CHINA Law and Practice Contributed by: Chuanhong Long, Bin Zhang, Cuicui Liang and Lei Fu, CCPIT Patent and Trademark Law Office
3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works According to Chinese Copyright Law, the follow - ing categories may be protected by copyright: • written works; • oral works; • musical, dramatic, folk arts, choreographic and acrobatic art works; • works of fine art and architecture; • drawings of engineering designs and product designs, maps, sketches and other graphic works, as well as models; • computer software; and • expressions of folklore; etc. Normally, industrial designs are protected by patent. 3.2 Essential Elements of Copyright Protection Ingenious intellectual achievements in the fields of literature, art and science, that can be pre - sented in a certain form, qualify for copyright protection. 3.3 Copyright Authorship The copyright in a work belongs to its author. The author of a work is the natural person who has created the work. Where a work is created according to the intention and under the supervi - sion and responsibility of a legal entity or another unincorporated organisation, such legal entity or unincorporated organisation is the author of the work. • photographic works; • audio-visual works; A work created by a natural person when fulfilling the tasks assigned to them by a legal entity or
throughout the term of a mark. These rights are outlined in the Chinese Trademark Law and its
implementing regulations. 2.4 Use in Commerce
If trade mark registration is obtained for more than three years, anyone can file a non-use can - cellation. The registrant then needs to file evi - dence of use, which forms a chain to prove the effective, commercial and true use in the past three years. It is necessary to establish that the defendant has used the sign as a trade mark, in contrast to using it for purely descriptive pur - poses. 2.5 Notices and Symbols According to Article 63 of the Implementation Regulations of the Chinese Trademark Law, a registered trade mark can be used on goods, packaging of goods, illustrative books or other attachments. It can be denoted as a “registered trade mark” or as “R” with a circle around it. The “TM” sign can be used to indicate that the sign is used as a trade mark, but this does not indicate registration. It is not compulsory to use such symbols, how - ever, and there is no statutory consequence for not providing notice of trade mark ownership. 2.6 Related Rights Whether the trade mark can be protected by copyright or related rights depends on whether it conforms with those laws. There is no specific regulation regarding surname. If it meets the requirements of the Chinese Trademark Law, it can be registered as a trade mark. There is no limitation on the scope of trade mark laws based on copyright or related rights in China.
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