What is a copyright and what is protected by copyright law in the People's Republic of China (PRC)?
A copyright is an intangible and incorporate right granted by the Chinese Copyright Law to the author of an original work, i.e. a unique intellectual achievement. The definition of the works protected by a copyright is broad and not exhaustive; including:
Non original works (such as laws, official documents, news or calendars) cannot be protected.
Copyright Law in China protects the works created by Chinese citizens and Chinese legal entities. An original work created by a foreigner and first published in a country that entered into a copyright treaty with China, can be protected under Chinese Law provided that either:
A copyright is vested automatically in the author upon its creation and no registration is legally required. In China, as opposed to many other countries, it is however possible to register a copyright, which will provide additional protection since the right is then easier to prove in case of infringement.
How long does copyright protection last?
Pursuant to PRC Copyright Law, the duration of an author's moral rights shall be perpetual. The duration of the economic rights (please see question 4), 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.
What is the application process for registering a copyright in China? How long does it 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 registration strengthens your copyright in China. You are required to provide the following documents to apply for copyright registration:
The State Copyright Bureau will complete the examination and issue the registration certificate within one month from 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 of 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 or the economic rights of the author. Though not always, an infringement of moral rights usually implies an infringement of economic rights.
What legal actions can be taken in the event of 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 competent administration is usually situated in the location where the infringement takes place or where the counterfeiting goods are stored or seized. Although such action does not provide compensation, the administration may impose the following punishments:
The competent 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 recommended to bring a suit before the courts of a major city as they will have more experience in the management of Intellectual Property rights cases. In addition to the measures described here above, the court may grant damages to compensate the plaintiff. The court can rule for 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.
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 and its IP chambers and expert judges. Procedure fees include the fees for case acceptance for the application 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.
If the compensation claim is:
0 RMB: 500 â1,000 RMB of acceptance fees
What legal means do I have to protect my copyright?
Registration in China
Prior to the use, manufacturing, reproduction and/or distribution of a work that is protected by a copyright, the owner of a copyright should ensure that they take all measures to secure their rights in China. For instance, a copyright registration 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 or exported from China, filing an application with the General Administration of Customs (GAC) should be performed to establish the copyright ownership. A written application for registration shall be filed by the applicant with a representative of the customs for review and approval. It is not necessary to entrust 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 IP risks. It is also important to be cautious with the choice of a Chinese partner you may deal with. An agreement with the partner should be signed in order to establish the granted rights such as reproduction right, translation right, disclosure rights and the applicable term and territorial limitation. It shall 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 an infringement of the copyright, legal actions before the administrative or civil jurisdiction may be taken. The recognition of the copyright will be easier to establish if registrations have been duly made in China.
What kind of evidence should be presented before the Chinese courts for an action against infringement?
The collection of evidence to be provided to the People's Court must be submitted in Chinese. Any nonâChinese documentary evidence produced in administrative or judicial litigation needs to go through a procedure of notarization and legalization if originated in a foreign country. The following documents may be collated to prove copyright ownership and the infringement:
What should a licensing contract concerning a copyrighted work stipulate?
A licensing contract must be in writing and state the following elements:
Additional elements that the parties consider necessary can be set forth in the license such as internal processes for peer review, auditing rights, etc.
|Last Updated on Thursday, 28 April 2011 17:32|