Legislation & Policy

Translation: SPC Opinions on Strengthening the Protection of Copyright and Neighboring Rights

SIPS Knowledge, Legislation and Policy

In order to effectively strengthen the copyright protection in the fields of literature, art and science, give full play to the role of copyright trials in regulating, guiding, promoting and guaranteeing cultural construction, inspire cultural innovation and creativity of the whole nation, promote the construction of socialist spiritual civilization, prosper and develop cultural undertakings and cultural industry, enhance the national cultural soft power and international competitiveness, and serve the high quality of economy and society, in accordance with the Copyright Law of the People’s Republic of China and other legal provisions, and in combination with the judicial practice, the following opinions are put forward to further strengthen the protection of copyright and copyright related rights.

  1. Strengthen the protection of creators’ rights and interests in accordance with the law, take into account and balance the interests of communicators and the public, and insist on the core position of innovation in the process of China’s modernization construction. Handle the relationship between encouraging the development of emerging industries and protecting the legitimate rights and interests of right holders in accordance with the law, coordinate the relationship between encouraging creation and safeguarding people’s cultural rights and interests, and give full play to the important role of assignees and licensees in promoting the dissemination of works. Protect copyright and copyright-related rights, promote the creation and dissemination of intellectual achievements, and develop and flourish socialist culture and science.
  2. Vigorously improve the quality and efficiency of case trials, promote piloting work in separating complicated and simple cases, and strive to shorten the trial period of cases involving copyright and copyright-related rights. Improve evidence rules for intellectual property litigation, allow the parties to save, fix and submit evidence through blockchain, timestamping and other methods, so as to effectively address the difficulties faced by intellectual property rights holders in providing evidence. Support parties’ request for behavioral injunctions, evidence preservation, property preservation, etc., in accordance with law, and comprehensively use various forms of civil liability so that intellectual property rights holders get secure comprehensive and adequate relief in civil cases.
  3. A natural person, legal person or unincorporated organization that signs a work, performance or product in the usual manner shall be presumed to be the copyright owner of the work, performance or product or the right holder of neighboring rights, unless there is evidence to the contrary. In disputes regarding a signature, a comprehensive judgment should be made based on the nature, type and form of expression of the work, performance and sound recording, as well as the industry habits and public perception. After the rights holder has satisfied the preliminary burden of proof, the People’s Court shall presume that the copyright or neighboring right claimed by the party is valid, absent evidence to the contrary.
  4. If the attribution of copyright or the copyright-related rights is determined by applying the rule of presumption of signature, and the defendant has not submitted evidence to the contrary, plaintiffs need not separately submit agreements regarding transfer of rights or other written evidence. In litigation proceedings, if the defendant claims that he is not liable for infringement, he shall provide evidence to prove that he has obtained the permission of the right holder, or that he is permitted to use the product without the permission of the right holder as stipulated under the Copyright Law.
  5. Attach great importance to the new demand of the development of technologies such as the Internet, artificial intelligence, and big data, accurately defining the types of works in accordance with the copyright law, grasping the standards for the identification of works, and properly handling new types of cases such as live sports, streaming of online games, and data infringement in accordance with the law, and promote the standardized development of emerging businesses and industries.
  6. If a party requests immediate destruction of infringing copies, as well as the materials and tools mainly used for the production or manufacture of infringing copies, the People’s Court shall in civil proceedings support the request, and in criminal proceedings order the destruction in accordance with its functions and powers. If under special circumstances it is inappropriate to destroy the said materials and tools, the People’s Court may order the infringer to dispose of the materials and tools in an appropriate way outside of commercial channels, so as to eliminate the risk of further infringement to the extent possible. The cost of destruction or disposal shall be borne by the infringer, and the People’s Court shall not support the infringer claim for compensation.

In criminal proceedings, if the right holder requests that the infringing copies, materials and tools not be destroyed temporarily for the purpose of preserving evidence for potential subsequent civil or administrative proceedings, the People’s Court may support it. Where the right holder requests that the infringer compensate for storage expenses paid in advance by the right holder in subsequent civil or administrative cases, the People’s Court may support it.

  1. If the actual losses of the right holder, the illegal income of the infringer, and the royalties are difficult to calculate, the compensation amount shall be reasonably determined in accordance with the relevant provisions of the Copyright Law and judicial interpretations, comprehensively taking into account the types of rights requested for protection, the market value, the subjective fault of the infringer, the nature and scale of the infringement, and the severity of the damage. Where the infringer intentionally infringes rights and the circumstances are serious, and the right holder requests punitive damages, the People’s Court shall review and make a determination in accordance with law. If the right holder can provide evidence to prove that he has made reasonable expenditures for the protection of his rights, including litigation fees and attorney fees, the People’s Court shall support it and calculate the expenses separately when determining the compensation amount.
  2. If an effective court judgement or administrative decision determines that the infringer has infringed on rights, or where a settlement agreement is reached with the right holder regarding an infringement but the infringer continues to commit the same infringement after the agreement is concluded, or repeats the infringement in a disguised form, he shall be regarded as an intentional infringer, and the People’s Court shall give full consideration to it when determining the civil liability in subsequent cases.
  3. The parties shall be clearly informed of their legal responsibilities vis-a-vis dishonest litigation through letters of commitment to good faith litigation. Parties shall properly exercise their litigation rights and actively undertake their litigation obligations. They shall actively, comprehensively, accurately and honestly fulfill their burden of proof within a reasonable period of time and their statements during litigation shall be true and complete.
  4. For dishonest litigation activities, such as submitting forged or altered evidence, concealing or destroying evidence, making false statements, giving false testimony, making false identifications, making false signatures, etc., the People’s Court may impose compulsory measures such as warnings, fines, detentions, etc. If such behavior constitutes a crime, criminal responsibility shall be investigated in accordance with law.

Translation by SIPS.

Original Chinese available at: https://mp.weixin.qq.com/s/HzuB0d1L7PpTkwyuZqsNDg