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China (PRC)

Legal background

Scope and duration of copyrighti

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention? YES
Except for works of applied art, the term of which is as long as artistic works.		  
Must a work be fixed in some material form before copyright attaches? NO
Oral works are protected.		  
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power? YES
Copyright holders are subject to the Anti-Monopoly Law.		  
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? YES
Subject to the relevant provisions of laws and regulations.		  
Does the compilation of a database of non-original material fall outside the scope of copyright? YES
 
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them? YES
But this is not strictly observed in practice.		  

Freedoms to access and use

By Home UsersIs time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? YES
As far as for private use.		  
 Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? YES
 
 Can works be communicated to a limited public (for example, family and friends) without infringing copyright? YES
As far as they are not communicated to the public.		  
 In any other cases may reproductions be made on a private, noncommercial basis, for example through peer-to-peer file sharing? LIMITED
For the purpose of private study, research or entertainment. But whether P2P is permitted private use is subject to different judicial interpretations.		  
 Are blank media and computer hardware sold free of compulsory levies collected for copyright owners? YES
 
For EducationIs reproduction permitted for the purposes of research or study? YES
 
 Is it permissible to copy an entire work and to make any number of copies? NO
Only for limited copies and a portion of a work.		  
 Does any such research and study provision cover distance and online education? YES
 
 May translations of works be made for educational purposes? YES
 
 May works be reproduced and published by educational institutions in connection with systematic instructional activities? YES
 
OnlineIs hyperlinking to a Web site allowed without permission of the site's owner? YES
 
 Are temporary or transient copies, incidental to a lawful use, excepted from copyright? YES
 
 Is caching of Web content permitted? YES
 
 Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances? YES
 
 Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material? NO
ISPs are obliged to filter or monitor their system to prevent copyright infringement.		  
 Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs? NO
Disclosure to right owners is a prerequisite to safe harbour protection.		  
By content creatorsCan a recording or performance of a musical work be made under compulsory license from the composer? YES
 
 Can copyright works be non-commercially remixed or mashed up into new works? NO
Both the adaptation right and moral right are involved.		  
 May computer softwarei be reverse engineered for the purpose of creating interoperable software? YES
 
 Is the incidental inclusion of a work in other material permitted? LIMITED
It is not clear. There is no relevant court decision yet.		  
 Is there are copyright exception for parody or satire? NO
 
 Is there a copyright exception for professional advice? YES
 
 Do creators who license their work retain the moral right of attribution? YES
 
 Does copyright law contain provisions regarding traditional knowledge/folklore? YES
A detailed regulation is being drafted by the State Administration.		  
By the pressIs there a copyright exception for the news of the day? YES
 
 May copyright material be reproduced for the purposes of review and criticism? YES
 
 May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose? YES
 
 May quotations be used for any purpose? NO
For criticism or comment only.		  
By LibrariesMay libraries copy works that cannot reasonably be obtained commercially? YES
 
 May libraries copy works for users for the purpose of research or study? NO
 
 Is the reproduction of unpublished works by libraries permitted? NO
 
 Are libraries allowed to make preservation or archive copies of materials in their collections? YES
 
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? LIMITED
For the visually impaired only.		  
In public affairsAre laws excluded from copyright? YES
 
 Are other governmental works excluded from copyright? YES
 
 Is there a copyright exception for use of material in judicial proceedings? YES
 

Freedoms to share and transfer

May copyright works be freely offered for commercial rental? LIMITED
Except for software and cinematographic works.		  
May a person in lawfully possession of a copyright work distribute, communicate or make it available without reference to the copyright owner? NO
 
May works be dedicated to the public domaini without legal formality besides an overt act of relinquishment? YES
 
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain? NO
 
Is parallel importation permitted? LIMITED
Not clear. The exhaustion of the distribution right may be subject to different judicial interpretation.		  
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy? NO
 
Are there incentives for the use, production and dissemination of open accessi material (e.g. textbooks) within copyright law or elsewhere in national law / policy? NO
 

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? 7 years imprisonment  
What is the maximum penalty for copyright infringement for a corporation? Fines and up to 7 imprisonment for the person in charge or the corporation or the person who is directly responsible for infringement  
Is registration of copyright required before it may be enforced in court? NO
 
Is there a distinction between personal versus (large-scale) commercial use? YES
 
Is the creation or distribution of devices that can circumvent technological protection measures (TPMi) permitted, where such devices can be used for purposes that would not infringe copyright? NO
 
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright? YES
 
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material? NO
 
Are the operations of copyright collectives subject to public oversight? NO
 
Is any portion of the revenues of copyright collectives set aside for benevolent purposes? NO
 
Are copyright collectives precluded from using their revenues for political lobbying? NO
 
Is copyright enforced only through mechanisms provided by law, rather than through private intermediaries? NO
 
Is the enforcement of copyright restricted to civil or private law, rather than attracting criminal sanctions? NO
 
Are damages for copyright infringement based on the loss sustained, rather than by a preestablished or statutory damages award? YES
 
Is there provision to penalise the wrongful allegation of copyright infringement? NO
 

Conclusions

Chinese copyright law offers high level copyright protection for right owners. In certain aspects, Chinese copyright protection is higher or more rigid than what is required by international treaties. Overall the high level protection is not consumer-friendly and fails to contemplate the international trend of open access to copyright works.

On the other hand, the range of exceptions specifically geared towards consumers is quite broad, including exceptions for the translation of works into minority languages, for adaptation of works into Braille, and for free-of-charge live performances.  Further, much Chinese copyright law is not strictly enforced. Of course, the ideal would be for a more balanced law to be enforced more consistently.

It should be noted that there are many other legal restrictions, beyond IP, on contents and dissemination of information in China. For example, the Chinese General Administration of Broadcasts, Films and Televisions issued on April 1 a new regulation requiring that all the videos communicated or shared on any website be licensed by the authority, irrespective of whether a website has acquired the copyright license.

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