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Copyright Registration in China: A Step-by-Step Guide for Intellectual Property Protection

• April 8, 2024

Table of Contents

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Key Takeaways

• China follows the international norms for copyright protection as set out in the Berne Convention . 
• Where works are copyrighted overseas, this will usually be recognized in China through the force of that convention. 
• While in many cases you will not need to actively register a copyright in China to be fully protected under Chinese law, it may be worth seeking professional advice to see what your protections are. 

Recognizing the importance of intellectual property in fostering innovation and cultural development, the People’s Republic of China has established a structured copyright registration system. Managed by the National Copyright Administration of China (NCAC) , this framework outlines the steps and requirements for registering various works, including literary, artistic, and scientific creations. Registration of copyright in China serves as a declaration of ownership and a deterrence against infringement, providing legal evidence that can be pivotal in any related disputes.

In this step-by-step guide we explain how the China copyright system works and how you can use it to protect your business. 

Overview of Copyright Laws in China

In China, copyright law is a framework established to safeguard creators’ rights to their original works, such as literary, musical, and artistic productions. It grants authors, artists, and other creators the exclusive right to use and distribute their work under the conditions specified by Chinese law.

Berne Convention Compliance

China has been a signatory to the Berne Convention since 1992, aligning its national statutes with the international standards outlined in the treaty. This ensures that foreign works are granted equivalent protection in China and vice versa, promoting cross-border respect for copyright.

Duration of Copyright

Under the current Chinese copyright law , copyright extends for the life of the author plus 50 years, which matches the minimum protection term mandated by the Berne Convention. For works of corporate authorship, the duration is either 50 years from the date of first publication or 50 years from creation if not published within 50 years of creation.

Copyright Registration Process

The copyright registration process in China is a structured procedure aimed at protecting creators’ intellectual property rights. It involves several specific steps to ensure eligible works are duly registered and that applicants receive a formal copyright registration certificate.

1. Eligible Works for Registration

In China, eligible works for registration include a variety of creative pieces, such as literary, artistic, and scientific works that are expressed in some tangible form. The works must be original and able to be reproduced in a physical form. This includes writings, musical compositions, paintings, sculptures, and computer software.

2. Application Form and Documentation

The application form is a critical component of the copyright registration process. Applicants must accurately fill out the necessary forms the National Copyright Administration provides. Required documentation typically includes the applicant’s personal or corporate information, a detailed work description, and a stamped sample for verification purposes.

3. Formality Examinations

Once the application form and accompanying documents have been submitted, they undergo formality examinations . In these examinations, authorities review the submitted materials to ensure they comply with the procedural requirements. They check for completeness of the application, proper labeling of the stamped sample , and that all necessary documentation is in order.

4. Issuance of Copyright Registration Certificate

The National Copyright Administration of China will issue a copyright registration certificate if the application passes the formality examinations. This certificate serves as legal evidence of copyright ownership and is essential for enforcing copyright protections. The process culminates in the registrant receiving this certificate and confirming the registration of their work with the authorities.

The Role of Copyright Protection Organizations

In China, copyright protection organizations play a crucial role in upholding creators’ rights and ensuring that intellectual property laws are enforced. These entities help facilitate copyright registration, monitor compliance, and engage in legal actions to protect copyrighted work.

1. National Copyright Administration of China

The National Copyright Administration of China (NCAC) , a governmental authority, supervises copyright matters throughout the country. It oversees the implementation of copyright law, administers copyright policy, and coordinates with international copyright agencies. NCAC also guides and regulates local copyright administrations and copyright protection organizations.

2. Copyright Protection Center of China (CPCC)

CPCC , an organization managed by the NCAC, is tasked with registering copyrighted works. It serves both as a monitoring body and a service provider to copyright owners, helping them register their works and maintain a database. CPCC issuance of registration certificates is key in legally protecting copyrighted content in China.

• Copyright registration
• Consultation on copyright enforcement
• Coordination with law enforcement

3. Voluntary Copyright Registration System

In addition to the mandatory registration through NCAC and CPCC, China also has a Voluntary Copyright Registration System . This supplemental system allows creators to register their works voluntarily. It provides practical benefits, such as ease of enforcement and creating a public record, even though registration is not compulsory for copyright protection under Chinese law.

Advantages of voluntary registration include time-stamped evidence of ownership and enhanced protection measures

Through these organizations, China continues to develop its copyright protection framework to suit the digital age better and align with international standards.

Copyright Ownership and Transfer

In the realm of intellectual property in China, the precise determination and transfer of copyright ownership are pivotal. To maintain legal compliance, both domestic and international entities engaging with Chinese copyright laws must navigate the intricacies of ownership delineation, rights assignments, and licensing agreements with due diligence.

1. Determining Copyright Ownership

Identification of copyright ownership is the foundation of intellectual property rights in China. Typically, the author of a creative work is the initial copyright owner. However, in commissioned work or employment cases, the employer or commissioner may be considered the legal owner unless a contract specifies otherwise. Establishing clear ownership is essential as it embodies the right to reproduce, distribute, and license the content.

2. Assignment Filings and Transfer of Rights

Copyright ownership is formalized through assignment filings in China. This legal process requires a written agreement between the assignor and the assignee, often necessitating the services of an agent with power of attorney. To effect the transfer, the agreement must be recorded with the applicable Chinese authority. It is critical to note that all assignments should specify the scope, content, term, and geographical area of the transferred rights.

3. Copyright Pledges and Licensing

Copyright pledges and licensing serve as instruments for copyright holders to monetize and manage their IP assets without transferring full ownership. A copyright pledge involves using the copyright as collateral to secure loans, requiring registration with Chinese copyright authorities. On the other hand, licensing enables the copyright owner to grant usage rights to third parties. Licenses may be exclusive or non-exclusive and should detail the rights, duration, and territory covered. Both pledges and licensing are subject to stringent regulations to protect all parties’ legal ownership and rights.

In these transactions, trademarks—distinct from copyrights—are not transferred unless explicitly included in the contractual agreements.

Copyright Infringement and Enforcement

Copyright infringement in China includes unauthorized reproduction, dissemination, and broadcast of copyrighted materials. The Chinese legal system addresses these violations through a combination of administrative actions and court litigation. A copyright recordal certificate is often crucial in enforcement efforts.

1. Recognizing Copyright Infringement

Infringement occurs when individuals or entities use copyrighted works without permission from the copyright holder, often for profit. Infringing offers involve distributing the copyrighted work or making it available without the owner’s consent. To establish infringement, courts assess the content against the original to determine if substantial similarities exist. A copyright recordal certificate is instrumental in proving ownership.

2. Administrative Enforcement Actions

Chinese administrative enforcement is a non-judicial process handled by government agencies. They may issue fines to cease infringing activities and seize illegal copies. Key features include:

• Rapid response : Authorities can act quickly to mitigate the impact of infringement.
• Direct action : Raids on markets known for piracy can immediately confiscate counterfeit goods.

3. Litigation in Chinese Courts

Copyright holders may file lawsuits in Chinese courts when administrative remedies are insufficient. Litigation involves:

• Civil lawsuits : Copyright owners seek compensation for damages or injunctions to prevent further infringement.
• Criminal cases : For severe infringement or widespread piracy cases, criminal proceedings can lead to imprisonment or higher penalties.

Enforcement of copyright in China is becoming increasingly robust with the evolution of intellectual property laws and the participation of Chinese courts. The nation is working to curb copyright infringement through administrative and judicial channels.

Protection of Copyright in the Digital Environment

China’s digital landscape presents unique challenges and approaches to copyright protection. Technological advancements and the integration of intellectual property (IP) into online platforms necessitate tailored enforcement strategies. This section examines the implications of digital evolution for copyright registration and IP rights within information networks, e-commerce platforms, and digital enforcement mechanisms.

1. Information Networks and Copyright

Information networks have become pivotal in disseminating copyrighted materials in the digital age. With the proliferation of the Internet, IP protection on these networks is critical. In China, copyright law has been strategically reformed to address the complexities introduced by digital channels . For instance, in-app or in-program user interfaces and website layouts are considered artistic works and legally protected. The rethinking of the Chinese copyright law reflects an acknowledgment of the nuanced nature of modern content sharing.

2. E-commerce Platforms and IP Issues

E-commerce platforms in China are under scrutiny for IP issues, particularly related to product packaging design and the unauthorized use of copyrighted content. The platforms are expected to play a proactive role in IP enforcement. Therefore, companies operating within the digital economy are adopting sophisticated measures to combat IP infringement, ensuring that copyright protection is upheld. The nuanced challenges businesses face in this domain highlight the need for robust mechanisms to adapt to the ever-changing digital media industry, as noted in research on the legal environment for copyright protection in China .

3. Digital Copyright Enforcement

For digital copyright enforcement , China has been actively enhancing its legal framework. This evolution is instrumental in protecting IP rights within the vast digital marketplace. Enforcement efforts have been notably visible through legal amendments and the implementation of advanced technologies for tracking and rectifying violations. China’s journey to effectively protecting IP rights in the digital realm has involved a series of reforms and international collaborations, evidenced by the progress in Chinese copyright reform .

International Aspects of Copyright

The global landscape of copyright law shapes how content is protected across national borders, affecting the rights and obligations associated with creative works. International treaties and domestic laws govern the recognition and enforcement of copyright internationally.

1. Foreign Copyright in China

Foreign entities must navigate China’s copyright system, which is influenced by its commitment to the Berne Convention for the Protection of Literary and Artistic Works. As part of this international treaty, China acknowledges the copyright of all creators from member states and grants them the same protections as Chinese nationals. Notably, reciprocity is a guiding principle for works from the United States and other Asian countries; a foreign author’s country must offer similar protection to Chinese works for the copyright to be upheld in China.

• Requirements in China : Foreign works must be registered in China for copyright enforcement.
• Reciprocity : Protection is extended to foreign works if the foreign author’s country protects Chinese works.

2. Chinese Copyright Abroad

Chinese creators seeking copyright protection abroad are subject to the laws and regulations of the foreign jurisdiction. However, as a signatory of the Berne Convention, Chinese works enjoy protection in all member countries, including most Asian countries and the United States. Under the Berne Convention , explicit registration in another country is not necessary, as copyright protection is automatic upon the creation and fixation of a work.

Supporting Activities Around Copyright

In China, critical activities such as notarization, legalization, and evidence gathering underpin the copyright registration process. These actions solidify the legal standing of intellectual property and facilitate the enforcement of copyright laws.

1. Notarisation and Legalisation

Notarization in China involves a notary public who verifies the authenticity of legal documents related to copyright ownership. This notary acts as an impartial witness, ensuring that document signatories are who they claim to be and that signatures are applied without duress. Notarization provides a layer of trust in the documents’ legitimacy, a requirement for further legalization.

Legalization is the next step, in which the already notarised documents undergo verification by a higher authority to confirm the notary’s credibility. The legalization process may involve multiple authorities, such as the Ministry of Foreign Affairs, and is crucial for recognizing copyright documentation in international jurisdictions.

2. Documentation and Evidence Gathering

Documentary evidence is indispensable in supporting copyright claims. This includes contracts, creation records, and other paperwork that provide a tangible trail of copyright ownership. Documentary evidence must be compiled methodically for presentation in potential legal disputes.

Personal declarations and witness evidence serve as additional support, strengthening the position of copyright holders in a claim. Personal declarations are typically written statements from the copyright holder or creators affirming their rights. Witness evidence, albeit more subjective, offers a firsthand account of the creation process and the intent behind the work.

Gathering this evidence requires diligence and an understanding of legal necessities to ensure that, if challenged, one’s claim to copyright is incontrovertible.

Additional IP Rights and Registration

In China, protecting intellectual property (IP) is a multifaceted process involving various forms of registration, including trademarks, designs, and patents. Rights holders must navigate specific procedures to ensure their IP is legally recognized and defended under Chinese law.

1. Trademark and Design Registration

Securing a trademark in China is a strategic step for businesses to safeguard their brands and logos. According to the Chinese trademark law amendments, trademarks must be distinctive. They cannot directly reference the quality, primary raw materials, function, use, weight, quantity, or other features of the goods or services. On the other hand, design registration provides exclusive rights to a product’s aesthetic aspects . To be registered, a design must be new and have individual character. Intellectual property in this sphere covers various creations, from corporate symbols to product configurations.

Criteria for Trademark Registration :

• Distinctiveness
• Non-descriptiveness of characteristics
• No conflict with pre-existing trademarks

Criteria for Design Registration :

• Individual character

Applying for trademark and design rights requires dealing with legal documents, which may include contracts of sale or transfer if the rights are owned by more than one entity.

2. Patents and Declaration of Ownership

China’s legal framework offers protection for inventions, utility models, and designs in the realm of patents. To file a patent, one must supply a detailed description of the invention and its applicability. Patents are granted after a thorough examination process and, once issued, give the owner an exclusive right to use and commercialize the invention.

A declaration of ownership is crucial in disputes or when the inventor or designer’s name must be recorded in official records. This declaration is typically part of the patent application process.

Requirements for Patenting an Invention:

• Inventive step
• Industrial Applicability

Declaration of Ownership : Included in the patent application, evidencing the inventor’s rights.

Copyrightable subject matters , such as literary works, art, and software, go through a registration process where China aims to align its practices with international standards by updating its copyright laws and facilitating the application of intellectual property law.

Managing Copyright-Related Agreements

Managing copyright-related agreements in China is a structured legal process that requires an understanding of the country’s specific requirements and regulations. Agreements must be clear, concise, and in accordance with the prevailing copyright laws to ensure that intellectual property is properly licensed, protected, and enforced.

1. Contracts and Licensing Agreements

In China, contracts are crucial in defining written works’ rights, responsibilities, and royalties. Licensing agreements must be detailed and include all necessary clauses to comply with local intellectual property laws. These contracts determine how a written work may be used, specifying the scope of the license, any exclusivity rights, and the duration of the agreement. They must be drafted with precision to safeguard both parties’ interests.

• Scope of License : Defines the extent of usage rights granted.
• Exclusivity : Determines if the rights are exclusive to the licensee.
• Duration : Sets the time frame of the agreement.

2. Cease-and-Desist and Settlements

When a copyright infringement occurs, the injured party may issue a cease-and-desist letter to halt unauthorized activities. This formal request can lead to amicable settlements or, if necessary, legal action. Settlement negotiations in China require adherence to copyright law and often aim to avoid litigation. They typically result in an agreement compensating for past infringements and outlining terms for future use, preventing further legal disputes.

• Cease-and-Desist : Formal request to stop unauthorized use.
• Settlements : Negotiated agreements to resolve infringement disputes.

Steps after Copyright Registration

After successfully registering copyright in China, rights holders should be aware of post-registration obligations and opportunities. It’s essential to maintain copyright validity and make any necessary amendments promptly.

1. Post-Registration Modifications

Following registration, rights holders can change their copyright record if necessary. These modifications may involve updates to the owner’s contact information or changes in the copyright ownership due to transfer or assignment. To amend a registration, the rights holder must submit a request alongside the appropriate documentation for modification . Such changes ensure the accuracy of the copyrightable subject matter , maintaining its integrity and enforceability.

2. Renewals and Duration

China’s copyright law stipulates that copyright protection lasts for the author’s life  plus an additional 50 years after death. For works of corporate authorship, the duration is typically 50 years from publication. Rights holders must track these timeframes, as there’s no procedure for renewal in China; copyright automatically expires at the end of the duration period without the option for extension. When copyright is in effect, it provides prima facie proof of ownership , granting exclusive rights for reproduction and distribution of the copyrighted work.

Emerging Trends in Copyright

In the intellectual property landscape, China is witnessing significant shifts in copyright law attributed to technology and globalization. These developments shape how copyright is regulated and enforced, with implications for various media and creative works.

1. Technological Advancements and Copyright

Copyright in China is rapidly adapting to technological progress. Two areas of considerable importance are audiovisual works and multimedia works . The integration of new technologies has necessitated the introduction of novel copyright practices. For instance, with the proliferation of digital media, the new copyright law seeks to address the challenges presented by the Internet and digital distribution channels.

• Expedited examination of copyright applications is another emerging trend, offering a faster route for creators to protect their intellectual property in the fast-paced digital environment.
• Specifically, artwork and printed matter have become more accessible in digital formats, which requires a more dynamic approach to copyright management and protection.

2. Future of Copyright in a Global Economy

In a globalized economy, copyright law in China is not just a domestic issue but affects international relations and trade. Chinese copyright law is evolving to reflect a global perspective, ensuring domestic legislation aligns with international copyright standards.

• Incorporating international norms has led to the restructuring of copyright frameworks to protect both local and global stakeholders better.
• The impact on expedited examination and the protection of audiovisual and multimedia works, in particular,  demonstrates China’s commitment to bolstering copyright as an economic tool in the global market.

The current trajectory suggests that China will continue to reform its copyright practices to support innovation while upholding the rights of creators domestically and abroad.

Protect Your Copyright in China 

For any international enterprise carrying out business in China it is crucial to check that your intellectual property is protected from competitors or fraud. To make sure your intellectual property receives full protection in China, consider seeking out professional advice from China expansion specialists like MSA . We can take you through the steps involved in protecting your China IP. 

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Copyright Protection in China: A Guide

Table of Contents

Introduction

Are you planning to do business in China or use your creative works within the country? Understanding copyright protection in China is crucial for safeguarding your intellectual property rights. This comprehensive guide will walk you through the essentials of copyright protection in China, including the legal framework, registration process, enforcement, and practical tips to help you secure your rights.

Understanding Copyright in China

Defining copyright.

Copyright is a form of intellectual property right that grants creators exclusive control over the use, reproduction, and distribution of their original works. In China, copyright protection is mainly governed by the Copyright Law, which adheres to international treaties such as the Berne Convention and the TRIPS Agreement.

Copyrightable Works

Copyright protects a wide range of creative works, including:

• Literary works
• Artistic works
• Musical compositions
• Films and audiovisual works
• Architectural designs
• Computer software

However, copyright does not cover ideas, concepts, or mere facts.

Copyright Owner Rights

In China, copyright owners have the exclusive right to:

• Reproduce their works
• Distribute their works
• Create derivative works
• Display or perform their works publicly
• Communicate their works through information networks.

Chinese Copyright Law

Legal framework.

The copyright law of the People’s Republic of China is the primary legislation governing copyright in China. The law was first enacted in 1990 and has undergone several revisions. This legal framework, along with various regulations, guidelines, and judicial interpretations, forms the basis for copyright protection in China.

Duration of Copyright

In China, copyright protection generally lasts for the life of the author plus 50 years, calculated from the end of the calendar year in which the author dies. For works of joint authorship, the term is calculated from the end of the year when the last surviving author dies.

Registering Copyright in China

Benefits of registration.

Although copyright protection is automatic upon the creation of an original work, registering your copyright with the Copyright Protection Centre of China (CPCC) has several benefits:

• Provides prima facie evidence of ownership
• Helps in enforcing your rights against infringers
• Facilitates licensing and commercialization

Registration Process

To register your copyright in China, you need to:

• Prepare the required documentation, including a copy of the work, proof of identity, and a power of attorney (for foreign applicants)
• Complete the application form with details about the work, author, and copyright owner.
• Pay the registration fee.
• Submit the application and documents to the CPCC.

The CPCC will examine your application and, if approved, issue a copyright registration certificate.

Enforcement of Copyright in China

Administrative enforcement.

You can seek administrative enforcement through local copyright bureaus in copyright infringement cases. These bureaus have the authority to investigate, order the cessation of infringement, confiscate illegal gains, and impose fines on infringers. Administrative enforcement is usually faster and less costly than civil litigation.

Civil Litigation

If you wish to pursue compensation for copyright infringement, you can initiate a civil lawsuit in a Chinese court. The court may order the infringer to pay damages, issue an injunction, or destroy infringing copies. Civil litigation can be time-consuming and expensive, but it can yield higher compensation and more substantial deterrent effects.

Criminal Enforcement

In cases of severe copyright infringement, criminal charges can be brought against the infringer. Criminal enforcement is typically reserved for large-scale breaches or significant financial losses. Penalties for criminal copyright infringement may include imprisonment, fines, and confiscation of illegal gains.

Challenges in Copyright Protection

Despite the legal framework and enforcement mechanisms in place, copyright protection in China faces several challenges:

• Widespread infringement and piracy
• Inadequate public awareness of intellectual property rights
• Difficulty in gathering evidence of infringement
• Limited resources and expertise among enforcement authorities

Tips for Protecting Your Copyright in China

• Register your copyright with the CPCC for more substantial evidence of ownership
• Implement technological protection measures, such as digital rights management
• Monitor the market for potential infringement and take swift action against infringers
• Educate your employees, partners, and customers about the importance of respecting intellectual property rights
• Seek professional advice from intellectual property attorneys or consultants

Navigating the world of copyright protection in China can be complex, but understanding the legal framework, registration process, and enforcement mechanisms is essential to safeguarding your intellectual property rights. By following the tips provided in this guide and seeking professional advice, you can better protect your creative works and ensure a more secure footing for your business in China.

Frequently Asked Questions

1. Is copyright registration mandatory in China?

Copyright registration is not mandatory; protection is automatic upon creating original work. However, registering your copyright provides prima facie evidence of ownership and can assist in enforcement actions.

2. Can foreigners register copyright in China?

Yes, foreigners can register a copyright in China. The registration process is similar for both domestic and foreign applicants, but foreign applicants need to provide a power of attorney.

3. How long does it take to register a copyright in China?

The copyright registration process in China typically takes three to six months, depending on the complexity of the application and the workload of the CPCC.

4. Can I enforce my foreign copyright in China?

China is a member of the Berne Convention and the TRIPS Agreement, which means that foreign works are protected in China under these international treaties. However, enforcement actions must be carried out according to Chinese laws and procedures.

5. What are the penalties for copyright infringement in China?

Penalties for copyright infringement in China vary depending on the enforcement method chosen. Administrative enforcement can result in the cessation of infringement, confiscation of illegal gains, and fines. Civil litigation can lead to compensation for damages, injunctions, and destruction of infringing copies. Criminal enforcement may result in imprisonment, fines, and confiscation of illegal gains.

Contact us  if you need help with background investigation of Chinese companies, protecting patents, copyright, trademarks, verification of contracts to the law in China, or help with other legal challenges that you have in China.

If you require our assistance or have further questions about our services, please do not hesitate to contact our Customer Relationship Manager, Jan Erik Christensen, at  [email protected] . We look forward to hearing from you and helping your business succeed in China.

Contact us if you need help with drafting of contracts that follows Chinese laws and are enforceable in China, background investigation of Chinese companies, protecting patents, trademarks, verification of contracts to the law in China, or help with other legal challenges that you have in China.

If you require our assistance or have further questions about our services, please do not hesitate to contact our Customer Relationship Managers Jan Erik Christensen, at [email protected]  . We look forward to hearing from you and helping your business succeed in China.

This article is provided for informational purposes only and is not intended to replace professional legal counsel. The information contained herein does not constitute legal advice and should not be relied upon as such. Reading this article does not establish an attorney-client relationship between the reader and the author or the author’s organization. Our website aim to provide general information for educational and communication purposes.

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ENGLISH.GOV.CN

THE STATE COUNCIL

THE PEOPLE'S REPUBLIC OF CHINA

• INSTITUTIONS

Copyright Law of the People’s Republic of China (2010 Amendment)

(Adopted at the Fifteenth Session of the Standing Committee of the Seventh National People’s Congress on September 7, 1990 and amended for the first time in accordance with the Decision of the 24th Session of the Standing Committee of the Ninth National People’s Congress Concerning Amendment to the Copyright Law of the People’s Republic of China on October 27, 2001; and amended for the second time in accordance with the Decision of the 13th Session of the Standing Committee of the Eleventh National People’s Congress Concerning Amendment to the Copyright Law of the People’s Republic of China on February 26, 2010)

Chapter I General Provisions

Chapter II Copyright

Section 1 Copyright Owners and Their Rights

Section 2 Ownership of Copyright

Section 3 Term of Protection

Section 4 Limitations on Rights

Chapter III Contracts of Copyright Licensing and Contracts of Copyright Transfer

Chapter IV Publication, Performance, Sound Recording, Video Recording and Broadcasting

Section 1 Publication of Books, Newspapers and Periodicals

Section 2 Performance

Section 3 Sound Recording and Video Recording

Section 4 Broadcasting by A Radio Station or Television Station

Chapter V Legal Liabilities and Law Enforcement Measures

Chapter VI Supplementary Provisions

Article 1 This Law is enacted, in accordance with the Constitution for the purposes of protecting the copyright of authors in their literary, artistic and scientific works and rights related to copyright, of encouraging the creation and dissemination of works which would contribute to the construction of socialist spiritual and material civilization, and of promoting the development and flourishing of socialist culture and sciences.

Article 2 Works of Chinese citizens, legal entities or other organizations, whether published or not, shall enjoy copyright in accordance with this Law.

Any work of a foreigner or stateless person which enjoys copyright under an agreement concluded between the country to which the author belongs or in which the author permanently resides and China, or under an international treaty to which both countries are parties, shall be protected by this Law.

Any work of a foreigner or stateless person published for the first time and within the territory of China shall enjoy copyright in accordance with this Law.

Any work of an author from a country not having concluded an agreement with China or entered into an international treaty jointly with China or of a stateless person, which is published for the first time in a country as a member of the international treaty into which China has entered or published in a member country and non- member country at the same time, shall be protected by this Law.

Article 3 “Works” mentioned in this Law shall include works of literature, art, natural science, social science, engineering technology and the like made in the following forms:

(1)written works;

(2)oral works;

(3)musical, dramatic, quyi, choreographic and acrobatic art works;

(4)works of fine art and architecture

(5)photographic works;

(6)cinematographic works and works created in a way similar to cinematography

(7)drawings of engineering designs and product designs, maps, sketches and other graphic works as well as model works;

(8)computer software;

(9)other works as provided in laws and administrative regulations.

Article 4 Copyright owners, in exercising their copyright, shall not violate the Constitution or laws or infringe upon the public interests. The publication and dissemination of works shall be subject to the administration and supervision of the State.

Article 5 This Law shall not be applicable to:

(1)laws, regulations, resolutions, decisions and orders of state organs; other documents of legislative, administrative or judicial nature; and their official translations;

(2)news on current affairs;

(3)calendars, numerical tables, forms of general use and formulas.

Article 6 Regulations for the protection of copyright in expressions of folklore shall be separately established by the State Council.

Article 7 The copyright administration department under the State Council shall be responsible for the nationwide administration of copyright. The copyright administration department of the people’s government of each province, autonomous region or municipality directly under the Central Government shall be responsible for the administration of copyright within its own jurisdiction.

Article 8 Copyright owners and the obligees related to copyright may authorize a collective management organization of copyright to exercise the copyright or the rights related to copyright. The collective management organization of copyright may, after being authorized, claim rights in its own name for the copyright owners and the obligees related to copyright, and may, as a party concerned, participate in the litigation and arbitration activities involved with copyright or the rights related to copyright.

A collective management organization of copyright shall be a non-profit organization, and the method of its establishment, its rights and obligations, the collection and distribution of the royalty for copyright licensing, as well as the supervision and management over it shall be separately provided by the State Council.

Article 9 “Copyright owners” shall include:

(1)authors;

(2)other citizens, legal entities and organizations enjoying copyright in accordance with this Law.

Article 10 “Copyright” shall include the following personal rights and property rights:

(1)the right of publication, that is, the right to decide whether to male a work available to the public;

(2)the right of authorship, that is, the right to claim authorship and to have the author’s name mentioned in connection with the work;

(3)the right of alteration, that is, the right to alter or authorize others to alter one’s work;

(4)the right of integrity, that is, the right to protect one’s work against distortion and mutilation;

(5)the right of reproduction, that is, the right to produce one or more copies of the work by means of printing, Xeroxing, rubbing, sound recording, video recording, duplicating, or re-shooting, etc.;

(6)the right of distribution, that is, the right to provide the public with original copies or reproduced copies of works by means of selling or donating;

(7)the right of lease, that is, the right to nongratuitously permit others to temporarily exploit a cinematographic work, a work created in a way similar to cinematography or computer software, unless the computer software is not the main object under the lease;

(8)the right of exhibition, that is, the right to publicly display the original copies or reproduced copies of works of fine art and cinematographic works;

(9)the right of performance, that is, the right to publicly perform works, and to publicly transmit the performance of works by various means;

(10)the right of projection, that is, the right to make, by such technical equipment as projector, episcope, etc., the works of fine art, photographic works, cinematographic works and works created in a way similar to cinematography, etc. reappear publicly;

(11)the right of broadcasting, that is, the right to publicly broadcast or disseminate works by wireless means, to disseminate broadcast works to the public by wired dissemination or rebroadcast, and to disseminate broadcast works to the public by audio amplifier or other similar instruments for transmission of signs, sounds or images;

(12)the right of information network dissemination, that is, the right to provide the public with works by wired or wireless means, so as to make the public able to respectively obtain the works at the individually selected time and place;

(13)the right of production, that is, the right to fix works on the carrier by cinematography or in a way similar to cinematography;

(14)the right of adaptation, that is, the right to modify a work for the purpose of creating a new work of original creation;

(15)the right of translation, that is, the right to transform the language of a work into another language;

(16)the right of compilation, that is, the right to choose or edit some works or fragments of works so as to form a new work;

(17)other rights which shall be enjoyed by the copyright owners.

A copyright owner may permit others to exercise the rights provided in Items (5) through (17) of the preceding paragraph, and may receive remuneration as agreed upon in the contract or in accordance with the relevant provisions in this Law.

A copyright owner may wholly or partially transfer the rights provided in Items (5) through (17) of Paragraph 1 of this article , and may receive remuneration as agreed upon in the contract or in accordance with the relevant provisions in this Law.

Article 11 Except otherwise provided in this Law, the copyright in a work shall belong to its author.

The author of a work is the citizen who has created the work.

Where a work is created according to the intention and under the supervision and responsibility of a legal entity or another organization, such legal entity or organization shall be the author of the work.

The citizen, legal entity or organization whose name is affixed to a work shall, without the contrary proof, be the author of the work.

Article 12 Where a work is created by adaptation, translation, annotation or arrangement of a pre-existing work, the copyright in the work thus created shall be enjoyed by the adapter, translator, annotator or arranger, provided that the copyright in the original work is not infringed upon.

Article 13 Where a work is created jointly by two or more co-authors, the copyright in the work shall be enjoyed jointly by those co-authors. Co-authorship may not be claimed by anyone who has not participated in the creation of the work.

If a work of joint authorship can be separated into independent parts and exploited separately, each co-author shall be entitled to independent copyright in the parts that he has created, provided that the exercise of such copyright does not infringe upon the copyright in the joint work as a whole.

Article 14 A work created by compilation shall refer to the work which is compiled of some works, fragments of works or the data or other materials not constituting a work, and the choice or layout of the contents of which embodies the original creation. The copyright of the compilation work shall be enjoyed by the compiler, provided that the exercise of such copyright does not infringe upon the copyright of the pre-existing works included in the compilation.

Article 15 The copyright of a cinematographic work or a work created in a way similar to cinematography shall be enjoyed by the producer, while any of the playwright, director, cameraman, words-writer, composer and other authors of the work shall enjoy the right of authorship, and shall be entitled to obtain remuneration as agreed upon in the contract between him and the producer.

The authors of the screenplay, musical works and other works that are included in a cinematographic work or a work created in a way similar to cinematography and can be exploited separately shall be entitled to exercise their copyright independently.

Article 16 A work created by a citizen when fulfilling the tasks assigned to him by a legal entity or another organization shall be deemed to be a service work. Unless otherwise provided in Paragraph 2 of this article , the copyright of such a work shall be enjoyed by the author, but the legal entity or organization shall have a priority right to exploit the work within the scope of its professional activities. During the two years after the completion of the work, the author shall not, without the consent of the legal entity or organization, authorize a third party to exploit the work in the same way as the legal entity or organization does.

In the following cases the author of a service work shall enjoy the right of authorship, while the legal entity or organization shall enjoy other rights included in the copyright and may reward the author:

(1)drawings of engineering designs and product designs, maps, computer software and other service works, which are created mainly with the materials and technical resources of the legal entity or organization and under its responsibility;

(2)service works of which the copyright is, in accordance with the laws or administrative regulations or as agreed upon in the contract, enjoyed by the legal entity or organization.

Article 17 The ownership of copyright in a commissioned work shall be agreed upon in a contract between the commissioning and the commissioned parties. In the absence of such a contract or of an explicit agreement in the contract, the copyright in such a work shall belong to the commissioned party.

Article 18 The transfer of ownership of the original copy of a work of fine art or another work shall not be deemed to include the transfer of the copyright in such a work, however, the right to exhibit the original copy of a work of fine art shall be enjoyed by the owner of such original copy.

Article 19 Where the copyright of a work belongs to a citizen, his rights in respect of the work as provided in Items (5) through (17) of Paragraph 1 of article 10 of this Law shall, after his death, during the term of protection provided in this Law, be transferred in accordance with the Inheritance Law.

Where the copyright of a work belongs to a legal entity or another organization, its rights in respect of the work as provided in Items (5) through (17) of Paragraph 1 of article 10 of this Law shall, after the change or the termination of the status of the legal entity or organization, during the term of protection provided in this Law, be enjoyed by the succeeding legal entity or organization which has taken over the rights and obligations of the previous legal entity or organization, or, in the absence of such succeeding legal entity or organization, by the State.

Article 20 The rights of authorship, alteration and integrity of an author shall be unlimited in time.

Article 21 In respect of a work of a citizen, the term of protection of the right of publication and of the rights provided in Items (5) through (17) of Paragraph 1 of article 10 of this Law shall be the lifetime of the author and fifty years after his death, expiring on December 31 of the fiftieth year after his death. In the case of a work of joint authorship, such term shall expire on December 31 of the fiftieth year after the death of the last surviving author.

The term of protection of the right of publication and of the rights provided in Items (5) through (17) of Paragraph 1 of article 10 of this Law where the copyright belongs to a legal entity or another organization, or in respect of a service work where the legal entity or organization enjoys the copyright (except the right of authorship), shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such a work, however, any such work that has not been published within fifty years after the completion of its creation shall no longer be protected by this Law.

The term of protection of the right of publication and of the rights provided in Items (5) through (17) of Paragraph 1 of article 10 of this Law in respect of a cinematographic work or a work created in a way similar to cinematography shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such a work, however, any such work that has not been published within fifty years after the completion of its creation shall no longer be protected by this Law.

Article 22 In the following cases, a work may be exploited without the permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work are mentioned and the other rights enjoyed by the copyright owner by virtue of this Law are not infringed upon:

(1)use of a published work for the purposes of the user’s own private study, research or self-entertainment;

(2)appropriate quotation from a published work in one’s own work for the purposes of introduction of, or comment on, a work, or demonstration of a point;

(3)inevitable reappearance or citation of a published work in newspapers, periodicals, radio stations, television stations or other media for the purpose of reporting current events;

(4)reprinting by newspapers or periodicals or other media, or rebroadcasting by radio stations or television stations or other media, of the current event article s on the issues of politics, economy and religion, which have been published by other newspapers, periodicals, radio stations or television stations or other media, except where the author has declared that publication or broadcasting is not permitted;

(5)publication in newspapers or periodicals or other media, or broadcasting by radio stations or television stations or other media, of a speech delivered at a public assembly, except where the author has declared that publication or broadcasting is not permitted;

(6)translation or reproduction, in a small quality of copies, of a published work for use by teachers or scientific researchers in classroom teaching or scientific research, provided that the translation or reproduction is not published or distributed;

(7)use of a published work by a State organ within the reasonable scope for the purpose of fulfilling its official duties;

(8)reproduction of a work in its collections by a library, archive, memorial hall, museum, art gallery or similar institution, for the purpose of the display or preservation of a copy of the work;

(9)free of charge performance of a published work, that is, with respect to the performance, neither fees are charged from the public nor the remuneration is paid to the performers;

(10)copying, drawing, photographing, or video recording of an artistic work located or on display in an outdoor public place;

(11)translation of a work published by a Chinese citizen, legal entity or organization, which is created in the Han language (Chinese), into a minority nationality language for publication and distribution within the country;

(12)translation of a published work into Braille and publication of the work so translated;

The provisions in the preceding paragraph shall be applicable to the limitations on the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations.

Article 23 Anyone who compiles or publishes textbooks for the purpose of implementing the nine-year compulsory education or State education planning may, without the permission from the copyright owner, except that the author has declared in advance that the exploitation is not permitted, compile published fragments of works, short written works or musical works, a single work of fine art, or photographic works into the textbooks, however, he shall pay the remuneration as provided, mention the name of the author and the title of the work, and shall not infringe upon other rights which the copyright owner shall enjoy in accordance with this Law.

Article 24 Anyone who exploits a work created by another shall conclude a contract of licensing with the copyright owner, unless it is provided in this Law that the exploitation need not be licensed.

A contract of licensing shall include the following main contents:

(1)the variety of the right to exploit the work covered by the license;

(2)the exclusive or non-exclusive nature of the right to exploit the work covered by the license;

(3)the territorial scope and term of the license;

(4)the amount of the remuneration and the method of its payment;

(5)the breach liability;

(6)any other contents that both parties consider necessary.

Article 25 Anyone who transfers any of the rights provided in Items (5) through (17) of Paragraph 1 of article 10 of this Law shall conclude a written contract with the transferee.

A contract of copyright transfer shall include the following main contents:

(1)the name of the work;

(2)the variety and territorial scope of the transferred right;

(3)the transfer price;

(4)the date and method of the delivery of the transfer price;

Article 26 In case of pledge of copyright, the pledger and the pledgee shall go through registration of the pledge with the copyright administration under the State Council.

Article 27 The licensee or the transferee shall not, without the consent of the copyright owner, exercise any right that the copyright owner has not expressly licensed or transferred in the contract.

Article 28 The standards of remuneration for the exploitation of a work may be either agreed upon by the parties concerned or be made by the copyright administration department under the State Council in collaboration with other departments concerned. Where the parties concerned fail to reach a clear agreement, the remuneration shall be paid in accordance with the standards of remuneration made by the copyright administration department under the State Council in collaboration with other departments concerned.

Article 29 Publishers, performers, producers of sound recordings and video recordings, radio stations, television stations and other entities who or which exploit the works of others pursuant to this Law shall not infringe upon the author’s rights of authorship, alteration or integrity, or their right to remuneration.

Article 30 A book publisher who publishes a book shall conclude a publishing contract with, and pay remuneration to, the copyright owner.

Article 31 With respect to a work delivered to a book publisher by the copyright owner for publication, the exclusive right to publish the work enjoyed by the book publisher as agreed upon in the contract shall be protected by law, and the work may not be published by others.

Article 32 The copyright owner shall deliver the work within the term agreed upon in the contract. The book publisher shall publish the work in accordance with the quality requirements and within the term agreed upon in the contract.

The book publisher shall bear the civil liability provided in article 53 of this Law if he fails to publish the work within the term agreed upon in the contract.

The book publisher shall notify, and pay remuneration to, the copyright owner when the work is to be reprinted or republished. If the publisher refuses to reprint or republish the work when stocks of the book are exhausted, the copyright owner shall have the right to terminate the contract.

Article 33 Where a copyright owner has submitted the manuscript of his work to a newspaper or a periodical publisher for publication and has not received any notification of the said publisher’s decision to publish the work, within fifteen days from the newspaper publisher or within thirty days from the periodical publisher, counted from the date of submission of the manuscript, the copyright owner may submit the manuscript of the same work to another newspaper or periodical publisher for publication, unless the two parties have agreed otherwise.

Except where the copyright owner has declared that reprinting or excerpting is not permitted, other newspaper or periodical publishers may, after the publication of the work by a newspaper or periodical, reprint the work or print an abstract of it or print it as reference material, but such other publishers shall pay remuneration to the copyright owner as provided in regulations.

Article 34 A book publisher may alter or abridge a work with the permission from the copyright owner.

A newspaper or periodical publisher may make editorial modifications and abridgments in a work, but shall not make modifications in the content of the work unless permission has been obtained from the author.

Article 35 When publishing works created by adaptation, translation, annotation, arrangement or compilation of pre-existing works, the publisher shall obtain permission from and pay remuneration to both the owners of the copyright in the works created by means of adaptation, translation, annotation, arrangement or compilation, and the owners of the copyright in the original work.

Article 36 A publisher shall be entitled to permit others to exploit the format design of a published book or periodical of his or prohibit others from doing so.

The term of protection of the right provided in the preceding paragraph shall be ten years, expiring on December 31 of the tenth year after the first publication of the book or periodical that uses such a format.

Article 37 A performer (an individual performer or a performing group) who for a performance exploits a work created by another shall obtain permission from and pay remuneration to the copyright owner. A performance organizer who organizes a performance shall obtain permission from and pay remuneration to the copyright owner.

A performer who for a performance exploits a work created by adaptation, translation, annotation or arrangement of a pre-existing work shall obtain permission from and pay remuneration to both the owner of the copyright in the work created by adaptation, translation, annotation or arrangement and the owner of the copyright in the original work.

Article 38 A performer shall, in relation to his performance, enjoy the rights:

(1)to show his/her identity;

(2)to protect the character in his performance from distortion;

(3)to authorize others to make live broadcasts or to publicly transmit his live performance, and to receive remuneration for it;

(4)to authorize others to make sound recordings and video recordings, and to receive remuneration for it.

(5)to permit others to reproduce and distribute the sound recordings or video recordings which record his performance, and to receive remuneration for it;

(6)to permit others to disseminate his performance to the public through information network, and to receive remuneration for it.

Anyone who is permitted to exploit the works in the ways provided in Items (3) through (6) of the preceding paragraph shall also obtain permission from and pay remuneration to the copyright owner.

Article 39 The term of protection of the rights provided in Items (1) and (2) of Paragraph 1 of article 37 of this Law shall not be limited.

The term of protection of the rights provided in Items (3) through (6) of Paragraph 1 of article 37 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the performance is made.

Article 40 A producer of sound recordings or video recordings who, for the production of a sound recording or video recording, exploits a work created by another, shall obtain permission from and pay remuneration to the copyright owner.

A producer of sound recordings or video recordings who exploits a work created by adaptation, translation, annotation or arrangement of a pre-existing work shall obtain permission from and pay remuneration to both the owner of the copyright in the work created by adaptation, translation, annotation or arrangement and the owner of copyright in the original work.

A producer of a sound recording who, for the production of a sound recording, exploits a musical work which has been lawfully recorded as a sound recording by another, does not need to obtain permission from, but shall, as provided in regulations, pay remuneration to the copyright owner; such work shall not be exploited where the copyright owner has declared that such exploitation is not permitted.

Article 41 When producing a sound recording or video recording, the producer shall conclude a contract with, and pay remuneration to, the performers.

Article 42 A producer of sound recordings or video recordings shall have the right to permit others to reproduce, distribute, lease and disseminate to the public through information network such sound recordings or video recordings and shall have the right to receive remuneration for it. The term of protection of such rights shall be fifty years, expiring on December 31 of the fiftieth year after the production of the recording is firstly completed.

A producer of sound recordings or video recordings who is permitted to reproduce, distribute, lease or disseminate to the public through information network a sound recording or video recording shall obtain permission from and also pay remuneration to both the copyright owner and the performer.

Article 43 A radio station or television station that broadcasts an unpublished work created by another shall obtain permission from and pay remuneration to the copyright owner.

A radio station or television station that broadcasts a published work created by another does not need to obtain permission from, but shall pay remuneration to the copyright owner.

Article 44 A radio station or television station that broadcasts a published sound recording does not need to obtain permission from, but shall pay remuneration to the copyright owner, unless the parties concerned have agreed otherwise. The specific measures shall be provided by the State Council.

Article 45 A radio station or television station is entitled to prohibit the following acts which it has not permitted:

(1)rebroadcasting the radio or television which it has broadcasted;

(2)recording the radio or television which it has broadcasted in the audio or video carrier and to reproduce the audio or video carrier.

The term of protection of the rights provided in the preceding paragraph shall be fifty years, expiring on December 31 of the fiftieth year after the first broadcasting of the radio or television.

Article 46 A television station that broadcasts another’s cinematographic work, work created in a way similar to cinematography or videographic work shall obtain permission from and pay remuneration to the producer. A television station that broadcasts another’s videographic work shall also obtain permission from and pay remuneration to the copyright owner.

Article 47 He who commits any of the following acts of infringement shall bear the civil liability for such remedies as ceasing the infringing act, eliminating the effects of the act, making a public apology or paying compensation for damages, depending on the circumstances:

(1)publishing a work without the permission from the copyright owner;

(2)publishing a work of joint authorship as a work created solely by oneself, without the permission from the other co-authors;

(3)having his name mentioned in connection with a work created by another, in order to seek personal fame and gain, where he has not taken part in the creation of the work;

(4)distorting a work created by another;

(5)plagiarizing the works of others;

(6)exploiting a work by means of exhibition, making cinematographic productions or a means similar to making cinematographic productions, or by means of adaptation, translation, annotation, etc. without the permission from the copyright owner, unless otherwise provided in this Law;

(7)exploiting a work of another without paying the remuneration;

(8)without the permission from the copyright owner or obligee related to the copyright of a cinematographic work or a work created in a way similar to cinematography, computer software, sound recordings or video recordings, leasing his work or sound recordings or video recordings, except where otherwise provided in this Law;

(9)without the permission from a publisher, exploiting the format design of his published book or periodical;

(10)without the permission from the performer, broadcasting or publicly transmitting his live performance or recording his performance;

(11)committing other acts of infringement upon copyright and upon other rights related to copyright.

Article 48 He who commits any of the following acts of infringement shall bear the civil liability for such remedies as ceasing the infringements, eliminating the effects of the act, making a public apology or paying compensation for damages, depending on the circumstances; where he damages public interests at the same time, the copyright administration department may order him to cease the act of tort, may confiscate his illegal gains, confiscate and destroy the reproductions of infringement, and impose a fine on him; if the case is serious, the copyright administration department may also confiscate the materials, instruments and equipment, etc. mainly used to make the reproductions of infringement; where his act has constituted a crime, he shall be investigated for criminal liabilities in accordance with the law:

(1)without the permission from the copyright owner, reproducing, distributing, performing, projecting, broadcasting, compiling, disseminating to the public through information network his works, except where otherwise provided in this Law;

(2)publishing a book where the exclusive right of publication belongs to another;

(3)without the permission from a performer, reproducing, distributing the sound recordings or video recordings of his performance, or disseminating his performance to the public through information network, except where otherwise provided in this Law;

(4)without the permission from a producer of sound recordings and video recordings, reproducing, distributing, disseminating to the public through information network the sound recordings or video recordings produced by him, except where otherwise provided in this Law;

(5)without the permission, broadcasting or reproducing the radio or television, except where otherwise provided in this Law;

(6)without the permission from the copyright owner or obligee related to the copyright, intentionally avoiding or destroying the technical measures taken by the obligee on his works, sound recordings or video recordings, etc. to protect the copyright or the rights related to the copyright, except where otherwise provided in laws or administrative regulations;

(7)without the permission from the copyright owner or obligee related to the copyright, intentionally deleting or altering the electronic information on the management of the rights on the works, sound recordings or video recordings, except where otherwise provided in laws or administrative regulations;

(8)producing or selling a work where the signature of another is counterfeited.

Article 49 The infringer shall, when having infringed upon the copyright or the rights related to copyright, make a compensation on the basis of the obligee’s actual losses; where the actual losses are difficult to be calculated, the compensation may be made on the basis of the infringer’s illegal gains. The amount of compensation shall also include the reasonable expenses paid by the obligee for stopping the act of tort.

Where the obligee’s actual losses or the infringer’s illegal gains cannot be determined, the people’s court shall, on the basis of the seriousness of the act of tort, adjudicate a compensation of 500,000 Yuan or less.

Article 50 Where a copyright owner or obligee related to copyright has evidence to prove that another is committing or is going to commit an act infringing upon his right, and that his lawful rights and interests will suffer the damage which is difficult to be remedied if he does not stop it in time, he may, before bringing a lawsuit, apply to the people’s court for an order to cease the relevant acts or for property preservation.

The people’s court shall handle the application in the preceding paragraph in accordance with article 93 through article 96 and article 99 of the Civil Procedure Law of the People’s Republic of China.

Article 51 For the purpose of stopping the acts of tort, a copyright owner or an obligee related to copyright may, under circumstances that the evidence may be destroyed or lost or difficult to obtain later on, apply to the people’s court for the evidence to be preserved.

The people’s court must, after receiving the application, make an order within 48 hours; if the preservation is granted by an order, its implementation shall start immediately.

The people’s court may order the applicant to provide a surety; if the applicant fails to do so, his application shall be rejected.

If the applicant fails to bring a lawsuit within 15 days after the people’s court has adopted the preservation measures, the people’s court shall cancel the property preservation.

Article 52 The people’s court may, when trying the cases of infringing upon copyright or the rights related to copyright, confiscate the illegal gains, the reproductions of infringement and the properties used for committing illegal acts.

Article 53 Where a publisher or producer of reproductions is unable to prove the lawful authorization of his publication or production, or the distributor of the reproductions or the lessor of the reproductions of a cinematographic work or a work created in a way similar to cinematography, computer software, sound recordings or video recordings is unable to prove the lawful sources of his distribution or lease of the reproductions, he shall bear the legal liabilities.

Article 54 Where a party concerned does not implement his contractual obligations or his implementation of the contractual obligations does not conform to the stipulated requirements, he shall bear the civil liabilities in accordance with the General Principles of the Civil Law of the People’s Republic of China, the Contract Law of the People’s Republic of China and other laws.

Article 55 A dispute over copyright may be settled by mediation or be submitted for arbitration to a copyright arbitration institution under a written arbitration agreement concluded between the parties concerned, or under the arbitration clause in the copyright contract.

Any party may bring a lawsuit directly to the people’s court in the absence of a written arbitration agreement or an arbitration clause in the copyright contract.

Article 56 Any party who objects to an administrative penalty may bring a lawsuit to the people’s court within three months as of the date when it received the written decision on the penalty. If a party neither bring a lawsuit nor implements the decision within the above time limit, the copyright administration department concerned may apply to the people’s court for enforcement.

Article 57 The term “author’s right” shall have the same meaning as “copyright” in this Law.

Article 58 The term “publication” mentioned in article 2 of this Law shall refer to reproduction and distribution of works.

Article 59 Regulations for the protection of computer software and of the right of information network dissemination shall be established separately by the State Council.

Article 60 The rights of copyright owners, publishers, performers, producers of sound recordings and video recordings, radio stations and television stations as provided in this Law, of which the term of protection specified in this Law has not yet expired on the date of this Law’s entry into force, shall be protected in accordance with this Law.

Any infringements upon copyright and the rights related to copyright or breaches of contract committed prior to the entry into force of this Law shall be dealt with under the relevant regulations or policies in force at the time when the infringement was committed.

Article 61 This Law shall enter into force on June 1, 1991.

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Copyright Law of the People's Republic of China (2001)

Adopted at the Fifteenth Session of the Standing Committee of the Seventh National People's Congress on 7 September 1990, and revised in accordance with the Decision on the Amendment of the Copyright Law of the People's Republic of China adopted at the 24th Session of the Standing Committee of the Ninth National People's Congress on 27 October 2001.

• 1 Chapter I General Provisions
• 2.1 Section 1 Copyright Owners and Their Right
• 2.2 Section 2 Ownership of Copyright
• 2.3 Section 3 Term of Protection for Rights
• 2.4 Section 4 Limitations on Rights
• 3 Chapter III Copyright Licensing and Assignment Contracts
• 4.1 Section 1 Publication of Books, Newspapers and Periodicals
• 4.2 Section 2 Performance
• 4.3 Section 3 Sound Recordings and Video Recordings
• 4.4 Section 4 Broadcasting by Radio Stations or Television Stations
• 5 Chapter V Legal Liabilities and Enforcement Measures
• 6 Chapter Vl Supplementary Provisions

Chapter I General Provisions

Article 1 This Law is enacted, in accordance with the Constitution, for the purposes of protecting the copyright of authors in their literary, artistic and scientific works and the copyright-related rights and interests, of encouraging the creation and dissemination of works which would contribute to the construction of socialist spiritual and material civilization, and of promoting the development and prosperity of the socialist culture and science.

Article 2 Works of Chinese citizens, legal entities or other organizations, whether published or not, shall enjoy copyright in accordance with this Law.

• Any work of a foreigner or stateless person which is eligible to enjoy copyright under an agreement concluded between the country to which the foreigner belongs or in which he has habitual residence and China, or under an international treaty to which both countries are party, shall be protected in accordance with this Law.
• Works of foreigners or stateless persons first published in the territory of the People's Republic of China shall enjoy copyright in accordance with this Law.
• Any work of a foreigner who belongs to a country which has not concluded an agreement with China, or which is not a party to an international treaty with China or a stateless person first published in an country which is a party to an international treaty with China, or in such a member state or nonmember state, shall be protected in accordance with this Law.

Article 3 For the purposes of this Law, the term "works" includes works of literature, art, natural science, social science, engineering technology and the like which are expressed in the following forms:

• (1) written works;
• (2) oral works;
• (3) musical, dramatic, quyi', choreographic and acrobatic works;
• (4) works of fine art and architecture;
• (5) photographic works;
• (6) cinematographic works and works created by virtue of an analogous method of film production;
• (7) drawings of engineering designs, and product designs; maps, sketches and other graphic works and model works;
• (8) computer software;
• (9) other works as provided for in laws and administrative regulations.

Article 4 Works the publication or distribution of which is prohibited by law shall not be protected by this Law.

• Copyright owners, in exercising their copyright, shall not violate the Constitution or laws or prejudice the public interests.

Article 5 This Law shall not be applicable to:

• (1) laws; regulations; resolutions, decisions and orders of State organs; other documents of a legislative, administrative or judicial nature; and their official translations;
• (2) news on current affairs; and
• (3) calendars, numerical tables and forms of general use, and formulas.

Article 6 Regulations for the protection of copyright in expressions of folklore shall be established separately by the State Council.

Article 7 The copyright administration department under the State Council shall be responsible for the nationwide administration of copyright. The copyright administration department of the People's Government of each province, autonomous region and municipality directly under the Central Government shall be responsible for the administration of copyright in its administrative region.

Article 8 The copyright owners and copyright-related right holders may authorize an organization for collective administration of copyright to exercise the copyright or any copyright-related right. After authorization, the organization for collective administration of copyright may, in its own name, claim the right for the copyright owners and copyright-related right holders, and participate, as an interested party, in litigation or arbitration relating to the copyright or copyright-related right.

• The organization for collective administration of copyright is a non-profit organization. Provisions for the mode of its establishment, rights and obligations, collection and distribution of the royalties of copyright licensing, and supervision and administration thereof shall be separately established by the State Council.

Chapter II Copyright

Section 1 copyright owners and their right.

Article 9 The term "copyright owners" shall include:

• (1) authors;
• (2) other citizens, legal entities and other organizations enjoying copyright in accordance with this Law.

Article 10 The term "copyright" shall include the following personality rights and property rights:

• (l) the right of publication, that is, the right to decide whether to make a work available to the public;
• (2) the right of authorship, that is, the right to claim authorship and to have the author's name mentioned in connection with the work;
• (3) the right of alteration, that is, the right to alter or authorize others to alter one's work;
• (4) the right of integrity, that is, the right to protect one's work against distortion and mutilation;
• (5) the right of reproduction, that is, the right to produce one or more copies of a work by printing, photocopying, lithographing, making a sound recording or video recording, duplicating a recording, or duplicating a photographic work or by any other means;
• (6) the right of distribution, that is, the right to make available to the public the original or reproductions of a work though sale or other transfer of ownership;
• (7) the right of rental, that is, the right to authorize, with payment, others to temporarily use cinematographic works, works created by virtue of an analogous method of film production, and computer software, except any computer software that is not the main subject matter of rental;
• (8) the right of exhibition, that is, the right to publicly display the original or reproduction of a work of fine art and photography;
• (9) the right of performance, that is, the right to publicly perform a work and publicly broadcast the performance of a work by various means;
• (10) the right of showing, that is, the right to show to the public a work, of fine art, photography, cinematography and any work created by analogous methods of film production through film projectors, over-head projectors or any other technical devices;
• (11) the right of broadcast, that is, the right to publicly broadcast or communicate to the public a work by wireless means, to communicate to the public a broadcast work by wire or relay means, and to communicate to the public a broadcast work by a loudspeaker or by any other analogous tool used to transmit symbols, sounds or pictures;
• (12) the right of communication of information on networks, that is, the right to communicate to the public a work, by wire or wireless means in such a way that members of the public may access these works from a place and at a time individually chosen by them;
• (13) the right of making cinematographic work, that is, the right to fixate a work on a carrier by way of film production or by virtue of an analogous method of film production;
• (14) the right of adaptation, that is, the right to change a work to create a new work of originality;
• (15) the right of translation, that is, the right to translate a work in one language into one in another language;
• (16) the right of compilation, that is, the right to compile works or parts of works into a new work by reason of the selection or arrangement; and
• (17) any other rights a copyright owner is entitled to enjoy.
• A copyright owner may authorize another person to exercise the rights under the preceding paragraphs (5) to (17), and receive remuneration pursuant to an agreement or this Law.
• A copyright owner may assign, in part or in whole, the rights under the preceding paragraphs (5) to (17), and receive remuneration pursuant to an agreement or this Law.

Section 2 Ownership of Copyright

Article 11 Except where otherwise provided in this Law, the copyright in a work shall belong to its author.

• The author of a work is the citizen who has created the Work.
• Where a work is created according to the intention and under the supervision and responsibility of a legal entity or other organization, such legal entity or organization shall be deemed to be the author of the work.
• The citizen, legal entity or other organization whose name is mentioned in connection with a work shall, in the absence of proof to the contrary, be deemed to be the author of the work.

Article 12 Where a work is created by adaptation, translation, annotation or arrangement of a preexisting work, the copyright in the work thus created shall be enjoyed by the adapter, translator, annotator or arranger, Provided that the exercise of such copyright shall not prejudice the copyright in the original work.

Article 13 Where a work is created jointly by two or more co-authors, the copyright in the work shall be enjoyed jointly by those co-authors. Co-authorship may not be claimed by anyone who has not participated in the creation of the work.

• If a work of joint authorship can be separated into independent parts and exploited separately, each co-author shall be entitled to independent copyright in the parts that he has created, provided that the exercise of such copyright shall not prejudice the copyright in the joint work as a whole.

Article 14 A work created by compilation of several works, parts of works, data that do not constitute a work or other materials and having originality in the selection or arrangement of its contents is a work of compilation. The copyright in a work of compilation shall be enjoyed by the compiler, provided that the exercise of such copyright shall not prejudice the copyright in the preexisting works.

Article 15 The copyright in a cinematographic work and any work created by an analogous method of film production shall be enjoyed by the producer of the work, but the scriptwriter, director, cameraman, lyricist, composer, and other authors thereof shall enjoy the right of authorship in the work, and have the right to receive remuneration pursuant to the contract concluded with the producer.

• The authors of the screenplay, musical works and other works that are incorporated in a cinematographic work and work created by virtue of an analogous method of film production and can be exploited separately shall be entitled to exercise their copyright independently.

Article 16 A work created by a citizen in the fulfillment of tasks assigned to him by a legal entity or other organization shall be deemed to be a work created in the course of employment. The copyright in such work shall be enjoyed by the author, subject to the provisions of the second paragraph of this Article, provided that the legal entity or other organization shall have a priority right to exploit the work within the scope of its professional activities. During the two years after the completion of the work, the author shall not, without the consent of the legal entity or other organization, authorize a third party to exploit the work in the same way as the legal entity or other organization does.

• In any of the following cases the author of a work created in the course of employment shall enjoy the right of authorship, while the legal entity or other organization shall enjoy the other rights included in the copyright and may reward the author:
• (1) drawings of engineering designs and product designs and maps, computer software and other works created in the course of employment mainly with the material and technical resource of the legal entity or other organization and under its responsibility;
• (2) works created in the course of employment where the copyright is, in accordance with laws, administrative regulations or contracts, enjoyed by the legal entity or other organization.

Article 17 The ownership of the copyright in a commissioned work shall be agreed upon in a contract between the commissioning and the commissioned parties. In the absence of a contract or of an explicit agreement in the contract, the copyright in such a work shall belong to the commissioned party.

Article 18 The transfer of ownership of the original copy of a work of fine art, or other works, shall not be deemed to include the transfer of the copyright in such work, provided that the right to exhibit the original copy of a work of fine art shall be enjoyed by the owner of such original copy.

Article 19 Where the copyright in a work belongs to a citizen, the right of exploitation and the rights under Article 10, paragraphs (5) to (17), of this Law in respect of the work shall, after his death, during the term of protection provided for in this Law, be transferred in accordance with the provisions of the Inheritance Law.

• Where the copyright in a work belongs to a legal entity or other organization, the rights under Articles 10, paragraphs (5) to (l7), of this Law, shall, after the change or the termination of the status of the legal entity or other organization, during the term of protection provided for in this Law, be enjoyed by the succeeding legal entity or other organization which has taken over the former's rights and obligations, or, in the absence of such successor entity or other organization, by the State.

Section 3 Term of Protection for Rights

Article 20 The rights of authorship, alteration and integrity of an author shall be unlimited in time.

Article 21 The term of protection for the right of publication and the rights referred to in Article 10, paragraphs (5) to (17), of this Law in respect of a work of a citizen shall be the lifetime of the author and fifty years after his death, and expires on 31 December of the fiftieth year after the death of the author. In the case of a work of joint authorship, such term shall expire on 31 December of the fiftieth year after the death of the last surviving author.

• The term of protection for the right of publication and the rights provided for in Article 10, paragraphs (5) to (17), of this Law in respect of a work where the copyright belongs to a legal entity or other organization or in respect of a work created in the course of employment where the legal entity or other organization enjoys the copyright (except the right of authorship), shall be fifty years, and expires on 31 December of the fiftieth year after the first Publication of such work, provided that any such work that has not been published within fifty years after the completion of its creation shall no longer be protected under this Law.
• The term of protection for the right of publication or protection for the right of publication or the rights referred to in Article 10, paragraphs (5) to (17), of this Law in respect of a cinematographic work, a work created by virtue of an analogous method of film production or a photographic work shall be fifty years, and expires on 31 December of the fiftieth year after the first publication of such work, provided that any such work that has not been published within fifty years after the completion of its creation shall no longer be protected under this Law.

Section 4 Limitations on Rights

Article 22 In the following cases, a work may be exploited without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work shall be mentioned and the other rights enjoyed by the copyright owner by virtue of this Law shall not be prejudiced:

• (l) use of a published work for the purposes of the user's own private study, research or self-entertainment;
• (2) appropriate quotation from a published work in one's own work for the purposes of introduction to, or comments on, a work, or demonstration of a point;
• (3) reuse or citation, for any unavoidable reason, of a published work in newspapers, periodicals, at radio stations, television stations or any other media for the purpose of reporting current events;
• (4) reprinting by newspapers or periodicals, or rebroadcasting by radio stations, television stations, or any other media, of articles on current issues relating to politics, economics or religion published by other newspapers, periodicals, or broadcast by other radio stations, television stations or any other media except where the author has declared that the reprinting and rebroadcasting is not permitted;
• (5) publication in newspapers or periodicals, or broadcasting by radio stations, television stations or any other media, of a speech delivered at a public gathering, except where the author has declared that the publication or broadcasting is not permitted;
• (6) translation, or reproduction in a small quantity of copies, of a published work for use by teachers or scientific researchers, in classroom teaching or scientific research, provided that the translation or reproduction shall not be published or distributed;
• (7) use of a published work, within proper scope, by a State organ for the purpose of fulfilling its official duties;
• (8) reproduction of a work in its collections by a library, archive, memorial hall, museum, art gallery or any similar institution, for the purposes of the display, or preservation of a copy, of the work;
• (9) free-of-charge live performance of a published work and said performance neither collects any fees from the members of the public nor pays remuneration to the performers;
• (10) copying, drawing, photographing or video recording of an artistic work located or on display in an outdoor public place;
• (11) translation of a published work of a Chinese citizen, legal entity or any other organization from the Han language into any minority nationality language for publication and distribution within the country; and
• (12) transliteration of a published work into Braille and publication of the work so transliterated.
• The above limitations on rights shall be applicable also to the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations.

Article 23 In compiling and publishing textbooks for implementing the nine-year compulsory education and the national educational program, parts of published works, short written works, music works or single copies of works of painting or photographic works may be compiled into textbooks without the authorization from the authors, except where the authors have declared in advance the use thereof is not permitted, with remuneration paid according to the regulations, the name of the author and the title of the work indicated and without prejudice to other rights enjoyed by the copyright owners according to this Law.

Chapter III Copyright Licensing and Assignment Contracts

Article 24 Subject to provisions in this Law according to which no permission is needed, anyone who exploits a work created by others shall conclude a contract with, or otherwise obtain permission from, the copyright owner.

• A licensing contract shall include the following basic clauses:
• (l) the category of right licensed for exploitation of the work covered by the license;
• (2) the exclusive or non-exclusive nature of the right to exploit the work covered by the license;
• (3) the geographic area and term of the license;
• (4) the standard of remuneration and the method of payment;'
• (5) the liability in case of breach of the contract; and
• (6) any other matter that the contracting parties consider necessary.

Article 25 Assignment of a right referred to in Article 10, paragraphs (5) to (17), of this Law shall require conclusion of a contract in writing.

• A contract of assignment shall include the following basic clauses:
• (1) title of the work;
• (2) category and geographic area of the assigned right;
• (3) assignment price;
• (4) date and manner of payment of the assignment price;
• (5) liabilities for breach of the contract; and
• (6) any other matters that the contracting parties consider necessary.

Article 26 The other party shall not, without permission from the copyright owner, exercise any right that the copyright owner has not expressly licensed or assigned in the licensing and assignment contract.

Article 27 The standard of remuneration for the exploitation of a work may be fixed by the interested parties or may be paid according to the standard established by the copyright administration department under the State Council in collaboration with other departments concerned. Where the interested parties have not expressly fixed it, remuneration may also be paid in accordance with the standard established by the copyright administration department under the State Council in collaboration with other departments concerned.

Article 28 Publishers, performers, producers of sound recordings and video recordings, radio stations, television stations and other entities who or which have obtained, pursuant to the relevant provisions of this Law, the right to exploit the copyright of others, shall not prejudice the authors' rights of authorship, alteration or integrity, or their right to remuneration.

Chapter IV Publication, Performance, Sound Recording, Video Recording and Broadcasting

Section 1 publication of books, newspapers and periodicals.

Article 29 A book publisher who publishes a book shall conclude a publishing contract with, and pay remuneration to, the copyright owner.

Article 30 A book publisher shall have the exclusive right to publish the work delivered to him by the copyright owner for publication. The exclusive right to publish a work enjoyed by the book publisher specified in the contract shall be protected by law, and the work may not be published by others.

Article 31 The copyright owner shall deliver the work within the term specified in the contract. The book publisher shall publish the work in accordance with the quality requirements and within the term specified in the contract.

• The book publisher shall bear the civil liability specified in Article 53 of this Law if he fails to publish the work within the term specified in the contract.
• The book publisher shall notify, and pay remuneration to, the copyright owner when the work is to be reprinted or republished. If the publisher refuses to reprint or republish the work when stocks of the book are exhausted, the copyright owner shall have the right to terminate the contrast.

Article 32 Where a copyright owner has submitted the manuscript of his work to a newspaper or a periodical publisher for publication and has not received, within 15 days from the newspaper publisher or within 30 days from the periodical publisher, counted from the date of submission of the manuscript, any notification of the said publisher's decision to publish the work, the copyright owner may submit the manuscript of the same work to another newspaper or periodical publisher for publication, unless the two parties have agreed otherwise.

• Except where the copyright owner has declared that reprinting or excerpting is not permitted, other newspaper or periodical publishers may, after the publication of the work by a newspaper or periodical, reprint the work or print an abstract of it or print it as reference material, but such other publishers shall pay remuneration to the copyright owner as prescribed in regulations.

Article 33 A book publisher may alter or abridge a work with the permission of the copyright owner.

• A newspaper or periodical publisher may make editorial modifications and abridgements in a work, but shall not make modifications in the contents of the work unless permission has been obtained from the author.

Article 34 When publishing works created by adaptation, translation, annotation, arrangement or compilation of preexisting works, the publisher shall both have the permission from, and pay remuneration to, the owners of the copyright in the works created by means of adaptation, translation, annotation, arrangement or compilation and the owners of the copyright in the original works.

Article 35 A publisher has the right to license or prohibit any other person to use the typographical arrangement of books or periodicals he has published.

• The term of protection for the right provided for in the preceding paragraph shall be ten years, and expires on 3l December of the tenth year after the first publication of the books or periodicals using the typographical arrangement.

Section 2 Performance

Article 36 A performer (an individual performer or a performing entity) who for a performance exploits a work created by another person shall obtain permission from, and pay remuneration to, the copyright owner. Where a performing organizer organizes a performance, the Organizer shall obtain permission from, and pay remuneration to, the copyright owner.

• When exploiting, for performance, works created by adaptation, translation, annotation, arrangement or compilation of preexisting works, the performer shall both have the permission from, and pay remuneration to, the owners of the copyright in the works created by means of adaptation, translation, annotation, arrangement or compilation and the owners of the copyright in the original works.

Article 37 A performer shall, in relation to his performance, enjoy the right

• (l) to claim performer ship;
• (2) to protect the image inherent in his performance from distortion;
• (3) to authorize others to make live broadcasts and public transmission of its or his performance and to receive remuneration;
• (4) to authorize others to make sound recordings and video recordings, and to receive remuneration therefore.
• (5) to authorize others to reproduce or distribute sound recordings and video recordings incorporating his performance, and to receive remuneration therefore; and
• (6) to authorize others to communicate his performance to the public on information network, and to receive remuneration therefore.
• The person so authorized who exploits the work in the way referred to in the preceding paragraphs (3) to (6) shall obtain permission from, and pay remuneration to, the copyright owner.

Article 38 The term of protection for the rights provided for in Article 37, paragraphs (1) and (2), of this Law shall not be subject to any limitation.

• The term of protection for the rights provided for in Article 37, paragraphs (3) to (6), of this Law shall be fifty years, and expires on 31 December of the fiftieth year after the performance was made.

Section 3 Sound Recordings and Video Recordings

Article 39 A producer of sound recordings or video recording who, for the production of a sound recording or video recording, exploits a work created by another person, shall obtain permission from, and pay remuneration to, the copyright owner.

• A producer of sound recordings or video recordings who exploits a work created by adaptation, translation, annotation or arrangement of a preexisting work shall both obtain permission from, and pay remuneration to the owner of the copyright in the work created by adaptation, translation, annotation or arrangement and to the owner of the copyright in the original work.
• A producer of sound recordings who exploits a music work another person has duly made into a sound recording to produce sound recordings, may not obtain permission from, but shall pay remuneration to the copyright owner as prescribed by regulations, such Work shall not be exploited where the copyright owner has declared that such exploitation is not permitted.

Article 40 When producing a sound recording or video recording, the producer shall conclude a contract with, and pay remuneration to, the performers.

Article 41 A producer of sound recordings or video recordings shall have the right to authorize others to reproduce, distribute, rent and communicate to the public on an information network such sound recordings or video recordings and the right to obtain remuneration therefore. The term of protection of such rights shall be fifty years, and expires on 3l December of the fiftieth year after the recording was first produced.

• Any one who is authorized to reproduce, distribute and communicate to the public on an information network a sound recording or video recording shall also obtain permission from, and pay remuneration to, the copyright owner and the performer as presented by regulations.

Section 4 Broadcasting by Radio Stations or Television Stations

Article 42 A radio station or television station that broadcasts an unpublished work created by another person, shall obtain permission from, and pay remuneration to, the copyright owner.

• A radio station or television station that broadcasts a published work created by another person does not need a permission from, but shall pay remuneration to, the copyright owner.

Article 43 A radio station or television station that broadcasts a published sound recording, does not need a permission from, but shall pay remuneration to, the copyright owner, except that the interested parties have agreed otherwise. The specific procedures for treating the matter shall be established by the State Council.

Article 44 A radio station or television station shall have the right to prohibit the following acts without authorization therefrom:

• (1) to rebroadcast its broadcast radio or television program; and
• (2) to fix its broadcast radio or television program on a sound recording or video recording carrier and to reproduce the sound recording or video recording carrier.
• The term of protection for the right referred to in the preceding paragraph shall be fifty years, and expires on 31 December of the fiftieth year after the radio or television program was first broadcast.

Article 45 A television station that broadcasts a cinematographic work, a work created by virtue of an analogous method of film production or a video graphic work produced by another person shall obtain permission from, and pay remuneration to, the producer of the cinematographic or video graphic work; the station that broadcasts a video graphic work produced by another person shall obtain permission of, and pay remuneration to, the copyright owner.

Chapter V Legal Liabilities and Enforcement Measures

Article 46 Anyone who commits any of the following acts of infringement shall bear civil liability for such remedies as ceasing the infringing act, eliminating the effects of the act, making an apology or paying compensation for damages, depending on the circumstances:

• (1) publishing a work without the permission of the copyright owner;
• (2) publishing a work of joint authorship as a work created solely by oneself, without the permission of the other co-authors;
• (3) having one's name mentioned in connection with a work created by another, in order to seek personal fame and gain, where one has not taken part in the creation of the work;
• (4) distorting or mutilating a work created by another;
• (5) plagiarizing a work of another person;
• (6) exploiting by exhibition, film production or any analogous method of film production, or by adaptation, translation, annotation, or by other means, without the permission of the copyright owner, unless otherwise provided in this Law;
• (7) exploiting a work created by another person without paying remuneration as prescribed by regulations;
• (8) rending a work, sound recording or video recording, without the permission of the copyright owner of a cinematographic work, a work created by virtue of an analogous method of film production, computer software, sound recording or video recording or the owner of a copyright-related right unless otherwise provided in this Law.
• (9) exploiting the typographic arrangement of a book or periodical without the permission of the publisher.
• (10) broadcasting live a performance or communicating the live performance to the public, or recording his performance without the permission of the performer; or
• (11) committing any other act of infringement of copyright and of other rights and interests relating to copyright.

Article 47 Anyone who commits any of the following acts of infringement shall bear civil liability for such remedies as ceasing the infringing act, eliminating the effects of the act, making an apology or paying damages, depending on the circumstances' and may, in addition, be subjected by a copyright administration department to such administrative penalties as ceasing the infringing act, confiscating unlawful income from the act, confiscating and destroying infringing reproductions and imposing a fine; where the circumstances are serious, the copyright administration department may also confiscate the materials, tools, and equipment mainly used for making the infringing reproductions; and if the act constitutes a crime, the infringer shall be prosecuted for his criminal liability:

• (1) reproducing, distributing, performing, showing, broadcasting, compiling or communicating to the public on an information network a work created by another person, without the permission of the copyright owner, unless otherwise provided in this Law;
• (2) publishing a book where the exclusive right of publication belongs to another person;
• (3) reproducing and distributing a sound recording or video recording of a performance, or communicating to the public his performance on an information network without the permission of the performer, unless otherwise provided in the Law;
• (4) reproducing and distributing or communicating to the public on an information network a sound recording or video recording produced by another person, without the permission of the producer, unless otherwise provided in the Law;
• (5) broadcasting and reproducing a radio or television program produced by a radio station or television station without the permission of the radio station or television station, unless otherwise provided in this Law;
• (6) intentionally circumventing or destroying the technological measures taken by a right holder for protecting the copyright or copyright-related rights in his work, sound recording or video recording, without the permission of the copyright owner, or the owner of the copyright-related rights, unless otherwise provided in law or in administrative regulations;
• (7) intentionally deleting or altering the electronic right management information of a work, sound recording or video recording, without the permission of the copyright owner or the owner of a copyright-related right, unless otherwise provided in law or in administrative regulations; or
• (8) producing or selling a work where the signature of another is counterfeited.

Article 48 Where a copyright or a copyright-re1ated right is infringed, the infringer shall compensate for the actually injury suffered by the right holder; where the actual injury is difficult to compute, the damages shall be paid on the basis of the unlawful income of the infringer. The amount of damages shall also include the appropriate fees paid by the right holder to stop the infringing act.

• Where the right holder's actual injury or infringer's Unlawful income cannot be determined, the People's Court shall Judge the damages not exceeding RMB 500, 00 depending on the circumstances of the infringing act.

Article 49 A copyright owner or owner of a copyright-related right who has evidence to establish that another person is committing or will commit an act of infringing his right, which could cause irreparable injury to his legitimate rights and interests if the act is not stopped immediately, may apply to the People's Court for ordering cessation of the related act and for taking the measures for property preservation before instituting legal proceedings.

• The provisions of Articles 93 to 96 and 99 of the Civil Procedure Law of the People's Republic of China shall apply when the People's Court handles the application referred to in the preceding paragraph.

Article 50 For the purpose of preventing an infringing act and under the circumstance where the evidence could be lost or is difficult to obtain afterwards, the copyright owner or the owner of a copyright-related right may apply to the People's Court for evidence preservation before initiating legal proceedings.

• The People's Court must make the decision within forty-eight hours after it accepts an application; the measures of preservation shall be taken without delay if it is decided to do so.
• The People's Court may order the applicant to provide a guaranty, if the latter fails to do so, the Court shall reject the application.
• Where the applicant fails to institute legal proceedings within fifteen days after the People's Court adopted the measures of preservation, the latter shall terminate the measures of preservation.

Article 51 The People's Court hearing a case may confiscate the unlawful income, infringing reproductions and materials used for committing the illegal act of infringement of copyright or copyright-related rights.

Article 52 The publisher or producer of a reproduction who cannot prove that his publication or production has been authorized, the distributor of a reproduction or the renter of the reproduction of a cinematographic work, a work created by virtue of an analogous method of film production, computer software, sound recording or video recording who cannot prove that his distributed or rented reproduction has been from a lawful source, shall bear legal liability.

Article 53 A party who fails to fulfill his contractual obligations, or executes them in a manner that is not in conformity with the agreed conditions of the contract, shall bear civil liability in accordance with the relevant provisions of the General Principles of the Civil Law of the People's Republic of China, the Contract Law of the People's Republic of China and other relevant laws and regulations.

Article 54 A dispute over copyright may be settle by mediation. lt may also be submitted for arbitration to a copyright arbitration body under a written arbitration agreement concluded between the parties or under the arbitration clause in the contract.

• Any party may institute proceedings directly in the People's Court in the absence of a written arbitration agreement or in the absence of an arbitration clause in the contract.

Article 55 Any party who is not satisfied with an administrative penalty may institute proceedings in the People's Court within three months from the date of receipt of the written decision on the penalty. If a party neither institutes legal proceedings nor implements the decision within the time limit, the copyright administration department concerned may apply to the People's Court for enforcement.

Chapter Vl Supplementary Provisions

Article 56 For the purposes of this Law, the terms "zhuzuoquan"2 is "banquan"2.

Article 57 "publication" referred to in Article 2 of this Law means the reproduction and distribution of a work.

Article 58 Regulations for the protection of computer software and the right of communication of information on network shall be established separately by the State Council.

Article 59 The rights of copyright owners, publishers, performers, producers of sound recordings and video recordings, radio stations and television' stations as provided for in this Law, of which the term of protection specified in this Law has not yet expired on the date of this Law's entry into force, shall be protected in accordance with this Law.

• Any infringements of copyright and the copyright-related rights or breaches of contract committed prior to the entry into force of this Law shall be dealt with under the relevant regulations or policies in force at the time when the act was committed.

Article 60 This Law shall enter into force on June 1, 1991.

1 Quyi refers to such traditional art forms as ballad singing, story telling, comic dialogues, clapper talks and cross talks.

2 Zhuzuoquan corresponds to "author's right", but literally translated as "right in a work"; "banquan" is the literal translation of "copyright".

This work is in the public domain because it is exempted by Article 5 of Chinese copyright law . This exempts all Chinese government and judicial documents, and their official translations, from copyright. It also exempts simple factual information, and calendars, numerical tables, and other forms of general use and formulas.

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Q&A: copyright ownership and transfer in China

Ownership and transfer

Who is the owner of a copyrighted work?

Unless proven otherwise, the owner of a copyrighted work (the creator) may be:

• the creators of the copyrighted work;
• anyone persons, legal persons and other organisations that have obtained property rights of copyright according to the contract or the law without participating in the creation of the work; and
• the state under certain circumstances as the property rights are donated to the state or the property rights uninherited, etc.

May an employer own a copyrighted work made by an employee?

Yes, an employer may own a copyrighted work made by an employee. However, the employer’s ownership is not automatic by virtue of the employment relationship; instead, generally the author employed enjoys the copyright of such work, and the employer can enjoy copyrights in works, except for the right of authorship that is still enjoyed by the author, only in the circumstances stipulated by law.

Where the employee owns the copyrighted work, the exercise of the rights by the employee shall be subject to the following restrictions:

• the employer shall be entitled to have a priority right to exploit the work within the scope of its professional activities.
• During the two years after the completion of the work, the employee shall not, without the consent of the employer, authorise a third party to exploit the work in the same way as the employer does.

Under the following circumstances in the Copyright Law, the employer owns the copyrighted work, while the employee still has the right of authorship and may receive a reward from the employer:

• drawings of engineering designs and product designs, sketch maps, computer software and other works, which are created by the employee taking full advantage of the materials and technical resources of the employer and the employer is responsible for the work;
• the employer is a newspaper, a periodical press, a news agency, a radio station, or a television station; and
• works of which the copyright is, in accordance with the laws or administrative regulations or as expressively agreed upon in the contract, enjoyed by the employer.

Usually, the agreement regarding the transfer of ownership of a copyrighted work from an employee to the employer is stipulated in the relevant employment agreement between them. An oral agreement is recognised in China. However, it is difficult to prove an oral agreement exists if the employee raises an objection afterwards.

May a hiring party own a copyrighted work made by an independent contractor?

Yes, a hiring party may own a copyrighted work made by an independent contractor provided the parties clearly agree the ownership of the copyrighted work belongs to the hiring party. The independent contractor will be the automatic owner of the copyrighted work, unless agreed otherwise between the parties. It is advisable that the agreement stipulating the ownership of the relevant copyrighted work be in writing.

May a copyrighted work be co-owned?

Yes. A copyrighted work may be co-owned. If a work comprises separate parts created by two persons or more, for example, a musical work includes a song with lyrics, both the writer of composition and writer of lyrics will have a joint ownership of the song.

Co-ownership of a copyright may also happen by virtue of a partial assignment of the property right from the copyright holder to any other party (or parties.)

May rights be transferred? If so, what rules and procedures apply?

Generally, personal rights in copyright are not transferable, but the property rights may be transferred by way of inheritance, grant, endowment, will, etc. A copyright holder may transfer all or part of the property rights to others to exercise and receive remuneration.

As for the procedures, the agreement of transfer or assignment of copyright must be in writing. The Copyright Law stipulates the main content of such agreement.

May rights be licensed? If so, what rules and procedures apply?

Yes, the property rights may be licensed during the protection period. If a copyright owner grants an exclusive licence of any rights in part or whole to the licensee, unless otherwise agreed in the agreement, the owner has no right to exploit the relevant rights by him or herself or license to any third parties again until the rights are returned when the licence agreement is terminated. The legal effect is somewhat like transference of copyright during the licence period in such a case.

The property rights may be licensed by entering a licensing contract. The Copyright Law stipulates the main content of licensing contracts.

Are there compulsory licences? What are they?

No, there are no compulsory licences in the Copyright Law. However, there are statutory licences that have similar effects as compulsory licences.

Statutory licence means that the public can directly use a work in specific circumstances as provided by the Copyright Law without the consent of the copyright owner BUT with payment of reasonable remuneration.

Statutory licences and fair uses are both the limitation of copyright. The difference between the two is that statutory licences require the users to pay remunerations, while fair uses are free uses.

There are four types of statutory licence stipulated in the Copyright Law:

• to compile published works for the purpose of compiling and publishing textbooks for compulsory education and national education planning;
• to reprint published works among newspapers and periodicals, unless the copyright holders have expressly stated that such reprinting is not permitted;
• to use other’s musical works that are already legitimately recorded in the production of new sound recordings, unless the copyright holders have expressly stated that such use is not permitted; and
• to broadcast published works by broadcasting organisations.

There is a statutory licence and a quasi-statutory licence stipulated in the Regulations on the Protection of Right of Communication through Information Network, which are as follows:

• to make and provide courseware through information network so as to implement the nine-year compulsory education or the national education planning; and
• to provide specific works to rural areas through information network.

Are licences administered by performing rights societies? How?

Yes, pursuant to the Copyright Law, a creator, copyright holder or neighbouring rights holder can join relative collective management societies (CMOs) for the societies to collectively administer his or her property rights in accordance with membership agreements and receive fair compensation from any party that uses his or her copyright and neighbouring right in a commercial manner.

All the CMOs are at national level and approved by the National Copyright Administration (NCAC). According to the Regulation on the Collective Administration of Copyright, there is no duplication or repetition of the scope of business among the existing CMOs. Up to now, there are five CMOs administering the property rights of written work, photographic work, cinematographic work, musical work, audio and video recordings. The copyright holders, including holders of performing rights, join CMOs voluntarily.

Is there any provision for the termination of transfers of rights?

Can documents evidencing transfers and other transactions be recorded with a government agency?

The parties to the assignment contracts may file an application for contract recordation with registration agencies authorised by the copyright administration authorities. However, the application is not mandatory.

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• Q&A: Why you should consider registering your copyright in China

Q&A: Why you should consider registering your copyright in China

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While not compulsory, getting a copyright registration in China can offer many benefits to IP owners. This article will give an overview of the copyright registration system in China. Copyright registration is also available in some other Asian countries such as Japan and Vietnam.

• How long is the copyright registration valid for?
• What can be registered?
• Application process
• Copyright registrations in other Asian countries

Why register?

Copyright ownership in China arises automatically, upon completion of the creation of works. A registration is not mandatory to claim legal ownership. However, registration is generally recommended for the following reasons:

• Copyright registration serves as prima facie proof of ownership. This greatly facilitates enforcement efforts in China, especially in administrative enforcement as well as in litigation. In China, witness evidence generally carries lower evidential weight than documentary evidence such as copyright registration certificates. Personal declarations of copyright ownership by the creator of a work are not taken as substantial evidence.
• In Chinese courts, evidence of creation produced abroad must generally also be notarised (by a public notary in that country) and legalised (by the Chinese Consulate in that country) before it can be admitted as evidence. In practice, this notarisation and legalisation process (in addition to the required translation into Chinese) can often be a lengthy and costly affair. Having a Chinese copyright registration as prima facie proof of ownership makes it much easier and cuts a lot of red tape.
• Many China-based e-commerce platforms have adopted a notice-and-take-down programme. Many of these programmes require the proof of IP rights in order to take infringing offers down. Again, having a Chinese copyright registration makes the tasks much easier for both the e-commerce platform operator and the copyright owner.
• By a similar token, a copyright registration can more effectively back up one’s claim in a cease-and-desist letter.
• In situations where the IP owner is facing obstacles in securing other forms of IP protection in China, copyright registrations can serve as a fall-back. For example, if for some reason the IP owner is unable to obtain a trademark registration for its logo or a design registration for its product, it may get some comfort in getting a copyright registration in China.
• Finally, the copyright registration procedure is straightforward and inexpensive. There was a reduction in official fees in 2018, and for certain works (e.g. computer software), no official fees are required anymore.. The current official fees for a copyright registration application now range from RMB 100-2000 (USD 15–300), depending on the type of work for which registration is requested. Moreover, the process is relatively quick: the standard application timeline to obtain both the copyright recordal certificate and the stamped sample of the work is about 5-6 months. This can be further expedited upon payment of modest extra official fees, to approximately 3 months.

How long is the copyright registration valid for?

Once registered, the copyright registration will last until the expiry of that copyright in the registered work under Chinese copyright law. Generally speaking, the copyright duration is the life of the author plus 50 years.

What can be registered?

A copyright registration in China can cover all copyrightable subject matters under the Chinese copyright law. For instance, we have helped clients obtain copyright registrations for the following types of copyright work:

• Artwork (including logo marks);
• Books, printed matter and other literary works;
• Audio-visual works;
• Musical works;
• In-app or in-program user interfaces;
• Website layout;
• Computer software;
• Product packaging design;
• Works of applied art, e.g. certain toy/furniture designs.

With the forthcoming implementation of the new Copyright Law which expands the scope of copyright work, copyright registration in China can potentially cover other types of work such as multimedia works, compilation works and other types of unlisted works.

Copyright registration is administered by the Copyright Protection Centre of China (“CPCC“). The CPCC is an institution directly under the National Copyright Administration of China, which is in charge of copyright registration of works, computer software, copyright pledges, licensing and assignment filings.

There is a set of prescribed paperwork for submission to CPCC, which can now also be filed online. This includes details about the date of creation, identity of the author, employment etc. Our firm has extensive experience with these and can draft this quickly and efficiently.

After successful completion of the formality examinations, it normally takes about three months from the date of application with the CPCC to receive a copyright registration certificate. This certificate does not include the stamped sample of the work (which is often required or desirable for enforcement actions in China), but the applicant can file an extra application for such stamped sample. This application for a certificate for a stamped sample of the work generally takes a further 1 to 3 months to be processed.  Expedited examination for both applications (recordal and stamped sample) is available for an additional fee of around RMB 300 (USD 50) upwards ,depending on the requested urgency (e.g. the applications can be expedited to a few days or weeks).

Not all Asian countries allow copyright owners to voluntarily register their copyright. Japan and Vietnam are two Asian countries which have a voluntary copyright registration system, and similarly we have helped clients obtaining copyright registrations there. Watch this space for our further updates on this topic.

Authored by Eugene Low and Stefaan Meuwissen

On 11 November 2020, China's National People's Congress adopted an amended version of the Copyright Law, which will take effect on 1 June 2021. This is the first comprehensive revision of the Copyright Law since 2001, and the amendments were keenly awaited. The amended Copyright Law harmonizes and codifies a number of pre-existing regulations and judicial practices, but also contains a significant number of important novelties. The highlights of the amended Copyright Law are the availability of punitive damages and higher statutory damages for copyright infringement, a formal evidence burden shifting provision for damages, the adoption of a broader category of 'audiovisual' works, the expansion of the scope of certain related rights and the further liberalization of the types of copyrightable works.

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Conventus Law

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Copyright In China: Q&A For The International Comparative Legal Guide On Copyright 2017.

September 24, 2016 by Conventus Law

24 September, 2016

In this comprehensive Copyright Guide, presented in Q&A format, you will  be able to find answers about how to register Copyright in China, what rights do you have in China and how you can enforce these rights. 

1          Copyright Subsistence

1.1       What are the requirements for copyright to subsist in a work?

Article 2 of the Implementing Rule of Copyright Law of PRC provides that work shall refer to original intellectual creations in the literary, artistic and scientific domain, insofar as they are capable of being reproduced in a certain tangible form.

Therefore, a work protectable under the Copyright Law of PRC must be:

• original, which means that the work must be originated by the author rather than copied from any other party; and
• reproducible, which means that the work must be able to be fixed in a tangible form.

1.2       On the presumption that copyright can arise in literary, artistic and musical works, are there any other works in which copyright can subsist and are there any works which are excluded from copyright protection?

Copyright can also subsist in the following works under Chinese law:

• Oral works, which refer to works that are created with spoken words, such as impromptu speeches, lectures and court debates.
• Dramatic works, which refer to such works as drama, operas and others which are used in stage performance.
• Choreographic works, which refer to works that express idea and emotion through successive body movement, gestures and facial movements and expressions.
• Architectural works, which refer to works with aesthetic value which is expressed in architectural or constructional form.
• Photographic works, which refer to artistic works created by recording images of existing things or people on light-sensitive materials or other media with the aid of a device.
• Graphic works, which refer to drawings of engineering designs and product designs for the purpose of actual construction or manufacture, maps and sketches showing geographic phenomena and demonstrations of the fundamental nature or structure of a thing or object.
• Model works, which refer to three-dimensional works made according to the shape and structure in a certain scale of an object for the purpose of exhibition, experiment, observation and measurement.
• Software works, which refer to computer programs and documents.

However, laws, regulations, resolutions, decisions and other legislative, judicial and administrative documents of government and their official translations, current news, calendars, numerical tables or forms for general use and formulas are excluded from copyright protection.

1.3       Is there a system for registration of copyright and if so what is the effect of registration?

Copyright registration applications can be filed with the Copyright Protection Centre of China (CPCC) and other copyright registration institutions in China.  The cost varies from 100 RMB to 5,000 RMB.

Although copyright registration is not a compulsory requisite for the establishment of copyright ownership, such registration is regarded as prima facie evidence to prove the ownership of copyright, particularly in court actions.

1.4       What is the duration of copyright protection? Does this vary depending on the type of work?

The duration of copyright protection in China is the life of the author plus 50 years, which means the duration is from the day the work is completed to December 31st of the 50thyear after the author’s death.

With regard to works of organisation, the duration is from the day the work is completed to December 31st of the 50th year after the work is first published.

However, the author’s moral rights, including rights of attribution, authorship, revision and integrity are protected without a time limit.

1.5       Is there any overlap between copyright and other intellectual property rights such as design rights and database rights?

There are overlaps between copyright and other intellectual property rights . For example,logos or sounds (sound marks) can be protectable under both copyright law and trademark law.  The design of a product can be protectable as a design patent under patent law, as a work of applied art under copyright law (where it reaches a certain artistic level) as a three-dimensional mark under trademark law (where the design is distinctive) or as a trade dress under Anti Unfair Competition Law..

1.6       Are there any restrictions on the protection for copyright works which are made by an industrial process?

Theoretically, copies of works made on a large scale by industrial process are protectable under copyright law without legal obstacles.  In practice, industrial products are scarcely protected by copyright law due to its insufficiency in artistic value/level.

However, the following two types of industrial products are regarded as protectable under copyright law.

software – software products mostly rely on copyright protection; and

works of applied art – the design of functional products are protectable under copyright law if such design satisfies the requirements of artistic level, functionality and originality.

2          Ownership

2.1       Who is the first owner of copyright in each of the works protected (other than where questions 2.2 or 2.3 apply)?

• The author of a literary, musical, dramatic and artistic work.
• The producer of a film.
• The designer of an architectural work.
• The person who makes the adaptation, translation, annotation or arrangement for a derivative work.

2.2       Where a work is commissioned, how is ownership of the copyright determined between the author and the commissioner?

Where a work is commissioned, the ownership of the copyright should be determined by the contract between the author and the commissioner.  However, if there is no contract or the contract is not clear enough, the author is the owner of the copyright.

2.3       Where a work is created by an employee, how is ownership of the copyright determined between the employee and the employer?

There are two sorts of works that are created by the employee:

If the work is completed mainly by using the material and technical resources of the employer and the responsibility for the work is borne by the employer, e.g. the product design drawings, maps and computer software, then the copyright shall be owned by the employer.

With regard to works other than the ones mentioned above, the employee shall own the copyright, though the employer has the prior right to use the work within its business scope.

2.4       Is there a concept of joint ownership and, if so, what rules apply to dealings with a jointly owned work?

The copyright of a work,  which is created jointly by two or more co-authors, shall be owned jointly by the co-authors.

Where the joint work is separable, each joint owner can own the copyright of the part he has created independently, provided it does not affect the copyright of the joint work as a whole.

Where the joint work is inseparable, any enforcement of the copyright shall be agreed by all joint owners.  Where the joint owners fail to reach an agreement and have no justified reasons for the failure, each joint owner can exercise all the rights, except the right of assignment.  However, the income generated therefrom shall be fairly distributed between or among the joint owners.

3          Exploitation

3.1       Are there any formalities which apply to the transfer/assignment of ownership?

The assignment of copyright requires a written contract between the assignor and the assignee.  The contract shall include the following provisions:

• the title of the work;
• the right(s) being assigned and the geographic scope thereof;
• the assignment price;
• the date and method of payment of the assignment price;
• liability for breach of contract; and
• other terms which the parties consider necessary.

The rights of publication, authorship, revision and integrity cannot be assigned.  Failing to comply with the formalities may result in legal risks concerning the validity of the assignment.

3.2       Are there any formalities required for a copyright licence?

The licensing of copyright requires a contract between the licensor and the licensee.  The contract shall include the following main terms:

• the type(s) of right(s) being licensed;
• whether the licence is exclusive or non-exclusive;
• the geographic scope and term of the licence;
• the amount and method of remuneration;

Particularly when the licence is exclusive, there must be a written contract.  The content of the exclusive licensing right must be included.  Failing to comply with the formalities may bring legal risks to the validity of the licence.

3.3       Are there any laws which limit the licence terms parties may agree (other than as addressed in questions 3.4 to 3.6)?

Generally, the parties cannot agree on the terms to license the moral rights of the copyright owner, including the right of publication, authorship, revision and integrity.

3.4       Which types of copyright work have collective licensing bodies (please name the relevant bodies)?

Currently, there are five collective licensing bodies in China.  For musical works, the collective body is the Music Copyright Society of China (MCSC).  For audio and video works, the collective body is the China Audio-Video Copyright Association (CAVCA).  For literal works, the collective body is the China Written Works Copyright Society (CWWCS).  For photographic works, the collective body is the Images Copyright Society of China (ICSC).  For film works, the collective body is the China Film Copyright Association (CFCA).

3.5       Where there are collective licensing bodies, how are they regulated?

The collective licensing bodies are mainly regulated by the Copyright Law of PRC and the Regulations on the Collective Administration of Copyright.  According to the law and regulations, the application for establishment of a collective licensing body shall be reviewed and approved by the National Copyright Administration of China.

3.6       On what grounds can licence terms offered by a collective licensing body be challenged?

• The licence terms offered by a collective licensing body may be challenged in several particular circumstances:
• The collective body has not been authorised by the owner of copyright or is beyond the scope of the authorisation.
• The collective body fails to stipulate the specific amount of the chargeable royalties or the royalties are substantially higher than the official royalty charging rates.
• The licence includes extra works which are unnecessary for the user.

4          Owners’ Rights

4.1       What acts involving a copyright work are capable of being restricted by the rights holder?

The following actions are deemed as copyright infringement:

• publishing a work without permission from the owner;
• publishing a joint work as a work created solely by oneself without permission from the other joint authors;
• passing off as the author without participating in the creation of the work;
• distorting or tampering with the work of another;
• plagiarising another’s work;
• renting films, computer software, audios or videos without the permission of the owner;
• using the layout of a published book or periodical without permission from the publisher;
• reproducing, distributing, performing, projecting, broadcasting or compiling a work or broadcasting the same to the public via an information network without permission from the owner;
• publishing a book for which another person has the exclusive right of publication;
• reproducing and/or distributing an audio or video recording of a performance or broadcasting the same without permission from the performer;
• reproducing and/or distributing an audio or video recording or broadcasting the same without permission from the producer;
• broadcasting or reproducing a radio or television broadcast without permission;
• deliberately circumventing or cracking the technical measures taken by a copyright owner without the permission;
• deliberately removing or modifying the electronic rights control information contained in a work without permission; and
• producing or selling a work by passing it off as the author’s own.

4.2       Are there any ancillary rights related to copyright, such as moral rights, and if so what do they protect, and can they be waived or assigned?

There are four kinds of moral rights related to copyright.  They are the right of publication, authorship, revision and integrity.  The right of publication means the right to decide whether or not to make a work available to the public. 

The right of authorship means the right to affix one’s name to a work to indicate the author’s identity.  The right of revision means the right to revise or authorise others to revise one’s work.  The right of integrity means the right to protect one’s work against misrepresentation and distortion.  Theoretically, the moral rights, especially the right of authorship, can neither be waived nor assigned.

4.3       Are there circumstances in which a copyright owner is unable to restrain subsequent dealings in works which have been put on the market with his consent?

According to the principle of the first-sale doctrine, once the works have been put into the market with the owner’s consent, the owner no longer has the right to restrain subsequent dealings with the works.

The application of the first-sale doctrine in digital circumstances is more complicated; in general, the doctrine will merely apply to the sale of physical copies rather than digital copies of the work, as the latter will result in an increased number of copies.

5          Copyright Enforcement

5.1       Are there any statutory enforcement agencies and, if so, are they used by rights holders as an alternative to civil actions?

The copyright bureaus at all levels are the authorised enforcement agencies for copyright.

However, the enforcement capacity of such enforcement bodies are not sufficiently effective to be used as an alternative to civil action due to the limited number of agencies as well as their limited human resources.

Besides, the copyright administration departments are merely authorised to conduct raids to stop the infringement, rather than order the infringer to compensate the loss of the right holder.  Therefore, in most occasions, the copyright administration departments function as a supplementation to civil action, rather than an alternative.

5.2       Other than the copyright owner, can anyone else bring a claim for infringement of the copyright in a work?

Besides the owner, the successor of the owner, exclusive licensee and collective licensing body also have the right to bring action against a copyright infringer.  A non-exclusive licensee can also bring a legal action with the written authorisation of the copyright owner.

5.3       Can an action be brought against ‘secondary’ infringers as well as primary infringers and, if so, on what basis can someone be liable for secondary infringement?

Generally, whoever knowingly induces or assists another party to carry out infringing acts shall be jointly liable with the primary infringing party.  Particularly, where an internet service provider instigates or assists a network user to conduct an infringement of the information network transmission right at the time of providing a network service, the said supplier shall jointly bear liability for infringement with the primary infringer.

Where a network service supplier induces or encourages a network user to conduct an infringement against the right of making available of a work by way of speech, promotion, technology support, bonus points, etc., such act by the provider will be liable for secondary infringement.

Where a network service supplier knows or ought to know that a network user makes use of a network service to infringe the information network transmission right but fails to take necessary measures such as deleting, screening, and cutting off the connection, or assists such act by providing technical support with receipt of notice from the right owner, the said supplier will likely be liable for secondary infringement.

5.4       Are there any general or specific exceptions which can be relied upon as a defence to a claim of infringement?

The exceptions which can be relied upon as a defence include fair use and statutory licence.  Fair use includes:

• private use for study, research or enjoyment;
• appropriate quotation used to introduce or comment on certain works;
• inevitable use for news reporting;
• translation or reproduction of a small number of copies for the purpose of education or scientific research;
• reasonable use for the purpose of carrying out official duties;
• reproduction by a library, archives, memorial hall, museum, art gallery, etc., for the purpose of exhibiting or preserving an edition of such work;
• gratuitous performance of a published work with no charge collected from the audience nor any remuneration paid to the performers;
• copying, painting, photographing or videotaping of a work of art placed or exhibited at an outdoor public place;
• translation of a published work created in the Han language into the language of a domestic minority ethnic group, and the publication and distribution of such within China; and
• translation of a published work into Braille for publication.

For fair use, there is no need for the user to obtain permission from the owner nor to pay any royalty.

A statutory licence includes:

• for the purposes of the compilation and publication of textbooks for compulsory education and state educational plans;
• reprinting or publishing a work published by other newspapers and magazines unless the owner declares it is not allowed;
• using a previous audio recording to produce an audio recording of musical work unless the previous publisher declares it is not allowed;
• broadcasting another’s published work by radio or television station; and
• broadcasting a published audio recording by radio or television station.

For a statutory licence, there is no need for the user to obtain permission from the owner either, but the user should pay a reasonable royalty.

5.5       Are interim or permanent injunctions available?

An interim injunction can be obtained before or during the process of litigation.  A copyright owner or copyright-related rights holder, who has evidence showing that another party is infringing or is about to infringe its rights, adding that the failure to immediately halt such infringement would result in damage that would be difficult to remedy, may apply to the court for an interim injunction against the conduct concerned prior to or during the process of a civil action.

A permanent injunction can be obtained in most cases where the acts of the defendant are found by the court to constitute infringement.

5.6       On what basis are damages or an account of profits calculated?

The damages to the copyright owner shall be based on the actual loss of the owner.  The owner’s actual loss may be computed by multiplying the decrement of reproductions due to infringement or the sales volume of infringing copies with the unit profit the owner would have gained in issuing those reproductions.  In cases where it is hard to determine the decrement of reproductions, the loss shall be determined according to the market sales of the infringing copies.

Where the actual loss is difficult to calculate, the damages paid may be based on the amount of the illegal proceeds. 

The amount of damages shall also include the reasonable expenses incurred by the copyright owner in halting the infringement.

If neither the actual loss of the copyright owner nor the illegal proceeds earned by the infringer can be determined, the court may decide and award damages not exceeding 500,000 RMB according to the circumstances of the case.

5.7       What are the typical costs of infringement proceedings and how long do they take?

The typical costs of an infringement proceeding often include a litigation fee, lawyer’s fee, expenses for investigation and notarisation, etc.  There is no statutory limitation on the length of a trial involving a foreign party.  A first-instance copyright infringement proceeding often takes six to twelve months.  If any related party appeals the case with the court of second instance, the court action will take another six to nine months.

5.8       Is there a right of appeal from a first instance judgment and if so what are the grounds on which an appeal may be brought?

China adopts a “two instances” trial system. In general, all of judgments in first-instance can be challenged by appealing to a higher level of court, i.e.: if the first-instance judgment was decided by a basic court, it can be challenged by appealing to an intermediate court; if the judgment was decided by an intermediate court, it can be challenged by appealing to a high court; and if the judgment is decided by a high court, it can be challenged by appealing to the Supreme Court.

An appeal can be brought on the grounds that the first-instance judgment is based on wrongfulness concerning the facts or the applied laws and regulations.  In the second-instance proceeding, the whole judgment will be reviewed, including the evidence and legal reasoning.

5.9       What is the period in which an action must be commenced?

Generally, a copyright infringement civil action must be commenced within two years after the copyright owner knows or should have known of the occurrence of the infringement.  Where the two-year time limit has expired but the infringement still continues, the court shall order the infringer to cease the infringement, but the damages shall only be calculated for two years taken backward from the date when the owner filed the litigation.

6          Criminal Offences

6.1       Are there any criminal offences relating to copyright infringement?

There are two kinds of criminal offences relating to copyright infringement.

Firstly, piracy, which includes:

• reproducing and distributing a written work, musical work, motion picture, television programme or other visual works, computer software or other works without the permission of the copyright owner;
• publishing a book of which the exclusive right of publication is enjoyed by another person;
• reproducing and distributing an audio or video recording produced by another person without the permission of the producer; and
• producing or selling a work of fine art with the forged signature of another painter.

Secondly, selling the above copies knowingly.

6.2       What is the threshold for criminal liability and what are the potential sanctions?

For piracy, if the illegal revenue exceeds 30,000 RMB, or the illegal turnover exceeds 50,000 RMB, or the quantity of illegal copies exceeds 500 in total, or there are other serious circumstances, the suspect shall be sentenced to a fixed-term imprisonment or criminal detention for not more than three years and/or be imposed with a pecuniary fine.  If the illegal proceeds are more than 150,000 RMB, or the volume of illegal business is more than 250,000 RMB, or the quantity of illegal copies is more than 5,000 in total, or there are other especially serious circumstances, the suspect shall be sentenced to a fixed-term imprisonment of not less than three years but not more than seven years, and be concurrently imposed with a pecuniary fine.

7          Current Developments

7.1       Have there been, or are there anticipated, any significant legislative changes or case law developments?

The Copyright Law of PRC is in the process of being revised, which is widely regarded as the most significant revision in the history of copyright law in China.

There are a number of significant changes which can be anticipated relating to the following issues.  Among others, the following are worthy of attention.

Fair-Use of Computer Programs

Providing Devices or Parts “Solely for Altering Programs” is not “Fair-Use”

In the previous two drafts, the amendments allowed authorised users of computer program works to install, make a backup copy, or make necessary alterations as necessary for the program to achieve its function in its environment, while prohibiting supply of the altered program to any third party without authorisation.

With regard to the third aspect, this draft further adds that the user shall not provide any third party with devices or parts that are solely for the alteration of a computer program.

Note: Article 19 of the Protection Regulation of the Right for Information Network Transmission prohibits the manufacture, importation or provision of devices or parts that are mostly used to avoid or destroy technical protection devices, which is regarded as an extended protection for copyright of computer program.

Likewise, this draft further prohibits the provision of devices and parts that are solely for altering computer programs, which further extends the scope for acts of infringements in order to prevent the use of altered programs by third parties that exceeds the scope of fair use.

Circumvention of Technical Protection Measures and Fair-Use

In the last two drafts, the law provided that the circumvention of technical protection measures can be regarded as fair-use and not infringing, if it is: (1) for the purpose of school education or scientific research; (2) for the purpose of non-profit use by blind persons; or (3) for the purpose of public work by administrative or judicial organs.

The new draft further adds the following two circumstances as fair-use: (1) research of encryption; or (2) reverse engineering of computer programs.

Collective Management of Copyright and Extension of Competence of Copyright Collective Management Associations

Collective Management of Copyright (“CMC”) is a mechanism under which the copyright owners authorize an independent Col­lective Organization of Copyright Administration (“COCA”) to exercise their copyrights or related rights, such as to initiate law suits on their behalf.

The setting of Extension of Competence of Copyright Collective Management Associations aims to encourage and facilitate copy­right licensing, in particular to assist those users who want to pay royalties but feel difficult to locate the appropriate right owners.

Under this provision, the Collective Organization of Copy­right Administration (“COCA”) acting nationwide, may exercise the copyrights or related rights on behalf of both the right owners who are member of the organization and those who are not mem­bers; however, the COCA shall not exercise the rights of authors who have made a written reservation declaring that their rights are not to be managed by the organization.

This Draft and the past two drafts provide that a standard li­cense-fee for the licensing of works managed by the COCA shall be published by NCAC.

Given the strong opposition made by major local musician associations and audiovisual producer associations, the new Draft removed from the list of applicable subject matters of this provi­sion the published written works, musical works, artistic works and photographic works, leaving only the self-service song system, i.e. Karaoke establishment as the sole applicable subject.

The third Draft further specifies that the standard license-fee is provided by the COCA and shall be published by NCAC afterwards. Relevant parties are authorized to submit opposition against such published standard, which will be finally decided by a Professional Committee, whose members include judges, public servants of administrations as well as lawyers.

Note: Such CMC mechanism has been challenged by copy­right owners because it deprives the rights of non-member copy­right owners to “opt-out,” i.e. to make their own decision on claim­ing compensation and refusing the administration by COCA. They do not accept such standard licensing-fee decided by the COCA in its previous agreement with users.

It appears that the Extension of Competence of Copyright Collective Management Associations, as a whole, is maintained throughout all three drafts. However, the second and third drafts provided three exceptions to the principle of Copyright Collective Management “CCM”: (1) if the non-member author can prove that the users of the work is aware and has understood the “opt-out” i.e. Reservation made by the right owner but still keep using it, (2) if the non-member author has notified the use to stop using, but the user refused to stop and (3) if, in spite of a court decision ordering to cease using the work of the non-member author, the user still continues using it.

Such exceptions were regarded as new changes to restrict the application of this provision and maintain the legitimate interests of right owners.

7.2       Are there any particularly noteworthy issues around the application and enforcement of copyright in relation to digital content (for example, when a work is deemed to be made available to the public online, hyperlinking, etc.)?

The right of network dissemination is a new kind of copyright in the digital age.  It means the right to make the work

available to the public online.  A work is often deemed to be made available to the public online when members of the public can get access to the work from any place at a time chosen by them.

With respect to a network service provider that provides information memory space, or searching or linking services, if the owner believes that any of the works involved in the services has infringed upon his/her right of network dissemination, he/she may file a written notice with the network service provider, requesting it to delete his/her works or to cut off the links to the works.

After receiving the notice from the owner, the network service provider must immediately delete the works or cut off the links to the relevant works and shall simultaneously forward notice of such to the provider of the relevant works.

Helika Jurgenson, China IPR SME-Helpdesk

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Copyright Law of the People's Republic of China (2020 Amendment)

The Standing Committee of the National People’s Congress has passed the amendments to the Copyright Law (the  Amendments ), which will take effect on 1 June 2021. The first comprehensive amendment took place in 2001, and in 2010 it was amended again in response to a WTO decision resolving a U.S. complaint. Since the first amendment, the 2020 Amendments are the most comprehensive and substantial amendments in the past two decades. In addition to some cosmetic changes, the Amendments will strengthen the protection for the copyright owners in regards to the scope of copyrightable work, redefined fair use exceptions, authorization of technical protection measures, and heightened damage provisions. 

See the full clauses below:

Chapter I: General Provisions

Article 1:  This law is formulated in accordance with the Constitution in order to protect the copyrights of authors of literary, artistic, and scientific works, as well as rights related to copyrights, to encourage the creation and dissemination of works beneficial to the construction of culture in the spirit of socialism and material culture, and to stimulate the development and flourishing of Socialist culture and scientific endeavors.

Article 2:  Works of Chinese citizens, legal entities, or unincorporated organizations, whether published or not, are to enjoy copyright in accordance with this Law.

Works of foreigners and stateless persons are protected by this law and enjoy copyrights on the basis of agreements concluded with China by their authors' country of nationality or their country of habitual residence, or international treaties in which they participate together.

Where works by foreigners or stateless persons are first published within the territory of China, they are to enjoy copyright in accordance with this Law.

Works of authors from countries not having concluded an agreement with China or not participating together in an international treaty and of stateless persons are protected by this law where they are published first in a member state of an international treaty in which China participates, or simultaneously in member states and non-member states.

Article 3:  Works, as used in this law refers to intellectual achievements in areas such as literature, arts, and sciences, that have originality, which can be fixed in certain forms, including:

(1) Written works;

(2) Oral works;

(3) musical, dramatic, folk craft, choreographic, and acrobatic art works;

(4) Fine art and architectural works;

(5) Photographic works;

(6) Audiovisual works;

(7) Graphic works and models such as engineering design drawings, product design drawings, maps, and schematic diagrams;

(8) Computer software;

(9) Other intellectual achievements that meet the characteristics of the work.

Article 4:  In exercising their rights, copyright holders and holders of copyright-related rights must not violate the Consitution or laws, and must not harm the public interest. The state is to conduct oversight and management of the publication and dissemination of works in accordance with the law.

Article 5:  This law does not apply to:

(1) Laws and regulations, State organ resolutions, decisions, decrees and other documents having a legislative, administrative or judicial nature, and their official translations;

(2) Purely factual information;

(3) calendars, common numeral tables, common forms, and formulas.

Article 6:  The State Council is to separately provide measures for the copyright protection of folk literature and artistic works.

Article 7:  The national departments for copyright are responsible for copyright management across the country; the local copyright departments at the county level and above are responsible for copyright management in the respective administrative regions.

Article 8:  Copyright holders and the holders of copyright-related rights may authorize collective copyright management organizations to exercise the copyrights or copyright-related rights.   Lawfully established collective copyright management organizations are non-profit legal persons and after being authorized may claim rights for copyright holders and holders of copyright-related rights in its own name, and may act as a party in litigation, arbitration, and mediation activities involving copyrights or copyright-related rights.

Collective copyright management organizations are to collect royalties from users based on their authorization.   The standards for the collection of royalties are to be determined by negotiation between the collective copyright management organizations and user representatives, and where negotiation is unsuccessful, they may apply to the national department for copyright to make a ruling, and those not satisfied with the ruling may initiate proceedings in the people's courts; or parties may also directly initiate proceedings in the people's courts.

Collective copyright management organizations shall periodically publicly disclose the general situation of the collection and transfer of royalties, the extraction and use of management fees, and the unallocated portion of royalties; and shall establish a system for making inquiries into rights information, for rights holders and users to make inquiries.   The national departments for copyright shall conduct oversight and management of collective copyright management organizations in accordance with the law.

The State Council is to separately provide for the methods for setting up collective copyright management organizations, their rights and obligations, their collection and allotment of royalties, as well as their oversight and management.

Chapter II: Copyrights

Section 1: copyright holders and their rights.

Article 9:  Copyright holders include:

(1) Authors;

(2) Other natural persons, legal persons, or unincorporated organizations that enjoy copyright in accordance with this Law.

Article 10:  Copyrights include the following personal and property rights:

(1) the right of publication, being the right to decide whether or not to make the work known to the public;

(2) the right of attribution, that is, the right to claim authorship and to have the author's name mentioned in connection with the work;

(3) the right of alteration, that is, the right to alter or authorize others to alter works;

(4) the right of integrity, that is, the right to protect one's work against distortion and modification;

(5) the right of reproduction, that is, the right to produce one or more copies of the work by means such as printing, photocopying, rubbing, audio recording, video recording, duplicating, re-shooting, or digitizing;

(6) the right of distribution, that is, the right to provide the public with original copies or reproduced copies of works by means of sale or donation;

(7) the right to lease, that is, the right to permit others to temporarily use an original or reproduced audiovisual work or computer software, unless the computer software is not the main object under the lease;

(8) the right of exhibition, that is, the right to publicly display the original or reproductions of works of fine art and photography works;

(9) the right of performance, that is, the right to publicly perform works, and to publicly transmit the performance of works by any means;

(10) The right of projection, that is, the right to publicly reproduce art, photography, audio-visual works, etc. through technical equipment such as projectors and slide projectors;

(11) Broadcasting rights, that is, the right to publicly disseminate or rebroadcast works by wired or wireless means, and the right to disseminate broadcasted works to the public through loudspeakers or other similar tools that transmit symbols, sounds, and images, but not include the rights prescribed in item (12) of this article;

(12) The right of information network transmission, that is, the right to provide to the public in a wired or wireless manner, so that the public can obtain the work at the time and place selected by the public;

(13) the right of production, that is, the right to fix works in a medium by audiovisual production;

(14) The right of adaptation, that is, the right to change the work and create new works having originality;

(15) The right of translation, that is, the right to transform a work from one language to another;

(16) the right of compilation, that is, the right to select or arrange works or fragments of works into a new work;

(17) Other rights that shall be enjoyed by the copyright holder.

Copyright holders may permit others to exercise the rights specified in items (5) - (17) of the preceding paragraph and receive remuneration in accordance with agreements or relevant provisions of this law.

Copyright holders may assign all or part of the rights specified in items (5) - (17) of the first paragraph of this article, and receive remuneration in accordance with the agreement or the relevant provisions of this law.

Section 2: Copyright Ownership

Article 11:  The copyright belongs to the author, unless otherwise provided for in this law.

The natural person creating a work is the author.

A legal person or an unincorporated organization is regarded as the author of works that are presided over by the legal person or an unincorporated organization, that are created at the will of and on behalf of the legal person or an unincorporated organization, and for which the legal person or an unincorporated organization bears responsibility.

Article 12:  The natural person, legal person, or unincorporated organization whose name is attributed to the work is its author and has corresponding rights in the work, except where there is evidence to the contrary.

Authors and other copyright holders may register their works with registration agencies recognized by the national copyright authority.

For copyright-related rights, refer to the provisions of the preceding two paragraphs.

Article 13:  The copyright of works produced by adapting, translating, annotating, and arranging existing works is enjoyed by those who made the adaptation, translation, annotation, or arrangement, but copyrights in the original work must not be infringed when exercising this copyright.

Article 14:  Copyright in works created cooperatively by two or more people is jointly enjoyed by the collaborators.   Persons not having participated in the creation, cannot become cooperative authors.

Copyright of works of joint authorship is to be uniformly exercised by the collaborating authors through negotiation; and where they cannot reach a consensus and there are no legitimate grounds, the parties must not obstruct the other parties' rights other than the rights to transfer, permit exclusive use, or pledge, but the proceeds gained shall be reasonably allotted among all collaborating authors.

Where a work of joint authorship can be divided and used separately, each co-author may enjoy independent copyright in the parts that they created, but the exercise of this copyright must not infringe upon the copyright of the joint work as a whole.

Article 15:  A compilation work is a work that is compiled of several works, fragments of works, or data and other materials that do not constitute a work, where the originality of the work is in selection or curation of the content; and the copyright of compilation works is to be enjoyed by the compiler, but in exercising their rights, they must not infringe the copyrights in the original works.

Article 16:  The publication, performance, and production of audio and video works using works produced by adapting, translating, annotating, arranging, or compiling existing works shall obtain the permission of those works' copyright holders and of the copyright holders for the original work, and pay remuneration.

Article 17:  Among audiovisual works, the copyrights in film and television program works are enjoyed by the authors, but screenwriters, directors, cinematographers, lyricists, composers, and so forth enjoy the right of attribtuion, and have the right to receive remuneration as set forth in contracts concluded with the producer.

Ownership of copyrights in audiovisual works other than those provided for in the preceding paragraph is to be determined by agreement of the parties; where there is no agreement of the agreement is unclear, they are enjoyed by the producers, but the creators enjoy the rights of attribution and to receive remuneration.

The authors of works within audiovisual works that can be used independently, such as scripts and music, have the right to independently exercise their copyrights.

Article 18:  Works created by natural persons for legal persons or unincorporated organizations as a task of their work, the copyrights belong to the author except as provided in paragraph 2 of this article, but the legal person or unincorporated organization has the right to priority use within the scope of its operations.   Within two years of the work being completed, the author must not permit their parties to use the works in the same fashion as the unit uses them, without the consent of the unit.

In any of the following situations, authors of works for hire have the right of attribution and the remaining copyrights are enjoyed by the legal person or unincorporated organization, and the legal person or unincorporated organization may give the authors rewards:

(1) works for hire such as engineering designs, product designs, maps, schematics, and computer software that were created primarily using the legal person or unincorporated organizations' material or technological capacity, and for which the legal person or unincorporated organization bears liability;

(2) works for hire created by the staff of newspapers, periodicals, news agencies, radio stations, and television stations;

(3) Works for hire where copyrights are enjoyed by the egal person or unincorporated organization as provided for in laws, administrative regulations, or contractual agreements.

Article 19:  The ownership of copyright in commissioned works is to be agreed upon in a contract between the commissioning and the commissioned parties.   Where the contract has no clear agreement or a contract was not concluded, the copyright belongs to the commissioned person.

Article 20:  Ownership of the original work may be transferred without changing ownership of the copyright in the work, but the right to display works of art and films is enjoyed by the owner of the original work.

Where authors transfer ownership rights in the original of unpublished works of art or film, the transferees' display of that original does not constitute a violation of the authors' publication rights.

Article 21:  Where copyrights belong to natural persons, after that natural person dies their rights provided for in items (5) - (17) of the first paragraph of article 17 of this law that are still within the period for protection are to be transferred in accordance with law.

Where copyrights belong to legal persons or unincorporated organizations, and the legal person or unincorporated organization changes or ends, its rights provided for in items (5) - (17) of article 10 of this law that are within their period of protection are to be enjoyed by the legal person or unincorporated organization that inherits its rights and obligations; and where there is no legal person or unincorporated organization inheriting the rights and obligations, the rights are enjoyed by the state.

Section 3: Term of Protection of Rights

Article 22:  The term of protection of the authors' rights of authorship, modification, and integrity of the work is not limited.

Article 23:  For works of natural persons, the term of protection for the right of publication and the rights specified in items (5) - (17) of Article 10, Paragraph 1 of this Law shall be the life of the author and 50 years after their death, expiring on December 31 of the 50th year after the death of the author; and if it is a collaborative work, it ends on December 31 of the fiftieth year after the death of the last author to die.

The works and copyrights (other than attribution rights) of legal persons or unincorporated organizations in works for hire are enjoyed by the legal persons or unincorporated organizations, and the protection period for their publication rights is 50 years, ending on December 31 of the fiftieth year after the creation of the work; Day; The period of protection of the rights specified in item (5) - (17) of Paragraph 1 of Article 10 of this Law is 50 years, ending on December 31 of the fiftieth year after the first publication of the work, but the work is not published within 50 years of its creation, this law will no longer protect it.

For audio-visual works, the term of protection for the right of publication is fifty years, ending on December 31 of the fiftieth year after the creation of the work; for the rights specified in items (5) - (17) of the first paragraph of Article 10 of this Law, the term of protection is fifty years, ending on December 31 of the fiftieth year after the first publication of the work, but works that have not been published within fifty years after their creation are no longer protected by this law.

Section 4: Limitation of Rights

Article 24:  Using works in the following circumstances may be without the author's permission or payment of remuneration to them, but the authors' name or title, and the title of the work shall be indicated, and it must not impact the normal use of that work, and also must not unreasonably harm the rights holders lawful rights and interests:

(1) Using others' published works for personal study, research, or appreciation;

(2) Appropriately quoting from other's works in order to introduce or comment on the work or to explain a certain issue;

(3) Unavoidable representation or citation of a published work in news reporting by media such as newspapers, periodicals, radio stations, and television stations;

(4) the publication or broadcast by media such as newspapers, periodicals, radio stations, or TV stations of topical articles on political, economic, or religious issues that have already been published by other newspapers, periodicals, radio stations, radio stations, or TV stations, except where the copyright holders have made a declaration forbidding such publication or broadcast;

(5) the publication or broadcast by media such as newspapers, periodicals, radio stations, or TV stations of speeches delivered at public gatherings, except where the authors have made a declaration forbidding such publication or broadcast;

(6) translating, adapting, compiling, playing, or reproducing in a small amount works that have already been published, for classroom teaching at schools or scientific research, to be used by teaching or scientific research staffs, but [commercial] publication and distribution is prohibited;

(7) State organs using already published works for implementing their duties within a reasonable scope;

(8) Reproducing works in the collection of libraries, archives, memorial halls, museums, art galleries, cultural halls, and so forth, as required to display or preserve editions;

(9) Free performances of published works, where fees are collected from the audience, performers are not remunerated, and there is no aim to profit;

(10) Copying, painting, photography, and video recording of art works installed or displayed in public places;

(11) translating works by Chinese citizens, legal persons, or unincorporated organizations that have already been published and are created in the standard written Chinese language into works in the languages of ethnic minorities for publication and distribution in China;

(12) Providing published works in an accessible fashion that can be perceived by people with print disabilities;

(13) Other circumstances provided for by laws and administrative regulations.

The provisions of the preceding paragraph apply to restrictions on copyright-related rights.

Article 25:  Textbooks compiled and published to implement compulsory education and the national education plan may aggregate already published passages or short text works, musical works, or single image artistic and photographic works and charts without the copyright holders' permission, but shall pay remuneration to the copyright holders in accordance with regulations, and indicate the authors' names or titles and the name of the work, and must not infringe on the other rights lawfully enjoyed by the copyright holders.

Chapter III: Copyright Licensing and Assignment Contracts

Article 26:  A licensing contract shall be concluded with the copyright holder for use of works created by others, except where this law provides that use may be without a license.

Contracts for permission to use contain the following primary contents:

(1) The types of rights permitted to be used;

(2) That the licensed usage right is exclusive or non-exclusive;

(3) The geographical scope and duration of permitted use;

(4) Remuneration standards and methods;

(5) liability for breach of contract;

(6) other content that both sides believe should be agreed upon.

Article 27:  A written contract shall be concluded for the assignation of the rights provided for in items (5) - (17) of the first paragraph of article 10 of this Law.

Rights transfer contracts shall contain the following main content:

(1) the name of the work;

(2) the categories of transferred rights and their geographical scope;

(3) the transfer price;

(4) The date and method of delivery of the transfer price;

Article 28:  Where property rights in copyright are pledged, the pledgor and pledgee are to handle pledge registration in accordance with law.

Article 29:  Without the consent of the copyright owner, the other party must not exercise rights that are not explicitly licensed or assigned by the copyright holder in the contract permitting use or assignment contract.

Article 30:  The standards for remuneration for the use of works may be set by agreement of the parties, and remuneration may also be paid in accordance with the remuneration standards drafted by the national copyright departments in conjunction with the relevant departments.   Where parties' agreements are unclear, remuneration is to be paid in accordance with the remuneration standards drafted by the national copyright departments in conjunction with the relevant departments.

Article 31:  Publishers, performers, audio and visual recording producers, radio stations, television stations, and so forth that use others' works in accordance with the relevant provisions of this law must not infringe upon the authors' rights of attribution, modification, rights to protect the integrity of the work, and the right to receive remuneration.

Chapter IV: Rights Related to Copyright

Section 1: publication of books and periodicals.

Article 32:  Book publishers who publish books shall conclude a publishing contract with the copyright holder and pay remuneration.

Article 33:  The exclusive publication rights that book publishers enjoy by contractual agreements in books submitted by copyright holders are protected by law, and others must not publish those works.

Article 34:  The copyright holders shall deliver the work within the time limit agreed upon in the contract.   The book publishers shall publish the book in accordance with the publication quality and time limits agreed upon in the contract.

Book publishers that do not publish in accordance with the timeline agreed upon in the contract shall bear civil liability in accordance with article 61 of this Law.

Where book publishers reprint or republish works, they shall notify the copyright holder, and pay remuneration.   Where book publishers refuse to reprint or republish, after a book is sold out, copyright holders have the right to terminate the contract.

Article 35:  Where copyright holders submit manuscripts to newspapers or periodical publishers and do not receive notice from the newspaper of a decision to publish the manuscript within 15 days from the date they sent it, or have not received notice from the periodical publisher of a decision to publish the manuscript within 30 days from the date they sent it, they may submit the same work to other newspapers and periodical publishers.   Except where the parties have made other agreements.

After a work is published, except where the copyright holder has declared that it must not be reprinted or extracted, other newspapers and periodicals may reprint or publish it as abstracts or materials, but the copyright holder shall be paid remuneration in accordance with regulations.

Article 36:  Book publishers may modify or abridge works with the permission of the author.

Newspaper and periodical publishers may make textual modifications and abridgments to works.   Modifications of the content shall be with the authors' permission.

Article 37:  Publishers have the right to permit or prohibit others from using the layout design of books and periodicals published by them.

The term of protection for the rights prescribed in the preceding paragraph is ten years, ending on December 31 of the tenth year after the first publication of the book or periodical using the layout design.

Section 2: Performances

Article 38:  Performers that perform others' works shall obtain permission from the copyright holder and pay remuneration.   When a performance organizer organizes a performance, that organizer is to obtain permission from the copyright holder and pay remuneration.

Article 39: Performers have the following rights to their performances:

(1) to indicate the identity of the performers;

(2) to protect against the distortion of the performer's image;

(3) To permit others to live broadcast and publicly transmit their live performances, and receive remuneration;

(4) To permit others to make audio or visual recordings, and receive remuneration;

(5) to permit others to copy, distribute, and rent audio and video recordings of their performances, and receive remuneration;

(6) to permit others to disseminate their performances to the public through the information networks, and receive remuneration.

Where licensees use works in the manners provided for in items (3) - (6) of the preceding paragraph, they shall also obtain the authors' permission and pay remuneration.

Article 40:  Where the performances of performers completing their performance tasks for the performance unit are performances for hire, the performers enjoy the rights to have their identity indicated and to protect the image of the performance from distortion, and the ownership of other rights is to be in accordance with agreements.   Where the parties have not made an agreement or the agreement is not clear, the right to perform professionally it to be enjoyed by the performing unit.

Where performers enjoy the right to performance for hire, the performing unit may freely use the performance within the scope of its business operations.

Article 41:  The rights provided for in items (1) and (2) of the 1st paragraph of article 39 of this Law are not limited in their term of protection.

The period of protection for the rights provided for in items (3) - (6) of the first paragraph of article 39 of this Law is 50 years, ending on December 31, of the fiftieth year after a performance occurrs.

Section 3: Audio and Video Recordings

Article 42:  Audio or video producers who use other people's works to make sound or video works shall obtain permission from the copyright owner and pay remuneration.

Producers of audio recordings may use musical works that have already been lawfully recorded as audio recordings to create audio recordings without the authors' permission but shall pay remuneration; and where the author declares that they do not permit the use, it must not be used.

Article 43:  The producers of sound and video recordings shall conclude a contract with the performers and pay them remuneration for the production of sound and video recording works.

Article 44: Producers of audio and video recordings have the rights to permit others to copy, distribute, rent, or publicly transmit audio and video recordings they produce through information networks and obtain remuneration; the duration of the rights protection is 50 years and ends on December 31, 50 years after their first production is completed.

Those permitted to make reproductions, distribute, or publicly transmit works through information networks shall concurrently obtain permission from the rights holders and the performers, and pay remuneration; those permitted to lease the works shall also obtain the performers' permission and pay remuneration.

Article 45: Where audio recordings are used in wired or wireless public dissemination, or for public broadcast through technical equipment for transmitting sound, remuneration shall be paid to the sound recording producer.

Section 4: Broadcasting by Radio or TV Stations

Article 46: Radio and television stations broadcasting unpublished works by others shall obtain permission from the copyright holder and pay remuneration.

Radio and television stations broadcasting others' published works may do so without the authors' permission but shall pay remuneration as provided

Article 47: Radio and television stations have the right to prohibit the following conduct that does not have their permission:

(1) Rebroadcast of radio and televisions broadcasts by wired or wireless means;

(2) Recording or duplication of radio or television;

(3) Dissemination of their radio and television to the public through information networks.

Radio and television stations exercise of the rights provided for in the preceding paragraph must not affect, restrict, or infringe upon others’ exercise of copyright or copyright-related rights.

The duration for protection of the rights provided for in the first paragraph of this article is fifty years, ending on December 31 of the fiftieth year after the first broadcast on radio or television.

Article 48: Television stations broadcasting audiovisual or video recording works shall obtain the permission of the rights holders in the video works or the video recordings' producers, and pay remuneration; where they broadcast others' audio recordings, they shall also obtain the authors' permission and pay remuneration.

Chapter V: Protections of Copyrights and Rights Related to Copyright

Article 49:  Right holders may take technical measures to protect copyright and copyright-related rights.

Without the rightsholder's permission, no organization or individual may intentionally circumvent or damage technical measures; manufacture, import, or make available to the public relevant devices or components for the purpose of circumventing or damaging technical measures; or intentionally provide technical services for others to circumvent or damage technical measures.   However, circumstances where laws or administrative regulations provide that circumvention is permissible are exempted.

"Technical measures" as used in this Law refer to effective technologies, devices, or components that serve to prevent or restrict the browsing or enjoyment of works, performances, or audio or video recordings, or the making available to the public via information networks of works, performances, or audio or video recordings, without the rightsholder's permission.

Article 50: Technical measures may be circumvented in the following circumstances, but the technologies, devices, or components that circumstance technical measures must not be provided to others, and other rights enjoyed by the rightsholder according to law must not be infringed:

(1) providing a small number of published works to be used by teaching or scientific research personnel for classroom teaching at schools or for scientific research, where such works cannot be acquired by normal means;

(2) Providing published works in an accessible fashion that can be perceived by people with print disabilities for non-profit purposes, where such works cannot be acquired by normal means;

(3) State organs performing official duties in accordance with administrative, supervision, and judicial procedures;

(4) Conducting security tests of computers, computer systems, or networks;

(5) Conducting encryption research or research on reverse engineering computer software.

Article 51: The following actions must not be carried out without the permission of the right holder:

(1) intentionally deleting or altering the rights management information in works, layout designs, performances, audio or video recordings, or broadcasts or television, except where it cannot be avoided for technical reasons;

(2) Where one knows or should know that rights management information on works, layout designs, performances, audio or video recordings, or radio or television has been deleted or changed without permission, and still provides them to the public.

Article 52: Where there is any of the following infringing conduct, civil liability such as for stopping operations, eliminating impact, making formal apologies, and compensating losses shall be borne based on the circumstances:

(1) Publishing works without the permission of the copyright owner;

(2) Publishing a work created in cooperation with others as a work of one's own creation without the permission of the cooperating authors.

(3) Attaching one's name to the works of others in order to seek fame or benefit, where they did not participate in their creation;

(4) Distorting or altering others' works;

(5) Plagiarizing others' works;

(6) Use the work in the way of exhibition, filming of audiovisual works, or use the work in the ways of adaptation, translation, annotation, and so forth, without the permission of the rights holder, except as otherwise provided for in this law;

(7) Using others' works where remuneration shall be paid and not making the payment;

(8) Renting out works or the original or reproductions of audio or visual recordings without the permission of the copyright holders, performers, or producers of an audiovisual work, computer software, or audio and visual recording except as otherwise provided in this law;

(9) Using the layout design of books and periodicals published by a publisher without their permission;

(10) Broadcasting live performances on-site or publicly transmitting live performances without the performers' permission, or recording their performances without permission;

(11) Other infringements of copyrights and copyright-related rights.

Article 53: Where there is any of the following infringing conduct, civil liability prescribed by article 52 of this Law shall be borne based on the circumstances; where the infringing conduct also harms the public interest, the departments for copyright are to order that it be ceased, give a warning, and confiscate the illegal proceeds, confiscate or destruct in a harmless way the infringing copies and the materials, tools, or devices, etc. principally used for manufacturing the illegal copies, and where the illegal business revenue is over RMB 50,000, may impose a fine between one and five times the illegal business revenue; where there is no illegal business revenue or the illegal business revenue is hard to calculate or is less than RMB 50,000, a concurrent fine of less than RMB 250,000 may be imposed; where a crime is constituted, criminal responsibility is to be pursued according to law:

(1) Reproducing, distributing, performing, screening, broadcasting, compiling, or disseminating works to the public through information networks without the permission of the copyright holders, except as otherwise provided for in this law;

(2) Publishing books for which others enjoy exclusive publishing rights;

(3) Reproducing and distributing audio and video recordings of performances, or disseminating performances to the public through information networks without the permission of the performers, except as otherwise provided for in this law;

(4) Reproducing, distributing, or disseminating audio and video recordings to the public through the information network without the permission of the audio and video producer, except as otherwise provided in this law;

(5) Broadcasting, reproducing, or disseminating radio or television to the public through information networks without permission except as otherwise provided for in this law;

(6) Without the permission of the copyright holders or holders of copyright-related rights, Intentionally avoiding or destroying technical measures or intentionally creating, importing, or providing others with devices or components mainly used to avoid or destroy technical measures, or intentionally providing technical services for others to avoid or destroy technical measures, except as otherwise provided by laws and administrative regulations;

(7) Intentionally deleting or altering the rights management information on a work, layout design, performance, audio or video recording, or radio or television without the permission of the copyright holder or copyright-related rights holders, where one knows or should know that the work, layout design, performance, audio and video recordings, or radio and television rights management information are deleted or changed without the permission of the copyright holders and holders of copyright-related works, are still provides them to the public, except as otherwise provided by laws and administrative regulations;

(8) producing or selling works passing off another person’s signature.

Article 54: Where the copyright or copyright-related rights are infringed, the infringer shall give compensation according to the actual damages suffered by the rightsholder as a result or the infinger's unlawful gains; where it is difficult to calculate the rightsholder's actual damages or the infringer's unlawful gains, compensation may be given by reference to the applicable royalties.   Where the copyright or copyright-related rights are infringed and the circumstances are serious, damages may be given between one and five times the amount determined according to the aforementioned methods.

Where it is difficult to calculate the rights holder's actual damages, the infringers unlawful gains, or the royalties, the people's courts are to make a judgement to give compensation between 500 and 5,000,000 RMB based on the circumstances.

The amount of compensation shall also include reasonable expenses paid by the rights holder in stopping the infringement.

Where the rights holders have already satisfied the necessary burden to produce evidence and the account books and materials related to the infringement are mainly in the hands of the infringers, the people's courts may order the infringers to provide them in order to determine the amount of compensation, and where the infringers fail to provide them or provide false account books, materials, and so forth, the people’s court may determine the amount of compensation by referring to the claims of the right holder and the evidence provided.

At the request of the rights holders, people's courts hearing cases of copyright disputes are to order the destruction of the infringing copies, except in special circumstances; order the destruction without compensation of materials, tools, equipment, and so forth that are primarily used to create infringing copies are ordered destroyed; or in special circumstances, order a prohibition of the aforementioned materials, tools, equipment, and so forth from entering commercial channels, and do not give compensation.

Article 55: When investigating suspected violations of copyrights and copyright-related rights, the departments for copyright may question the relevant parties and investigate circumstances related to the suspected illegal acts; conduct on-site inspections of the locations and items of the parties' suspected illegal acts; review and reproduce contracts, invoices, account books and other relevant materials related to the suspected illegal acts; and seal or seize the locations and items of the suspected illegal acts.

When departments for copyright lawfully perform the duties provided for in the preceding paragraph, the parties shall assist and cooperate, and must not refuse or obstruct.

Article 56: Where the copyright holders or holders of copyright-related rights have evidence proving that others are committing or about to commit acts that infringe on their rights or impedes their realization of their rights, that if not promptly stopped will cause harm to their lawful rights and interests that is difficult to undo, they may apply to the people’s court in accordance with law to take measures such as property preservation, ordering that certain actions be taken, or prohibiting certain actions.

Article 57: In order to stop infringement, in circumstances where evidence may be lost or difficult to obtain in the future, the copyright holders or the holders of copyright-related rights may apply to the people's court to preserve the evidence before initiating litigation.

Article 58: In hearing cases where copyrights or copyright-related rights are infringed, the people's courts may confiscate illegal proceeds, infringing copies, and property used for illegal activities.

Article 59: Where the publishers or producers of copies cannot prove they had legal authorization for the publication or production, or where the distributors of copies, or the renters of copies of audiovisual works, computer software, or audio or video recordings cannot prove that the copies they distribute or rent have legal sources, they shall bear legal liabilities.

During litigation procedures, where the defendant infringer claims they do not bear liability for the infringement, they shall provide evidence proving that they already obtained the permission of the rights holder, or that there are circumstances provided for in this law allowing use without permission of the rights holder.

Article 60: Disputes over copyright may be settled by mediation or be submitted for arbitration to a copyright arbitration institution under a written arbitration agreement concluded between the parties concerned, or under the arbitration clause in the copyright contract.

Where the parties do not have a written arbitration agreement, and there is no arbitration clause in the copyright contract, they may directly initiate litigation in the people's court.

Article 61: Where parties bear civil liability for not performing their contractual obligations or for performance that did not comply with provisions of the agreements, as well as where parties exercise their litigation rights or apply for preservation, relevant provisions apply.

Chapter VI: Supplementary Provisions

Article 62: "Author's rights" as used in this Law has the same meaning as "copyright".

Article 63: Publication as used to in Article 2 of this Law refers to the reproduction and distribution of works.

Article 64: The State Council is to separately provide protection measures for computer software and information network transmission rights.

Article 65:  Photographic works no longer enjoy protection, where the terms of protection for their rights to publication as well as the rights provided in article 10, paragraph 1, items 5 to 17 of this Law have expired by June 1, 2021, but such rights are still within the terms of protection under article 23, paragraph 1 of this Law.

Article 66: Where the rights of copyright holders as well as publishers, performers, audio and video producers, radio stations, and TV stations as provided in this Law are still within the terms of their protection as provided in this Law as of the effective date of this Law, they are to be protected in accordance with this Law.

Infringement or breaches of contract that occurred before this law took effect are to be handled in accordance with the relevant provisions from the time when the infringement or breach of contract occurred.

Article 67: This Law is to take effect on June 1, 1991.

We are grateful for the translations done by China Law Translate at https://www.chinalawtranslate.com/en/Copyright-Law-of-the-PRC-(2021-Version)/

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Overview of Administrative Copyright Enforcement in China

The new PRC Copyright Law will come into effect on June 2021.

China has a three-track enforcement system for copyrights – criminal, civil and administrative. This gives options to IP owners. Because there are so many copyrights covering books, music, film, digital content, applied art and other forms of work, copyright cases usually outnumber those of trademark, unfair competition and patent infringement. Therefore, China’s copyright administrative enforcement authority plays a very important role in cracking down on copyright infringers as the administrative route is cheaper and faster to take. This allows many cases to be resolved without having to be brought to the IP courts, which are already burdened with a heavy caseload.

In this article, we will look at recent developments in China’s copyright administrative enforcement system to show the wide range of options available for IP owners. 

The copyright administrative enforcement authority

Copyright enforcement is led by the National Copyright Administration of China (NCAC) and its various levels of copyright administrative authorities (CAA). Its role is to protect the exclusive rights of copyright holders as well as the public interest. The only exception to this enforcement system is that the Shenzhen Administration for Market Regulation (AMR) is in charge of administrative copyright enforcement in Shenzhen, as it is a special economic zone.

CAAs are empowered to conduct on-site inspections of premises where illegal acts by an infringer occur, interrogate relevant and responsible persons, seize alleged infringing reproductions, equipment for installing/storing infringing reproductions, materials, tools and equipment used for the purpose of committing illegal acts, and to check, seal-up and make copies of files, accounts and other related written materials. These are very extensive powers far beyond what can be achieved in a civil case.

In March 2019, the Nanjing City CAA raided Nanjing LeKu Internet Technology Co.Ltd for making illegal profit through its app “Korea Opera TV” which provided 88 online unauthorized films and other audio-visual works and advertisements.  The CAA issued a decision to confiscate the illegal profit of RMB 20,000 (USD3,076) and imposed a fine of RMB 839,000 (USD129,076)

Compared to civil litigation which usually takes 6 to 18 months for first instance judgements, an administrative punishment decision is usually issued within 3 months. Depending on the severity of the copyright infringement, the authority can issue a decision to confiscate seized items and illegal profits, destroy infringing reproductions, tools and equipment without compensation and impose a fine of up to five times the illegal turnover. The punitive decision is published on the CAA’s official website.

The Shenzhen AMR issued a decision on 4 November 2020 (within a month after filing the case) with a fine of RMB 10,000 (USD1,538). It was imposed based mainly on notarized purchases from Hong Kong against a factory for illegally installing TV boxes and disseminating US copyrighted films and selling them to overseas buyers. The punishment was published on the Shenzhen AMR’s official website [1] . 

Copyright infringement is becoming more technical, such as cases of applied artworks, anti-circumvention and rights management information cases, communication to the public digital infringement. So CAAs, especially in tier one cities like Shenzhen, Guangzhou, Shanghai and Beijing, having to decide more and more complex copyright infringement case at the administrative stage.

A 2020 case for a Japanese copyright holder involved technology circumvention tools related to a computer game console. The Guangzhou and Shenzhen CAA had to decide on Article (6) of Article 48 of the Copyright Law regarding intentional avoidance or destruction of technical measures without the consent of the copyright holder. After careful consideration and technology verification, both authorities issued punishment decisions imposing penalties on distributors/service providers of the game console. 

The pre-requisite of public interest for copyright administrative enforcement

In addition to the Copyright Law, China has also promulgated other rules to protect copyright. These include the Implementation Regulations for the PRC Copyright Law, Regulations on Protection of information Network Transmission Right, Regulations on the Protection of Computer Software, Measures for the Implementation of Copyright Administrative Punishments, and the Measures for the Administrative Protection of Internet Copyright.

In order for the CAA to implement the aforementioned laws and legislations in copyright infringement cases, it is a pre-requisite that public interest is also harmed by the infringing act, according to Article 48 of the Copyright Law. There is no clear definition as to what constitutes as “an infringement act that also harms public interest”. In practice, CAAs at different levels have different approaches to applying this Article. Some cases are rejected by the CAA over doubts about the “public harm”, of which the IP owners involved are advised to go to court.

Some years ago, the NCAC provided guidance regarding how to apply Article 48 concerning the public interest to the Zhejiang Provincial Copyright Administration. The NCAC sets out the principle that if an act not only infringes another’s copyright but also harms fair competition in the market, the act should be deemed as also harming public interest. This has given some guidance for law enforcement and it is not too difficult for copyright holders to prove this. In our experience, copyright holders should provide initial evidence of the infringing act with a purpose to make illegal profit, the infringement scale, some examples of unfair competition, as well as harm to consumers’ interest, and reasons this will cause disorder to the market. Then the CAA will accept a case.

A decorative textiles copyright infringement case handled by the Guangdong Provincial Copyright Administration (GDPCA) is also regularly referred to by CAAs, particularly in Guangdong Province, as guidance for officials to consider whether public interest has been harmed. They look at several factors including:

1. Harm to the IP holder, which also includes harm to fair competition in the market and causes a risk to other competitors.

2. The difference in quality of copyright infringements potentially suffered by consumers.

3. Pirated products, which lead to tax evasion and harming the state.

Proving copyright infringement and using the copyright recordal system

Copyright automatically arises in a completed work embodied in a tangible medium of expression. In practice, the copyright enforcement authority requests a copyright holder to provide a copyright recordal certificate to initially prove copyright ownership before they will review its merits and file a copyright infringement case. A copyright recordal certificate is issued by the NCAC (without substantial review of an application) upon voluntary application by the copyright holder. This serves as prima facie evidence of copyright subsistence and ownership. Unless the infringer can provide evidence otherwise (which requires the submission of evidence such as original manuscripts and drafts, contracts, etc.), the copyright recordal is accepted by the enforcement authority as evidence of copyright ownership.  

Along with covering technical copyright issues, a copyright recordal certificate also covers efficiency issues. This is because it is in Chinese and it has an official status. Not only is it a time saver for the CAAs, but it can be relied on when enforcing copyright through cease-and-desist letters or complaints to third-party e-commerce or social media platforms.

Copyright recordal is a speedy process – a recordal takes only three to four months and because no examination is required, it is also inexpensive. A fast-track process varying from 1 working day to 35 working days can be requested to expedite the progress by paying additional fees. IP owners worry that such recordals are a barrier to enforcement, but proving subsistence and ownership in the Chinese language is often a more time-consuming process.

According to the 2019 white paper Intellectual Property Protection Status issued by the China National Intellectual Property Administration (CNIPA), there were over 4 million applications for copyright recordals in 2019, covering 2.7 million works and 1.5 million computer software programs.

Administrative cases used in civil litigation

  One important use of administrative cases is to secure evidence for civil litigation. In some cases, the cessation of infringement will be sufficient. In others, however, IP owners will need to seek damages. In such cases it is often useful to file an administrative action first so that all the evidence can be obtained. In our experience, it is far more effective to obtain evidence through this method than through private investigations. The goal of the copyright holder then will be to secure an award of damages.

In December 2020, Rouse filed a complaint against a jewelry wholesaler in the Shuibei area (famous for jewelry wholesales) in the Luohu District AMR of Shenzhen. The AMR raided the store and seized over 20 luxury rings, bracelets and necklaces made of gold and platinum that were replicas of copyrighted luxury jewelries without the brands. The illegal value of the seized goods reached the criminal threshold and the AMR transferred the case to the local police for criminal investigation in February 2021. The copyright holder has begun settlement negotiations seeking damages of RMB 1 million (USD153,846). The prospects of winning a civil litigation case based on evidence from the raid is high if a settlement is not reached.

Jianwang Campaign ( or “ SwordNet Campaign”)

China conducts campaigns to enforce IP protection. Since 2005, the NCAC, together with the Ministry of Industry and Information Technology (MIIT), the Ministry of Public Security (MPS) and the Cyberspace Administration of China (CAC) have run an annual “Jianwang Campaign” aiming to tackle online copyright infringement in music, movies, literature, games, e-commerce, software and applications – all types of online copyright infringement.

According to government statistics, the NCAC, MITT and MPS has dealt with 5578 cases related to Internet infringement and piracy, including the legal shutdown of 3079 pirate sites and confiscating 2230 servers and related devices and imposing fines of up to RMB20.52 million. According to the China Intellectual Property Protection Status , the Jianwang Campaign has led to 1.1 million piracy links removed, 10.75 million piracy replications were confiscated, 1,405 piracy websites were shut down, 450 internet copyright infringement and piracy cases were handled, 160 copyright infringement cases worth of RMB524 million were (US$80.6 million) transferred to the criminal authorities or investigated.

Such campaigns have missed results. Some accuse the government of publishing great statistics only since copyright infringement problem remains widespread. However this misses 2 important points. First copyright is widely understood to be an issue of public good too. Creativity is protected only where the government steps in and takes action. In a country like China where infringement is not uncommon, government campaigns provide a good solution. The second point is this; these campaigns are a bedrock on which the CAAs develop extensive experience, which IP owners can rely on to secure great case results for themselves.

In January 2019, Shanxi Provincial and Changzhi Municipal police and the CAA formed a special team to investigate into the website of Shengcheng Jiayuan ( 圣城家园网 ) for the unauthorized online dissemination of films, music, games and software. During the joint enforcement, it was found that the operator Mr Zhu and other infringers had made profits from illegally providing its members (more than 2 million registered members) 16,700 films, 16,300 music works,4,700 games, and 9,900 software, involving a total of over 1.3 billion clicks. In December 2019, Huguan County People’s Court in Changzhi City issued a criminal judgement against Mr. Zhu and the other infringers for copyright infringement, imposing a sentence of up to 3 years and 6 months and fines of up to RMB 810,000 (USD124,615) for each individual. It only took the authorities 15 days to make the decision, from filing the case to arresting the first suspect, and less than a year to the trial.

Customs Copyright Protection

Another administrative authority that can handle copyright infringement and piracy cases is the China customs. Copyright holders can file applications for copyright recordals in the national customs database and provide training in different ports to get on-site inspecting officials familiar with  copyrighted works to enhance the chance of intercepting reproduced or pirated goods. According to China Intellectual Property Protection Status , the China Customs seized 303 shipments of 83,700 copyright infringing products in 2019.

In April 2020, Foshan customs (under Guangzhou Customs) intercepted 1825 backpacks with SWISSGEAR labels infringing Swiss Wenger’s copyright. It is the biggest seizure of copyright infringement in the past 3 years for Guangzhou customs [2] .

  In Feburary 2020, Xiamen customs seized 24,000 light sticks infringing the copyright of Xiamen Changhui Enterprise Ltd ( 厦门长辉实业有限公司 ). The copyright holder did not record its copyrights beforehand with customs, but the copyright holder reported the target shipment to Xiamen customs, submitted its copyright certificates and paid the bond. Xiamen customs reviewed the copyright and made comparison with the target light sticks and accepted the case. [3]

Shenzhen as the most advanced CAA

With its unique test and pilot systems for IP enforcement, Shenzhen is a frequent trail blazer in IP cases. A key concern in China is deterrents. Administrative enforcement suffers from the accusation that fines are too low, just a cost of doing business for IP infringers. A key worry for IP owners using administrative remedies instead of civil ones is whether the penalty will be higher than the gains from IP violations.

In March 2014, Tencent, which was the exclusive licensee of 13 copyrighted audio-visual works, made a complaint to Shenzhen AMR against Qvod (a developer and provider of software for broadcasting audio-visual works) for disseminating the 13 works on the internet without authorization. Before Tencent filed the complaint, it had sent 3 cease-and-desist letters to request Qvod stop the infringement. Tencent also provided a civil judgment from the Shenzhen Nanshan District Court to prove that similar infringing behavior made by Qvod was confirmed by the court to be copyright infringement and ordered to stop the infringing activity and to pay damages.  

Based on evidence against Qvod on repeated copyright infringement and public harm, the AMR issued a fine of RMB 260 million (US$ 40 million), which was three times of Qvod’s illegal business turnover of RMB 86.71 million. Qvoq appealed to the Guangdong provincial Copyright Bureau by filing for first instance administrative litigation at the Shenzhen Futian District People’s Court, for second instance administrative litigation at the Shenzhen City Intermediate People’s court, and for final administrative litigation to the Guangdong Provincial Higher Court. In 2019, the Higher Court made a final binding judgement rejecting all of Qvod’s claims and upheld the decision. As a result of the decision, Qvod went into bankruptcy.

China handles a vast number of copyright administrative cases. They are inexpensive, speedy and are effective for most situations. Many cases are directly initiated by the authorities under government campaigns, and the CAAs are becoming more experienced in tackling new subject matters.  Administrative remedies are a great first step for copyright holders seeking criminal and civil penalties in cases of copyright infringement.

[1] https://amr.sz.gov.cn/outer/doublePublic/detail.html?id=a7eea817a9314bc8a548d2e23541ca9b&type=XZCF&name=zhxnxwwk2dl53nhpx7dlzpfv47l5hu6qz7pltk6lx3e6nt6ty7llpogw7dl7psfiwc4a

[2] http://szb.nanhaitoday.com/epaper/zjsb/html/2020-04/10/content_5804.htm

[3] https://www.sohu.com/a/375554003_120207622

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How To Prepare Copyright License Contract Under China Case Law Landscape?

Contributor.

Both the movie and TV series San Sheng San Shi Shi Li Tao Hua have been very popular in China. They were the derivative audiovisual works based on the literary work with the same title. Thus a number of online game developers are eager to make the online game derivative work San Sheng San Shi Shi Li Tao Hua. However, the claimed sub-licensee to make the online game derivative work recently brought a suit against the owner of the original literary work and the licensee on the ground of breach of contract. The plaintiff claimed liquidated damages and economic loss around US$ 1.65 million.

In recent years, markets for IP have been continuing to expand and to increase in sophistication, providing new ways to utilize, commercialize and monetize IP attribution to the rapid economic development in China. Even industries that are not traditionally considered as being "high-tech" or "knowledge-based" are being transformed by innovations that can become valuable (and licensable) intellectual assets if properly protected and managed. Licensing activity, including copyright licensing, has increased in both volume and complexity to meet the demands of this market place. In particular, the entertainment industry has been booming in China in the past recent years. Thus copyright transaction has been very active in entertainment industry.

Most of the copyright transactions were done by copyright license rather than copyright assignment based on our practice. However, in the Chinese legal practice, most of contracts are drafted very briefly and ambiguous which are not like those in developed western countries. However, with the booming economic development in China in recent years, some exclusive rights statutorily extended to the right holder may have huge amount of economic benefits. Thus the parties to a copyright license contract often have to seek courts' rulings to resolve their disputes due to the poorly drafted contract lack of clarity and foresight or poor risk management in preparation of the copyright license contract.

Copyright licenses may vary tremendously in content and form. However, license agreements are also contracts and, as contracts, are subject to basic contract law. Even though copyright license disputes will be subject to preemption by China copyright law for copyright issues, many disputes will involve issues that are purely contractual, like performance obligations, payment terms, and enforcement or violation of bargained for terms of use and limitations on use. Contract provisions can be used to impose restrictions on the use of copyright protected works that are not provided by copyright law, like restrictions on the users of a purchased work or the fields and methods of use of the work. These types of contractual restrictions are particularly important for licensing of software, when copyright offers only limited protection.

Based on our practice, the right to make derivative work of a literary work has been a hot issue in most copyright contract cases in China. But the China copyright statute and contract statute provide little guidance on how to exercise right to make derivative work of a literary work. The exclusive rights of works of authorship "adaptation right" and "filming right" defined by the copyright statute have close connection with the right to make derivative work of a literary work. But they are very general and ambiguous. Thus they provided little guidance in preparing the copyright license agreements.

Some high profile cases have provided guidance on the modern day scope, and limitations, of copyright protection for copyright owners and users as technologies for copying and distributing content become faster, cheaper and more widely accessible. Thus this article does not intend to provide comprehensive guidance on how to prepare a copyright license contract. This article only provides an overview of the key terms and risk management to consider when preparing a license for a work protected under China copyright laws, while highlighting ways in which the license should reflect, and be informed by, the objectives and constraints of the parties and the changing technological and business landscape impacting copyright-protected works.

Understand Parties to License Contract

When starting the license negotiations it is crucial to know some basic facts about the parties. For the licensee, it is important to know whether the licensor is the original creator and/or owner of the work. If the licensor is not the creator, then the license should provide representations that the licensor has acquired all of the rights to the work (and diligence should be done to confirm this). If the licensor is the co-author of a joint work, then licensor's co-author may have retained right in the work. In some cases, the licensor may be a licensee of the original copyright owner, and in this case the sublicense must conform to any restrictions and limitations included in the original copyright license.

In the above-mentioned San Sheng San Shi Shi Li Tao Hua case, the key issues are that an online game developer entered into a sublicense agreement to make online game based on the literary work of San Sheng San Shi Shi Li Tao Hua with the licensee of the literary work. When the online game developer had invested a lot of money and resources to develop the online game and planned to launch the online game, the owner of the original literary work publicly denied through his blog the authenticity of the signature on all the authorization documents to authorize the licensee to sublicense the exclusive right to make online game based on the literary work. Such statement had seriously impacted the online game developer's business plans and caused huge amount of economic loss to the sub-licensee.

In the case Ultraman , a Chinese company got license to publish the Japanese cartoon books in simplified Chinese character from the assignee, a Thailand company, of exclusive property right of the Japanese cartoon books. But the inheritor of the owner of the original work Ultraman denied that the owner of the original work had really executed the copyright assignment agreement with the Thailand company. Meanwhile, the inheritor of the owner of the original work Ultraman brought a copyright infringement suit against the Chinese licensee.

In the case Disneyland , a Beijing publishing house published Disneyland cartoon books in simplified Chinese character under the sublicense agreement with Maxwell, which was the licensee to publish the Disneyland cartoon books in simplified Chinese character in China. However, the Disneyland company did not authorize Maxwell sub-licensing such right. Thus the Beijing publishing house had to pay damages claimed by Disneyland company which was the owner of the original work of authorship.

In the case Hu Shi and Wei Lian Si , the owner of the original literary work had assigned all the copyright thereof to a Taiwan company before he granted an exclusive license right to publish the work in simplified Chinese character to a Shanghai publishing house. In the case mouse loves rice , exaggeratedly the owner of the popular music work entered into whole copyright assignment agreements with four different parties within four years.

Based on the above cases, we can see that it is important to ensure the licensor has the proper authority to enter into the license agreement. In addition, financial stability of the licensor will be important when the licensor has continuing performance obligations. In software licenses, it may be critical for the licensee to provide for continued access to the source code of a licensed product in the event of bankruptcy (with escrow provisions and frequent updates). For the licensor, it may be important to know whether the licensee is a company or an individual. The licensor will want to know if the licensee has the capacity and ability to market and sell the work, competing or complementary products, and whether the licensee is focused on China or foreign markets. In addition, if the licensor is indemnified for certain risks, it will want to ensure that the licensee has adequate resources (such as insurance or assets sufficient to cover the risk). If the licensee is a foreign company and the licensed exclusive right relates to making audiovisual works, the licensor should keep in mind that whether the licensee has the capacity to realize the licensor's business goals by exercising the licensed right because the foreign company is restricted to make audiovisual works in China.

When the licensee has the right to sublicense, the license should cover terms concerning right to approve sublicenses, payments by sub-licensees, and effect of termination on sub-licensee rights. The licensor can decide whether to retain the right to approve sublicenses and whether to be joined as a third party beneficiary to the sublicenses so as to have a direct way of enforcing its rights. Joint and several liability can be used to ensure that the licensee is responsible for the actions of its sub-licensees. When sublicenses survive termination, the licensor could find itself with unanticipated licensing relationships with new parties.

Clearly Define License Grant

The scope of the license grant will depend on the bargaining power, relative needs, and opportunities of the parties to the license. The parties should take special care to clearly define the rights granted. Is the license to have the right to copy? Display? Perform publicly? Distribute? Create derivative works? What use can be made of derivative works? With respect to the rights granted, the parties should further consider the territory in which the license can be exercised, the markets, the media ( e.g., books, online, CD-ROMEs), and technological platforms. Is, for example, the copyrighted content to be used worldwide, or just in China or a particular region of China? Is the relevant market wholesale or retail? Does the market include government, business and/or education? Is the market limited to a particular industry, e.g., sports? Or is it a particular sub-division of that industry, e.g., baseball? Can the content be displayed in print, radio, motion pictures, cable TV, network TV, pay TV, the Internet? If on the Internet, for example, how can the content be displayed—through email blasts, YouTube, blogs, Web sites, interactive games, etc.? If the subject of the license is software to be used in a company, which divisions can use the software, where can the software be loaded, how many users can access the software, etc.?

Lack of clarity and foresight can lead to problems down the road. Using the licensed content outside the scope of the grant will constitute an infringement. In the case Dao Mu Bi Ji , the licensee was licensed to make online game based on the original literary work Dao Mu Bi Ji, which was entered into in 2009. But in the next years, the mobile terminal game had become more and more popular. Thus the licensee also developed the mobile terminal game. The owner of the original literary work brought a suit against the licensee on the ground of copyright infringement and won the case. Actually, in this situation, the owner of the original literary work can pursue the licensee's liability of breach of contract or liability of infringement. But the license agreement failed to define the liquidated damages on this. Thus the owner of the original literary work brought a copyright infringement suit against the licensee and claimed damages around US$ 160,000. However, the court only awarded damages around US$18,000. The Chinese courts have been seemed very conservative on awarded damages based on the economic loss of the right owner in infringement suit or that of the non-breaching party in contract suit.

In this context, the distinction between "covenants" and "conditions" should be noted in connection with drafting a licensing agreement and, specifically, the license grant. Breach of an obligation that is merely a covenant will give rise to a breach of contract claim. Breach of an obligation that is a condition to the license grant may give rise to a claim that the licensee is acting outside the scope of the license and to a copyright infringement claim.

In the case Cong Cong Na Nian , the licensee made online movies according to the copyright license agreement entered into with the owner of the literary work. The online movies were very popular. So the licensee engaged third party and created the continuation work called Cong Cong Na Nian: Hao Jiu Bu Jian. The owner of the original literary work did not think the licensee can create the continuation work under the license agreement and brought a copyright infringement suit against the licensee.

The right to make derivative works based on the original literary work usually means that the licensee needs to make some changes over the original literary work. But the China copyright statute provides that the derivative works shall not infringe the rights of the owner of the original work. However, the copyright statute failed to define the boundary of the extent to alter the original literary work. This ambiguity has caused a number of disputes between the owner of the original literary work and the licensee. In China, this issue is mainly reflected by the conflicts between the licensee's adaptation right and the integrity right of the owner of the original literary work.

In the case Gui Chui Deng , the derivative movie work Jiu Ceng Deng Ta unfortunately had not got the same good comments from the public as those of the original literary work Gui Chui Deng . On the contrast, most of the comments from the public on the movie were negative. Thus the owner of the original literary work felt that the derivative movie work distorted and tampered the original literary work. Then he brought a copyright infringement suit against the licensee. Similarly, in the cases Shanghainese in Tokyo and Liu San Jie , the owners of the original literary works both thought that the licensee had infringed upon their rights of integrity and brought suits against the licensees.

Based on the above cases, we can conclude that it's necessary to explicitly define the derivative work's extent to alter the original literary work although it's not easy in practice.

The objective of any license deal is control: the licensee wants to seek to maximize the rights granted—which may include locking in terms on future rights; the licensor would maximize revenue and be careful not to inadvertently give away rights that might be leveraged into further revenue. Accordingly, the parties should very carefully granulate the rights that are the subject of the grant and avoid ambiguities that might result in failure of the licensee to obtain necessary rights, the inadvertent grant by licensor of certain rights, and litigation that is costly to both sides.

License Term

The term of a copyright is prescribed by statute. The term of a copyright license may not exceed the term of the copyright and royalties cannot be enforced beyond the life of the copyright. In the event that the license is for a term of years, the licensee should be very careful to negotiate renewal rights and lock in rates for renewal. Licensors of exclusive licenses should be especially wary of renewal provisions and should consider allowing renewals only upon licensee achieving some financial milestone that justifies renewal of the exclusive license.

In China, to make a movie or TV program, it's essential to get all the licenses from the government agencies. And it's often time-consuming to get those licenses. Based on our practice, if the license grant involves the right to make audiovisual derivative works we suggest the license term not shorter than five years. Otherwise, the disputes may arise from performance of the contract.

In the case He Yi Sheng Xiao Mo , the owner of the original literary work He Yi Sheng Xiao Mo granted a three-year exclusive license to company A to make TV and movie based on the literary work. Within the license term, the TV was successfully launched and was very popular. In terms of the movie, company A had completed the play writing and got the license to produce movie, but they did not start the filming work. After the license term is expired, the owner of the original literary work exclusively licensed company B to make movie and the license term is also three years. Then company A publicly stated that they would launch their movie shortly. Both the owner of the original literary work and company B did not think company A still had the right to produce the movie based on the literary work. They publicly fought against each other through their official blogs. Under this situation, it is necessary for the licensee to carefully design the performance terms of the contract. The licensee can consider borrowing the clauses of an option agreement into the license agreement. Similarly, in the case The Last Night of Jin Da Ban , the owner of the original literary work The Last Night of Jin Da Ban brought a copyright infringement suit against the prior licensee because they failed to produce the TV based on the literary work within the license term but continued to produce the TV after the license term.

License Fees

Copyright licenses generally adopt a fixed fee model, a royalty based model or a combination of the two.

A fixed fee generally is paid up front or at fixed intervals over time. Licensees should consider negotiating for provisions that condition any fixed payment obligations on licensor's achievement of milestone/performance obligations. The licensee may want to delay any payment until an "acceptance" conditioned. In the event the licensee is incorporating the licensed content for resale, the parties may consider a royalty based compensation model in which the licensee's payment is based on revenues or on the number of units sold containing the licensed content, for example. The parties will want to carefully define when a sale occurs for purposes of triggering a royalty obligation. For example, licensors typically are unwilling to allow the licensee's royalty obligation to depend on the licensee's success in collecting payment from the end user. If royalties are to be based on revenues, as opposed to unit sales, the parties also will want to carefully define the revenue pool against which the royalty will be calculated. Licensors may want to consider pushing for the royalty rate to be applied to "gross sales" so as to minimize the complexity in the calculation. If the parties agree on "net sales," the license agreement needs to carefully define just what that means and account for such items as credits for returns, sales taxes, and discounts.

Particularly in the context of exclusive licenses, the licensor should consider imposing a minimum royalty requirement as a condition of maintaining exclusivity. As noted above, the licensor should consider negotiating other resource allocation requirements (minimum spends, dedicated man hours, etc.) to help increase the likelihood that licensee will meet royalty minimums.

The above discussions are general royalty arrangement rules in business. However, in China, if the licensee is a Chinese company the licensor needs to be more careful for the payment of royalty. Based on our practice, usually we don't think it's practical for the royalty based model because it's really hard to expect a true financial report from the licensees. Due to this business culture difference between China and the western countries, there were often disputes concerning the payment of license fees. In the case The Learning Revolution , the two joint owners of the literary work The Learning Revolution were paid the fixed license fee based on the sales volume of 400,000 books but they found the books were actually sold 10 million. Thus they brought a suit against the sub-licensee in China and claimed damages more than US$ 3 million. But the court rejected their claims because the license fees of the sublicense agreement entered into between the sub-licensee in China and their licensee were actually fixed fees based on the sales volume of 400,000 books.

Risk Management

In view of the above mentioned various risks, the parties should take a variety of steps, non- contractual and contractual, to minimize their risk under the license agreement.

Due Diligence

A contract can be air tight; but given the costs and distractions of litigation, even a winning lawsuit is something to be avoided. Accordingly, the parties will want to do due diligence on each other before making a substantial investment in the business arrangement. The licensee should be certain that the licensor owns the rights it purports to transfer. For example, when it is known that development of the licensed content was subcontracted, the licensee may want to request production of the sub-contractors' assignments of their creative work to the licensor.

In many copyright licenses, the licensee will be concerned principally with two risks: (1) that the content is not owned by the licensor or (2) that the content contains harmful or illegal material. The licensor may be concerned that the licensee fails to exploit the license.

The licensee will want to be assured that he is paying for something that actually has value and that is not sitting in the public domain available for the taking by others. Also, the licensee will want assurances that the rights to the content, if proprietary, are not owned by a third party and that the license will not invite an infringement claim. Accordingly, the licensee should seek a warranty that the copyright to the content is owned by the licensor and that the content does not infringe on the rights of any third party. The licensor may legitimately seek to hedge its bets through a "knowledge" qualification as to the non-infringement warranty (and avoid a breach of contract claim if the representation proves untrue), but offer to satisfy the risk through the indemnification provision. The licensee may seek a more robust warranty and also ask for a representation that all assignments (from subcontractors) have been duly executed and that the licensor has not and will not make any grants that are inconsistent with the license.

Additionally, the licensee should seek a representation that the licensed copyrighted materials contain no other materials that could give rise to a claim. For example, the licensee may seek a representation that the materials contain no material that is libelous or violates another party's rights to privacy or publicity. Again, licensee may seek to qualify these kinds of representations with a "knowledge" qualification.

Particularly in the context of exclusive licenses, the licensor may seek a representation from the licensee that it will use its best efforts to exploit the license. The licensor may demand a representation from the licensee that it will devote some minimum resources to selling product containing the licensed content. These may take the form of a representation that the licensee will devote a specified minimum amount on marketing, achieve certain advertising distribution milestones, dedicate specified human resources, etc. Obviously, the provisions contained in a copyright license, including the warranties, will depend on the nature of the material licensed. For example, software licenses will require additional warranties relating to conformance to technical and functional specifications.

Indemnification

A license agreement typically will contain an indemnification clause. At a minimum, this clause usually will provide indemnification to the licensee for copyright infringement and perhaps for other types of intellectual property infringement. The licensor should consider seeking indemnification for claims associated with licensee's use of the licensed content that are outside of licensor's intellectual property indemnity obligation.

Liability Limitations

Licensors typically will seek to limit their liability to direct damages and exclude consequential, incidental, and punitive damages. A licensor may also seek to cap its direct damage liability. Licensees should seek to carve out any limitation of liability claims for infringement, including claims under the indemnity, and perhaps claims for other specified risks such as breach of confidentiality.

Keep Evolving Strategies

The main objective of this article has been to provide an overview of the key terms to address in the license negotiation and resulting license as well as risk management under China case law landscape. However, the changing technology landscape continues to pose new opportunities and challenges for owners and users of copyright protected works, and copyright licensing requires continued attention to the shifting technological and business landscape impacting copyright-protected works.

The challenges, and responses to these challenges, are increasingly industry specific. In the media world, for example, licenses must anticipate rapidly changing technologies, coordinate multiple rights and rights holders, and address the challenges of enforcement. In the software world, ease of copying and the potential threat of blocking software patents are continuing problems for the copyright licensor. Businesses have also struggled with the hazards and opportunities of open source licensing. There has been a concern among practitioners that industry specific challenges, and legislative responses, will lead to the fragmentation of copyright law. Regardless of whether this trend continues, copyright licensing requires attention to industry-specific trends and industry-specific case law.

The internationalization of markets and the ease of distributing content across geographical boundaries at low cost have expanded opportunities for copyright owners. New models for monetizing IP (including use of IP as collateral and securities based on copyright assets or license revenues) similarly expand opportunities for earning revenue through copyright. As these trends continue, so will the volume and complexity of copyright licensing activity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Intellectual Property

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Transfer of IP rights in China

1. how may a patent be assigned (by law and/or transaction) and is it required to record the assignment in the national patent register to become effective , 2. which formalities must be met to record a patent assignment which supporting documents are required, 3. what are the legal consequences of not recording the patent assignment does the record in the patent register have declarative or constitutive effect, 4. are there specific formalities in case the patent is held by more than one proprietor , 5. is there a need to appoint a domestic professional representative, 6. which official fees (if any) arise from recording a patent assignment, 7. which forms of licensing patents exist and which ones must be recorded in the patent register to become effective (if any) , 8. which formalities must be met to record a patent licence which supporting documents are required, 9. what are the legal consequences of not recording the patent licence does the record in the patent register have declarative or constitutive effect, 10. is there a need to appoint a domestic professional representative, 11. which official fees (if any) arise from recording a patent licence, 12. it is possible to pledge a patent if yes, is it required to record such pledge in the patent register, 1. how may a trademark be assigned (by law and/or transaction) and is it required to record the assignment in the national trademark register to become effective , 2. which formalities must be met to record a trademark assignment which supporting documents are required, 3. what are the legal consequences of not recording the trademark assignment does the record in the trademark register have declarative or constitutive effect, 4. are there specific formalities in case the trademark is held by more than one proprietor , 5. are there specific formalities in case a trademark is only partially assigned , 6. is there a need to appoint a domestic professional representative, 7. which official fees (if any) arise from recording a trademark assignment, 8. which forms of licensing trademarks exist and which ones must be recorded in the trademark register to become effective (if any) , 9. which formalities must be met to record a trademark licence which supporting documents are required, 10. what are the legal consequences of not recording the trademark licence does the record in the trademark register have declarative or constitutive effect , 11. are there specific formalities in case a trademark is only partially licenced , 12. is there a need to appoint a domestic professional representative, 13. which official fees (if any) arise from recording a trademark license, 14. it is possible to pledge a trademark if yes, is it required to record such pledge in the trademark register.

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Patents: Assignment

A patent can be assigned by law or transaction. The parties should enter a patent assignment agreement and record the assignment with the patent administrative authority under the State Council, i.e. China National Intellectual Property Administration (“ CNIPA ”).

The law requires the recordal of the assignment. 

2.1 Are original supporting documents essential or are copies sufficient?

Original copies are needed;

2.2 Are there any legalization and/or notarization and/or translation requirements?

Notarisation is not needed. The translation is required if the application document is in English;

2.3 Is there a must to use a specific form?

Yes, an application form for change of description items.

Detailed explanation is as below:

For patent assignment registration, the following documents are required:

• An application form for change of description items (can be downloaded from the website of CNIPA), which should be submitted electronically if the patent application was filed electronically;
• Official fees;
• Original assignment/transfer contract. If there are multiple patent right holders, documents proving all the right holders agree to the assignment or transfer is required.
• If the contract is in English, it is required to be translated into Chinese. Legalisation or notarisation is not required;
• If the assignor is a mainland Chinese citizen or organisation, and the assignee is outside of mainland China, one is also required to submit the technology export licence or technology export contract recordal certificate;
• Copies of the IDs of the assignor and assignee;
• Power of attorney.

The contract is valid if both parties or the assignees are mainland China citizens or organisations. For assignment involving non-mainland citizens or organisations as assignees, the contract is valid after being examined and approved by the competent foreign trade department under the State Council. However, the assignment is not completed.

Can be deemed constitutive.

All proprietor shall unanimously agree to the patent assignment.

For any foreigner, foreign enterprise or other foreign organisation without any habitual residence or business address in China that seeks to deal with patent-related matters in China, it shall entrust a legally established patent agency to do so on its behalf.

The Official fee is RMB 200.

Patents: Licensing

In China, there are the following types of licence: exclusive licence, sole licence, non-exclusive licence, cross licence, and sub-licence.

The law provides that licences should be recorded in the patent register (i.e. CNIPA) within three months of the date on which the licensing agreement comes into effect.

8.1 Are original supporting documents essential or are copies sufficient?

Notarised copy is sufficient;

8.2 Are there any legalization and/or notarization and/or translation requirements?

Notarisation of foreign company’s ID information is needed. The translation is required if the application document is in English;

8.3 Is there a must to use a specific form?

The documents needed are:

• The licensing agreement recordal application form;
• The licensing agreement (original) or a notarised copy;
• The ID of the licensor and licensee;
• Power of attorney and a copy of the ID of the attorney;
• Other material. For example, if the licence agreement is in English, a translation in Chinese is needed.

The law is not clear. Can be deemed declarative as to the licence.

Not recording the patent licence will lead to the loss of benefits for recording, which are that the recordal can be used such as:

• against bona fide third party;
• as evidence;
• for the determination of infringement damage; and
• as supporting document for funds transfer.

For any foreigner, foreign enterprise or other foreign organisation without any habitual residence or business address in China that seeks to deal with patent-related matters in China, it shall entrust a patent agency established legally to do so on its behalf.

No official fees.

Patents: Pledge

It is required to record the pledge with CNIPA, because according to the PRC Civil Code, a pledge is established when it is recorded.

Trademarks: Assignment

A trademark can be assigned by law or transaction.

The law requires the assignor and assignee sign an assignment agreement and together apply to the trademark register, i.e., the CNIPA for recordal. Also, CNIPA will examine the application and decide whether to approve the assignment.

Yes. The law requires the recordal.

2.1 Are original supporting documents essential or are copies sufficient? 

Copies are sufficient;

2.2 Are there any legalization and/or notarization and/or translation requirements?

2.3 is there a must to use a specific form.

Yes, a form of “Application for Assignment/Transfer/Application for Registration of Trade Marks” will be used.

The required supporting documents are:

• The Application for Assignment/Transfer/Application for Registration of Trade Marks;
• The photocopy of the ID documents of the assignor and the assignee;
• Power of attorney;
• If the transfer is done by law, there is no need to submit the ID documents and power of attorney. Submitting the relevant evidence or legal documents is sufficient;

If the application is in a foreign language, a translation is needed.

The contact is valid. The assignment is not completed.

The record in the trademark register can be deemed to have a constitutive effect. 

Yes. There are specific requirements on filling the application form.

For example, if the trademark is jointly transferred by more than one proprietor to one person, the name and address of the original representative shall be filled in the column of the name and address of the assignor, and stamp the seal of the original representative; the name and address of the assignee shall be filled in the corresponding column and stamped with the seal. The names of the other original co-owners shall be filled in the list of names of other co-owners prior to assignment on the attached page and shall be stamped. The addresses of the other original co-owners shall not be filled in.

A registered trademark cannot be severed or divided and partially assigned.

If there is a series of trademarks, similar marks registered on similar goods should be assigned together. Otherwise, CNIPA may reject the recordal of the assignment.

For a foreigner or foreign enterprise that does not have a permanent residence or business address within China as the assignee, it shall appoint a local firm in China responsible for receiving the legal documents.

The official fee is RMB 500/class or RMB 450/class if applied electronically.

Trademark: Licensing

There are the following types of licence: exclusive licence, sole licence, non-exclusive licence, sub-licence, and cross-licence.

The law provides that licences should be recorded to the trademark office (i.e. CNIPA) within three months as of the date of conclusion of the agreement. In particular, for the sub-licence of a trademark, it is not necessary to be recorded and the CNIPA is no longer accepting such licensing filings. Non-recordal does not affect the validity of the sub-licence agreement.

9.1 Are original supporting documents essential or are copies sufficient? 

9.2 are there any legalization and/or notarization and/or translation requirements.

Notarisation is not needed. Translation is required if the application document is in English;

9.3 Is there a must to use a specific form?

Yes. Trademark licence record form.

The required documents are:

• Trademark licence record form;
• Copies of the Licensor/Licensee’s ID;

Other material. For example translation of the IDs.

Can be deemed declarative as to the licence.

Not recording the trademark licence will lead to the loss of benefits for recording, which are that the recordal can be used such as:

Partial licensing of a registered mark is not allowed.

For a foreigner or foreign enterprise that does not have a permanent residence or business address within China, it shall appoint a domestic professional representative to handle the relevant matter. 

The official fee is RMB 150/class, and RMB 135 if applied electronically.

Trademark: Pledge

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Assignment China: An Oral History of American Journalists in the People's Republic Paperback – March 21, 2023

• Print length 520 pages
• Language English
• Publisher Columbia University Press
• Publication date March 21, 2023
• Dimensions 6.5 x 1 x 9.5 inches
• ISBN-10 0231207999
• ISBN-13 978-0231207997
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• Publisher ‏ : ‎ Columbia University Press (March 21, 2023)
• Language ‏ : ‎ English
• Paperback ‏ : ‎ 520 pages
• ISBN-10 ‏ : ‎ 0231207999
• ISBN-13 ‏ : ‎ 978-0231207997
• Item Weight ‏ : ‎ 1.6 pounds
• Dimensions ‏ : ‎ 6.5 x 1 x 9.5 inches
• #106 in Historical China Biographies
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Assignment/Transfer of Copyright Ownership

Filipino sailors hold the line at flashpoint Sabina Shoal

(UPDATES) SAILORS aboard two Philippine Coast Guard boats crashed through South China Sea waves, shadowed by Chinese vessels, as they attempted to bring desperately needed supplies to colleagues holed up on a ship inside a remote ring of reefs.

The coast guard's BRP Teresa Magbanua has been anchored inside Sabina Shoal since April to assert Manila's claims to the area off its coast and prevent China from seizing it.

But the Filipino sailors on board the ship are running critically low on food and other provisions — which Monday's tense "humanitarian" mission by two smaller coast guard boats intended to supply.

Philippine and Chinese vessels have collided twice this month near Sabina Shoal, located 140 kilometers (86 miles) from the Philippines' western island of Palawan and 1,200 kilometers from China's nearest major landmass, Hainan island.

AFP journalists on board one of the 44-meter (144-foot) Philippine resupply boats watched as Chinese coast guard and navy ships shadowed both vessels for hours, eventually surrounding them.

With 40 Chinese ships in their path in rough seas, the Philippine Coast Guard turned back, leaving the sailors on the 97-meter Teresa Magbanua without fresh provisions.

Flashpoint fears Sabina Shoal is the latest reef to become a flashpoint in decades of maritime disputes between the Philippines and China.

In 1995, Beijing began building structures on Mischief Reef, which Manila claims as part of its continental shelf, and China has since constructed several artificial islands that it uses as military outposts.

More recently, the focus of clashes between Philippine and Chinese vessels has been Second Thomas Shoal, about 30 kilometers southeast of Mischief Reef.

A handful of Filipino troops are stationed on a rusty navy ship that the Philippines deliberately grounded there in 1999 to check China's advance.

A Filipino sailor lost a thumb in a clash there in June, when Chinese coast guard members wielding knives, sticks and an axe foiled a Philippine Navy attempt to resupply its troops.

Beijing and Manila reached a "provisional arrangement" in July for the delivery of necessities and rotation of Filipino troops at Second Thomas Shoal.

But now the Philippines faces a new challenge in reaching its coast guard personnel at Sabina Shoal, 60 kilometers east of Second Thomas Shoal.

Sabina Shoal is also the rendezvous point for Philippine resupply missions to Second Thomas Shoal.

"If we lose Escoda Shoal, that would be very easy for China... to prevent our resupply operation that we intend to carry out in Ayungin Shoal because they can basically block it on both sides," Commo. Jay Tarriela, a spokesman for the Philippine Coast Guard, told reporters on Tuesday, using the Filipino names for Sabina and Second Thomas shoals.

'We're not going to withdraw'

Beijing claims almost the entire South China Sea, despite an international ruling that its assertion has no legal basis, and defends its actions against Philippine vessels as lawful and proportional.

Analysts say Beijing's aim is to further encroach on Sabina Shoal, moving deeper into Manila's exclusive economic zone and normalizing Chinese control of the area.

The discovery earlier this year of piles of crushed coral at Sabina Shoal ignited suspicion in Manila that Beijing was planning to build another permanent base there, which would be its closest outpost to the Philippine archipelago.

Beijing is using a "salami-slicing strategy," said Don McLain Gill of De La Salle University in Manila, deploying ships to Sabina Shoal and other areas to "stretch" the Philippines' limited maritime resources.

Sabina Shoal's proximity to Palawan is a concern, said Andrea Wong, non-resident research fellow at the Institute for Indo-Pacific Affairs in New Zealand.

"If China gained access to it, it's a matter of time before they can, not invade Palawan per se, but they can also get resources in that area," Wong said, referring to fish stocks and potential oil and gas deposits.

To head off any attempt by China to seize Sabina Shoal, the Philippines sent the Teresa Magbanua there to monitor Chinese activities.

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