CHINA Law and Practice Contributed by: Chuanhong Long, Huiqing Wang, Yingying Shen and Fan Li, CCPIT Patent and Trademark Law Office
Assessing Substantial Similarity The assessment of “substantial similarity” is qualita- tive rather than purely quantitative. Courts consider whether the copied portion constitutes the core or essence of the original work or whether the extraction constitutes the heart of the original work, regardless of its literal size. If the elements taken are the most creative or commercially valuable parts of the work, a smaller portion may still be deemed substantial. Non-Literal Copying, Particularly for Software Non-literal copying of computer software – such as copying the structure, sequence, or organisation (SSO) – may be actionable. When conducting the “substantial similarity” test, the courts adopt a lay- ered analysis: first filtering out ideas, functions, public- domain elements, and expression merged with func- tionality (merger doctrine), then comparing only the author’s original expression. Factors such as module architecture and data flow can be considered, pro- vided they reflect creative choices rather than func- tional constraints or standard programming practices. This balanced approach protects genuine originality in software without allowing copyright to monopolise basic functions or algorithms. 3.9 Collective Management and Licensing Role and Operation of Collective Management Organisations Collective management organisations in China oper- ate as non-profit entities. They are established with approval from the national copyright authority and represent a broad base of rights-holders. These organisations enter into licensing agreements with users (such as broadcasters, online platforms, and businesses) on behalf of their members and collect and distribute royalties accordingly. They also have the standing to initiate litigation in their own name to The collective management organisations shall con- sider the following factors when setting the tariffs: (i) the time, manner, and geographical scope of the use of works, sound recordings, video recordings, etc; (ii) the types of rights involved; and (iii) the complexity of the work in concluding licence agreements and col- lecting fees. Furthermore, the collective management enforce the rights they manage. Tariff Setting and Regulation
organisations shall negotiate tariffs with representa- tives of user industries. If negotiation fails, the matter can be submitted to the national copyright authority for adjudication, or the parties may seek resolution through the courts. Compulsory Licensing Schemes China Copyright Law does NOT have provisions on compulsory licence. Meanwhile, the Copyright Law lists several specific scenarios of statutory licences, under which the user does not need prior permission but must pay remuneration. Typical examples of statutory licence include the re- publication of articles by newspapers and periodicals (unless the author expressly prohibits it), the use of previously recorded musical works for making new sound recordings, and the use of works for compiling compulsory education textbooks. Resolution of Disputes Disputes over royalties or licensing terms can be resolved through several channels. The parties may engage in direct negotiation or seek mediation. If an agreement cannot be reached, the dispute may be submitted to the copyright administrative authority for adjudication, or a party may file a civil lawsuit directly in court. The courts typically evaluate the fairness of the proposed tariffs based on industry standards, the scope of use, and the nature of the work. 4. Industrial Designs and Trade Dress 4.1 Legal Framework and Protectable Subject Matter Governing Laws Industrial designs are governed by Patent Law. Under Article 2.4 of the Patent Law, a design is defined as “a new design of the shape, pattern, or their combi- nation, or the combination of colour with the shape or pattern of a product as a whole or in part, which creates an aesthetic feeling and is fit for industrial application”. Thus, the aspects of product appear- ance include the shape, pattern, or their combination, or the combination of colour with the shape or pattern of a product as a whole or in part.
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