The new amendment to the Copyright Law of PRC has come into effect since 1 June 2021. The amendment is expected to strengthen the protection of the copyright holders and to provide a desirable legal environment for innovation and creation. There are 42 revisions in total, while for your kind reference, we have summarized several revisions that may be noteworthy for your consideration. The highlights we would like to bring to your attention are as below:
1. Non-Profit Restriction on Free Performance
With respect to free performance, which may be a way of fair use, a general non-profit restriction has been added to prevent making a profit in disguise by means such as collecting advertising fees through free performance. Considering the development of internet and new profit models, the ways to make profits may not be as simple as they used to be, and the new restriction in such a short sentence in fact is regarded as a very important revision.
2. Increasing the Intensity of Administrative Punishment
The Amendment specifies the way of calculating monetary fine in administrative cases and removes the “if the case is serious” condition for confiscating and destroying materials, tools, and equipment mainly used to make the infringing reproductions. Generally speaking, the Amendment raises the intensity of administrative punishment to strengthen the protection of copyrights.
3. Introduction of Punitive Damages
Introduction of punitive damages is one of highlights of the Amendment. For intentional infringement, or in another word, infringement in bad faith, punitive damages may apply. This is considered as a big step to enhance copyright protection.
4. Raising the Statutory Damages
The Amendment raises the statutory damages by 10 times from CNY 500,000 (approx. USD 75,500) to CNY 5,000,000 (approx. USD 755,000), which is also deemed as a very clear signal of punishing copyright infringement and enhancing the protection.
5. Shifting the Burden of Proof regarding Damages
In accordance to the Amendment, with respect to evidence regarding the amount of compensation/damages, the burden of proof may be shifted to the Defendant, if the plaintiff has assumed necessary responsibility of burden of proof. This revision eases the burden on the right holder’s side and it increases the possibility to uncover the facts related to calculation of compensation/damages.
6. Further Infringement Liabilities
The Amendment adds that infringing reproductions should be destroyed upon the request of the plaintiff except for exceptional cases, and materials, tools, and equipment mainly used for reproductions should be destroyed without compensation. The revisions are made in hopes of ceasing the infringement thoroughly.
7. Empowering the Administrative Authority to Investigate
Unlike the police, the administrative authority responding for copyright matters is not clearly empowered by the law to conduct further investigations in enforcement cases, which sets obstacles for the authority to uncover relevant facts. The Amendment specifies the authority’s power and ways of investigation, which is another step to enhance copyright protection through public power
Post-filing data is important for the Applicant to get a patent right, especially for the Applicant in the biological and chemical field. However, you may find the examination standard for the post-filing data is very strict in China.
The sixth amendments to the Guidelines for Patent Examination already have taken effect on January 15, 2021, making a new clarification for the examination of the post-filing data.