Section IV: Unreasonable and costly copyright
enforcement
The Copyright Law of PRC hopefully governs classical forms of
infringement. For instance, article 47 (8) of the Copyright Law of the PRC
provides for civil liabilities in regard to cinematographic work's infringement
like the rental of such a work without the permission of right holders.
However, obtaining copyright enforcement can be unreasonable and
costly.99
93 Kariyawasam Rohan, see above note 46, p.98.
94 Brent Yonehara, see above note 32, p.407.
95 Ibid.
96 IIPA, 2013 Special 301, see above note 27, p.39.
97 Ibid.
98 IIPA, 2010, ITC Investigation No. 332-514,
China: Intellectual Property Infringement, Indigenous Innovation Policies, and
Frameworks for Measuring the Effects on the U.S. Economy, p.19.
99 Kariyawasam Rohan, see above note 46, p.98.
16
Legal action in the area of copyright infringement can involve
«good money» for the State because of its business
dimension.100 Government agents will not hesitate to charge right
holders a lot in order to enforce their rights because right owners suffer a
lot of copyrights infringements and will be willing to pay whatever they need
to stop it. That is why the burden of proof is so high, especially for foreign
right holders. They need to present a lot of certificates in order to enforce
their IPRs in China such as copyright registration certificate and certificate
of legal representative.101 This is besides the fact that these
certificates need to be translated in Chinese by a qualified
organization.102 Filling an action for copyright infringement looks
therefore really long and costly, a legal inconsistency fostering infringers
upon copyright owners.
Section V: The lack of a proper deterrent mechanism
Thresholds for criminal liability are also unreasonably high
under China's Law. In order to be liable, the defendant should process to at
least 500 copies of the work.103 This restricts a lot the field of
copyright infringement prosecution. Also, China's Criminal Law provides for
criminal liability for those who committed copyright infringement by meeting
some requirements concerning threshold such as gaining «a fairly large
amount of illicit income».104 It means that anyone who sells
less than 500 copies or who doesn't gain a lot of money by infringing
copyrights will not be hold liable. Article 217 of the Criminal Law of the PRC
envisages as an alternative to this condition «other serious
circumstances» but this is once again too vague to help copyright
enforcement and can give rise to contradictory interpretations by judges.
Nevertheless, even where the copyright holder succeeded in his
action against the pirate, criminal penalties are often insufficient to
discourage future infringers. Fines can be relatively low compared to the money
won by selling unauthorized copies of DVDs or by illegally making movies
available on websites accessible to the public. For instance, a copyright
infringer was sentenced to a fine of 30,000-Yuan while the volume of the
illegal sale he participated to was 2.4 million Yuan.105
100 Kariyawasam Rohan, see above note 46, p.98.
101 IIPA, 2013 Special 301, see above note 27, p.41.
102 Ibid.
103 IIPA, 2013 Special report, see above note 27, p.40.
104 Criminal Law of the PRC, Article 217, Article 218.
105 The Second Branch of Shanghai People's Procuratorate v Gu
Randi and other persons, 19/04/2005.
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