CHINA Law and Practice Contributed by: Chuanhong Long, Huiqing Wang, Yingying Shen and Fan Li, CCPIT Patent and Trademark Law Office
functionality, are generally protected by copyright in China. The key criterion for copyright protection is that the artistic elements must be original and capable of existing independently of their functional purpose. 3.2 Requirements for Copyright Protection In China, copyright protection is based on the princi- ple of automatic protection, meaning that works are automatically entitled to copyright upon completion without the need for any formalities. The core requirements for copyright protection are originality and fixation. • Originality: The work should be independently created by the author, reflecting their intellectual labour and personalised expression. • Fixation: The work should be fixed in a tangible medium of expression (such as written text, audio recordings, video recordings, or digital formats) that allows it to be perceived, reproduced, or com- municated. Copyright registration is conducted voluntarily in China. In practice, when enforcing the copyright in China, the administrative authorities and the courts will require the copyright owner to provide evidence to prove its copyright. A copyright registration cer- tificate serves as prima facie evidence of copyright ownership. 3.3 Authorship and Ownership The natural person, legal entity, or unincorporated organisation whose name appears on a work shall, without contrary proof, be the author of the work. In the case of a work created jointly by two or more co-authors, copyright in the work shall be enjoyed jointly by those co-authors. Co-authors shall exercise the copyright of a work of joint authorship upon con- sensus. In the situation that no consensus has been reached, and there is no justified reason, no party shall prevent another party from exercising rights other than transferring and permitting others’ exclusive use, and pledging, but the proceeds obtained shall be reason- ably distributed to all co-authors. If a work of joint authorship can be separated into independent parts and exploited separately, each co-author shall be
entitled to independent copyright in the parts that he/ she has created, provided that the exercise of such copyright does not infringe upon the copyright in the joint work as a whole. In the case of a work created by employees in the course of employment, authorship is determined as follows: • Works of Employment in General: Copyright is held by the author, while the employer enjoys priority right to use the work within the scope of its busi- ness. • Exceptions: The author only retains the right of authorship, with other rights held by the employer, in the following scenarios: (a) works of employment that are created primarily by using the material and technical conditions of employer and for which the said employer assumes responsibility, such as engineering design drawings, product design drawings, maps, schematic diagrams, and computer software; (b) works of employment created by the staff of newspapers, journals, news agencies, radio stations, or television stations; and (c) works of employment for which the copyright is enjoyed by the employer as provided by laws, regulations or contracts. In the case of a work created under a contract with another party, authorship is determined by contract; if unspecified, copyright vests with the commissioned party (author). 3.4 Scope of Rights and Moral Rights Article 10 of the Copyright Law provides that copy- right shall include the following moral rights and eco- nomic rights: • personal rights: (a) the right of publication, that is, the right to decide whether to make a work available to the public; (b) the right of authorship, that is, the right to claim authorship and to have the author’s name mentioned in connection with the work; (c) the right of alteration, that is, the right to alter
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