Intellectual Property Rights, Copyright Law, Copyleft Law
Intellectual property rights (IPRs) have been acknowledged and protected in the People's Republic of China since 1979. Copyright law is governed by the Copyright Law of the People's Republic of China (PRC) and the Implementing Rules for the Copyright Law of the PRC which were adopted and promulgated in 1990. In order to implement the Berne Convention and the Universal Copyright Convention, as well as bilateral copyright treaties signed between the People's Republic of China and other foreign countries, the People's Republic of China government passed the Regulations on Implementation of International Copyright Treaties (1992). These have given foreign copyright holders more safeguards in terms of protecting their rights and interests in mainland China.
Before the People's Republic of China acceded to the Berne Convention, computer software was not treated as a kind of literary work under the Copyright Law.
In May 1991, the State Council passed the Computer Software Protection Rules. Based upon these rules, the Measures for Computer Software Copyright Registration were formulated by the then Ministry of Engineering Electronics Industries. These regulations provide a set of rules covering the definitions of various terms and the registration, examination and approval of computer software programmes in mainland China.
Right now both the Berne Convention and these two
domestic computer regulations are co-effective. However, in the event of any
inconsistency, the Berne Convention prevails.
Registration procedures are not compulsory in order to receive copyright protection.
Though the Berne Convention does not require any copyright registration, it is necessary to register copyright for literary works in mainland China, in order to avoid any disputes with regard to ownership.
In 1980, the People's Republic of China became a member of the World Intellectual Property Organization (WIPO).
It has patterned its Intellectual property rights laws on the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Mainland China acceded to the Paris Convention for the Protection of Industrial Property on 14 November 1984 and became an official member on 19 March 1985. Mainland China also acceded to the Madrid Agreement for the International Registration of Trademarks in June 1989.
In January 1992, the People's Republic of China entered into a Memorandum of Understanding with the United States government to provide copyright protection for all American "works" and for other foreign works. Several bilateral negotiations have been conducted between the two governments. At some points, trade sanctions were threatened by the two governments over Intellectual property rights issues. At the conclusion of negotiations in 1995, the Sino-US Agreement on Intellectual Property Rights was signed. In June 1996, the two governments entered into another agreement protecting American intellectual property in mainland China.
Generally, once the People's Republic of China has acceded to an international treaty, the People's Courts can quote the provisions of the treaty directly in deciding an intellectual property infringement case, without reference to a Chinese domestic law by which the treaty provision is incorporated.
National legal framework
The legal framework for protecting intellectual property in the People's Republic of China is built on three national laws passed by the National People's Congress: the Patent Law, the Trademark Law and the Copyright Law. A great number of regulations, rules, measures and policies have been made by the NPC Standing Committee, the State Council and various ministries, bureaux and commissions. The circulars, opinions and notices of the Supreme People's Court also form part of the legal framework.