A few years ago, our China IP lawyers worked with a U.S.-based children’s educational software company whose software was being sold on various online platforms. The U.S. company came to our law firm confident that their copyright was valid internationally. Though right about this, they faced a harsh reality check: without a registered copyright in China, they struggled to enforce their rights. It took extensive legal battles and considerable time before they could take any action against the infringers, resulting in significant revenue loss and damage to their brand.
This incident underscores a critical aspect of business in China that many companies overlook: Copyright is an essential part of any China IP protection plan, but registering these rights in China is a step too often missed. One common misconception is that copyright registration in China is optional, because you don’t have to file anything to have a valid copyright in China.
In this post, we debunk this myth and explore the importance of copyright registration for strong China IP protection.
Copyright Registration in China
Copyright is an essential part of any China IP protection plan, but many companies fail to take an extremely important step: registering their copyrights in China. One of the most common misconceptions is that copyright registration in China is optional, because you do not have to file anything to have a valid copyright in China.
The Difference Between a Valid and an Enforceable Chinese Copyright
Like so many China misconceptions, this one has an element of truth to it. As a signatory to the Berne Convention, China has the same basic definition of what is protected under copyright as the 171 other Convention parties: an original creative work that exists in a fixed medium. A “creative work” can be anything from a video game, song, or toy to a database, map, or product design. A songwriter in New York, a programmer in Auckland, a furniture designer in Milan: all of their creative works are protected by copyright at the time they complete the work in question, and that copyright is just as valid in China as it is in the U.S., New Zealand, and Italy.
But there is a big difference between having a valid copyright in China and having an enforceable copyright in China.
Chinese Copyright Registration Proves You Own Your Copyright
In most situations, the key issue is one of proof. A copyright registration in China is presumptive evidence of ownership, and in some situations, it is the only acceptable evidence. Whether you are trying to take down an infringing video on Youku Tudou or an infringing photograph of your product on Alibaba, have counterfeit dolls seized at China Customs, or sue a publisher who is selling your book without permission, a certificate issued by the Copyright Protection Centre of China (CPCC) is the easiest and most efficient way to enforce your rights. And copyright registration is almost always a prerequisite to getting royalty payments from Chinese entities that have licensed copyrighted material.
Proving China Copyright Ownership Without a China Copyright Registration
Meanwhile, if you are trying to prove ownership of a creative work and you do not have a Chinese copyright registration, it can take weeks or even months – and that assumes a clear, well-documented chain of title. But if you are at the point where you need to enforce a copyright to stop infringement, it’s almost certainly going to be time sensitive.
Streamlining Copyright Proof with a China Copyright Certificate
China’s copyright registration process is fairly straightforward as it does not involve substantive examination at the time of registration, but it usually takes a couple months to receive a copyright certificate. When our clients have China copyright certificates, we usually can secure takedowns of infringing materials relatively quickly and easily. But without a copyright certificate, takedowns take considerably longer and sometimes they do not happen at all.
But when you’re trying to enforce your rights, how do you prove what you have registered? A copyright registration certificate merely identifies a creative work by its name and the type of work.
If you have registered a work that is typically identified by name (e.g., a movie, a song, or a book), a copyright registration certificate may be sufficient for a takedown request on e-commerce sites. But if you’ve registered something that is less identifiable by name (e.g., a doll, a graphic design, or a work of art), a certificate alone probably won’t be enough.
Anti-infringement teams are not going to conduct independent research on your products or Google your company. All they care about are government-issued documents showing IP ownership. Consider how straightforward the infringement analysis is when based on a trademark certificate: (1) does the allegedly infringing item bear the mark listed on the certificate, and (2) is the item similar to the goods listed on the certificate? You need to make it that easy when you’re requesting action based on a copyright infringement.
Happily, there is a solution.
The Value of an Authenticated Search Result
What some e-commerce sites request – and what China Customs requires – is an “authenticated search result” for each copyright at issue. This search result, duly stamped by the Copyright Protection Center of China (CPCC), includes both the copyright registration certificate and images of the creative work. You can’t request it until your copyright has been registered, but for certain works — especially works that are easily identified upon visual inspection but not by name — it’s essential.
Register Your Copyrightable IP in China
If you have copyrightable IP you want to protect in China, register it with the CPCC. Now.
