Matter in The Transition To The Digital Era: Perspectives On The Third Amendment To

Queen Mary Journal of Intellectual Property, Vol. 7 No. 4, pp.
468–484
What are works? Copyright law subject

matter in the transition to the digital era:
perspectives on the Third Amendment to
the Chinese Copyright Act
Chenguo Zhang (Coco)*

Associate Professor at Shanghai Jiaotong University, KoGuan School of Law; Senior Research Fellow
at the Law School, University of Bremen, Germany
The delineation of copyright subsistence is a focus area of the Third Amendment to the
Chinese Copyright Law. This paper addresses the proposed reforms to the concept of
‘works’ in the Chinese Copyright Act in response to the challenges of the digital era
and the international complaints regarding inadequate intellectual property protection
in China. The amendment proposes a new definition of ‘works’ and introduces new
types of work such as audiovisual works, computer programs and works of applied
art. The paper further discusses the conundrum of the copyright protection of ‘illegal
works’ in the aftermath of the US-China TRIPS dispute, as well as the controversial
topic of orphan works. The findings of this research indicate that Chinese lawmakers
intend to include a potentially wide range of subjects under copyright protection follow-
ing the paradigm that innovation and creation flourish with strong intellectual property
protection. However, this is realizable only via an appropriate copyright enforcement
mechanism, which is most essential for the current copyright law reform in China.
Keywords: Chinese Copyright Law, international copyright regime, copyright works,

audiovisual works, works of applied art, orphan works, computer program, illegal works
1 INTRODUCTION
The question of what constitutes a ‘work’ under copyright law, that is, the subsistence of
copyright, has been widely debated in recent years. In the UK, courts have displayed
very little sympathy for plagiarists and frequently demonstrate that a copyrighted
‘work’ should be interpreted in such a way as to protect the interests of the copyright
owners.1 Only two decades ago, US copyright industries lobbied the government to
use strong-arm tactics to coerce the People’s Republic of China (China or PRC)
into protecting copyrights.2 Although China has become a significant player in the
European and global economy in recent years, copyright piracy in and emanating
* The author would like to acknowledge the support of Exzellenzinitiative des Bundes und
der Länder (ABPZuK-07/2013).
1. DI Bainbridge, Intellectual Property (9th edn, Pearson, Harlow, UK 2012) 41.
2. PK Yu, ‘The Copyright Divide’ (2003) 25 Cardozo Law Review, available at SSRN:
<https://ssrn.com/abstract=460740> or <http://dx.doi.org/10.2139/ssrn.460740> accessed April
10, 2017.
© 2017 The Author Journal compilation © 2017 Edward Elgar Publishing Ltd
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What are works? Copyright law subject matter in the transition to the digital era 469
from China has become a serious concern. China was given the most attention in the
Report on Protection and Enforcement of Intellectual Property Rights in Third
Countries published by the European Commission (EC) on July 15, 2015.3 This coun-
try is deemed to be experiencing an epidemic of product piracy, based on large-scale
surveys launched by the EC. More noteworthy is that 79.9 per cent of all fake goods
seized at the borders of the EU are from China (including Hong Kong).4 According to
the EC report, China is in a group of countries in which intellectual property rights
(IPR) protection requires urgent improvement, and China is currently the only country
in this group. More than two-thirds of all European companies surveyed have
described copyright protection in China as highly inadequate.
In this context, China’s Copyright Law is undergoing5 its third comprehensive
amendment (Third Amendment).6 Reform of the Chinese Copyright Law is thus
worth the attention of not only academia but also policy makers and stakeholders
from both piracy-host and piracy-affected economies. The primary effects of the
Third Amendment on the subsistence of copyright include the following: (1) it takes
account of new technology and attempts to use definitions that will prove to be suffi-
ciently flexible to take future technological developments into account; (2) it strives to
rationalize the provisions on works of applied art and any overlap with ‘design
patents’; and (3) it takes the first step towards establishing copyright regulations for
digitalizing and exploiting orphan works. All of these effects reflect the legislative
goals officially announced by the National Copyright Administration of the PRC
(NCAC). First, by recognizing the core role of IPR in a knowledge-based economy
and the sustainable development of China, lawmakers attempt to embed intellectual
property (IP) policy into the framework of an overall pro-innovation industrial strategy
that stimulates domestic scientific and technological developments. Second, the Third
Amendment is in line with ‘the principle of internationalization’, which states that
‘China shall endeavor to enhance the level of copyright protection attending to inter-
national standards in order to improve the image of China as a large, responsible coun-
try on the international stage’.7
This paper first briefly introduces the background of the Third Amendment and the
history of China’s three-stage integration in the global copyright regime (section 2).
It then analyses six themes developed from recent discussions by academia and
3. An English-language version of this report is available at: <https://euipo.europa.eu/

ohimportal/documents/11370/0/Report+on+the+protection+and+enforcement+of+intellectual
+property+rights+in+third+countries> accessed February 23, 2017.
4. Ibid, 8.
5. On the history of the first and second revisions of the Chinese Copyright Law, see
P Ganea, ‘China’, in S von Lewenski (ed), Copyright Throughout the World (West
Publishing, forthcoming), Chapter 8, 8–14.
6. See the Declaration by the National Copyright Administration of the PRC (NCAC) on the
First Draft of the Third Amendment of the Copyright Law (NACA Declaration on the First Draft
of the Third Amendment), in Mingde Li, Yuying Guan and Guangliang Tang (eds), Proposals
for the Amendments of the Copyright Law of China (Law Press China 2012) 410–21; Mingde Li,
‘The Amendment to the Chinese Copyright Act and Related Suggestions’ (May 2012) Journal of
Intellectual Property 19; Handong Wu, ‘Legislative Scheme and Contents of the Third
Amendment to Chinese Copyright Law’ (May 2012) Journal of Intellectual Property 13;
Handong Wu, ‘Background, Style and Key Points of the Third Amendment to Chinese
Copyright Law’ (April 2012) Studies in Law and Business 3 ff.; NACA Declaration on the
First Draft of Third Amendment, Point 2.
7. NACA Declaration on the First Draft of the Third Amendment, Point 3.
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470 Queen Mary Journal of Intellectual Property, Vol. 7 No. 4
practitioners during the process of drafting the Third Amendment. These themes are as
follows: the definition of a work in an age of rapid development of digital technology
(section 3); the hotly debated theme of audiovisual works as copyright subject matter
(section 4); the definition of a computer program and its subsumption as a copyrighted
‘work’ (section 4); the inclusion of ‘works of applied art’ under copyright law and their
overlap with other IP regimes (section 4); the copyright dilemma with regard to illegal
works in the aftermath of the DS362 panel report of the World Trade Organization
(WTO) (section 5); and finally, the controversial theme of orphan works (section 6).
The paper comments on selected proposed provisions (of the Third Amendment) in
light of relevant international treaties and, where appropriate, compares them to
their counterparts in the EU and US. China’s most recent court decisions are reviewed
respectively under each theme.
2 BACKGROUND OF THE THIRD AMENDMENT
2.1 China’s integration in the international copyright regime

Currently, China is a member of almost all significant international treaties in the
copyright regime.8 China joined the Berne Convention effective October 15, 1992,
the Universal Copyright Convention on October 30, 1992, and the Geneva
Convention on Recording Media effective April 30, 1993.9 China’s accession to the
Berne Convention was a significant step10 that laid the foundation for the adoption
of three of the most important principles of the Chinese Copyright Law: national treat-
ment, automatic protection and recognition of minimum standards.11 On December 22,
2001, China joined the WTO. China’s accession to the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS)12 introduced Chinese copyright law
into the multilateral trading system that reflects the culmination of the battle of national
and international; public and corporate; and economic, social and political interests
interacting with the copyright law regime.13 Furthermore, TRIPS obligated China to
implement copyright protection through administrative and judicial enforcement.14
To acclimatize the copyright law to the challenges of the digital era, China joined
the two World Intellectual Property Organization (WIPO) Internet conventions, the
WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms
Treaty (WPPT), on March 9, 2007, effective June 9, 2007. Recently, China signed
8. P Ganea, ‘China’, in S von Lewenski (ed), Copyright Throughout the World (West
Publishing, forthcoming) Chapter 8, 8–17.
9. T Pattloch, Das IPR des geistigen Eigentums in der VR China [The IPR of Intellectual
Property in the PR China] (Mohr Siebeck, Tübingen 2003) 4.
10. China joined the Berne Convention under pressure from the US. See Zhi Wei, Der
Urheberrechtsschutz in China [Copyright Protection in China] (Hebert Utz Press, Munich
1994) 169–70.
11. T Pattloch, Das IPR des geistigen Eigentums in der VR China [The IPR of Intellectual
Property in the PR China] (Mohr Siebeck, Tübingen 2003) 48.
12. TRIPS was adopted in Marrakesh on April 15, 1994.
13. For a detailed legal analysis of the provisions of the TRIPS Agreement as well as the jur-
isprudence relating to TRIPS and a critical commentary on TRIPS, see C Correa, Trade Related
Aspects of Intellectual Property Rights: A Commentary on the TRIPS Agreement (Oxford
University Press, Oxford 2008).
14. T Enders, ‘Copyright in the PR China in View of China’s Entry to WTO’ 1999–2000
Journal of Comparative Legal Studies [Zeitschrift für Vergleichende Rechtswissenschaft] 476.

the Beijing Treaty on June 26, 2012 to protect audiovisual performances,15 effective July 9,
2014, and on June 28, 2014, joined the Marrakesh Treaty to provide access to published
works for individuals who are blind, visually impaired or are otherwise print disabled.16
2.2 The three-stage evolution of the Chinese Copyright Law and the process of
the Third Amendment
The Chinese Copyright Law was promulgated on September 7, 1990 (hereinafter the
Copyright Law of the PRC (1990)). It was first amended on October 27, 2001 (here-
inafter the Copyright Law of the PRC (2001))17 and then again on February 26,
2010.18 The first amendment (first stage) was introduced to fulfil the preconditions
of the PRC’s entry into the WTO, leading to China’s adoption of the basic structure
of the TRIPS enforcement system.19 The second, smaller amendment in 2010 (second
stage), was implemented in compliance with the WTO’s panel findings.20 Instead of
using the more common approach of fine-tuning the existing copyright statute, the
ongoing Third Amendment (third stage) is a major overhaul of the present legislative
framework and displaces the numbering of most of the existing articles.21 The third
draft of the proposed Third Amendment (Third Draft) was released by the NCAC
on October 30, 2012. In contrast to the two preceding drafts that were released for pub-
lic consultation, the text of the Third Draft is not available to the public.22 The State
15. The Beijing Treaty was accepted by WIPO member states on June 24, 2012. See S von
Lewenski, ‘A Happy End after Numerous Attempts’ (2013) International Journal of Industrial
Rights (GRUR Int.) 12. China signed the treaty on June 26, 2012 and ratified it on July 9, 2014.
16. In English, this is known as the Marrakesh Treaty to Facilitate Access to Published
Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. It was
accepted by the WIPO on June 28, 2013 and the text is available at: <http://www.wipo.int/
treaties/en/ip/marrakesh/> accessed October 16, 2016.
17. This law was published in the Gazette of the State Council, Vol. 33/2001, p. 10. An
English translation is available in China Patents & Trademarks, January 2002, p. 83.
18. Hereinafter ‘the Copyright Law of the PRC (2010)’. For an English translation, see the website
of WIPO <http://www.wipo.int/wipolex/en/details.jsp?id=6062> accessed February 6, 2017.
19. P Ganea and T Pattloch, Intellectual Property Law in China (Kluwer Law International,
The Hague 2005) 211.
20. See Panel Report, China – Measures Affecting the Protection and Enforcement of
Intellectual Property Rights, WT/DS362/R (January 26, 2009). The complaint focused on
four particular issues: (1) the high thresholds for Chinese criminal procedures and penalties in
the intellectual property domain; (2) the failure of the Chinese customs authorities to properly
dispose of infringing goods seized at the border; (3) the denial of copyright protection for
works that have not been authorized for publication or dissemination within China; and (4)
the unavailability of criminal procedures and penalties in China for infringing activities that
involved either reproduction or distribution, but not both.
21. The first draft of the Third Amendment to the Copyright Law of the PRC (First Draft) was
issued on March 31, 2012, of which, the Chinese version is available on the website of the
NCAC, <http://www.ncac.gov.cn/chinacopyright/contents/483/17745.html> accessed March
16, 2016; the second draft of the amendment (Second Draft) was issued on July 6, 2012, avail-
able in Chinese on the NCAC’s website, <http://www.ncac.gov.cn/chinacopyright/contents/483/
17753.html> accessed March 16, 2016.
22. This paper will reference the sequence and contents of the Third Draft based on this copy.
See also DSW Ma, ‘Right to Integrity and Proposed Resale Royalty Right and Notification Right
in the PRC Copyright Law’ (2013) 49 Stanford Journal of International Law 478; Y Wan,
‘Copyright Damages in China’ (2014) 518 Journal of the Copyright Society of the USA 541.

Council 23 will, in due course, approve this draft and submit it to the Standing
Committee of the National People’s Congress for its first reading.
3 ‘WORKS’ AS COPYRIGHT LAW SUBJECT MATTER
3.1 Definition of a ‘work’

All three drafts24 of the proposed Third Amendment explicitly introduce a definition of
a ‘work’ based on Article 2 of the Implementing Regulation of the Chinese Copyright
Law (Copyright Implementation Regulation).25 This was intended to pave the way for
more flexibly including new types of works created in our digital age.26 A ‘work’ is
thereby defined as the expression of an intellectual creation in the areas of literature,
science or art that displays originality and can be fixed in a particular form. The defi-
nition of a work, in conjunction with the list of work types, forms a framework for
understanding the term ‘work’ under the Chinese Copyright Law.27 The current list
of works in Article 3 of the Chinese Copyright Law is not exhaustive, which leaves
open the possibility of approving new types of works under certain preconditions,
namely ‘subject to legislative and administrative provisions’. This wording is removed
in the proposed catch-all clause that was introduced in Article 5, paragraph 2, number
16 of the Third Draft, which means the judiciary will be officially empowered to
define new types of works under the Chinese Copyright Law in the future.
3.2 The idea/expression dichotomy

It is noteworthy that the new requirement of physical fixability is different from that
of physical fixation.28 This replaces the previous requirement of ‘reproducibility in
physical form’ provided in Article 2 of the Copyright Implementation Regulation29
where ideas and thoughts are excluded from copyright protection. The rule of policy
makers hitherto was that only when a work was reproducible in physical form would
its transmission and dissemination be possible. Now, the ‘fixability in a particular
form’ requirement will be officially included in the definition of a work under
23. The State Council is the PRC’s chief administrative authority over various ministries – the
Central People’s Government.
24. First Draft, Art 3, para 1; Second Draft, Art 3, para 1; and Third Draft, Art 5, para 2.
25. The regulation was promulgated on August 2, 2002 by Order No. 359 of the State Council
of the People’s Republic of China. An English version is available at: <http://www.wipo.int/
wipolex/en/details.jsp?id=858> accessed December 5, 2016. The regulation was revised first
in 2011 and again in 2013. See Chenguo Zhang, ‘People’s Republic of China: Second
Revision of the Implementation Regulation of the Copyright Law’ (June 2013) International
Journal of Industrial Rights (GRUR Int.) 431.
26. Handong Wu, ‘Background, System and the Focus of the Third Amendment of the
Chinese Copyright Law’ (April 2012) Studies in Law and Business (Fa Shang Yan Jiu) 5.
27. Mingde Li, Yuyin Guan and Guangliang Tang, Clarification of the Expert Draft of the Third
Amendment of the Chinese Copyright Law (Beijing 2012) 48.
28. According to Art 2, para 2 of the Berne Convention, legislatures of the contracting parties
reserve the right to only protect works once they are fixed on a material-carrying medium (minimum
standard). The new definition of a work in the Chinese Copyright Law fulfills this requirement.
29. See eg, Zhi Wei, Der Urheberrechtsschutz in China [Copyright Protection in China]
(Hebert Utz Press, Munich 1994) 30.

copyright law.30 The Copyright Implementation Regulation enacted by the State

Council is not a ‘law’ under the Legislation Law of the PRC (2000). Hence, the
‘idea/expression dichotomy’ was not officially set forth in the Chinese Copyright
Act until the Third Amendment. Originally, this provision was adopted following
the US Copyright Act and the UK Copyright, Designs and Patents Act. 31 As we
know, Article 2, paragraph 2 of the Berne Convention allows member states to pro-
tect works only when they are ‘fixed in a material form’. The proposed new defini-
tion of a work in the Third Amendment thus intended to lower the threshold of
copyright law protection for a ‘work’, even below the standards set by the Berne
Convention. With regard to the definition of a work, Article 2 of the German
Copyright Law does not explicitly provide for any such requirements as set by the
Berne Convention. Instead, the German provision requires that a work should be
‘realizable in concrete form’,32 which is comparable with the new, proposed defini-
tion of ‘work’ in the Chinese Copyright Law.
For ‘fixability’, as required, the work must be ‘expressed’. Therefore, the ‘fixability’
requirement can also be regarded as a substitute for the ‘expression’ requirement. By
adding the feature of ‘fixability’ (‘expression’) to the definition of a work in Article 5,
paragraph 1 of the Third Draft, the lawmakers stressed that copyright protection does
not extend to the ideas, terms, algorithms, regulatory processes and methods of operation
used during program development.33 This is the idea/expression dichotomy, which is a
‘constitutional requirement’ under US law.34 Before the Third Amendment, however,
Chinese courts recognized this dichotomy and managed to apply it in a reasonably
coherent and defensible manner.35 Nonetheless, one recent court decision elicited wide-
spread debate about the fundamental principle that copyright protects expressions not
ideas. It discusses whether the ‘plot’ of a TV series script enjoys copyright protection.
In the case Chen Zhe v Yu Zheng, Hunan ETV Culture and Communication Co., Ltd,
Dongyanghuanyu Television Culture Co., Ltd, Wanda Television Culture Co., Ltd
and Dongyangxingrui Television Culture Co., Ltd,36 the Third Beijing Intermediate
People’s Court defined copyrightable parts of a piece of work in its judgment as follows:
[W]orks including novel scripts are protected by copyright if the expression includes a suffi-
ciently clear description of characters, their relationships, events, connections of main events,
and a relationship between characters and events, conflicts etc., and through the intelligence
30. In the First Draft and Second Draft of the Chinese Copyright Law in 2012, the requirement
of an ‘expression’ was not yet included. Only in the Third Draft of the Chinese Copyright Law in
2014 was this included in the definition of a work.
31. Zhi Wei, Der Urheberrechtsschutz in China [Copyright Protection in China] (Hebert Utz
Press, Munich 1994) 31.
32. M Rehbinder, Urheberrecht [Copyright Law] (CH Beck, Munich 2008) Marg. No. 159; A-A
Wandtke, Urheberrecht [Copyright Law] (2nd edn, De Gruyter, Berlin 2010) Marg. No. 4.
33. Mingde Li, Yuying Guan and Guangliang Tang, Clarification of the Expert Draft of the
Third Revision of the Copyright Law (Law Press China 2012) 48.
34. Feist Publ’ns, Inc. v Rural Tel. Serv. Co., 499 US 340, 349 (1991). The idea/expression
dichotomy is codified in Section 102(b) of the US Copyright Act, which provides that copyright
shall not ‘extend to any idea, procedure, process, system, method of operation, concept, princi-
ple, or discovery’.
35. S McIntyre, ‘Trying to Agree on Three Articles of Law: The Idea/Expression Dichotomy
in Chinese Copyright Law’ (2010) 62 1 Cybaris: An Intellectual Property Law Review, available
at SSRN: <https://ssrn.com/abstract=1574489> accessed February 27, 2017.
36. An English translation of this decision is available at: <http://en.pkulaw.cn/display.aspx?
id=1631&lib=case> (accessed February 12, 2017).

of the author, form the most distinctive expression of the work and should be protected
by copyright.
The court held that based upon the condition that a clear distinction should be made
between an idea and an expression, if the plot is sufficiently clear so that the reader
can form a distinctive impression of the work and thereby cross the border between
thought and expression, then the plot should be protected by copyright and any charac-
ters and their relationships based on the plot, as main elements, should also be protected
by copyright. Furthermore, when considering whether or not the works are substantially
similar, the court did not focus only on the actual Chinese characters, but rather made a
comparison of the characters, the plot, and the overall sequence of events.
After the copyright dispute between Yu Zhuang and Jingming Guo,37 another case
arose where the court expanded its interpretation of the protective scope of copyright.
This trend of judicial interpretation providing broader protection for copyright owners
may make it more difficult to reach a settlement in subsequent cases.
4 SPECIFIC TYPES OF ‘WORKS’
4.1 Audiovisual works

‘Film works and works created in a manner similar to film works’ will be removed
from the list of protected works in Article 3, number 6 of the Copyright Law of
the PRC (2010) through the Third Amendment. This wording found its origin in
Article 2, paragraph 1 of the Berne Convention. In lieu of that, the term audiovisual
work38 will be introduced. It is defined in Article 5, paragraph 1, number 12 of the
Third Draft as follows:
Audiovisual works are perceptible works composed of a series of successive individual
images, with or without accompanying sound, created using technical equipment, including
films, TV series, and works created in a manner similar to film works. (Emphasis added.)
4.1.1 Inclusion of flash videos

In contrast to Article 4, number 11 of the Copyright Implementation Regulation, this
definition no longer requires physical fixation. This means that ‘flash videos’ produced
using computer technology are protected under copyright law.39 The new provision
closes the interpretation loophole in the prior legislation. In the case ZHU Zhiqiang
v Nike Inc., the Supreme People’s Court held that the defendant who disseminated
the flash movie ‘Matchstick Little Man’, which was produced via computer software,
had unreasonably prejudiced the legitimate interests of the author and thus ordered
injunctive relief. Under the previous definition of a film work, it was difficult for
37. For more facts about the case, see J Martinson, ‘Plagiarism, Apologies and Circulation
Numbers’, Danwei, June 28, 2006, available at: <http://www.danwei.org/ip_and_law/plagiarism_
apologies_and_circu.php> accessed February 12, 2017.
38. The Chinese phrase ‘shi ting zuo pin’ corresponds more closely to the English phrase
‘audio visual works’, which differs from videograms. See Mingde Li, Yuying Guan and
Guangliang Tang, Clarification of the Expert Draft of the Third Revision of the Copyright
Law (Law Press China 2012) 39.
39. Qian Wang, ‘New Definition of Film Work, Assignment of Copyright and
Implementation’ (2008) 4 Jurisprudence [Fa Xue] 83.

the court to determine whether a ‘flash’ file could be subsumed under the film works
category.40 Now there is no ambiguity and this type of work can enjoy protection as an
‘audiovisual work’.
According to the NCAC clarifications, the new term audiovisual work ‘is more con-
cise and precise than the term film work’.41 Moreover, there has been a trend to adopt
this new term in the international IP regime, and in other countries, for instance
France.42 It is noteworthy that ‘audiovisual work’ and its definition43 in Chinese
law have referred to the provisions of Article 2 of the Treaty on the International
Registration of Audiovisual Works.44 The Berne Convention has a similar regulation
relating to this issue: Article 2, paragraph 1 grants (audiovisual) works copyright pro-
tection independent of the type of technology used in their creation.45 Further, the new
term corresponds to the definition of ‘audiovisual fixation’ in Article 2(b) of the
Beijing Treaty, which does not require ‘physical fixation’ or ‘reproducibility and the
capability of being transmitted using equipment’.
Again, the adoption and definition of this new term reflects the intention of Chinese
legislators to lower the threshold for audiovisual works to be protected under the
Chinese Copyright Law.
4.1.2 The abolition of neighbouring rights in video recording

Apart from creative works of cinematography, Articles 40–42 of the Copyright Law of
the PRC (2010) also regulate neighbouring rights in video recording. The NCAC clar-
ifications indicate that through the Third Amendment, the prior regulations on ‘video-
grams’ as the subject matter of neighbouring rights will be removed and videograms
can now, in a large part, be considered audiovisual works.46 In this regard, one ques-
tion as to whether computer games can be subsumed under audiovisual works remains
unclarified. Because China has been the largest and highest grossing (total revenue)
video game market in the world since 2015,47 this will likely be a significant matter
40. See the decision of the Higher People’s Court of Beijing, Gao Min Zhong Zi, Case No. 538
2005.
41. NACA Declaration on the First Draft of the Third Amendment, Point 5.2; Mingde Li,
Yuyin Guan and Guangliang Tang, Clarification of the Expert Draft of the Third Amendment
of the Chinese Copyright Law (Law Press China 2012) 39.
42. See the Treaty on the International Registration of Audiovisual Works (Film Register
Treaty), accepted on April 20, 1989 in Geneva, available on the WIPO website at <http://
www.wipo.int/treaties/en/text.jsp?file_id=284032> accessed April 17, 2017.
43. The acceptance of the definition from the Film Register Treaty was suggested by academia.
See Guorui Sun, Yufang Liu and Xia Meng, ‘Research on Copyright in Audiovisual Work’
(October 2011) Intellectual Property 60–61.
44. For information on the WIPO Treaty adopted in Geneva on April 18, 1989, see <https://
www.google.de/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUKEwjK97W90
oPSAhXsCsAKHQY5DgIQFggdMAA&url=https%3A%2F%2Fbiblioteca.ua.es%2Fen%
2Fpropiedad-intelectual%2Fdocumentos%2Flegislation%2Fregistration-treaty-movies.
pdf&usg=AFQjCNFcAabAHZTvaxB6AYqugWfBzVXAQQ&sig2=uiJdXvsNP5nUt1DBkoFn
gg&bvm=bv.146496531,d.ZGg> accessed February 10, 2017.
45. C Masouyé, Guide to the Berne Convention for the Protection of Literary and Artistic
Works (WIPO, Geneva 1978) 15.
46. NACA Declaration on the First Draft of Third Amendment, Point 5.2.
47. ‘The Global Games Market Reaches $99.6 Billion in 2016, Mobile Generating 37%’,
available at: <http://www.newzoo.com>, April 21, 2016, last accessed June 3, 2016.

of judicial interpretation in the future. It is noteworthy that a ‘film work’ must possess
a certain degree of originality to enjoy copyright protection in China. This criterion
should be applied in order to subsume a computer game as copyright subject matter.
Thus far, academia in China has stressed the importance of the requirement of ‘origin-
ality’ for audiovisual work.48 Additionally, Chinese courts have set relatively high
standards for the originality of such works.49 In Beijing Tang Ren Jie Repast and
Entertainment Co. Ltd v Warner Music Hong Kong Ltd, the Second Intermediate
People’s Court of Beijing deliberated the question of whether a Musical TV (MTV)
production by Warner starring the pop singer Fucheng Guo should enjoy copyright
protection as a film work. The court placed relatively high demands on the originality
and individuality (creative achievement) of the work. It stressed that this criterion was
decisive in differentiating between a videogram (neighbouring right) and a film work
(copyright). Warner’s production was found to be a film work because it revealed suf-
ficient features of creativity.50 In view of judicial practice, it can be predicted that in
the future videograms will enjoy protection under copyright law as ‘audiovisual
works’ only when they reveal a certain degree of originality and individuality.
4.2 Computer programs

Upon the recommendation of the expert committee, the Regulation on the Protection
of Computer Software (Software Regulation)51 should be fully integrated into the
Chinese Copyright Law through the Third Amendment.52 In all three proposed drafts,
‘computer software’ is renamed computer programs,53 a term that subsumes the defi-
nition of Rule 3, number 1 of the Software Regulation with a slight change.54 Article 5,
paragraph 1, number 15 of the Third Draft defines computer programs as ‘command
sequences expressed using source or object codes suitable for performance by a com-
puter or another system used to process information. Source and object codes for the
same computer program count as one and the same work’. This being so, the legisla-
ture followed the rationale of protecting computer programs as works of literature in
48. Mingde Li, Yuyin Guan and Guangliang Tang, Clarification of the Expert Draft of the
Third Amendment of the Chinese Copyright Law (Law Press China 2012) 61.
49. Theodor Enders and Alexandra Steiner, ‘Copyright Law Reform and Copyright
Enforcement in China’, Journal of Chinese Law (Zeitschrift für Chinesisches Recht) February
2010, pp. 91, 96.
50. Second Intermediate People’s Court of Beijing, Gao Min Chu Zi, Case No. 156 2004.
51. Regulations of January 1, 2002 on Computers Software Protection (promulgated by Decree
No. 339 of December 20, 2001, of the State Council of the People’s Republic of China), English
version available at: <http://www.wipo.int/wipolex/en/text.jsp?file_id=131055> accessed
February 11, 2017.
52. Declaration of the Office for Legal Matters of the State Council Regarding the Third Draft
of the Chinese Copyright Law 2014, dated June 6, 2014, Point 2.4.5.
53. ‘Computer program’ is also used in Art 10 of TRIPS and in Art 4 of the WCT instead of
‘computer software’.
54. The committee that drafted the copyright law also expressed the view that the definition in
Rule 3, number 1 of the Software Regulation is oriented towards computer technology and there-
fore does not fulfill the principle of technological neutrality in the legislation. See Mingde Li,
Yuyin Guan and Guangliang Tang, Clarification of the Expert Draft of the Third Amendment of
the Chinese Copyright Law (Law Press China 2012) 40; Guorui Sun, Yufang Liu and Xia Meng,
‘Research on Copyright in Audiovisual Work’ (October 2011) Intellectual Property 60–61.

terms of Article 2 of the Berne Convention.55 Overall, through the Third Amendment,
the new conditions for computer programs to receive copyright protection are as fol-
lows. First, they must be developed independently by the developer him- or herself
(previously Rule 4 of the Software Regulation), which could be subsumed into the
general precondition of the ‘originality’ of a work under Article 5, paragraph 1 of
the Third Draft.56 Second, after the Third Amendment, a computer program is no
longer explicitly required to be fixed on a physical medium (previously Rule 4 of
the Software Regulation). The background for the abolition of the Software
Regulation is as follows. The expert committee of the Third Amendment questioned
the necessity for a separate computer software regulation, because (1) its promulgation
was originally due to pressure from the US, and (2) most provisions of this regulation
were almost identical to the general copyright law, with the exception of the definition
of software and certain limitations of rights. 57 The substantial amendment of
the Software Regulation in 2001 has already brought the protection for computer pro-
grams into line with the general provisions of the Copyright Law. Since then, ex-ante
registration is no longer a requirement for filing a copyright infringement case invol-
ving computer programs. Instead, registration is merely recommended ‘because it alle-
viates the burden of proof regarding copyright infringements’ (Rule 7 of the Software
Regulation).58 Further, the term of protection was changed from 25 years to 50 years,
both for moral and property rights (Rule 14 of the Software Regulation).59
In view of the fierce debate on the patentability of computer programs in the
international copyright regime,60 it has been suggested that patent law for computer-
implemented discoveries61 should also be used to protect computer programs in China.
The rules of rights limitations and exceptions in the Software Regulation will be
revised and incorporated in Chapter 4, ‘Rights Limitations and Exceptions’ of the
China Copyright Law (Third Draft). According to Article 44 of the Third Draft (pre-
viously Rule 16 of the Software Regulation), the legally authorized owner is granted
the right to load the computer program, to make back-up copies, and to make changes
necessary for private use. Without the consent of the copyright owner, a third party
may not be offered the changed computer program or the system or its components
55. Art 10 of TRIPS and Art 4 of the WCT.

56. Here, the Chinese legislature does agree with the opinion of Dr Zheng Chengsi. See Zheng
Chengsi, ‘Analysis and Comments on the Computer Software as a Special Work’ (1992) 1 China
Patent & Trademarks 77.
58. This change is criticized in the literature using quotes from Art 411 of the US Copyright
Law of 1987, since the registration of a computer program in China should be a requirement for
bringing a lawsuit for copyright law violation, with reference to Aiming Qi and Zhen Peng,
‘Critical Comments on the Registration of Computer Software Work in China’ (May 2013)
Hebei Jurisprudence 10, 13.
59. P Ganea, ‘China’, in S von Lewenski (ed), Copyright Throughout the World (West
Publishing, forthcoming), Chapter 8, 8–22.
60. Academics suggest that the copyright protection of an expression of a computer program
according to Art 10, para 1 of TRIPS is compatible with the patent protection of the innovative
ideas it includes; therefore, patent protection should not be excluded for computer programs pur-
suant to Art 27, para 1 of TRIPS. See C Correa and AA Yusuf (eds), Intellectual Property and
International Trade: The TRIPS Agreement (Kluwer Law International, Alphen aan den Rijn
2008) 236.
61. The term has been accepted in Germany and the EU. See M Rehbinder, Urheberrecht
[Copyright Law] (CH Beck, Munich 2008) Marg. No. 168.

to change the computer program. Article 45 of the Third Draft (previously Rule 17 of
the Software Regulation) allows the legally authorized owner to use a computer pro-
gram for educational and research purposes without paying remuneration or asking for
permission, although the methods of use are explicitly restricted to set-up, presenta-
tion, transmission and saving. The appropriateness of Rule 17 of the Software
Regulation was questioned by academia in view of the three-step test enshrined in
international copyright treaties.62 Now, with a more precise limitation to ‘authorized
users’ in Article 45 of the Third Draft, lawmakers are attempting to align the copyright
protection of computer programs in China with international standards. Article 46 of
the Third Draft further articulates that a legally authorized user is permitted to copy
and translate the parts of the computer program related to compatibility information
without the permission of the copyright owner if he or she is unable to gain this
required information (compatibility information) through normal channels. The user
may not use the information gained in this manner for any other purpose beyond
the necessity of program compatibility or offer it to a third party for purposes of devel-
opment, production, or operation of a substantially similar computer program, or for
the purpose of committing copyright infringement. It is noteworthy that a claim for
compensation by the copyright owner is not excluded in this case. In sum, the abolition
of the Software Regulation does not mean weaker copyright protection for computer
programs. In contrast, as the NACA has stressed, the copyright protection of computer
programs in China shall be enforced through civil, criminal, and administrative mea-
sures more extensively and intensively in the future.63
The delineation of ‘rights’ in a computer program is also a noteworthy issue in the
Third Amendment, for it reflects the rationale of Chinese academia and policy makers
to focus on strengthening the copyright protection of computer software.
Correspondingly, a rather challenging question is: how can these rights be effectively
enforced?
4.3 Works of applied art

Works of applied art will be included in the subject matter of copyright protection
through the Third Amendment. This closes a loophole in the prior legislation which
has been criticized by academics.64 Patent law protection alone was considered insuf-
ficient to protect works of applied art because design patents protect only the parts of
the works that are commercially useful and that are not identical or similar to other
registered designs. Further, design patents can be granted following a simple examina-
tion. The term of protection for a design patent is only ten years after registration
according to Article 42 of the Chinese Patent Law, while Article 7, paragraph 4 of
the Berne Convention requires a minimum term of 25 years as of the day the work
is completed. The fact that no general copyright protection was granted for works
62. M Ring, China and the Intellectual Property Law: The Agreement with the WTO and its
Implementation (Hamburg 2008) 43.
64. See P Ganea, ‘China’, in S von Lewenski (ed), Copyright Throughout the World (West
Publishing, forthcoming), Chapter 8, 8–20; Zhi Wei, Der Urheberrechtsschutz in China
[Copyright Protection in China] (Hebert Utz Press, Munich 1994); Weijun Zhang,
‘Rethinking the Copyright Protection in Works of Applied Art’ (September 2013) Intellectual
Property [Zhi Shi Chan Quan] 51, 52.

of applied art in the Chinese Copyright Law, which deviates from the requirements of
Article 2, paragraph 7 in conjunction with Article 7, paragraph 4 of the Berne
Convention,65 is due to concerns of the legislature that this would shift the focus of
copyright law from intellectual creators to commercial entrepreneurs.66 Thus far,
Rule 6 of the ‘International Copyright Treaties Implementation Rules’ grants a certain
level of protection solely for foreign rights holders.67 This provision, which discrimi-
nates against Chinese nationals, will be substituted by a new provision introduced in
the Third Amendment. Nonetheless, in view of this legislative loophole, court deci-
sions in China have developed certain judicial precedents on this issue. In the case
Interlego AG v Kegao Company and Fuxing Business Centre, for the first time, the
Supreme People’s Court granted copyright protection beyond a design patent for the
industrial product ‘Lego Building Blocks’. Further, court decisions have granted for-
eigners ‘double protection’ for three-dimensional creations, first by the registration of a
design patent and then through copyright protection.68 In an earlier decision, however,
the court determined that only a part of the protected object could be subsumed under
Article 3, number 4 of the Copyright Law as a work of visual art.69 This was criticized
as disproportionate, leading to the proposal of general copyright protection for works
of applied art.70
The expert committee of the Third Amendment referred to the US model and
argued against double protection as such.71 Now, the proposed approach in Article
5, paragraph 2, number 9 in conjunction with Article 29, paragraph 3 of the Third
Draft is similar to the dominant opinion and current solution under German law.72
65. Art 2, para 7 of the Berne Convention articulates that it shall be a matter for the legislatures
of the member states to determine the extent of the application of their laws to works of applied
art and industrial designs and models, as well as the conditions under which such works, designs
and models shall be protected.
67. ‘International Copyright Treaties Implementation Rules’, enacted by the State Council and
entered into force on September 31, 1992. For an English version, see <http://www.wipo.int/
edocs/lexdocs/laws/en/cn/cn033en.pdf> accessed February 13, 2017. See also P Ganea,
‘China’, in S von Lewenski (ed), Copyright Throughout the World (West Publishing, forthcom-
ing), Chapter 8, 8–20.
68. Higher People’s Court of Beijing, Gao Min Zhong Zi, Case No. 279 2002, with reference
to Guangliang Zhang, ‘Comments on the Case Interlego AG v Kegao Co. Ltd’ (February 2003)
China Patent & Trademarks 77; P Ganea, ‘China’, in S von Lewenski (ed), Copyright
Throughout the World (West Publishing, forthcoming), Chapter 8, 8–20.
69. Second Intermediate People’s Court of Beijing, Er Zhong Min Chu Zi, Case No. 12293
2008.
70. Jiarong Zhang and Xianjun Luo, ‘Rethinking the Copyright Protection in Works of
Applied Art in China, Comments on Copyright Infringement Case OKBABY Co. v. Ci Xi Jia
Bao Co. Ltd’ (December 2009) Electronics Intellectual Property (Dian Zi Zhi Shi Chan
Quan) 76, 80.
71. This opinion emphasizes the separability of the aesthetics from the functions of applied art
in accordance with Art 17, para 101 of the US Code, and questions the necessity of double pro-
tection. See Mingde Li, Yuyin Guan and Guangliang Tang, Clarification of the Expert Draft of
the Third Amendment of the Chinese Copyright Law (Law Press China 2012) 42.
72. U Loewenheim, ‘Comments on Section 2’, in G Schricker (ed), Urheberrecht [Copyright
Law] (2nd edn, CH Beck, Munich 1999), Marg. No. 157; Decision of Federal Supreme Court of
Germany ‘Silberdistel’, GRUR Int. 1995, pp. 581, 582; Decision of Federal Supreme Court of
Germany ‘Candida-font’ BGHZ, Vol. 27, pp. 351, 354. Another opinion supporting the ‘design

As stressed by scholars, there is only a gradual difference between the copyright pro-
tection of works of applied art and the protection provided for industrial designs. The
former focuses on the requirement of individuality and the latter forms its substructure
mechanism. The two types of property rights can coexist.73
5 NO COPYRIGHT PROTECTION FOR ILLEGAL WORKS?
Article 4 of the Copyright Law of the PRC (2010) provides that the copyright holder
may not violate the constitution or the law in exercising a copyright and may not harm
the public interest. The text of this article was the result of a compromise in the second
revision on February 26, 2010 as a consequence of the WTO panel report WT/DS362/
R (‘China: Measures Affecting the Protection and Enforcement of Intellectual Property
Rights’) of January 26, 2009. This 2010 revision removed Article 4, paragraph 1 of the
prior version of the Chinese Copyright Law, which deprived works of copyright pro-
tection if their publication and dissemination were prohibited by law. In its complaint,
the US successfully challenged the ‘forbidden works’ provision as a violation of the
non-formality principle set forth in Article 5, paragraph 2 of the Berne Convention.
The US argued that copyright protection would not commence until the approval of
the Chinese censorship authorities had been granted, whereas US copyright owners,
being deprived of their copyright prior to approval, would be banned from proceeding
against infringement.
The abolished provision found its roots in Article 45 of the ‘Regulations on
Publication Administration’, 74 which prescribes an admissibility procedure for
importing and granting copyright protection for foreign works. The copyright protec-
tion for a foreign work was thus made dependent on its formalities. This violated
Article 9, paragraph 1 of TRIPS, which refers to Article 5, paragraph 2, clause 1
of the Berne Convention, and, according to which, granting and exercising a copy-
right should not be subjected to any formalities. The WTO panel first examined
whether Article 4, paragraph 1 of the prior version of the Chinese Copyright Law
was compatible with Article 5, paragraph 1 of the Berne Convention (national treat-
ment) and came to a negative conclusion. China’s argument that the disputed provi-
sion should be legitimated by Article 17 of the Berne Convention was rejected by the
WTO panel. The panel found that the Berne Convention would only ‘allow censur-
ing measures, but not the denial of copyright law protection’.75 China’s argument
that public censure should be seen as a method of the enforcement of intellectual
approach’ instead of the ‘copyright approach’ argues the contrary position and arose after the
implementation of the registered design guideline. See Adolf Dietz, ‘The Chinese Copyright
Law – Copyright or droit d’auteur?’ in U Loewenheim (ed), Urheberrecht im
Informationszeitalter: Festschrift für Wilhelm Nordemann (commemorative publication) (CH
Beck, Munich 2004) 527.
73. Bingbin Lv, ‘Logic of the Copyright Protection in Works of Applied Art’ (March 2014)
Journal of Comparative Law [Bi Jiao Fa Yan Jiu] 14; Weijun Zhang, ‘Rethinking the
Copyright Protection in Works of Applied Art’ (September 2013) Intellectual Property [Zhi
Shi Chan Quan)] 51, 53.
74. An English version of the regulations is available on the WIPO website: <http://www.
wipo.int/wipolex/en/details.jsp?id=6472>, last visited on 10/15/2014.
75. P Ganea, ‘International Panel Releases Results on Dispute between USA and China
Regarding Deficit in Chinese Immaterial Property Protection’ (2009) International Journal of
Industrial Property (GRUR Int.) 274.

property rights was also rejected by the WTO panel. The panel found that copyright
law should be deemed a private right and its exercise cannot be hindered by public
censure. The WTO panel report on January 26, 2009 concluded that the prior version
of the Chinese Copyright Law did not meet the requirements of TRIPS because
‘authors enjoy copyright protection in all circumstances, independent of whether
marketing the work is forbidden by other laws’.76
The WTO report ignited fierce debate in academia regarding copyright protection
for ‘forbidden works’, which has persisted even during the Third Amendment pro-
cess.77 The current leading opinion holds that Article 4, paragraph 1 of the prior ver-
sion of the Chinese Copyright Law mixed up the application areas of the civil and
administrative regulations on this issue. The curtailment of illegal works should
fall under the rubric of the administrative laws of the publishing industry. The dis-
semination of works with illegal content can be curtailed but this should not affect
their copyright protection. Copyright should endow its rights holders with protection
regardless of the value, quality or subjective standard or the literary, scientific or
artistic position of the work. Copyright protection should be granted independently
of whether or not the works may be published. 78 Thus, all drafts of the Third
Amendment79 propose the following provision: ‘A copyright holder’s exercise of
copyrights and associated property rights may not violate the constitution or the
laws and may not harm the public interest. The state (not the publisher) will monitor
and administer the distribution of works in a legally valid manner’ [emphasis added].
Additionally, Article 5, paragraph 3 of the Third Draft clarified that copyright pro-
tection is automatically granted from the day of creation, independent of any formal
requirements.
6 ORPHAN WORKS
The announcement of the ‘Google Library Project’80 on February 14, 2004 motivated
Chinese lawmakers to frame copyright regulations regarding digitalizing and provid-
ing access to orphan works. Orphan works are works whose copyright holders are,
following a diligent search, either unknown or, if known, cannot be found.81
76. Ibid.
77. Zhiwen Liang, ‘Copyright Protection of Forbidden Works under a Dispute Resolution
System with a Focus on Art. 4 of the Chinese Copyright Law’ (March 2010) Law Research
[Fa Zhi Yan Jiu] 52; Haijun Jin, ‘Analysis of the WTO Panel Report on the first WTO
Intellectual Property Dispute against China’, available at: <http://ip.people.com.cn/GB/
8871936.html> accessed April 10, 2017.
78. Lixian Cong, ‘Copyright Protection of Forbidden Work: Comments on Art. 4 of Chinese
Copyright Law’ (February 2011) Journal of Jurisprudence [Fa Xue] 92; Zhiwen Liang,
‘Copyright Protection of Forbidden Works under a Dispute Resolution System with a Focus
on Art. 4 of the Chinese Copyright Law’ (March 2010) Law Research [Fa Zhi Yan Jiu] 52, 60.
79. Art 5 of the First Draft; Art 5 of the Second Draft; Art 7 of the Third Draft.
80. Through this project, many books have been scanned from US university libraries, with
parts of the scanned books made available for searches and online viewing. This creates conun-
drums for copyright law. See M Kleinemenke, Fair Use in German and European Copyright
Law? (Bonn, 2013) 175, 142, 273; K-N Peifer, ‘The Law Provisions on Orphan and Out-of-
Print Works’, New Legal Weekly, 2014, p. 6.
81. Art 2, guideline 2012/28/EU by the European Parliament and Council dated October 25,
2012 regarding specifically approved forms of use for orphan works (referred to as Directive

Article 13 of the Copyright Implementation Regulation partly addressed orphan

works as follows:
For works for whom the identity of the author is unknown, copyright is exercised by the legal
owner of the original copy of the work, except the naming rights. If the identity of the author
has been discovered, copyrights shall be exercised by the author or his descendants.
If there is no legal owner of the original copy of a work, the author of which is
unknown, according to Article 19, paragraph 2, clause 2 of the Copyright Law of
the PRC (2010) in conjunction with Rule 15, paragraph 2 of the Copyright
Implementation Regulation, the author’s property rights shall belong to the state. In
such a case, Rule 16 of the Copyright Implementation Regulation designates the
NCAC as the representative of the state.82 However, academia has stressed that this
regulation was originally based on a legislative initiative regarding how to allocate
copyrights in cases where original copies of visual artworks or photographs were
lost, while orphan works drew the attention of policy makers following the disputes
triggered by the Google Book Project.83 One issue still challenges Chinese lawmakers.
Digital rights to orphan works are exclusive rights,84 the restrictions of which are pro-
vided only for narrow purposes within a limited scope (by libraries, archives, memor-
ials, museums, and galleries).85 If copyright holders are unknown or cannot be found,
the rights to such works cannot be exploited for profit. While Google claimed ‘fair use’
under US copyright law before the court, attempting to use the ‘Google Book
Settlement’86 to create a collective system of management (‘opt-out’/lump sum pay-
ment) with the American Authors Guild, another approach was developed in the EU
and its member states to solve the problem. Orphan works may be copied and made
accessible to the public by the authorized individuals listed in Article 1, paragraph 1
of the Orphan Works Directive 2012/28/EU.87 However, this regulation de facto loos-
ens and expands the catalogue of rights for making such works available to the public
as provided in Directive 2001/29/EC.88 Thus, it has been criticized as ‘unusual from
legal and political standpoints’: the restrictions of the rights in Directive 2001/29/EC
are exclusive and exhaustive, the provision of which has been argued as ‘not
2012/28/EU hereinafter); see also the definition in the report on orphan works by the US
Copyright office, available at <http://www.copyright.gov/orphan/orphan-report-full.pdf>, p. 1,
accessed October 12, 2016.
83. Yuyin Guan, ‘Resolution to the Conundrum of Orphan Works in Europe and the US:
A Comparison’ (June 2013) Hebei Jurisprudence [He Bei Fa Xue] 135, 139, 140.
84. Rule 2 of the Information Network Communication Regulation, for an English translation,
see China Patents & Trademarks, March 2006, p. 90, available at <http://www.cpahkltd.com/
UploadFiles/20100315165559735.pdf> accessed April 1, 2017.
85. Art 22, No 8 of the Copyright Law of the PRC (2010), Rule 7 of the Information Network
Communication Regulation.
86. The Google Book Settlement is available at the following link in English: <http://www.
googlebooksettlement.com> with reference to T Lüder, ‘The “Orphan Works” Challenge’
(2010) International Journal of Industrial Rights (GRUR Int.) 677, 679.
87. See Art 6 of the Directive of the European Parliament and of the Council of 25 October
2012 for certain permitted uses of orphan works. For an overview of the directive, see K-N
Peifer, ‘The Law Provisions on Orphan and Out-of-Print Works’, New Legal Weekly, 2014,
pp. 6, 8.
88. Directive 2001/29/EC, dated May 22, 2001 on Harmonising Specific Aspects of Copyright
Law and the Law on Orphan Works in an Information Society, June 22, 2001, No. L 167, p. 10.

evadable’.89 While the focus in the US is facilitating new business models using digital
technology, the exploitation of rights to orphan works in the EU may be acquired only
by memory institutions for non-commercial purposes. During the process of the Third
Amendment, an additional approach was proposed where the Chinese legislature could
authorize the use of orphan works to certain collecting societies. Nonetheless, this
approach has not been adopted in regulations regarding collecting societies90 per se,
and is still undergoing comprehensive reform. For instance, the question remains
whether multiple collecting societies should be permitted in China91 and whether
the administration of the NCAC could be liberalized following the Japanese
model.92 In fact, Rule 7 of the Information Network Communication Regulations93
has authorized memory institutions to use ‘making available’ rights on orphan
works for non-commercial purposes, which is comparable to the solution conceptua-
lized in the Orphan Works Directive 2012/28/EU.94 However, this does not aim to
facilitate new business models like the Google projects that have prospered in the
information society. This being so, the Chinese legislature has issued a new provision
regarding orphan works in Article 51 of the Third Draft,95 which allows the use of
orphan works (that are under copyright protection) upon request and deposit of remu-
nerations (by the exploiters) to be determined by the NCAC.96 The NCAC will frame
implementation regulations in this regard in the future. The nature of this legislative
proposal is evaluated as a ‘de facto statutory license’.97 It smooths the digitalization
and provides access to orphan works, for example by online service providers, for
commercial purposes as well. The question remains whether the NCAC will success-
fully reconcile the legal problems related to this issue, for instance provisions regard-
ing a ‘diligent search’, which are essential for the delineation of orphan works.
89. T Lüder, ‘The “Orphan Works” Challenge’ (2010) International Journal of Industrial
Rights (GRUR Int.) 677.
90. On the framework conditions for the China model using collecting societies, see Chao Xu,
‘Collective Administration of Copyright in China’, International Review of Intellectual Property
and Competition Law (IIC) 2006, pp. 586, 591.
91. Art 65 of the Third Draft of the Chinese Copyright Law provides that if multiple collecting
societies collect a fee from the same user for the same use, they must agree on a unified standard
use fee, and only one of them may be granted the right to levy use fees through negotiations and
then divide this among the others.
92. On the need for reform and approaches to revision, see P Ganea, ‘China’, in S von
Lewenski (ed), Copyright Throughout the World (West Publishing, forthcoming), Chapter 8,
8–68.
93. Information Network Communication Regulations; an English translation is available in
China Patents & Trademarks, March 2006, p. 90, and at <http://www.cpahkltd.com/
UploadFiles/20100315165559735.pdf> accessed April 1, 2017.
94. Yuyin Guan, ‘Resolution to the Conundrum of Orphan Works in Europe and the US:
A Comparison’ (June 2013) Hebei Jurisprudence [He Bei Fa Xue] 135, 139, 140, 141.
95. See the Declaration of the NCAC on the Second Draft of the Third Amendment, Point 2.4,
Mingde Li, Yuying Guan and Guangliang Tang, Clarification of the Expert Draft of the Third
Revision of the Copyright Law (Law Press China 2012) 440, 441.
96. The First Draft of the Third Amendment provided for the payment of use fees directly to
the NCAC. This was changed in the Second Draft so that the NCAC must commission external
bodies to manage the collection of fees.
97. Ibid.

7 CONCLUDING REMARKS
The new provisions regarding copyright subject matter discussed above are only one
important aspect of the Third Amendment, but the intent of the Chinese legislature is
clear: the scope of ‘works’ and the delineation of copyright should aim at including a
potentially wide range of subjects, confronting the multifaceted challenges of the digi-
tal era. This seems to be based on the popular paradigm that innovation and creation
thrive under strong IP protection – the stronger the better. As we know, the delineation
and the enforcement of copyrights are like two sides of the same coin. In this regard,
another highlight of the Third Amendment is the legislature’s attempt to strengthen
high-level copyright protections, even TRIPS-plus driven protections to implement a
national IP strategy.98 However, Chinese policy makers should recognize that the
right degree of IP delineation and protection is required, not the maximum amount
of protection. If the provisions relating to copyright subject matter lean towards
over-exclusivity and if the de facto enforcement measures are of limited vigour, as
is the case to date,99 these overshooting tendencies of copyright protection will have
little impact.100 In this regard, we will have to wait and see whether effective imple-
mentation of the new copyright provisions can be achieved through civil, administra-
tive and judicial enforcements.
98. Chenguo Zhang, ‘Enhancing the Standards of Civil Damages Remedies to Fight Copyright
Piracy in International Trade? A Commentary on the Proposed TRIPS-Plus Damages Reforms in
the Third Amendment to the Copyright Law of the PRC through a Comparison with the US and
the EU’ (2017) 51(1) Journal of World Trade 131–58.
99. Chenguo Zhang and Jin Cao, ‘Patent Litigation in the Beijing Courts: Empirical Research
on Impact of Party Nationality and Procedural Reform’ (2017 forthcoming) European Journal of
Law and Economics.
100. RM Hilty, ‘The Role of Enforcement in Delineating the Scope of Intellectual Property
Rights’, in H-W Micklitz and A Wechsler (eds), The Transformation of Enforcement –
European Economic Law in a Global Perspective (Hart Publishing, Oxford 2016) 227–43.


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Queen Mary Journal of Intellectual Property, Vol. 7 No. 4, pp.

What are works? Copyright law subject

Chenguo Zhang (Coco)*

Keywords: Chinese Copyright Law, international copyright regime, copyright works,

3. An English-language version of this report is available at: <https://euipo.europa.eu/

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2 BACKGROUND OF THE THIRD AMENDMENT

2.1 China’s integration in the international copyright regime

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3 ‘WORKS’ AS COPYRIGHT LAW SUBJECT MATTER

3.1 Definition of a ‘work’

3.2 The idea/expression dichotomy

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copyright law.30 The Copyright Implementation Regulation enacted by the State

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4 SPECIFIC TYPES OF ‘WORKS’

4.1 Audiovisual works

4.1.1 Inclusion of flash videos

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4.1.2 The abolition of neighbouring rights in video recording

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4.2 Computer programs

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55. Art 10 of TRIPS and Art 4 of the WCT.

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4.3 Works of applied art

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5 NO COPYRIGHT PROTECTION FOR ILLEGAL WORKS?

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Article 13 of the Copyright Implementation Regulation partly addressed orphan

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