By You Yunting
A reader asked: Does Chinese law protects the copyrights of foreign companies and individuals? And, how long is the protection period? Today’s post will discuss this question.
I. The three requirements for granting copyrights to the works of foreign individuals or companies
Whether or not the work of a foreign person, company, or stateless person enjoys the copyright protection period depends on whether or not they qualify as a Chinese copyright holder. By Article 2 of China’s Copyright Law, one of the following three conditions must be met:
1. The work of a foreign individual, foreign company, or stateless person is copyrighted according to a treaty concluded between China and his or her motherland or state of residence, or it is copyrighted according to an international convention to which both states are party.
2. The work of a foreign individual, foreign company, or stateless person is first published in China.
3. The work is by a foreign individual, foreign company, or stateless person from a country that has concluded no treaties with China and is not a member of an international convention to which China is party, but the work is first published in a country that is a member of an international convention to which China is party or is published simultaneously in a member country and a non-member country.
China is a member of the Berne Convention (“Convention”). Considering that 163 states have joined the Convention, in most cases, foreign companies and individuals can cite the Convention to enjoy a copyright protection period in China equal to that enjoyed by Chinese citizens. Works created by non member state citizens, companies, or stateless persons only need to meet the above requirement of being first published in China, and their copyright will also receive protection under the Copyright Law.
II. The copyright protection term
The following are the rules from Chinese law concerning the protection term of copyrighted work:
1. As to the moral rights, whether the author is a company or an individual, except for the publication right, no fixed term can be found on other moral rights in Chinese law, and such rights could be protected forever.
2. As to the publication right and property rights, China’s Copyright Law provides different protection terms for works based on their type and their author:
(1) For work of a citizen, the protection term shall be the lifetime of the author plus fifty years after his or her death.
(2) For work where the copyright belongs to a legal entity, the protection term shall be fifty years after the first publication of the work.
(3) For cinematographic or photographic work, the protection term shall be fifty years after the first publication of the work, whether it is owned by a legal entity or an individual.
(4) For the neighboring rights held by the makers of audio or video recordings, performers, and broadcasters, the protection term shall be fifty years after the work’s first publication. But, the period for neighboring rights enjoyed by the layout designer shall be ten years after the work’s first publication.
III. Other protection methods for term expired work
If the term of the copyright has passed, can the work still receive legal protection? We suggest the rights owner take the two following precautionary measures in order to protect his or her rights through other means:
1. Create an adaption of the original work in order to renew the protection term from the completion of the adaption. But, this method is flawed because it still cannot protect the original work.
2. Register the work as a trademark. Once the application is approved, the right can be continuously enjoyed so long as the mark is continuously used and renewed. Our website can provide you trademark application services.
the Patent Preliminary Injunction Application in China(I)</a>
Lawyer Contacts
You Yunting：86-21-52134918 youyunting@debund.com/yytbest@gmail.com
Disclaimer of Bridge IP Law Commentary
Short Link: