—Analysis on Copyright Protection Term in China and Protection on Works in Public Domain
Highlight: Describing the protection term of various copyright works in China Copyright Law.
The European Internal Market Committee decided to extend the copyright protection term for performers and sound recordings from the current 50 years to 70 years for their copyright remuneration in the rest life of the performers. (news related, in English)
I. The protection term in China Copyright Law
China Copyright Law clearly regulates the protection terms on various works both domestically and internationally.
1、As to the personal right, whether companies or individuals, it could be protected by China Copyright Law without time limit, excluding right of publication.
2、The protection term on the right of publication and the property rights in China Copyright Law is mainly determined by category of the work/product and authors as follows:
(1) The protection term shall be the life time of the author and the first fifty years after their death when the author is a natural person.
(2) The protection term on the copyright enjoyed by companies shall be the first fifty years after the works’ first publication.
(3) The protection term of cinematographic or photographic works shall be the first fifty years after its first publication, no matter if it belongs to the natural person or legal person.
(4) The protection term on neighboring rights like Sound or Video Recorder right, the performers right or broadcasting organizer right shall be the first fifty years after its accomplishment, while it’s regulated ten years for protection on publishers’ neighboring right concerning format design after its publishing.
II. The application of the legal protection term in China
In judicial practices, Chinese courts take a flexible approach for the protection term with Chinese and foreign enterprises mainly treated equally.
For example, in 2009, Walt Disney Company (NYSE：DIS) initiated a lawsuit in Shenzhen against a local company who manufactured a cartoon figure resembling Disney’s copyrighted Mickey Mouse. And the argument in the case was concentrated on the protection term on Mickey Mouse, which was first published in 1928 and had come into public domain by China laws. However, it was ruled by the Shenzhen Court that the adaptation on the figure shall still be legally protected; therefore the Shenzhen company is judged to beliable for the compensation as claimed by Disney.
As far as we are aware, the protection term on some works in the US is extended after recent law revisions. However, according to the Berne Convention, the copyright protection should depend on each country’s own legislation instead of those laws in origin country of the works. For this reason, the original figure of Mickey Mouse is theoretically no longer protected by China Copyright Law, while in this case the interest of Disney is protected by the court’s judgment on the consideration of regulations concerning derivative works.
III. Other ways to protect works in public domain
The Chinese court’s decision on similar cases in its current stage tends to protect the right holder. But after some time, it might be changed since such decisions are not strictly enforced by law. We suggest the following two precautionary measures to right holders for interest protection:
1. Adapting the original works for the recounting of a prevention term; though such methods may lead to no-protection on original works.
2. Registering the works as the trademark; you may enjoy the exclusive right by continuing use after the registration. Our website could provide the services in trademark application.
Copyright reserved by Mr. You Yunting
Editor-in-Chief of Bridge IP Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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