While it is not mandatory to register copyright in China, there are key advantages to having a copyright certificate. Foreign companies operating in the country should act early and register any work related to their trademark or product to avoid possible disputes with trademark squatters.
The Copyright Protection Center of China (CPCC) is the government agency responsible for issuing the Copyright Certificate of Registration.
This certificate can be used as proof of copyright ownership and validity in legal proceedings involving the enforcement of copyright before local administrative bodies and the Chinese courts.
If evidence of copyright creation from foreign sources is submitted, it must be first notarized, legalized and translated. However, this would not be required if the owner can simply produce a Chinese registration certificate.
It is much easier to protect the owner’s work if the copyright registration predates the date of filing of the squatter’s trademark application. If not, other evidence will generally be required to block the squatter’s trademark application.
There are certain requirements to obtain copyright protection and be able to enforce it.
First, the brand must be unique and a result of independent intelligent creation; and it must be distinctive enough to be considered a work. A trademark consisting of a simple device or graphic may not pass this condition.
Another important aspect is to be able to prove ownership of copyright. Original drafts of the design embodying the trademark should be provided along with the name of the owner and date of creation, evidencing the evolution of the design, as well as an original copy of the design and a declaration by the author(s) of design.
To enforce protection of a copyright, evidence should be provided to establish that the copier knew or should have known about the mark depicted in the copyright registration, and evidence of use of the mark in other countries (in the form of copyright or trademark registrations) before the application date of the copier’s mark could be considered in this regard.
Copyright protects literary, dramatic, musical, and artistic works, sound recordings, films, television sound broadcasts, and computer software, among other. It allows creators to control how their works are used, by whom, and on what terms. For brand owners, copyright subsists in stylized trademarks such as logos and devices as well as product images.
Copyright protection takes effect from the date of its creation and by default, copyright in a particular work is owned by its creator. China is a party to the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention).
The Copyright Registration Certificate can be lodged with Chinese Customs to assist in blocking potentially infringing goods from being imported into or exported from the country.
The document can also be used as evidence of prior rights in trade mark oppositions and cancellation proceedings, such as against third party bad faith applications filed and/or registered by pirates; or if a pirate having acquired the mark in bad faith takes infringement action against the true owner.
Registration of copyright will provide a company with some rights in a logo or device mark in circumstances where it has not been possible to secure a trademark registration. Irrespective of whether a trademark registration is held, while copyright registration will provide limited rights against infringers to identical or near identical marks, copyright is not limited to particular goods and services as is the case of a trademark registration.
The cost of a copyright certificate is relatively low and can be obtained in several months. Applications for copyright registration in China do not require substantial examination.
If a squatter registers a copyright in bad faith using forged documents, it can be a difficult and expensive exercise to have it cancelled by the CPCC. If a third party registers a copyright in bad faith, the true owner may also face allegations of copyright infringement from the pirate.
It is important to verify that a company is in fact the owner of the work, before starting the copyright certification process. When a third party is commissioned to create the artwork, it is prudent to ensure that assignment of copyright is part of the contract. If not, it will be necessary to obtain a retrospective assignment from the creator.
Online takedowns have become frequent enforcement actions taken by copyright owners to protect their IP rights in China. To file a copyright takedown complaint with the major online trading platforms in China such as Taobao, Tmall and JD, a complainant is required to submit proof of its ownership of the copyright to the platform.
In this situation, a copyright registration certificate in China will be the most preferred evidence that those trading platforms would like to receive for verification, as a copyright registration certificate is an official document, which contains all the necessary particulars for the platforms’ verification.
A copyright takedown request can only be filed with those online trading platforms after the platforms have completed their verification process and recognize the complainant’s copyright ownership.
Customs interception of goods suspected to have infringed other’s trademark rights, copyrights or patent rights is also an important way to protect the owners’ rights and enforce against infringers.
To benefit from Customs protection, an IP rights owner must record its IP rights in advance. A copy of the copyright registration certificate, together with a sample of the work officially recognized by the CPCC in China, are acceptable proof of the applicant’s copyright ownership to record it with Chinese Customs.
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