Today this article is dedicated to “copyright” and some reference will be also done to software, in fact protection of software originates from this category.
(A very useful web-site to help the foreign investor understanding IPR in China is the following:
http://www.chinaipr.gov.cn/
).
With respect to
Copyright
China has adopted the
Copyright Law
(
http://www.chinaipr.gov.cn/lawsarticle/laws/lawsar/copyright/200608/232720_1.html
)
and the following pieces of legislation:
Regulations for the Implementation of the Copyright Law
;
Regulations for the Implementation of International Copyright Treaties
;
Measures on the Registration of Computer-Software Copyright
; and the
Regulations on the Protection of Computer Software
,
also known as “
Computer Software
Protection Rules
.” (All laws and regulation related to “copyright” can be found at the following web-sites:
http://www.chinaipr.gov.cn/list/laws/lawsar/copyright/1/lawscateinfo.html
).
The scope of the
Copyright Law
is similar to national provisions elsewhere; it covers literary, artistic and musical work, as well as computer programs, Internet content. The law provides for the eligibility of works by foreigners in accordance with the Berne Convention.
In China the law governing copyright related to a work created during an individual’s employment differs from that in many other jurisdictions: the employee, not the employer, owns the copyright. However there are limitations on the employee’s use of the copyright, including the employer’s
“priority right to exploit the work within the scope of its professional activities.”
Though there is no requirement to register copyright in China since the Berne Convention states specifically that copyrights need not be registered, however it is advisable to register your copyright so that you can prove ownership in any dispute or court case. This may prove very expensive and some lawyers recommend, as a more practical option, filing only after the discovery of an infringement. Expert
advice should be sought on this point in individual cases.
Licensing and assignment of the copyright is also possible: A copyright owner enjoys proprietary rights during the term of copyright protection (The effective period for copyright protection is, in general, for the life of the author plus 50 years) including the exclusive right to reproduction, distribution, leasing, exhibition, performance, broadcasting and dissemination over the Internet, adaptation, annotation, compilation and translation, of the work.
Software protection
Protection of software plays a very important role, especially nowadays in the era of new technologies and in the
Information Technology
industry.
It seems that China is meeting its international obligation in software protection by phasing out pirated computer programs in its government agencies, affirmed a source near the government (see article at:
http://www.chinaipr.gov.cn/newsarticle/news/government/201305/1750395_1.html
).
“The Chinese central government is performing its duties when it comes to copyright protection regarding software products, including those used by government agencies, Yan Xiaohong, National Copyright Administration deputy director, told a press conference. Investigating and correcting uncopyrighted software in central and provincial-level government departments was completed at the end of last year, and the campaign will reach city-level and county-level agencies by the end of this year, Yan said. Moreover, the government is working to establish a reliable system, including clear specifications on financial support, regulation enforcement and auditing processes, to ensure software copyright protection in government agencies. There will also be regular checks to ensure the implementation of relevant requirements, the official said. According to Tian Lipu, director of the State Intellectual Property Office, the number of new filings for software copyright registration in China hit a record high last year, reaching 139,000 applications. In 2008, the number was 45,000 and there has been a huge increase over recent years, Yan said. Moreover, the production value of China’s software industry has grown from 75 billion yuan ($12.03 billion) in 2001 to 2.5 trillion yuan last year (i.e. 2012), indicating that the country’s software protection efforts are effective.”
As noted from the content of this article, China is experiencing an un-precedent growth in this field, and this is the main reason why the legislator included in the copyright law protection of software, then has developed other specific legal instruments.
Copyright registration for
software
is not mandatory in China in order for copyright subsist; however, the advantage of registration is that in the event that the rights holder needs to enforce its copyright, it may be easier to convince authorities to take action. However, one disadvantage of copyright registration is that the confidentiality of the work will not be preserved.
Please also note that “Computer programs as such cannot be patented, but may be protected under the “Regulations on Computers Software Protection”, formulated in accordance with the Copyright Law. An invention containing a computer program may be patentable if the combination of software and hardware as a whole can really improve prior art, bring about technical results and constitute a complete technical solution” (visit the SIPO web-site at:
http://english.sipo.gov.cn/
).
Software registration is processed by the Copyright Administration’s Computer-Software Protection Centre in Beijing. The process takes approximately 40 to 60 days after submission of the application. In the latest move to protect intellectual property rights all government departments at, and above, county level will use licensed software by the end of 2013. Industry insider predicted that the move will create a wave of business opportunities for software providers, especially for foreign brands.
The MofCOM stated that all government departments in 600 cities and 2900 counties will use licensed software by the end of 2013, while the 31 provincial level governments will promote the use of licensed software. The State Council affirmed in November 2011 that provincial governments will complete the software legalization within a couple of years. Clearly this is a demonstration of the government’s strong commitment to protecting IPRs.
This entry was intended to introduce copyright in China. However, the theme is not complete yet. In the next entry I will briefly examine “trade secrets” and other regulations having an impact on IPR.
(Some of these articles are extracted from my work titled M&A and Takeovers in China, so if you are interested in this topic, please visit:
http://www.kluwerlaw.com/Catalogue/titleinfo.htm?ProdID=9041140484
).
Cristiano Rizzi