Very often companies making business in China wonder whether a work of art shall be recorded before the competent authority or the legal protection is automatically generated when the work itself is created.
This is a very interesting question, also because its answer goes – counterintuitively - into opposite direction of the trademark protection.
Trying to clarify the copyright protection in China, we will make comparison and reference to the trademark registration which is probably a more known concept.
For trademarks, in China, the legal protection is generated at the moment of the approval by the China National Intellectual Property Office (CNIPA).
The validity of a trademark lasts 10 years from the registration date and it is renewable - tendentially ad infinitum - for further periods of 10 years. However, the trademark (if not well-known) offers protection only to the goods identical or similar to those designated in the application.
To this extent goods and services are divided into 45 classes (and in China also in hundreds of subclasses) that shall be selected at the time of filing the application making sure to indicate that products/services are properly covered.
For copyright, in China, the legal protection is generated when a work of art is created within the territory of China.
If the work of art is created abroad the legal protection is also starting from the creation but only if the country in which the work of art is created is a signatory of the Berne Convention (see the Berne Convention for the Protection of Literary and Artistic Works) or other treaties. Also, the copyright is not subject to goods or services designation and classes' differentiation.
Based on what above, we can conclude that for trademarks – in China – the registration is the moment in which the legal protection starts and exist, for the copyright the legal protection starts with the simple creation of the work of art.
Nonetheless, even if the recordation of the copyright is not essential to the existence and validity of the legal protection, it is warmly recommended for practical purposes. Indeed, if a copyright has to be used within a legal procedure (an infringement case, for example) the recordation simplifies largely the utilization.
How about the duration of protection of a copyright?
In this case the answer is strictly connected to the kind of work we are going to protect.
For moral rights such as authorship, right of modification and integrity, the protection is unlimited.
For moral rights such as right of publication, if the author is a legal person or if it is a work made for hire, the protection lasts 50 years, ending on 31 December of the 50th year after the date of first publication. If the work is not published within 50 years, it is no longer protected.
If the author is an individual, the protection lasts for the duration of his or her life, plus 50 years after his or her death, ending on 31 December of the 50th year. If it is a joint work, protection ends on 31 December of the 50th year after the death of the last surviving co-author.
For audiovisual work, the audiovisual producer enjoys 50 years' protection and has the right to charge third parties fees for reproduction, distribution, lease and communication through information networks for a period from the date when production is completed to 31 December of the 50th year after the production completion date.
For economic rights such as right of reproduction, distribution, rental, exhibition, performance, projection, broadcasting, communication via information networks, adaptation, translation, composition and other rights to which a copyright owner is entitled, if the author is a legal person or other organization, or if it is a work made for hire, the protection lasts 50 years, ending on 31 December of the 50th year after the date of first publication.
If the work is not published within 50 years, it is no longer protected. If the author is an individual, the protection lasts for the duration of the author's life, plus 50 years after his or her death, ending on 31 December of the 50th year.
Another common issue is related to the usage that the creator of a copyrighted artwork is allowed to carry out (in case for example, the creator of a copyrighted artwork sells/transfers the copyright to another person/ legal entity):
In this case, the exhibition rights of the original work belong to the owner, and its creator is no longer allowed to use the copyrighted artworks even though he is the original creator of the same. We strongly recommend to always obtain the owner consent before publishing/using any copyrighted artwork.
Knowing that obtaining a trademark registration in China is very difficult due to the huge number of the already registered trademarks, how difficult is to obtain a copyright recordation?
Also for this question, the answer goes in opposite direction from the trademark registration. The copyright recordation is rather simple. There is no substantial examination from the Copyright bureau and the only examination carried out is related to the document's preparation. It takes only few days to obtain a copyright registration certificate.
Last common question is related to the recordation of a copyright carried out by someone else and not its creator. What options do we have in China?
For trademarks, when this scenario happens, it is possible to file an invalidation procedure before the CNIPA. The CNIPA will carefully evaluate the rights of the plaintiff and, whereas enough evidence are provided, it may lead to invalidate the trademark registered by a third party.
For copyright there is no such administrative action. The only way to cancel a copyright recordation is through litigation and if the litigation is favorable to the plaintiff, it will be possible to apply for revocation of copyright registration based on the litigation judgment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.