Zhang Hongbo, Director General of the Chinese Writing Copyright Association, interprets the four major changes in the revision of the new copyright law
The statutory compensation limit for copyright infringement is increased to 5 million yuan
The 30-year-old Copyright Law has ushered in the largest revision and will be implemented on June 1, 2021.
This revision lasted ten years of discussion and touched on many "difficulties" in the field of copyright law, such as unclear work definitions, difficulty in defending rights, and low infringement costs.
Can the revised copyright law "suffice it all in one fight" and completely cure these "sicknesses"?
Zhang Hongbo, director general of the Chinese Writing Copyright Association, believes that from the perspective of the scientific setting of work definitions, the introduction of audiovisual work concepts, the implementation of punitive damages and other new designs, both online and offline will be more conducive to optimizing work creation and dissemination. , Management and protection of the environment.
Zhang Hongbo stated that the follow-up "Regulations on the Implementation of the Copyright Law", "Regulations on the Protection of Information Network Dissemination Rights", "Regulations on Copyright Collective Management" and other related laws and regulations will be revised and improved accordingly. He hopes that some new regulations of the Copyright Law can be refined to allow various types of infringements. Behavior is effectively regulated.
Beijing News reporter Ni Wei
Variation 1
The definition of "work" has been revised to become more reasonable
The Beijing News: After the law was revised, the definition of "work" was revised, and the term "intellectual achievement with originality and performance in a certain form" was proposed. What significance does it have for the identification of new types of works in the future?
Zhang Hongbo: The current copyright law adopts the enumeration method, which stipulates eight specific types of works, and at the same time sets a comprehensive clause, namely "other works stipulated by laws and administrative regulations". The "Regulations on the Implementation of the Copyright Law" further stipulates the works definition.
However, in practice, whether the object of protection is to first define the type of the work or whether it belongs to the work is not uniform.
At the same time, some of the new types of works that have emerged in recent years cannot be classified as statutory work types, and can only be included in the "cover clause", which can easily lead to disputes about whether they constitute works or even make them unable to be protected by law.
After the amendment, the “films and similar works” in the current copyright law are revised to “audiovisual works”, which is in line with the “Beijing Treaty on Audiovisual Performances” that came into effect this year, and fully takes into account the new ownership agreement arising from the prosperity and development of the film and television industry. trend.
At the same time, the definition of work in the "Implementation Regulations of the Copyright Law" was upgraded to the law, and "other works stipulated by laws and regulations" were changed to "other intellectual achievements that conform to the characteristics of the work". Such regulations are more reasonable and easier to judge and define. It is more forward-looking and foreseeable, and some types of works that have emerged in practice in recent years can be protected.
Variation 2
Defining "current news" and "mere factual news"
Beijing News: In the definition, the "current affairs news" in the category of fair use is changed to "simple factual news". Does this have a significant effect on the phenomenon of "washing" and "transporting" news works?
Zhang Hongbo: The current copyright law stipulates that "current affairs news" is not protected. At the same time, the "Implementation Regulations of the Copyright Law" defines "current affairs news" as "mere factual news."
However, in practice, the press and industry have long-standing disagreements on whether "current affairs news" and "mere factual news" are the same, and the definition and scope of "current affairs news" are not uniform.
This has led the judicial system to produce different results for copyright disputes involving "current affairs news", and a large number of current affairs news works that should be protected by copyright are often infringed and pirated wantonly.
This revision of the law replaces the "current news" in the current law with "simple factual news". This is the result of long-term appeals from the press and journalists.
This limitation makes it clear that what is not protected by copyright in “current affairs news” is only “mere factual news”, not all “current affairs news”.
In addition, the revised Article 18 adds the types of "service works", that is, works created by staff of newspapers, periodicals, news agencies, radio stations, and television stations are job works. The author has the right to sign, and the copyright is reserved by legal persons or non-profits. Legal person organizations enjoy, and legal persons or unincorporated organizations can reward authors.
This design is more conducive to defining the ownership of news achievements, to the dissemination and protection of news achievements, and to the development of my country's journalism and media integration.
Variation 3
Introduce punitive damages and minimum compensation system
Beijing News: After the law is amended, the statutory damages will be increased, and the system of punitive damages and minimum compensation will be introduced.
In practice, how will this curb the occurrence of infringement?
Zhang Hongbo: What makes the majority of rights holders happy is that this amendment introduces the principle of punitive damages, that is, for intentional infringements and serious infringements, the court can determine the actual losses to the right holder, the infringer’s illegal gains, and the right holder’s Compensation in multiples of more than one time and less than five times the royalties.
At the same time, the upper limit of the statutory compensation amount was raised from 500,000 yuan to 5 million yuan, and the lower limit of the statutory compensation amount was set at 500 yuan.
Such a design will have a powerful deterrent effect on possible infringement and piracy, and effectively curb the occurrence of infringement and piracy.
It is foreseeable that such amendments will help resolve a large number of social conflicts caused by copyright disputes, break down the pressure of limited judicial authorities, and at the same time be in line with the trademark law, patent law, anti-unfair competition law and other intellectual property laws, forming a whole society Unified crackdown on IP infringement and piracy.
Beijing News: In general, what obvious changes will the implementation of the new copyright law bring to the protection of the interests of creators of text copyright?
How to promote the prosperity of copyright creation?
Zhang Hongbo: From the scientific setting of the work definition, the introduction of the concept of audiovisual work, the implementation of punitive damages, the increase of the statutory compensation limit, the increase of technical protection measures for the right holder, the further clarification of the authority of copyright administrative enforcement, and the strengthening of administrative enforcement. Look, whether online or offline, it will be more conducive to the optimization of the creation, dissemination, management, and protection of the environment.
Right holders can choose appropriate legal means to defend their rights, and their initiative to defend their rights will be stronger.
As long as online works conform to the types of works under the new copyright law, they will be protected as they deserve.
This revision of the law conforms to the requirements of the development of the times, responds to many challenges posed by technological and economic and social development, and clarifies the legal boundaries and legal responsibilities of the creation, dissemination, use, management, and protection of copyright works, which will benefit the development of the copyright industry .
Variation 4
Increase the mediation function of collective management organizations
The Beijing News: What changes will happen to the collective management of written copyrights? Has the amendments solved some of the obstacles in the previous work of the Association?
Zhang Hongbo: Article 8 of the newly revised Copyright Law is a special clause for copyright collective management, which clarifies the nature of copyright collective management organizations, that is, non-profit legal persons, increases the mediation function of collective management organizations, and clarifies that collective management organizations and users pay royalties The resolution mechanism when disputes occur frequently, as well as the publicity obligation of collective management organizations and the supervision and management of competent authorities, have increased work transparency and supervision.
It should be said that this is an important mechanism for regulating the healthy development of copyright collective management organizations, and it has responded to the many concerns of the society on collective management organizations for a long time.
In the past practice, the typical problems encountered by the Literary Works Association and the majority of rights holders are difficulty in producing evidence, difficulty in safeguarding rights, and low judicial compensation. Now the Copyright Law provides for punitive damages and raises the upper limit of legal compensation.
Article 54 also stipulates the system of impediment to proof production. In order to determine the amount of compensation, the court may order the infringer to provide and provide evidence if the right holder has fulfilled the necessary burden of proof and the account books and materials related to the infringement are mainly in the hands of the infringer. The account books, materials, etc. related to the infringement; if the infringer does not provide or provides false account books, materials, etc., the court may refer to the claims of the right holder and the evidence provided to determine the amount of compensation.
When investigating suspected infringement cases, the copyright authority not only has the right to inquire the parties, investigate, conduct on-site inspections, consult, copy contracts, invoices, account books and other relevant materials, but also have the right to seal up or seize the premises and objects suspected of illegal activities.
When the right holder applies to the court for property preservation before litigation, he can also apply to the court to order certain actions or prohibit certain actions.
These regulations are conducive to collective management organizations in strengthening the protection of the legitimate rights and interests of members in accordance with the law, and collective management organizations such as the Association of Literature and Writings have more confidence in serving members.
The Beijing News: How can these new regulations of the Copyright Law solve real problems in practice?
Zhang Hongbo: Of course, the revision of the Copyright Law is only the first step in implementing the CPC Central Committee’s deployment of strengthening copyright protection. In the next step, the State Council will promptly implement the "Regulations on the Implementation of the Copyright Law," "Regulations on the Protection of Information Network Dissemination Rights," and "Regulations on Copyright Collective Management". The revision and perfection hope that some provisions of the Copyright Law can be further refined, so that the legally licensed payment guarantee mechanism such as reprinting of newspapers and periodicals that the majority of rights holders are concerned about, and illegal reprinting on the Internet can be effectively regulated.
The Literature and Works Association will increase the publicity and interpretation of the new copyright law, so that more rights holders learn to use legal weapons to protect themselves.
When creating, disseminating, and using copyrighted works of others, all right holders must also abide by the law and avoid legal risks of infringement.