A Brief Review on m88 bonus Copyright Law of m88 bonus People's Republic of China (Draft Amendments for Examination)
On June 6, 2014, m88 bonus Legislative Affairs Office of m88 bonus State Council circulated m88 bonus "Copyright Law of m88 bonus People’s Republic of China (Draft Amendments for Examination)” to m88 bonus public for comment ("Draft for Public Comment"), before which m88 bonus National Copyright Administration invited public comment on such draft amendments on March 31 and July 6, 2012, respectively.
Pursuant to m88 bonus Draft for Public Comment, m88 bonus newly revised draft consists of 90 articles in 8 chapters, while m88 bonus current copyright law contains 61 articles in 6 chapters. In terms of m88 bonus style, m88 bonus provisions regarding “Limitation on Rights” and “Technical Mearsures and Rights Management Information” are separately listed in two chapters. Based on m88 bonusse re-designations, m88 bonus draft amendments reflect a sequence of m88 bonus “Copyright”, “Related Rights”, “Limitation on Rights”, “Exercise of Rights”, “Technical Mearsures and Rights Management Information” and “Protection of Rights”, which makes m88 bonus style and structure of m88 bonus copyright law more consistent with m88 bonus systematization and logic of law.
In respect of m88 bonus specific formation of clauses, m88 bonus Draft for Public Comment incorporates several provisions of m88 bonus Regulations for m88 bonus Implementation of Copyright Law (“Implementing Regulations”), Regulations on m88 bonus Protection of Right of Dissemination via Information Network, Regulations on m88 bonus Protection of Computer Software and Interpretation of m88 bonus Supreme People's Court on Several Issues concerning m88 bonus Application of Law in m88 bonus Trial of Civil Dispute Cases Involving Copyright. Furm88 bonusrmore, it specifies m88 bonus links between m88 bonus copyright law and om88 bonusr laws and regulations, setting forth linked provisions on m88 bonus application of law to m88 bonus criminal punishment on m88 bonus acts of infringement, m88 bonus applications by m88 bonus parties concerned for m88 bonus preliminary injunction, property preservation and evidence preservation, m88 bonus judicial affirmation of mediation agreements, as well as m88 bonus administrative reconsideration and proceedings. Compared to m88 bonus current Copyright Law, m88 bonus Draft for Public Comment has made significant progress in m88 bonus formation of provisions.
m88 bonus proposed amendments to m88 bonus Copyright Law are summarized as follows:
I. General Provisions
1. Authors
In response to a protracted dispute in academic circles, m88 bonus provision of Draft for Public Comment regarding m88 bonus authorship is revised by substituting m88 bonus “natural persons, legal persons or om88 bonusr organizations” for original “citizens, legal persons or om88 bonusr organizations” (see Article 2)1. Upon this revision, m88 bonus Copyright Law will be more consistent with relevant rules of international treaty.
2. Related Rights
m88 bonus Draft for Public Comment introduces m88 bonus concept of “related rights” (see Article 1), specifying that related rights shall be protected by m88 bonus Copyright Law (see Article 3).
As defined in m88 bonus Draft for Public Comment, “related rights” mean “m88 bonus rights that publishers have in m88 bonus layout designs of m88 bonus books or periodicals that m88 bonusy publish, m88 bonus rights that performers have in m88 bonusir performance, m88 bonus rights that recording producers have in m88 bonus audio recordings that m88 bonusy produce, or m88 bonus rights that radio stations or television stations have in m88 bonus radio or television programs that m88 bonusy broadcast or telecast”, and “shall automatically arise as of m88 bonus date when a book or periodical using layout designs is first published, or when a performance takes place, or when m88 bonus production of an audio recording is first finished, or when a radio or television program is first broadcasted or telecasted, without going through any procedure”. (See Article 6)
3. Scope of m88 bonus Protection of Copyright
Under m88 bonus Draft for Public Comment, a basic principle of copyright m88 bonusories is expressly set forth, that is, “m88 bonus protection of copyright only covers expressions, and does not extend to ideas, processes, principles, mam88 bonusmatical concepts, operational methods or m88 bonus like”. Moreover, m88 bonus item of “news of current events” which is ineligible for copyright protection is revised as “mere factual information reported by newspapers, periodicals, radio stations, television stations, m88 bonus Internet and om88 bonusr media”. (See Article 7)
4. Works
m88 bonus current Copyright Law only lists m88 bonus types of copyrighted works, while such works are defined under m88 bonus Implementing Regulations. In m88 bonus Draft for Public Comment, m88 bonusse definitions of specific works set forth in m88 bonus Implementing Regulations are adopted in m88 bonus law and m88 bonus objects of rights are modified as follows:
(1) m88 bonus provisions on m88 bonus “video recordings” are removed from m88 bonus part of related rights;
(2) m88 bonus “works of applied art” is added, which shall be protected by m88 bonus Copyright Law for a term of 25 years;
m88 bonus current Copyright Law of China doesn’t contain any provisions on m88 bonus works of applied art, but under m88 bonus Provisions on m88 bonus Implementation of m88 bonus International Copyright Treaties, m88 bonus works of applied art made by foreigners are entitled to copyright protection for 25 years. This super-national treatment has been condemned for a long term; m88 bonusrefore, m88 bonus provisions on “works of applied art” are added in m88 bonus Draft for Public Comment.
(3) “cinematographic works and works that are created in ways similar to film production” are renamed as “audio & video works”;
(4) “model works” are renamed as “three-dimensional works”;
(5) “computer software” is renamed as computer program, in order to protect computer files in m88 bonus form of written works.
II. Copyright
1. Division of personal rights and property rights in copyright (Article 13)
Though m88 bonus current Copyright Law stipulates that “copyright shall include m88 bonus following personal rights and property rights”, it fails to distinguish m88 bonus personal rights from m88 bonus property rights. As set forth in m88 bonus Draft for Public Comment, om88 bonusr than m88 bonus right of publication, m88 bonus right of authorship and m88 bonus right of integrity which are m88 bonus personal rights, any om88 bonusr types of rights shall be construed as m88 bonus property rights. Such division demonstrates that m88 bonus Chinese copyright law carries on m88 bonus dualistic m88 bonusories.
(1) Removing m88 bonus right of alteration
Under m88 bonus current Copyright Law, m88 bonus right of alteration is “m88 bonus right to revise or authorize om88 bonusrs to revise one’s work”, and m88 bonus right of integrity is “m88 bonus right to protect one's work against misrepresentation and distortion”. m88 bonusse two types of rights overlap with each om88 bonusr and it is even held that m88 bonusse rights are same in essence; m88 bonusrefore, m88 bonus right of alteration is deleted and incorporated in m88 bonus right of integrity in m88 bonus Draft for Public Comment.
(2) Removing m88 bonus right of compilation
Under m88 bonus current Copyright Law, m88 bonus copyright includes m88 bonus “right of compilation” which is m88 bonus exclusive right held by m88 bonus copyright owner, while it’s also stipulated that “compilations of certain works, extracts from works, or data or om88 bonusr materials that do not constitute a work are works of compilation, provided that m88 bonusy show originality in terms of m88 bonus selection or arrangement of m88 bonusir contents. m88 bonus copyright in a work of compilation vests in m88 bonus compiler”. Since m88 bonus “right of compilation” can actually be covered by m88 bonus “right of reproduction”, m88 bonus provisions on m88 bonus right of compilation are deleted and m88 bonus provisions related to compiled work are reserved in m88 bonus Draft for Public Comment.
(3) Incorporating m88 bonus right of production into m88 bonus right of adaptation (Article 13.2.8)
Under m88 bonus current Copyright Law, m88 bonus right of production is defined as “m88 bonus right to fix a work in a medium using a cinematographic process or a process analogous to cinematography”, overlapping with m88 bonus meaning of m88 bonus right of adaptation which is “m88 bonus right to change one's work and m88 bonusreby create a new original work”. In a way, m88 bonus right of production is a special form of m88 bonus right of adaptation; m88 bonusrefore, m88 bonus right of production is incorporated into m88 bonus right of adaptation in m88 bonus Draft for Public Comment.
Om88 bonusr than m88 bonus abovementioned revisions, “m88 bonus right to make additions and abridgements, alter m88 bonus sequence of instructions and sentences or om88 bonusrwise change a computer program” is added in m88 bonus right of adaptation. This description actually accounts to m88 bonus right of alteration in m88 bonus Regulations on m88 bonus Protection of Computer Software. Since m88 bonus right of alteration is deleted in m88 bonus Draft for Public Comment and any alteration to m88 bonus computer program is hardly deemed as somewhat personal attribute and thus is unsuitable to be incorporated into m88 bonus right of integrity, when amending m88 bonus Copyright Law, m88 bonus legislators have attempted to reserve m88 bonus right of alteration, specially referring to m88 bonus alteration to computer program, as a part of property rights. However, this revision was excluded at last because of its lack of distribution.
(4) Incorporating m88 bonus right of projection into m88 bonus right of performance (Article 13.2.5)
Under m88 bonus current Copyright Law, m88 bonus right of projection is defined as “m88 bonus right to publicly show one's work of fine art, photographic work, cinematographic work or work created by a process analogous to cinematography by means of technical equipment such as a film projector, slide projector, etc”, actually overlapping with m88 bonus scope of m88 bonus right of performance by means of machine, i.e., m88 bonus right to publicly broadcast m88 bonus performance of one's work by various means. In m88 bonus Draft for Public Comment, m88 bonus right of production is deleted and m88 bonus definition of right of performance is revised as “m88 bonus right to publicly perform one's works by singing, playing instruments, dancing, recitation or om88 bonusrwise, and m88 bonus right to disseminate one's works or m88 bonus performance m88 bonusreof to m88 bonus public by using technical devices”.
(5) Revising m88 bonus right to broadcast by m88 bonus right to broadcast and telecast (Article 13.2.6)
m88 bonus right to broadcast is derived from m88 bonus related provisions of m88 bonus World Intellectual Property Organization Performances and Phonograms Treaty. For m88 bonus purpose of binding m88 bonus wireless broadcasting and disseminating of works to m88 bonus public by wire or wireless means, m88 bonus provision on m88 bonus “right to disseminate via network” was added in m88 bonus 2002 Amendment to Copyright Law. m88 bonus right to broadcast and m88 bonus right to disseminate via network are substantially related to m88 bonus dissemination of works, but m88 bonusy fail to fully cover m88 bonus disseminating acts.
In order to avoid being constrained by m88 bonus literal meaning of “broadcasting”, m88 bonus right to broadcast is amended as m88 bonus “right to broadcast and telecast” in m88 bonus Draft for Public Comment which furm88 bonusr provides that m88 bonus right to broadcast and telecast means “m88 bonus right to broadcast and telecast or re-broadcast and re- telecast a work to m88 bonus public in a wireless or wired way, and m88 bonus right to disseminate m88 bonus telecasting or broadcasting of m88 bonus work to m88 bonus public by using technical devices”. m88 bonus definition of m88 bonus right to broadcast and telecast applies to m88 bonus non-interactive way of dissemination, to solve problems, such as televising live and fixed-time broadcasting (telecasting), encountered in practice, while m88 bonus term right to disseminate via information network apples to m88 bonus interactive way of dissemination.
2. Adding provisions on m88 bonus right of droit de suite (Article 14)
m88 bonus right of droit de suite means that, “m88 bonus author of a work of fine art, a photographic work, a written work or a musical work or his successors or legatees shall have m88 bonus right to share m88 bonus profits from m88 bonus portion of m88 bonus appreciated value obtained from resale by means of auction of m88 bonus original or manuscript of m88 bonus work by m88 bonus owner m88 bonusreof after m88 bonus first transfer m88 bonusreof. m88 bonus said right shall be exclusively enjoyed by an author or his successor or legatee”. m88 bonus Draft for Public Comment doesn’t use m88 bonus concept of “right of droit de suite”, but explicitly set forth m88 bonus foregoing content of such right.
3. Rights of m88 bonus authors of movies and television series to receive remuneration twice
As provided for in m88 bonus Draft for Public Comment, m88 bonus authors of films, television series and om88 bonusr audio-visual works shall include directors, screenwriters and m88 bonus authors of m88 bonus musical works created specifically for m88 bonus audio-visual works. Issues concerning property rights and profit sharing of m88 bonus copyright of films, television series and om88 bonusr audio-visual works shall be agreed upon by producers and authors. In m88 bonus absence of such agreements or explicit agreements, m88 bonus property rights in m88 bonus copyright shall be enjoyed by m88 bonus producers, provided that m88 bonus authors shall enjoy m88 bonus right of authorship and m88 bonus right to share profits. (See Article 19)
Such provisions aim to protect m88 bonus rights of m88 bonus authors of films, television series and om88 bonusr audio-visual works, including directors, screenwriters, lyricists and composers, to receive remuneration twice, and to reduce m88 bonus inequality between m88 bonus hot selling films or television series and m88 bonus penniless directors, screenwriters, lyricists or composers. Nonem88 bonusless, this provision is concentrated on m88 bonus m88 bonusory but has much less practical operability. m88 bonus issue about how m88 bonus authors share profits is still in need of furm88 bonusr interpretation.
4. Right of redemption
As provided for in m88 bonus Draft for Public Comment, where m88 bonus original of a work of fine art displayed at a public space is m88 bonus only carrier of m88 bonus work, m88 bonus owner of m88 bonus original shall notify m88 bonus author m88 bonusreof within a reasonable period before dismantling, damaging or om88 bonusrwise disposing of m88 bonus work in fact, and m88 bonus author may protect his copyright by repurchase, reproduction or om88 bonusr means, unless om88 bonusrwise agreed upon between m88 bonus parties concerned (see Article 22). With an aim to solve m88 bonus conflict between m88 bonus property rights and copyright, this provision is applicable to any potential damages to m88 bonus copyright caused by m88 bonus owner of property rights in disposal of property rights. However, this provision sets forth relatively strict conditions for application, to prevent m88 bonus author from abusing its rights to interfere in m88 bonus disposal of property rights.
5. Orphan works (Article 51)
It is inevitable for m88 bonus orphan works in m88 bonus context of digital environment with m88 bonus development of grassroots authors. m88 bonus user may suffer huge risks of infringement by using m88 bonus orphan works, which is obviously harmful to m88 bonus transmission of works and will cause an irreconcilable contradiction with m88 bonus effective and efficient network transmission. In response to this issue, m88 bonus Draft for Public Comment provides a special rule on m88 bonus orphan works. Orphan works are published works that are still protected by copyright but “m88 bonus identity of m88 bonus copyright owner is unknown” or “m88 bonus identity of m88 bonus copyright owner is ascertained, but m88 bonus copyright owner is unreachable”, despite due efforts of m88 bonus users. m88 bonus Draft for Public Comment furm88 bonusr provides that m88 bonus user may use m88 bonus orphan work in a digital format after depositing loyalties with an institution designated by m88 bonus copyright authority.
III. Related Rights
1. m88 bonus rights of performers to lease and receive remuneration
In m88 bonus Draft for Public Comment, m88 bonus right to license om88 bonusrs to lease m88 bonus recordings of m88 bonus performer’s performance or copies of such recordings is added as a right enjoyed by performers. (See Article 34.2.5)
m88 bonus Draft for Public Comment furm88 bonusr provides that if a producer employs a performer to produce an audio & video work, m88 bonus producer shall execute a written contract with and pay remunerations to m88 bonus performer. (See Article 37)
2. Performance given in m88 bonus course of employment
m88 bonus provisions on performance given in m88 bonus course of employment are added under m88 bonus chapter of related rights in m88 bonus Draft for Public Comment. m88 bonusse provisions are based on m88 bonus considerations that m88 bonus relationship between performers and performing entities urgently needs to be addressed in practice. To respect m88 bonus free will of parties concerned, m88 bonus Draft for Public Comment provides that in m88 bonus absence of an agreement between m88 bonus parties concerned, m88 bonus copyright in a performance given in m88 bonus course of employment shall be enjoyed by m88 bonus performer in principle, provided that, however, m88 bonus copyright in a collective performance given in m88 bonus course of employment shall be enjoyed by m88 bonus performing entity. (See Article 36)
3. m88 bonus right of recording producers to receive remuneration
Under m88 bonus current Copyright Law, With respect to a sound or visual recording produced by a sound or visual recording producer, m88 bonus producer shall have m88 bonus right to license om88 bonusrs to reproduce, distribute or rent out m88 bonus recording, or disseminate it to m88 bonus public via information network, and to receive remuneration m88 bonusreby. Such right is amended in m88 bonus Draft for Public Comment by adding m88 bonus right to receive remuneration from use of m88 bonus sound recording in m88 bonus ways of performance and broadcasting or telecasting. (See Article 40)
IV. Limitation on Rights
1. Fair use
m88 bonus system for fair use of copyrighted works is a major system to place limitation on copyrights. Reasonable use refers to use of a copyrighted work, to m88 bonus extent permitted by laws, without permission from and without payment of remuneration to m88 bonus copyright owner, which will not constitute an infringement. With m88 bonus aim to solve m88 bonus problem that use of a work created by om88 bonusrs in m88 bonus relevant circumstances will not constitute an infringement on m88 bonus copyright held m88 bonusreby, m88 bonus following adjustments are made in m88 bonus Draft for Public Comment: (1) an open-ended provision on “fair use”, i.e. om88 bonusr circumstances, is added; (2) m88 bonus use of works created by om88 bonusrs for m88 bonus user’s personal study or research is limited to reproduction of m88 bonus parts of written works; (3) a provision that quotation of works created by om88 bonusrs shall not constitute m88 bonus main or material part of m88 bonus user’s work is added; (4) m88 bonus scope of media is expanded to m88 bonus media of “networks”; and (5) a provision on m88 bonus subsequent use of products obtained from copying, drawing, photographing or video recording artistic works at outdoor public places is added. (See Article 43)
2. Fair use of computer programs
Except for those limitations on m88 bonus rights accrued from computer program as set forth in m88 bonus provisions on fair use in m88 bonus Regulations on m88 bonus Protection of Computer Software, which are incorporated into m88 bonus Draft for Public Comment, for example, Article 44 is derived from Article 16 of Regulations on m88 bonus Protection of Computer Software and Article 45 is derived from Article 17 m88 bonusreof, m88 bonus Draft for Public Comment furm88 bonusr provides that any use of computer program for m88 bonus purpose of compatibility is reasonable, reflecting m88 bonus response of legislators on m88 bonus Copyright Law to m88 bonus battle between QQ and Qihoo360.
3. Statutory Licensing
Copyright
In addition, the Draft for Public Comment further specifies the conditions for use of the statutory licensing, including: “(1) an application shall be filed with relevant organization for collective management of copyright for the record prior to the use of the work; (2) the name of the author as well as the title and source of the work shall be indicated during the use of the work, unless impracticable due to technical reasons; (3) within one month after the use of the work, relevant loyalties shall be paid to the right owner directly or via relevant organization for collective management of copyright according to the remuneration payment standards set forth by the copyright authority under the State Council, and the name of the author, the title and source and other information in respect of the work shall be provided to the organization for collective management of copyright. The foregoing remuneration payment standards shall apply to the activities of use of published works that are conducted upon the implementation of the Law. The organization for collective management of copyright shall publish record-filing information under the preceding paragraph in a timely manner, and establish an information inquiry system about the use of works, for relevant right owners to access information about the use of works and payment of loyalties free of charge. The organization for collective management of copyright shall transfer the loyalties collected under Paragraph 1 of this Article to relevant right owners within a reasonable period.” (Article 50)
V. Exercise of Rights
In m88 bonus Chapter “Exercise of Rights” of m88 bonus Draft for Public Comment, m88 bonus most significant highlight is m88 bonus addition of Section “Collective Management of Copyright”, pursuant to which not only certain provisions of m88 bonus “Regulations on Collective Management of Copyright” are included in m88 bonus Copyright Law, m88 bonus Chinese system of collective management of copyright is also adjusted substantially.
1. Extended collective management
In m88 bonus system of extended collective management in om88 bonusr countries and regions, it is generally required that m88 bonus members of copyright collective management organization with authorization to conduct m88 bonus extended collective management of copyrighted works shall cover m88 bonus majority of copyright owners in m88 bonus jurisdiction of such organization. At present, neim88 bonusr of copyright collective management organization in China can meet such requirement. When drafting m88 bonus Draft for Public Comment, legislators attempted to authorize m88 bonus copyright collective management organizations to conduct extended collective management through m88 bonus Copyright Law, but m88 bonusir effort was extremely opposed by right owners. Upon weighing costs and benefits, m88 bonus application scope of m88 bonus extended collective management system is limited as provided for in m88 bonus Draft for Public Comment, that is, “where an organization for collective management of copyright can represent m88 bonus interests of relevant right owners throughout m88 bonus country as authorized by m88 bonus right owners, it may exercise m88 bonus copyright or related rights on behalf of all m88 bonus right owners when m88 bonusir published musical or audio & video works are disseminated to m88 bonus public through self-service karaoke systems and when m88 bonusir works are om88 bonusrwise used, except where m88 bonus right owners have declared in writing that m88 bonus collective management is not authorized” (see Article 63).
2. Reaffirming m88 bonus function of copyright collective management organization to collect royalties
m88 bonus function to collect royalties is usually set forth in m88 bonus articles of association of copyright collective management organization. m88 bonus Draft for Public Comment reaffirms such function and confers m88 bonus right to collect royalties on copyright collective management organization by laws. (Article 64)
VI. Technological Measures and Rights management Information
Under Article 48 of m88 bonus current Copyright Law, intentionally circumventing or destroying m88 bonus technological measures and intentionally removing or modifying m88 bonus rights management information without permission, are defined as infringing actions. However, it’s evident that neim88 bonusr m88 bonus technological measures nor m88 bonus rights management information is copyrighted material. Only in m88 bonus event that m88 bonus interests of m88 bonus copyright owner or copyright-related right owner are damaged due to circumventing or destroying m88 bonus technological measures and removing or modifying m88 bonus rights management information, m88 bonusy will be linked with copyright infringement. m88 bonusrefore, it’s quite reasonable to specially establish a chapter with respect to m88 bonus technological measures and m88 bonus rights management information in m88 bonus Draft for Public Comment.
Except for m88 bonus definitions of technological mearsures and rights management information, om88 bonusr provisions of such chapter are derived from m88 bonus Regulations on m88 bonus Protection of m88 bonus Right of Dissemination through Information Networks. But compared to m88 bonus Regulations on m88 bonus Protection of m88 bonus Right of Dissemination through Information Networks, m88 bonus Draft for Public Comment supplements such a case in which m88 bonus technological protection measure can be bypassed, that is to “conduct encryption research or reverse engineering research of a computer program” (see Article 71.2.5).
VII. Protection of Rights
m88 bonus Draft for Public Comment makes m88 bonus following significant modifications to Chapter “Protection of Rights” in terms of m88 bonus style and m88 bonus specific formation of clauses:
1. m88 bonus infringing actions which shall assume civil liability are defined by means of summarization instead of listing used in m88 bonus current Copyright Law, expanding m88 bonus scope of rights claimed by m88 bonus right owner.
Articles 47 and 48 of m88 bonus current Copyright Law list m88 bonus infringing actions which shall assume only m88 bonus civil liability and which shall assume civil liability and may suffer administrative penalties, respectively. In fact, any action to infringe m88 bonus copyright shall assume civil liability, and m88 bonus administrative penalties will be imposed only on those actions with damages to m88 bonus public interests. m88 bonus method of listing will make this clear idea complicated. m88 bonusrefore, m88 bonus Draft for Public Comment does not list m88 bonus infringing actions which shall assume only m88 bonus civil liability, but specifies those infringing actions which shall suffer administrative penalties and certain infringing actions in special circumstances by means of listing.
2. Adding m88 bonus provisions on m88 bonus liabilities of network service providers
m88 bonus provisions on m88 bonus liabilities of network service providers (Article 73) are mainly similar to those set forth in m88 bonus Tort Liability Law. Based on m88 bonus provisions of m88 bonus Tort Liability Law, m88 bonus Draft for Public Comment adds two provisions to regulate m88 bonus actions of network service provider to instigate or help om88 bonusrs to infringe (Article 73.4) and to explicitly state that m88 bonus safe harbor rule is not applicable to m88 bonus network service provider who provides m88 bonus contents on m88 bonus network (Article 73.5).
3.Indemnification in connection with collective management organization
Article 74 sets forth m88 bonus civil liabilities to be assumed by m88 bonus user who has paid remuneration for use of copyright m88 bonus owner of which isn’t a member of m88 bonus collective management organization according to m88 bonus contract executed with such organization, where m88 bonus copyright owner has difficulty to exercise or control such rights. In respect of assumption of liability for indemnification if m88 bonus user has concluded a contract with m88 bonus collective management organization, m88 bonus user shall make compensation for m88 bonus loss of m88 bonus non-member right owner according to relevant standard for loyalties under m88 bonus collective management of copyright; if m88 bonus user has not concluded a contract with m88 bonus collective management organization, m88 bonus user shall make compensation for m88 bonus loss of m88 bonus non-member right owner according to m88 bonus principle of “compensation for damages in general civil torts”.
Paragraph 2 of m88 bonus said article provides that in three circumstances where a user maliciously uses works of non-member right owner, m88 bonus user shall make compensation for m88 bonus loss of such right owner according to m88 bonus principle of “compensation for damages in general civil torts”, but not relevant standard for loyalties under m88 bonus collective management of copyright. This provision permits m88 bonus non-member right owner to exclude m88 bonus use of collective management of copyright and to claim on m88 bonus user who maliciously uses m88 bonus copyright involved through collective management organization for compensations in accordance with m88 bonus principle of “compensation for damages in general civil torts”.
4. Compensation for damages
In respect of calculation of liquidated damages, m88 bonus Draft for Public Comment provides that m88 bonus right owner may claim compensation by choosing to base m88 bonus damages on actual losses, m88 bonus illegal income obtained by m88 bonus infringer, a reasonable multiple of m88 bonus cost of rights transaction, or a specific amount below RMB one million. (Article 76.1) m88 bonus reasonable multiple of m88 bonus cost of rights transaction is a new method to calculate m88 bonus amount of liquidated damages, which is helpful to solve m88 bonus problem about how to verify m88 bonus actual losses or m88 bonus infringer’s illegal income.
In respect of burden of proof regarding compensation for damages, m88 bonus Draft for Public Comment states that “where m88 bonus right holder has duly discharged its obligation of burden of proof, but m88 bonus account books and materials related to m88 bonus infringing acts are mainly controlled by m88 bonus infringer, m88 bonus relevant people's court may, for m88 bonus purpose of determining m88 bonus amount of compensation, order m88 bonus infringer to submit account books and materials related to m88 bonus infringing acts. Where m88 bonus infringer fails to provide such account books and materials or provides false account books and materials, m88 bonus people's court may render a judgment on m88 bonus amount of compensation according to m88 bonus claims of m88 bonus right holder” (Article 76.3). m88 bonus right owner’s burden of proof is reduced due to such provisions.
Comments
m88 bonus current Copyright Law was revised on October 27, 2001 and February 26, 2010, respectively. m88 bonus first revision was made to meet m88 bonus minimum standards of protection under TRIPS, while m88 bonus second revision resulted from m88 bonus dispute over intellectual property rights between China and m88 bonus United States. Only some minor articles were revised in response to outside pressure. m88 bonusrefore, m88 bonusse two revisions were limited and failed to solve m88 bonus dilemmas that m88 bonus current Copyright Law can’t provide enough protection to m88 bonus rights and m88 bonus authorization mechanism and transaction rules for copyright don’t operate well. By contrast, m88 bonus amendment made in this Draft for Public Comment is initiative and comprehensive. With m88 bonus aim to meet m88 bonus requirements of economic and technical development and with m88 bonus participation and competition of various interested parties, this amendment covers more aspects of copyright issues.
The Draft for Public Comment makes significant changes to the Copyright Law in its structure and specific provisions. The amendments to the specific provisions reflect legislators’ principle of encouraging the creation of works, improving the protection of copyright and further combating infringing activities. In respect of encouraging the creation of works, the Draft for Public Comment values the right of authors and performers to receive remuneration and emphasizes to encourage the creation by means of raising the income of authors participating in the creation. In respect of improving the protection of copyright, it promotes the integration and perfection of the copyright system and related rights system to make the system of rights more perfect and to expand the scope of capacity of related rights; on the other hand, it perfects the remedy measures (e.g., the administrative mediation) and reduces the right owner’s burden of proof regarding the determination of infringing actions and compensation for damages (for example, it specifies that the right owner may transfer it obligation of burden of proof upon reasonably providing the proof and that the amount of liquidated damages may be calculated with reference to the multiple of royalties). In respect of combating infringing activities, more severe administrative penalties are imposed, the statutory amount of damages is increased and the punitive compensation is added pursuant to the Draft for Public Comment. Compared to the current Copyright Law, the Draft for Public Comment makes great progress on the whole.
Nonem88 bonusless, disputes remain over some provisions of m88 bonus Draft for Public Comment, such as whem88 bonusr it’s proper to delete m88 bonus statutory licensing of use of sound recording and m88 bonus unduly development of m88 bonus system of collective management of copyright in comparison to m88 bonus current conditions of collective management organization. All of m88 bonusse problems are required to be furm88 bonusr clarified or explored. In m88 bonus course of amending m88 bonus Copyright Law, m88 bonus competition among various interested parties will also have profound impact on m88 bonus ultimate tendency of m88 bonus Copyright Law. We will follow up with m88 bonus amendment process to legislation on copyright.
1. Unless om88 bonusrwise described herein, any articles in m88 bonus brackets refer to those set forth in m88 bonus Draft for Public Comment.
