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China: Measures on Copyright Administrative Penalties to Be Revised

(Sept. 15, 2015) The National Copyright Administration of the People’s Republic of China (NCAC) is considering a revision to the Measures for the Implementation of Copyright Administrative Penalties. A copy of the proposed new Measures was published on September 8, 2015, for solicitation of public opinions and comments. The review period will expire on September 30, 2015. (Zhuzuo Quan Xingzheng Chufa Shishi Banfa (Xiuding Zhengqiu Yijian Gao) [Measures for the Implementation of Copyright Administrative Penalties (Revised Draft for Comments)] (published Sept. 8, 2015), Legislative Affairs Office of the State Council website [click on hyperlink in red font after NCAC notice to view draft text].)

According to the NCAC’s introduction to the proposed revision, the Measures were first issued in 2003 and then revised in 2009. Since 2010, some related higher-level laws and regulations, including the Copyright Law, have been revised, and therefore some provisions of the Measures are now in conflict with them. The new Measures will revise provisions on the procedures for imposing administrative penalties, the administrative liabilities of Internet service providers (ISPs), and copyright law enforcement in the Internet environment. (Id.)

The Measures set forth administrative penalties that may be imposed on illegal actions involving copyright infringement; such actions are specified in a series of copyright laws, regulations, and rules including the Copyright Law, the Computer Software Protection Regulations, the Regulations on the Protection of Right of Dissemination via the Information Network, and the Regulations on Collective Copyright Management. (Measures, art. 3.) Administrative penalties that may be imposed on the infringers include: warnings; fines; confiscation of illegal gains; and confiscation of the infringing products and the materials, tools, and equipment used for producing such products. (Id. art. 4.)

The new Measures would add an article on the liability of ISPs. According to the new article 5, administrative penalties applicable to copyright infringers provided in the Copyright Law will be imposed on ISPs if the ISPs know or should know that their clients infringe others’ copyright through the Internet, or if, even though they had not known about it, they did not take remedial measures after receiving notices of infringement from copyright owners and thereby harmed the public interest. (Id. art. 5.)

The new Measures also would add “computers and servers mainly used to provide Internet services,” to the “materials, tools, and equipment used to make infringing products” that may be confiscated under serious circumstances of copyright infringement. (Id. art. 32.)