Enhancing the Standards of Civil Damages Remedies to Fight Copyright Piracy in International Trade? A Commentary on the Proposed TRIPS-Plus Damages Reforms in the Third Amendment to the Copyright Law

Abstract

The proposed third amendment to PRC copyright law endeavours to enhance the standards of damages to fight piracy more effectively via a TRIPS-Plus approach. This includes, inter alia, reframing statutory damages, introducing punitive damages, and new evidence rules granting the right of information to right holders. Nonetheless, the inconsistency of the extra-compensatory rationales of civil damage with the principle of restoration enshrined in the traditional Chinese copyright regime risks causing difficulties for the Chinese courts in implementing the new rules. The new provision on the right of information on pirated goods is a significant weapon to combat piracy that, conversely, risks causing tension between copyright enforcement and data protection, in addition to jeopardizing the defendants’ and third persons’ rights to privacy. This article argues that the proposed higher protection standards of copyright enforcement in China should not remain solely written law. The Chinese courts need to develop applicable conventions for calculating damages, based essentially on investigation using objective criteria of how much compensation ought to be payable, which is also the basis of calculating reasonable statutory damages. In this regard, this article advocates considering the merits and demerits of compatible enforcement provisions in the US and EU, and, meanwhile, developing a unified minimum standard for all courts in China via accepted and consistent judicial practice and through persistent dialogue and interaction with the academic community.