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IPR: Copyright Protection. What You Need To Know
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Copyright Protection
What You Need To Know
By China IPR SME Helpdesk

BT 201710 IPR 01      随着中国法律法规的不断完善以及大众对文化科技领域版权认知度的提升,我国在版权保护方面取得了重大进展。在受版权保护影响深远的图书行业,业内自2013年至2014年的销售额整体增长了超过30%。另一个增长迅猛的新兴行业是移动应用行业,目前整体市值超过87亿美元(2015年),小型国内初创企业依靠版权对自己进行保护,外国移动应用的设计者也应提高相关版权意识,以免自己的设计和产品被抄袭利用。

      那么版权是什么,又为什么如此重要呢?版权也叫作者权,是用来表述创作者对其文学和艺术作品所享有权利的法律用语。涉及版权的作品有:图书、音乐、绘画、雕塑、电影、计算机程序、数据库、广告、地图和技术制图等。版权保护只延及表达,而不延及思想、过程、操作方法或数学概念本身。版权可能保护、也可能不保护标题、标语或标志等一些客体,取决于其是否含有充分的原创性。多数版权法规定,权利人享有授权或制止对其作品的某些使用,或在某些情况下,从对其作品的使用中获取报酬(例如通过集体管理)的经济权利。对于外国人的版权,我国法律有明确规定:无国籍人的作品根据其作者所属国或者经常居住地国同中国签订的协议或者共同参加的国际条约享有的著作权,受我国法律保护。外国人、无国籍人的作品,首先在中国境内出版的,其著作权自在中国境内出版之日起受中国法律保护。


      那么,如何登记版权呢?在我国,版权自作品创作完成之日起产生,版权登记不是取得版权的前提条件,但是版权登记证明文件是登记事项的一种初步证明,可以作为主张权利或提出权利纠纷行政处理或诉讼的证明文件。计算机软件,可由中国版权保护中心负责登记;其他具有独创性的作品:文字、美术、摄影、电影、音乐、建筑作品及工程设计图等,可由省版权登记部门负责登记。数字作品版权登记也可以在选择行业协会等第三方平台登记备案等方式登记。作品如未登记,将产生一些不利后果。

BT 201710 IPR 03Today, Intellectual Property Rights (IPR) has a strong footing in China despite the persistence of media accounts suggesting otherwise. There are dedicated IPR courts in major cities and litigation by foreign companies is frequently successful.
 

China is now making significant headway in cultural and high-tech industries, where copyright is the key. One example is the book industry with sales increasing by over 30% from 2013 to 2014. Another new industry is the mobile app industry, now worth over $8.7 billion (2015), with small domestic start-ups relying on copyright to safeguard them in a market where less cautious foreign app developers have been overtaken by copycats.
 

What is a copyright?

BT 201710 IPR 07Copyright is a form of Intellectual Property (IP) that protects a creator’s exclusive right to control who reproduces or alters the product of their original creative effort. Copyright protects the producers of any original work and is relevant to almost all businesses, not just those in the creative industry. Adequate copyright protection can form an important part of an IPR protection strategy. Businesses regularly create articles, photographs, drawings, designs, models, websites and computer software, which all enjoy copyright protection. Copyright is an automatic right that arises the moment a work is created.
 

Once the work is created, in most cases, the creator will automatically enjoy copyright protection in all 164 member countries of the Berne Convention for the Protection of Literary and Artistic Works, including all of China. Voluntary registration for copyright is available in China. Though European SMEs’ work is automatically protected by copyright the moment it is created, voluntary registration will provide proof of ownership, which can save the SME time and money in case of a dispute later on. For copyrights that are particularly important to the livelihood of the business it is strongly advised to register copyright.
 

What kinds of works are protected by copyright?

Copyright protects original creative expressions of ideas that exist in a fixed medium such as on a piece of paper, on an artist's canvas, on an optical disc or on magnetically recordable media. Copyright protects only the expression of an idea, not the idea itself.
 

Traditional types of creative works such as books, music, recordings, plays, films, paintings, sculptures, photographs, etc, enjoy copyright protection in China. Other works such as works of choreography, acrobatics, calligraphy, quyi (a traditional Chinese performance art form), model works and databases and compilations as to the selection and arrangement of content also enjoy copyright protection in China. The basic principle of a copyright is that the work should be original and reproducible.
 

Unlike in Europe, where computer software is protected by patents, software is expressly protected under copyright in China. Industrial and graphic designs, applied art and architectural buildings are also protected by copyright.

BT 201710 IPR 08How is copyright ownership determined?

A copyright of a work belongs to its creator, or the employer of the author. Protected creative acts include those intellectual activities that directly result in the creation of the work. Acts of support such as rendering services or material or financial resources are not considered creative acts. For example, if an SME provides only managerial support to the creation of a work, it will not be considered an author of the work. If it is expected that the copyright will be licensed, transferred, or used as an in-kind contribution to registered capital for the establishment of a legal entity in China, then copyright ownership must be clearly determined. Without evidence to the contrary, the person or entity whose name appears on the work is considered as the author of the work.
 

Commissioned works

BT 201710 IPR 02Without an agreement which states otherwise, copyright of a commissioned work belongs to the commissioned party. This means that if a third party is commissioned to create a work, then the copyright belongs to that third party unless stated otherwise in a relevant contract.
 

In all other cases, the employee owns the copyright to the service work. However, the contracting business enjoys preferential rights such as preventing its employee for a period of two years from licensing the work to a third party without consent, or if given consent, obtaining an agreed share of the licensing fee. Employment contracts should clearly address who owns the copyright to works created by employees and provide, where desired that copyrights to works created by employees be assigned to the employer in exchange for compensation.
 

How should you register for copyright?

Registration of copyright in China is administered by the Copyright Protection Center of China (CPCC). An applicant must complete the copyright registration application form and mail the application materials to CPCC. The application should also include supplemental documents such as identification documents of the applicant, any documents of copyright ownership, samples of the work, and a brief description of the work. After receiving the application, the CPCC will review the application materials, determine the cost (this is a one-off payment which can range from RMB 100 – 2,000), and notify the company. Once the applicant pays the fee, they will receive a notice of receipt of payment and notice of application acceptance. The examination of the application takes approximately 30 working days to complete from the date of acceptance. After the successful completion of the examination, the applicant will receive a Copyright Registration Certificate.
 

Copyright Enforcement

BT 201710 IPR 04The two most common ways to enforce copyright are through administrative and judicial routes. First, the SME needs to confirm any suspected infringement and gather and preserve evidence. For example, if suspected infringing goods are encountered at a trade show, the SME should attempt to gather business cards, take photographs and ask questions about the source of the goods. Where suspected infringement is discovered on the Internet, the company needs to determine the identity of the seller or user of the copyrighted work and the ISP network on which the infringing content is stored. For serious cases, European SMEs may want to consider hiring a lawyer or a private investigator.
 

While administrative enforcement through the National Copyright Administration of China (NCAC) is often a faster and less expensive alternative to judicial proceedings, NCAC is not empowered to issue damages. It can however, order infringers to stop their activities, confiscate illegal income, confiscate and destroy pirated goods and equipment and materials used to manufacture them and issue fines.
 

Meanwhile, the People’s Courts hears judicial enforcement cases. Companies may request the court for preliminary or permanent injunctions, to preserve evidence of infringement and property of the defendant and to order the defendant to destroy any infringing goods or instruments of infringement, pay damages and make a public apology.
 

If damages can be proved with reasonable certainty, there is no limit on the amount of damages a court can award. If actual losses or illegal income of the infringer cannot be determined, the court may order the defendant to pay compensation up to a maximum of approximately EUR 60,000. In most cases, damage awards for copyright infringement have been relatively low.
 

In minor cases or as a first-step to enforcing copyright in serious cases, the company may send a cease-and-desist letter to the suspected infringer requesting the infringer to stop its activities. Such a letter should identify the copyrighted work, ownership of the copyright and the alleged infringing activity. The letter may also include a demand to immediately cease all infringing acts under threat of litigation or further legal action, but legal advice should be obtained in advance to determine whether it is appropriate.
 

Border protection of copyrighted works and products by the General Administration of Customs (GAC) can be a cost-effective way to prevent counterfeit goods from entering or leaving China. The SME may directly apply to Customs to seize goods suspected of infringing a copyright or record copyright with the GAC to take advantage of Customs' routine screening of shipments.
 

Take-away messages

• Copyright defines a broad range of creations in China; particular care should be taken to protect works – such as software - which are usually protected by other intellectual property types in Europe.

• It is recommended that European SMEs must voluntarily register their copyright as part of a multi-layered IPR protection strategy. For example, a company logo can enjoy double protection as both a trade mark and a copyright. In addition, in case of infringement a copyright registration proves that the company is the rightful owner of the copyrighted work in dispute and increases company’s chances of successful copyright enforcement.

• Carefully structure and check the contracts and license agreements to ensure that ownership of copyright is determined in a manner most beneficial to the company.
 

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