Hogan Lovells

Hogan Lovells' LimeGreen IP

The site will give you an overview of Intellectual Property law and related procedures, and how these may differ from country to country.

Copyrights - Copyright protection - China

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-What are the works that can be protected?

In China, copyrights are defined as original intellectual achievements in the literary, artistic, and scientific domains that can be reproduced in a tangible form. A work must meet three requirements to qualify for copyright protection in China. The work must be:

  • An original work of the author;
  • Fixed in a tangible medium of expression and capable of being reproduced; and
  • A work of authorship.

"Work of authorship" is broadly interpreted as all "intellectual creations in the literary, artistic and scientific domain". Chinese law has a more narrow definition which currently includes:

  • Written works;
  • Oral works;
  • Musical works, operatic and dramatic works, works of quyi (kind of comedy performance), choreographic works and   acrobatic works;
  • Works of fine art and architectural works;
  • Photographic works;
  • Cinematographic works and works created by a process analogous to cinematography;
  • Graphics works such as drawings of engineering designs, drawings of product designs,
  • Maps, schematic drawings. three-dimensional model works; and
  • Computer software.

Works of applied art may be considered "literary and artistic works" and may therefore be protected by copyright in China under the Berne Convention. The real issue for works of applied art is which aspects of such works are protected by copyright, since the works possess both an artistic aspect as well as a functional aspect. Thus, the design of a Swiss army knife is very likely not protected by copyright in China because the utilitarian features are not separable from the aesthetic features. On the other hand, the base of a desk lamp featuring a dancer statue is likely to be protected by copyright since the artistic aspects of the lamp, namely the dancer statue, is readily separable from the utilitarian aspects, the lamp.

Software

In China, software is generally registered as a software copyright rather than a (software) patent. Software that is patent-eligible may be protected by both copyright laws and patents. Computer programs as such cannot be patented in China, but are protected under the "Regulations on Computer Software Protection", which were formulated in accordance with the Copyright Law.  Software copyrights are registered with the Copyright Protection Center of China (under the National Copyright Administration of China). Registration takes 30 days as of submission of the application and costs 300 RMB per registration. The source code that is registered may not exceed 60 pages. In order to protect sensitive information, part of the source code in the registration may be redacted.


-Will the work be protected in other countries?

Copyright protection is governed by national law and as such limited to the territory of the country in question. In addition, numerous countries, including China, are members of international conventions which ensure the application of the commonly acknowledged and fundamental principles of copyright law in relation to non-citizens. In this context, some of the important conventions/treaties are:

  • Revised Berne Convention for the Protection of Literary and Artistic Works (1952)
  • Universal Copyright Convention (1952)
  • Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961)
  • World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights – TRIPS (1994)
  • World Intellectual Property Organization Copyright Treaty (1996)
  • WIPO Performances and Phonograms Treaty (1996).
  • WIPO Beijing Treaty on Audio-visual Performances (2012)
  • Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (2013)

China is a signatory of the WTO-TRIPS; Berne Convention for the Protection of Literary and Artistic Works; the Universal Copyright Convention; the Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms; the Beijing Treaty on Audio-visual Performances and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.


-What are the requirements for copyright protection?

In China, copyrights are subject to voluntary registration. Registration strengthens the position of a party in case of litigation as it can be used as prima facie evidence of ownership in a dispute.

Copyright protection arises automatically with the creation of the work. While it is not required by law, the © symbol is recommended for use on both registered and unregistered works.

Because China automatically recognizes copyright ownership as of the date of creation of a work, there is currently no difference in the enforceability of works with the © mark versus those without the © mark. In general, the consequence of a failure to display a copyright notice is that the copyright may be more easily infringed, and the infringer may argue that he or she was not aware that the copyrights belonged to another party.

The term of copyright protection is the life of the author plus 50 years, expiring on December 31st of the fiftieth year after his or her death. In the case of a work of joint authorship, the term expires on December 31st of the fiftieth year after the death of the last surviving author. For cinematographic works, the term of copyright protection is fifty years and expires on December 31st of the fiftieth year after the first publication of the work.


-What are the author's rights under the national law?

A copyright entitles its owner to copy, reproduce and license it. Copyrights in China include the following personal rights and property rights: publication; authorship; revision; integrity; reproduction; the right of distribution; rental; exhibition; performance; presentation; broadcasting; communication through information network; cinematography; adaptation; translation; compilation and other rights.

In summary, it can be said that the author can decide whether, for what purpose and in which manner his work may be used by third persons. However, the abovementioned rights are limited by a number of fair use provisions. For example, the use of protected works in the classroom or for purposes of news reporting is allowed without prior authorisation. While it is not explicitly provided for, to be regarded as "fair use" the following conditions are considered to determine reasonableness: (a) the works must have been published. (2) it is used solely for the purpose of private study, research or appreciation, or for teaching, scientific research, religious or charitable and public cultural interests. (3) If using the work of others, the author's name and title must be mentioned unless agreed otherwise. (4) Use of others' works, cannot affect the normal use of the work or the legitimate rights of the copyright holder.


-How do you assign copyrights / author rights?

A copyright owner may assign, in part or in whole, the property rights (such as right of distribution, rental, performance etc.), and receive remuneration pursuant to an agreement or PRC Copyright Law. Assignment of a transferable copyright requires conclusion of a written contract, which must include the following:

  • title of the work;
  • category of the right to be transferred and the territory covered by the transfer;
  • rates of the transfer fee;
  • date and the means of payment of the transfer fee;
  • liabilities in the case of breach of the contract; and
  • other matters that the parties consider it necessary to agree upon.

-How do you license copyrights?

Copyright owners may license to another party the right to exercise its copyrights, such as the right of: reproduction, distribution, rental, exhibition, performance, presentation, broadcasting, communication through information networks, making cinematographic work, adaptation, translation, compilation, and any other property rights a copyright owner is entitled to enjoy.

When a copyright is licensed it is necessary to conclude a written agreement. The copyright holder has the right to receive remuneration pursuant to the agreement. The other party may not, without permission from the copyright owner, exercise any right that is not explicitly licensed by the copyright owner in the agreement. A licensing agreement needs to include the:

  • Category of the right to exploit the work covered by the license;
  • Exclusive or non-exclusive nature of the right to exploit the work covered by the license;
  • Territory and the term covered by the license;
  • Rates of remuneration and the means of payment;
  • Liabilities in the case of breach of the contract; and
  • Other matters which the parties consider it necessary to agree upon.