The National Copyright Administration (NCA) in March issued the first draft of the amendments to the Copyright Law for comment. Significant changes from the prior law include 1) defining “works” to include intangible works, 2) “applied art” as a new category of works that can be copyrighted, 3) extending the scope of statutory licensing, 4) clarifying that Internet service providers are not liable for copyright infringement if they provide only technical services, have no actual or constructive notice of problems, and comply with “take-down” rules after notice from the copyright owner, and 5) increasing statutory damages to RMB 1 million, provided that the copyright is registered.
In addition to other powers, administrative authorities are authorized to seize infringing products and copy sales invoices and contracts relevant to infringements.
The draft amendments expessly include reproductions in intangible form such as in digital format. The right of dissemination over information networks now references live broadcasts and transmissions over information networks. The rights of radio and television stations are extended to preventing transmissions over the Internet.
Regarding employee works, the draft amendments clearly spell out that, in the absence of an agreement otherwise, copyright vests in the employee for works created in the course of employment, but the employer is entitled to use such works without charge. Copyright to engineering and product designs, however, vests in the employer, although the employee retains a right of authorship. An properly prepared agreement between the employer and employee will prevail over the statutory default provisions on vesting and ownership.
The current Copyright Law makes no provision for protection of works of “applied art”, and holders of rights to such works have been forced to try to protect them as works of “fine art”. The inclusion of ”applied art” in the draft amendments should facilitate protection of such works.
Musicians and producers have criticized the statutory licensing and collective management of copyright provisions in Articles 46 and 48 of the Copyright Law, under which others may produce their own version of a recording three months after it is published, provided that they apply to the State Copyright Bureau, pay royalties to the Music Society of China, and acknowledge the copyright owner. Artists will receive compensation from the funds paid under this so-called ”collective management scheme”, but it is not clear whether the pricing mechanism used by the State Copyright Bureaus will have any relation to market value. Well-known artists and recording companies are concerned about the short three-month protection period, which will limit their ability to control protected music after the period expires.