The legal framework for protecting intellectual property in the PRC 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.
Main article: People's Republic of China's trademark law
The Trademark Law of the People's Republic of China (中华人民共和国商标法) sets out general guidelines on administration of trademarks, protection of trademark owners' exclusive rights and maintenance of quality of products or services bearing the registered trademarks, "with a view to protecting consumer interests and to promoting the development of the socialist commodity economy."
Adhering to Article 4 of the Paris Convention, the Chinese government passed the Provisional Regulations Governing Application for Priority Registration of Trademarks in China to grant the right of priority to trademark applications submitted in PRC by the nationals of the Paris Convention member countries.
Copyright Law of the People's Republic of China
Copyright law is mainly governed by the Copyright Law of the PRC (中华人民共和国著作权法) and the Implementing Rules for the Copyright Law of the PRC (著作权法实施条例), the Copyright Law of the PRC adopted and promulgated in 1990 and the "Implementing Rules" adopted in 1991 and revised in 2002. In most cases the copyright term is the life of the author plus 50 years, but for cinematographic and photographic works and works created by a company or organization the term is 50 years after first publication.
To implement the Berne Convention and the Universal Copyright Convention, as well as bilateral copyright treaties signed between the PRC and other foreign countries, the PRC government passed the Regulations on Implementation of International Copyright Treaties (1992). These have given foreign copyright holders protection for their rights and interests in the PRC.
Before the PRC 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 the PRC. At the moment both the Berne Convention and these two domestic computer regulations are co-effective. However, in the event of any inconsistencies, the Berne Convention prevails.
The Berne Convention does not require copyright registration, and thus protection in the PRC technically does not require registration. However, registering copyrights for literary works can avoid, or at least simplify, ownership disputes. Copyright registration cost is 300 RMB. On the downside, the copyright registration process requires the registrant to disclose detailed information, including software source code, which companies might be reluctant to share.
Main article: Patent Law of the People's Republic of China
The PRC passed the Patent Law of the PRC (中华人民共和国专利法) to encourage invention-creation and to promote the development of science and technology. The subsequent Implementing Regulations of the Patent Law of the PRC added clarification.
Apart from major legislation on trademarks, copyright and patents, a few other laws and regulations have been passed to deal with intellectual property related issues. In 1986, the General Principles of Civil Law was adopted to protect the lawful civil rights and interests of citizens and legal persons, and to correctly regulate civil relations. Articles 94-97 of the General Principles of Civil Law deal with intellectual property rights of Chinese citizens and legal persons.
In the 1990s, many more pieces of legislation were passed to perfect the intellectual property protection system. These include the Regulations on Customs Protection of Intellectual Property Rights (1995) and the Law Against Unfair Competition of the PRC (1993).The latter prohibited the passing off of registered trademarks, infringing trade secrets, the illegal use of well-known goods or names of other people, as well as other misleading and deceptive conduct. The Advertising Law of the PRC was passed in 1994 to prohibit the unfair, misleading and deceptive conduct involving patent advertising or other advertising activities in general.
State Intellectual Property Office
The State Intellectual Property Office of the People's Republic of China (SIPO; Chinese: 中华人民共和国国家知识产权局), also known as the Chinese Patent Office, is the patent office of the People's Republic of China (PRC). It was founded in 1980, as the Patent Office of the People's Republic of China, the predecessor of SIPO. It is responsible "for patent work and comprehensively coordination of the foreign related affairs in the field of intellectual property".
State Administration for Industry and Commerce
The State Administration for Industry and Commerce (SAIC; Chinese: 国家工商行政管理总局) is the authority in the People's Republic of China responsible for advancing legislation concerning the administration of industry and commerce in the People's Republic.On a local level, the organizations responsibilities roughly mimic those of the secretaries of individual states in the United States as a registration and licensing authority.The current minister is Zhang Mao (张茅).
Software copyright in China
Software copyright in China in Chinese Law means that creator or other oblige enjoys exclusive rights of the software under related copyright law. It is a civil right and has the common features of all the civil rights. Copyright is an exception in intellectual property right because it is owned without individual confirmation. This is usually called as principle of “automatic protection”. The copyright owner enjoys right of publication, right of authorship, right of consent to use, as well as right of being paid.
Significance of registration
1. Served as a significant basis of tax reduction and exemption. According to the relative regulations of Ministry of Finance and State Administration of Taxation, “business tax rather than value-added tax will be collected on the computer software that has been registered by national copyright bureau when it is sold and copyright and ownership is transferred.”
2. Served as a basis to provide protection of law According to related decree of the Council, “copyright administrative department should standardize and strengthen system on software copyright registration, encourage software copyright registration, and provide special protection in law to the registered software”. For instance, when copyright piracy happened, certificate of software copyright registration be used as proof without examination; in addition, it serves as a basis in law for national copyright administrative department to against piracy.
3. Served as investment by technology According to related regulation, “computer software can be used as investment by high and new technology, and the assessed price beyond 20% defined by Corporations Law and come to 35%”. Some local government even noticed: “100% software technology can be used as investment”, but must to register the software copyright first.
4. Served as a basis to apply for technological achievement According to related regulation of Ministry of science and technology: “to register technological achievement, one must submit 《registration form of technological achievement》, as well as: 1. achievement of applying technology: related evaluation certificate (accreditation, acceptance report, entry qualification certificate, and new production certificate) as well as report of development; or 2. certificate of intellectual property right (copyright certificate; registration certificate of software) as well as user’s certificate”. Registration certificate of software refers to certificate of copyright registration and software registration, similar regulations be found in other Ministry.
5. Served as tangible income if corporation goes into bankruptcy Copyright is considered as “invisible asset”, and the invisible asset will not disappear when corporation goes into bankruptcy, the vitality and value of invisible asset is still in existence, and tangible fund be obtain in the process of transference or auction. According to regulation of computer software copyright registration: the time for registration of a software copyright refers to the 30 working days after the receipt date.
China Trademark & Patent Law Office (CTPLO)