Announcement of the State Administration for Market Regulation on the Decision on the Amendment of the E-Commerce Law of the People’s Republic of China (Draft for Comments)
Issued by SAMR Online Trading Supervision and Administration Division
In order to strengthen the protection of intellectual property rights, standardize the economic order of platforms and promote the sustained and healthy development of e-commerce, the State Administration for Market Regulation drafted the Decision on the Amendment of the E-Commerce Law of the People’s Republic of China (Draft for Comments), which is now open to the public for comments. The public is welcome to comment and to provide feedback to us by October 14, 2021:
- Log on to the website of the General Administration of Market Supervision (website: http://www.samr.gov.cn), through the home page “interactive” column “collecting survey” to give comments.
- Send an e-mail to: wjsgfc@samr.gov.cn. Please add the words “Opinions on the Electronic Commerce Act” to the title of the message.
- Mail paper letters to: Beijing Xicheng Sanlihe East Road 8, the General Administration of Market Supervision, the Department of Network Supervision, zip code 100820. Please add the words “Opinions of the Electronic Commerce Act” to the surface of the envelope.
Annex:
- Decision on the Amendment of the E-Commerce Law of the People’s Republic of China (Draft for Comments).
- Drafting Note of the Decision on the Amendment of the E-Commerce Law of the People’s Republic of China (Draft for Comments).
General Administration for Market Regulation
August 31, 2021
Annex 1
Decision on the Amendment of the E-commerce Law of the People’s Republic of China (Draft for Comments)
- Article 43 shall be amended to read: “After receiving the forwarded notice, the operator on the platform [vendor] may submit a statement to the e-commerce platform operator that there is no infringement. The statement should include preliminary evidence that there is no infringement.
After receiving the statement, the e-commerce platform operator shall forward the statement to the intellectual property right holder who issued the notice and inform the right holder that it can file a complaint with the relevant competent authority or file a lawsuit with the people’s court. If the e-commerce platform operator, after the forwarded statement reaches the intellectual property right holder, does not receive a notice of complaint or lawsuit within 20 working days, it shall promptly terminate the measures that have been taken.
[If] the operator on the platform provides a guarantee to ensure compensation for losses caused by potential intellectual property infringements, the e-commerce platform operator can temporarily suspend the measures that have been taken.
If the operator on the platform submits a false non-infringement statement, which causes the loss of the right holder to increase, it shall take twice as much liability for compensation.”
- Article 84 is amended to read: “If an e-commerce platform operator violates the provisions of Articles 42 and 45 of this Law by failing to take necessary measures in accordance with the law for the infringement of intellectual property rights by the operator on the platform, the relevant intellectual property law enforcement department shall order corrections within a time limit, and may impose a fine of RMB 50,000 to RMB 500,000; if the circumstances are serious, a fine of RMB 500,000 to RMB 2 million shall be imposed. If the circumstances are particularly serious, the relevant department may restrict it from carrying out relevant online business activities, including up to revocation of the relevant license of the online business.”
Annex 2
Drafting Note of the Decision on the Amendment of the E-Commerce Law of the People’s Republic of China (Draft for Comments)
In order to strengthen the protection of intellectual property rights, regulate the economic order of the platform, and promote the sustainable and healthy development of e-commerce, it is proposed to amend Articles 43 and 84 of the “E-commerce Law of the People’s Republic of China”:
First, the waiting period after counter-notification is extended. “If the e-commerce platform operator, after the forwarded statement reaches the intellectual property right holder, does not receive a notice of complaint or lawsuit within 15 working days, it shall promptly terminate the measures that have been taken” is amended to “If the e-commerce platform operator, after the forwarded statement reaches the intellectual property right holder, does not receive a notice of complaint or lawsuit within 20 working days, it shall promptly terminate the measures that have been taken.”
Second, in order to alleviate the possible transaction losses caused by excessively long counter-notification waiting period, a provision has been added: If the operator on the platform provides a guarantee to ensure compensation for losses caused by potential intellectual property infringements, the e-commerce platform operator can temporarily suspend the measures that have been taken.
Third, a provision is added: If the operator on the platform submits a false non-infringement statement, which causes the loss of the right holder to increase, it shall take twice as much liability for compensation.
Fourth, in Article 84, with regard to e-commerce platform operator’s legal liability for failure to take necessary measures in accordance with the law against operators on the platform infringing intellectual property rights, a provision is added: “If the circumstances are particularly serious, the relevant department may restrict [the platform] from carrying out relevant online business activities, up until the relevant license for online business is revoked.”
