Explanation on the Implementation Regulations of the Copyright Law of the People's Republic of China (Revised Draft for Comments)



1、 Background of revision

The Party Central Committee and the State Council attach great importance to intellectual property work. Especially since the 18th National Congress of the Communist Party of China, the Party Central Committee and the State Council have put forward new and higher requirements for comprehensively strengthening intellectual property protection work. General Secretary Xi Jinping emphasized the need to comprehensively strengthen intellectual property protection, promote the construction of a modern economic system, stimulate the innovation vitality of the whole society, and promote the construction of a new development pattern from the perspective of national strategy and the requirements of entering a new stage of development. The revision of the "Implementation Regulations of the Copyright Law of the People's Republic of China" (hereinafter referred to as the "Implementation Regulations") is a specific measure to implement the important instructions of General Secretary Xi Jinping and the spirit of the 20th National Congress of the Communist Party of China, promote the construction of a strong intellectual property country, and improve the property rights protection system. It is a practical need to implement the amendment of the "Copyright Law of the People's Republic of China" (hereinafter referred to as the "Copyright Law"), respond to social concerns and the development of new technologies, and promote the prosperity of socialist culture and science. The third revision of the Copyright Law was completed in November 2020 and came into effect in June 2021. The revised Copyright Law integrates the rights system, improves the copyright authorization mechanism and transaction rules, and strengthens the protection of copyright. As an important supporting administrative regulation of the Copyright Law, the Implementation Regulations urgently need to be consistent with the revised Copyright Law in terms of relevant provisions and wording.



The National Copyright Administration attaches great importance to the revision of the Implementation Regulations and has established a special working group to organize thematic research. Through distributing survey questionnaires, holding research seminars, targeted visits, and other methods, based on in-depth investigation and extensive listening to opinions from relevant rights holders' organizations, industry associations, copyright enterprises, industry regulatory departments, local copyright regulatory departments, and relevant experts and scholars, the revised draft of the Implementation Regulations of the Copyright Law of the People's Republic of China (Draft for Comments) has been drafted and formed.



2、 Main content of revision



The draft for soliciting opinions will revise the current 38 articles of the Implementation Regulations to 49 articles, with the main modifications including the following 5 aspects.



1. Refine the rights system of copyright law. The third revision of the Copyright Law has made significant adjustments to the relevant content. In conjunction with the revision of the Copyright Law, the draft for soliciting opinions has made more detailed provisions, improved the definition of works, refined copyright related terms, and clarified the ownership and exercise rules of rights.



2. Clarify the authorization mechanism and transaction rules of the Copyright Law. The third revision of the Copyright Law has improved the authorization mechanism and transaction rules for copyright and related rights, in order to address issues such as difficulty in using works, difficulty in obtaining remuneration for rights holders, and difficulty in ensuring transaction security. The revised draft for soliciting opinions has refined the registration mechanism for works, the rules for presumption of authorship, the rules for authorizing adaptations of audiovisual works, and the payment methods for statutory licenses.



3. Implement the rights protection rules of the Copyright Law. The third revision of the Copyright Law has improved the technical measures and rights management information system, and increased the protection of copyright. The revised draft for soliciting opinions clarifies the specific circumstances that harm the public interest, and refines the relevant rules of technical measures and rights management information system.



4. Implement the requirements of international treaties in accordance with copyright law. The Beijing Treaty on Audiovisual Performances and the Marrakesh Treaty have come into effect in China, and necessary amendments have been made to the Copyright Law for this purpose. In order to further implement the requirements of the above-mentioned international treaties, the revised draft for comments has made necessary refinement to the system of restrictions on the rights of published works and the definition of performers for people with reading disabilities.



5. Other technical adjustments. To ensure consistency between the provisions of the Copyright Law cited in the Implementation Regulations and the revised Copyright Law, necessary textual adjustments have also been made to the draft for comments.



Rules for the Implementation of the Copyright Law of the People's Republic of China

(Draft for Comments on Revision)



Article 1: This regulation is formulated in accordance with the Copyright Law of the People's Republic of China (hereinafter referred to as the Copyright Law).

Article 2: Creation referred to in the Copyright Law refers to intellectual activities that directly produce literary, artistic, and scientific works.

Organizing work, providing consulting opinions, material conditions, or other auxiliary work for others' creation is not considered as creation.

Article 3: The meanings of the following works in the Copyright Law and these Regulations:

（1） Written works refer to works expressed in written form such as novels, poems, essays, treatises, and scripts.

（2） Oral works refer to works that are expressed in the form of oral language, such as impromptu speeches, lectures, court debates, etc.

（3） Music works refer to songs, compositions, and other works that can be sung or performed with or without lyrics.

（4） Dramatic works refer to works such as plays, operas, operas, musicals, etc. that are performed on stage.

（5） Quyi works refer to works performed mainly in the form of rap, such as cross-talk, Kuaishu, Dagu, Pingshu, etc.

（6） Dance works refer to works that express thoughts and emotions through continuous movements, postures, expressions, etc.

（7） Acrobatic art works refer to works of acrobatics, magic, circus, etc. that are expressed through physical movements and techniques.

（8） Artworks refer to two-dimensional or three-dimensional aesthetic works of art composed of lines, colors, or other forms such as painting, calligraphy, sculpture, etc.

（9） Architectural works refer to buildings and structures with aesthetic significance, as well as design drawings, renderings, and other graphics and models that reflect the appearance of the building or structure.

（10） Photographic works refer to artistic works that record objective object images on photosensitive materials or other media using instruments.

（11） Audiovisual works refer to works that are fixed on a certain medium by any means, composed of a series of continuous dynamic images with or without accompanying sound, and are projected or disseminated through appropriate devices. The audiovisual works include movies, TV dramas, feature films, documentaries, animated films, web dramas, variety shows, etc.

（12） Graphic works refer to engineering design drawings, product design drawings, as well as maps, diagrams, and other works that reflect geographical phenomena, explain the principles or structures of things, drawn for construction and production purposes.

（13） Model works refer to three-dimensional works made according to the geographical terrain and the shape and structure of objects.

Article 4: The meanings of the following terms in the Copyright Law and these Regulations:

（1） Audio recordings refer to any recordings of the sound of a performance or other sounds;

（2） Video recordings refer to continuous related images and videos with or without accompanying sound, mechanically produced by fixed recording equipment;

（3） Recording producer refers to the first-time producer of a recorded product;

（4） Video producer refers to the first-time producer of a video product;

（5） Performers refer to individuals who sing, dance, give speeches, recite, perform, or perform literary, artistic, or folk literary expressions in other ways.

Article 5: Copyright shall arise from the date of completion of the creation of the work.

Article 6: The copyright of works by foreigners or stateless persons that are first published within the territory of China as stipulated in Article 2, Paragraph 3 of the Copyright Law shall be protected from the date of their first publication.

Article 7: If a work of a foreigner or stateless person is first published outside of China and then published within 30 days within China, it shall be deemed to have been simultaneously published within China.

Article 8: The meanings of the following terms in Article 10 of the Copyright Law:

（1） Display refers to the act of showcasing works through art exhibitions, photography exhibitions, and other means;

（2） The act of publicly broadcasting the performance of a work through various means refers to the act of using technical equipment such as amplifiers and projectors to make the public perceive the work being performed, and does not include the right to communicate the performance to the public through wired or wireless means.

Article 9: Natural persons, legal persons, or unincorporated organizations who sign their names on a work are presumed to be the copyright owners of the work, unless there is evidence to the contrary.

Natural persons who identify themselves as performers in performances, as well as natural persons, legal persons, or unincorporated organizations who attach rights labels to layout designs, audio and video recordings, and broadcasting and television, are presumed to be the owners of copyright related rights in such performances, layout designs, audio and video recordings, broadcasting, and television, unless there is evidence to the contrary.

Article 10: The registration certificate issued by the registration agency recognized by the national copyright authority is the preliminary proof of the registration items.

The recognition, supervision, and management of registration agencies shall be separately stipulated by the national copyright authority.

Article 11: The term "collaborative work" referred to in the second paragraph of Article 14 of the Copyright Law refers to a collaborative work that cannot be used separately.

If a collaborative work cannot be used separately, each collaborating author has the right to file a lawsuit in their own name to protect the copyright of the work; If a collaborative work can be divided and used separately, each collaborating author has the right to file a lawsuit to protect the copyright of their own creative parts.

Article 12: If the copyright owner permits others to make their works into audiovisual works, and the contract does not stipulate or the agreement is unclear, it shall be deemed that they have agreed to make necessary changes to their works to adapt to the expression form of audiovisual works, but such changes shall not distort or tamper with the original works.

If substantial modifications are made to the original work that fundamentally change the author's wishes, thoughts, and emotions, the consent of the original work copyright owner should be obtained.

Article 13: The term "work task" in Article 18, Paragraph 1 of the Copyright Law regarding works created in the course of official duties refers to the duties that a natural person should perform in the legal person or non legal person organization.

The "material and technical conditions" referred to in Article 18, Paragraph 2 of the Copyright Law regarding works created in the course of official duties refer to the funds, equipment, or materials specially provided by the legal person or non legal person organization for natural persons to complete their creations.

Article 14: Within two years after the completion of a work in the course of one's duties, with the consent of the unit, the author may authorize a third party to use the work in the same manner as the unit, and the remuneration obtained shall be distributed between the author and the unit in accordance with the agreed proportion.

The two-year deadline for completing the work shall be calculated from the date the author delivers the work to the institution.

Article 15: In accordance with Article 19 of the Copyright Law, if the copyright of a commissioned work belongs to the trustee, the principal shall have the right to use the work within the agreed scope of use; If the parties have not agreed on the scope of use of the work, the principal may use the work for free within the specific purpose scope of the commissioned creation.

Article 16: For works whose copyright owner is unknown, the owner of the original work shall exercise the copyright other than the right of attribution. After the identity of the copyright owner is determined, the copyright shall be exercised by the copyright owner or its successor.

Article 17: After the death of one of the co authors, if no one inherits or bequeaths the rights provided for in Article 10, Paragraph 1, Items 5 to 17 of the Copyright Law, the rights enjoyed by the co authors shall be enjoyed by the other co authors.

Article 18: After the death of the author, the rights of attribution, modification, and protection of the integrity of the work in the author's copyright shall be protected by the author's heir or testator.

If no one inherits or bequeaths the copyright, the right to attribution, modification, and protection of the integrity of the work shall be protected by the department in charge of copyright.

Article 19: The use of works for which the state enjoys copyright shall be managed by the national copyright authority.

Article 20: For works that have not been published by the author before their death, if the author does not explicitly state that they will not publish them, their right to publish may be exercised by their heir or testator within 50 years after their death; If there is no heir and no one has been bequeathed, it shall be exercised by the owner of the original work.

Article 21: For works whose author's identity is unknown, the protection period of the rights provided for in Article 10, Paragraph 1, Items 5 to 17 of the Copyright Law shall expire on December 31 of the 50th year after the first publication of the work. After the author's identity is determined, the provisions of Article 23 of the Copyright Law shall apply.

Article 22: When using the works of others, the author's name and the title of the work shall be specified; Unless otherwise agreed by the parties or cannot be specified due to the nature of the use of the work.

Article 23: The term "published works" as used in the Copyright Law refers to works that the copyright owner has made public or licensed others to make public.

Article 24: The term "persons with reading disabilities" referred to in Article 24, Item 12 of the Copyright Law refers to visually impaired individuals, as well as those who are unable to read normally due to visual defects, perceptual impairments, physical disabilities, and other reasons.

The accessibility method referred to in Article 24, Item 12 of the Copyright Law refers to alternative methods or forms that enable people with reading disabilities to perceive and effectively use works.

The specific management measures for providing published works to people with reading disabilities in an accessible manner shall be separately formulated by the national copyright authority.

Article 25: The remuneration standards for using works in accordance with the provisions of Article 25, Article 35 (2), Article 42 (2), and Article 46 (2) of the Copyright Law shall be formulated by the national copyright authority in conjunction with the pricing authority of the State Council.

Article 26: When using works of others, a license agreement shall be concluded with the copyright owner. If the licensed right is an exclusive right, it shall be in writing, except for works published by newspapers or periodicals.

Article 27: The content of the exclusive right of use provided for in Article 26 of the Copyright Law shall be stipulated in a contract. If the contract does not stipulate or the agreement is unclear, it shall be deemed that the licensee has the right to exclude anyone, including the copyright owner, from using the work in the same way; Unless otherwise agreed in the contract, the licensee must obtain permission from the copyright owner to allow a third party to exercise the same right.

Article 28: Those who enter into exclusive licensing or transfer contracts with copyright owners may file with the registration agency recognized by the national copyright authority.

Article 29: The rights related to copyright referred to in the Copyright Law and these Regulations refer to the rights enjoyed by publishers in the layout design of their published books and journals, performers in their performances, producers of audio and video recordings in their productions, and broadcasting and television stations in their broadcasts.

Article 30: Publishers, performers, producers of audio and video recordings, radio stations, and television stations exercising their rights shall not infringe upon the rights of the copyright owners of the works being used or the original works.

Article 31: If the book publishing contract stipulates that the book publisher has exclusive publishing rights but does not specify their specific content, it shall be deemed that the book publisher has the exclusive right to publish the original or revised version of the book in the same language during the validity period of the contract and within the geographical scope specified in the contract.

Article 32: If two orders sent by the copyright owner to the book publisher are not fulfilled within six months, it shall be deemed that the book is out of stock as referred to in Article 34 of the Copyright Law.

Article 33: If the copyright owner declares in accordance with Article 35 (2) of the Copyright Law that their work cannot be reproduced or excerpted, they shall attach a declaration when publishing the work in newspapers or magazines.

Article 34: If an actor and a performing unit agree that the right to perform on duty is enjoyed by the actor, the performing unit may use it within its business scope, including signing a non exclusive license contract with others to license others to use the performance in accordance with the provisions of Article 39 (1) (3) to (6) of the Copyright Law.

Article 35: The provisions of Article 39, Paragraph 1, Items 4 to 6 of the Copyright Law regarding the rights of performers shall apply to performers in audiovisual works.

The right to perform in film and television works is enjoyed by the producer, but performers have the right to identify themselves as performers and protect their performance image from distortion, and have the right to receive remuneration in accordance with the contract signed with the producer.

Article 36: If the copyright owner declares in accordance with Article 42 (2) of the Copyright Law that they shall not make audio recordings of their work, they shall declare it when the work is legally recorded as an audio recording.

Article 37: In accordance with the provisions of Article 25, Article 35 (2), Article 42 (2), and Article 46 (2) of the Copyright Law, if someone uses another person's work, they shall pay a usage fee to the copyright owner through a copyright collective management organization within three months from the date of use of the work.

According to Article 45 of the Copyright Law, if someone uses someone else's audio recordings, the provisions of the first paragraph of this article shall apply accordingly.

Article 38: Performances by foreigners and stateless persons within the territory of China are protected by the Copyright Law.

Foreigners and stateless persons' rights to perform under international treaties to which China is a party are protected by copyright law.

Article 39: Audio recordings produced and distributed by foreigners or stateless persons within the territory of China are protected by the Copyright Law.

The rights enjoyed by foreigners and stateless persons under international treaties to which China is a party to the production and distribution of audio recordings are protected by the Copyright Law.

Article 40: Foreign radio and television stations, in accordance with international treaties to which China is a party, shall be protected by the Copyright Law for the rights they enjoy in broadcasting and television.

Article 41: The term "wired or wireless" referred to in Article 10, Paragraph 1, Items 11, 12, Article 45, and Article 47 of the Copyright Law refers to any means of technical transmission such as radio waves, wired cables, information networks, etc.

Article 42: The term "public dissemination" referred to in Article 45 of the Copyright Law does not include the dissemination of audio recordings to the public through wired or wireless means, so that the public can obtain the audio recordings at their chosen time and place.

Article 43: The technical measures referred to in Article 49 of the Copyright Law include effective technologies, devices, or components used to prevent or restrict the unauthorized reproduction and dissemination of works, performances, audio and video recordings, broadcasting, television, and computer software.

The rights holder shall indicate the relevant information of the technical measures when using them.

Article 44: If a specific natural person, legal person, or unincorporated organization meets the requirements of Article 24 of the Copyright Law and finds it difficult to obtain a work, performance, audio or video recording, or broadcast or television, it may apply to the right holder who uses the technical measures to avoid the technology, device, or component of the technical measures, but shall not provide the technology, device, or component to others, nor infringe on other rights enjoyed by the right holder in accordance with the law.

In order to achieve the situation stipulated in Article 24 of the Copyright Law, technology, devices or components that avoid technical measures may be provided to natural persons, legal persons or unincorporated organizations that meet the requirements of the preceding paragraph, but shall not infringe on other rights enjoyed by the rights holder in accordance with the law.

Article 45: The following technical measures are not protected by the Copyright Law:

（1） Used to damage the network and data security of users who use works, performances, audio and video products, or broadcast and television without permission;

（2） Other damages to public interests that are unrelated to the protection of copyright and copyright related rights.

Article 46: Rights management information refers to information about a work and its author, performance and its performers, audio and video recordings and their creators, radio or television broadcasts and their stations, information about the rights holders of the work, performance, audio and video recordings, radio or television broadcasts and their conditions of use, as well as numbers or codes representing the above information.

Article 47: If any infringing act listed in Article 53 of the Copyright Law harms the public interest, the competent copyright department at or above the county level shall be responsible for investigating and punishing it.

The national copyright authority can investigate and deal with infringements that have a significant impact nationwide.

Any of the following situations shall be deemed as damaging to the public interest:

（1） Damaging the national image or public safety;

（2） Damaging the order of the socialist market economy;

（3） Disrupting the order of the cultural market;

（4） Engaging in infringement activities for profit or engaging in infringement as a business;

（5） Other situations that harm public interests as stipulated by laws and regulations.

Article 48: The legal liability referred to in the first paragraph of Article 59 of the Copyright Law includes civil liability and administrative liability. If the infringement constitutes a crime, criminal liability shall be pursued in accordance with the law.

Article 49: This regulation shall come into effect on [date]



Source: National Copyright Administration website