Copyright Law in China
With offices in Beijing and Shanghai, Wang & Wang assists clients with the registration and protection of copyrights in the People's Republic of China. The National People's Congress approved the Amendment to China's Copyright Law (the "Amendment") on October 27, 2001, to take effect immediately. The Amendment contains revisions and additional provisions to bring the Law into closer conformity with Trade Related Aspects of Intellectual Property Rights ("TRIPS") and the Berne Convention. China is a signatory of the World Trade Organization ("WTO"), Berne Convention, Copyright Treaty, Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, World Intellectual Property Organization ("WIPO") Copyright Treaty, and WIPO Performances and Phonograms Treaty. Copyright of any individual or entity of another member country will be protected in China.
- Copyright Ownership
- Works Protected in China
- Exclusive Rights Retained by Copyright Owners
- Term of Protection
- Licensing and Assignment of Copyrights
- Civil and Administrative Remedies
- Criminal Penalties
In China, ownership of the copyright to a work is granted to Chinese nationals upon completion of the work. No registration is required for copyright protection. In order to qualify for copyright protection, foreign copyright owners must meet one of the following requirements:
- Their works must first be published in China prior to publication in other jurisdictions.
- The author must be a national or a resident of a jurisdiction, which is in accordance with an international treaty or an agreement, of which both countries are the signatories.
- Where a foreign work is first published in a member country of a treaty to which China is also a member.
Works Protected in China
Copyrightable works include but are not limited to works of literature, art, natural science, social science, and engineering technology that are expressed in the following forms:
- Written works
- Oral works
- Musical, dramatic, quyi, and choreographic works
- Artistic and architectural works
- Photographic works
- Cinematographic and audio-visual works
- Graphic works and models related to engineering designs, product designs, maps
- Computer software
- Other works specified by laws and regulations
Exclusive Rights Retained by Copyright Owners
Only the copyright owner may exercise the following personality rights and property rights:
- Right of publication
- Right of authorship
- Right of alteration
- Right of protection against distortion
- Right of reproduction
- Right of leasing
- Right of public performance of a mechanical work
- Right of exhibition
- Right of performance
- Right of broadcast
- Right of distribution over an information network
- Right of adaptation
- Right of translation
- Right of compilation and annotation
Term of Protection
There is no time limitation on moral rights protection. Generally, the term of protection of publication rights and other copyrights is the life of the author plus fifty years. In the following instances, the term of copyright is fifty years:
- When the author of the work is a corporation or other entity
- When the work is a photographic work, cinematographic, television, and audio-visual work
- When the radio or television program was broadcasted
In addition, a publisher enjoys a ten-year protection term for his original designs of a publication.
Licensing and Assignment of Copyrights
Copyrights, which may be jointly owned by two or more persons, may be assigned and licensed in whole or in part. The assignment or license agreements of copyrights owned by foreign copyright holders should be recorded with the Copyright Office. Recordation of copyright transfers gives potential third party claimants constructive notice of the prior transfer.
A written agreement is required for copyright licensing and assignment. The agreement shall include six basic items, such as the name of the licensed or assigned work, rights granted, licensed territory, price, method of payment, liabilities for breach of contract, and other contents.
For information on computer software licensing in China, please visit our Business and Litigation page.
Civil and Administrative Remedies
Civil remedies available to a copyright owner whose copyright is infringed upon include monetary damages, injunctions, destruction of the infringing products, and publication of an apology. When actual damages are difficult to assess, the court will determine the amount of damages based on the seriousness of the infringement and the culpability of the defendants up to RMB 500,000 Yuan (approximately US $60,000). Where the rights owner has evidence to prove infringement, and irreparable harm will occur without immediate action, or evidence of infringement may be lost or difficult to obtain later, the Law also provides for preliminary injunction to reduce damages, and preserve evidence before the civil lawsuit is initiated.
The Criminal Law provides for various types of criminal penalties for copyright infringement. For example, any person who reproduces the work of another without authorization is subject up to seven years imprisonment in addition to a fine. If a juridical entity violates copyright law so as to constitute a crime, in addition to punishment by fine, the responsible person of the entity will be liable for criminal penalties. For more specific information on protection of copyrights, visit our page describing Intellectual Property Enforcement in China.