Draft Copyright Law Up for Public Comment | China IPR - Intellectual Property Developments in China
by Mark Cohen
The National People’s Congress released a draft of the Copyright Law for public comment. Comments are due by June 13, 2020. The NPC comments on the draft are found here. The NPC Observer’s concise summary of the legislative history is here. I had discussed the earlier draft, along with the NPC observer predictions regarding consideration in late 2019, here. The draft will likely be reviewed again near the end of this year and could pass in late 2020 or 2021.
There have already been some reactions to this draft. Aaron Wininger pointed out in a recent article the provisions regarding quintuple damages, increased statutory damages, shifting of the burden of proof, and improvement in digital rights management. He also briefly discusses some other changes, such as the change from “audiovisual works” to “cinematographic works.” On first glance, the draft does appear to have expanded provisions on technological protection measures and anti-circumvention of technological protection measures, although further study is necessary to determine their consistency with prior laws, regulations, China’s commitments under the WIPO Internet Treaties, etc. (See Art. 48).
“Quintuple damages” and burden-shifting appear to be the “new normal” in revisions to Chinese IP laws. These changes predate the current trade war and are part of a mounting effort to increase civil deterrence. It remains to be seen how they will be implemented in judicial interpretations and how observable they will be in judicial practice through the publishing of relevant cases.
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