Part III: Intellectual Property Enforcement in China (Copyright)

By See Wee Lee

China has been a signatory to the Berne Convention since 1992 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) since 1995, which allows for creators to be automatically granted the rights to any work they produce. Registering your copyright is therefore not necessary but can be done on a voluntarily basis with the Copyright Protection Center of China.

This article will cover the types of works that are protected and also what kind of rights can be claimed under Chinese copyright law.

Definition of copyright

Copyright (symbol: ©), refers to the rights enjoyed by the author or other persons (including legal persons or organizations) to certain literary, artistic and scientific works according to law. It also refers to “intellectual achievements in the fields of literature, art and sciences which are creative new and original and can be presented in a certain form”.

Type of copyright

China copyright law is not all that different from United States copyright law. You can protect the tangible expression of an idea, but not the idea itself. However, there are differences in types of the right between two nation. In the United States, there are seven categories of subject matter (literary works, musical works, choreographic works or pantomimes, dramatic works, graphic or pictorial or sculptural works, motion picture and audiovisual works, and, sound recordings) protected under the act, whereas, in China, the law stipulates nine categories of works, which include:

①　written works;

②　oral works;

③　musical, dramatic, choreographic and acrobatic art works;

④　works of the fine arts and architecture;

⑤　photographic works;

⑥　audiovisual works;

⑦　graphic works such as drawings of engineering designs, product designs, maps and sketches, and model works;

⑧　computer software; and

⑨　other intellectual achievements conforming to the characteristics of the works.

However, please be mindful that the Chinese law does not apply to the following objects:

“Laws, regulations, resolutions, decisions, orders of state organs and other documents of a legislative, administrative or judicial nature, and their official official translations; pPurely factual information; calendar, common number tables, common tables and formulas; ideas, themes, operating methods, technical solutions, practical functions, etc.”

Therefore, the above-mentioned objects do not constitute a“work”that is protected by Chinese copyright law.

Rights of copyright

Copyright is the right of copy. If you are the creator/author of a piece of original work, you will have the exclusive right to authorize or give permission to someone to reproduce your work.

China consists the following personal rights and property rights. The first four are personal rights, whereas the rest are property rights. Even though the Chinese rules have more specified categories than the United States system, the works protected reveals that the two systems are designed to protect roughly the same types and ultimately determine their own strength.

There are 17 rights of copyright in China, including:

①　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, rubbing, sound recording, video recording, ripping, duplicating a photographic work, digitizing, or by other means;

⑥　the right of distribution, that is, the right to provide the original copy or reproduced copies of a work to the public by sale or donation;

⑦　the right of rental, that is, the right to non-gratuitously permit others to temporarily use an audiovisual work, or the original or copies of a computer software, except where the software itself is not the main object of the lease;

⑧　the right of exhibition, that is, the right to publicly display the original copy or reproduced copies of a work of fine arts or of a photographic work;

⑨　the right of performance, that is, the right to publicly perform a work, and to publicly communicate the performance of a work by various means;

⑩　the right of projection, that is, the right to publicly reproduce works of fine arts, photographic works, audiovisual works, or other works, by a projector, slide projector or any other technical equipment;

⑪　the right of broadcasting, that is, the right to publicly disseminate or rebroadcast works by wire or by wireless means, and to disseminate broadcast works to the public by loudspeaker or any other similar instruments for transmitting signs, sounds or images, but excluding the right mentioned in Subparagraph (12) of this paragraph;

⑫　the right of communication through information network, that is, the right to make a work available to the public by wire or by wireless means, so that the public may have access to the work at time and place chosen by them;

⑬　the right of cinematography, that is, the right to fix a work on the medium by producing an audiovisual work;

⑭　the right of adaptation, that is, the right to modify a work to create a new one with originality;

⑮　the right of translation, that is, the right to transform the work from one language into another language;

⑯　the right of compilation, that is, the right to compile, by selection or arrangement, the works or fragments of works into a new work; and

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

Except for the personal rights provided in paragraphs (1) to (4), copyright owners may authorize others to exercise these rights, or transfer or sell, wholly or in part, their ownership rights.

Enforcement of China Copyright

Protection of copyright in China is granted to works of individuals from countries belonging to the international copyright conventions or bilateral agreements of which China is also a member. For example, if your copyright is registered in the U.S. via the U.S. Copyright Office of the Library of Congress, your works are automatically protected by China's copyright law. Therefore, even if your work has been created outside of China, copyrights arise as soon as an original work is created.

Once your right has been protected, according to the 2020 revised version of the "Copyright Law of the People's Republic of China", effective June 1, 2021, damages for copyright infringement may include the following:

①　The infringer shall give compensation according to the actual damages suffered by the rightsholder as a result of the infinger's unlawful gains;

②　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;

③　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;

④　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 million RMB based on the circumstances;

⑤　The amount of compensation shall also include reasonable expenses paid by the rights holder in stopping the infringement.

The major difference between China and United States copyright laws is that China does not criminalize copyright infringement conducted without the intent of gaining profit. In the United States, certain copyright infringements are categorized as criminal which may be prosecuted by the state at the federal level.   

Length of protection

Copyright has the longest protection period compared to other intellectual property. The copyright is valid during the lifetime of the author plus 50 years after the death of the owner. Compared to the United States protection period, which lasts for the life of author plus an additional 70 years, the length of protection in China is considerably shorter than the terms that are currently allowed for under United States copyright law.

If you are interested in protecting your intellectual property rights in China, please contact Jed Weiner and See Wee Lee.