is not almighty in all the fields involving written works. Under the special circumstances of China, attention should be paid to its sphere of proper application. A flexible copyright system may be conducive to a more comprehensive development of China's copyright undertaking.
IV. Reasonably Use an Interception Clause
Article 22 of the current Copyright Law hosts an all-in-one list for reasonable uses, while at the same time limits the scope for determining its reasonable application. Given the possibility it may create new problems with social, technological progress, the exclusionary method is not necessarily appropriate.
This author hereby suggest that additional clauses on reasonable use should be added to address possible emergences, and adopt the Three-step Test in the Copyright Law from international conventions, rather than leaving the law in the implementing regulations. For example, a 13th article could be added to the law as "under other special circumstances, conflicts with the normal exploitation of no works and unreasonably damage no right owner's legitimate rights."
Such an amendment is needed in practice and meanwhile may help our copyright legislation be more focused on social harmony and balance of rights and interests. This can also be found in the legislation of other countries.
V. Update of Concept
The broadcasting right under Article 10 of the current Copyright Law refers to "the right to broadcast or disseminate works to the public in wireless forms, to disseminate or rebroadcast works to the public in wire forms, as well as to disseminate works to the public via loudspeakers or similar tools that carry signals, sound, or graphics."
This confirms with the Berne Convention, which however has not been revised since 1971, when broadcasting technologies were still primitive and the broadcasting of works through a wire system was not covered in the broadcasting right.
Works broadcasted via a wire system should be covered by the "right that shall be enjoyed by copyright owners," but our definition of "broadcasting right" is comparatively behind the times, and possibly hosts some hidden problems. For the new amendment, legislators should redefine the term as "the right to broadcast or disseminate works to the public in wireless forms, to broadcast works to the public in wire forms, or disseminate works to the public via wire rebroadcast forms, as well as to disseminate works to the public via loudspeakers or similar tools that carry signals, sound, or graphics," or "the right to broadcast or disseminate works to the public in wireless or wire forms, to disseminate or broadcast works to the public in wire dissemination or wire rebroadcast forms, as well as to disseminate works to the public via loudspeakers or similar tools that carry signals, sound, or graphics."
Such an amendment reflects the requirements of technological development and the updating of law.
In conclusion, endeavors should be made so as to achieve effective protection and an all-around balance of rights, and to reasonably distribute duties and obligations. For this purpose, energy should be firmly focused on facilitating technological and cultural progress, and serving the development of industrial culture.
