You are here: Home Law Topics Intellectual Property China Copyright Protection Rules and Regulations Insight - China copywrite protection

China Lawyer Blog - We answer your questions

China Copyright Protection Rules and Regulations Insight - China copywrite protection

Article Index
China Copyright Protection Rules and Regulations Insight
China copywrite protection
All Pages

In addition, all the infringing copies seized, unlawful income and all the criminal materials, implements, equipment of infringing copyright shall be confiscated. Subject to criminal responsibility under the Criminal Law, whoever commits any of the crimes provided by this Law and causes losses to the right owner, shall pay damages depending on the circumstances. This kind of civil suit can be brought together with the criminal prosecution.

2. Trial of Civil Cases

In accordance with the General Principles of the Civil Code of the People's Republic of China, the Copyright Law of PRC and the Law of Civil Procedure of PRC, anyone who commits acts of copyright infringement, shall be subjected, by China court through civil procedure, to civil liability for such remedies as ceasing the infringing act( injunctions ), eliminating the effects of the act, making a public apology or paying compensation for damages. In addition to civil liabilities mentioned above, acts specified in Article 46 of the Copyright Law may also be penalized through confiscation of illegal income or fines.

The principle of compensation in such cases is complete compensation, i.e. the infringement should compensate the infringed party for the actual total loss injured by the infringing act, which includes direct and indirect loss (of attainable interests, investigation expenses and attorney fees). The amount of damages should be decided on the basis of both the illegal income of the infringer and actual losses of the infringed party. Where one aspect is difficult to determine, the other may be considered as the basis for calculating damages. Apart from economic damages, moral damages may also be compensated. For example, in the case of Hongkong Polygram Company and other 22 companies v. Xu Huale from Taiwan concerning copyright infringement, Shanghai No. 2 Intermediate Court ascertained that the defendant violated the copyright of the plaintiffs, and ruled that defendant stop the infringement, pay the plaintiffs 6.67 million RMB yuan as compensation, be fined 1.2 million RMB yuan and make public apology to the plaintiffs in newspapers and magazines. In the case of Microsoft, Autodesk and Wordperfect v. Beiing Juren Computer Company, the first instance award issued by Beijing No. 1 Intermediate People's Court ordered the defendant to stop infringement activities, pay the plaintiffs 445,000 RMB yuan as compensation and a fine of 80,000 RMB yuan.

In civil proceedings, the China courts have the power to, at the request of the parties, take preservative measures on evidences and property. Where it is urgently necessary to dispose substantive civil rights of the party concerned, the courts may make preliminary judgment such as injunction before the final decision. I'll mention more about preservative measures later.

3. Trial of Administrative Cases

According to the Copyright Law, copyright administration department may impose administrative penalty upon serious infringing acts. Any party who objects to an administrative penalty may institute proceedings in a court within three months of having received the written decision on the penalty. China court, after examination, shall make judgment concerning the lawfulness of the administrative penalty in question, so as to affirm, annul or modify the penalty decision. If a party neither institutes proceedings nor implements the decision within the above limit, the copyright administration department concerned may apply to a court for enforcement. In fact, these cases are extremely rare because generally, the copyright administration departments do a very good job of enforcement and the evidences for infringement are solid and adequate.

To meet the increasing demand for adjudication, China courts have made great efforts in the training of copyright specialized judges through workshops, seminars, case analyses and study visits to other countries. Hence, there are batch after batch of judges who, proficient in law, foreign languages and professional knowledge, are capable of handling copyright cases. A complete structure of judicial bodies and a good contingent of judges ensure that China courts correctly handle copyright cases and effectively protect copyright.

As China has acceded to the Berne Convention, UCC, the Phonograms Convention, and signed bilateral agreements on copyright protection with some countries, the number of cases brought by foreign citizens and legal persons is steadily increasing. When a China court tries a case arising from copyright dispute involving foreign nationals, it acts in accordance with Chinese laws and relevant international conventions, international treaties (with the exception of the articles that China has reservations on), and bilateral agreements, to which China is a party, and with reference drawn to the international practices. It also strikes to the principle of national treatment and reciprocity on the applicable laws. For copyright cases which involve technical issues, China courts also engage technical experts to serve as an assessor or offer advice, thus ensuring openness, impartiality, seriousness and scientificity of the trials. For example, In the case of Walt Disney Company v. Beijing Publishing Company, Beijing Distribution House of Xinhua Book-Store and the third party -- the Great World Publishing Co. Ltd. concerning copyright infringement, based on the Copyright Law of China and the MOU between China and the United States on IPR Protection, Beijing Intermediate Court ruled that the plaintiff enjoyed the right of authorship to the artistic work of cartoon image involved in the case, the publication and distribution by the defendants of the "Disney Virtue Story Series" constituted infringement. The final award ordered the defendants to stop the publication and distribution, pay the plaintiff 227,000 RMB yuan( $26,706 ) as compensation and make public apology in newspapers and magazines. The court also imposed civil punishment on the defendants.

In the course of trying a case, if the behavior of one party in the case or other reasons may cause difficulty or inability for the implementation of an award, a China court shall make a ruling according to law for property preservative measures depending on the application of the other party; in case of no application from the party concerned, a China court may make a ruling for preservative measures according to law when necessary. When taking preservative measures, a China court may order the applicant to provide deposit. According to provisions of law, property preservative measures include seal, detention, freeze and other measures stipulated in law. Preservative measures have been proven very effective for trials of copyright cases by China courts. For example, in the case of Microsoft, Autodesk and Lotus V. Beijing Juren Computer and other 4 defendants, Beijing Intermediate Court applied in time property and evidence preservative measures to the 5 defendants according to the application and the effective deposit of the plaintiffs. According to the indications of the plaintiffs, the court sealed 7 computers and 366 soft disks. This case has drawn wide public attention.

As regards infringement damages, the judicial interpretation of the Supreme Court provides for three methods to calculate damages (plaintiff's loss, defendant's profit and fee of licensing contract as a reference), which are commonly used by courts in most other counties. Where infringement is ascertained, China courts shall apply the principle of sufficient compensation and punitive fine, that is to say, right holders are compensated for whatever amount they lose due to the infringement. For those infringers who knowingly conduct infringing activities with serious consequences, China courts shall confiscate their illegal income according to law and impose civil penalty on them such as fines and criminal detention, in addition to ordering them to take civil liabilities according to law such as stopping infringement, eliminating impact, making apology and compensation.

It ought to say, China has set up a better legal system of protection IPR than before. China is trying to improve the level of the protection. The internationalization of IP infringement should be paid attention to. The situation ask us to exchange more information and more understand each other and stand in the same place to cope with the infringements of IP even criminals. It is also my goal to come to US.

It has been a pleasure having the opportunity to speak today. My talk is not all-inclusive and may raise many additional questions that I would be pleased to discuss again in future. Thank you for your time and attention.

The Enforcement of Copyright Protection in China

China not only has a strong legal system for copyright protection, it also continues to strengthen enforcement. In recognition of the specialized nature of intellectual property rights cases and the advanced nature of the technology often involved, the higher people's courts in several provinces and municipalities directly under the central government such as Beijing, Shanghai, Guangdong, Fujian and Hainan have since 1992 established intellectual property rights courts as needs demand. The intermediate people's courts in all the special economic zones as well as Beijing and Shanghai have also established intellectual property rights courts. Intermediate people's courts in the capitals of other provinces, municipalities and autonomous regions have set up collegial panels specializing in cases involving intellectual property rights protection. This centralized the hearing of intellectual property rights cases, creates several advantages. It ensures unity in executing the law, amasses experience in dealing with the law, and strengthens the quality of judicature in intellectual property rights cases.China has tried a number of important copyright infringement cases under great public attention, producing undeniable social effects. These specific cases greatly increased knowledge and awareness of the laws.

If China would solve its copywrite issues, new technology and creative industry will not develop very well in the future. To make matter worse, it will face serious international complaints over pirate and forfeits increasingly, which is obviously a bad trend that I would rather not see.



 
  • Goal

  • Fees

The law blog is running by a China lawyer working for a full-service law firm, offering practical, results-driven advice on employment law, divorce, company law, and other legal issues. Our goal is to manage these issues effectively so that our clients can focus on what they could do best.

China Lawyer Blog will charge you under your specific circumstances in the following styles:
(1) Hourly fee arrangements
(2) Contingency fee arrangements
(3) Flat fee arrangements
(4) Percentage fee arrangements

Learn More...

ACCREDITED BY

China Lawyer Blog China Lawyer Society

China Lawyer

I am a licensed China lawyer. Most clients are foreign nationals and companies. China Lawyer Blog have associates in Beijing, Shanghai, Tianjin, Guangzhou, Suzhou, Nanjing, Qingdao, Fuzhou, Hainan, Hefei, Wuhan, Xian, Changsha, Xiamen and Hangzhou. Learn More

Latest Comments

AWARDINGS

China law society award


Style of Service

This China Lawyer Blog is aiming at providing better knowledge and understanding of Chinese law for foreigners. Should you have any legal issue in China, do not hesitate to contact China Lawyer Blog for consultation. Preliminary consultation is free. Further legal service, however, will be charged in due rate and in due course.

You are welcomed to ask for a quotation pursuant to your specific circumstance.

About author

China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.