Alert 357 - China - Revision of Copyright Law


On 1 April 2010 two changes to the copyright law will come into effect in China. One revision relates to the protection of copyright works that offend the State, the other to formal requirements when taking a security interest over copyright. The first change appears to have been made to comply with China’s international obligations.

The Changes

Previously, works whose publication and distribution were prohibited by law could not be protected under the Copyright Act.

The relevant provision, Article 4, will no longer include an express prohibition on protection and will read:

“Copyright owners shall neither violate against the Constitution and the relevant laws and regulations, nor damage the public interests. The nation shall supervise and administrate publication and distribution of the works in line with law”.

The second change relates to when copyright is charged, or pledged, to a third party. Both the pledgor and the pledgee must now register the pledge with the copyright administrative authorities of the State Council.

The Impact

In fact, it has been a practice already to register copyright pledges with the relevant authorities, in accordance with the Rules on Copyright Pledge Contracts issued in 1996. The revision appears to be a mere strengthening of this practice. Comparatively, the revision to Article 4 may have a bigger influence on the existing practice.

Background to the Revision

It has been debated for years in China whether copyright protection should extend to works which are prohibited from publication or distribution. The current Copyright Law says it should not, while there have been opinions advocating that, based on the essence of copyright to protect original creativity, works prohibited for publication or distribution should still be protected.

In China, the publication and distribution of copyright works may require adminstrative approval in advance.  Under the current Copyright Law, there was a concern that if such works had not been approved, it might not be possible to obtain effective protection. In a situation where there are serious piracy problems in relation to overseas publications (e.g., cinematographic works, sound recordings, and books), this has also caused concern amongst foreign rights holders.

The WTO Decision

In 2007, the USA filed a complaint with The World Trade Organization (WTO) against China’s IP protection and enforcement, including this issue. In March 2009, WTO issued its decision, holding that the lack of protection for works prohibited from publication or distribution was not in line with the Berne Convention or The Trade-Related Aspects of Intellectual Property Rights (TRIPS). Considering the timing (an obligation to take action within 1 year to comply with the WTO decision), this revision may also be a reaction to the WTO decision.

Our Comment

Unlike with the recent revisions for the Patent Law and Trade Mark Law, there appears to have been little or no prior consultation with stakeholders in relation to these Copyright Law revisions. While the revisions are limited, the effects could be significant, in particular regarding Article 4, which may provide protection for previously prohibited works. How the courts and the enforcement authorities will treat the amendments in reality still needs further confirmation and it remains to be seen whether any further clarification or elaboration will be offered through judicial interpretations and administrative regulations.

For more information, email tsmith@iprights.com.