Copyright 2021

Last Updated February 17, 2021

China

Law and Practice

Authors



Lifang & Partners is a law firm headquartered in Beijing, with regional offices in Guangzhou, Wuhan, Shanghai, Shenzhen and Seoul. Lifang & Partners has 300 professionals, including more than 60 partners, over 100 patent attorneys and engineers and 20 trade mark attorneys. The outstanding legal background and abundant practical experience of its lawyers, along with the various technical backgrounds of its other professionals, allow the firm to help its clients consistently achieve their legal and business objectives in a timely and cost-effective manner by delivering solutions that are industry-focused, efficient and commercially pragmatic. Notable clients include Samsung, Microsoft, IBM, Heinz, Solvay, Dyson, Trend Micro, China Unicom, Datang Mobile, Midea, and Panasonic Electric Works. Lifang & Partners' lawyers have handled a number of high-profile cases, such as Huawei v Samsung, Sogo v Baidu, the disputes over The Voice of China and others.

The governing copyright statute in China is the Copyright Law of the People’s Republic of China, effective 1 April 2010, the latest amendment of which was published in 2020 and will take effect on 1 June 2021. It can be accessed through public websites – for instance, the National People’s Congress of the People’s Republic of China.

In addition, the Regulations for the Implementation of the Copyright Law of the People’s Republic of China (effective 30 January 2013), Regulations on Collective Administration of Copyrights (effective 7 December 2013), Regulations on Protection of Information Network Transmission Rights (effective 1 March 2013) and the Regulations on the Protection of Computer Software (effective 1 March 2013), which were promulgated by the State Council, are also important legal sources that regulate copyright matters.

China is a member of the Berne Convention (Paris, 1971), the World Intellectual Property Organization Copyright Treaty (WCT, 1996), the WIPO Performances and Phonograms Treaty (WPPT, 1996), the WTO, TRIPS, the Universal Copyright Convention (1971), and the Beijing Treaty on Audiovisual Performances (effective 28 April 2020).

As long as one of the following conditions is met, the work of a foreign copyright holder will automatically secure protection under Chinese Copyright Law with no need to follow any special steps:

  • the foreign copyright holder enjoys copyright pursuant to the agreement entered into between their home country, or the country of their habitual residence and China, or the international treaty to which both their home country, or the country of their habitual residence and China are members; or
  • the foreigner’s work is firstly published in China; or
  • the foreigner’s work is firstly published in a member country of an international treaty to which China is a member or is simultaneously published in a member country and a non-member country.

There are four essential elements required for a work to benefit from the protection of Chinese Copyright Law (as amended in 2020): first, the work should be an intellectual creation of literature, art or science; second, it should be original; third, it can be "presented in certain form"; fourth, it is not a work prohibited by law from publication and transmission, and falls within the scope of Chinese Copyright Law. These elements apply to all works.

Copyright exists from the completion of a work. Registration does not affect the rights of the author or others who have legally obtained a right to the work. In China, copyright is registered on a voluntary basis, and the materials required for registration along with registration announcements can be found on the National Copyright Administration website.

Article 3 of Chinese Copyright Law (as amended in 2020) provides that copyrightable works include:

  • written works;
  • oral works;
  • musical, dramatic, quyi, choreographic and acrobatic works;
  • works of the fine arts and architecture;
  • photographic works;
  • audio-visual works;
  • graphic works such as drawings of engineering designs and product designs, maps and sketches, and model works;
  • computer software; and
  • other intellectual achievements conforming to the characteristics of works.

Regarding other works conforming to the characteristics of works, they should be copyrightable under Chinese Copyright Law (as amended in 2020).

Chinese Copyright Law (as amended in 2020) does not limit the protection to fixed works. However, the work should be “presented in certain form”.

In China, computer software generally refers to computer programs and relevant documentations, which are protected by the Copyright Law.

According to the Regulations on the Protection of Computer Software, unlike other forms of work, computer software must be fixed in some material form to benefit from copyright protection.

In addition to the Copyright Law, computer software is also protected by other laws or regulations – for example, the Patent Law, which differs from the Copyright Law as follows:

  • copyrights have longer protection terms than patents;
  • copyright protection does not have any mandatory procedural requirements and it is automatically protected from the date the copyrightable work is completed, while a patent right will not be protected until it is applied; and
  • copyrights are less monopolistic than patents – a copyright holder is unable to prevent others from creating and using software with similar functions.

The aforesaid protections can be cumulative.

If a database shows originality in the selection or arrangement of the contents or data, it can be deemed as a compilation protected under the Copyright Law. If the database is just a simple collection of available materials, it generally will not be deemed as possessing originality and will thus not be copyrightable.

In addition to copyright protection, databases may also benefit from protection under the Patent Law and Anti-unfair Competition Law. The differences between the three forms of protection include the following.

  • Different conditions for securing protection: a copyrightable database should be a compilation which is original in its selection or arrangement of contents or data. A patentable database should provide a technical solution which is capable of solving a specific technical problem and consistent with the conditions for applying and granting a patent right, rather than merely a method of information expression; for instance, the Chinese Patent Law provides that “rules and methods of intellectual activities” are not patentable. A database protected by the Anti-unfair Competition Law should be a business resource which can bring competitive advantages and economic benefits to a business operator.
  • Copyrights have longer protection terms than patents. There are no term limits for the protection under the Anti-unfair Competition Law.
  • Copyright protection exists from the completion of a work, a patent is not protected until it is applied and protection under the Anti-unfair Competition Law can only be realised in cases where a court identifies infringement and a duty to pay damages.

Copyright and patent protection can be cumulative, but protection under the Anti-unfair Competition Law is applied like a catch-all clause. In practice, if the rights and interests in a database can be protected by a specialised law such as the Copyright Law, the Anti-unfair Competition Law will not be applied. Protection under the Anti-unfair Competition Law mainly plays a supplementary role.

As long as an industrial design meets the conditions to be copyrightable under Chinese Copyright Law, it can benefit from copyright protection.

In addition to the Copyright Law, industrial designs may also be protected by the Patent Law, which has the following differences from the copyright protection:

  • copyrights have longer protection terms than patents;
  • copyright protection does not have any mandatory procedural requirements and it is automatically protected from the completion of the copyrightable work, while a patent right will not be protected until it is applied and granted; and
  • copyrights are less monopolistic than patents.

The aforesaid protections can be cumulative.

Fictional Characters

If an author has conceived a fictional character but the setting of the character consists only of an idea, it is not copyrightable; if the setting of the character is expressed in the forms of words or drawings and the like, and meet the conditions for protection under the Copyright Law, this character may be protected as an artistic or other form of work.

TV Formats, etc

If the TV format is just an idea or conception, it is not copyrightable; if the specific playscript, script, stage art design and suchlike of the TV format are expressed in a tangible way and meet the conditions to be copyrightable under the Copyright Law, it may be protected as a written or other form of work.

Sports Events

Generally speaking, sports events are not copyrightable in China, because sports events are generally live unscripted competitions that are not intellectual creations of literature, art or science. Therefore, they do not meet the conditions for protection under the Copyright Law. However, based on the originality of the recorded video of a sports event, it may be identified as an audio-visual work or video product, which can be protected under the Copyright Law.

Advertising Copy and Product Labels

As long as the advertising copy and product labels meet the conditions for protection under the Copyright Law, they may be protected as written or other form of work.

Museum Exhibitions

A conception or idea regarding an exhibition which is not expressed in material form is not copyrightable in China. However, when the idea is specifically expressed as an introductory article, layout design or in other material forms, it may be protected as a written or other form of work. Moreover, exhibits which meet the conditions to be copyrightable are also protected under the Copyright Law.

Websites

A website as a whole may not be protected as a form of work under the Copyright Law. However, the various elements that form the website, such as background image, incidental music, writings, specific layout and design can be protected if they, individually or in combination, meet the conditions to constitute a work under the Copyright Law. These elements may be protected as an artistic work, a compilation or some other form of work.

Recipes

If a recipe is only a mechanical description of a cooking process, the doctrine of merger may be applied as such text is the only or best expression of the idea of the cooking method, so it is not copyrightable. If the recipe contains the author’s own intellectual creation – for example, the author’s detailed description about the food included, it may be protected as a written or other form of work.

Perfumes

The smell and formula of perfume at the conceptual level are not protected under the Copyright Law. If the perfume formula is fixed, for example, by the ingredients being written in words, it might be protected as a written or other form of work. However, if the ingredient sheet is only a mechanical description of various ingredients, the doctrine of merger may be applied as the idea can only be expressed in such way and it is not copyrightable. If the ingredients sheet contains the author’s original narration or description, it may be protected as a written work or other form of work.

Maps

If a map reflects the author’s original arrangement, selection and drawing of images, it may be protected as a graphic work. However, the geographic positions and places names in the map are objective facts which are not copyrightable.

As stipulated in the Chinese Copyright Law (as amended in 2020), “The author of a work is the natural person who creates the work”. Authors are usually natural persons, though the law also stipulates that where a work is created under the auspices of and according to the intention of a legal entity or unincorporated organisations, which bears responsibility for the work, this legal entity or unincorporated organisation is deemed to be the author of the work.

According to the Chinese Copyright Law (as amended in 2020), there are two principles regarding the presumption authorship in China: one is the principle of authorship (ie, the natural person, legal entity or unincorporated organisation whose name is stated on the work shall be deemed to be the author of the work and enjoy the corresponding rights, except where there is proof to the contrary); the other is the principle of actual creation, which means that the creator (the natural person, legal entity or unincorporated organisation) who has been involved in the actual intellectual activities of creating the work is deemed to be the author of the work.

Joint authorship describes a work that is co-created by multiple authors. Co-authors must reach a consensus on their co-operation, must have been involved in the creation process, and must have contributed creative labour to the work.

According to the Chinese Copyright Law (as amended in 2020), the co-created work shall be enjoyed jointly by the co-authors and exercised by consensus; if no consensus can be reached and there is no justification, neither party shall prevent the other party from exercising its rights other than transferring, making an exclusive licence to others or pledging, provided that the proceeds shall be reasonably distributed to all co-authors. Where a work of joint authorship can be separated into parts and exploited separately, each co-author may be entitled to independent copyright in the part that he or she created, provided that the separate exercise of such copyright does not prejudice the copyright of the joint work as a whole.

Anonymous or pseudonymous works are protected by the Copyright Law of China. According to the Copyright Law, the author has a right of authorship – that is, the right to have the author’s name (or pseudonym) indicated on his or her works or not. The use of pseudonyms does not affect copyright.

According to Article 13 of the Regulations for the Implementation of the Copyright Law of the PRC, in the case of a work of an unknown author (ie, orphaned works), the copyright, except the right of indication of authorship, shall be exercised by the lawful holder of the original copy of the work. With the restoration of authorship, the copyright shall be exercised by the author or his or her successor in title.

In China, only compilations that are selected or compiled in an original manner will qualify as collective works. Mechanical summaries of other works cannot constitute a collective work. The copyright of a compilation work is enjoyed by the compiler, but the exercise of such copyright shall not prejudice the copyright of the pre-existing works included in the compilation.

According to the Chinese Copyright Law (as amended in 2020), a legal entity or unincorporated organisation can be an author. Where a work is created under the auspices and according to the intention of a legal entity or unincorporated organisation which bears responsibility for the work, this legal entity or unincorporated organisation is deemed to be the author of the work.

In China, a work created by an employee in the fulfilment of tasks assigned to him or her by a legal entity or unincorporated organisation is usually deemed to be a work-made-for-hire. The copyright in such a work shall be enjoyed by the author, subject to the legal entity or unincorporated organisation having a right of priority to exploit the work within the scope of its professional activities. During the two years after the completion of the work, the author may not, without the consent of the legal entity or unincorporated organisation, authorise a third party to exploit the work in the same way as the legal entity or unincorporated organisation does.

The author of a work-made-for-hire in one of the following circumstances shall enjoy the right of authorship, while the legal entity or unincorporated organisation shall enjoy the other rights included in the copyright and may reward the author of the work:

  • drawings of engineering designs and product designs and descriptions thereof, maps, schematic diagrams, computer software, and other works created in the course of employment mainly with the material and technical resources of the legal entity or unincorporated organisations and under its responsibility;
  • works created in the course of employment by the employees of newspapers, periodicals, news agencies, radio stations and television stations;
  • works created in the course of employment where the copyright is, in accordance with laws, administrative rules and regulations or contracts concerned, enjoyed by the legal entity or unincorporated organisations.

Distinction between Employees and Freelancers

The employee creates the work primarily based on the need to perform the job in order to accomplish the task, while the consultant or freelancer creates the work primarily on a voluntary or delegated basis. This difference will lead to a difference in the ownership of copyright. The copyright ownership of work made for hire refers to the aforementioned rules, but the ownership of a work created by a consultant or freelancer depends on the contract agreement.

Agreement between Employees and Freelancers

The ownership of copyright in a work may be freely agreed upon between employees and organisations through contracts without specific limitations.

Public Entities

Public entities (including universities, etc) may, within the limits of the law, enter into contractual agreements with employees regarding the ownership of the copyright in works created during the course of employment.

A total of 13 property rights are enjoyed by copyright owners, including the right of reproduction, the right of distribution, the right of rental, the right of exhibition, the right of performance, the right of screening, the right of broadcasting, the right of information network transmission, the right of cinematography, the right of adaptation, the right of translation, the right of compilation and other rights which have been provided for in sub-paragraph (5) through sub-paragraph (17) in Article 10.1 of the Copyright Law of China (as amended in 2020).

According to the Chinese Copyright Law (as amended in 2020), in respect of a work by a natural person, the term of protection for economic rights is the remainder of the author's life to 31 December of the 50th year after his or her death. In the case of a work of joint authorship, the term expires on 31 December of the 50th year after the death of the last surviving author.

In respect of a work of a legal entity or unincorporated organisation, and the work for hire whose copyright (except the right of authorship) is enjoyed by the legal entity or unincorporated organisation, the term of protection for the property rights is 50 years, expiring on 31 December of the 50th year after the first publication of this work. However, such work will cease to be protected if it is not published within 50 years after its completion.

In respect of audio-visual works, the term of protection for the property rights is 50 years, expiring on 31 December of the 50th year after the first publication of such work. However, such work will cease to be protected under this law, if it is not published within 50 years after the completion of its creation.

If the licensor’s ownership basis is flawed (for example, it is not a genuine copyright owner or there are other co-owned copyright owners), the licence obtained by the licensee may be deemed invalid or terminated.

Different economic rights (terms) based on the different types of works and the identity of the authors have been set out in the Copyright Law of China.

Economic rights are transferable and can be licensed by the owner. Anyone who transfers any of the economic rights shall conclude a written contract containing the following main points:

  • the title of the work;
  • the category of the right to be transferred and the territory covered by the transfer; 
  • the transfer fee;
  • the date and the means of payment of the transfer fee; and
  • other matters that the parties consider necessary to agree upon.

Anyone who exploits another person’s work shall conclude a copyright licensing contract with the copyright owner except where no permission is required by law. A licensing contract shall include the following main points:

  • the category of the right to exploit the work covered by the licence;
  • the exclusive or non-exclusive nature of the right to exploit the work covered by the licence;
  • the territory and the term covered by the licence;
  • the remuneration and the means of payment; and
  • other matters which the parties consider necessary to agree upon.

Economic rights can be inherited upon the owner’s death. After the death of a copyright owner and during the term of protection provided for in the Copyright Law, this copyright can be inherited in accordance with the Law of Succession. This includes statutory succession, testamentary succession and legacy. When there is neither a successor nor a legatee, the rights belong to the state or where the decedent was a member of an organisation under collective ownership before his or her death, to such an organisation. If a co-author dies with a successor nor a legatee, their rights will be enjoyed by the remaining living co-authors.

The Copyright Law of China does not stipulate any age requirement to be a copyright owner. Any natural person who has created a work that is in accordance with the Copyright Law of China can be deemed as a copyright owner and enjoy their legitimate rights. However, the transfer and exercise of copyright requires civil capacity, which means that to transfer ownership a copyright owner must be:

  • a natural person aged 18 or over, or a minor who has reached the age of 16 and whose main source of income is his or her own labour shall be deemed as a person with full capacity for civil conduct, such as copyright transfer;
  • a minor who has reached the age of eight is a person with limited capacity for civil conduct and may independently perform civil juristic acts which are purely to benefit the minor or the performance of which is compatible with his or her age and intelligence – activities such as the transfer and exercise of copyright should be carried out by their statutory agent in performing juridical acts or whose performance of juridical acts should be consented to or ratified by their statutory agent;
  • a minor under the age of eight is a person without capacity of civil conduct, who must be represented in performing civil juridical acts, such as transferring and exercising copyright, by their statutory agent.

As stipulated in the Copyright Law of China, anyone who transfers any economic right shall conclude a written contract detailing the following: the assignor and assignee, the title of the work, the category of the right to be transferred and the territory covered by the transfer, the transfer fee, the date and the means of payment of the transfer fee, liabilities in the event of breach of the contract, and other matters that the parties consider necessary to agree upon.

“Exhaustion of rights” is not specified in the Copyright Law of China. However, in judicial practice, some courts have adopted exhaustion doctrine by referring to Article 53 of the current Copyright Law of China (Article 59 of the Copyright Law as amended in 2020), and Article 28 of the Regulations for the Protection of Computer Software combined with relevant cases. Following this doctrine, when the original or legal copy of the work has been sold or given to the public through legal channels with the permission of the copyright owner, the right to publish is exhausted – in other words, the copyright owner can no longer control the work’s further circulation.

The Copyright Law of China (as amended in 2020) stipulates four moral rights:

  • the right of publication;
  • the right of authorship;
  • the right of revision; and
  • the right of integrity.

There is no time limit on the protection term of an author’s rights of authorship, revision and their right to protect the integrity of their work. However, the protection term of the right of publication is limited (different kinds of copyright owner may face different limitation). The personal rights stipulated in the Copyright Law of China are not transferable, and cannot be inherited, donated or accepted. 

In the Copyright Law of China, anti-circumvention measures are not within the scope of copyright itself. According to Article 49 of the Chinese Copyright Law (as amended in 2020), technical measures shall mean effective technologies, devices or parts used for prevention and restriction of browsing or appreciating of works, performances, audio and video recordings or provision of works, performances, audio and video recordings through an information network to the general public without the permission of the right holder.

Furthermore, Article 53.6 of the Copyright Law of China (as amended in 2020) stipulates that a person intentionally avoiding or destroying technical measures without the consent of the copyright holder or the holder of copyright-related rights, intentional manufacturing, importing or providing devices or components used principally for the avoidance or destruction of technical measures for others, or intentionally providing technical services to others for the avoidance or destruction of technical measures, unless otherwise stipulated in laws and administrative regulations, shall bear civil, criminal or administrative liabilities.

Article 53.7 of the Copyright Law of China (as amended in 2020) stipulates the legal consequences of deleting and altering rights to manage electronic information. In accordance with the provisions of this Article, a person who, without the permission of the copyright holder or holder of rights related to the copyright, deliberately deleting or altering of the rights management information on a work, layout design, performance or audio and video recording, or radio or television broadcast, or proving the public of such works when the person knows or should have known that the rights management information thereon has been deleted or altered without the permission, unless otherwise provided for in any law or administrative regulation, shall bear civil, criminal or administrative liabilities.

There is a collective rights management system in China. The Regulation on the Collective Administration of Copyright regulates the collective administration of copyright. China allows the co-existence of various collective administrations of copyright.

Currently, collective administrations of copyright in China include the China Written Works Copyright Society, the Music Copyright Society of China, the China Audio-Video Copyright Association, and the Film Copyright Society of China.

The above-mentioned organisations conduct, in their respective fields and with the authorisation of copyright owners, collective administration of rights which are difficult for owners to effectively exercise on their own, such as the right of reproduction, performance, presentation, broadcasting, rental, communication through information network and other rights stipulated in the Copyright Law of China.

When authorised by the rights owner, a collective administration of copyright may claim rights in its own name for the copyright holders and the holders of copyright-related rights, and may be involved as one party in litigation, arbitration and mediation proceedings concerning such copyright or copyright-related rights.

Apart from the above-mentioned functions, different organisations will also perform other functions based on types of work involved. For example, the China Written Works Copyright Society can also register and collect relevant information on written works and sign a mutual representative agreement with other collective administrations of copyright outside China.

Synchronisation rights refer to the right to use a piece of music as a soundtrack with visual images. As a right born from US copyright law practices, it is generally referred to as a "synchronisation licence", including music and sound recordings. “Synchronisation rights” are not included in the Copyright Law of China.

However, according to the Interpretation on the Copyright of China, released by the Legislative Affairs Commission of the NPC Standing Committee, unauthorised use of a piece of music as the soundtrack of a film, or incorporating fine art or photographic works into movies, television, and other things, without permission, constitutes a violation of the right of cinematography.

Therefore, we believe that, in the Copyright Law of China, “synchronisation rights” is similar to what is described as “the right of reproduction, the right of cinematography, and the right of adaptation”.

In Article 24 of the Copyright Law of China (as amended in 2020), 12 specific cases of fair use are defined. It also states that other situations stipulated by laws and administrative regulations may also be applicable to fair use. In these cases and situations, a work may be used without permission from and without payment of remuneration to the copyright owner, provided that the name or designation of the author and the title of the work are mentioned, the normal use of such work is not affected, and unreasonable harm to the legitimate rights and interests of the copyright holder can be avoided. However, the provisions do not clearly state which specific copyright they apply to.

The scope of fair use by individuals is stipulated in Article 24.1 of the Copyright Law of China (as amended in 2020). The use of another person’s published work for the purpose of the user’s own personal study, research or appreciation is appropriate use. In relevant Chinese practice, the court usually considers the following four factors when determining whether a certain activity is private use:

  • the user’s identity – commercial use by a legal entity is not private use;
  • the use scope – the use should be limited to internal use within a certain scope rather than open to the public;
  • whether there is a clear reference to the author and the title of the work;
  • whether it affect normal use of the work or unreasonably harm the legitimate rights and interests of the copyright holder.

Article 24.10, of the Copyright Law of China (as amended in 2020) states that copying, drawing, photographing or video recording a work of art put up or displayed in a public place is a fair use of a work of art. Using this reproduction in a reasonable manner and within a reasonable scope is not infringement. The judicial interpretation did not define the "reasonable manner" and "reasonable scope". However, based on judicial practice, it can be seen that when the courts determine whether the use of this reproduction is infringing, they generally believe the author’s name of the original work should be provided and the commercial value of the original work and the lawful rights of the copyright owner should not be jeopardised.

Intermediaries’ activities are not included in the 12 specific cases of fair use in Article 24 of the Copyright Law of China (as amended in 2020). But there is a “safe harbour principle” in the Regulations on Protection of Information Network Transmission Right. A network service provider that provides searching or linking services to a service object, and has disconnected the link to a work, performance, or audio-visual recording that infringes on an other’s right after receiving a notice from the owner, shall not be liable for damages. However, if it knew or should have known that the linked work, performance, or audio-visual recording infringed upon another’s rights, it shall bear liability for joint infringement.

As stipulated in Article 24.2 of the Copyright Law of China (as amended in 2020), “appropriate quotation” is a fair use – ie, the quotation from another person’s published work in one’s own work for the purpose of introducing or commenting a certain work, or explaining a certain point is regarded as an appropriate quotation. When determining the meaning of “appropriate”, two criteria should be taken into consideration: (i) the use should not affect the normal use of the work, and (ii) the use should not unreasonably jeopardise the legitimate interests of the copyright owner. However, the law does not define “unreasonably” and courts generally make a judgment based on the specific facts of the cases.

Article 35 of Constitution of the People’s Republic of China stipulates that Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration. This is echoed by “a speech delivered at a public gathering” relating to fair use in the Copyright Law of China.

According to Article 24.5 of the Copyright Law of China (as amended in 2020), publishing or broadcasting by the media, such as a newspaper, periodical, radio station and television station of a speech delivered at a public gathering may be used without permission from, and without payment of remuneration to, the copyright owner, provided that the name or designation of the author and the title of the work are mentioned, the normal use of the work is not affected, and unreasonable harm to the legitimate rights and interests of the copyright holder can be avoided, except where the author declares that such publishing or broadcasting is not permitted.

The Chinese Constitution does not explicitly stipulate the "right of information". However, this term is provided in subordinate laws such as Regulations of the People's Republic of China on the Disclosure of Government Information (revised in 2019, effective 15 May 2019), the administrative regulation. The “right to information” is a prerequisite for freedom of speech. Theoretically, both of them constitute restrictions on copyright. However, as they are not clearly listed in the provision of fair use article in Chinese Copyright Law, we can interpret and understand the “right of information” as obtaining and knowing information for the purpose of exercising the right of freedom of speech.

If the usage complies with the provision of Article 22, providing the author’s name, the title of the work while not infringing other lawful rights of the copyright owner, it will not constitute infringement. The specific criteria for determining infringement can be decided and elaborated by the judges in specific cases.

Neighbouring rights include the rights of publishers’ typographical designs, the rights of performers, the rights of producers of sound or video recordings, and the rights of radio stations or television stations.

Chinese Copyright Law and the relevant legal framework do not provide specific types of contracts for the transfer, license or sale of neighbouring rights (copyright-related rights). In practice, the transfer, license or sale of neighbouring rights shall refer to the contracts for transfer, license or sale of copyright, while the interests of the original copyright owner must not be infringed, and the permission of the original copyright owner should be obtained.

Article 24 of Chinese Copyright Law (as amended in 2020) stipulates 13 exceptions, including 12 specific cases and one general provision, to the protections granted to copyright owners for the purpose of fair use. The fair use exception also applies to the copyright-related rights of publishers, performers, producers of sounds or video recordings, radio stations and television stations. See also 7.1 Fair Use Doctrine/Fair Dealing.

If a person acts in such a way that they benefit from the protected rights stipulated in the Copyright Law without authorisation, and there is no specific exemption or excuse for their acts, such as fair use or compulsory licence, such acts will be judged to be copyright infringement. The recognised types of infringement can be found in Article 51, Article 52 and Article 53 of Chinese Copyright Law (as amended in 2020).

The defences available against claims of copyright infringement include:

  • the work claimed by the plaintiff is not original or has little originality and does not constitute a work protected by Chinese Copyright Law;
  • the defendant did not commit any infringement;
  • the defendant's use of the work complies with the provisions of fair use or compulsory licence under the Chinese Copyright Law and so does not constitute infringement;
  • the works or copies used by the defendant have legitimate sources; and
  • the damages claimed by the plaintiff is obviously too high and the plaintiff did not prove the existence of any actual loss caused by infringement.

Generally, copyright owners can try to stop infringement by sending a lawyer’s letter, making a complaint to a network service platform, making a complaint supported by evidence to an administrative law enforcement agency, filing a civil lawsuit in the courts, or making a complaint to the public security organ.

When initiating the above procedures, the identification document of the copyright owner, proof of copyright ownership and prima facie evidence of infringement must be provided. If a lawyer is required to act as an agent, a power of attorney must be issued to the lawyer.

In terms of regional jurisdiction, according to the law, civil lawsuits brought for copyright infringement are under the jurisdiction of the people’s court in the place where the infringing act occurred, the place where the infringing items were stored or sealed up, or the defendant’s domicile.

In terms of court-level jurisdiction, the high people’s courts of each province may determine that, within that province, the courts at or above the intermediate level or a number of grass-roots courts have jurisdiction over first instance copyright disputes.

For computer software copyright infringement cases, there are three special intellectual property courts in Beijing, Shanghai and Guangzhou, and the 20 intellectual property courts in different provinces and cities in China that have jurisdiction over first instance computer software copyright infringement cases within their respective jurisdictions. Second instance trials are heard directly by the intellectual property court of the Supreme People’s Court.

In civil copyright infringement cases, right-holders or licensees participate in the proceedings as plaintiffs and the accused persons participate as defendants.

Whether a licensee can sue as a plaintiff depends on the type of licence. In general, if the licence is an exclusive or sole licence, the licensee may independently raise an action as a plaintiff. If the licence is a non-exclusive licence, the non-exclusive licensee may not independently file a lawsuit and may only file a lawsuit once the copyright owner has clearly authorised it.

According to the provisions of the Civil Procedure Law of China, a third party who believes that it has an independent right of claim in the action has the right to participate in proceedings. A third party who has no independent right of claim but has a legal interest in the outcome of the case may also apply to participate in the proceedings or may be invited by the court to participate in the proceedings. The parties to the case may also apply to the court to invite a third party to participate in the proceedings. Third parties with independent claims and third parties without independent claims who are responsible for the judgment may appeal.

If there is evidence to prove that the content of the legally effective judgment, order or mediation document is wrong, a third party who did not participate in the proceedings but is judged by the court to bear a civil liability, which harms their civil rights and interests, may bring a lawsuit to the court seeking the cancellation of such judgment, order or mediation document.

In China, urgent and temporary measures such as evidence preservation, property preservation and injunction may be applied to copyright cases, and an application may be filed to the court before or after a claim is filed.

If evidence may be destroyed or lost or might be difficult to obtain in the future, an application can be made to the court for evidence preservation. If the defendant might transfer his or her property and there are circumstances that will make it difficult to enforce the judgment or that will cause other harm to the parties, an application can be made to the court to preserve property. If the right-holder has evidence to prove that another person is committing or is about to commit copyright infringement, and if that infringement is not promptly stopped, this infringement will cause irreparable damage to the right-holder, an application can be made to the court for an order to stop the infringement before or during the proceedings.

The parties may apply for persons with special knowledge to participate in copyright infringement proceedings as experts. In addition, the court may assign technical investigators to participate in litigation activities when dealing with intellectual property cases requiring high technical expertise, such as computer software. Experts and technical investigators are more common in computer software copyright infringement cases, but less common in other types of copyright infringement.

According to the Regulations on the Customs’ Protection of Intellectual Property Rights, customs may, upon the application of a copyright owner, detain goods that are about to be imported or exported that are suspected of infringement. In addition to detaining the goods according to the application of the copyright owner, customs may also take the initiative to investigate and deal with goods suspected of infringement.

According to the provisions of Chinese Copyright Law (as amended in 2020), a copyright owner can bring a civil lawsuit to a people’s court requesting remedies such as stopping infringement and damages. The copyright owner may also complain to the competent copyright authority.

If the infringement harms the public interest, the relevant department may order the infringer to stop committing infringement and give them a warning, confiscate the illegal income, confiscate and render innocuous destruction of the infringing replicas and materials, tools, equipment, etc, used mainly for manufacturing of the infringing replicas. In addition, if the infringer’s behaviour reaches the conviction standard for copyright infringement, they might also bear criminal liability.

According to the specific circumstances of copyright infringement, if the infringing act simultaneously harms private and public interests, administrative penalties may be imposed by the competent copyright authority.

The copyright owner may also make a criminal complaint to the public security organ with supporting materials, and the public security organ shall decide whether to pursue matters and conduct investigations based on the evidence available. If the investigation results meet the conditions for prosecution, the people’s procuratorate shall prosecute the matter, and the court shall determine whether a crime has been committed.

Special appeal provisions mainly focus on computer software copyright infringement cases. As of 1 January 2019, if the parties are not satisfied with the first-instance judgment or ruling in computer software copyright infringement cases and other intellectual property cases requiring high technical expertise, appeals are made directly to the Supreme People’s Court.

According to the Chinese Copyright Law, the amount of damages should include the reasonable expenses paid by the right-holder to stop the infringement; they generally also include lawyer’s fees, notarisation fees, translation fees, travel expenses, appraisal fees, and other things. If the defendant’s infringement is established, the court will usually order the defendant to pay the plaintiffs reasonable expenses.

In copyright litigation, legal costs are borne by the losing party. If the case is partially successful (won) and partially unsuccessful (lost), the people’s court will decide on the apportionment of litigation costs that each party must bear according to the specific circumstances of the case.

Copyright infringement cases can also be resolved through mediation, but this is not mandatory. If the right-holder wishes to solve the copyright infringement dispute through a more convenient way, they can entrust the copyright mediation agency under the copyright administration department to organise mediation for both parties. After the copyright mediation agency decides to accept the application, it will notify the parties in writing to participate in the mediation. Mediation is voluntary and the notified party may choose not to accept it.

Lifang & Partners

12th Floor, Shun Tak Tower
1 Xiangheyuan Street
Dongcheng District
Beijing
P.R. China 100028

+8610 6409 6099

+8610 6409 6260 / 6409 6261

info@lifanglaw.com www.lifanglaw.com
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Lifang & Partners is a law firm headquartered in Beijing, with regional offices in Guangzhou, Wuhan, Shanghai, Shenzhen and Seoul. Lifang & Partners has 300 professionals, including more than 60 partners, over 100 patent attorneys and engineers and 20 trade mark attorneys. The outstanding legal background and abundant practical experience of its lawyers, along with the various technical backgrounds of its other professionals, allow the firm to help its clients consistently achieve their legal and business objectives in a timely and cost-effective manner by delivering solutions that are industry-focused, efficient and commercially pragmatic. Notable clients include Samsung, Microsoft, IBM, Heinz, Solvay, Dyson, Trend Micro, China Unicom, Datang Mobile, Midea, and Panasonic Electric Works. Lifang & Partners' lawyers have handled a number of high-profile cases, such as Huawei v Samsung, Sogo v Baidu, the disputes over The Voice of China and others.

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