China's Copyright Law Amendments Broaden Scope of Copyright Protection But Uncertainty in Application Remains

May.05.2010

China's Copyright Law (2nd Revision) was adopted on February 26, 2010, and went into effect on April 1, 2010. The amendments contained in the 2nd Revision were adopted primarily in response to recent findings by a WTO (World Trade Organization) panel that China's denial of copyright protection of certain censored works was inconsistent with its TRIPS (Trade-Related Aspects of Intellectual Property Rights) obligations. Copyright protection is now extended to all "works," without regard to restrictions on publication and distribution that are imposed by PRC authorities under other laws and regulations (these restrictions are unaffected by the amendments). 

Previously, a work was not eligible for protection under China's Copyright Law if it was "prohibited from publication or distribution," which excluded from copyright protection all works that (i) contained objectionable content or (ii) had not gone through required prepublication or pre-distribution censorship review (which also entails content-based review). This represented a significant obstacle to copyright protection because of the vagueness and broad reach of the applicable standards. The types of content considered objectionable under Chinese law include those that:

  • violate the basic principles of China's Constitution;
  • jeopardize the unification, sovereignty and territorial integrity of the country;
  • disclose state secrets or jeopardize national security, honor or interests;
  • incite national enmity or discrimination, jeopardize national solidarity or infringe national customs and habits;
  • preach evil religion and/or superstition;
  • disturb social order and stability;
  • promote pornography, gambling or violence or abet crime;
  • insult or slander others or infringe others' legal rights;
  • jeopardize social morality or national cultural traditions; or
  • are otherwise prohibited by law.

Owners of the copyrights for works that fall into one or more of the foregoing categories are now entitled to pursue all remedies available under China's Copyright Law for copyright infringement, including injunctive relief, public apology and monetary damages. 

How effective the enforcement of copyright protection for these works will be, however, remains to be seen. It is unclear whether a copyright owner will be able to obtain damages if its work cannot be published or distributed in China, because the calculation of damages is based on "actual losses" under China's Copyright Law, and China's courts have been reluctant to acknowledge actual losses where the rights-holder has not obtained permission to publish or distribute the work in China. Accordingly, without further legislative (or judicial) clarification, the remedies available to these rights-holders might be limited to injunctive relief and/or a public apology from the infringer. 

On balance, however, the amendments are an indication that China's copyright law is moving in the right direction and should benefit foreign rights-holders whose works are subject to censorship in China.