China’s copyright law, in its present form, has been in place since 2010 and numerous proposals for amendments have been floated since that time. The National People’s Congress recently released another draft amendment and solicited public comment. As far as I can tell, this would be the 5th draft since 2010.
In a recent post I looked at proposed copyright law changes that would impact the music business. In this post I’ll be discussing changes that would impact the film and TV industries. To understand these changes, we need to revisit the current law.
Extant cinematographic works
China’s current copyright law recognizes a class of works that covers both cinematographic works and works created by a process analogous to cinematography. I’ll refer to all of them here as cinematographic works. The law also makes an important distinction between cinematographic works and video recordings.
The implementing regulations of the present law defined cinematographic works as those consisting of a series of related images which, when shown in succession, impart an impression of motion with the aid of suitable devices, whether together with accompanying sounds or not. Cinematographic works are protected by copyright.
In the implementing regulations of the present copyright law, video recordings are defined as “recordations” of a series of related images, with or without accompanying sounds, that are not cinematographic works. Video recordings are not considered to have reached the high but fairly vague standard of originality applicable to copyright works in China. They are not given the same level of protection as cinematographic works and are protected only by certain neighboring rights.
Incidentally, one of the ongoing difficulties with Chinese copyright law is that although it enumerates the rights comprising copyright it does not clearly state which of these rights apply to which copyright works or other subject matter. An indeterminate class of rights — such as the rights of “consent” or “remuneration” — is often the only link. These rights apply at times to both copyright works and non-copyright works, making the distinction between copyright protection and neighboring rights protection hard to follow.
Proposed new audiovisual works
Under the 2020 draft amendment to the copyright law, audiovisual works would replace cinematographic works. Audiovisual works would be treated in substantially the same way as cinematographic works are presently treated. For instance, copyright in an audiovisual work would still be owned by the producer; with the writer, director, cinematographer and others having a right of authorship.
The treatment given to video recordings would not change substantially and it may be inferred that the definition would also remain unchanged.
It may also be inferred that an audiovisual work would be more than just a cinematographic work — otherwise why have the new term at all? The trouble is that the draft law does not define what an audiovisual work is.
Perhaps some further amendments will be proposed or maybe a definition will be provided in the implementing regulations if the latest draft is enacted. At present, the only guidance as to the definition is to be found in the 2014 draft amendment, which, of course, was never enacted. It provided that an audiovisual work is a work composed of a series of continuous pictures, with or without sound, that can be perceived with the help of technical equipment. Cinematographic works and TV series were expressly included but TV programs or parts of TV series were expressly excluded. The definition is obviously unsatisfactory as it relates to TV. The intention may have been to exclude certain recordings, such as those of sporting events, on the basis that they lack sufficient originality.
The distinction between audiovisual works and video recordings?
As the proposed definition of audiovisual work is unclear, the distinction between an audiovisual work and a video recording is unclear too.
In 2014 it seemed that the problem might have been solved by simply removing video recordings from the equation. An explanatory memorandum to the 2014 draft proposed that the category be abolished entirely. The reason for the enduring distinction remains unclear. Perhaps certain stakeholders or interest groups don’t want the added burden that would result if royalties become payable on a broader class of subject matter.
What is fairly clear is that originality will probably continue as the underlying criterion by which the distinction is made. Like the present category of cinematographic work, the new audiovisual work would be for things that have originality, but a mere video recording would continue for something without originality.
Though they aren’t dispositive, some of the Chinese court guidelines issued in connection with copyright infringement claims assist in understanding the thinking behind the distinction. Video recordings — the reasoning goes — capture events or productions with no storyline or only a simple storyline. They are not to be regarded as the personal creation of a director and there is no role, or only a limited role, for a cinematographer or an editor. It’s this same reasoning, by the way, that has prevented the protection of sports broadcasts as copyright subject matter in China. It’s a blunt instrument. I’ve called it the stranglehold of originality.
Let’s hope the necessary definitions and distinctions become clearer if the new version of the copyright law comes into effect.
At present, supplementary contractual provisions can assist when a party wants a recording of borderline originality treated as a copyright work in a China contract. The need for provisions of this kind will likely continue if the new law is enacted in its present form.