IVAN KUZMIN / SHUTTERSTOCK.COM
Registering copyright in a creative work or software program in China provides good protection in a variety of useful ways, says Jinping Shi of CCPIT Patent and Trademark Law Office.
China is a signatory country to the Berne Convention and several other important international treaties covering intellectual property rights.
As in many other countries, copyright registration is a voluntary procedure in China. Copyright shall exist from the date on which the creation of a work has been completed or from the date on which the development of a software product has been completed.
Since a copyright shall exist automatically when a work or software is created, why do people need to apply for copyright registration? The nature and effects of applying for a copyright registration in China are:
It is a preliminary proof of the registered information. Unless there is contrary evidence, the registered facts or deeds are deemed true;
It can be used as a certificate of rights to guarantee transaction security in an assignment of a work/software or a licence for using a work/software;
It can be taken as prima facie evidence in claiming damage caused by an infringer or during a litigation in order to efficiently lighten the burden of proof of the copyright owner and reduce the lawsuit cost;
In many copyright infringement cases, such as the cases in relation to the Chinese animation “Pleasant Goat and Big Big Wolf”, the copyright registration certificates have been taken as the main evidence to prove the rights of the copyright owner;
Copyright registration certificates can also be used as evidence to prove prior rights in trademark oppositions, trademark cancellations, and administrative proceedings, etc;
When multiple transfers occur, the registered assignment deed has the effect of acting against the third party; and
The software copyright registration certificate is an important factor for the identification of a software product, software enterprise or high and new technology enterprise, and for software enterprises to enjoy a preferential tax policy.
Two kinds of registration
When applying for copyright registration with the Copyright Protection Center of China (CPCC), there are two kinds of registration: for the original state of the rights, and for change of rights.
Copyright registration for the original state of the rights is referred to as ‘copyright registration’. The registered information mainly includes the title of the work, name of the author, name of the copyright owner, date of completion and date of the first publication, etc. The copyright registration applies only to the original acquisition of a copyright, not to the acquisition of a copyright through assignment.
Registration for change of rights, referred to as ‘copyright contract recordation’, includes contract recordation for copyright assignment and contract recordation for licensing. The recorded information mainly includes the title of the work, names of the assigner/licensor and assignee/licensee, the rights that have been transferred, the date of the assignment, and the manner of exploitation, territory and duration of the licence. The registration is not a premise of the effectiveness of the assignment/licence.
"Copyright registration certificates can be taken as prima facie evidence in claiming damage caused by an infringer or during litigation."
In order to apply for a copyright registration in China, the following documents are required:
Application form, which shall be filled in through the CPCC’s online system;
Sample of the work/source program of the software;
Description of the work/instructions of the software in Chinese;
Proof of identity of applicant. If the applicant is an individual, a copy of the ID or passport shall be provided; if the applicant is an entity, a copy of the certificate of incorporation/business registration shall be provided. For copyright registration for software, the copy of the certificate of incorporation/business registration of a foreign entity shall be notarised by the notary or legalised by the Chinese Embassy in the foreign country;
Proof of ownership, such as a copy of the contract between the author and the applicant in the case that the author is not the copyright owner, or other relevant documents, such as a statement made by the author; and
Power of attorney, which shall be provided if the copyright registration is filed through an agent.
Features of copyright
When filling in the application form, the applicant shall indicate the type of ownership of the copyright, which is different under different circumstances according to the provisions of the Copyright Law of the People’s Republic of China. For example, copyright in a work generally belongs to its author (one or more individuals); however, when a work is created by a legal entity that bears responsibility for the work, the copyright in the work shall belong to the legal entity. As for works created in the course of employment or under commission, the ownership of the copyright can be agreed upon in a contract between the employer and the employee or between the commissioning party and the commissioned party.
The term of protection of the copyright in a work is also different depending on the type of ownership. For works in which the copyright is enjoyed by an individual, the term of protection is ‘life plus 50 years’, expiring on December 31 of the 50th year after the author’s death. For works in which the copyright is owned by a legal entity, the term of protection shall be 50 years, expiring on December 31 of the 50th year after the first publication of the work.
When filling in the application form, the applicant also needs to provide the date of the completion of the work and the date of the first publication if it has been published. In case the applicant has difficulty in providing an accurate date of the completion of the work, a vague date like “2005” or “October 2005” can be accepted.
The date of the first publication must be an accurate date such as “October 1, 2005”. In practice, the vague date of completion shall be deemed to be the last date of that year, eg, December 31, or the last date of that month, eg, October 31, 2005. In such a case, the presumed date of completion would be later than the date of the first publication. The applicant will need to watch out for such a problem.
When copyright of a work is acquired through assignment, the applicant shall not apply for the copyright registration, but the copyright contract recordation. When applying for the copyright contract recordation, instead of the date of the completion and the date of the first publication, only the date of the assignment will be recorded on the registration certificate.
If the application documents meet the requirements, it will take about 30 working days to obtain a copyright registration certificate from the date of the submission of the application documents to the CPCC.
Jinping Shi is a patent attorney at CCPIT Patent and Trademark Law Office. She specialises in all IP-related disputes, including patent, trademark, copyright and unfair competition. She joined CCPIT in June 2005. She can be contacted at:
shijp@ccpit-patent.com.cn
Jinping Shi, CCPIT Patent and Trademark Law Office, copyright, copyright registration, software, CPCC,
