Protection of Copyrights in China
Introduction
Copyright is a form of intellectual property that protects a creator’s exclusive right to control who reproduces or alters the product of their original creative effort. Copyright protects the producers of any original work, and is relevant to almost all businesses, not just those in the creative industry. Adequate copyright protection can form an important part of an IPR protection strategy. Businesses regularly create articles, photographs, drawings, designs, models, websites, computer software, etc., which all enjoy copyright protection. Copyright is an automatic right that arises the moment a work is created. Once a work is created, in most cases, the creator will automatically enjoy copyright protection in all 164 member countries of the Berne Convention for the Protection of Literary and Artistic Works including all European Union countries and China.
[Image Source: Istock]
Voluntary registration for your copyright is available in China. Though your work is automatically protected by copyright the moment it is created, voluntary registration will provide proof of ownership, which can save you time and money in case of a dispute later on. For copyrights that are particularly important to the livelihood of your business (i.e., website, software, catalogue, customer database, etc.), you should strongly consider registering your copyright.
Copyright protects the tangible expression of ideas, not the ideas themselves Copyright protects original creative expressions of ideas that subsist in a fixed medium such as on a piece of paper, on an artist’s canvas, on an optical disc, or on magnetically recordable media. Copyrightable expressions are known as “works”. Ideas include thoughts, feelings, procedures, methods of operation, or mathematical concepts, and other products of creative and intellectual endeavours. Copyright protects only the expression of an idea, not the idea itself.
Most types of creative works protectable by copyright in Europe are protectable by copyright in China Traditional types of creative works such as books, music, recordings, plays, films, paintings, sculptures, photographs, etc., enjoy copyright protection in China. Other works such as works of choreography, acrobatics, calligraphy, quyi (a traditional Chinese performance art form), model works, and databases and compilations as to the selection and arrangement of content also enjoy copyright protection in China. The basic principle for copyright eligibility is that the work be original and reproducible. Unlike Europe where computer software is protected by patents, software is expressly protected under copyright in China. Industrial and graphic designs, applied art, architectural buildings are also protected by copyright.
Written works such as news reports of facts and happenings, laws, regulations, administrative and court decisions, and other works created by government entities to inform the public (as well as their official translations); and calendars, forms, tables and formulas are excluded from copyright protection, although compilations of these are protected as to their selection and arrangement of content.
Copyright arises in China as soon as an original work is created, even in most cases where the work is created outside of China. Copyright arises on the date the original work is created. A copyright of a work may belong to its creator or the employer of the creator, as it is defined in the contract between those two parties in advance. Protected creative acts include those intellectual activities that directly result in the creation of the work. Acts of support such as rendering services or material or financial resources are not considered creative acts. Thus, if an individual provides only managerial support to the creation of a work, he or she is not considered a creator of the work.
In China, certain reasonable or personal use of copyrighted works without permission or remuneration is permitted where the use falls within the scope of fair use. For example, quoting a small portion of a work in a scholarly article is considered non-infringing fair use. The Copyright Law contains a list of twelve acts which constitute fair use. Types of acts considered fair use in China are similar to those in Europe. Examples of permitted private use include self-study, research or self enjoyment, appropriate quotation, reporting of current events, etc.
Copyright registration in China is administered by the Copyright Protection Centre of China (CPCC). Applicants begin the application process by completing the copyright registration application form and mailing the application materials to CPCC. After receiving the application, the CPCC will review the application materials, determine the application fee, and notify the applicant. After the applicant pays the application fee, the applicant will receive a notice of receipt of payment and notice of application acceptance. After acceptance, the examination of the application takes approximately 30 working days to complete. After the successful completion of the examination, the applicant will receive a Copyright Registration Certificate. An applicant may create a user account on http://www. ccopyright.com.cn, complete the copyright registration application form online, then print and sign/seal the application form. Applicants must submit by mail the completed application form, the identification documents of the applicant, any documents of copyright ownership such as commission, succession, license, or assignment agreements, samples of the work, and a brief description of the work to the CPCC.
Conclusion
Though copyright is automatically granted and may be seemingly unimportant to some companies, your company probably owns more copyright that you might think. Copyright infringement of your product images, website content, photos, brochures, customer database, etc. can still lead to brand dilution, lost customer loyalty and lost profits. Your company should take proactive measures to identify all of your existing copyrights, prioritise them and register the ones you consider most important to your business. This will not only make proof of ownership much more straightforward in case of a copyright dispute but will also allow the option of using multiple types of rights to protect your design patents and/or trademarks. In addition, it is strongly recommended that you review your employee and commissioned work contracts to ensure it is clear who the copyright belongs to. This will help avoid potential copyright disputes and licensing issues in the future. Copyright is an important form of IPR for all businesses and its protection should be considered a key pillar in your business’ overall IPR strategy, alongside trademarks and patents.
Author: Tanya Saraswat, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing.
