IP rights in art in China

Intellectual property rights

Does copyright vest automatically in the creator, or must the creator register copyright to benefit from protection?

Copyright is automatically generated on the date a work is created. Copyright registration is voluntary in China (ie, the author or another lawful copyright holder will enjoy copyright regardless of whether it is registered); however, for copyright protection purposes, it is advisable to get the copyright registered as it is a low-cost and efficient way to prove copyright ownership in an enforcement case.

What is the duration of copyright protection?

For moral rights such as right of authorship, right of modification and right of integrity, the protection duration is unlimited.

For moral rights such as the right of publication, if the author is a legal person or other organisation, or if it is a work made for hire, the protection duration is 50 years, ending on 31 December of the 50th year after the date on which the work was first published, but if the work is not published within 50 years after its completion, it shall no longer be protected by law. If the author is an individual, in general the protection duration is the term of the author’s life plus 50 years after his or her death, ending on 31 December of the 50th year. In the event of a joint work, this term shall end on 31 December of the 50th year after the death of the last surviving co-author. For cinematographic work or a work created by a process analogous to cinematography or a photographic work, the protection duration is a term of 50 years, ending on 31 December of the 50th year after the date on which the work was first published, but if the work is not published within 50 years after its completion, it shall no longer be protected under the law.

For economic rights such as the right of reproduction, the right of distribution, the right of rental, the right of exhibition, the right of performance, the right of projection, the right of broadcasting, the right of communication via information networks, the right of cinematisation, the right of adaptation, the right of translation, the right of composition and other rights to which a copyright owner is entitled, if the author is a legal person or other organisation, or if it is a work made for hire, the protection duration is a term of 50 years, ending on 31 December of the 50th year after the date on which the work was first published, but if the work is not published within 50 years after its completion, it shall no longer be protected by law. If the author is an individual, the protection duration is a term of the author’s life plus 50 years after the author’s death, ending on 31 December of the 50th year.

Can an artwork protected by copyright be exhibited in public without the copyright owner’s consent?

The right of exhibition is an economic right of the copyright holder - it belongs to the owner of the original artwork. The owner’s consent must be obtained before exhibition to the public, otherwise it may cause infringement, unless it can be proved with sufficient evidence that the artwork had already been published, and that the exhibition is for the purpose of individual study, research or enjoyment, and will not cause infringement to other rights enjoyed by the copyright holder. The name of the author and of the artwork must be clearly displayed.

Can artworks protected by copyright be reproduced in printed and digital museum catalogues or in advertisements for exhibitions without the copyright owner’s consent?

The right of reproduction, the right of distribution and the right of communication via information networks are economic rights of the copyright holder.

The copyright owner’s consent must be obtained before reproduction and distribution of the hard-copy museum catalogues, and, in addition, the owner’s consent on communication via information networks must be obtained before production and distribution of the digital museum catalogues, unless these catalogues are not distributed to the public but are for the museum’s internal use only, in which case the name of the author and the artwork must be clearly mentioned, and the rights enjoyed by the copyright holder must not be jeopardised and no impact shall be caused to the normal use of the artwork.

The owner’s consent must also be obtained for the purpose of advertising exhibitions.

Are public artworks protected by copyright?

Yes, the public artwork is protected by copyright upon its completion.

Does the artist’s resale right apply?

The artist’s resale right does not currently apply in China. However, the Copyright Law (Draft Revision for Review) publicised on 6 June 2014, proposed that the artist’s resale right should be added to the existing Copyright Law. According to the Draft, after the first transfer of the original of the artwork, photograph, manuscript of written work or musical work, the author, the successor or legatee of the author shall be entitled to share the value-added profits achieved from the auction resale of the original or the manuscript of the work. The detailed protection measures will be provided separately by the State Council.

What are the moral rights for visual artists? Can they be waived or assigned?

For visual artists, the moral rights include right of publication, right of authorship, right of modification and right of integrity.

For the following moral rights, the protection duration is unlimited:

• the right of authorship, which means the right to claim authorship of a work by being named on the work as its author;
• the right of modification, which means the right to modify or authorise others to modify a work; and
• the right of integrity, which means the right to protect a work from being misrepresented or distorted.

With regard to the moral right of publication, if the author is a legal person or other organisation, or if it is a work made for hire, the protection duration is a term of 50 years, ending on 31 December of the 50th year after the date on which the work was first published, but if the work is not published within 50 years after its completion, it shall no longer be protected by law. If the author is an individual, in general the protection duration is a term of the author’s life plus 50 years after the author’s death, ending on 31 December of the 50th year. Moral rights cannot be waived.

The right of authorship, the right of modification and right of integrity shall, after death of the author, be protected by the heir in title and or another beneficiary. In the absence of an heir in title or another beneficiary, these rights will be protected by the copyright administrative authority.

In the case of a posthumous work, the right of publication may be exercised by the author’s heir in title or other beneficiary within a period of 50 years after the death of the author, unless the author had expressly stated not to publish it. In the absence of an heir in title or other beneficiary, the said right will be exercised by the owner of the original of the work.

In the case of a work of an unknown author, the copyright, except the right of authorship, shall be exercised by the owner of the original of the work. Where the author has been identified, the copyright shall be exercised by the author or the heir in title.

There is no legislation in China that explicitly clarifies whether the moral rights can be waived or assigned or not. In general, it is thought that the moral rights cannot be waived or assigned, however.