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Copyright

Update time:2016-01-27  source:

In China, the Chinese terms of “版权” and “著作权” are synonymous, both meaning copyright. It refers to the right enjoyed by the creator in respect of his literature, artistic works or scientific works, or by the lawful owner in respect of some other works of his own intellectual creation. This right includes the right of authorship (i.e. the right to be named as the author), the right of publication, the right of alteration, the right to protect the integrity of the work, and the right to prohibit unauthorised use by others by means such as reproduction, publication, broadcasting and dissemination via the Internet.


Under the Copyright Law, a wide range of works are entitled to copyright protection. Literary, musical, dramatic, choreographic and acrobatic works, works of fine art, photographic works, cinematographic works, drawings of engineering designs, product designs, computer software, computer animation, online game interface etc. are all protected by copyright. In terms of brand protection, trademarks, advertising slogans, advertising pictures or videos, manuals, product photographs and product packaging etc. are forms protected by copyright. Enterprises should take note whether their works can enjoy copyright.  Moreover, recent court decisions held that web-page designs are similarly within the scope of copyright protection.


First, some trademarks are not only protected by the Trademark Law, but also by the Copyright Law. Such trademarks mainly refer to those which consist of graphics, graphical characters, or special characters. Since graphics and creative forms of characters are protected by copyright, these trademarks are also protected by copyright.


For advertising slogans of enterprises, as long as they have originality, they can be protected by the Copyright Law. However, not all advertising slogans can enjoy copyright protection. Slogans which are too simple or lack creativity may not enjoy copyright protection because they do not possess originality.


Product manuals and product catalogues designed or produced by the enterprises themselves are also protected by the Copyright Law as long as they are not copied from others. Where enterprises commission others to design and produce the product manuals, they should agree with the commissioned designer or design company on ownership of the copyright arising therefrom. The commissioning company can enjoy the copyright if both parties agree that the copyright should belong to the commissioning company, otherwise the copyright would belong to the designer or design company.


Product photographs and advertising pictures and videos are somewhat special. Even though they are produced by the employees of an enterprise in the course of employment, the enterprise should state whether the copyright of such works belongs to the enterprise in accordance with the terms of the employment contract or a separate contract. If the enterprise commissions others to produce such works, the enterprise should also agree with the commissioned designer or design company as to who should own the copyright. In the absence of such agreement, the copyright would belong to the producer of the works.


The Chinese mainland, Hong Kong and many other countries and regions in the world are members of the Berne Convention for the Protection of Literary and Artistic Works. According to the Berne Convention, works created by nationals of the member countries (including Hong Kong citizens and enterprises) can enjoy the same protection in other member countries as their nationals in these member countries. Hence, works of the citizens or enterprises of Hong Kong and other member countries or regions can enjoy copyright protection in China.


Moreover, the works of any foreigner or stateless person, provided that they were first published in China or other member countries of the Berne Convention, can also enjoy protection under the Copyright Law in China.


For the work of an individual author, the term of protection is the lifetime of the author and 50 years after his death. In the case of a work of joint authorship, the term of protection will expire 50 years after the death of the last surviving author. As for employment work, the term of protection will expire in the 50th year after the first publication of such work.


The term of protection for cinematographic works and photographic works expires in the 50th year after the first publication of such work. The expiry date for the above-mentioned 50th year is 31st December of the 50th year. Publication of the work can be in any form of making the work public. It can be written publication or publication on the Internet, or performance in public, or dissemination of information to the public.

 

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