CHINA Law and Practice Contributed by: Chuanhong Long, Huiqing Wang, Yingying Shen and Fan Li, CCPIT Patent and Trademark Law Office
3. Copyright 3.1 Legal Framework and Copyrightable Works In China, copyright protection is primarily governed by the Copyright Law and the relevant regulations. The Copyright Law defines the scope of copyright, the rights of copyright owners, and the limitations and exceptions to these rights. The law also outlines the procedures for copyright registration, enforcement, and dispute resolution. Copyright protection in China extends to a wide range of creative works, including, but not limited to: • written works, such as novels, poems, essays, reports, and other written works; • oral works, such as impromptu speeches, lectures and court debates; • musical works, dramatic works, quyi works, cho- reographic works, and acrobatic works, such as songs, plays, operas, ballets, and other performing arts which are mainly performed by recitation or singing, or by both; • works of fine art and architecture, such as paint- ings, calligraphy, sculptures, and unique architec- tural designs, including buildings and structures; • photographic works, created by recording images of objects on light-sensitive or other materials with the aid of devices, such as photographs; • cinematographic works and works created by a process analogous to cinematography, such as films, television programs; • graphic works and model works, such as engi- neering and product design drawings, maps and schematics; • computer software, including the code and related documentation of computer programmes; and • other intellectual achievements that meet the char- acteristics of works. In China, industrial designs are primarily protected under the Patent Law through industrial design pat- ents. However, certain aspects of industrial designs, particularly those with artistic or aesthetic elements that can be separated from their functional aspects, may also qualify for copyright protection. Applied art- works, which combine artistic creativity with practical
• use of descriptive terms, generic names, geo- graphical indications, or functional features in good faith for purposes of identification or description; • continued use of an identical/similar mark by a prior user with certain influence before the applied date; • reselling of marketed goods bearing the trade mark without permission of the trade mark owner; • legitimate use of one’s own name, firm name, or address in good faith; and • use not as a source identifier but for information or reference. 2.6 Trade Mark Enforcement and Remedies Infringement, Dilution, Passing Off • Infringement: Unauthorised use of identical/similar marks causing confusion, sale of infringing goods, forgery of marks and assisting infringement consti- tute infringement. • Dilution: Blurring, tarnishing, or weakening well- known trade marks, or misappropriating their reputation may constitute dilution. • Passing Off: Unauthorised use of unique packag- ing/decoration of famous goods causing confu- sion, governed by the Anti-Unfair Competition Law, • Judicial cases are heard by intellectual property courts, intermediate people’s courts, and desig- nated basic people’s courts. • Administrative cases against CNIPA are heard by the Beijing IP Court and Beijing Higher People’s Court. Remedies • Civil remedies include injunction, destruction of infringing goods, damages (statutory damages up to CNY5 million). • Administrative remedies include confiscation, fines, and orders to cease infringement. • Criminal remedies apply to criminal liability for serious counterfeiting, including imprisonment and fines. Customs remedies include recordal and seizure of infringing imports/exports. constitute passing off. Competent Authorities
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