Before the Lunar New Year, Shanghai police cracked down on one of the largest subtitle groups in China, Renren Yingshi (YYeTs.com). The police arrested 14 people (not the actual translators but people who run the business). According to officials, Renren Yingshi is suspected of pirating more than 20,000 television shows and films and of earning more than 16 million yuan ($2.47 million) illicit income. State media outlets boast this kind of crackdown as China’s bid to tighten the protection on intellectual property rights.
Fansub groups have been a major phenomenon in China for years. They are groups of people who produce and distribute subtitles of foreign language televisions shows and films. Chinese viewers often appreciate fansub groups’ work as they provide Chinese subtitles of foreign contents fast and often for free. Some larger groups make money by inserting ads in the subtitled content, but viewers usually do not need to pay to watch. And the actual translators often work with little to no compensation.
Fansub groups’ work allows Chinese audiences to watch programs that would otherwise be subject to import quotas, permits, and censorship, or that would never be officially imported. Some even draw a parallel between Chinese fansub groups and Prometheus, who defies the gods by stealing fire and giving it to humanity. Regardless, many people also know that fansub groups are violating copyright laws. The MPAA had named YYeTs as a major source of internet piracy in 2014.
Government raids aside, would foreign copyright owners be able to recover any damages from the infringement?
At least in theory, the answer is yes. China’s copyright law protects the copyright in any work of a foreigner eligible to enjoy copyright under an agreement between the country to which the foreigner belongs or in which they reside and China, or under an international treaty to which both countries are a party. China, like the US, Canada and many other countries, is a party to the Berne Convention. In 1996, American film studios including 20th Century (then 20th Century-Fox) had sued Chinese bootleggers and won (despite it possibly being an object lesson a few years after China joined Berne Convention and before joining the WTO).
China’s newly amended Copyright Law (effective June 2021) may seem promising as well. Among a few other notable changes, the amendment allows punitive damages. In the event of willful and serious copyright infringement, the court may award up to five times the amount of actual damages of the rights owner, illicit gains of the infringer, or comparable license fees. The amendment also raised the ceiling of statutory damages from RMB 500,000 to RMB 5 million.
In addition, the amendment allows for shifting the burden of proof from the copyright owner to the infringer in calculating copyright infringement damages. When the copyright owner has met its burden of proof, and evidence needed to calculate damages (e.g. accounting records) is held by the infringer, Chinese courts can order the infringer to provide such evidence. If the infringer refuses to do so when ordered, the court has the power to decide the damages amount based on the copyright owner’s claims and evidence.
With the above being said, the reality is always more complex and requires careful assessment. Unlike in the early days, infringers are distributing their copies on the Internet instead of selling bootleg DVDs in a retail store. Will this make it harder to track them down? Are websites that allow fansub groups (or anyone else) to upload pirated videos also liable for infringement? In addition, will it make economic sense for a foreign company to sue in China for copyright infringement?
Finally, government raids and private litigation (if successful) may deter piracy to some extent. But if the supply of new audiovisual titles fails to meet Chinese consumer demand, the problem likely will continue to exist. Whatever the solution will be, I hope it will not limit existing access even further.