Cabinet d'avocats
The protection of designs in Chinese law
by
Daniel Arthur Laprès
and
Wu Xiuhong
Kunlun
Law Firm
1. - Introduction
2. - Patent protection
3. - Copyright protection
4. - Designs for integrated circuits
5. - Conclusion
1. - Introduction
In Chinese law, protection is specifically provided for designs under
the Patent Law, the Copyright Law and the Microprocessor Design
Regulations and their infringement may ground claims as well under
the Trademark Law, the civil law, the Criminal Law, the
laws prohibiting unfair competition, those governing international
trade and those governing the internet. The Sino-Foreign Equity
Joint Venture Enterprise Law stipulates that intellectual property, which
includes designs, may be contributed as capital.
Like other countries, China offers a range of alternative means
for protecting designs and the choices depend as elsewhere on the properties
of the products with which the design is associated as well as legal distinctions
between types of intellectual property (trademarks, patents and copyrights)
but perhaps more than elsewhere on practical considerations, in particular
the effectivennes of legal recourses.
Whether a design is considered as applied in industrial production
or considered as materialized in works of art usually depends on the nature
of the carrier products and the intention of the author.
China has joined the the Paris Convention for the Protection of Industrial
Property as well as the China has also joined the Berne Convention for
the Protection of Literary and Artistic Works. With its accession to the
WTO in 2001, China subscribed to the General Agreement on Trade and Tariffs
as well as the Trade Related Intellectual Property Rights (TRIPs) Agreement.
China has not joined the Hague Agreement Concerning the International Registration
of Industrial Designs. But it has subscribed to the Agreement Establishing
an International Classification for Industrial Designs.
2. - Patent protection
In China, designs may be protected under the Patent Law adopted in 1984,
which was amended in 1992 and again in 2000.
Design means any new configuration of the shape, pattern, colour, or
some combination thereof, in relation to a product, which creates an aesthetic
feeling and is fit for industrial application.
Article 95 of the General Principles of Civil Law (the Civil Law) provides
that patent rights obtained by citizens and legal persons in accordance
with the law are protected by the law. Article 118 provides that, when
patent rights of citizens or legal persons have been infringed, they have
the right to demand that the infringements cease, that their effects be
eliminated and that their losses be compensated.
2.1. - Conditions of design patentability
Applications for design patents must not fall within the scope of any
of the legal exclusions from patentibility and they must not offend social
morality or be detrimental to the public interest.
The Patent Law admits as patentable only those designs that are not
identical with or similar to any design which, before the date of filing,
has been disclosed in publications within the country or abroad or which
has been publicly used in the country.
To decide whether a design is identical with or similar to any prior
design, it is necessary to study the design as a whole. If the essential
constituent elements of a design are not identical with or similar to those
of any prior design, the former design is then regarded as novel. At the
same time, in judging whether a design is novel or not, it is also necessary
to consider the class to which the product belongs. If a design is identical
with or similar to any prior design incorporated in a product belonging
to a different class, the novelty of the former design is not affected.
Within six months from the date on which any applicant has first filed
in a foreign country an application for a patent covering a design, he
or it may file in China an application for a patent covering the same subject
matter, while enjoying a right of priority in accordance with any agreement
concluded between such foreign country and China, or in accordance with
any international treaty to which both countries are parties, or on the
basis of the principle of mutual recognition of the right of priority.
2.2. - Applications
To file an application for a patent to protect designs, the following
documents in Chinese and in duplicate are filed with the local SIPO office:
- an application form:
- a power of Attorney duly signed by the applicant;
- a drawing or photograph of the design, no smaller than 3 cm x 8 cm
and no larger than 15 cm x 22 cm.; pictures must reveal all the sides of
the design and present orthographic views (such as front, rear, top, bottom,
left side and right side views); drawings must present no shadow lines
or shadings; on photographs, the element should appear in sharp contrast
from the background,
- a brief description of the design, in particular its main creative
aspects; and
- if the applicant wants protection for the colors, four sets of the
drawing or photographs must be provided: two in color and two in black
and white;
- where necessary, such as for industrial designs, a prototype or model;
and
- where the applicant on the priority document is different from the
applicant in China, an assignment in the latter's favour.
The date of filing is the date on which the Patent Administrative Department
receives the application. If the application is sent by mail, the date
of mailing indicated by the postmark is considered to be the date of filing.
If priority is claimed, the applicant must also indicate the date and
number of each earlier application, and the country in which the application
was made of which the certified proof must be submitted within 3 months
of the date of the filing in China.
As regards creations made in co-operation by two or more entities, or
made by an entity in execution of a commission for research or design given
to it by another entity, the right to apply for a patent belongs, unless
otherwise agreed upon, to the entity which made, or to the entities which
jointly made, the creations. After approval of the application, the patent
is owned or held by the entity(ies) that applied for it.
Where any foreigner, foreign enterprise or other foreign organisation
having no habitual residence or business office in China applies for a
design patent, the application is governed by the Patent Law and any agreement
concluded between the country to which the applicant belongs and China,
or is treated in accordance with any international treaty to which both
countries are parties, or on the basis of the principle of reciprocity.
Unless there is a reason to reject the application, the Intellectual
Property Office registers the design patent, issues the patent certificate
and publishes it. Patent rights for designs come into effect on the date
of their publication.
In practice, eight to twelve months are likely to elapse between the
filing of the application for a design patent and the issue of the patent.
The cost of an intial design registration, inclusive of patent agent
fee's subject to negotiation, are about € 300.
Once a patent is granted, if the patentee does not register it within
2 months, then it is deemed to be abandoned.
2.3. - Examination of design patent applications
The Patent Law stipulates no procedures for obtaining an examination
on the substance of design patent applications.
When a preliminary examination turns up no cause for rejection of the
application for a design patent, the Patent Administrative Department grants
the patent, issues the relevant patent certificate, registers and gives
public notice of the patent.
2.4. - Rights of design patent holders
After the grant of a design patent, no entity or individual may, without
the authorisation of the patent owner, make, sell or import products incorporating
such patented design for production or business purposes.
In addition to the exclusive rights mentioned above, the patent owner
may affix markings of its patent including their numbers on patented products
and on the packaging of such products.
The Patent Law makes no provisions for compulsory licences to designs.
The term of design patents is ten years from the date of filing.
2.5. - Costs of maintenance
Annual maintenance fees increase over the term of the registration from
RMB 600 in the first eyars to RMB in the alst years of the term. Where
the annual fee is not paid in due time by the patent owner, or the fee
is not paid in full, the Patent Administrative Department summons the patent
owner to pay the fee or to make up the insufficiency within six months
from the expiration of the time within which the fee was to have been paid,
and at the same time to pay a surcharge. Non-payment of the maintenance
fee can result in premature terminate of the patent.
2.6. - Assignments of patents
The right to apply for a patent as well as the patent rights themselves
may be assigned.
Any assignment of the right to apply for a patent or of the patent itself,
by an entity or an individual to a foreigner must be approved by the Patent
Administrative Department.
Where the right to apply for a patent or where patent rights are assigned,
the parties must conclude a written contract, which will come into force
upon its registration with and publication by the Patent Administrative
Department.
Any licence covering the exploitation of a patent concluded by the patent
owner with an entity or individual must, within three months from the date
of entry into force of the contract, be submitted to the Patent Administrative
Department for registration.
2.7. - Invalidation of patent rights
Once there is a public announcement of the grant of a patent, any entity
or individual may appeal to the Patent Re-examination Board to declare
the patent right invalid for non-compliance with the Patent Law and applicable
regulations.
The Patent Re-examination Board must promptly examine the request for
invalidation, render a decision and give notice to the person who made
the request as well as to the patentee. The decision declaring the patent
invalid gives rise to registration and public notice by the Patent Administrative
Department.
Where any party is not satisfied with the decision of the Patent Re-examination
Board, it may, within three months from receipt of notice of the decision,
institute legal proceedings in the people's court.
In principle, any patent that has been declared invalid is deemed to
be non-existent from the beginning. The decision of invalidation does not
have retroactive effect with respect to
- any judgement or order on patent infringement which has been pronounced
and enforced by the people's courts,
- any decision concerning the handling of patent infringements which
has been made and enforced by the administrative authority for patent affairs,
or
- any patent licence or assignment that has been performed prior to
the invalidation.
Damages may be claimed from the putative patent owner for acting in
bad faith. Where fees for use of patents or the price for the assignment
of the patent rights are obviously inequitable, the patent owner or the
assignor may be obliged to repay the undue part of the fees or price paid
to the licensee or the assignee.
2.8. - Infringement exemptions
- the use and onward sale of patented products or of products derived
from patented processes obtained from the patentee or its licensees;
- any person who has already made identical products, used identical
processes, or made necessary preparations for their making or their use
before the date of the application may continue to make or use them but
within their original scope only;
- any foreign means of transport which temporarily passes through the
territory, territorial waters or territorial airspace of China may use
patents concerned, in accordance with any agreement concluded between its
country of origin and China, or in accordance with any international treaty
to which both countries are party, or on the basis of the principle of
reciprocity, for its own needs, in its devices and equipment;
- where the patent is used solely for scientific research and experimentation.
2.9. - Sanctions for infringements
In the event of infringements of design patents, patent holders may
request that the administrative authorities order cessation of the infringement
and apply administrative sanctions, or they may bring civil lawsuits before
the people's courts.
2.9.1. - Administrative sanctions
The SIPO has promulgated, as of December 17, 2001, the Administrative
Enforcement of Patents Measures (the Patent Enforcement Administrative
Measures). The Measures are stated to prevail over conflicting rules and
regulations issued by SIPO or its predecessor, the Patent Office.
Administrative decisions must respect the law and apply the principles
of impartiality and promptness. The administrative authorities are available
to mediate disputes in fact and in law.
The patent administrative authorities have the powers to conduct investigations
and to collect evidence.
The Measures distinguish between infringement disputes, on the one hand,
and disputes over passing off and counterfeiting, on the other. In each
case, the administrative authority must render a written and reasoned decision.
According to article 5 of the Patent Enforcement Administrative
Measures, to be admissible an infringement claim must satisfy the following
conditions:
- the claimant is the patentee or an interested party;
- the respondent is clearly identified;
- the matter in respect of which the request is filed is specific, and
the facts and reasons definite;
- the administrative authority for patent affairs seized is competent
to receive it and
- the claimant has not instituted proceedings in the people's court
in respect of the patent infringement dispute.
If these conditions are fulfilled, the claimant is notified within
7 days and appoints at least three staff members to handle the dispute.
Otherwise, the administrative authority must communicate the reasons for
the inadmissibility within 7 days. It may organize oral hearings.
In cases of patent infringement, the authority may order cessation
of the illegal activities, including manufacturing, importation and distribution.
In cases of patent passing off and counterfeiting, the patent
administrative authority with jurisdiction is that where the acts allegedly
occurred. When there is a disagreement over territorial jurisdiction, the
authority at the next higher level may be called upon to designate the
appropriate authority.
Where passing off or counterfeiting a patent is established, the
administrative authority for patent affairs may order remedial measures
including removal of the marking and number of the patent from products
and packaging or, where this is impossible, the destruction of goods bearing
the infringing references, and cessation of advertisements and promotion
using the impugned references.
In cases of passing off and counterfeiting a patent, the administrative
authority orders publication of its decision. The illicit income
is calculated as the product of the number of units sold times the price
of sale.
The implementation of administrative decisions which are contested before
the people's courts is not suspended pending the outcome of the judicial
procedures. Where the administrative decision is not implemented
by the concerned party, the administrative authority may approach the people's
court for judicial execution.
2.9.2. - Civil remedies
A wronged patent owner may, without first requesting the administrative
authorities to handle the matter, directly institute legal proceedings
in the people's court. In accordance with the relevant provisions of the
Civil Procedure Law and the General Principles of the Law of Evidence,
the patent holder should provide evidence proving the infringement, namely
that, without authorisation of the patent owner or under the terms of the
law, the infringer has made, used, sold or imported the patented products.
In the presence of reasonable evidence of an actual or imminent, and
where delay in stopping the infringement is likely to cause irreparable
harm to the patent owner's legitimate rights, injunctions and conservatory
measures may be imposed by the people's courts. On June 5, 2001,
the Supreme People's Court adopted the Patent Right Before Instituting
Legal Proceedings. Applicants must provide valid and reasonable pledges
or mortgages as guarantees lest their applications be rejected. The
effects of measures ordered by the courts cannot be avoided by providing
counter-guarantees.
The people's courts render written judgments within 48 hours unless
they intend to hold hearings or want other information. In any event their
decisions are rendered within five days. Unsatisfied parties may apply
for reconsideration of the judgment within l0 days from the date of the
receipt of the ruling. The execution of rulings is not suspended during
the reconsideration. Any injunctions or orders must be executed without
delay. In addition to the criteria applicable for determination of
the original ruling, the reconsideration also takes account of whether
stopping the alleged infringement would harm the public interest.
If legal proceedings are not initiated within l5 days after the order,
the people's court must abrogate the measures.
Orders to stop infringements of patents generally remain effective
until the definitive legal judgment though the people's court may also
set other expiration dates which can be extended, where appropriate, upon
the request.
The people's court may order measures to preserve property pursuant
to Articles 92 and 93 of the Civil Procedure Law.
The limitation period applicable to legal proceedings relating to infringements
of patent rights is two years from the date on which the patent owner or
any interested party knew or should have known of the infringing act.
2.9.3. - Criminal sanctions
In addition to being subject to civil penalties and confiscation of
illegal gains, violators of patents are exposed to criminal liability.
Serious violations of patent rights may give rise to prosecutions under
article 216 of the Criminal Law entailing up to 7 years' imprisonment in
especially serious cases.
Article 280 of the Criminal Law prohibits forgery of documents
issued by State organs, which includes patent certificates. In especially
serious cases, those found guilty might be sentenced to up to ten years
in jail.
When the crimes are committed by units and legal persons, the
individuals responsible in fact for the infringements are subject to prosecution.
3. - Copyright protection
The Constitution of 1982 imposes upon the State the obligation to promote
the development of natural and social sciences and disseminate the knowledge
of science
The Copyright Law covers defines copyrights (zhu zuo quan) as including
rights that are personal (ren shen quan) and proprietary rights (cai chan
quan).
3.1. - Qualifications for copyright
For the purposes of the Law, works subject to protection include specifically
:
- graphic works such as drawings of engineering designs and product
designs and
- drawings of product designs, maps, schematic drawings, etc. and threedimensional
model works, as well as descriptions of such works.
In addition, several other types of works are likely to incorporate
designs:
- works of fine art and architectural works;
- photographic works;
- cinematographic works, and works created by similar processes and
television;
- maps, sketches and other graphic works;
- computer software.
The provision of consultations, material means or other supporting services
for others in their creative activities are not considered to be acts of
creation.10
According to article 16 of the Copyright Law, works created by individuals
in the context of employment by a legal person or other organisation give
rise to a rights split with the copyrights (zhu zuo quan) going to the
individual author/employee.
But the employer enjoys a priority over exploitations in its field of
activity and by third parties similar to those of the employer. For two
years following completion of a work, the author/employee may not, without
the employer's permission, conclude licences to its copyrights with third
parties trading in products competitive with the employer's.
In the following specific cases, the work of the employee is deemed
to give rise to rights of authorship (shu ming quan ) in favour of the
employee with all other copyrights (zhu zuo quan) accruing to the employer:
- drawings of engineering designs, product designs, computer software,
maps and other works created under the employer's responsibility or mainly
using its material and technical resources;
- works created in the course of employment the copyrights in which
are vested in a legal person or other organisation by laws, regulations
or contracts.
According to article 13 of the Copyright Law, if two or more authors
jointly create a work, the authors jointly own the copyright and jointly
bear the duties arising in connection therewith. Where the work can
be divided, each co-author may hold separate copyrights in the part he
created, provided the exercise of that right does not prejudice the work
as a whole. When joint authors unreasonably fail to agree on how to use
a copyright, none may prevent the others from doing so provided that the
copyright cannot be transferred, and the gains from its exploitation must
be shared by the joint authors in a reasonable manner.
3.2. - Definition of copyrights
Considering the wide range of contexts in which designs may be exploited,
it is appropriate to recall that, according to article 10 of the Copyright
Law, copyrights include the following "personal rights and property rights":
(1) the right of publication;
(2) the right of attribution;
(3) the right of alteration of one's work;
(4) the right of integrity;
(5) the right of reproduction,
(6) the right of distribution;
(7) the right of rental;
(8) the right of exhibition;
(9) the right of performance;
(10) the right of projection;
(11) the right of broadcasting;
(12) the right of dissemination over information networks;
(13) the right of cinematographic production;
(14) the right of adaptation;
(15) the right of translation;
(16) the right of compilation.
Of course, not all the above cited forms of expression can carry designs,
in so far, for instance, as the latter are considered necessarily to be
visual. Below, we concentrate our attention on those forms of expression
most likely to involve the creation of designs that might be protected
under the Copyright Law.
Copyright holders may not use their rights in any manner which violates
the Constitution or the laws or which causes prejudice to public interests.
3.3. - Term of protection of copyrights
The author's rights of attribution, revision and integrity last indefinitely.
The duration of the rights of disclosure, exploitation and the right
to remuneration depends on the origin of the copyrights.
For works of individuals, the copyright term expires on December 31
of the 50th year after the author's death and rights in joint works terminate
50 years from the death of the last surviving author.
For works in connection with employment, the rights of disclosure, exploitation
and to remuneration owned by the employer expire on December 31 of the
50th year after publication of the work, provided publication occurred
within 50 years of the work's creation. The same is true of any cinematographic
or like works.
Foreign works of applied art are protected for 25 years from the date
on which they are made, to the exclusion of fine arts used in industrial
goods (for example, cartoon characters).
Foreign computer programs are protected as literary works for a term
of 50 years from the end of the year of publication and no registration
of foreign computer programs is required before instituting legal actions.
3.4. - Exceptional uses of copyrighted works without permission
Under article 22 of the Copyright Law, provided that the author's name
and the title of the work are mentioned and provided the other rights enjoyed
by the copyright owner are not harmed, works may be used without permission
of, or payment to, the author in the following circumstances:
- for personal study, research or enjoyment;
- as quotations for the purpose of introduction to or comment upon a
work or for the demonstration of a point;
- unavoidable uses of published works in newspapers, periodicals, radio
programmes, television programmes or newsreels for the purpose of reporting
current events;
- reprinting by newspapers or periodicals, or rebroadcasting by radio
stations or television stations, of editorials or commentators' articles
on current political, economic or religious topics already published by
other newspapers, periodicals, radio stations or television stations;
- publication in newspapers or periodicals, or broadcasting by radio
stations or television stations, of a speech delivered at a public gathering,
except where prohibited by the author;
- translation or reproduction in a small number of copies, of a published
work for use by teachers or scientific researchers in classroom teaching
or research, provided that the translation or reproduction is not published
or distributed;
- use, to a reasonable extent, by a public organ of a work for the purpose
of performing its official duties;
- reproduction of a work in its collections by a library, memorial hall,
museum, art gallery or similar institution to preserve of a copy of the
work;
- free of charge performance of a published work, where there is no
charge collected from the public and no remuneration paid to the performers;
- copying, drawing, painting, photographing or video recording of an
artistic work located or displayed in an outdoor public place;
- translation of a published work by a Chinese citizen, legal person
or other organisation from the Han language into the languages of a domestic
ethnic minority group for publication and distribution within China;
- transliteration of a work into Braille and its publication.
For textbooks used in the nine-year system of compulsory State education,
published works may be compiled without the copyright owners' permission,
but not against their express prohibition, provided that remuneration is
paid and their names and the title of their works are indicated.
3.5. - Licensing and assignments of copyrights
According to article 24 of the Copyright Law, other than in the case
of a legal exception, no one may use a copyrighted work without concluding
a licence contract, which must include the following clauses:
- a definition of the manner of exploiting the rights being licensed;
- an indication whether the licence is exclusive or non-exclusive;
- the geographic scope and term of the licence;
- the amount of remuneration and the method of payment and
- definitions of liability for breaches of contract.
Assignments of economic rights listed in items 5-16 in article 10 of
the Copyright Law discussed above must be reduced to a written contract
that must contain:
- the title of the work;
- the rights being assigned and the geographic scope thereof;
- the assignment price;
- the date and method of payment and
- liability for breach.
Unless agreed by the licensor of a copyright, the licensee may not grant
sub-licenses.
Transfers of copyrights in a work of fine art do not transfer copyrights
in the work except that of exhibition of the original work.
A schedule of remuneration for works is maintained by the National Copyright
Administration although parties are free to adopt other bases of remuneration.
Unless agreed otherwise by their authors, or except when it is impossible
due to their special character, when works are used by persons other than
their author, the latter's name and the title of the work must be clearly
indicated.
3.6. - Rules specific to publication of books, newspapers and periodicals
The book publisher may be liable for failures to publish a work within
the allowed time. The publisher has the right to reprint newspaper and
periodical articles unless the author has objected at the outset,
however the publisher must pay royalties. Where the publisher decides not
to reprint the work, the author may terminate the contract once the publisher's
stocks are exhausted.
A publisher may abridge the work or make editorial modifications subject
to permission of the author. Newspapers and periodicals are free to revise
or abridge a work for reasons of style but must obtain the author's permission
to revise the content.
When publishing an adaptation, translation, annotation, arrangement
or compilation of a pre-existing work, the publisher must obtain permission
from and pay remuneration to, both the owner of the work and the owner
of the adaptation, translation, annotation, arrangement or compilation.
A publisher has the right to permit or forbid others from using the
layout of its books and periodicals. This right lasts 10 years from the
date of first publication using the layout.
Publishers and producers have the burden of proving the authorisations
for the content of their publications and productions, as must distributors
and lessors for their reproduced products. Publishers bear the burden
of proving that they have exercised reasonable care in verifying the sources
and the signatures of the manuscripts and the contents of their publications.
Where the copyright owners cannot show that the publishers knew or should
have known of the infringements in their publications, the publishers'
liability is limited to cessation of the conduct.
3.7. - Sanctions for infringements
Violations of copyrights may give rise to civil, administrative and
criminal liabilities.
3.7.1. - Civil liabilities
Article 46 of the Copyright Law provides that the following acts constitute
infringements for which civil liability arises:
- publication of a work without permission from the copyright owner;
- publication of a joint work as if it were one's own alone;
- affixing one's name to another's work for fame and profit where one
has not participated in the creation of the work;
- distortion and mutilation of a work;
- plagiarising another's work;
- unless otherwise provided by the Copyright Law, and without permission
from the copyright owner, the use of a work such as for exhibition, film-making
or similar processing or for adaptation, translation, annotation;
- use of another's work without paying where remuneration should be
paid;
- unless otherwise provided by the Copyright Law, rental of cinematographic
or similar works, computer software or sound or video recordings without
the permission of the owners of the copyrights or of the owners of the
rights of adaptation, translation or annotation;
- use, without the publisher's permission, of the layout of a book or
periodical;
- live broadcast, public transmission or recording of a performance
without the performer's permission.
One of the most important revisions of the Copyright Law places on publishers
and producers of reproductions, as well as distributors and renters of
reproductions of cinematographic works, works created by methods analogous
to film production, computer software, sound and video recordings the burden
of proving the origin of their rights to do so.
Disputes over copyrights may be settled by mediation or, by virtue of
contracts, by arbitration. Where the arbitration award is not executed,
the dispute may be brought before the competent people's court. In the
absence of an arbitration agreement, either party may bring the dispute
before the competent people's court.
The territorially competent courts are those where the alleged infringements
occurred.
The civil courts may impose fines upon infringers provided that the
Copyright Administrative Department has not already done so.
The limitation period applicable to legal proceedings relating to the
infringement of copyrights is two years from the date on which the copyright
owner or any interested party knew or should have known of the infringing
act. Beyond two years actions, may be brought against ongoing violations
to use the copyright and the people's court may enjoin the infringement
but damages are calculated only with respect to the previous two years.
Infringers may be ordered to cease infringements, eliminate their effects,
apologise and pay damages based on the losses suffered by the copyright
owner, including costs associated with enforcement
Injunctive relief to stop acts of infringement prior to commencement
and orders to preserve evidence may also be obtained where there is a risk
of irreparable harm otherwise.
Damages for copyright infringements are calculated based on actual losses
but if the actual damages are difficult to calculate, then a court may
quantify them by reference to the illegal income derived from the infringement.
If both are difficult to calculate, the people's court may impose statutory
damages not to exceed RMB 500,000.
The courts may exercise their jurisdiction in parallel with procedures
before the Copyright Administrative Department.
3.7.2. - Administrative liabilities
In the cases mentioned below, and where the public interest has been
harmed by copyright violations, the Copyright Administrative Department
may issue injunctions, order seizures of infringing goods and illicit gains
from infringements, as well as impose fines:
- the reproduction, distribution, performance or projection, broadcasting
or compiling of a work or communicating same through an information network
to the public without the owner's permission;
- publishing a book where another has the exclusive right of publication;
- reproducing or distributing sound or video recordings of a performance
or communication of same via an information network without the permission
of the performer;
- reproducing or distributing a sound or video recording or communicating
same through an information network to the public without the producer's
permission;
- broadcasting or reproducing a radio or television broadcast without
permission;
- deliberately cracking or circumventing technical measures taken by
copyright owners or by owners of rights of adaptation, translation or annotation
to protect their sound, video recordings;
- deliberately removing or modifying the electronic rights control information
in a work, sound or video recording without the copyright owner's permission;
- producing or selling works while passing off another's signature.
Anyone objecting to an administrative fine may appeal to the people's
court within three months.
The copyright administration may apply to the people's court for enforcement
of the laws and regulations.
3.7.3. - Criminal liabilities
The violations listed in article 47 of the Copyright Law as related
above may in serious cases constitute crimes.
The Criminal Law, in its article 217, prohibits gains in "large amounts",
or when there are other "serious circumstances", earned from:
- copying and distributing without permission copyrighted works (written,
musical, cinematographic, video, computer software);
- publishing books the copyrights on which are owned by others;
- duplicating and distributing audiovisual works without the permission
of their producers and
- producing and selling artistic works bearing forged signatures.
Those convicted of such offences may be sentenced to fines and/or a
maximum of three years of fixed-term imprisonment or criminal detention.
When the illicit gains are "extremely large" or when there are other "particularly
serious circumstances", jail sentences of not less than three years and
not more than seven years of fixed-term imprisonment may be imposed in
addition to fines.
Distributors of such illicit goods on for very large gains are subject
to the same sanctions.
According to the Interpretation of Several Issues Relating to Specific
Application of Law to the Treatment of Criminal Cases of Intellectual Property
Infringement issued jointly by the SPC and the Supreme People's Procuratorate
in December 2004 (the Criminal Infringement Interpretation), illegal
gains of RMB 30,000 or more constitute "large gains", those of RMB 50,000
or more are considered to be "very large" while "extremely large" gains
are those in excess of RMB 100,000. Under article 11 of the Interpretation,
a licensee's conduct beyond the scope of the licence is treated as equivalent
to acting without authorisation. The article further includes communication
on information network within the meaning of reproduction and distribution".
There appears to be debate whether "gains" as referred to in the legal
sources refers to sales or profits.
Items of software may be used to study the concepts and principles underlying
its design without the consent of, or financial obligation toward, the
software's copyright owner.
4. - Designs for integrated circuits
The Regulations for the Protection of Layout-Designs of Integrated Circuits
were promulgated by Decree No. 300 of the State Council on April 2001,
and became effective as of October 1, 2001 (IC Layout Design Regulations).
Though the terms of protection are similar to those applicable to copyrights,
integrated circuit designs are given sui generis protection. For example,
the Regulations give foreign origin products protection either under the
terms of treaties, bilateral or multilateral, covering integrated circuit
designs, or if the product was introduced onto the Chinese market.
4.1. - Qualifications
Article 2 defines integrated circuits as products, in intermediate or
final form, which use semiconductor material as their chips, in and/or
on which two or more elements, at least one of which is an active element,
and some or all of the interconnections are integrally formed and which
are intended to perform certain electronic functions. Layout-designs are
three-dimensional dispositions thereof prepared for the manufacture of
integrated circuits.
To qualify for protection, layout-designs must be original in the sense
that the layout-design is the result of the creator's own intellectual
effort, and the design must not be commonplace among creators of layout-designs
and manufacturers of integrated circuits at the time of its creation.
Combinations of commonplace designs may be protected if, taken as a whole,
they meet the above requirements. The protection of layout-designs does
not extend to ideas, procedures, and methods of operations or mathematical
concepts.
Article 8 of the Regulations requires registration with the SIPO as
a necessary condition for claiming rights to IC layout designs.
4.2. - Rights of holders of lay-out designs
Holders of rights of layout-design enjoy the exclusive rights of reproduction
and commercial exploitation.
Exclusive rights in IC layout designs belong to their creators, whether
natural or legal persons. Parties working in cooperation in developing
IC layout designs may define by contract their intentions as to their ownership.
In the absence of contractual provision, the designs are either jointly
owned or owned by the commissioned party, as the case may be.
Under article 12, the term of protection of layout-designs is 10 years
from the sooner of the date of filing for registration or the date on which
it was first commercially exploited anywhere in the world within a limit
of 15 years after the date of its creation.
No layout-design may be registered beyond two years from the date on
which it was first commercially exploited anywhere in the world.
Article 22 requires that assignments and licenses of IC layout design
rights be in writing and, in the case of assignments, they must also be
registered with the SIPO.
Article 23 permits reproductions of protected layout-designs for private
purposes or for the sole purpose of evaluation, analysis, research or teaching.
The SIPO may grant a non-voluntary license to exploit layout-designs
in the following cases:
- a national emergency,
- any extraordinary state of affairs,
- when it is in the public interest,
- a determination of a people's court and
- a determination of the supervision and inspection department against
unfair competition that there is unfair competition on the part of the
holder of the layout-design.
The scope of the mandatory licence must be limited to non-commercial
uses for public purposes, or tailored to remedy an act of the holder of
the IC layout design in conformity with a determination of a people's court
or of the supervision and inspection department against unfair competition.
The beneficiary of the mandatory licence is expected to pay the IC design
layout right holder a reasonable remuneration and, in the event of failure
of the parties to agree, the SIPO may be called upon to make an adjudication,
and in the event that either of the parties were not satisfied, an appeal
could be brought before the people's courts. In the event of disputes,
holders of IC layout design rights as well as interested parties may bring
suit before the people's courts, or refer the matter to the SIPO.
4.3. - Administrative recourses
Article 19 provides for an administrative appeal within the Copyright
Administrative Department seeking a re-examination of the contested decision,
and in the event of dissatisfaction, the applicant may bring a law suit
before the people's court. Holders of IC design layout registrations may
contest registrations by other parties of before the SIPO and may appeal
its decisions to the people's courts.
4.4. - Administrative sanctions
The SIPO may order the cessation of infringements, as well as the confiscation
and destruction of infringing products. Appeals from such decisions may
be brought before the people's courts in accordance with the Administrative
Procedure Law. If the infringer refuses to stop the infringing act, the
SIPO may apply to the people's court for compulsory enforcement of its
orders.
In the event of a likelihood of irreparable harm due to infringements,
the people's courts may order the suspension of illegal acts as well as
measures for the preservation of property.
Article 32 allows infringers to escape liability if they can demonstrate
that they did not know and had no reasonable ground to know of the infringement.
5. - Conclusion
Designs not registered in countries in treaties with China opening windows
of priority of registration in China for their citizens' creations, or
the registrations of which are not extended to the PRC within that window,
could still be protected by registration in China prior to their publication
anywhere in the world and prior to their exploitation in China.
In practice, in some sectors, the cost of registering designs under
the Patent Law would be prohibitive, but the industrial exploitation of
the carrier products excludes copyright protection. Designs for fashion
industries would in this sense benefit from no more effective protection
in China than in most other countries.
2.1. - Conditions of design patentability
2.2. - Applications
2.3. - Examination of design patent applications
2.4. - Rights of design patent holders
2.5. - Costs of maintenance
2.6. - Assignments of patents
2.7. - Invalidation of patent rights
2.8. - Infringement exemptions
2.9. - Sanctions for infringements
2.9.1. - Administrative sanctions
2.9.2. - Civil remedies
2.9.3. - Criminal sanctions
3.1. - Qualifications for copyright
3.2. - Definition of copyrights
3.3. - Term of protection of copyrights
3.4. - Exceptional uses of copyrighted works without permission
3.5. - Licensing and assignments of copyrights
3.6. - Rules specific to publication of books, newspapers and periodicals
3.7. - Sanctions for infringements
3.7.1. - Civil liabilities
3.7.2. - Administrative liabilities
3.7.3. - Criminal liabilities
4.1. - Qualifications
4.2. - Rights of holders of lay-out designs
4.3. - Administrative recourses
4.4. - Administrative sanctions
o the type of application must be clearly stated: patent for design;
o the name, adress and nationality of the applicant;
o the product incorporating the design and the class to which that
product belongs;
None of the following are deemed to be infringements of patent rights:
Criminal conduct may be denounced, including anonymously, to the people's
procuratorate. Those found guilty of criminal offenses are liable to imprisonment
for up to seven years.
and technology, scientific research, technological innovations and
inventions.7
Collective copyright management agencies have standing to bring actions
before the people's court where authors have given them such powers.
Cabinet d'avocats