Is Your Copyright Protected in China? Reality and Practical Options

2004 © All Right Reserved

By Qiang Bjornbak

I.              Introduction

Having the world's largest population, China is also one of the world's largest markets and that market is getting bigger every day.  China's entry into the World Trade Organization (WTO) on December 11, 2001 and the desire of many entrepreneurs to take advantage of a ripe opportunity to do business there illustrates China's emergence as a player on the global market.  However, the entrepreneur's zeal is checked by the fear that intellectual property rights may not be effectively protected.  China is well known for its counterfeiting industry, and that industry has become more sophisticated in using new technology to hack computer systems or software programs while disguising these infringing activities.  For example, Chinese counterfeiters are notorious for developing software keys to bypass software key protection.  Moreover, foreigners are concerned about the sufficiency of IP rights under Chinese law the effectiveness of enforcement by Chinese authorities, and the availability of practical self-help options to protect themselves and their core business.

The reality is that that IP rights protection in China has improved significantly after its accession to the WTO.  China has recently developed a comprehensive body of laws governing intellectual property rights.  As a result of these changes, law enforcement agencies now actively crack down on intellectual property infringements through extensive raids, confiscation of counterfeit products, and the imposition of heavy penalties on infringers.

China significantly amended its patent, copyright, and trademark laws in order to implement the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS Agreement").  With respect to copyright laws in particular, there are several important amendments that address the need for effective enforcement to deter infringements of modern technology.

This Article will provide a discussion of the changes to China's copyright law in light of the WTO-inspired reforms.   Part II will address key elements of China's new Copyright Law (hereinafter "Copyright Law"), including the scope of protection, conferred rights, remedies, and enforcement.  Part III will explore practical options for foreign companies to protect their copyrights in China, including consumer education, anti-piracy technology, price adjustments, and forming liaisons and partnerships with Chinese companies and the Chinese Government.

II.            The Specific Protections of China's Copyright Law

A.   Scope of Protection

1.    Protected Persons

Article 2 of China's Copyright Law specifies that the law shall protect works of Chinese citizens, legal entities or other organizations, whether published or not, works of foreigners or of stateless persons who first published in the territory of China, works of foreigners or stateless persons published outside of China, and where there are agreements signed between China and the country to which the foreigners or stateless persons belong, or there are international treaties to which both countries are parties.  The amended Copyright Law further adds that works of foreigners or stateless persons published in a member country or published simultaneously in a member or a nonmember country of international treaties to which China is a party shall be protected as well.  This amendment is consistent with the requirement of the Berne Convention Article 3(b).  Since the U.S. is a member of the Berne Convention, U.S. authors who publish their works outside China are protected under China's Copyright Law.

2.    Scope of Works Covered

Article 3 of the Copyright Law stipulates the categories of protected works.  They include:  written works; oral works; musical, dramatic, quyi (Chinese opera), choreograhpic and acrobatic works; works of fine art and architecture; photographic works; cinematographic works, television, and video works; drawings of engineering designs, product designs; maps, sketches, and other graphic works and model works.  Article 14 of the Copyright Law also provides that original compilations of works or information are also protected under the Copyright Law.

However, the Copyright Law does not protect works that are prohibited from publication or distribution by the law (or the government).  Foreign citizens and entities are concerned about the scope of such a broad definition.  The general provision may even exclude copyrights for works that would otherwise be obtainable under TRIPS.  Such prohibited materials typically include, for example, pornography, but may also include works that would be characterized as protected speech in western democracies.

B.     Rights Conferred

Article 10 of the Copyright Law lists seventeen categories of personal and property rights included in a "copyright".  They are rights of publication, authorship, alteration, integrity, reproduction, distribution, rental, exhibition, performance, showing, broadcast, communication of information on networks, making cinematographic works, adaptations, translations, compilations, among others.  With the development of modern (especially digital) technology, the protection of the film, music, software and networking industries is of increasing importance to the interests of the U.S.  The amended Copyright Law addresses these issues in a significant way as it explicitly recognizes rental rights in films and software (except where the software is not the essential object in rental), the right of public performance of works in the public (including the presentation of films), and the right to distribute works through the Internet.  Under the prior copyright law, copyright licenses were limited to ten years.  To further the interests of copyright holders, the new law also removed this restriction.

However, there is still room for improvement as to the rights conferred under this Copyright Law.  Some critics have pointed out that the Copyright Law fails to extend its protection to producers of phonograms, i.e., the right to authorize or prohibit the direct or indirect reproduction of their phonograms and that is inconsistent with TRIPS Article 14.2. The new Copyright law has also been criticized for creating uncertainties regarding the protection of high technology-related copyrights.  For example some critics have argued that the Copyright Law is ambiguous regarding the definition of an "on-line work", and how such works can be protected. One unresolved issue is whether it is lawful to upload works without authorization and whether a download of an on-line work can be regarded as a ‘copy' as defined in Article 46 of the Copyright Law? (See August Zhang, People's Republic of China (PRC) Copyright Law under Revision, available at http://www.IPrights.com/our_publications/articles/article42.asp?articleID=42).

C.   Exceptions to the Rights Conferred

Article 22 of the new Copyright law carves out exceptions to rights enjoyed by the copyright holder.  They include fair use for private study, research, self-entertainment; appropriate quotation of published work; reuse or citation of a published work; translation or reproduction for teaching and scientific research; reproduction of a work for display or preservation in a museum or similar facilities; free live performance of a published work; copying, drawing, photographing or video-recording of an artistic work in public places; translation of published works of Chinese citizens from the Han language to minority languages; or transliteration of a published work into Braille.  The new law enlarges the fair use exceptions for a wider range of media in which works are fixed or reproduced, without requiring the payment of royalties. (Copyright Law, Art. 22-25).

To comply with TRIPS Article 13, which specifies limitations to exclusive rights, Article 22 (7) of China's Copyright Law adds the word "reasonable" to the use of protected works by government entities for the purpose of carrying out official duties to limit the scope of fair use.  Article 23 of the new law limits the fair use of a published work to compiling and publishing textbooks for implementing the nine-year compulsory education and the national educational program.  Such use does not require the authorization of the author, unless the author declares otherwise, in which case the author must be compensated.  Some have pointed out that lobbying efforts have attempted to exclude the fair use of copyrighted material in university textbooks (including digital or multimedia forms).  However, the Detail Rules, which came into force on September 15^th, 2002, do provide fair use protection for use in unversities or for other educational purposes.

Chinese Legislators regard as a matter of public interest that University students should be exposed to the most advanced ideas and technology at home and abroad, even though there are limited funds from the government.  Skeptics worry about the abuse of the educational exception and the injury to economic interests.  Nevertheless, such injury is partially alleviated by the fact that the Copyright Law does require users to remunerate and give proper credit to the author.

D.     Assignment of Rights

Article 25 of the new Copyright Law provides, for the first time, "a legal basis for a copyright owner to assign its right". (China Copyright Law, Art. 25).  The article specifies that the contract for such assignment must be in writing and include the following material terms:

1)    The title of the work assigned;

2)    The category and geographic area of the assigned right;

3)    The assignment price;

4)    The date and manner of payment of the assignment price;

5)    The liabilities for breach of the assignment contract; and

6)    Any other matters the contracting party consider necessary.

E.     Term of Protection

Under Article 20 of the Copyright Law, paternity, alteration and integrity of an author shall be unlimited in time.  According to Article 21 of the Copyright Law, the protection of property rights of a natural person's work is the person's lifetime, plus fifty years.  In case of a joint author, the term is fifty years after the death of the last co-author.  Entity work or film production shall be protected for fifty years after its first publication.  In short, Article 20 and 21 of the Copyright Law are consistent with Article 7 of Berne Convention.

F.    Burden of Proof

The prior copyright law does not specify who has the burden to prove legal source or authorization of the work.  Traditionally, this gap was filled by Article 64 of China's Civil Procedure Law which provides, "whoever asserts a claim shall bear the burden of proof".  Under the new Copyright Law, infringers expressly bear the burden to prove the legal authorization of the reproduction or the legal source of the published and the leased reproduction. This provision creates an advantage for the plaintiff who might otherwise find it difficult to prove infringement.  This amendment thus provides more protection for the copyright holder than does the Civil Procedure Law.

G.   Definition of Infringement

Infringement under Article 46 and Article 47 of the new Copyright Law includes:  1) unauthorized publication of a work, 2) assertion of authorship without contribution of a creation, 3) distortion or mutilation of a work by another, 4) plagiarizing of a work by another, 5) unauthorized exploitation of a work of another, 6) unauthorized rental of a work, or unauthorized recording of a work, 7) unauthorized use of layout designs of books and periodicals, 8) authorized public dissemination of live performances or recording of such performance, 9) infringement of copyright on the Internet, 10) intentional circumvention or sabotage of technical measures taken by authors or holders of neighboring rights for protecting their right, and 11) intentional removal or alteration of the electronic device contained in the work for such protection.  The categories of infringement from (6) to (11) were added in the new law.  These changes have been made in response to the sophisticated skills of infringers, and the need for additional or advanced copyright protection for high technology products and services.

H.   Administrative Enforcement Power

Article 47 of the new Copyright Law authorized the National Copyright Administration (NCA) to impose a wide range of penalties.  The NCA has powers to issue administrative injunctions, confiscate illegal income from infringement, confiscate and destroy infringing copies, and impose fines.  Where the infringement is serious, the NCA may also confiscate any materials, tools, and equipment mainly used for making the infringing reproductions.  The pitfall of this provision is that the NCA can only exercise these powers when the infringement harms social and public interests.  What constitutes "harm to social and public interests" is subject to the broad interpretation of the agency.

I.   Preliminary Injunction

Article 49 of the amended Copyright Law provides, for the first time, a preliminary injunction procedure against copyright infringement.  According to this provision, if there is an infringement or an immediate threat of infringement, and if without prompt action, the copyright owner will suffer irreparable harm, the owner may seek an order of injunction from the court and take measures to preserve the property before any legal proceedings are instituted.  The amendment complies with the requirement of TRIPS Article 44.1 which provides:

The judicial authorities shall have the authority to order a party to desist from an infringement inter alia to prevent the entry into the channels of commerce in their jurisdiction of imported goods ....

The amendment not only fulfills TRIPS' requirements of prompt and effective provisional measures by judicial authorities, but also fills a gap in China's Civil Procedure Law, which does not provide for preliminary injunctive relief.  The remedy for immediate and irreparable harm under China's Civil Procedure Law is property preservation under certain circumstances.  China's Civil Procedure Law provides that if circumstances exist that make it impossible or difficult to execute a judgement because of the acts of one of the parties or for other reasons, the People's Court may, at the request of one of the parties or on its own initiative, order provisional measures to secure proof and preserve property.

J.  Statutory Damages

Under article 48 of the Copyright Law, copyright infringement damages shall be determined according to the actual loss to the copyright holder or the profit made by the infringing party as a result of infringement.  When the loss or profit is difficult to determine, the People's Court has the discretion to impose statutory damages not exceeding 500,000 RMB depending on the severity of the infringement. It is commonly perceived that the statutory damages provision has made a positive impact on copyright enforcement actions.  An informal survey of foreign companies concluded, in part, that many such companies have looked to the courts for protection because compensation is available. (See Ann M. Weeks, IPR Protection and Enforcement: A Guide, The China Business Review 28, 29 (Nov.-Dec. 2000).

K.           Criminal Liability

Article 47 of the amended Copyright Law provides that "if the infringing act constitutes a crime, the infringer shall be prosecuted for criminal liability." Under China's Penal Code, the following acts constitute a crime if they are engaged in for profit:

1)    Copying and publishing a written literary work, musical work, film, television, video work, computer software, or other work without the consent of the copyright holder.

2)    Publishing a book for which another party has exclusive rights of publication;

3)    Copying and distributing an audio-visual recording without the consent of the audiovisual recorder who produced the recording;

4)    Producing and selling fake works of art which are copies of other people's famous works; and

5)    Selling infringing duplicates of protected works.

China's Penal Code imposes prison terms of up to three years for counterfeiters if the circumstances are deemed "serious" or the sales "relatively large".  Counterfeiters will be sentenced up to seven years in prison if the "circumstances" are "extremely serious" or the sales are "huge".  The pitfall of these provisions is their ambiguity.  Up until now, there has been no clear definition of what are "serious circumstances", "extremely serious circumstances", "relatively large sales" or "huge sales".

Suggestions have been made to set up new criminal liability standards that will clearly define how the value of products seized in raids should be calculated, and set minimum valuation levels that are not unreasonably high; provide clear and practical standards for criminal prosecution of repeat offenders, particularly those who have already received administrative sanctions for counterfeiting or related offences; and require criminal prosecution of counterfeit manufactures or vendors that operate without a valid business license.

L.            Judicial Review

Article 55 of the new Copyright Law provides that "[a]ny Party who is not satisfied with an administrative penalty may institute proceedings in the People's Court within three months from the date of receipt of the written decision on the penalty."  The Judicial review provisions do provide improved protection to copyright holders.  Special IP rights courts were introduced in 1993 at Intermediate People's Court and Higher People's Court in some major coastal cities, such as Shanghai, Tianjin, Guangzhou, and have now grown to forty.  In general, the IP rights courts have better-trained and more experienced judges than their civil counterparts, and have broader rights to confer with technical experts to assist in making decisions.  That having been said, judicial review does have its limitations, as courts may only review the applicability of law to circumstances and have no discretion to examine the validity of any specific regulation.  As a result, courts often defer to the agency's interpretation of the law in order to render interpretation and judgment.

In short, foreign companies operating in China need to decide upon a strategy to secure copyright protection.  In the majority of circumstances, foreign companies should choose the administrative route over the judicial route, as judicial review of an administrative agency's decision is unlikely to change the result most of the time.

III. Suggestions for Protecting Copyrights in China

The new Copyright Law is a remarkable achievement in IP rights protection.  However, China's substantial compliance with TRIPS is a long-term effort requiring an extensive transformation process (See generally Thomas T. Moga, The TRIPS Agreement and China, The China Business Review 12, 14 (Nov.-Dec. 2002)).  U.S. copyright holders must face the reality of lack of effective enforcement and sophisticated copyright infringement in the immediate future, and must undertake self-help measures to prevent infringement.  The following provides a list of recommendations that foreign copyright holders should undertake to better protect their intellectual property rights in the current climate in China.

A.   Educating the Public

Lack of legal awareness of IP rights protection among professional and non-professional Chinese accounts for a good deal of the unsatisfactory IP rights protection environment in China.  China did not enact a Copyright Law until 1990.  It takes time to instill this legal concept into the minds of the average Chinese.  As a result, to effectively protect IP rights in China, foreign copyright holders should educate China's general masses about "the negative aspects of piracy", especially in rural areas

[Foreign] companies should consider education campaigns to promote the idea among Chinese that IP rights has a commercial value worth protecting and safeguarding.  Foreign companies can endow chairs for IP rights study at Chinese universities, or co-sponsor educational seminars with other companies or PRC authorities for the general public, Chinese companies, and venture partners. (See supra Weeks, at 32)

Foreign companies can reach the rank-and-file Chinese through mass media, such as television, and the Internet.  These companies can sponsor programs, for example, portraying a live trial of a copyright violation or special reports about police raids, and support the distribution of information at schools and shopping malls.    It is especially important to train attorneys, judges, officials, and administrators.  People's University and Beijing University have established IP rights research institutions, and have committed themselves to training judges from IP rights chambers across China.  If foreign companies can sponsor the IP rights research centers in these and other universities, they will receive more quantitative and qualitative improvements in IP rights protection in China.  Moreover, American companies should sponsor legal exchanges between American judges and Chinese judges in order for the Chinese legal community to become more aware of the importance of intellectual property rights protections.

B.   Anti-Piracy Technology

Types of piracy in the digital age include, but are not limited to, optical disc piracy, Internet piracy through illegal file transfer, videocassette piracy, software piracy through generating or bypassing software keys.  Given that the legal regime for protecting IP rights will take many years to evolve, the best protection for foreign companies in the current climate in China is prevention, which is best achieved through the use of technological solutions to combat piracy.  Software companies should develop better encryption technologies, relying on advances in digital rights management (DRM) technologies that are difficult to bypass.

C.   Lowering the Price

There is a Chinese saying "only when people can afford to survive, will they comply with the law." China is a developing country.  Most Chinese people are struggling to overcome poverty.  The per capita income is much lower than that of advanced countries. U.S. copyright holders must face this reality and be practical in devising pricing strategies.  Large profit margins, especially for established, well-known products and brands, lure counterfeiters. The more narrow the price gap between the counterfeits and legitimate products, the less incentive there is for infringement.  It has even been suggested that legitimate copyright holders sell discounted legitimate products to government agencies and state-owned enterprises.  However, before utilizing this strategy, companies still need to consider what is the bottom line for retail prices to cover costs and how large their potential markets need to be to generate sufficient income.

D.   Forming Alliances with Chinese Counterparts

An additional option that foreign companies can take to reduce the threat of piracy is to form alliances and partnerships with Chinese companies.  This would be particularly effective for companies that have similar products and therefore similar risk exposure to piracy. Such alliances can work in tandem to combine resources and increase the effectiveness of administrative lobbying and public relations efforts. For example, some well known Chinese software companies (e.g., Suntedy) and motion picture studios (e.g., Shanghai Motion Picture Studio, and Pearl River Motion Picture Studio) face significant problems of IP infringement similar to those of foreign companies. If foreign companies can form a joint anti-counterfeiting organization with Chinese companies such as Shanghai Motion Picture Studio, they can get more support from the Chinese government.  As one writer observed, "Cooperating with domestic and foreign companies facing similar problems is a good way to prevent PRC agencies from playing companies off against one another." (See Weeks, supra, at 31).

E.   Enlisting the Help of Local Chinese Governments

Although it is important for foreign companies to build friendly relationships with officials in IP-specific bodies and ministries, commissions, and bureaus under the State Council, it is more important to build a bridge to local officials who allocate resources for and enforce IP rights protection. China has IP rights sub-offices and enforcement agencies at provincial and local levels.  As a result of the increasing decentralization of power in China, local government officials are given more power to govern and regulate local affairs.  As a result, these officials have the ability to inject their opinions and judgments into court proceedings that affect local business interests.  In other words, the local officials have the authority to interpret the law and the scope of IP rights protections for their jurisdictions. To protect the copyright of audio and video products, foreign companies should encourage local governments to take measures throughout all steps of publishing, reproduction, and distribution.  Among all local government agencies, the Copyright Administration Department is one of the most important local government agencies, because it provides the forum for the mediation of disputes of copyright infringement.  Moreover, it can deal not only with infringements at the request of copyright owners, but also actively investigate on a virtue officii basis.

To secure support from local officials, foreign companies first need to be creative to help the local economy, so as to remove the fear of local officials that enforcement of IP rights protection will weaken their economy.  Foreign companies cannot expect to profit from a 1.3 billion-person market without making some investment in China's economic infrastructure.  Moreover, foreign companies should provide various incentives for enforcement officials.  For example, foreign companies can hold ceremonies to honor authorities for successful raids, publicize such raids, administrative or court cases that levy penalties on IP rights infringers, or place an appreciative letter for enforcement efforts made by local authorities in popular publications.  In addition, companies may consider providing resources to China's understaffed, under-funded enforcement agencies to assist, for example, with offsetting the storage costs for confiscated goods.  This would not only obtain the cooperation of local law enforcement agencies, but also help secure the evidence of infringement.  Nonetheless, due caution should be exercised not to commit bribery under the U.S.'s Foreign Corrupt Practices Act or other applicable statutes and laws that govern and may restrict the actions of foreign companies in China.

F.    Seeking Help From Consumers

Enlisting support from customers can also assist authorities in tracking down larger scale infringers.  One method to enlist customer support is to develop incentive programs such as lotteries, contests and awards for entrants who have authorized receipts or proof of purchase.  A second method is to set up piracy hotlines to gather information from the public. Some foreign companies have already set up hotlines to gather tips concerning counterfeit products, and have promised to award individuals whose tips result in the seizure of counterfeit products and the closure of counterfeiting facilities. The tips can come from both consumers who intentionally buy illegal products and those who want to buy legitimate products.

Some consumers intentionally buy counterfeit products because they tend to be cheaper.  However, they may be greatly disappointed when they realize that counterfeit products are frequently inferior in quality or do not operate as expected.  If unsatisfied consumers cannot get a refund from vendors of these counterfeit products, they may try to find alternatives to get even, such as reporting the sale of illegal products to the authorities.  Foreign companies can enlist these disgruntled consumers to track down infringers.  Consumers can inform these foreign companies where they buy the counterfeiting products.  From these illegal sellers, foreign companies can collect information as to the supply chain for counterfeit products such as wholesalers, warehouses and manufaturers.

There are also consumers who insist upon buying legitimate products because they value product quality.  Due to the sophisticated skill of some infringers, consumers sometimes cannot distinguish legitimate products from counterfeit ones.  As a result, they complain to companies who manufacture legitimate products.  Foreign companies should make good use of such information to help identify counterfeiting production and distribution facilities.

G.   Offering Alternatives to Infringers

In some remote areas of China, such as the northeast region, the profit from infringing companies accounts for much of a community's livelihood.  Local protectionism hinders the effectiveness of enforcing Copyright Law.  As one writer observed, "Local authorities are slow to promote compliance, fearful that efforts to support enforcement will increase unemployment and weaken the local economy" (See Thomas T. Moga, The TRIPS Agreement and China, The China Business Review 12, 17 (Nov.-Dec. 2002)).  In some cases, companies find that the simplest enforcement method is to offer infringing enterprises an alternative way of doing business.  It is still risky to license or transfer technology to these infringing companies, since they may revert to illegal activities.  However, foreign companies can offer these infringing companies the opportunity to engage in promotional work for their legitimate products or other gainful employment.

H.   Gathering the Evidence of Infringement

The reality of piracy in China underscores the need for companies to hire staff dedicated to monitoring production facilities and distribution networks to make sure that facilities are not overproducing and that suppliers are not providing authentic components to counterfeiting operations.  Such monitoring tasks can be undertaken by trained staff, i.e. the company's local sales representative, customers, and independent investigative firms that have a list of known infringers.  Foreign companies can also exchange information with their domestic counterparts to track down infringers.  Companies should also set up a database that contains profiles of suspected infringers. Based on the information provided by the company's intelligence network, it may know where to find infringing products and how to set up a plan to collect evidence Companies can send staff to buy counterfeit products and get receipts for these purchasers.  If illegal sellers refuse to provide a receipt, companies can hire a notary to go with their staffs.  If local enforcement officials decide to raid certain sites, it is better for a company to send its representative to accompany local officials there, because the company representatives are most knowledgeable about authentic versus infringing products and can help properly identify key evidence.

I.      Seeking Remedies from Administrative Agencies or Courts

Administrative agencies that have enforcement authority over copyright matters include the State Administration for Industry and Commerce (SAIC), the National Copyright Administration (NCA), and the Public Security Bureau (PSB).  As discussed above, administrative agencies have a wide range of powers to deal with copyright violations quickly, inexpensively, and efficiently.  If the company's objective is to stop the infringement quickly, this is an ideal option.  However, this option has its disadvantages as well.  First, administrative remedies have certain statutory limitations.  For example, administrative agencies cannot award damages to injured companies, and may only take action when "the infringement harms social and public interests" or "when the infringement is serious".  Although both phrases are vaguely defined, their intent is to limit, rather than promote, the exercise of administrative power.  Second, some administrative enforcement officials are not as neutral as court judges.  These officials might be motivated by local protectionism and some could even collude with infringers to hide and/or destroy evidence.  Third, because fines are paid to administrative bodies, there is little incentive for these authorities to transfer cases to criminal courts to enable copyright holders to receive damage awards.

Chinese courts consist of, from the bottom to the top, the District People's Court, the Intermediate People's Court, the Provincial Higher People' Court, the Supreme People's Court.  The Intermediate Court is the court of first instance for foreign intellectual property cases, with its corresponding higher court functioning as the court of appeal.  Claims may be brought to one of four tribunals of People's Courts, which typically contain civil, economic, criminal and administrative divisions.  Copyright infringement cases are usually heard before civil courts.  Criminal courts only deal with cases that the infringement constitutes a crime under China's Copyright Law and China's Penal Code.

Due to the complex nature of IP rights violations and the interests of IP rights holders, the Chinese government has designated some intermediate and higher courts in major cities to set up IP Tribunals.  IP Tribunals exist in the Intermediate People's Court and High People's Court in Beijing, Shanghai, Hainan, Jiangsu, Guangdong, and Fujian.  In addition, IP Tribunals also exist in the People's Intermediate Court in Shen Zhen.  Judges from these trial divisions are better-trained in IP rights and are less susceptible to local protectionism, because they deal with cases from larger regions and are less provincial as a consequence.  Moreover, Chinese courts usually invite experts to assist the bench in clarifying facts and to ensure proper handling of the cases if specialized and technical IP issues are involved.

However, when compared to the administrative route, the judicial route is often more expensive and time-consuming.  The good news for foreign companies is the preliminary injunction provision in the new Copyright Law.  The infringing activity can be halted even before a formal legal proceeding starts, so long as the foreign company petitioner can prove immediate and irreparable injury from infringing actions.

IV.          Conclusion

The new Copyright Law underscores the Chinese central government's determination to improve copyright protection in China.  The new Copyright Law, in general, is consistent with obligations under both the Berne Convention and TRIPS.  This great achievement in copyright protection in China should be recognized as such.  The Chinese government hopes that its commitment to protect copyright will "trickle down" to the provinces, cities, towns, and villages through education and training.  That is to say everyone should comply with the Copyright Law and the Law should be enforced effectively.  The sanction should be severe enough to deter potential infringers, and the law should be updated to keep pace with the technological development and to comply with the evolving norms of the TRIPS and the Berne Convention.

In spite of these positive changes, foreign copyright holders should be aware that China's IP rights regime is evolving and will remain imperfect for the foreseeable future.  Therefore, in addition to seeking relief from administrative agencies or the courts, foreign copyright holders should engage in various self-help measures, which should include creative efforts to enlist the support of Chinese institutions and the general public, some of which have been discussed in this Article.

In short, the change in China's Copyright Law provides copyright holders with additional remedies and leverage to improve the climate of IP rights.  Though the system is imperfect, the change in attitude within the Chinese government alone should augurs for a brighter future and a more predicatable business environment for those companies who desire to tap into the world's largest consumer market.