Ownership and transferEligible owners
Who is the owner of a copyrighted work?
The initial owner is the author, which may be a natural person, a legal entity or an organisation. The author’s successors or assignees may also own the property rights to a work. However, personal rights can only belong to the author because they cannot be assigned or inherited (see question 26 for exceptions).
If the identity of the author of a work is unclear, the legal bearer of the original work shall have the right to exercise all copyright claims, except the author’s right of acknowledgement. Upon establishment of the author’s identity, the author or his or her successor shall exercise the copyright claims.Employee and contractor work
May an employer own a copyrighted work made by an employee?
Yes. Although, not all works made by an employee during the period of employment are owned by the employer. Usually, a work created by an employee in the fulfilment of tasks assigned to him or her by his or her employer is a work created in the course of employment. The copyright in such work shall be enjoyed by the author. However, the employer shall have priority to exploit the work within the scope of its professional activities.
However, in any of the following cases, the author of a work created in the course of employment shall enjoy the right of authorship, while the employer shall enjoy the other rights included in the copyright and may reward the author:
- engineering designs and product designs drawings, maps, computer software and other works which are created in the course of employment, mainly with the material and technical resources of the employer and for which the employer bears responsibility. In this scenario, no written contract is required; and
- works created in the course of employment for which copyright is vested in the employer in accordance with laws, administrative regulations or contracts.
May a hiring party own a copyrighted work made by an independent contractor?
Yes. Normally, the ownership of the copyright in a commissioned work shall be agreed upon in a contract between the commissioning and the commissioned parties. In the absence of such a contract or an explicit agreement in such a contract, the copyright in the work shall belong to the commissioned party.Joint and collective ownership
May a copyrighted work be co-owned?
Yes. Where a work is created jointly by two or more authors, the copyright in the work shall be jointly owned by the co-authors. No co-authorship may be claimed by anyone who has not participated in the creation of the work.
Where a work of joint authorship can be separated into parts and exploited separately, each co-author may be entitled to independent copyright in the part that he or she created, provided that the exercise of such copyright does not prejudice the copyright of the joint work as a whole.Transfer of rights
May rights be transferred?
Property rights may be transferred in full or in part with a written contract.Licensing
May rights be licensed?
Yes. Anyone who exploits another person’s work must conclude a copyright licensing contract with the copyright owner, except where no permission is required.
Are there compulsory licences? What are they?
Yes. A user might defend its use by claiming a compulsory licence during certain situations. If such situations do exist, then the user will not need the author’s permission but must remunerate the author.
There are five kinds of statutory licences specified in the Copyright Law and two in the Regulation on Protection of the Right to Network Dissemination of Information:
- a newspaper or periodical publisher reprints work that is published by other newspapers or periodicals, prints an abstract of it, or prints it as reference material;
- a producer of sound recordings, in making a sound recording, exploits musical work of which a lawful sound recording has already been made;
- a radio or television station broadcasts a published work;
- a radio or television station broadcasts a published sound recording;
- a short extract from published works is compiled in textbooks for a nine-year compulsory education syllabus and national education planning;
- a short extract from published works is used to produce courseware for a nine-year compulsory education syllabus or national education planning through an information network; and
- for the purpose of aiding poverty stricken areas, a published work is available, free of charge, to the public in rural areas through the information network.
Are licences administered by performing rights societies? How?
Yes. Licences for various types of copyright and related rights would be administered by the five performing rights societies, namely:
- the Music Copyright Society of China;
- the China Audio-Video Copyright Association;
- the China Written Works Copyright Society;
- Images Copyright Society of China; and
- the China Film Copyright Association.
These societies’ administrative systems for licensing are similar. The Music Copyright Society of China, for example, would negotiate with potential users of registered musical works on rates of royalties for the purpose of collective administration then issue licences to the users. Music Copyright Society of China must collect royalties from users to remunerate the music copyright owners. The Music Copyright Society of China would also take legal action against music copyright infringers, if necessary.Termination
Is there any provision for the termination of transfers of rights?
The Copyright Law does not stipulate any right of termination, so any termination must be contractually agreed in writing. Normally, without any termination clause in a transfer contract, the duration of the transfer is equal to the remaining protective period of the rights.Recordal
Can documents evidencing transfers and other transactions be recorded with a government agency?
Yes. The Copyright Protection Centre of China can provide such services. The applicant must first complete an online application form and then submit the materials requested for recording to the Centre personally or through its agent. Materials include the application form, the transfer contract, the identification certificate of the applicant, the registration certificate of the rights and the search results for the registration of the rights, if available. After the application fee is paid, the applicant receives a receipt. The process usually lasts 10 working days during which time the applicant may be requested to supply further supporting documents. After recording is complete, details of the transfer record may be found online and the applicant should receive a certificate of the record within three working days.