On August 5th, 2020, the Supreme People's Court ("SPC") released for public comments a draft of the Opinion regarding Enhancing Protection on Copyright and its Related Rights ("the Draft", http://www.court.gov.cn/zixun-xiangqing-246041.html).

Though such opinion is not legally binding provision, it would be of great value for IP practitioners to predict the legislative and judicial direction in the future. A few comments shall be noted.

Shorten the trial period

Article 2 provided the courts shall vigorously shorten the trial period for copyright and its related rights. Specifically, SPC mentioned that the courts shall improve the evidence rule on IPR litigations, supporting the litigants to preserve and submit evidence through blockchain and timestamp.

The court should also effectively adopt interim measures (act preservation, evidence preservation and property preservation) in order to protect IPR owners' legitimate rights in civil litigations.

Presumption rules

Articles 3-7 made illustration on the presumption rules to alleviate IPR owners' enforcement costs. The courts illustrated that copyright owners' right, after preliminarily evidence, shall be presumed valid without contrary evidences.

Specifically:

  1. The court shall presume copyright's attribution based on authorship (signature). Any natural person or entity who made indication of authorship in a usual manner, shall be presumed as the copyright (and its related rights) owner of the work without contrary evidence.
  2. To alleviate right owners' burden of evidence, when the right owner claims the existence, licensing and infringement of his rights, if such infringer fails to provide contrary evidence and the ownership of the rights can be presumed based on authorship, right owner's burden of providing licensing agreements or other written evidences shall be exempted.
  3. Burden of proof for fair use exemption shall be on the accused infringing parties. The accused infringing parties shall provide evidence of license or its use constitute fair use exemption regulated under Copyright Law or other related regulations.

Cyberspace and emerging fields.

Articles 7-9 made illustration on copyright protection on cyberspace, physical markets, and emerging fields.

  1. The court shall make verdict on right owners' application, asking the ISP to delete, shield, and disconnect certain links. Under circumstances where ISP did not take proper measures, ISP shall also be held liable for extended damage after right owner's notice.
  2. Marketplace provider shall be held liable based on the degree of its fault and its conduct (failed to perform inspection and management duties effectively for infringements conducted by operator inside the market place.
  3. The court shall also positively respond to the new demands appears in the emerging fields like Internet, AI and big data, etc. The court need to coordinate the relationship between the relative closure of the object of copyright and the relative openness of rights, to promote the healthy development of the emerging fields.

Eliminate the risk of infringement and effectively prevent the occurrence of infringement

  1. Art. 10 provides that the court shall rule for the destruction of manufacturing equipment if evidence provided that such equipment is mainly used for infringement and such equipment exists.
  2. Art. 11 furtherly illustrate the court shall fully make up for the right owner's damage. The amount of legal compensation shall be determined by consideration of below factors: the type of right to be protected, the market value and the subjective fault of the infringer, the nature and scale of the tort, and the severity of the consequences of the damage, etc.
  3. For infringers who used to be ruled as infringement by the court or previously reached settlement agreements with the right owner, the court shall consider such factors when determining the civil liability.

Honest litigation

  1. Art. 13 – 14 stated that litigants can be informed of legal responsibilities for dishonest behaviors by execution of undertaking. For dishonest behaviors like submitting falsified or altered evidence, concealing or destroying evidence, making false statements, giving false testimony or making false identification, the court could adopt compulsory measures like reprimands, fines or detentions.
  2. Art. 15 provided that speculative litigations shall not be advocate. For IPR owners who insist on suing distributors dispersedly yet not suing the manufacturing parties, the court shall make illustration to the IPR owner and limit the damage based on the infringing scale of such distributors.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.