CHINA Law and Practice Contributed by: Chuanhong Long, Huiqing Wang, Yingying Shen and Fan Li, CCPIT Patent and Trademark Law Office
Civil Remedies Rights-holders can pursue civil actions seeking sev- eral forms of relief. Courts regularly grant injunctions to order the cessation of infringing activities immedi- ately. Damages are available in multiple forms: com- pensation based on the right-holder’s actual losses, the infringer’s illegal gains, or a reasonable royalty. If none of these amounts can be determined, statutory damages ranging from RMB500 to RMB5 million may be awarded. For intentional infringement with serious circumstances, punitive damages of up to five times the base amount may be awarded. Administrative and Criminal Measures Beyond civil litigation, copyright owners can seek administrative remedies. Authorities may impose fines, confiscate infringing copies, and order the ces- sation of activities that harm the public interest. In severe cases, copyright infringement may rise to the level of a criminal offence, leading to criminal liability, including imprisonment or fines. These parallel sys- tems provide a layered approach to enforcement. Provisional Measures To prevent imminent harm or preserve evidence, the law permits provisional measures. Right-holders may apply for preliminary injunctions, asset preservation, or evidence preservation before formally filing a law- suit. These tools are particularly useful in stopping ongoing infringement quickly, especially in the digital environment. Blocking orders are also available for online infringements, and courts may order network service providers to disconnect links or delete content as part of preliminary injunctions. 3.8 Infringement Tests and Substantiality The Foundational Test Courts generally apply the “access plus substantial similarity” test to determine infringement. The first prong, “access”, requires evidence that the alleged infringer had a reasonable opportunity to view or learn about the copyrighted work before creating the alleg- edly infringing work. The second prong, “substantial similarity”, focuses on whether the protected expres- sion in the original work has been copied to a signifi- cant extent.
to reprint or republish it, the author has the right to terminate the contract, which to some extent reflects the protection of the author’s rights and interests. 3.6 Limitations, Exceptions and Defences Statutory Exceptions (Fair Use) Chinese copyright law provides a list of exceptions often known as “fair use” (Article 24). These excep- tions permit the use of copyrighted works without the author’s permission under specific circumstances. Common examples include using works for personal study or research (private use), reasonable quotation for introducing or commenting on a work (quotation), reporting current events, and use by state organs for the purpose of executing official duties. However, parody is not explicitly listed in this Article. The Three-Step Test When assessing whether an exception applies, courts apply the “three-step test” derived from the Berne Convention. A use is only considered fair if it falls within one of the statutory exceptions, does not con- flict with the normal exploitation of the work, and does not unreasonably prejudice the legitimate interests of the copyright owner. This test ensures that exceptions do not undermine the commercial value of the original work. Judicial Assessment Judges evaluate several practical factors to determine if a use qualifies as an exception. These include the purpose of the use – whether it is commercial or non- commercial – the proportion of the work used relative to the whole, and the impact on the potential market for the original work. 3.7 Copyright Enforcement and Remedies Forms of Infringement Infringement occurs when a person exercises rights reserved to the copyright owner without authorisa- tion. This includes acts such as reproducing, distrib- uting, performing, or communicating works to the public via networks without permission. Plagiarism, the intentional circumvention of technological protec- tion measures, and the production or sale of works bearing a false attribution of authorship also constitute infringement.
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