McDermott Will & Emery has a strategic alliance with MWE China Law Offices, a separate law firm based in Shanghai. This China Law Alert was authored by MWE China Law Offices lawyers Rose Liu.
The Decision of the Standing Committee of the National People’s Congress on Amending the Copyright Law of the People’s Republic of China (the Amended Copyright Law), promulgated on 26 February 2010, came into force on 1 April 2010. The Amended Copyright Law includes amendments to the original Article 4 of the 2001 Copyright Law (the Old Copyright Law) along with a newly added Article 26.
Article 4 of the Amended Copyright Law provides that “Copyright owners, in exercising their copyright, shall not violate the Constitution or laws or prejudice the public interests. The State legally supervises the publication and dissemination of works”. The new Article 26 prescribes “When a copyright is taken as a pledge, the pledgee and the pledger should register it with the copyright administration department under the State Council”.
Compared with the original Article 4 of the Old Copyright Law, the updated Article 4 deletes the former provision of the first paragraph, which stated “Works, the publication or distribution of which is prohibited by law, shall not be protected by this law”, and adds “The State legally supervises the publication and dissemination of works”. Such amendments imply that any work that is independently created by an author can be protected by the Amended Copyright Law. However, the State still reserves its rights of supervision over the relevant publication and dissemination of such works.
It should be noted that such amendments to the Old Copyright Law, particularly those to the original Article 4, have been made to improve the law and increase its alignment with provisions of the Berne Convention and the TRIPS Agreement of the World Trade Organization. Such amendments suggest that copyright protections may even extend to those works that might otherwise be prevented from publication in China, as a result of being considered to be unhealthy and/or offensive. That is to say, even if such works cannot be allowed to normally enter into the Chinese market, relevant copyright owners may have the right to take necessary actions to stop pirating or other infringement in China.
These amendments serve as good news to foreign investors who may be planning to invest in the publishing industry in China or who already have an existing, similar business presence in China. This is particularly true for those whose works, including books or audio and video recording products, have been or may be pirated or whose other relevant copyrights have been infringed in China. Such copyright owners may now pursue possible copyright protections even if their works are not officially permitted to enter into the Chinese market. The Amended Copyright Law and its protections would also apply to foreign copyright owners who do not conduct business directly in China.