Today in China, in conjunction with World IP Day 2011, numerous governmental agencies will actively begin a week-long promotion of the role of intellectual property in the nation’s economy, according to Han Xiucheng of the State Intellectual Property Office (“SIPO”)1. Such efforts are to be lauded, but it is well known that copyright piracy rates in China are still significantly higher (80-90+%, depending on the type of work) than those seen in developed countries, such as the United States. Copyright piracy results from a combination of factors, including not only the effectiveness of the enforcement regime, but also from consumers’ attitudes toward pirated works. There has been a shift in recent years in China away from pirated works and toward legitimate works, but this shift has been slow due to a variety of reasons. Into this dynamic, it is valuable to look at some of the most recent efforts of the P.R.C. government to reduce copyright piracy across China.
As much as one may love to sit down with a nice hardcover book from one’s favorite author, those days are changing, like much else in our lives in the digital age. The transition from obtaining information via traditional books to digital readers is growing around the world. It is estimated by DisplaySearch that the number of digital readers in China had grown to "3 million in 2010, which  account[ed] for 2% of the global market." 1 Aside from the current market leader globally, the Amazon Kindle, numerous Chinese manufacturers have also entered this marketplace with competing products, 2 including many "shanzhai" or imitation products. 3 It is indeed a market with promise, even more so when one considers that with over 400 million internet users in China4 and well over 200 million users in China accessing the internet via mobile phones,5 the means to access e-books via various devices will only continue to grow.
Hollywood and Hong Kong film studios have long struggled to monetize their content in China. Though revenues from traditional movie theaters are growing rapidly, the real action may be found in the online market, where Chinese youth prefer to obtain their entertainment (i.e. film and television programming). How then can a content owner best take advantage of this rapid movement to online viewing in today’s China?
By asserting rights which Motorola and Nokia Siemens Networks undoubtedly consider legitimate, and relevant to the protection of their interests in the wireless infrastructure market, Huawei has taken a meaningful step towards the successful resolution of its differences with Motorola over the sale of its wireless network assets to one of Huawei’s competitors. If Huawei had not taken this step before the US Federal District Court, then Huawei and Motorola may have spent years in private commercial arbitration of this issue, achieving no meaningful outcome.
On 14 October 2010, the PRC National Copyright Administration (NCAC) published two pieces of regulations (the regulations) which govern the collection of copyright royalties for movies provided on the Internet, on flights and on public transport.(1) Recently there have been concerns from internet cafes that these royalties are unreasonably high.(2) There has also been some discussion in the press that these alleged “high” royalties could constitute an abuse of intellectual property rights, in breach of Article 55 of the Anti-Monopoly Law (AML).(3)
At times, an international company may find that their application for registration of a trademark is rejected by the Chinese Trademark Office. When this happens and all administrative appeals are exhausted, are there alternative means of brand protection available in China?
The term "works" used and protected under the Copyright Law refers to original intellectual creations in the literary, artistic and the scientific domain, in so far as they are capable of being reproduced in a certain tangible form. As for literal works, this refers to the works manifested in text form, no matter how long it is or what type or format of literature it uses. As long as it is original, it should be within the scope of protection by the PRC Copyright Law (as well as Trademarks as previously discussed). Therefore, it can be concluded that an advertising slogan is in principle not excluded from copyright protection on the condition that it is original. However, the Copyright Law does not define what "original" is. Judging by judicial practice, the expression of original works may not necessarily be unprecedented, and re-creation based on previous intellectual works of others is not forbidden either. In general, works possess originality as long as it is created by the author independently rather than plagiarizing others’ works which bears some personalized characteristics. Thus, it is possible for slogans to be copyrighted.
Concise and vivid advertising slogans quickly draw the public’s attention and are integral to a company’s brand. Over years of use and promotion, some slogans have become well-known to the public, such as Nike’s "Just do it", Adidas’ "Impossible is nothing" and DeBeers’ "Diamonds are forever." In many ways, such slogans are often no less important than the company’s logo and other marks. As such, companies must figure how to protect and prevent the unlicensed use of their advertising slogans. Accomplishing this in China presents a unique set of considerations.
The Chinese legislature created a hybrid from the different approaches adopted by civil and common law jurisdictions through the Copyright Law of the People’s Republic of China (the “Copyright Law”) and the Regulations on the Implementation of the Copyright Law of the People’s Republic of China (the“Implementation Regulations”), and produced the twin concepts of “legal entity work” and “occupational work” for assigning rights to works made in the course of an employment relationship. For example, a book written by a group of employees organized by an entertainment company for celebrating the company’s anniversary would likely be considered “legal entity work”, but a piece of music composed by a composer employee (not for specific purposes) is “occupational work”, because in the former case, supervision of the company would be involved but the latter case it would not. Continue Reading Copyright Due Diligence Investigations in China: Legal Entity Work or Occupational Work?