The new Copyright Law has many exciting highlights...
In accordance with international conventions,such as the Beijing Treaty on Audiovisual Performances and the Marrakesh Treaty,and Civil Code of the People's Republic of China,the Copyright Law was revised to unify and standardize relevant terms,reorder the legal provisions and make quite a few literal amendments.
The legislative authority has made substantial changes in active response to unanimous demands, such as audiovisual works, punitive damages, raising the upper limit of the statutory damages to RMB 5 million and meanwhile setting the lower limit of the statutory damages to RMB 500,adding the right of broadcasting audio works and the right of dissemination via information network, strengthening the administrative enforcement authority and strength of copyright administration departments,appropriately expanding the scope of fair use and narrowing the scope of statutory licensing.
The newly revised law incorporates some provisions from the Implementing Regulations of the Copyright Law, the Regulations on Protection of the Right of Dissemination via Information Network, and the Regulations on Collective Copyright Management,such as the definition of works,the publicity obligations of collective copyright management organizations, technical protection measures and rights management information.
In recent years, disputes have been constantly raised against new issues,such as whether video clips,rebroadcasting of sporting events and artificial intelligence products fall within the scope of protection of the current Copyright Law.The current copyright law is unable to enumerate all the types of works in an exhaustive manner, and the provision on the definition of works,i.e., “copied in some tangible form”,in the Implementing Regulations of the Copyright Law,is too narrow and not rigorously expressed, which,thereby lead to inconsistency in the definition of works in reality.
The newly revised law improves the definition of“works”as “ingenious intellectual achievements in the fields of literature,art and science that can be presented in a certain form”, and meanwhile revises “cinematographic works and works created in a way similar to cinematography” as“audiovisual works”,and“other works as provided in laws and administrative regulations”as“other intellectual achievements that meet the characteristics of works”.Such provisions are more reasonable, more accurate and more scientific,and are prescient as they can cover the types of works which are not included in the current Copyright Law and new types of works which will appear in the future.
In brief,any works that meets the definition of the works in the newly revised Copyright Law will be protected according to law.It can be seen that the Copyright Law encourages the creation and dissemination of works,and may avoid arbitrary interpretation,expansion or narrowing down of the scope of works in the trial of cases relating to new types of works in judicial practice.(https://www.daowen.com)
According to the current Copyright Law, “current af fairs news” is not susceptible for copyright protection.In the Implementing Regulations of the Copyright Law, “current affairs news” is defined as “pure factual information”.In practice,the press and the industry have been disputing over whether“current affairs news”is identical with“pure factual information” for a long time.The definition and scope of“current af fairs news” are not unified and the ownership of works of news is ambiguous,so that the judicial authorities often make different judgments in copyright disputes concerning “current af fairs news”, and a large number of current af fairs news that should be copyrighted are infringed or pirated arbitrarily.That is the essential reason why media convergence is weakly promoted.
The newly revised Copyright Law amends“current affairs news”to“pure factual information”.Such a narrowed-down interpretation makes it clear that it is the “pure factual information” in the current affairs news, rather than all“current af fairs news”,that is not susceptible for copyright protection.There is also the added provision on news-related“service works”,that is, works created by the staff of a news agency are service works,the author of the service works shall enjoy the right of authorship, while the legal entity or unincorporated organization shall enjoy other rights included in the copyright and may reward the author.Such a provision is more conducive to the determination of the copyright ownership of news achievements, and helpful for the dissemination and copyright protection thereof, which will have a significant and far-reaching impact on the development of journalism and in-depth media convergence in China.
This revision specifies the type of“audiovisual works”and amends“cinematographic works and works created in a way similar to cinematography” as“audiovisual works”.On the basis that the copyright of cinematographic works and TV play works shall be enjoyed by producers, and screenwriters,directors, photographers, lyricists, composers and other authors shall enjoy the right of authorship and the right to obtain remunerations as provided in the contracts,the third revision of the copyright law further stipulates that the ownership of the copyright of an audiovisual work other than cinematographic works and TV play works shall be agreed upon by the parties； and where there is no agreement or the agreement is unclear,the copyright shall be enjoyed by the producer.The authors of script, music and other works that may be used separately shall have the right to separately exercise their copyright.Those provisions not only comply with the provisions of the Beijing Treaty on Audiovisual Performances that was concluded and entered into force in China, but also give full consideration to the new trend of agreements on ownership resulting from the prosperity and development of cinematographic and TV industries in China,which shows respect for the civil law principles of“autonomy of will and giving priority to agreement”.
With reference to the Marrakesh Treaty,the newly revised Copyright Law incorporates the act of“facilitating access to published works in a barrier-free manner that allows persons who are print disabled to perceive”into the scope of fair use,and restricts the condition that makes free performance eligible for fair use, namely, not for the purpose of profits.Meanwhile,the newly revised Copyright Law also incorporates the condition for the application of fair use,i.e.,the two steps in the“three-step test” must be complied with,to be specific,the use of a work by others“shall not affect the normal use of the work and shall not unfairly impair the legitimate rights and interests of the copyright owner”.
In recent years, with the rapid development of online music and online audiovisual industries, right holders,audiovisual works websites, music websites and broadcasting organizations have been arguing constantly over the right of broadcasting organizations.The newly revised Copyright Law adds the right of dissemination via information network to the scope of prohibitive right of broadcasting organizations,and at the same time, stipulates a tightening-crown spell, that is,when exercising their prohibitive right, the broadcasting organizations “shall not affect, restrict or infringe others'exercise of copyright or copyright-related rights”, which solve the confusion of right holders and industrial circles.