Promulgation Date: 2020-11-16 Title: 最高人民法院关于加强著作权和与著作权有关的权利保护的意见 Document Number: Fafa (2020) #38法发〔2020〕42号 Expiration date: Promulgating Entities:Supreme People's Court Source of text: http://ww.court.gov.cn/fabu-xiangqing-272221.html
The following Opinions on further strengthening protections for copyrights and copyright-related rights are hereby submitted on the basis of the "Copyright Law of the PRC" and other laws and regulations, together with actual trial conditions, so as to effectively strengthen copyright protection in the fields of literature, art and science; to give full play to the role of copyright trials in regulating, guiding, promoting and safeguarding cultural establishment; to stimulate the vitality of cultural innovation and creation of the whole nation; to promote the establishment of a socialist spiritual civilization, to richly develop cultural undertakings and industries, to enhance the nation's cultural soft power and international competitiveness, and to serve the high-quality development of economy and society.
1. Strengthen the protection of creators' rights and interests in accordance with law, make overall plans giving consideration to the interests of transmitters and the public, and uphold the core position of innovation in the overall situation of our country's modernization. Handle the relationship between encouraging the development of emerging industries and protecting the lawful rights and interests of rightsholders in accordance with law, coordinate the relationship between rewarding creativity and safeguarding the people's cultural interests, give play to the important function of assignees and licensees in transmitting works, protect copyrights and copyright-related rights in accordance with law, and promote the creation and transmission of intellectual achievements to develop the flourishing socialist cultural and scientific undertakings
2. Vigorously increase the quality and efficiency of hearing cases, promote the pilot work of diverting complicated cases from simplified cases, and strive to shorten the trial period of regular case types involving copyrights and copyright-related rights. Improve rules of evidence for intellectual property litigation, allowing parties to use blockchain and other such methods to preserve or fix evidence that is submitted, effectively resolving intellectual property rights holders' difficulties in producing evidence. Support parties' requests for conduct preservation, evidence preservation, and property preservation in accordance with the law, and comprehensively use diverse methods of civil liability so that the rightsholders get more complete relief in civil cases.
3. Natural persons, legal persons, and unincorporated organizations to whom works, performances, or sound recordings are attributed in the normal fashion shall be presumed to be the copyright holders or holders of copyright-related rights for the works, performances, or sound recordings except where there is evidence to the contrary sufficient to overturn it. In disputes over attribution, comprehensive judgments shall be made by consideration of factors such as the nature, type, and form of expression of the work, performance, or sound recordings, industry custom, and regular public perception. Where rightsholders complete preliminary production of evidence, the people's courts shall presume that the parties' claim to copyright or copyright-related rights has been established, except where there is evidence to the contrary sufficient to overturn the presumption.
4. Where the ownership of copyright or copyright-related rights are determined by the application of the rules on presumption and the defendant has not submitted evidence to the contrary, the plaintiff need not separately submit a rights transfer agreement or other written evidence. In the litigation proceedings, where defendants claim they are not liable for infringement, they shall provide evidence to prove that they obtained the permission of the rights holders, or that there are situations allowing for use without the permission of the right holders as provided the Copyright Law.
5. Place great emphasis on the new demands from the development of technologies such as the Internet, artificial intelligence, and big data, to accurately define the types of works in accordance with the Copyright Law, to understand the standards for identifying works, and appropriately hear new types of cases such as of live sports broadcasts, online game broadcasting, and data infringement in accordance with the law, to promote the standardized development of emerging business formats.
6. Where parties request the immediate destruction of infringing reproductions or materials and tools primarily used for the production or manufacture of infringing reproductions, then unless there are special circumstances, the people's court for civil litigation shall support it, and the courts in criminal proceedings shall order the destruction in accordance with their authority. Where there are special circumstances making destruction improper, the people's courts may order the infringer to dispose of the materials and tools above by appropriate methods through commercial channels, eliminating the risk of further infringement as much as possible. The costs of destruction or disposal are to be borne by the infringer, and where the infringer requests compensation, the people courts are not to support it.
In criminal proceedings, where the rights holders request that the reproductions, materials or tools not be immediately destroyed, in order to preserve evidence for possible subsequent civil or administrative litigation, the people's courts may support it. Where during subsequent civil or administrative cases the rights holders request payment for costs of preservation they paid, the people's courts may support it.
7. Where it is difficult to calculate the rightsholders actual losses, the infringers' unlawful gains, or the costs of usage of the rights, the amount of compensation should be reasonably determined in accordance with the Copyright Law, judicial interpretations, and other relevant provisions, taking into account the type of rights for which protection is requested, market values, the subjective fault of the infringer, the nature and scale of infringement, and the severity of damage consequences. Where the infringers' infringement was intentional with serious circumstances, and the rightsholder requests that punitive damages be applied, the people's courts review and decide in accordance with law. The people's courts should support rightsholders' reasonable expenses in protecting their rights that can be proven, including litigation and lawyers fees and so forth, and independently calculate the amount of compensation.
8. Where the infringer has previously been found to have infringed by an effective court judgment or administrative decision, or has previously reached a settlement with a rightsholder for the same type of infringing conduct, but still continues to carry out or indirectly carries out the conduct they are being sued over, they shall be found to have intent to infringe and the people's courts shall fully consider this in determining civil liability for the infringement.
9. Use forms such as written pledges of good faith ['creditworthiness] to clearly notify parties of the legal responsibility they may bear for bad faith litigation, to make parties properly exercise procedural rights, actively perform procedural obligations, actively and honestly present evidence in a reasonable time, and make truthful and complete statements in course of litigation.
10. Mechanisms for punishing dishonesty and pursuing accountability should be improved: the people's courts may employ compulsory measures such as admonitions, fines, and detention for dishonest conduct in proceedings such as submitting fabricated or altered evidence, concealing or destroying evidence, making false statements, giving false testimony, false evaluations, false attributions, and so forth. Where a crime is constituted, criminal responsibility is to be pursued in accordance with law.
Supreme People's Court
November 16, 2020