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China IP Lawyer: how to register a trademark and protect your brand in China

2016-12-08T11:34:33+00:00

Before you enter into China market, it’s of great importance to firstly register your trademark in China. There are six distinct steps in obtaining, registering and protecting a trademark in China. Below we explain in details how to register and protect your trademark under Chinese law and trademark application practice. Consult our China IP lawyers for free preliminary consultation. China IP lawyer reminds you that the law discussed below may change over time and may not apply to current situation when you read this website.

1. Conducting a Trademark Clearance Search

Before applying for a trademark, you want to determine if your proposed name is already taken. This process is called a trademark clearance search. You can retain our China trademark lawyer’s service to conduct a preliminary trademark clearance search at China Trademark Office.

However, in most instances, if you engage a capable China trademark lawyer, the trademark attorney should conduct an extensive trademark search for you. This is because trademark attorneys are familiar with sophisticated search techniques on the China Trademark Office's website, which may uncover existing trademarks that are close to your proposed name.

In addition, an experienced attorney will be in the best position to interpret the search results obtained from the China Trademark Office website.

2. Filing the Trademark Application

Filing a trademark application can be done by retain our China trademark lawyer and we shall prepare all the documents and filing for you. You do not have to be an attorney to complete a trademark application and as such you can DIY. Though it is quite complicated job and we highly recommend you retain our service to do it. This is because completing a trademark application is complicated and if you put incorrect information in your application, you will not obtain your trademark.

Tips for registering a trademark in China

2016-12-07T13:46:20+00:00

If your company's brand is built around a distinctive logo or symbol you're not alone. Most businesses separate themselves from the competition with a distinctive logo or trademark for which they have exclusive rights. But here's the big question: Is your trademark protected and if not, do you know the necessary steps involved with making it secure? Our China trademark lawyer reminds you to register your trademark in China to protect your logo, brand and product in China to prevent counterfeiting or illegal copying.

Preparation before registering a trademark in China

Why get a trademark? There are many reasons businesses obtain trademarks. They include:

Develop an identity. Your trademark gives you a unique identity that no one else can use and helps people recognize your mark and associate it with your business or services.
Legal protection. With a registered trademark, you can legally stop anyone from registering or using your mark or a similar mark. After five years, your trademark becomes incontestable.
Internet protection. A trademark protects other businesses from fraudulently using your name on the internet and stealing business from you. In addition, no one can enter an internet domain address that in any way infringes on your trademark.

Now Let's talk about trademark filing

Filing for a trademark in China has a number of steps and can be tricky. The following tips will help you to correctly file your federal trademark application:

After a trademark application is filed, the China Trademark Office conducts an examination of the application. For example, if there is both an objection and a refusal to register the mark, then a response will be necessary to meet the objection and to overcome the refusal to register. This happens frequently, and an experienced trademark attorney will likely know just what to do when writing the response.

In our experience, it pays to respond to every office action. Many issues are within the range of discretion of the trademark examining attorney, and good legal arguments in support of the trademark may well be persuasive. Some firms charge substantial sums of money to prepare responses, and other firms might charge much less - therefore it may pay to shop around. Before filing a trademark application, find a cost effective trademark attorney. It is wise to assume things may not always go smoothly or quickly.

Select the best type of trademark application. There are two types: intent-to-use applications, and actual use applications. Both cost the same to file. The intent-to-use application can be filed long before actual use occurs, but there is a later government fee when completing the intent-to-use application. The trade off is that completing the intent-to-use application requires a statement of use or allegation of use, together with a specimen of use and an additional government fee. If an actual use application can be filed based on actual use in interstate commerce, then it will save money to do so.

Tips of good trademark filing practice in China

It pays to know what types of problems come up during the examination phase. Some problems that may come up: the trademark examiner may raise objections due to a similar prior mark, may object to the mark based on descriptiveness or misdecriptiveness of the mark, may object to the mark as having an improper geographical reference, and may object to the listing of the goods/services. There are other possible grounds of objection too.

In light of the above, another cost saving tip is this: have an experienced trademark attorney look at the mark prior to filing, just to see if there is something that jumps out. You probably wouldn't want to spend money to file an application if it was certain to fail. Here, too, it often pays to shop around. Some attorneys would charge quite a bit just to look at the mark, whereas others might take an interest and provide helpful comments at little or no additional charge. Trademark owners have reported a wide range of fees, some fees being reasonably low and some fees being unexpectedly high.

Another tip: it pays to do a trademark search prior to filing a trademark application. I would certainly recommend that you ask your trademark professional to perform at least an informal online search of the China Trademark Office records. Some may charge for this, while others may include it at no extra charge as part of the cost of filing a new trademark application. It therefore pays to ask. Formal trademark searches are also available, and other types of trademark search exist, depending on need.

Reminder by China trademark application lawyer

If there is a prior trademark that is similar to the trademark in question, such prior mark can be a real obstacle if it is in the same or similar field of goods/services as the mark in question. If the similar mark is not in the same field of goods/services, it may or may not be relevant depending on various factors such as how close their goods/services are, and their strength or uniqueness. Tip: An experienced trademark attorney may be able to provide a good guesstimate of the chances of overcoming such prior marks, but cannot predict the outcome with certainty.

Pitfall to avoid when register your trademark in China: downstream costs. Don't assume anything: ask your trademark professional for typical costs of responding to office actions. For an intent-to-use application, ask for costs of filing a specimen, a statement of use, and/or an allegation of use.

Have a really valuable trademark? Perhaps it is really strong, original, or clever. Then, you may well want to ask the costs for filing a trademark appeal. Yes, even before filing the application. Such an appeal typically includes legal citations, and therefore may or may not be costly. You might want to ask for typical appeal costs, even before you file a trademark application. Some trademark professionals might not handle appeals – this too would be interesting to know in advance. And, shop around – it never hurts to know the range of costs.

A China trademark is an excellent way to protect the slogans, symbols, or words that set your business apart. The above are some helpful tips for filing a national trademark application.

Full text of Latest Copyright Law of the People's Republic of China

2016-01-01T11:34:00+00:00

China copyright law

Below we share the full text of China Copyright Law, which tries to encourage the creation of art and culture by rewarding authors and artists with a set of exclusive rights. Copyright law grants authors and artists the exclusive right to make and sell copies of their works, the right to create derivative works, and the right to perform or display their works publicly.

Copyright Law of the People's Republic of China

(Adopted by the 15th Session of the Standing Committee of the Seventh National People's Congress on 7 September 1990; First amendment made in accordance with the Decision on Revising the Copyright Law of the People's Republic of China adopted by the 24th Session of the Standing Committee of the Ninth National People's Congress on 27 October 2001; Second amendment made in accordance with the Decision on Revising the Copyright Law of the People's Republic of China adopted by the 13th Session of the Standing Committee of the Eleventh National People's Congress on 26 February 2010)

Chapter 1: General Provisions

Chapter 2: Copyright

Section 1: Copyright Owners and Their Rights

Section 2: Copyright Ownership

Section 3: Term of Protection for Rights

Section 4: Limitation on Rights

Chapter 3: Contracts for Copyright Licensing and Transfer

Chapter 4: Publishing, Performance, Sound or Visual Recording and Broadcast

Section 1: Publishing of Books, Newspapers and Periodicals

Section 2: Performance

Section 3: Sound or Visual Recording

Section 4: Broadcasting by a Radio or Television Station

Chapter 5: Legal Liability and Law Enforcement Measures

Chapter 6: Supplementary Provisions

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Chapter 1: General Provisions

Article 1 This Law is enacted in accordance with the Constitution to protect authors' copyright in their literary, artistic, and scientific works, and copyright-related rights and interests, to encourage the creation and dissemination of works which contribute to the construction of socialist spiritual and material civilization, and promote the development and prosperity of socialist cultural and scientific pursuit.

Article 2 Chinese citizens, legal persons, or other organizations shall enjoy copyright in their works, whether published or not, in accordance with this Law.

Where a foreigner or stateless person enjoys copyright in his or her work under an agreement concluded between China and the author's country of origin or country of habitual residence, or an international treaty to which both that country and China have acceded, such copyright shall be protected under this Law.

A foreigner or stateless person shall enjoy copyright in his or her work first published in China in accordance with this Law.

Where an author whose country has not concluded an agreement with China or is not a party to an international treaty to which China has acceded or a stateless person first publishes his or her work in a member country to an international treaty to which China has acceded, or simultaneously in a member and non-member country, such work shall be protected under this Law.

Article 3 "Work(s)" mentioned in this Law include work(s) of literature, art, natural science, social science, engineering technology, etc., existing in any of the following forms:

(1) Written works;

(2) Oral works;

(3) Musical, dramatic, quyi, choreographic, and acrobatic works;

(4) Fine art and architectural works;

(5) Photographic works;

(6) Cinematographic works and works created by means similar to cinematography;

(7) Graphic works including engineering design drawings, product design drawings, maps, schematic drawings, etc., as well as model works;

(8) Computer software; and

(9) Other works specified in laws and administrative regulations.

Article 4 In the exercise of copyrights, copyright owners shall not violate the Constitution or any other laws and shall not harm the public interest. The State shall supervise and administer the publication or dissemination of works in accordance with the law.

Article 5 This Law shall not be applicable to:

(1) Laws, regulations, government organs' resolutions, decisions, orders, and other documents of a legislative, administrative, or judicial nature, or their official translations;

(2) News on current events; and

(3) Calendars, numerical tables or forms of general use, and formulas.

Article 6 Copyright protection measures for works of folk literature and art shall be separately formulated by the State Council.

Article 7 The State Council's copyright administrative department is the competent authority for the nationwide copyright administration. The copyright administrative departments of the people's governments at the levels of province, autonomous region, and municipality directly under the Central Government are the competent authorities for copyright administration in their respective administrative regions.

Article 8 Copyright owners and copyright-related right owners may authorize an organization for collective copyright management to exercise their copyrights or copyright-related rights. After being authorized, an organization for collective copyright management may claim rights in its own name for a copyright owner or copyright-related right owner, and may participate as an interested party in litigation and arbitration events involving copyright or copyright-related rights.

An organization for collective copyright management is a non-profit organization. Separate provisions in respect to the organization's method of establishment, rights and obligations, collection and distribution of copyright royalties, supervision and administration, etc., are to be formulated by the State Council.

Chapter 2: Copyright

Section 1: Copyright Owners and Their Rights

Article 9 Copyright owners shall include:

(1) Authors; and

(2) Other citizens, legal persons, and other organizations that enjoy copyright under this Law.

Article 10 Copyright shall include the following types of personal rights and property rights:

(1) Right of publication, i.e., the right to decide whether or not a work is to be made available to the public;

(2) Right of authorship, i.e., the right to indicate the identity of the author of a work by affixing the author's name thereto;

(3) Right of alteration, i.e., the right to alter or authorize others to alter a work;

(4) Right of integrity, i.e., the right to protect a work from being distorted or falsified;

(5) Right of reproduction, i.e., the right to make one or more copies of a work by means of printing, photocopying, rubbing, sound recording, visual recording, duplicating a sound or visual recording, duplicating a photographic work, etc.;

(6) Right of distribution, i.e., the right to make the original or reproduced version of a work available to the public by sale or donation;

(7) Right of rental, i.e., the right to authorize others, on the basis of compensation, to temporarily use a cinematographic work, a work created by means similar to cinematography, or computer software, excluding circumstances under which the computer software is not the main subject matter under the lease;

(8) Right of exhibition, i.e., the right to publicly display the original or reproduced version of a fine art or photographic work;

(9) Right of performance, i.e., the right to publicly perform a work and to publicly broadcast, via any medium, the performance of a work;

(10) Right of projection, i.e., the right to publicly show, via film projectors, overhead projectors, and other technologies and equipment, a fine art, photographic, or cinematographic work, or a work created by means similar to cinematography;

(11) Right of broadcasting, i.e., the right to publicly broadcast or disseminate a work through wireless transmission, to disseminate a broadcast work to the public through wire transmission or rebroadcast, and to disseminate a broadcast work to the public through a loudspeaker or any other similar instrument used to transmit symbols, sounds, or images;

(12) Right of dissemination via information network, i.e., the right to make a work available to the public by wire or wireless means, through which the public may access the work at times and places of their respective choices;

(13) Right of cinematography, i.e., the right to fix a work in a medium by cinematographic or similar means;

(14) Right of adaptation, i.e., the right to alter a work so as to create a new original work;

(15) Right of translation, i.e., the right to convert a work from one language to another;

(16) Right of compilation, i.e., the right to make works, or segments thereof, into a newly compiled work through selection or arrangement; and

(17) Other rights to which a copyright owner shall be entitled.

A copyright owner may authorize others to exercise the rights under Items (5) to (17) of the preceding paragraph, and may receive remuneration, pursuant to the parties' agreement or according to the relevant provisions hereof.

A copyright owner may transfer, in whole or in part, the rights under Items (5) to (17) of Paragraph 1 of this Article, and may receive remuneration, pursuant to the parties' agreement or according to the relevant provisions hereof.

Section 2: Copyright Ownership

Article 11 Unless otherwise provided for in this Law, copyright shall vest in the author(s).

A citizen who creates a work is its author.

With respect to a work created under the sponsorship of, and according to the intention of, any legal person or any other organization who bears the responsibility for the work, such legal person or other organization shall be deemed the author of the work.

In the absence of proof to the contrary, the author of a work shall be the citizen, legal person, or other organization whose name is affixed to that work.

Article 12 Where a work is produced through adaptation, translation, annotation, or arrangement of a pre-existing work, the copyright in the work shall vest in the adaptor, translator, annotator, or arranger, provided that the exercise of such right shall not infringe the copyright in the original work.

Article 13 Where a work is jointly created by two or more authors, the copyright shall be jointly owned by these joint authors. A person who has not participated in the creation of a work cannot become a joint author.

Where a jointly created work can be divided for separate use, each author may individually enjoy copyright to the part(s) created by that author, provided that the exercise of the copyright shall not infringe the entire copyright in the jointly created work.

Article 14 Works created through compiling a number of works, segments of works, or data or other materials that do not constitute a work are compiled works, provided that the originality can be reflected through selection or arrangement thereof. Copyright in any such work shall vest in the compiler, provided that the compiler's exercise of its copyright shall not infringe the copyright in the original work.

Article 15 Copyright in a cinematographic work or a work created by means similar to cinematography shall vest in the producer, provided that the screenwriter, director, cinematographer, lyricist, composer, and other authors shall possess the right of authorship, and shall be entitled to receive remuneration pursuant to the contract concluded with the producer.

With respect to a work that can be used separately, such as a screenplay, piece of music, etc., contained in a cinematographic work or work created by means similar to cinematography, the author of that work shall be entitled to exercise its copyright independently.

Article 16 A work shall be deemed a work for hire if it is created by a citizen in order to fulfill a task assigned by a legal person or other organization. Notwithstanding the provisions of the second paragraph of this Article, the copyright in that work shall vest in the author, provided that the legal person or other organization shall have priority to use the work within its business scope. Within two years of the work's completion, the author may not authorize a third person to use the work in the same manner in which his or her employer uses it, without the employer's consent.

With respect to a work for hire under any of the following circumstances, the work's author shall enjoy the right of authorship, and the legal person or other organization shall enjoy the other copyright rights, in which case the legal person or other organization may reward the author:

(1) Engineering design drawings, product design drawings, maps, computer software, etc., created mainly by using the material and technical conditions of, and under the responsibility of, the legal person or other organization; and

(2) Works for hire to which the copyright shall vest in the legal person or other organization, pursuant to the provisions of a law, administrative regulation or contract.

Article 17 The ownership of the copyright in a commissioned work shall be agreed upon in the contract between both the commissioning and commissioned parties. If no explicit agreement is contained in a contract or no contract is concluded, copyright shall vest in the commissioned party.

Article 18 With respect to the original version of a fine art or other type of work, the transfer of its ownership shall not be considered a transfer of the copyright in the work, except that the right of exhibition in the original version of a fine art work shall vest in the owner of that original version.

Article 19 Where copyright in a work vests in a citizen, his or her rights under Items (5) to (17) in Paragraph 1 of Article 10 hereof shall be transferred, after his or her death and within the term of protection hereunder, in accordance with the Inheritance Law.

Where copyright in a work vests in a legal person or other organization, its rights under Items (5) to (17) of Paragraph 1 of Article 10 hereof shall, after its change or termination and within the term of protection hereunder, vest in a legal person or other organization which is to inherit the rights and obligations of the changed or terminated one; or otherwise vest in the State, if no legal person or other organization is to inherit its rights and obligations.

Section 3: Term of Protection for Rights

Article 20 The protection of an author's rights of authorship, alteration, and integrity shall not be subject to a time limit.

Article 21 With respect to a citizen's work, the term of protection for the right of publication and the rights under Items (5) to (17) in Paragraph 1 of Article 10 hereof shall be the life of the author plus 50 years after his or her decease, and shall end on 31 December of the 50th year after the author's decease. In the case of a jointly created work, the term of protection shall end on 31 December of the 50th year after the decease of the last of the authors.

With respect to a work of a legal person or other organization, or a work for hire in which the copyrights (excluding the right of authorship) shall vest in a legal person or other organization, the term of protection for the right of publication and the rights under Items (5) to (17) of Paragraph 1 of Article 10 hereof to that work shall be 50 years, and shall end on 31 December of the 50th year after the work's first publication. If any such work remains unpublished in 50 years after its creation is completed, it shall no longer be protected hereunder.

With respect to a cinematographic work, a work created by means similar to cinematography, or a photographic work, the term of protection of the right of publication and the rights under Items (5) to (17) in Paragraph 1 of Article 10 hereof to that work shall be 50 years, and shall end on 31 December of the 50th year after the work's first publication. If any such work remains unpublished in 50 years after its creation is completed, it shall no longer be protected hereunder.

Section 4: Limitation on Rights

Article 22 Under the following circumstances, a work may be used without authorization from the copyright owner and without payment of remuneration thereto, provided that the author's name and the title of the work shall be indicated and other rights to which the copyright owner is entitled under this Law shall not be infringed:

(1) A person's use of others' published works for his or her own study, research, or enjoyment;

(2) A proper citation of others' published works in a work for introducing, or commenting on, a particular work or for elaborating on a particular question;

(3) An inevitable show or citation of a published work via a medium such as a newspaper, periodical, radio channel, or television channel, for reporting news on current events;

(4) Publishing or broadcasting an article on current events related to a political, economic, or religious topic via a medium such as a newspaper, periodical, radio station, or television station, if the article is already publicized via another medium such as a newspaper, periodical, radio channel, or television channel, except when the author has declared to prohibit the publication and broadcast thereof;

(5) Publishing or broadcasting, via a medium such as a newspaper, periodical, radio channel, or television channel, a speech delivered at a public gathering, except when the author has declared to prohibit the publication and broadcast thereof;

(6) Translating, or reproducing in a small number of copies, a published work for teachers' or scientific researchers' use in their classroom teaching or scientific research, provided that the translation or reproduced copies shall neither be published nor distributed;

(7) A State organ's use of a published work, within a reasonable extent, for performing its official duties;

(8) Reproduction made by a library, archive, memorial hall, museum, art gallery, etc., of a work among its collections, for the purpose of displaying or preserving an edition of the work;

(9) Performing a published work, on a free of charge basis, with neither collection of fees from the public nor payment of remuneration to the performer(s);

(10) Copying, painting, photographing, or visually recording artworks placed or displayed in outdoor public places;

(11) Translating a published work created in the Chinese Han language by a Chinese citizen, legal person or other organization into a written work in a language used by a domestic minority nationality for publishing and distribution in China; and

(12) Publishing a Braille work transformed from a published work.

The provisions of the preceding paragraph are applicable to limiting the rights of publishers, performers, producers of sound or visual recordings, radio stations, and television stations.

Article 23 Where a textbook is compiled and published in order to implement the system of nine-year compulsory education and the State plans for education, the textbook may contain compilation of segments of published works or short written works, musical works, fine art works in form of single-piece, or photographic works that have been published, without having to obtain the copyright owners' authorization, insofar as the remunerations are paid and the authors' names and the works' titles are indicated, in accordance with the relevant provisions, and the other rights to which the copyright owner entitled hereunder shall not be infringed.

The provisions of the preceding paragraph are applicable to limiting the rights of publishers, performers, sound or visual recording producers, radio stations, and television stations.

Chapter 3: Contracts for Copyright Licensing and Transfer

Article 24 Use of another's work shall be subject to the conclusion of a licensing contract with the copyright owner, unless the license is exemptible as otherwise permitted by this Law.

A licensing contract shall contain the following main contents:

(1) Type(s) of the right(s) to be licensed for use;

(2) Whether the right(s) to be licensed for use is (are) exclusive or non-exclusive;

(3) Geographic range and term of the license;

(4) Standard rate and method for remuneration payment;

(5) Liability for breach of the contract; and

(6) Other issues deemed by the parties as necessary to be agreed upon.

Article 25 A written contract shall be concluded if any of the rights listed under Items (5) to (17) in Paragraph 1 of Article 10 hereof. A right transfer contract shall contain the following main contents:

(1) Title of the work;

(2) Right(s) to be transferred and geographic area thereof;

(3) Transfer price;

(4) Payment date and method for the transfer price;

(5) Liability for breach of the contract; and

(6) Other issues that the parties deem necessary to be agreed upon.

Article 26 In the case of pledge of copyright, the pledgor and pledgee shall apply for pledge registration with the State Council's copyright administrative department.

Article 27 If a right is not clearly specified by a copyright owner as to be licensed or transferred under a license or transfer contract, the other party shall not exercise that right without the copyright owner's consent.

Article 28 The standard remuneration rate for using a work may be agreed upon by the interested parties. The remuneration may also be paid according to the standard rate for remuneration jointly specified by the State Council's copyright administrative department and other relevant departments. Where the agreement between the parties is not explicit, the remuneration shall be paid according to the standard remuneration rate jointly specified by the State Council's copyright administrative department and other relevant departments.

Article 29 Where publishers, performers, sound or visual recording producers, radio stations, television stations, etc., use others' works in accordance with the relevant provisions hereof, they shall not infringe the authors' rights of authorship, alteration, integrity, or entitlement to remuneration.

Chapter 4: Publishing, Performance, Sound or Visual Recording and Broadcast

Section 1: Publishing of Books, Newspapers and Periodicals

Article 30 When publishing a book, the book publisher shall conclude a publication contract with, and pay remuneration to, the copyright owner.

Article 31 Where a work is delivered by the copyright owner for publication, the exclusive publishing right owned by the book publisher under a contract shall be protected by law, and other persons are prohibited from publishing the work.

Article 32 When delivering a work, the copyright owner shall deliver it within the time limit specified in the contract. When publishing a book, the book publisher shall observe the quality requirements and time limit specified in the contract.

A book publisher shall bear civil responsibility in accordance with Article 53 hereof if its publication fails to conform to the time limit specified in the contract.

In reprinting or republishing a work, the book publisher shall notify and pay remuneration to the copyright owner. If the publisher of a book refuses to reprint or republish a book when it becomes out of stock, the copyright owner shall be entitled to terminate the contract.

Article 33 After a copyright owner submits a manuscript to a newspaper or periodical office for publication, if the copyright owner fails to receive the office's notification of its decision to publish the manuscript, either within 15 days in the case of a newspaper office, or within 30 days in the case of a periodical office, the copyright owner may submit the same work to another newspaper or periodical office, unless otherwise agreed by the two parties.

Unless a work is prohibited from being reprinted or excerpted as the copyright owner declares, another newspaper or periodical may, after publication of that work, reprint it or publish it as an excerpt or material, subject to payment of remuneration to the copyright owner in accordance with the relevant provisions.

Article 34 A book publisher may revise and/or abridge a work subject to its author's authorization.

A newspaper or periodical office may revise and/or abridge the wording of a work. Alteration of the content of the work shall be subject to the author's authorization.

Article 35 In publishing a work produced through adaptation, translation, annotation, arrangement or compilation of a pre-existing work, authorization shall be obtained from, and remuneration shall be paid to, the owner(s) of the copyright in the adapted, translated, annotated, arranged or compiled work and in the original work.

Article 36 A publisher shall be entitled to authorize or prohibit others' use of the layout design of its published book or periodical.

The duration of protection for the rights set forth in the preceding paragraph shall be ten years, and shall end on 31 December of the tenth year after the book or periodical's first publication in which that layout is used.

Section 2: Performance

Article 37 When using another's work in a performance, the performer (as either an individual or an organization) shall obtain authorization from, and pay remuneration to, the copyright owner. When organizing a performance, a performance organizer shall obtain authorization from, and pay remuneration to, the copyright owner.

When a work produced through adaptation, translation, annotation or arrangement of a pre-existing work is to be used in a performance, authorization shall be obtained from, and remuneration shall be paid to, the owners of the copyright in the adapted, translated, annotated or arranged work and in the original work.

Article 38 A performer shall, in a performance thereof, have the following rights:

(1) To be identified as a performer;

(2) To have the performer's performing image protected from distortion;

(3) To authorize others to transmit the performer's live performance via live broadcast and public transmission, and to receive remuneration;

(4) To authorize others to make a sound or visual recording, and to receive remuneration;

(5) To authorize others to reproduce and/or distribute a sound or visual recording of the performer's performance, and to receive remuneration; and

(6) To authorize others to disseminate to the public the performer's performance via information network, and to receive remuneration.

If a licensee uses a work in any of the manners set forth in Items (3) to (6) of the preceding paragraph, the licensee shall also obtain authorization from, and pay remuneration to, the copyright owner.

Article 39 The term of protection for the rights under Items (1) and (2) of Paragraph 1 of Article 37 hereof shall be free from limitation.

The term of protection for the rights under Items (3) to (6) of Paragraph 1 of Article 37 shall be 50 years, and shall end on 31 December of the 50th year after the performance takes place.

Section 3: Sound or Visual Recording

Article 40 Where a producer of a sound or visual recording uses another's work to produce a sound or visual recording, authorization shall be obtained from, and remuneration shall be paid to, the copyright owner.

Where a producer of a sound or visual recording uses a work produced through adaptation, translation, annotation or arrangement of a pre-existing work, authorization shall be obtained from, and remuneration shall be paid to, the owners of the copyright in the adapted, translated, annotated or arranged work and in the original work.

Where a sound recording producer produces a sound recording by using a music piece that has been lawfully recorded by another person as a sound recording, the copyright owner's authorization may be omitted subject to payment of remuneration in accordance with the relevant provisions. If the copyright owner declares to prohibit the use of that work, the work shall not be used.

Article 41 Where a sound or visual recording producer produces a sound or visual recording, a contract shall be concluded with, and remuneration shall be paid to, the performer.

Article 42 With respect to a sound or visual recording produced by a sound or visual recording producer, the producer shall be entitled to license others to reproduce, distribute or rent out the recording, or disseminate it to the public via information network, and to receive remuneration thereby. The term of protection for the rights shall be 50 years, and shall end on 31 December of the 50th year after the completion of the first production of the recording.

Where a licensee reproduces or distributes a sound or visual recording or disseminates it to the public via information network, additional authorization shall be obtained from, and remuneration shall be paid to, the copyright owner and the performer.

Section 4: Broadcasting by a Radio or Television Station

Article 43 Where a radio or television station broadcasts another's unpublished work, authorization shall be obtained from, and remuneration shall be paid to, the copyright owner.

Where a radio or television station wishes to broadcast another's published work, the copyright owner's authorization may be omitted subject to payment of remuneration.

Article 44 Where a radio or television station broadcasts a published sound recording, the copyright owner's authorization may be omitted subject to payment of remuneration, unless otherwise agreed by the parties. Specific measures in connection therewith shall be formulated by the State Council.

Article 45 A radio or television station shall have the right to prohibit the following acts that are not subject to its authorization:

(1) Rebroadcasting the radio or television program that it has broadcast; and

(2) Recording, onto a sound or visual medium, the radio or television program that it has broadcast and to reproduce the sound or visual medium.

The term of protection for the rights set forth in the preceding paragraph shall be 50 years and shall end on 31 December of the 50th year after the first broadcast of the radio or television program.

Article 46 Where a television station broadcasts another's cinematographic work, work created by means similar to cinematography, or visual recording, authorization shall be obtained from, and remuneration shall be paid to, the producer thereof. Where a television station broadcasts another's visual recording, authorization shall also be obtained from, and remuneration shall also be paid to, the copyright owner.

Chapter 5: Legal Liability and Law Enforcement Measures

Article 47 Those who have committed any of the following infringing actions shall bear civil liability such as ceasing the infringement, eliminating the impacts, making an apology, or compensating for the losses, according to the specific situation:

(1) Publishing a work without the copyright owner's authorization;

(2) Publishing a work jointly created with others as a work solely created by oneself, without the other joint author(s)' authorization;

(3) Affixing one's name to another's work for one's own fame and profit, without participating in the creation thereof;

(4) Distorting or falsifying another's work;

(5) Plagiarizing another's work;

(6) Using a work, without the copyright owner's authorization, through exhibition or by means of cinematography or similar thereto, or in ways such as adaptation, translation, or annotation, unless otherwise specified in this Law;

(7) Using another's work without paying remuneration that is due and payable;

(8) Renting out a cinematographic work, a work created by means similar to cinematography, computer software, or a sound or visual recording, without the authorization of the copyright owner(s) or copyright-related right owner(s), unless otherwise specified in this Law;

(9) Using the layout of a book or periodical published by a publisher, without the publisher's authorization;

(10) Live broadcasting or publicly transmitting a performer's live performance, or recording the performance without the performer's authorization; or

(11) Other acts infringing upon a copyright or a copyright-related right or interest.

Article 48 Those who have committed any of the following infringing actions shall bear civil liability such as ceasing the infringement, eliminating the impacts, making an apology, or compensating for the losses, and a copyright administrative department may, if the public interest is also harmed, order the infringer to cease the infringing action, confiscate the infringer's illegal gains, confiscate and destroy the infringing reproduction(s), and impose a fine; or may also, in the event of a serious case, confiscate the materials, tools, equipment, etc., used for producing the infringing reproduction(s); or subject the infringer to criminal liability in accordance with the law, if the infringement constitutes a crime:

(1) Reproducing, distributing, performing, projecting, broadcasting or compiling a work, or disseminating the work to the public via information network without the copyright owner's authorization, except as otherwise specified in this Law;

(2) Publishing a book in which another person has the exclusive right of publication;

(3) Reproducing and/or distributing a sound or visual recording of a performance, or disseminating the performance to the public via information network without the performer's authorization, except as otherwise specified in this Law;

(4) Reproducing and/or distributing a sound or visual recording, or disseminating such a recording to the public via information network without the producer's authorization, except as otherwise specified in this Law;

(5) Broadcasting or reproducing a radio or television program without authorization, except as otherwise specified in this Law;

(6) Intentionally circumventing or destroying, without the authorization of the copyright owner or copyright-related right owner, the technological measures applied by the copyright owner or copyright-related right owner to protect the right owner's copyright or copyright-related rights in a work, sound recording, visual recording, etc., except as otherwise specified in laws or administrative regulations;

(7) Intentionally removing or modifying the right management information in electronic form contained in a work, sound recording, visual recording, etc., without authorization of the copyright owner or copyright-related right owner, except as otherwise provided by laws or administrative regulations; or

(8) Producing or selling a work involving passing off of another's name as one's own.

Article 49 Where copyright or a copyright-related right is infringed upon, the infringer shall make compensation according to the actual losses incurred by the right owner. Where the actual losses are difficult to calculate, the compensation may be paid according to the illegal gains obtained by the infringer. The compensation amount shall also include the reasonable expenses incurred by the right owner for preventing the infringement.

Where neither the actual losses incurred by the right owner nor the illegal gains obtained by the infringer is determinable, the people's court shall, in accordance with the particulars of the specific infringement, render a ruling to award compensation in an amount not more than RMB500,000.

Article 50 Where a copyright owner or copyright-related right owner has evidence to prove that another person is infringing or is about to infringe the right owner's rights, in which case the failure to immediately stop the infringement will cause irreparable damage to the right owner's lawful rights and interests, the right owner may, prior to filing an action, apply to a people's court for an order to stop the infringement and to adopt property preservation measures.

In handling an application referred to in the preceding paragraph, the people's court shall apply the provisions of Articles 93 to 96 and 99 of the Civil Procedure Law of the People's Republic of China.

Article 51 In order to stop an act of infringement, a copyright owner or copyright-related right owner may, under the circumstance where the evidence is likely to be lost or difficult to obtain, apply to a people's court for evidence preservation prior to filing an action.

The people's court must make a ruling within 48 hours after accepting an application. Where a ruling is made to adopt preservation measures, the adoption shall take place immediately.

The people's court may order the applicant to provide guarantee; and may dismiss the application if the applicant fails to provide guarantee.

Where the applicant fails to file an action within 15 days after the people's court adopts preservation measures, the people's court shall cancel the preservation measures.

Article 52 In the trial of a case involving an infringement upon a copyright or a copyright-related right, a people's court may confiscate the illegal gains, the infringing reproductions and the property used in the illegal activities.

Article 53 A publisher or producer of a reproduction shall bear legal liability if the publisher or producer fails to prove that the publication or production thereof has been lawfully authorized. A distributor of a reproduction, or a lessor of a reproduction of a cinematographic work, a work created by means similar to cinematography, computer software, a sound recording or visual recording shall bear legal liability if the distributor or lessor fails to prove that the reproduction distributed or leased thereby is lawfully sourced.

Article 54 A party that fails to perform its contractual obligations or fails to conform to the agreed conditions in performing its contractual obligations shall bear civil liability in accordance with the relevant laws such as the General Principles of the Civil Law and the Contract Law of the People's Republic of China.

Article 55 A copyright dispute may be resolved through mediation; or alternatively, it may be submitted to an arbitration institution for arbitration in accordance with a written arbitration agreement or the arbitration clause in a copyright contract reached between the parties.

Where parties have neither reached a written arbitration agreement nor included an arbitration clause in their copyright contract, an action may be filed directly with a people's court.

Article 56 Where a party refuses to accept an administrative punishment, it may file an action with a people's court within three months after the date of receipt of the written administrative decision on the punishment. Where the party has neither filed an action nor carried out the performance thereof upon expiration of the term, the copyright administrative department may apply to the people's court for enforcement of the decision.

Chapter 6: Supplementary Provisions

Article 57 For the purposes of this Law, author's right shall mean copyright.

Article 58 For the purposes of Article 2 of this Law, publication shall mean the reproduction and distribution of a work.

Article 59 Measures for the protection of computer software and the right of dissemination via information network shall be separately formulated by the State Council.

Article 60 With respect to a right of a copyright owner, publisher, performer, sound or visual recording producer, radio or television station, as specified herein, the right shall be protected pursuant hereto if the term of protection for that right set forth herein has not expired on the date of implementation hereof.

Any infringement or breach of contract that occurrs prior to the implementation of this Law shall be punished in accordance with the relevant provisions and policies in effect at the time when the infringement or breach of contract occurrs.

Article 61 This Law shall take effect as of 1 June 1991.

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Full text of Latest Copyright Law of the People's Republic of China

Copyright Law of the People's Republic of China

Contents

Chapter 1: General Provisions

Chapter 2: Copyright

Chapter 3: Contracts for Copyright Licensing and Transfer

Chapter 4: Publishing, Performance, Sound or Visual Recording and Broadcast

Chapter 5: Legal Liability and Law Enforcement Measures

Chapter 6: Supplementary Provisions

Chapter 1: General Provisions

Chapter 2: Copyright

Chapter 3: Contracts for Copyright Licensing and Transfer

Chapter 4: Publishing, Performance, Sound or Visual Recording and Broadcast

Chapter 5: Legal Liability and Law Enforcement Measures

Chapter 6: Supplementary Provisions