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Responding to Copyright Infringement in China: A Strategic Guide for Foreign Rights Holders

2025.05.15

In the People’s Republic of China (“China”), foreign businesses frequently encounter copyright infringement ranging from counterfeit goods to unauthorized online distribution.  While the legal process may seem complex to rights holders who are unfamiliar with China’s legal environment, there are three main enforcement mechanisms—civil, administrative, and criminal.  When deployed strategically, these mechanisms not only safeguard intellectual property rights but also send a clear message to infringers that violations will be met with decisive and comprehensive legal consequences. 
 
Chinese law deals with various types of copyright infringement, including unauthorized reproduction or distribution of protected works, plagiarism or publication without consent, unlicensed public performances, creation of derivative works, and rental of protected materials without permission.  Additionally, removing or bypassing copyright protection measures (such as Digital Rights Management, or DRM measures) also constitutes infringement.  Clearly identifying the specific category of infringement is critical when deciding on the best enforcement approach. 
 
 
<div style="background: rgb(238, 238, 238); border: 1px solid rgb(204, 204, 204); padding: 24px;">Banhao (Publication Number) in China  
 
A banhao is an official publication number issued by Chinese authorities, functioning as a license required to legally publish or distribute various forms of content works.  It is a regulatory requirement for content dissemination for works such as books, periodicals, and video games within official Chinese market channels.  In practice, without a banhao, a work cannot be lawfully sold or circulated through official commercial channels in the country.  
 
However, even if a work does not possess a banhao, its copyright owner is entitled to copyright protection and remains entitled to pursue infringement actions under Chinese law.  In China, copyright protection is automatic, arising at the moment a work is created, independent of any administrative licensing or approvals.  The absence of banhao does not invalidate the author’s exclusive rights, as these rights inherently exist from the time of creation.  In enforcement proceedings, Chinese courts and intellectual property authorities do not require a banhao to establish or recognize the owner’s rights in an infringement case.  Instead, they focus on whether the claimant can prove authorship or ownership of the content, not on whether the work was officially licensed for distribution.  Thus, copyright holders maintain full rights to initiate legal action against unauthorized copying, distribution, or other infringing uses of their works, irrelevant to the fact as to whether a banhao has been obtained. </div>
 
 
1. Civil Enforcement: Using Chinese Courts to Protect Your Copyright 
 
Civil litigation is a primary avenue for foreign copyright holders to address infringement in China.  It is a judicial process where the rights holder sues the alleged infringer in a People’s Court, seeking remedies like damages and injunctions.  Civil action is crucial for obtaining financial compensation and a legally binding court orders to halt ongoing infringement activities.  The following outlines the key aspects of pursuing a civil copyright case: 
 
 
A. Proving Infringement 
 
In a civil litigation, the burden of proof is on the copyright holder to prove two main points: (1) ownership of a valid copyright (or an exclusive license) in the infringed work, and (2) evidence that the defendant engaged in infringing acts.  Foreign rights holders should be prepared to show evidence of their rights, including copyright registration certificates or proof of first publication under applicable international treaties.  They must also thoroughly document the infringement through evidence such as samples of pirated goods, screenshots of unauthorized online content, or expert reports verifying unauthorized copying.  Chinese courts will assess whether the use is within any exceptions; however, generally, once unauthorized use is demonstrated and is without a valid statutory exception, infringement will be established.  It is therefore advisable to compile robust and legally admissible evidence prior to filing the case—often through an investigative firm or through notarization processes to preserve digital evidence, as court decisions heavily depend on actual evidence. 
 
 
B. Available Civil Remedy 
 
If infringement is proven, Chinese courts can grant a range of remedies to the plaintiff.  Key civil remedies include: 
 
1) Injunctions: A court order requiring the infringer to cease the infringing activity immediately.  This could mean stopping sales of counterfeit products, removing infringing content from websites, or halting an unauthorized performance.  Injunctions granted by Chinese courts can be permanent after a full trial and, in urgent circumstances, preliminary injunctions may be obtained early in the proceedings to prevent ongoing harm. 
 
2) Monetary Damages: Compensation paid by the infringer to the copyright owner for the financial losses caused by the infringement.  Chinese law allows damages to be calculated based on the rights holder’s actual losses or the infringer’s illegal profits from the infringement.  For example, if a foreign film was pirated and distributed, damages could be measured by either loss of revenues that would have been made from licensing or the profits derived from illegal sales.  If it is difficult to determine the exact amount, the court can award statutory damages subject to limitations under the current Chinese Copyright Law. 
 
3) Destruction of Infringing Goods or Materials: The court may order the destruction of all infringing items, such as counterfeit DVDs, unauthorized books, or production materials, including printing plates or digital master files, to prevent further infringement. 
 
4) Public Apology or Correction: In cases where the infringement also harmed the author’s reputation or personal rights (e.g. plagiarism or mutilation of a work), courts might order the infringer to publicly issue an apology or corrective statement acknowledging the wrongdoing.  This remedy aims to restore the moral rights of the author and mitigate reputational harm. 
 
5) Costs and Expenses: Chinese courts can require the infringer to reimburse the rights holder for reasonable costs spent in investigating and halting the infringement.  This can include legal fees, the cost of notarizing evidence, and other expenses incurred in bringing the lawsuit. 
 
 
C. Calculating Damages 
 
A notable feature of China’s copyright enforcement framework is its flexible approach to calculating damages.  The law establishes a structured hierarchy for calculating damages: 
 
1) Actual Losses of the Rights Holder: If the plaintiff can substantiate the precise economic loss caused by the infringement (e.g. lost sales or licensing fees), that amount can be claimed as damages. 
 
2) Illegal Gains of the Infringer: Alternatively, the damages may be determined based on the gains from the unauthorized use, especially if these gains are more clearly established or exceed the amount of loss demonstrated by the rights holder.  Chinese courts commonly consider the scale of infringing sales when determining such illegal gains. 
 
3) Statutory Damages: When actual losses or illegal profits are difficult to quantify, the court can award a reasonable, statutory damages without a proof of financial harm.  Under Chinese Copyright Law, statutory damages can reach up to RMB 5 million (as a result of significant increase under the 2020 amendments), reflecting China’s strengthened commitment to Intellectual Property (IP) protection.  Courts consider various factors such as the nature of infringement, the severity and the duration of the infringement, as well as the market value of the infringed work. 
 
4) Punitive Damages: In cases involving willful and particularly severe infringement, Chinese courts now permit punitive damages.  Such damages can range from one to five times the determined amount of actual losses or illegal profits.  This recent development aims to impose stronger financial penalties, creating a significant deterrent for deliberate infringers. 
 
5) Reasonable Expenses: Additionally, the infringer can be ordered to reimburse the rights holder’s reasonable enforcement costs, including attorney fees, notarization fees, and expenses incurred during evidence collection processes.  This ensures that victims are fully compensated for the resources invested in protecting their rights. 
 
By combining these elements, Chinese courts have considerable discretion to ensure that plaintiffs receive adequate compensation.  For foreign companies, providing comprehensive evidence of the infringement’s scale not only helps achieve fair compensation but can also secure an award substantial enough to deter future infringements effectively. 
 
 
D. Procedural Considerations in Civil Cases 
 
Pursuing a civil lawsuit in China involves several strategic and practical considerations, as follows: 
 
1) Jurisdiction and Venue: Copyright cases in China are often handled by specialized IP tribunals or courts.  Major cities like Beijing, Shanghai, and Guangzhou have dedicated IP courts with experienced judges.  Elsewhere, intermediate People’s Courts are typically designated to hear IP disputes.  A foreign rights holder can usually file lawsuits either where the infringement occurred or where the defendant is domiciled.  If infringing products are sold nationwide (including online), jurisdiction can sometimes be established in locations where the products were sold or where the plaintiff suffered harm.  Claimant should consult with local counsel in selecting the appropriate venue based on factors such as the speed of the proceedings and historical trends in awarding damages. 
 
2) Preliminary Injunctions: Chinese law permits rights holders to seek a preliminary injunction to stop the alleged infringement until the final judgment.  To obtain an injunction, the plaintiff must act swiftly—often soon after, or even before filing the case—and demonstrate that there is an urgent need of preventing ongoing harm and a strong likelihood of success on the merits.  For example, if a trade exhibition is about to showcase pirated copies of a protected work, the rights holder could request a court to immediately seize the goods and prohibit their display until a final decision is made.  Preliminary injunctions are powerful but require convincing evidence and typically involve posting a bond or a security deposit with the court. 
 
3) Evidence Preservation: In situations where key evidence is in the risk of being destroyed or hidden by the infringer, Chinese courts can grant an evidence preservation order.  This allows rights holders to secure evidence—such as conducting a court-supervised raid to seize counterfeit goods or capture server data—before it disappears.  Especially for foreign rights holders who have identified warehouses of pirated goods or online servers hosting infringing content, this mechanism can lock down proof of infringement early in the process. 
 
4) Duration and Enforcement of Judgments: Civil litigation in China can take several months to over a year, depending on the complexity and the likelihood of appeals.  Upon receiving a favorable judgment, effective enforcement becomes critical.  China provides comprehensive mechanisms for enforcement through its court system.  If a defendant does not voluntarily comply, courts can seize assets, freeze bank accounts, or take alternative measures to satisfy the judgment.  Foreign companies should promptly register the judgment with enforcement authorities for timely compliance.  In many cases, the mere prospect of enforcement—such as being blacklisted within China’s credit rating system for non-compliance—motivates defendants of prompt payment or settlement. 
 
Civil enforcement remains the most comprehensive way to stop infringement and secure compensation, particularly when significant damages have occurred, or a long-term injunction is needed.  However, civil litigation requires considerable time and resources.  Therefore, rights holders may find it advantageous to pursue administrative remedies concurrently or as an alternative strategy, leveraging multiple enforcement options available under Chinese law. 
 
 
2. Administrative Enforcement: Fast-Track Remedies Through Authorities 
 
Administrative enforcement in China provides a swift and practical alternatives to judicial action, providing rights holders with an efficient way to halt ongoing infringement.  Rights holders can file complaints with local copyright enforcement authorities (often part of the cultural market regulators or local Administrations for Market Regulation).  These authorities have the power to investigate allegations, conduct raids, seize infringing goods or equipment, and impose administrative penalties.  If the authorities confirm that infringement has occurred, it can order the infringer to cease the unlawful activities, confiscate pirated goods, block the means of production, and importantly, even levy fines on the infringer.  Administrative action is typically faster and less costly than a lawsuit.  Cases can sometimes be concluded within a few months or even a few weeks, making this route especially attractive for cases in need of more urgent interventions. 
 
However, administrative enforcement has inherent limitations: that the administrative bodies cannot award damages directly to the injured copyright owner.  Any fines imposed are payable to the government, not to the rights holder, meaning that loses are not directly recoverable through this process.  Although officials may facilitate a settlement between the parties in some cases—such as pressuring an infringer to compensate the rights holder in exchange for leniency—such outcomes are not guaranteed and vary significantly depending on the circumstances.  Furthermore, the administrative fines imposed on the infringers are often modest and infringers often regard them as an operational cost rather than a substantial deterrent, limiting the effectiveness of administrative enforcement against determined violators. 
 
Administrative enforcement is most suitable for straightforward cases or when the primary goal is the immediate intervention to promptly stop infringement and gather evidence.  For example, if pirated copies of books or videos are spotted at a trade fairs or retail outlets, a local copyright authority can swiftly halt sales and confiscate the stock.  This not only prevents further market damage but also creates a record of infringement that the rights holder can later use in their civil or criminal proceedings.  Foreign rights holders frequently pursue a two-step strategy: employing administrative enforcement initially to stop the infringing activity and preserve critical evidence, then proceeding with a civil lawsuit to seek compensation. 
 
In cases involving particularly large-scale infringements, Chinese regulations direct administrative authorities to transfer the matter to the Public Security Bureau (“PSB”) for potential criminal investigation.  In other words, an administrative action can serve as a springboard to criminal enforcement when the facts justify the severity of the infringement for heavier penalties.  Moreover, if either party is dissatisfied with the outcome of an administrative action, they can challenge the administrative decision in court, ensuring there is judicial oversight of the process. 
 
When initiating an administrative enforcement, it is essential for rights holders to supply robust evidence of the alleged infringement.  Local enforcement officials often rely heavily on the complaints and evidence submitted by the complainants in deciding whether to proceed with the action.  Rights holders should therefore conduct thorough preliminary investigations—including the purchase of infringing items, documentation of unauthorized online distributions, and preservation of evidence such as screenshots or download records—and present a clear, detailed dossier to authorities.  A comprehensive, well-documented complaint significantly improves the likelihood of swift and effective administrative action. 
 
 
3. Criminal Enforcement: Pursuing Criminal Prosecution for Severe Infringement 
 
Criminal enforcement is the strongest tool in China’s IP protection framework, reserved for egregious infringement cases that meet certain statutory thresholds of scale or harm.  Chinese law allows criminal prosecution of copyright infringers who engage in piracy or unauthorized reproduction and distribution activities “for the purpose of making profits” at a substantial scale.  In practice, this typically involves significant quantities of infringing goods or considerable amount of illegal revenue.  When such thresholds are met, the case can then be treated as a crime rather than merely a civil or an administrative violation. 
 
Rights holders have two main avenues to initiate criminal enforcement: either by (1) referring the matter to law enforcement via an administrative body, as previously mentioned, or by (2) filing a complaint directly with the PSB if there is clear evidence of a large-scale commercial infringement.  In either scenario, the PSB will investigate the matter as a criminal case.  Upon finding sufficient evidence, the case is transferred to the People’s Procuratorate (prosecutor) for formal charges, and it is ultimately tried in the criminal division of the People’s Court. 
 
Criminal copyright enforcement primarily yields punitive outcomes rather than financial compensation.  Convicted infringers face criminal penalties, including substantial fines and imprisonment.  According to Article 217 of China's Criminal Law, offenders can receive up to three years of imprisonment or detention for typical cases, or between three and seven years for particularly serious offenses, alongside monetary fines.  Such sanctions serve as a strong deterrent, often dismantling organized piracy operations effectively.  
 
For rights holders, the primary advantage of criminal enforcement lies in its deterrent effect and broader societal impact rather than direct monetary recovery.  Although victims of IP crimes may occasionally receive token restitution during criminal proceedings, substantial financial compensation typically require a separate civil litigation.  It is notable that once a criminal case is underway, the government authorities assume primary control of the process.  The rights holder’s role becomes secondary, generally involving provision of evidence and expert testimony as needed.  While this reduces the rights holder's direct legal expenses, it also limits their influence over the proceedings' timeline and ultimate outcome.  
 
Due to the high evidentiary standards required, foreign companies should reserve criminal enforcement for clear-cut, large-scale infringements, such as a factory mass-producing counterfeit DVDs or an online platform trafficking thousands of unauthorized eBooks.  In such scenarios, involving Chinese law enforcement can eliminate the problem at its source and send a strong message to the market that infringement will be met with the harshest consequences.  A coordinated enforcement strategy often proves most effective: administrative actions or civil investigations initially help to document the infringement comprehensively, and these findings can subsequently form the basis for criminal enforcement if applicable thresholds are met.  Criminal enforcement complements China’s civil and administrative remedies, addressing the most egregious violators and imposing penalties—including imprisonment—that other enforcement options cannot achieve.  
 
 
4. Combining Enforcement Mechanisms: A Strategic Approach 
 
When managing an anti-piracy strategy in China, foreign rights holders should view civil, administrative, and criminal enforcement not as mutually exclusive alternatives, but as complementary tools because each method can address distinct purposes and needs.  To summarize key points: 
 
1) Civil litigation is ideal for securing monetary relief and permanent injunctions, making it the only mechanism that directly compensates the rights holder for recovering losses.  Rights holders should pursue civil remedies when significant damages have been suffered or when a legal judgment is needed to definitively settle a dispute.  Preparing strong, admissible evidence through private investigations or prior administrative actions is crucial to meet Chinese courts' evidentiary standards.  Leveraging available interim measures, such as preliminary injunctions or attachments early in the litigation process can also help minimize ongoing harms and damages.  
 
2) Administrative enforcement is a fast, cost-effective first response to infringement, particularly suited for straightforward or urgent cases.  While administrative actions do not result in direct monetary compensation for rights holders, they may swiftly halt infringing activities, minimize immediate harm, and generate valuable evidence.  Rights holders should proactively collaborate with local IP authorities by providing clear and comprehensive evidence including, if possible, a Chinese copyright registration certificate as proof of ownership, to expedite their action.  Since administrative penalties alone may not effectively deter persistent infringers, rights holders should be prepared to take civil or criminal actions where necessary. 
 
3) Criminal enforcement should be pursued to achieve high-impact deterrence against large-scale infringers.  It is usually appropriate only when the infringing conduct is quantitatively substantial enough to meet criminal thresholds (e.g. infringing copies of great volume or high illegal revenue).  In such cases, collaborating closely with the PSB and prosecutors can effectively dismantle criminal enterprises and lead to imprisonment of infringers.  Given that criminal actions primarily seek punishment rather than compensation, rights holders often strategically integrate criminal actions with civil litigation—such as pursuing criminal raids to disrupt a piracy operation, then subsequently filing civil suits against the same perpetrators (or associated distributors) to recover damages from any residual infringement activities. 
 
For all enforcement mechanisms, early and proactive engagement is critical.  China’s enforcement system rewards swift actions, while delays can result in increased damages and complicate further enforcement.  Foreign rights holders should continuously monitor both online platforms and physical distribution channels for potential infringement, and promptly gather evidence upon detection.  Engaging experienced local counsel or investigative firms to assist with evidence preservation—such as notarized purchases of infringing goods or documenting online distributions—establishes a strong foundation for subsequent enforcement actions.  It is also wise to educate and coordinate with Chinese authorities where possible to enhance enforcement effectiveness.  For example, some companies record their copyrights with China Customs to intercept infringing exports or collaborate with local law enforcement by providing training sessions on distinguishing genuine from counterfeit products.  Such preventive measures complement and enhance the efficacy of enforcement mechanisms discussed above. 
 
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