The 13th NPC Standing Committee (NPCSC) concluded its 23rd session on Wednesday, November 11, 2020 and adopted three bills. We already wrote about the new decision on the qualifications for members of the Hong Kong Legislative Council. Here, we will focus on the other two bills: an amendment to the Copyright Law [著作权法] and a new Veterans Support Law [退役军人保障法].
Copyright Law Amendment
The Copyright Law amendment adopted yesterday is the second major update to China’s copyright statute. It will take effect on June 1, 2021. Some of the main changes are as follows:
- Definition of “work”: The amendment for the first time embraces an open-ended definition of the term “work” [作品], defined as “any original intellectual product in fields such as literature, arts, and sciences that may be expressed in certain forms” (art. 3, para. 1).
- New concept of “audiovisual work”: The amendment replaces the former class of “cinematographic works” [电影作品] with a new category called “audiovisual works” [视听作品] (id. item 6), potentially expanding the universe of copyrightable works, such as sports broadcasts.
- Fair use
- The fair use provision incorporates the three-step fair-use test found in article 13 of the TRIPS Agreement. Amended article 24 now provides that a copyrighted work may be used without the author’s permission in certain enumerated cases, provided that the use “must not conflict with a normal exploitation of the work” nor “unreasonably prejudice the legitimate interests of the copyright holder.”
- Article 24 also recognizes a new form of fair use: published works may be made available to persons with print disabilities in an accessible format that they are able to perceive (para. 1, item 12). This new provision paves the way for China to ratify the Marrakesh Treaty, which it already signed in 2013. Article 24 now also includes a new catch-all provision that allows other statutes and administrative regulations to provide for additional forms of fair use (id. item 13).
- Technological protection measures (TPMs)
- The amendment allows holders of copyrights and neighboring rights to employ TPMs, which are defined as “effective technologies, devices, or components used to prevent or restrict” access to copyrighted works (art. 49, paras. 1, 3).
- Except as otherwise authorized by the rightsholder or by law, the amendment prohibits (1) the intentional circumvention or destruction of TPMs; (2) the manufacture, importation, or public distribution of devices or components for the purpose of circumventing or destroying TPMs; and (3) intentional provision of technical services to the circumvention or destruction of TPMs by others (id. para. 2).
- The amendment also provides for a few exceptions to the anti-circumvention rule, such as ones for education or scientific research, law enforcement, encryption research, and reverse engineering (art. 50).
- Consistent with recent changes to China’s intellectual property regime, the amendment authorizes up to quintuple punitive damages for willful copyright infringement, if “the circumstances are serious” (art. 54, para. 1).
- The amendment also increases the range of statutory damages from a maximum of 500,000 RMB to between 500 and 5 million RMB, to be awarded when the damages cannot otherwise be determined (id. para. 4).
For additional discussions of this amendment, please see this post at the China IPR blog.
Veterans Support Law
The Veterans Support Law is China’s first comprehensive statute on veterans affairs. It is enacted amid a recent burst of veteran-led protests against mistreatment and inadequate benefits, which led to the establishment of the Ministry of Veterans Affairs in 2018. The new Law consists of ten chapters with 85 articles and will enter into force on January 1, 2021. A brief overview of the Law follows.
Definition and scope. The Law defines “veterans” [退役军人] as (1) commissioned officers [军官], (2) non-commissioned officers (NCOs) [军士], and (3) conscripts [义务兵] who have lawfully left active service (art. 2, para. 2). For purposes of the Law, former members of the People’s Armed Police are considered “veterans” and former “civilian officers” [文职干部] in the military are considered commissioned officers (arts. 81–82).
Handover process. Upon leaving active service, a veteran is required to report to the veterans affairs department at his placement location, which will then issue a Veteran Preferential Treatment Certificate [退役军人优待证] (arts. 14–15). Local government agencies are required to promptly process household registrations for veterans and transfer their social security accounts (arts. 17–18).
Methods of placement. Chapter III sets out the general principles and the different types of placement measures applicable to each class of veterans. NCOs, for instance, are eligible for one of five types of placement: monthly retirement payment [退役金]; employment of their own choice, with a lump sum retirement payment; government-arranged employment; retirement; or life-time government support [供养] (art. 22). The State Council and the Central Military Commission are tasked with formulating detailed implementing rules (art. 30). Injured, sick, or disabled veterans are eligible for government-sponsored “admission and recuperation” [收治修养] (art. 28). Disabled veterans are further entitled to disability payments (art. 56).
Specific benefits and preferential treatments. Chapters IV to VI of the Law set forth the benefits and preferential treatments veterans are entitled to receive in different aspects of their lives, including academic education, vocational training, employment, entrepreneurship, housing, healthcare, transportation, tourism, and eldercare. For example, institutions of higher learning may enroll veterans through special admissions programs (art. 34, para. 2). Veterans who start small or micro businesses are eligible for subsidized loans (art. 46). Public employers are required to preferentially retain veterans who are placed there when laying off employees (art. 26, para. 3). Veterans may also be eligible for a range of non-monetary benefits, such as the opportunity to attend major ceremonies (Ch. VII).
Co-written with Changhao Wei