What is a copyright?
Copyright is actually a bundle of rights (moral and economic) enjoyed by the author or creator of an original work, or that his/ her successors or licensees assigns to others.
For example, you may find that someone has published your article without permission or crediting you, someone has edited the photograph you took, or someone has made copies of your brochure and has been using it for their company. These are all examples of moral rights infringement, which means you were not properly identified, the work was published without your permission and the work was distorted in a way that might harm your reputation. Moral rights are personal and cannot be waived, licensed or transferred. In infringing your moral rights, e.g., if a competitor uses your product images to promote their own counterfeit products, confusion is created, possibly resulting in loss of reputation or business.
If you find that someone has copied your software and has been selling it as their own, someone has translated your website content or someone has been distributing your video clip, then your economic rights have been infringed. Economic rights give you the exclusive right to exploit the work for economic gain, including the right to reproduce, distribute, exhibit, perform, broadcast, disseminate on information networks, adapt, translate and use other means to exploit the work. Only you as the rights holder have the right to personally exploit the work or license others to exploit the work for compensation.
What kinds of work are protectable by copyright?
Copyright protects the tangible expression of ideas, not the ideas themselves.
Copyright protects original creative expressions of ideas that exist 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. For example, your detailed written description about your company’s new and innovative internet business model in your business proposal to potential investors is protectable by copyright as an expression, but the internet business model itself and the ideas, concepts and principles behind it are not.
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.
Software is expressly protected under copyright in China. Industrial and graphic designs, applied art and architectural buildings are also protected by copyright.
What items are excluded in copyright protection?
In China, written works including news reports of facts and events, 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 in terms of their selection and arrangement of content.
How long does copyright protection last?
According to the Chinese Copyright Law, the duration of an author’s moral rights (meaning your work may not be distributed, copied or altered without your permission) is perpetual. The duration of the economic rights (meaning no other party can benefit financially from your work), is the author’s lifetime and 50 years after the author’s death if the author is an individual. The protection of works is 50 years from the first publication, if the author is a legal entity.
How long does is the application process for registering a copyright in China take and how much will it cost?
Although no registration is necessary for the author to own a copyright on their work, a registration can be made before the State Copyright Bureau of the State Council, which handles the registration for overseas authors or copyright owners. A copyright registration is useful for proving your ownership of the work in a court case and other situations. You are required to provide the following documents to apply for copyright registration:
- application form
- identity certificate of the applicant (passport)
- description of the work a pledge letter of right
- a sample of the work and any documents showing the copyright (if agreements have been made).
The State Copyright Bureau will complete the examination and issue the registration certificate within one month of receiving the application. The registration fees range from RMB 100 to RMB 1,000 for each registration. The fees depend on the nature of the work (song, written work, architectural work, etc.) and whether it is requested by an individual or a legal entity. For instance, registration fees for a song will be approximately RMB 100 for an individual whilst it would be up to RMB 200 for a company. Furthermore, it depends also on the length of the work; a registration of a whole book is likely to be more expensive than a poem.
What constitutes copyright infringement in China?
A copyright infringement may consist of a violation of either the moral rights (meaning your work may not be distributed, copied or altered without your permission) or the economic rights of the author (meaning no other party can benefit financially from your work). Though not always, an infringement of moral rights usually implies an infringement of economic rights.
An infringement of moral rights may consist of putting one’s name instead of the author’s name on a published work.
Examples of economic right infringement are numerous and generally involve the unauthorized use of a work, such as the reproduction of the work, broadcasting on the radio or the uploading of a work on the internet. Decoding the technical measures taken to protect the copyright on a recording can also be considered as infringement
What legal actions can be taken in the event of copyright infringement?
Two legal actions are available: administrative action or judicial action.
The National Copyright Administration and its national and local offices can hear copyright related cases. The relevant administration is usually the one situated in the location where the infringement took place or where the counterfeit goods were stored or seized. Although such administrative action does not provide economic compensation for the copyright holder, the administration may impose the following punishments on the infringer:
- Order to stop the infringement
- Confiscation of the illegal income from the infringement
- Confiscation of infringing duplicates
- Administrative fines
The relevant People’s Court is the court where the infringer is resident, where the infringement has been performed, or where the infringement results occurred. In practice, it is best to bring a suit before the courts of a major city as they will have more experience in dealing with intellectual property rights cases. In addition to the measures described above, the court may grant damages to compensate the plaintiff. The court can require the infringing party to pay damages based on the actual loss incurred by the rights holder. In practice, if the actual losses are difficult to evaluate, the damages can be based on the illegal income earned by the infringer. If neither can be established, the court may award damages up to RMB 500,000 (although amounts in this amount are rare).
How long does it take to resolve a case of copyright infringement? How much will it cost?
A case brought before the administrative authorities will take approximately 3 months while an action before a judicial court takes at least 6 months. In addition, one should consider the eventuality of an appeal. A copyright infringement case is generally brought before the Intermediate People’s Court. Costs are for procedure fees which include the fees for case acceptance and expenditures for evidence. The acceptance fees for an intellectual property dispute are calculated on the basis of the compensation claim and may vary according to the locality.
What legal means do I have to protect my copyright?
Registration in China
Prior to using, manufacturing, reproduction and/or distribution of a work that is protected by copyright, the copyright owner should ensure that all measures are taken to secure his/her rights in China. For instance, voluntarily registering copyright is recommended and/or the registration of any agreement dedicated to the transfer or licensing of the work in China. These registrations can be used as evidence in the event of any dispute regarding the ownership and rights to the work.
If the copyright concerns products that can be imported to or exported from China, an application can be filed with the General Administration of Customs (GAC) to establish the copyright ownership. This is done by written application for registration filed by the applicant with a representative of the customs for review and approval. There is no need to use an agent for such application. The registration is made for a seven year term and can be renewed. In the event of suspected counterfeit goods being imported/exported, customs officials can then take protective measures such as detention and confiscation of the goods.
It is necessary to identify the market and the targeted consumers and try to identify the associated intellectual property risks. It is also important to be cautious with the choice of a business partner in China you may deal with. It is essential to have a signed agreement with the partner in order to establish the granted rights such as reproduction right, translation right, disclosure rights and the applicable term and territorial limitation. The agreement should also establish the role of the partner in the event of a legal action (whether the partner may bring any legal action itself or join an existing claim or action, the scope of the assistance to be provided by the partner to collect sufficient evidence, whether the legal expenses and costs should be jointly paid, etc.).
In the event of a copyright infringement, legal actions may be taken via the administrative or civil jurisdiction. Proof of copyright will be easier to establish if it has been registered in China.
What kind of evidence should be presented before the Chinese courts for an action against copyright infringement?
Evidence provided to the People’s Court must be in Chinese. Any non‐Chinese documentary evidence produced in administrative or judicial litigation needs to go through a procedure of notarization and legalization if originating in a foreign country. The following may be prepared to prove copyright ownership and the infringement:
- Documents, archives, accounts or other written documents relating to the suspected infringement, and samples of the suspected infringing copies.
- Registration of the suspected infringing copies for preservation, and certification by a notary public. An official statement is usually prepared by a Chinese notary public to report unauthorised sales or unauthorised use of protected goods.
- Expert identification, such as a computer expert for software counterfeiting issues.
- Investigation reports, generally provided by private investigation companies hired by the right holder.
- Witnesses, audio‐visual materials and records of inspections of the counterfeit or suspect goods, and inspection of the manufacturing places and storage places.
What should a licensing contract concerning a copyrighted work stipulate?
A licensing contract must be in writing and state the following:
- The title and description of the work
- The right(s) being licensed
- Whether the license is exclusive or non‐exclusive
- The duration and the geographic scope
- The amount or the method of remuneration and the date of payment
- The liability for breaching the terms of the license
Additional elements that the parties consider necessary can be set forth in the license such as internal processes for peer review, auditing rights, etc.
What is an incorporate right?
Property or an asset that does not have value in material form.
How can I protect my software?
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.
How can I legally use someone else’s copyright?
You can use someone else’s copyright through contractual means:
If you would like to use somebody else’s copyrighted work, you may obtain the right to use the work by license, purchase or assignment, succession, or by other contractual agreements with the copyright holder. For example, if you wish to use another’s photograph on your company’s website, you should contact the photographer to obtain a license to use the photograph or to purchase the copyright to the photograph.
When acquiring the copyright or right to use a copyright, it is important to understand that owning a license to use somebody else’s copyrighted work is not the same as owning the copyright to the work.
A license enables you to use the photograph only as the copyright owner permits, while owning the copyright enables you to freely use, duplicate, or sell copies of the work, although moral rights are to be respected. For example, when you purchase an mp3 music file or piece of software on the internet, you are actually obtaining a license to use the mp3 music file or piece of software, not acquiring the copyright to the music or software itself.
In other words, you may be able to listen or use the music file or software, but you are not allowed to copy and distribute them.
Obtaining a license or purchasing a copyright can be accomplished by concluding a contractual agreement with the copyright owner. The license or purchase is effective immediately after the contracts are signed and it does not need to be registered with any authority, unless the work falls within the scope of certain restricted technologies.
Other ways of using someone else’s copyright legally are within the scope of fair use or through statutory licenses.
What is fair use of copyrights?
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. You should avoid using a copyrighted work without permission or remuneration in a way that is not listed as fair use in the Copyright Law.
What is a statutory licence
The Copyright Law allows certain types of works to be used without permission as long as royalties are paid to the copyright owner. This is called a statutory license. A statutory license often applies to producers, broadcasters, and publishers who may use published works without the permission of the copyright owner but remuneration is paid and moral rights are respected.
The use of such work under a statutory license does not constitute an infringement of copyright.
Can I enforce my copyright against infringers on the internet?
China Copyright Law protects against the dissemination of a work on information networks without permission or remuneration. Furthermore, technological protection measures may be used to restrict the unauthorised access of copyrighted works including software and audio and video recordings.
China also recognises secondary liability for copyright infringement of Internet Service Providers (ISPs). A copyright holder may request an ISP to disable links or access to alleged infringing works or products hosted on an ISP's network. Where the ISP complies, the ISP will not be liable for secondary infringement. However, if the ISP knew or should have known that alleged infringing works or products constituted an infringement, the ISP would remain subject to secondary liability for the underlying infringement.
Sample takedown notices and instructions can be found on the National Copyright Administration's website at http://www.ncac.gov.cn/. Notices must contain your name, contact information and physical address; a description and network address of the infringing work, performance or audio/video product to be removed; and preliminary evidence that proves the alleged infringement.
If software is developed in Europe but marketed in China, how can a copyright be obtained to protect the software? How long is the protection period?
Software is protected by copyright upon its completion and does not require registration in order to be protected. The protection of software remains the same, whether it is domestic or foreign software, and is granted for the lifetime of the software proprietor and a 50 year term thereafter.
In practice, because it provides increased protection, it is highly advisable to register the software developed in Europe before the China Copyright Protection Centre – Software Copyright Registration Department, a department of the National Copyright Administration. A certificate of ownership should be issued within 60 days. The registration is valid for five years but can be renewed. Such a registration should be made before disclosing the software in China.
What acts constitute infringement of software copyright?
Piracy of software is the unauthorised reproduction and distribution of software without the consent of its author. It can consist of manufacturing or selling pirated software. Another common infringement is altering the software without the consent of the author or registering another person's software as one's own work.
The applicable regulation classifies the infringement activity into five categories:
- Copying or partly copying a copyright holder's software
- Distributing, leasing or disseminating through the information network to the public a copyright holder's software
- Intentionally evading or disrupting the technical measures adopted by the copyright owner for the protection of his software
Intentionally deleting or altering electronic rights management information of the software without the authorisation of the copyright owner (i.e. such as abuse of licensing rights)Assigning or authorising others to exercise the copyright holder's software copyright
What penalties will an infringer of my protected software bear?
Generally, the penalties for software copyright infringement will consist of the following:
- An order to cease the infringement
- Confiscation of the illegal income and of infringing duplicates
- The payment of a fine
In accordance with the list of acts constituting copyright infringement and the PRC Copyright law, the following fines are applicable:
- For acts described in item 1 and 2, a fine of RMB 100 for each copy or a fine of not more than 500% of the sales price, may be imposed additionally
- For acts described in item 3, 4 and 5, a fine of not more than RMB 50,000 may be imposed additionally
. In terms of civil liability, damages can be awarded to the owner of the copyright based on the actual loss or the amount of illegal income (if the actual damage cannot be ascertained), up to an amount of no more than RMB 500,000 (although the actual damages are likely to be lower).
What acts constitute intellectual property infringement through e‐commerce?
An e-commerce intellectual property infringement can be either:
An infringement of the content provided online, such as an unauthorised reproduction of a protected work offered for sale online; or an infringement of the copyright of the website itself by using an identical graphic design and colours of the presentation of the web site.
If I become aware of a competitor infringing my copyright, am I obliged to take action? If so, are there any specific time frames within which the action must be taken? Do I lose my rights if I do not take action?
The decision to bring an action against the infringer is a personal decision of the copyright owner and it is not compulsory to take legal action against the infringer. The time limit for actions against copyright infringement is two years starting from the date when the copyright owner knew or should have known of the infringing act. If the infringement is continuous, the time limit will be calculated from the date of its termination. Failure to bring an action against the infringer does not impact your copyright ownership.
How long does it take to resolve a case of software infringement? How much does it cost?
The time frame for such a case is difficult to establish or to predict as many elements need to be considered (difficulty to assess one's right, evidence to be brought, nature of the jurisdiction etc.). A legal action before the administrative jurisdiction is generally quicker than an action brought before the civil jurisdiction. Furthermore, it is difficult to estimate the cost for such a case. An infringement of software can also be solved through an out of court settlement.
The possible remedies include cessation of the infringement, financial compensation and a public apology. In addition to administrative penalties, fines and confiscation of the illicit gains can also be ordered.
What damages are available to a party who has had their software infringed?
In terms of civil liability, damages can be awarded to the owner of the copyright based on the actual loss or the amount of illegal income (if the actual damage cannot be ascertained), up to an amount of no more than RMB 500,000 (although the actual damages are likely to be lower). The infringer can also be liable for the reasonable expenses incurred on behalf of the plaintiff for costs incurred for the investigation and for obtaining evidence with regard to the infringement. Criminal penalties may be imposed together with civil liabilities, if the infringement constitutes a crime. The threshold of the illegal income is RMB 20,000 for an individual and RMB 100,000 for a company. Administrative fines may also be imposed, to a total of no more than three times the amount of the illegal operational value or, to a value of no more than RMB 100,000