2. Copyright Protection in China
Mike Mangelson, IP Attaché, Shanghai
China IP Road Show (Denver)
October 3, 2017

3. Registration
Copyright protection is available for all creative works that are fixed in a tangible form
Protection is extended to China through the Berne Convention
Copyright protection in China (and elsewhere) does not depend on registration, but registration has advantages.
A registration certificate is prima facie evidence in any dispute regarding copyright ownership.

4. Registration
Enforcement agencies, courts and online platforms in China generally require documentary evidence of copyrights for enforcement.
Procedurally more efficient to use a Chinese certificate of registration. U.S. certificates need to be translated and notarized.
Chinese copyright registration is inexpensive and can be done online through the Copyright Protection Center of China (CPCC) under the National Copyright Administration Center (NCAC).
Parties to a contract can record the contract with the China Copyright Protection Center.

5. Software Copyright
Software is registered with the CPCC, which recently eliminated the registration fee to promote software development.
Some regions offer subsidies for software copyrights.
Shanghai Copyright Bureau offers Shanghai enterprises, including U.S. companies, 800 RMB per application, to cover the filing fee and average lawyer service charge.
To protect sensitive information during registration, part of the source code may be redacted.
Patent protection in China is also an option.

6. Using Copyrights to Defeat Abusive Trademarks
Copyright can form an important part of an IP protection strategy, both as main protection for content and supplementary tool to enforce alongside other IPR.
Company logo: trademark and copyright protection.
Copyright is available as a “prior right” under the Trademark Law to oppose or cancel bad faith trademark registrations.
Some courts and e-commerce platforms do not find priority to invalidate a bad faith TM registration unless the date of the copyright registration on the certificate (not the date of creation of the work) pre-dates the date of the bad faith TM application.

7. Using Copyrights to Defeat Abusive Trademarks
This practice seems to violate the principle that copyright protection arises upon creation, not the date of registration.
Until this issue can be resolved, a U.S. company should consider using its U.S. certificate of registration, rather than a more recently registered Chinese copyright, if the date of the U.S. registration predates the Chinese trademark.

8. Marketing and Product Materials
For company brochures and product materials, copyright registration will be proof of ownership and save time and money in case of a dispute.
Counterfeiters in China often use photos, designs, content, and marketing materials copied from the right holders’ websites. Proof of copyrights in these materials can be used as basis for enforcement.

9. Applied Art “Applied art” – term from Berne Convention
Refers to copyrightable aspects of functional products
Swiss army knife (functional) versus lamp base in the form of a dancer statue (artistic) 19

10. Applied Art US and Chinese law differ in approach.
US law protects “applied art” as “useful articles” and permits copyright protection for artistic features that are separable from utilitarian aspects.
Star Athletica v. Varsity Brands, 136 S.Ct (2017): new test for separability.

11. Applied Art
Chinese copyright law gives explicit protection to foreign works of applied art. Protection for Chinese works is less certain.
“Super-national treatment”: foreign works treated more favorably than domestic works.
Today, Chinese courts generally protect applied art as “works of fine art” under Article 7 of China’s Copyright Law.
Copyright protection can supplement design patent protection.

12. Applied Art
Application of copyright law to applied art in China is inconsistent.
Some e-commerce platforms do not accept a copyright registration for applied art as basis to take down infringing materials.
China’s copyright law amendments likely to bring additional clarity to this area of law.

13. THANK YOU