A recent amendment to the Chinese Copyright Law proposing to amend Article 4 was met with criticism for portraying abusive use of power. Article 4 of China’s Copyright Law is aimed at maintaining balance between an author’s copyright and public interest by stopping owners from hindering “normal distribution of work”. This provision is a more stringent version of statutory licensing provisions in India. The proposed provision allows the administration impose punitive damages on copyright owners for “abusive use” of their right. This amendment would allow the administrating authority to confiscate the gains received from such a work and impose fines up to four times the value of gain as enshrined in Article 50 of the proposed draft.
Numerous subject-matter experts such as Li Yang, a law professor at the Guangzhou based Sun Yat-sen University, Yang Yong, a researcher at the Shanghai-based East China University of Political Science and Law and Li Weimin, a law professor at Wuhan University and a partner at the Beijing Weibo Law Firm have expressed their dissent to the proposed changes. The common argument is that this amendment would further weaken the level of IP protection in China, ultimately effecting Foreign Direct Investments in Intellectual Property development. The amendment was perceived to be very vague as the term “abusive use” was not defined anywhere, hence allowing room for broad and inconsistent interpretations of the term. It was further contended that these provisions allow unnecessary interference by the administrative authority in an otherwise judicial procedure. Many also speculate that this amendment, if adopted would cause other countries to challenge it internationally at the World Trade Organisation.
Cissy Zhou, China’s copyright law amendment criticised as an ‘abusive use of power’ that weakens IP protection, South China Morning Post, https://www.scmp.com/economy/china-economy/article/3092027/chinas-copyright-law-amendment-criticised-abusive-use-power
Aaron Wininger, China’s National People’s Congress Latest Work Plan Includes Patent and Copyright Law Amendments in 2020, National Law Review, https://www.natlawreview.com/article/china-s-national-people-s-congress-latest-work-plan-includes-patent-and-copyright