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:

• Literary, musical and art works
• Architectural works
• Photographic and cinematographic works
• Computer software

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:

• The home country has entered into an international copyright treaty with China; or
• The work is first published in PRC in the absence of any international treaty.

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.

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.

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:

• Application forms
• Identity certificate of the applicant
• 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 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.

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.

• 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

Two legal actions are available: Administrative action or judicial action.

Administrative 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:

• Order to stop the infringement
• Confiscation of the illegal income from the infringement
• Confiscation of infringing duplicates and administrative fines.

Judicial action

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.

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 ‐1,000 RMB of acceptance fees
10,000 RMB: 50 RMB of acceptance fees
100,000 RMB: 2.5% (2,500 RMB) of acceptance fees
200,000 RMB: 2% (4,000 RMB) of acceptance fees
500,000 RMB: 1.5% (7,500 RMB) of acceptance fees
1million RMB: 1% (10,000 RMB) of acceptance fees

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.

Customs registration

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.

Particular care

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.).

Legal actions

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.

The collection of evidence to be provided to the People's Court must be submitted in Chinese. Any non‐Chinese 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:

• Documents, archives, accounts or other written documents relating to the suspected infringement, and samples of the suspected infringing duplicates
• Registration of the suspected infringing duplicates for preservation, and certification by a notary public. An official statement is usually drawn by a Chinese notary public4 to report unauthorized sales or unauthorized uses of protected goods
• Expert identification, such as a computer expert for software counterfeiting issues
• Investigation reports, generally provided by private investing companies entrusted by the claimant
• Witnesses, audio‐visual materials and records of inspections of the counterfeiting goods or suspected goods, and inspection of the manufacturing places and storage places.

A licensing contract must be in writing and state the following elements:

• 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.