Copyright Protection In China

2016-04-01 18:36:56

Overview

Copyright is an automatic right As in Europe and in many other countries, copyright arises in China as soon as an original work is created. There is no requirement on registration of a copyright when it is created for it to be enforceable. Likewise, registration of any copyright license and transfer agreement is not compulsory except where the license or transfer falls within the scope of certain regulated technologies.

In China, the Copyright Law protects copyrights by way of administrative actions, civil actions and criminal actions. Various administrative authorities are empowered to take enforcement actions either independently or through joint efforts.

 

What types of works are protected by copyright?

Most types of creative works that would be protectable under the copyright law in Europe are protectable in China. However, there are some notable differences between China and Europe, just as there are some differences between European countries.

Copyright arises upon the date the work is created. A copyright work must be an original intellectual creation that subsists in tangible form. Copyright protects the way in which the thought, idea or feeling is expressed and not the thought, idea or feeling itself. Therefore, an idea that does not subsist in tangible form will not be protected by copyright. What types of acts involved in creating a work is protected by copyright? Those intellectual activities that directly result in literary, artistic or scientific works are acts of creating. Any supportive contribution, such as provision of services and material support, will not be considered as an act of creating.

LITERARY, MUSICAL, GRAPHICAL AND CINEMATOGRAPHIC WORKS

Most traditional types of creative works, such as novels, films, musical pieces, photographs, paintings, etc. are recognised as works enjoying copyright protection. Since China is a civil law country, works of this kind that are original and contain a degree of aesthetic merit are usually indisputably recognised as enjoying copyright protection. Apart from these works, there are many other kinds of works such as computer software, works of applied fine art, choreography, quyi*, etc., which are recognised as enjoying copyright protection.

FOLK LITERARY AND ART WORKS

Any protection of folk literary and art works will be provided by a separate regulation to the Copyright Law. China has not promulgated any regulation on protection of folk literary and art works. The draft of the regulation is still under discussion.

NEWS ITEMS AND PUBLIC DOCUMENTS

Written works such as texts of laws, regulations, court and administrative decisions, news, calendars and current tables and formulas are excluded from protection. In most cases, however, this applies only to purely factual works and works generated for public information by government agencies. Private works of translation and compilation, such as news features, would normally be considered copyrightable.

DATABASES AND COMPILATIONS

Databases and compilations such as dictionaries and textbooks are recognised as works of compilation in China and can enjoy copyright protection if the compilations embody intellectual creation by the compilers in the selection and/or arrangement of the content. The compiler owns the copyright of the compilation work, provided that the exercise of such copyright does not infringe upon the copyright of the pre-existing works included in the compilation.

COMPUTER SOFTWARE

Computer software is recognised as a copyrightable work under the Copyright Law and more specifically under the Regulation on the Protection of Computer Software. “Computer software” means “computer programs” (such as the source code program and its object code program) and “the documentation thereof” (written materials and diagrams to describe the contents, design, functions, and method of use of the program, such as program design explanations, flow charts, user manuals, etc.). Once again, protection on computer software does not extend to ideas, concepts, processing methods, algorithms or operation designs, although some of the above may be protected in China as patents.

Where a foreign individual or entity receives any computer software work from a Chinese citizen or entity by way of licensing or transfer, the licensing or transfer is subject to registration or approval with the Ministry of Commerce (“MOFCOM”) and MOFCOM offices at the local level under China technology import and export regulations.

INDUSTRIAL DESIGNS AND APPLIED ART ON COMMERCIAL PRODUCTS

Drawings of engineering designs and product designs are categorised as “graphic works” under the Copyright Law and are copyrightable in China. Work of applied art is also protected by the Copyright Law as work of fine art, as long as the aesthetic features can be physically or conceptually separated from the utilitarian features. In some cases, China’s Unfair Competition Law can also protect such industrial designs.

In practice, certain kinds of 3-D designed objects which have a strong eye appeal such as jewellery, toys and furniture can be protected under China’s Copyright Law. Additionally, some models such as models of buildings may be protected under the Copyright Law as model works. Three-dimensional representation of a two-dimensional design or drawing of a work of fine art can be considered to be infringements of the right of reproduction. For instance, producing a 3D Mickey Mouse toy in accordance with a Mickey Mouse cartoon picture without license constitutes a copyright infringement. However, engineering industrial products exploiting utilitarian features embodied in the design does not constitute a copyright infringement of the right of reproduction, although it may constitute an infringement on another IP right.

Multi-protection on certain types of works

There is no provision in the Copyright Law that precludes multiple protection of certain types of copyrighted works under other IP regulations: e.g. designs can also be patented, distinctive designs and logos can be protected as a trademark when they are used as such, etc. Resorting to patent/ trademark laws and regulations other than copyright law gives an IP right owner more enforcement alternatives when an infringement occurs.

 

Establishing your copyright

MORAL RIGHTS AND ECONOMIC RIGHTS

China Copyright Law grants authors of works both moral rights and economic rights. Moral rights indicate the right of attribution of authorship, the right of disclosure of the work to the public, the right to revise the work, and the right of keeping integrity of the work. Economic rights give authors the exclusive power to exploit the work’s economic values by various ways. There are thirteen economic rights in the Copyright Law, including:

  • reproduction,

  • distribution     (of   original    and  copies      of     works),

  • rental       (of   copies      of     cinematographic    works      and  computer        software),

  • exhibition        (of   works      of     fine art    and  photographic works), 

  • live  and  mechanical     performance,

  • presentation  (of   works      of     fine art,  photographic works      and  cinematographic works), 

  • broadcasting,

  • communication      of     works      through  information    network,

  • cinematographic    reproduction,

  • adaptation,

  • translation,

  • compilation,   and

  • other      rights       (catch-all-right).

Economic rights are also referred to as “exclusive rights”, since others must get license from the author to exploit the work by various means covered by economic rights.

The protection period of the right of disclosure and all economic rights is generally 50 years and in the case of individual authors, the lifetime of the author(s) plus 50 years.

Special Features of Moral Rights

Unlike economic rights, moral rights are closely related to the author’s personality. So moral rights are not allowed to be waived, licensed or transferred by the author. As a consequence, a contract between a college student and a ghost writer to finish a thesis under the name of the student is null and void, since it actually transferred the right of attribution of authorship and other moral rights.

The “Catch-all Right”

The last economic right enumerated by the Copyright Law is often referred to as “the catch-all right”, since it could cover all the other exploitation acts which have economic significance to the copyright owner. For instance, when a webcaster transmits a movie to the public on the real-time basis without the authorisation, the copyright owner cannot sue the webcaster for infringement of the right of communication through information network, since the right only covers interactive transmission. The court used the “catch-all right” to decide in favour of the copyright owner on the ground that China has an international obligation to fully apply the article 8 of the WIPO Copyright Treaty (WCT), which provides a general right of communication to the copyright owner. So the “catch-all right” must be broadly interpreted to cover communication to the public of the work by any technology.

Important exception to the right of exhibition In spite of the right of exhibition enjoyed by the copyright owner, the owner of the original copy of the work of fine art has the right to exhibit the original copy. It means that as long as the author transferred the ownership of the original copy of a work of fine art, he or she cannot prevent the buyer from exhibiting the original copy to the public.

 

NEIGHBOURING RIGHTS

China Copyright Law protects not only works by traditional copyright (author’s right), but also subject matters other than works by “neighbouring rights”. Live performance of works, sound or video recordings, broadcasting signals and typographical design are not eligible for protection as “works” and are only subject matters of neighbouring rights.

The following individuals or entities enjoy neighbouring rights protection in accordance with the Copyright Law:

  • Publishers of books, newspapers and periodicals are entitled to authorise or prohibit other parties to use any design format of the books and periodicals that are made by the publishers. The publisher can enjoy this right till 31 December of the 10th year after the publication of the book or periodical.

  • Producers of audio or video recordings are entitled to authorise other parties to reproduce, distribute, lease, and disseminate via information network, any audio or video recordings that are made by themselves. The producers can enjoy this right till 31 December of the 50th year after the recordings are first made and finished. Producers should obtain permission from and pay remuneration to the owner and performer of the original copyright works to reproduce, distribute and disseminate the audio or video recordings.

  • Performers of a copyright work are granted several kinds of rights, as follows: – Performers may also claim / enforce their moral rights, which means that their name should not be omitted unreasonably, and their performances should not be modified or used unfavourably; – Performers have the right to authorise the recording, broadcasting and communication to the public of their live performances, including via information network; – Performers have the right to allow others to reproduce, publish and distribute the recording of their performances.

  • Radio or TV stations are entitled to prohibit any other party, without permission from the station, to relay broadcasting the radio or TV broadcasts, or to record the radio or TV broadcasts on audio-video carrier. A radio or television station can enjoy this right until 31 December of the 50th year after the radio or TV broadcasts are first broadcasted.

It is worth noting that the Chinese Copyright Law does not provide for the protection of broadcasting and public performance rights for performers and producers of sound/video recordings.

 

COPYRIGHT OWNERSHIP

To own the copyright of a work in China, you need to be the creator of the work, or the employer of the creator. You could also obtain the copyright through succession, donation, assignment or other contractual arrangement. If you sponsor or commission a work, you do not own the copyright in the commissioned work unless you have contracted with the creator that the copyright is assigned to you.

 

WORKS CREATED BY EMPLOYEES

Ownership of the copyright work in China will depend on the type of employment works, and on compulsory legal provision or agreement between the two parties.

For an engineering design, blue print of a product, map, computer software or any other work that is created using resources of the employer and for which the responsibility lies with the employer, the employee owns right of attribution of authorship and the employer owns all other copyrights. The employer may award the employee for his creation of the employment work. An employee can also specifically agree by contract that he or she only keeps the right of attribution of authorship, and all the other copyrights belong to the employer.

In all other circumstances, the employee, as the creator of an employment work, owns the copyright of the employment work. However, the employer will be in a preferential position to use the employment work within its business scope. Within two years from the creation of an employment work, the employee shall not allow any third party to use the employment work in the same way as the employer does without the employer’s consent authorisation. If, upon the consent authorisation from the employer, the employee licenses any third party to use the employment work within two years of creation, and in the same way as the employer does, the both shall agree on a proportion to share the remuneration arising from the licensing.

 

COMMISSIONED WORKS

If a work is commissioned in China, the ownership of the copyright will belong to the author; unless a contract states that the copyright belongs to a commissioning party. It would be prudent to effect the assignment of copyright of the commissioned work after its creation.

 

COLLECTING SOCIETIES

As everywhere else, the purpose of collective societies is to collect from users and distribute among authors and holders of related rights royalties due in respect of the economic exploitation of their members’ works, including phonograms and videograms.

Music is administered through the Music Copyright Society of China (“MCSC”), a Chinese collective administration organisation. Most creators of music in China grant authorisation to MCSC to represent them and to administer their works, including collecting fees, granting licenses for use of the work and lodging complaints with the courts or local copyright administrations. MCSC has set up branches in many cities in China and has established business relations with many international copyright organisations and related international institutions.

In 2004, the State Council promulgated the Regulation on the Collective Administration of Copyright. This regulation allows a copyright collective administration society to represent right holders to exercise their copyright in concluding copyright license agreements, collecting royalties from users and transferring royalties to the right holders, and participating in copyright related litigation or arbitrations. Copyright collecting administration society is allowed to exercise the above activities in its own name upon obtaining authorisation from right holders. Pursuant to this regulation, NCAC formally approved the establishment of another copyright collective management society in 2005, the China Audio-Video Copyright Association (“CAVCA”), which is currently the only collecting management society of audio-visual program products. CAVCA only commenced performing its function earlier this year, as it did not obtain approval for registration from the Ministry of Civil Affairs until 28 May 2008.

NCAC also approved the application for preparation for the establishment of two other copyright collective administration societies, namely the Literary Works Copyright Society (“LWSC”) and the Photographic Works Copyright Society (“PWCS”), and they are now in their respective registration processes with the Ministry of Civil Affairs.

 

Voluntary recordal

HIGHLY RECOMMENDED

China has a system of voluntary recordal (registration) of copyright works. Recordal is not necessary for obtaining copyright protection in China, nor does it definitively prove copyright ownership. However, it implies a prior ownership claim of a work with the relevant authority in China following Chinese procedures. As copyright owners may find it difficult to adduce evidence - particularly evidence of ownership of a foreign or unfamiliar work, a recordal can be used as prima facie evidence of ownership when an infringement occurs, hence facilitate enforcement actions (whether through the administrative or the judicial route).

The copyright owner shall be aware of the independent authority of the PRC courts in adjudicating the ownership of a copyright work. Hence, the People’s Court has discretion to decide on the legality and validity of the registration certificate, and ownership of the copyright work during a court action.

Use the Chinese system to solve your problems Providing evidence in a format or using a system that is familiar to the government officials concerned will facilitate their work, and provide you with quicker results. When a copyright complaint is filed, the most common source of delay in the procedure is caused by the difficulty for the authorities and courts to determine the rightful copyright owner, particularly for foreign or unfamiliar works. Pirates infringing works for generating important profits may use any form of stalling as a tool to serve their purposes, e.g. move production facilities to new and undiscovered sites. This applies to administrative actions in particular as administrative authorities do not have the power to issue a preliminary injunction. Help your local administration official by eliminating uncertainty and minimising delays. Record your copyright!

Note. Some third party bodies such as industry representative organisations are authorised to authenticate copyright.

VOLUNTARY REGISTRATION OF COMPUTER SOFTWARE

Although copyright recordal is voluntary, the NCAC strongly encourages the copyright owner to register its rights over computer software (regulated by the Measures on Registration of Computer Software regulates) with the Software Registration Centre (which is part of the Copyright Protection Centre). Any individual, entity or organisation (copyright owner or heirs, licensee or assignee) may apply for registration of ownership of computer software or the license/ transfer arrangement of the copyright over computer software. The procedure for filing includes submitting identification materials, including source codes. However, rights holders can take reasonable measures necessary to protect the source code. Right holders can apply for sealing up of the source code program, documentation or samples. No party is then allowed to open the sealed material except the right holder and judicial departments. Right holders can also request for exceptional submission and preservation of certain pages of the source code program and/or object code program in accordance with the requirements set out in the Recordal Measure of Copyright of Computer Software, e.g., blacken out the confidential part of the source code program.

VERIFICATION OF AUDIO-VISUAL AND COMPUTER SOFTWARE PRODUCERS

Any party in China involved in the production, publication or reproduction of foreign works must register their license for the right to do so with the local copyright bureau, which will check that the applicant has genuine authorisation from the relevant foreign association(s) of rights owners. Any party licensed to produce software must, under certain situations, register their licensing contracts before they are permitted to publish or reproduce software. In addition, any manufacturer of optical disc material (LDs, VCDs, DVDs and CD ROMs) must apply for a unique identifier of their products, known as the Source Identification (‘SID’) Code. Normally, one would go to the local copyright bureau and ask for assistance from an official to obtain a unique ID.

DOCUMENTARY EVIDENCE NEEDED TO PROVE COPYRIGHT OWNERSHIP

A recordal certificate is considered as evidence to prove copyright ownership. The sufficiency of evidence to prove ownership depends on the nature of a copyright work. For example, the manuscript shall be provided to prove the ownership of a written work if the work has not been published; if it has been published, then original books or periodicals that first published the written work shall be provided as the evidence of ownership, e.g. negatives of photographic works.

Generally speaking, to prove your ownership of copyright in China, you must provide an original copy of the work or a true copy (notarised when adduced for court actions, but not necessarily so for administrative procedures). As a general rule, an original work should show the name of the author and the date of creation, or the date of first publication. If you are not the original creator of a work, you should provide clear evidence to prove you obtain the copyright either through commission or employment, license, transfer or succession.

Please bear in mind that the Copyright Law clearly provides that, in the absence of evidence on the contrary, the citizen, legal entity or organisation whose name is shown on a work, shall be deemed as the author of the work.

 

What is an infringement of copyright?

Moral rights are infringed if the author is not properly identified, or if the work is disclosed to the public against the author’s will, or if the work is distorted to the detriment of the author’s reputation.

Infringement of economic rights means unauthorised exploitation of a work by means covered by any economic right provided in the Copyright Law. For instance, reading a pirated novel is not a copyright infringement, since there is no “right of reading” in the Copyright Law to cover the act of unauthorised reading. In contrast, playing background music in a department store without paying remuneration to the copyright owner constitutes a copyright infringement covered by the right of performance. To exploit a derivative work, the user needs authorisation from the copyright owner of both the original work and derivative work. For instance, if a publisher hopes to publish a Chinese translation of an English novel, it has to seek license from both the English writer and the Chinese translator.

Note: Important exemptions exist to the use of copyrighted material about which copyright owners should be aware of (see Fair Use).

REPRODUCTION AND DISTRIBUTION

Any acts involving reproducing substantial part of a work or distributing copies of a work to the public need authorisation from the copyright owner. Hence, it is a copyright infringement to publish a work without license or sell pirated copies of it. It is worth noting that unauthorised use of computer software in the business is an infringement of software’s copyright since such a use involves copying the software in the user’s computer.

BROADCASTING AND PERFORMING

If a radio or television station uses an unpublished work created by another, they should obtain permission from, and pay remuneration to, the copyright owner. If the work is published, the user does not need permission from the copyright owner, they may simply pay for it. However, radio and television stations have been refusing to pay remuneration to copyright owners of musical works since the standard of payment has not yet been set by the State Council.

In order to perform a literal, dramatic or musical work on the stage (“live performance”), or to communicate the performance in a profit-making public place (“mechanical performance”), the performer or the operator of the public place must seek license from the copyright owner. The collecting society MCSC (Music Copyright Society of China) has sued many organisers of vocal concerts, department stores and super markets for unauthorised live performance or mechanical performance of musical works it manages.

CINEMATOGRAPHIC PRESENTATION

It is an infringing act to present to the public a cinematographic work or a work created by a process analogous to cinematography without license. Since most music videos which are used in karaoke bars constitute “work created by a process analogous to cinematography”, karaoke bars not only need to pay to copyright owners of music works, but also to producers of music videos.

MAKING AVAILABLE THROUGH THE INTERNET AND OTHER INFORMATION NETWORKS Making works available through the Internet and other information networks, such as Intranet in college campus and interactive cable system, is covered by the right of communication through information network. Therefore, unauthorised uploading of works onto BBS, on-line forum, blog, or videosharing website is a copyright infringement. Before July 2006, it is a permissible act for a website to reproduce a work which has already been published in newspaper, journal or a website, as long as the author does not declare that no such reproduction is allowed, and the website pays remuneration to the author. However, after the new Regulation on Protection of the Right of Communication through Information Network took effective on July 2006, websites must seek prior consent from the author save for fair use exception

 

The Internet

As a contracting state, China complies with the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) under the World Trade Organisation (WTO). In 2001, China revised its Copyright Law that, due to the challenges presented by new information and communication technologies, has incorporated a new right for authors to protect their works on-line. This right, being called “Rights of Communication through Information Network”, is further defined and elaborated in the Regulations on Protection of Rights of Communication through Information Network that was implemented in July 2006.

According to the Regulations, an organisation or individual, when providing any copyright work of another person to the public via information networks, shall obtain the copyright owner’s permission and pay the relevant remunerations. The Regulations further allow the copyright owner to apply technological protection measures. Such measures are efficient techniques, devices and components aimed at preventing and restricting browsing or enjoyment of any copyright works or audio-visual products without permission of the relevant copyright owner or from providing the copyright works and products to the general public through information networks without the permission of the copyright owner.

It is not always a clear-cut case whether certain acts conducted via the Internet is an infringement of copyright, particularly when it touches upon the liability of an Internet service provider (‘ISP’). To strengthen copyright protection involving the Internet, the State Council and the Supreme People’s Court have issued various regulations and judicial interpretations on Internet-related copyright disputes and issues. For example, a copyright owner may request the ISP, in writing, to remove alleged infringing work, performance or audio-visual product (“Work and Product”), remove the relevant web site from the ISP’s network and disable the links/access to the work and Product if he has grounds to believe that this work or product infringes on its right of dissemination or any relevant electronic information has been deleted or altered (take down notice).

Where the ISP removes the alleged infringing Work and Product or disables the links/access to the alleged infringing Work and Product, the ISP will not be liable for monetary compensation to the copyright owner. However, if the ISP is fully aware or should have known that the alleged infringing Work and Product the ISP has linked/accessed to constitute an infringement, the ISP would remain subject to the liability of joint infringement.

TRANSLATION AND OTHER ADAPTATION

The copyright holder of a work has rights over translation of the work, and can therefore prevent unauthorised translations. There is an exception for Chinese works, namely that translations into a minority language of China for non-commercial purposes do not need the authorisation of the copyright owner. This exception does not apply to foreign works. The authorised translator of a work may separately enjoy rights to the translation of the work, although all rights (except moral rights) can be contracted to revert to the owner of the original work in the translation contract.

In addition, preparing derivative work and making cinematographic adaptation are also restricted acts. For instance, it is a copyright infringement to create comic strips or to produce a film based on a novel without the license from the novel’s author.

PARALLEL IMPORTATION

Parallel importation is not specifically mentioned or addressed in the Copyright Law and can therefore generally be considered as a legal activity, although some limitations on parallel importation can be set through the existence of legal contracts.

Fair Use and Statutory license In China, there are exemptions on reasonable use of small parts of a copyrighted work, or use of some types of work without remuneration or permission. This is termed “fair use”. For example, quoting extracts from a book or newspaper, a musical film or clip, when used for study or news reporting, is fair use and not an infringement of the copyright in that work. The exemptions for the use of copyrighted material without permission or remuneration in the Copyright Law generally comply with the Berne Convention and the TRIPS Agreement. Free use of works without infringing moral rights in China can be found in the Copyright Law and are quite extensive.

Copyright owners should be aware that free use extends to copying copyrighted works at libraries for preservation and universities for classroom teaching (as long as no profit is made and there is “no damage to the copyright holder”).The act of copying and selling copies of whole foreign textbooks is certainly not fair use, but copyright infringement. In 2004, the Beijing High Court imposed aggregate damages of almost RMB 6.5 million to a well-known English teaching school in Beijing for the illegal copying and selling of proprietary English test papers (TOEFL, GRE and GMAT) owned by the Education Test Services   (ETS) and the Graduate Management Admission Council (GMAC).

The Copyright Law also provides statutory licenses for certain uses of works. The beneficiaries of statutory licenses do not need to ask for permission from the copyright owner, but they must pay statutory royalties to the copyright owner. For example, when a work has already been published in newspaper or a periodical, another newspaper and periodical can reprint the work as long as the author has not declared with the first publication that no such reprint is allowed. For another example, if the author of a musical work or of its text has authorised the making and distribution of sound recordings of the work, after the sound recording of music is lawfully produced under authority of the copyright owner, any other record companies may use the statutory license to make their own sound recordings of the music, but they must pay a royalty to the copyright owner.