RESTRICTED WORLD TRADE ORGANIZATION
ORGANISATION MONDIALE DU COMMERCE
ORGANIZACIÓN MUNDIAL DEL COMERCIOWT/ACC/CHN/29
18 July 2000
(00-2937)
Working Party on the
Accession of ChinaOriginal:  English/
anglais/
inglés
COMMUNICATION FROM CHINA
In preparation for the Working Party meeting to be held on 19-27 July 2000, the Chinese
delegation has submitted the following documentation on TRIPS.1
Groupe de travail de
l'accession de la Chine
COMMUNICATION DE LA CHINE
En vue de la réunion du Groupe de travail qui aura lieu du 19 au 27 juillet 2000, la délégation
chinoise a communiqué la documentation ci-après concernant les ADPIC.1
Grupo de Trabajo sobre la
Adhesión de China
COMUNICACIÓN DE CHINA
Para preparar la reunión del Grupo de Trabajo que se celebrará del 19 al 27 de julio de 2000,
la delegación china ha presentado la siguiente documentación sobre los ADPIC.1
                                                     
1 In English only./En anglais seulement./En inglés solamente.WT/ACC/CHN/29
Page 2
Report on the Contrast of the Trademark Law and TRIPS
TRIPS Trademark Law of China
Article 3:
Each member is required to accord to the nationals
of other members national treatmentTrademark Law
Article 9:Where a foreigner or foreign enterprise applies for
trademark registration in China, the matter shall be
handled in accordance with any agreement concludedbetween the country to which the applicant belongs andthe People’s Republic of China, or any international treatyto which both countries are parties, or on the basis of theprinciple of reciprocity.
Article 15: Protectable Subject Matter1. Definition of trademark. The lowest
standard is set as “visually perceptible”i.e. to include combinations of colours andvolumetric trademark. But exclude theMembers’ mandatory obligation to
register smell and acoustics trademark.
3. Actual use of a trademark shall not be a
condition for filing an application forregistration.
4. The nature of the goods or services to
which a trademark is to be applied shall inno case form an obstacle to registration of
the trademark.
5. Members shall publish each trademark
either before it is registered or promptlyafter it is registered and shall afford a
reasonable opportunity for petitions to
cancel the registration. In addition,Members may afford an opportunity forthe registration of a trademark to beopposed.Trademark Law
Article 7:Any word or design, or combination thereof, used as atrademark, shall have distinctive characteristics so as tofacilitate identification.
Remarks: The Law in force does not provide that
combination of colours or volumetric trademark couldbe registered as trademark. But it is underconsideration of the draft Trademark law underrevision.
Trademark Law
Article 4: Any enterprise, institutions or self-employedindustrialist or businessman that needs to acquire the rightto exclusive use of a trademark for the goods it or heproduces, manufactures, processes, selects or markets shall
file an application for registration of goods trademark with
the Trademark Office
The law in force does not h ave prohibitive rules. Any
goods and services listed in the InternationalClassification can register trademarks.
Trademark Law
Article 16: When an application has been made to registera trademark that is in conformity with the relevantprovisions of the Law, the Trademark Office shall make apreliminary examination and approval of that trademark
and shall publicly announce it.
Article 19: Any person may file an opposition to a
trademark which has been given preliminary examinationand approval, within three months from the day it was
publicly announced. If no opposition is filed, or if it is
determined that the opposition is not justified, registrationshall be granted, a trademark registration certificate shallbe issued and trademark shall be publicly announced. If itis determined that the opposition is justified, noregistration shall be granted.
Article 27: If a registered trademark contravenes the
provisions of Article 8 of this Law, or the registrationthereof is obtained through fraudulent or other unfairWT/ACC/CHN/29
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TRIPS Trademark Law of China
means, the Trademark Office shall cancel such registered
trademark; other entities or individuals may request theTrademark Review and Adjudication Board to make a
ruling canceling such registered trademark.
If a dispute arises over a registered trademark, with theexception of the circumstances specified in the precedingparagraph, the disputant may, within one year from thedate the trademark is registered after due verification,apply to the Trademark Review and Adjudication Board
for a ruling.
Article 16: Rights Conferred
1. The owner of a registered trademark shall
have the exclusive right to prevent allthird parties not having the owner’sconsent from using in the course of trade
identical or similar signs for identical or
similar goods or services.
2. Article 6bis of the Paris Convention
(1967) shall apply, mutatis mutandis, toservices. In determining whether atrademark is well known, Members shalltake account of the knowledge of the
trademark in the relevant sector of the
public, including knowledge in theMember concerned which has beenobtained as a result of the promotion ofthe trademark.
3. Protection of a registered well-known
trademark shall be extended to goods orservices which are not similar to those inrespect of which a trademark is registered.Trademark Law
Article 38: Any of the following acts shall be aninfringement of the right to exclusive use of a registeredtrademark:(1) using a trademark which is identical with or
similar to the registered trademark on the same
kind of goods or similar goods without a licensefrom the owner of that registered trademark;
Rules for the Implementation of the Trademark Law of the
People’s Republic of China
Article 41: Any of the following acts shall be an
infringement of the right to exclusive use of a registeredtrademark referred to in Article 38 (4) of the TrademarkLaw:
(1) omitted
(2) Use of words, designs identical or similar to the
registered trademark of others as name orpackage of the same kind of goods or similargoods, which is enough to cause confusion;
Trademark Law
Article 4: Provisions regarding the goods trademark in thisLaw shall be applicable to service trademarks.Provisional Regulation Concerning the Determination andAdministration of Well-known Marks (Order No. 56 of theState Administration for Industry and Commerce)
Remarks: At present the protection of well-known
marks is implemented through administrativeregulations and has been written in the draft
Trademark Law under revision.
Article 17: Exceptions.Members may provide limited exceptions to theIt has already been written in the draft Trademark
Law under revision.WT/ACC/CHN/29
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TRIPS Trademark Law of China
rights conferred by a trademark, such as fair use of
descriptive terms, provided that such exceptionstake account of the legitimate interests of the owner
of the trademark and of third parties.
Article 18: Term of Protection
Initial registration, and each renewal of registrationof a trademark shall be for a term of no less thanseven years. The registration of a trademark shallbe renewable indefinitely.Trademark Law
Article 23: The period of validity of a registered trademarkshall be ten years, counted from the day the registration isapproved.
Article 24(2): The period of validity for each renewal of
registration shall be ten years.
Article 19: Requirement of Use1. If use is required to maintain a
registration, the registration may becanceled only after an uninterrupted
period of at least three years of non-use,
unless valid reasons based on theexistence of obstacles to such use areshown by the trademark owner.Circumstances arising independently ofthe will of the owner of the trademark
which constitute an obstacle to the use of
the trademark, such as import restrictionson or other government requirements forgoods or services protected by thetrademark, shall be recognized as validreasons for non-use.
2. When subject to the control of its owner,
use of a trademark by another person shallbe recognized as use of the trademark forthe purpose of maintaining theregistration.Trademark Law
Article 30: In the event of any of the following actsconcerning the use of a registered trademark, theTrademark Office shall order rectification of the situation
within a specified period or shall revoke the registered
trademark:if the registered trademark has not been used for threeconsecutive years.
Valid reasons for non-use are not explicitly provided.
No contrary stipulations.
Article 20: Other Requirements
The use of a trademark in the course of trade shallnot be unjustifiably encumbered by specialrequirements, such as use with another trademark,use in a special form or use in a manner detrimentalto its capability to distinguish the goods or services
of one undertaking from those of other
undertakings. This will not preclude a requirementprescribing the use of the trademark identifying theundertaking producing the goods or services alongwith, but without linking it to, the trademark
distinguishing the specific goods or services in
question of that undertaking.Trademark Law
Article 7: Any word or design, or combination thereof,used as a trademark, shall have distinctive characteristicsso as to facilitate identification. Wherever a registeredtrademark is used, it shall bear the words “Registeredtrademark” or a sign indicating that it is registered.
Remarks: The requirement that a registered
trademark shall bear the words “Registeredtrademark” is intended to be deleted in the draft lawunder revision.
Article 21: Licensing and AssignmentMembers may determine conditions on thelicensing and assignment of trademarks, it beingunderstood that the compulsory licensing oftrademarks shall not be permitted and that the
owner of a registered trademark shall have the right
to assign the trademark with or without the transferof the business to which the trademark belongs.Trademark Law
Article 25: When a registered trademark is to be assigned,the assignor and the assignee shall jointly file anapplication with the Trademark Office. The assignee shallguarantee the quality of the goods on which the registered
trademark is to be used. After the assignment of a
registered trademark has been approved, it shall bepublicly announced.WT/ACC/CHN/29
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TRIPS Trademark Law of China
Article 26: a trademark registrant may, by concluding a
trademark licensing contract, authorize another person to
use its registered trademark. The licensor shall supervise
the quality of the goods on which the license uses thelicensor’s registered trademark, and the licensee shallguarantee the quality of the goods on which the registeredtrademark is to be used.
Article 22: Protection of Geographical Indications Trademark Law
Article 8 (10): The following words or designs may not be
used in trademarks:  (10) Geographic names ofadministrative divisions at or above the county level orforeign geographic names known to the public shall not beused as trademarks, with the exception, however, of thosegeographic names having other meanings. Registered
trademarks in which geographic names are used shall
remain valid.
Article 34: In the event of any of the following acts
concerning the use of an unregistered trademark, the localadministrative department for industry and commerce shall
stop the use of the trademark, order rectification of the
situation within a specified period and may, in addition,circulate a notice on the matter or impose a fine: (2) if thetrademark violates the provisions of Article 8 of this Law.
Rules for the Implementation of the Trademark Law of
P.R.CArticle 6: Pursuant to the stipulation of Article 3 of theTrademark Law, the registered collective trademark andcertified trademark ratified by the Trademark Office shallbe protected by law.
Remarks: Stipulations co ncerning the protection of
relevant geographical indicati ons have been written in
the draft law under revision.
Article 23: Addition Protection for GeographicalIndications for Wines and SpiritsIt has been written in the draft law under revision.
Article 24: International Negotiations, ExceptionsWT/ACC/CHN/29
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IMPLEMENTATION OF THE AGREEMENT ON
TRADE-RELATED ASPECTS OF IN TELLECTUAL PROPERTY RIGHTS
THE PEOPLE'S REPUBLIC OF CHINA
13 JULY 2000
Part 2
TRIPS AGREEMENT TRADEMARK LAW OF CHINA
Article 3
Each member is required to accord to the
nationals of other members national
treatmentArticle 9
Where a foreigner or foreign en terprise applies for trademark
registration in China, the matter shall be handled in accordance
with any agreement concluded between the country to whichthe applicant belongs and the People’s Republic of China, orany international treaty to whic h both countries are parties, or
on the basis of the principle of reciprocity.
Article 15 Protectable Subject Matter
1. Definition of trademark. The lowest
standard is set as "visually perceptible" i.e.to include combinations of colours andvolumetric trademark. But exclude theMembers' mandatory obligation to registersmell and acoustics trademark.Article 7
Any word or design, or combination thereof, used as a
trademark, shall have distinctive characteristics so as tofacilitate identification.
Remarks: The Law in force does not provide that
combination of colours or volumetric trademark could be
registered as trademark. But it is under consideration of
the draft Trademark law under revision.
Article 15 Protectable Subject Matter
3. Actual use of a trademark shall not be a
condition for filing an application for
registration.Article 4
Any enterprise, institution or self-employed industrialist or
businessman that needs to acquire the right to exclusive use of
a trademark for the goods it or he produces, manufactures,
processes, selects or markets shall file an application forregistration of goods trademark with the Trademark Office
Article 15 Protectable Subject Matter
4. The nature of the goods or services to
which a trademark is to be applied shall inno case form an obstacle to registration ofthe trademark.The law in force does not have prohibitive rules. Any goods
and services listed in the Int ernational Classification can
register trademarks.WT/ACC/CHN/29
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TRIPS AGREEMENT TRADEMARK LAW OF CHINA
Article 15 Protectable Subject Matter
5. Members shall publish each trademark
either before it is registered or promptlyafter it is registered and shall afford a
reasonable opportunity for petitions to
cancel the registration. In addition,Members may afford an opportunity for theregistration of a trademark to be opposed.Article 16
When an application has been made to register a trademark that
is in conformity with the relevant provisions of the Law, theTrademark Office shall make a preliminary examination and
approval of that trademark and shall publicly announce it.
Article 19
Any person may file an opposition to a trademark which has
been given preliminary examination and approval, within threemonths from the day it was publicly announced. If no
opposition is filed, or if it is determined that the opposition is
not justified, registration shall be granted, a trademarkregistration certificate shall be issued and trademark shall bepublicly announced. If it is determined that the opposition isjustified, no registration shall be granted.
Article 27
If a registered trademark contravenes the provisions of Article
8 of this Law, or the registration thereof is obtained throughfraudulent or other unfair means, the Trademark Office shallcancel such registered trademark; other entities or individualsmay request the Trademark Review and Adjudication Board to
make a ruling canceling such registered trademark.
If a dispute arises over a registered trademark, with theexception of the circumstances specified in the precedingparagraph, the disputant may, within one year from the date thetrademark is registered after due verification, apply to the
Trademark Review and Adjudication Board for a ruling.
Article 16 Rights Conferred
1. The owner of a registered trademark shall
have the exclusive right to prevent all thirdparties not having the owner's consent fromusing in the course of trade identical orsimilar signs for identical or similar goods
or services.Article 38
Any of the following acts shall be an infringement of the right
to exclusive use of a registered trademark:(1)using a trademark which is identical with or similar to theregistered trademark on the same kind of goods or similargoods without a license from the owner of that registered
trademark;
Rules for the Implementation of the Trademark Law of the
People’s Republic of China
Article 41
Any of the following acts shall be an infringement of the right
to exclusive use of a registered  trademark referred to in Article
38 (4) of the Trademark Law:(1)omitted(2)Use of words, designs identical or similar to the registered
trademark of others as name or package of the same kind of
goods or similar goods, which is enough to cause confusion;WT/ACC/CHN/29
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TRIPS AGREEMENT TRADEMARK LAW OF CHINA
Article 16 Rights Conferred
2. Article 6bis of the Paris Convention
(1967) shall apply, mutatis mutandis , to
services. In determining whether a
trademark is well known, Members shall
take account of the knowledge of thetrademark in the relevant sector of thepublic, including knowledge in the Memberconcerned which has been obtained as aresult of the promotion of the trademark.Article 4
Provisions regarding the goods trademark in this Law shall be
applicable to service trademarks.Provisional Regulation Concerning the Determination and
Administration of Well-known Marks (Decree No. 56 of the
State Administration for Industry and Commerce)
Article 16 Rights Conferred
3. Protection of a registered well-known
trademark shall be extended to goods orservices which are not similar to those inrespect of which a trademark is registered.Remarks: At present the protection of well-known marks is
implemented through administrative regulations and has
been written in the draft Trademark Law under revision.
Article 17 Exceptions
Members may provide limited exceptions to
the rights conferred by a trademark, such asfair use of descriptive terms, provided thatsuch exceptions take account of thelegitimate interests of the owner of thetrademark and of third parties.It has already been written in the draft Trademark Law
under revision.
Article 18 Term of Protection
Initial registration, and each renewal of
registration of a trademark shall be for aterm of no less than seven years. Theregistration of a trademark shall berenewable indefinitely.Article 23
The period of validity of a registered trademark shall be ten
years, counted from the day the registration is approved.
Article 24(2)
The period of validity for each renewal of registration shall be
ten years.
Article 19 Requirement of Use
1. If use is required to maintain a
registration, the registration may becanceled only after an uninterrupted periodof at least three years of non-use, unless
valid reasons based on the existence of
obstacles to such use are shown by thetrademark owner. Circumstances arisingindependently of the will of the owner of thetrademark which constitute an obstacle tothe use of the trademark, such as import
restrictions on or other government
requirements for goods or services protectedby the trademark, shall be recognized asvalid reasons for non-use.Article 30
In the event of any of the following acts concerning the use of a
registered trademark, the Trademark Office shall orderrectification of the situation within a specified period or shallrevoke the registered trademark:
(4)if the registered trademark has not been used for three
consecutive years.
Valid reasons for non-use are not explicitly provided.
Article 19 Requirement of Use
2. When subject to the control of its owner,
use of a trademark by another person shall
be recognized as use of the trademark forthe purpose of maintaining the registration.No contrary stipulations.WT/ACC/CHN/29
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TRIPS AGREEMENT TRADEMARK LAW OF CHINA
Article 20 Other Requirements
The use of a trademark in the course of
trade shall not be unjustifiably encumberedby special requirements, such as use with
another trademark, use in a special form or
use in a manner detrimental to its capabilityto distinguish the goods or services of oneundertaking from those of otherundertakings. This will not preclude arequirement prescribing the use of the
trademark identifying the undertaking
producing the goods or services along with,but without linking it to, the trademarkdistinguishing the specific goods or servicesin question of that undertaking.Article 7
Any word or design, or combination thereof, used as a
trademark, shall have distinctive characteristics so as tofacilitate identification. Wherever a registered trademark is
used, it shall bear the words “R egistered trademark” or a sign
indicating that it is registered.
Remarks: The requirement that a registered trademark
shall bear the words “Registered trademark” is intended tobe deleted in the draft law under revision.
Article 21 Licensing and Assignment
Members may determine conditions on the
licensing and assignment of trademarks, itbeing understood that the compulsorylicensing of trademarks shall not bepermitted and that the owner of a registeredtrademark shall have the right to assign the
trademark with or without the transfer of the
business to which the trademark belongs.Article 25
When a registered trademark is to be assigned, the assignor and
the assignee shall jointly file an application with the TrademarkOffice. The assignee shall guarantee the quality of the goods onwhich the registered trademark is to be used. After theassignment of a registered trademark has been approved, itshall be publicly announced.
Article 26
A trademark registrant may, by concluding a trademark
licensing contract, authorize another person to use its registeredtrademark. The licensor shall supervise the quality of the goodson which the license uses the licensor’s registered trademark,
and the licensee shall guarantee the quality of the goods on
which the registered trademark is to be used.WT/ACC/CHN/29
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TRIPS AGREEMENT TRADEMARK LAW OF CHINA
Article 22
Protection of Geographical IndicationsArticle 8 (10)
The following words or designs may not be used in trademarks:
(10) Geographic names of administrative divisions at or abovethe county level or foreign geographic names known to the
public shall not be used as trademarks, with the exception,
however, of those geographic names having other meanings.Registered trademarks in which geographic names are usedshall remain valid.
Article 34
In the event of any of the following acts concerning the use of
an unregistered trademark, the local administrative departmentfor industry and commerce shall stop the use of the trademark,order rectification of the situation within a specified period andmay, in addition, circulate a notice on the matter or impose afine: (2) if the trademark violates the provisions of Article 8 of
this Law.
Rules for the Implementation of the Trademark Law of
P.R.C.Article 6
Pursuant to the stipulation of Article 3 of the Trademark Law,
the registered collective trad emark and certified trademark
ratified by the Trademark Office shall be protected by law.
Remarks: Stipulations co ncerning the protection of
relevant geographical indication s have been written in the
draft law under revision.
Article 23
Addition Protection for Geographical
Indications for Wines and SpiritsIt has been written in the draft law under revision.
Article 24
International Negotiations, Exceptions
(to be continued)WT/ACC/CHN/29
Page 11IMPLEMENTATION OF THE AGREEMENT ON
TRADE-RELATED ASPECTS OF IN TELLECTUAL PROPERTY RIGHTS
THE PEOPLE'S REPUBLIC OF CHINA
13 JULY 2000
Part 3
TRIPS AGREEMENT COPYRIGHT LAWIMPLEMENTING
REGULATION THE
COPYRIGHT LAWREGULATION ON
COMPUTER SOFTWARE
PROTECTIONINTERNATIONAL
COPYRIGHT TREATIES
IMPLEMENTING RULES
Article 3 National Treatment
l. Each Member shall accord to
the nationals of other Members
treatment no less favorable thanthat it accords to its ownnationals with regard to theprotection of intellectualProperty, subject to the
exceptions already provided in,
respectively, the ParisConvention (1967), the BerneConvention (1971), the RomeConvention or the Treaty onintellectual Property in Respect
of Integrated Circuits. In respect
of performers, producers ofphonograms and broadcastingorganizations, this obligationonly applies in respect of the
rights provided under this
Agreement. Any Memberavailing itself of the possibilitiesprovided in Article 6 of theBerne Convention (1971) orparagraph 1 (b) of Article 16 of
the Rome Convention shall make
a notification as foreseen inthose provisions to the Councilfor TRIPS.Article 2
Works of Chinese citizens, legal
entities or entities without legal
personality, whether publishedor not, shall enjoy copyright inaccordance with this Law.Works of foreigners firstpublished in the territory of the
People’s Republic of China shall
enjoy copyright in accordancewith this Law.Any work of a foreignerpublished outside the territory ofthe People’s Republic of China
which is eligible to enjoy
copyright under an agreementconcluded between the countryto which the foreigner belongsand China, or under an
international treaty to which both
countries are parties, shall beprotected in accordance with thisLaw.Article 46
Performance by foreign
performers taking place in the
territory of China shall beprotected by the Law.
Article 47
Audio and video recordings
produced and distributed in the
territory of China by foreign
producers shall be protected bythe Law.Article 6
In respect of piece software
developed by a Chinese citizen
or entity, regardless of whetheror where the said software hasbeen made public, he or it shallenjoy the copyright inaccordance with these
Regulations.
Where a piece of softwaredeveloped by a foreigner is firstmade public in China, he shallenjoy the copyright inaccordance with these
Regulations.
The copyright of the software offoreigner made public outsideChina shall be protected by theseRegulations in accordance with
agreements concluded between
his country and China withinternational conventionsacceded to by his country andChina.Article 2
Protection of foreign works shall
be carried out through
application of the Copyright Lawof the People' s Republic ofChina (hereinafter referred to as"the Copyright Law"), theImplementing Regulations of the
Copyright Law, the Regulations
on Computer SoftwareProtection and these Rules.
Article 4
Foreign works mentioned in
these Rules shall include:
(1) works of which the author or
one of the co-authors or the otherowner of copyright or one of theco-owners of copyright is anational or a permanent resident
of a country party to
international copyright treaties;(2) works of which the author isnot a national or a permanentresident of a country party tointernational copyright treaties
but which have been first
published or publishedsimultaneously in a countryparty to international copyrighttreaties;(3)works created by others on
commission, of which the owner
of copyright or one of theWT/ACC/CHN/29
Page 12 TRIPS AGREEMENT COPYRIGHT LAWIMPLEMENTING
REGULATION THE
COPYRIGHT LAWREGULATION ON
COMPUTER SOFTWARE
PROTECTIONINTERNATIONAL
COPYRIGHT TREATIES
IMPLEMENTING RULES
co-owners of copyright, byvirtue of a contract . is a jointventure enterprise. a cooperativeenterprise, or an enterprise withsole foreign investment .
Article 3
"International copyright treaties"
mentioned in these Rules shallrefer to the Berne Convention forthe Protection of Literary and
Artistic Works (hereinafter
referred to as "the BerneConvention") to which (thePeople's Republic of China(hereinafter referred to as"China") is a party and bilateral
agreements relating to copyright
which China has concluded withforeign countries.
Article 9 Relation  to the Berne
Convention
1. Members shall comply with
Articles 1 through 21 of the
Berne Convention (1971) and
the Appendix there to. However,Members shall not have rights orobligations under this Agreementin respect of the rights conferred
under Article 6 bis of that
Convention or of the rightsderived there from.On October 15,1992 Berne
Convention (1971) came in forcein China.Article 3
"International copyright treaties"
mentioned in these Rules shallrefer to the Berne Convention for
the Protection of Literary an
Artistic Works (hereinafterreferred to as "the BerneConvention") to which thePeople’s Republic of China
(hereinafter referred to as
"China") is a party and bilateralagreements relating to copyrightwhich China has concluded withforeign countries.
Article 10 Computer Programsand Compilations of Data
1 . Computer programs, whether
in source or object code, shall beprotected as literary works underthe Berne Convention (1971 ) .2. Compilations of data or othermaterial, whether in machineArticle 3
For the purposes of this law, the
term "works" includes works of
literature, art, natural science,social science, engineeringtechnology and the like whichare expressed in the followingforms:Article 5
(11)compilation is the creation
of a work by assembling a
number of selected preexistingworks, in whole or in part,according to an arrangementdesigned for a specific purpose;Article 24
The registration of the copyright
of a piece of software with the
organ for software registrationand administration is the premiseto submitting a request for theadministrative intervention in, orto instituting legal proceedingsArticle 7
Foreign computer programs shall
be protected as literary works,
shall not be subject toregistration and shall enjoy aterm of protection of 50 yearscommencing from the end of theyear of their first publication.WT/ACC/CHN/29
Page 13TRIPS AGREEMENT COPYRIGHT LAWIMPLEMENTING
REGULATION THE
COPYRIGHT LAWREGULATION ON
COMPUTER SOFTWARE
PROTECTIONINTERNATIONAL
COPYRIGHT TREATIES
IMPLEMENTING RULES
readable or other form, which byreason of the selection orarrangement of their contentsconstitute intellectual creationsshall be protected as such.. Such
protection, which shall not
extend to the data or materialitself, shall be without prejudiceto any copyright subsisting in thedata or material itself.(1) written works;
(2) oral works;(3) musical, dramatic, quyi andchoreographic works;(4) works of fine art and
photographic works;
(5) cinematographic, televisionand videographic works;(6) drawings of engineeringdesigns and product designs and
descriptions thereof;
(7) maps, sketches and othergraphic works;(8) computer software;(9) other works as provided forin laws and administrative
regulations.for , a software right dispute. Article 8
Foreign works created by
compiling non-protectedmaterials shall be protected inaccordance with Article 14 of the
Copyright Law, provided that
originality is shown in theselection and arrangement ofsuch materials. Such protection,however, shall not prevent
another person from using the
same materials to create worksof compilation.
Article 11 Rental Rights
In respect of at least computer
programs and cinematographicworks, a Member shall provideauthors and their successors in
title the right to authorize or to
prohibit the commercial rental tothe public of originals or copiesof their copyright works. AMember shall be excepted form
this obligation in respect of
cinematographic works unlesssuch rental has led to widespreadcopying of such works which ismaterially impairing theexclusive right of reproduction
conferred in that Member on
authors and their successors intitle. In respect of computerprograms, this obligation doesnot apply to rentals where theprogram itself is not the essential
object of the rental.Article 5
(5)distribution is the provision of
a certain number of copies of awork to the public throughselling, renting or other means,
insofar as the said number of
copies satisfy the reasonableneeds of the public;Article 14
Copyright owners of foreign
works shall retain the right toauthorize or prohibit rental ofcopies of their works after the
authorized sale of such copies.WT/ACC/CHN/29
Page 14 TRIPS AGREEMENT COPYRIGHT LAWIMPLEMENTING
REGULATION THE
COPYRIGHT LAWREGULATION ON
COMPUTER SOFTWARE
PROTECTIONINTERNATIONAL
COPYRIGHT TREATIES
IMPLEMENTING RULES
Article 12 Term of Protection
Whenever the term of protection
of a work, other than aphotographic work or a work ofapplied art, is calculated on a
basis other than the life of a
natural person, such term shallbe no less than 50 years from theend of the calendar year ofauthorized publication, or,
failing such authorized
publication Within 50 years fromthe making of the work, 50 yearsfrom the end of the calendar yearof making.Article 20
The rights of authorship,
alteration and integrity of anauthor shall be unlimited in time.
Article 21
The term of protection of the
right of publication, the right ofexploitation and the right toremuneration in respect of a
work of a citizen shall be the
lifetime of the author and fiftyyears after his death, expiring onDecember 31 of the fiftieth yearafter his death. In the case of awork of joint authorship, such
term shall expire on December
31 of the fiftieth year after thedeath of the last survivingauthor.The term of protection of theright of publication, the right of
exploitation and the right to
remuneration in respect of awork where the copyrightbelongs to a legal entity or entitywithout legal personality, or in
respect of a work created in the
course of employment where thelegal entity or entity withoutlegal personality enjoys thecopyright (except the right ofauthorship), shall be fifty years,
expiring on December 31 of the
fiftieth year after the firstpublication of such work,provided that any such work thathas not been published withinfifty years after the completion
of its creation shall no longer be
protected under this Law.Article 15
The term of protection for the
copyright of piece of softwareshall be twenty-five years,ending on the 31st day of
December of the twenty-fifth
year after the software is firstmade public. Before theexpiration of the term ofprotection, the software
copyright owner may apply to
the organ for softwareregistration and administrationfor an extension of twenty-fiveyears, but the total term ofprotection shall not exceed fifty
years at the longest.
The term of protection for theright of the developer'sauthorship of the software shallbe unlimited.Article 5
In the case of unpublished
foreign works. the term ofprotection shall be governed byArticle 20 and Article 21 of the
Copyright Law.
Article 6
In the case of foreign works of
applied art, the term ofprotection shall be 25 years
commencing from the creation
of the works.WT/ACC/CHN/29
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The term of protection of theright of publication, the right ofexploitation and the right toremuneration in respect of acinematographic, television,
videographic or photographic
work shall be fifty years,expiring on December 31 of thefiftieth year after the firstpublication of such work,
provided that any such work that
has not been published withinfifty years after the completionof its creation shall no longer beprotected under this Law.
Article 13 Limitations andExceptions
Members shall confine
limitations or exceptions toexclusive rights to certain specialcases which do not conflict witha normal exploitation of thework and do not unreasonably
prejudice the legitimate interests
of the right holder.Article 22
In the following cases, a work
may be exploited without
permission from, and withoutpayment of remuneration to, thecopyright owner, provided thatthe name of the author and thetitle of the work shall be
mentioned and the other rights
enjoyed by the copyright ownerby virtue of this Law shall not beprejudiced:(1)use of a published work for
the purposes of the user’s own
private study, research or self-entertainment;(2)appropriate quotation  from apublished work in one’s ownwork for the purposes of
introduction to, or comments on,
a work, or demonstration of apoint;(3)use of a published work innewspapers, periodicals, radioprograms, television programs or
newsreels for the purpose ofArticle 26
A published work as mentioned
in the Law refers to a work
which has been made availableby the copyright owner to thepublic by means stipulated in theLaw.
Article 27
The following conditions have to
be conformed with for an act tobe deemed appropriate quotationof published works by others, asmentioned in Article 22(2) of the
Law:
(1)the quotation is made solelyfor the purpose of introductionto, or comment on, a work ordemonstration of a point;(2)the quotation shall not form a
major or substantial part of the
work of the quoter;(3) the interests of the copyrightowner of the work being quotedshall not be prejudiced.
Article 28
Article 22(3) of the law refers toArticle 21
Entities or citizens lawfully
holding copies of a piece of
software shall enjoy thefollowing rights withoutthe consent of the copyrightowner of the software :(1)to install and store the piece
of software on a computer
according to its/his need and forthe purpose of using it;(2)to make backup copies forfiling. However, such
backup copies shall not be
supplied in any way to others fortheir use. Once the holders losethe right to hold the softwarelawfully , all the said backupcopies must be destroyed ;
(3)to make necessary revisions
in the piece of software in orderto implement it in an actualenvironment of computerapplication , or to improve itsfunction and performance.
However, except otherwiseArticle 10
Prior permission of the copyright
owner shall be required to
translate a published foreignwork, if created in Chinese, intothe language of a minoritynationality
Article 13
Prior permission of the copyright
owner shall be required fornewspapers and periodicals toreprint a foreign work, exceptthe reprinting of articles on
current political. Economic and
social topics.
Article 16.
In the case of public
performance, recording andbroadcasting of foreign works,
the provisions of the Berne
Convention shall apply. Wherethere is a collectiveadministration organization,prior permission of suchorganization shall be required.WT/ACC/CHN/29
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reporting current events;(4)reprinting by newspapers orperiodicals, or rebroadcasting byradio stations or televisionstations, of editorials or
commentators’ articles published
by other newspapers, periodicals,radio stations or televisionstations;(5)publication in newspapers or
periodicals, or broadcasting by
radio stations or televisionstations, of a speech delivered ata public gathering, except wherethe author has declared thatpublication or broadcasting is
not permitted;
(6)translation, or reproduction ina small quantity of copies, of apublished work for use byteachers or scientific researchers,in classroom teaching or
scientific research, provided that
the translation or reproductionshall not be published ordistributed;(7)use of a published work by a
state organ for the purpose of
fulfilling its official duties;(8)reproduction of a work in itscollections by a library, archive,memorial hall, museum, artgallery or similar institution, for
the purposes of the display, or
preservation of a copy, of thework;(9)free-of-charge liveperformance of a publishedwork;
(10)copying, drawing,
photographing or videounavoidable inclusion of
published works as is justified bythe purpose of reporting currentevents.
Article 29
The use of published works of
other persons by virtue of Article22 (6) and (7) shall not harm thenormal exploitation of the worksconcerned and shall not
unreasonably prejudice the
legitimate interests of thecopyright owners.Article 31 Article 22 (11) of theLaw shall be applicable only toworks originally created in
Chinese.agreed, the holder shall not
supply the revised version to anythird party without the consent ofthe copyright owner of thesoftware or his lawful assignee.
Article 22
A piece of software may be
copied in small quantities toserve such non-commercialpurposes as education, scientific
research , or government
business without the consent of,or remuneration to, the copyrightowner of the software or hislawful assignee. However, inexploiting the software in such a
manner , the title and developer
of the piece of software shouldbe made known, and the variousother rights enjoyed by thecopyright owner or his lawfulassignee in accordance with
these Regulations must not be
infringed. The copies should beproperly stored , redeemed ordestroyed After use and must notbe used for other purposes or
supplied to others. .
Article 31 Similarity between apiece of software developed byoneself and an existing piece ofsoftware caused by one of thefollowing events shall not
constitute infringement
on the copyright of the existingpiece of software :(1)where it is necessary toimplement the relevant policies ,laws , regulations and rules of
the State;
(2)where it is necessary toWT/ACC/CHN/29
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recording of an artistic worklocated or on display in anoutdoor public place;(11)translation of a publishedwork from the Han language into
minority nationality languages
for publication and distributionwithin the country;(12)transliteration of a publishedwork into Braille and publication
of the work so transliterated.
The above limitations on rightsshall be applicable also to therights of publishers, performers,producers of sound recordingsand video recordings, radio
stations and television stations.
Article 32 Paragraph 2
Except where the copyright
owner has declared thatreprinting or excerpting is not
permitted, other newspaper or
periodical publishers may ,afterthe publication of the work by anewspaper or periodical, reprintthe work or print an abstract of it
or print it as reference material,
but such other publishers shallpay remuneration to thecopyright owner as prescribed inregulations.
Article 35 Paragraph 2
A performer who for a
commercial performanceexploits a published workcreated by another does not needpermission from, but shall, as
prescribed by regulations, pay
remuneration to, the copyrightimplement the technical
standards of the State ;(3)where there is a limitednumber of available options inthe forms of presentation.WT/ACC/CHN/29
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owner; such work shall not beexploited where the copyrightowner has declared that suchexploitation is not permitted.
Article 37 Paragraph 1
A producer of sound recordings
who, for the production of asound recording, exploits apublished work created by
another, does not need
permission from, but shall, asprescribed by regulations, payremuneration to, the copyrightowner; such work shall not beexploited where the copyright
owner has declared that such
exploitation is not permitted.
Article 40 Paragraph 2
A radio station or television
station that exploits, for the
production of a radio or
television program, a publishedwork created by another does notneed a permission from thecopyright owner, but such a
work shall not be exploited
where the copyright owner hasdeclared that such exploitation isnot permitted. In addition,remuneration shall be paid asprescribed by regulations unless
this Law provides that no
remuneration need to be paid.
Article 43
A radio station or television
station that broadcasts, for non-
commercial purposes, a
published sound recording needsWT/ACC/CHN/29
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not obtain permission from, orpay remuneration to, thecopyright owner, performer orproducer of the sound recording.
Article 14 Protection ofPerformers, Producers of
Phonograms (Sound
Recordings) and BroadcastingOrganizations
l. In respect of a fixation of their
performance on a phonogram,
performers shall have the
possibility of preventing thefollowing acts when undertakenwithout their authorization: thefixation of their unfixedperformance and the
reproduction of such fixation.
Performers shall also have thepossibility of preventing thefollowing acts when undertakenwithout their authorization: thebroadcasting by wireless means
and the communication to the
public of their live performance.2. Producers of phonogramsshall enjoy the right to authorizeor prohibit the direct or indirect
reproduction of their
phonograms.3. Broadcasting organizationsshall have the right to prohibitthe following acts whenundertaken without their
authorization: the fixation, the
reproduction of fixations, and therebroadcasting by wirelessmeans of broadcasts, as well asthe communication to the publicof television broadcasts of the
same. Where Members do notArticle 36
A performer shall, in relation to
his performance, enjoy the right
(1)to claim performership;(2)to protect the image inherentin his performance fromdistortion;
(3)to authorize others to make
live broadcasts;(4)to authorize others to makesound recordings and videorecordings for commercialpurposes, and to receive
remuneration therefore.
Article 39
A producer of sound recordings
or video recordings shall havethe right to authorize others torepro-duce and distribute such
sound recordings or video
recordings and the right to obtainremuneration therefore. The termof protection of such rights shallbe fifty years, expiring on
December 31 of the fiftieth year
after the first publication of therecording .
Article 42
A radio station or television
station shall, in respect of a
program produced by it, enjoy
the right(1)to broadcast the program;(2)to authorize others tobroadcast the program, and toreceive remuneration therefore;
(3)to authorize others toArticle 44
No time limit shall be set on the
term of protection in relation to
the rights provided for in Article36(1) and (2) of the Law.In the case of the term ofprotection in relation to the right
to remuneration which the
performers enjoyed by virtue ofthe second paragraph of Article39 and the third paragraph ofArticle 42 of the Law, the firstparagraph of Article 39 and the
second paragraph of Article 42
of the law shall apply.
Article 48
To object to the performance,
recording or making broadcastsof his work by virtue of the
second paragraph of Article 35,
first paragraph of Article 37 andsecond paragraph of Article 40of the Law, the copyright owneris required to make a statement
to that effect at the same time
when his work is published, orhave the statement carried in thecopyright bulletin issued by theNational CopyrightAdministration.Article 18
Articles 5, 12, 14, 15 and 17 of
these Rules shall also apply to
sound recordings.
Article 5
In the case of unpublished
foreign works. The term of
protection shall be governed by
Article 20 and Article 21 of theCopyright Law.
Article 12
Copyright owners of foreign
cinematographic works,
television works and works of
video recordings shall have theright to authorize the publicperformance of their works.
Article 14
Copyright owners of foreign
works shall retain the right to
authorize or prohibit rental ofcopies of their works after theauthorized sale of such copies.
Article 15
Copyright owners of foreign
works shall have the right toprohibit the importation of thefollowing types of copies of theirworks:(1) infringing copies;
(2) copies coming from a
country where their works arenot protected.
Article 17
Foreign works which, at the date
on which international copyright
treaties enter into force in China,WT/ACC/CHN/29
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grant such rights to broadcastingorganizations , they shall provideowners of copyright in thesubject matter of broadcasts withthe possibility of preventing the
above acts, subject to the
provisions of the BerneConvention (1971 ) .4. The provisions of Article 11 inrespect of computer programs
shall apply  mutatis mutandis  to
producers of phonograms andany other right holders inphonograms as determined in aMember's law. If on 15 April1994 a Member has in force a
system of equitable remuneration
of right holders in respect of therental of phonograms, it maymaintain such system providedthat the commercial rental ofphonograms is not giving rise to
the material impairment of the
exclusive rights of reproductionof right holders.5. The term of the protectionavailable under this Agreement
to performers and producers of
phonograms shall last at leastuntil the end of a period of 50years computed from the end ofthe calendar year in which thefixation was made or the
performance took place. The
term of protection grantedpursuant to paragraph 3 shall lastfor at least 20 years from the endof the calendar year in which thebroadcast took place.
6. Any Member may , in relation
to the rights conferred underreproduce and distribute the
radio or television program, andto receive remunerationtherefore.The term of protection of the
rights specified in the preceding
paragraph shall be fifty years,expiring on December 31 of thefiftieth year after the firstbroadcasting of the program.have not fallen into the public
domain in their countries oforigin shall be protected until theexpiration of the term ofprotection as is prescribed in the
Copyright Law and these Rules.
Paragraph one of this Articleshall not apply to uses of foreignworks that took place beforeinternational copyright treaties
entered into force in China.
A Chinese citizen or legal personwho owned and used a particularcopy of a foreign work for aparticular purpose beforeinternational copyright treaties
entered into force in China may
continue to make use of thatcopy of the work withoutliability, provided that such copyis neither reproduced nor used inany manner that unreasonably
prejudices the legitimate rights
and interests of the copyrightowner.The application of the abovethree paragraphs of this Article
shall be subject to provisions of
bilateral agreement relating tocopyright concluded by Chinawith the countries concerned.WT/ACC/CHN/29
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paragraphs 1, 2 and 3, providefor conditions, limitations,exceptions and reservations tothe extent permitted by theRome Convention. However, the
provisions of Article 18 of the
Berne Convention ( 1971 ) shallalso apply, mutatis mutandis  , to
the rights of performers andproducers of phonograms in
phonograms .
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