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Market Entry – Software Registration

SME:

Nationality: French
Industry: Computer programming - app
Status in China: Market entry

Background:

A French programmer contacts the Helpdesk. Their app has been copied by a Chinese company. The French programmer asked if there is anything they could do.

The Helpdesk asked if there was any way of proving the date of creation of this app. The French programmer said that they had emailed the source code to a friend for their opinion prior to publishing it online, and then they had started to commercialise it in Europe through the Play store.

Action taken:

While China is a member of the Berne Convention – and therefore ownership exists from the time of creation, the Helpdesk advised the French programmer to proceed with the voluntary registration of the copyright of their computer software/app, which is possible to do within three days and backdate it to date of creation. With this copyright certificate, the enforcement strategy becomes easier. Nevertheless, the court may look into the legitimacy of the creation date. Counter-evidence would be examined in court if presented by the other party.

As an extra layer of protection, when applying for copyright protection, it is safer to disclose as little from the product’s source code as possible. To do so:

  • The company should consider the exceptional submission over the normal one, as it would allow blacking out confidential areas of the source code,
  • Additionally, they should bear in mind that the first 10 pages (although preferably the first 30 pages) of the source code should contain as little critical information as possible,
  • They can also apply for the ‘sealing up’ of the source code programme, documentation, or samples. Only the copyright holder and judicial departments are then permitted to open the sealed material.

For extra proof of ownership and thus of a possible infringement by a third party, is worth considering introducing some specific identifications of ownership in the source code writing –like the developer’s/company’s name, trade mark or a company slogan, for example. They should try to insert this identification in the first 10 to 30 pages of the application and try to make it unique to each programme (i.e. inserting the name of the software, relevant version and name/s of the programmer/s). In this regard, the Copyright Law states that the name of the entity (company or person) that’s stated in the work is presumed to be the author of the work, unless proven otherwise.

Another way to prove ownership of the copyright is to go to a notary public in the SMEs’ home country, and obtaining a notarial document with the source code in it. If there is any legal problem later in China, this document can then legalise and notarise those documents as proof of copyright ownership - also enforceable in China.

Lessons learned:

  • Copyright registration is accepted as evidence for copyright ownership at court but it can be challenged by counter-evidence.
  • In spite of a copyright registration, it is still important to keep the files of creation of the works, for example, code, sketches, paintings, photos, films, publications, etc. secured and the author’s name and the date recorded.
  • Measures can be taken to keep the parts of the source code confidential.
  • Notarising the document in the SMEs/developper’s home country could be considered.

Advice, revisited:

Hangzhou court decision on blockchain evidence – There has been a new ruling by an Internet court in Hangzhou, deciding to accept blockchain technology as a way of fixing the evidence in IP cases. Currently, Hangzhou is home to many online writers in China and the case involved the unlicensed distribution of copyrighted online content. According to Wang Jiangqiao, a judge from the Internet Court in Hangzhou: “Blockchain guarantees that data cannot be tampered (with)… all digital footprints stored in the judicial blockchain system (…) have legal effect, and that (includes), authorship, time of creation, content and evidence of infringement”.

Although China is not a case law country, this precedent is influencing the Chinese legal practice. Therefore blockchain should be considered to fix copyrightable material, especially whenever this shall be distributed online. It is important to note that Internet Courts are a recent creation, they largely operate online (filing, hearings, evidence uploads, etc.). However their scope of action is limited to Internet related cases, including but not limited to online shopping/services disputes, copyright infringement, domain name disputes, Internet defaming, etc.

It is also worth noting that the Beijing branch of the Chinese Copyright Agency provides with an assistance service in English to help companies/individuals fill-up their copyright registration for as little as RMB200 (about 25EURO – Jun.2019).