Guide to IPR Protection in China for the Creative Industries

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Guide to IPR Protection in China for the Creative Industries

  1. 1. Guide to IPR Protection in China for the WWW.CHINA-IPRHELPDESK.EU Creative Industries 1 Introduction 2 Copyright 3 Industrial Designs 4 Trade Secrets 5 Preventative Measures for IP Protection Take-Away Message For free, confidential, business-focused 1. INTRODUCTION IPR advice within Chinas rapidly expanding consumer China also allows you to voluntarily seven working days market creates both opportunities register your copyright. Copyright and challenges for European registration is presumptive evidence of E-mail: businesses in creative industries. ownership if you wish to enforce your Ideas and designs are the lifeblood of copyright and greatly reduces the enquiries@china creative businesses and infringement preparation of evidence. Copyright can be particularly costly and damaging. registration in China is inexpensive, -iprhelpdesk.eu However, creative ideas and designs easy, and generally recommended. that are not adequately protected often fall victim to infringement by potential However, if your copyright is not Chinese clients or Chinese competitors. registered or you do not plan on registering it, it is important to keep This guide addresses the Intellectual evidence of creation and ownership so Property (IP) issues often faced by that you can prove your ownership of the creative businesses in various copyright. Always indicating the authors sub-sectors of the creative industry in name, date of creation, and using the © China including in architectural design, symbol on the work (including on all product design, graphic design, drafts) are simple steps you can take. web-design, brand design, photography Having a copy of your work notarised by and cinematography, writing, etc. The a Chinese notary is also an easy and most common types of IP important to relatively inexpensive way to establish creative businesses are: admissible evidence of creation and Copyrights authorship. “Poor man’s copyright”, which refers to the practice of sealing and Industrial designs mailing a copy of the work to yourself to Trade secrets establish evidence of the date of creation, authorship, and the work itself is 2. COPYRIGHT not as reliable as a notarisation because its authenticity can be challenged in As in Europe, copyright in China court. arises automatically upon the creation of a copyrightable work. Copyrightable works include “Copyright registration in architectural or engineering drawings, China is inexpensive, easy, works of fine art, applied art, literary and generally recommended.” Funded by: works, music or sound recordings, dramatic or cinematic works, When creating works for others or compilations, software, etc. It is commissioning others to create works for European Commission important to remember that copyright you, make sure that your contract clearly Enterprise and Industry protects only the expression of an idea, states who owns the copyright to the >> not the idea itself.China IPR SME Helpdesk © 2011 1
  2. 2. Guide to IPR Protection in China for the Creative Industriesworks. Unlike in many other countries, in China, the You cannot register an existing design, including yourcommissioned party owns the copyright to the works own existing design, which means you have 6 monthsunless the contract states otherwise. from the date you first publicly use the design, publish the design or apply for a design patent to file anIn addition to using copyright as a form of protection, international patent application. Therefore, it isbecause copyright arises so easily, it is also equally strongly recommended that you consider whether orimportant to make sure you do not infringe upon not you wish to seek design patent protection for youranothers copyright such as when using someone design before you publicly use or publish it.else’s work in your own work. For example, this canhappen when you use someone elses photograph on In some cases, if an industrial design exhibits athe Internet without permission in your project high-degree of creativity and its aesthetic elementsproposal. It is important to obtain the permission of the can exist separately from the functional features of thecopyright owner when using someone else’s work. design, it can also be protected as a copyrightable work. For example, a design for a lamp with a statue base enjoys copyright protection as to the statute 3D design base. It is important to know whether or not your design can be protected as a work of applied art so that you can take proper measures to protect it. Most Unlike in many other countries, in China, the industrial designs do not enjoy copyright protection as scope of protection of the copyright in a works of applied art and can only be protected as two-dimensional drawing does not extend to three-dimensional applications. For example, industrial designs. copyright in a two-dimensional architectural design does not extend to the actual building based on the design. To fill in this gap in protection, your contract should clearly state that the copyright of any three-dimensional applications based on your two-dimensional designs belong to you. 4. TRADE SECRETS3. INDUSTRIAL DESIGNS In China, a trade secret is any non-public information of commercial value that is treated asIndustrial designs protect the aesthetic features confidential. Trade secrets include undisclosed(shape, pattern, colour) of industrial products. designs, sketches, concepts, models, projectIndustrial designs are protected as design patents in proposals, customer lists, supplier lists, price lists,China and must be registered. Designs registered in contractual terms, business operational methods,a foreign country do not enjoy protection in China. To contact lists, internal emails, business strategy orqualify for protection, a design cannot be an existing initiatives, negotiations, etc. However, trade secretsdesign and must be sufficiently distinguishable from protection is lost as soon as the information becomesother designs. Currently, it takes approximately 9 public. Measures to ensure confidentiality include themonths to 1 year to obtain a design patent in China. A use of confidentiality agreements tied to disclosure,design patent gives you the exclusive right to use or non-disclosure agreements with employees, use ofallow others to use your design in China for 10 years. passwords, and marking of documents as confidential. 2 Free Business Tools to Manage your IPR in China
  3. 3. Prevention is Key Prevention is the key to protecting trade secrets. Although legal action is available, it is often difficult and not always feasible to prevent the dissemination of sensitive information once it has been disclosed. It is a good practice to periodically catalogue what potentially valuable trade secrets you may have so that proper precautions can be taken. Contractual protection In addition to or in lieu of registered IP rights, you can protect your IP contractually by ensuring that yourMost cases involving the theft of trade secrets involve contract clearly stipulates the ownership of the IP andformer employees or potential clients. It is important contains proper confidentiality provisions. However,that you require all employees to sign an employment contractual protection only is available onceagreement with non-disclosure provisions and, if negotiations have matured to a point where a contractnecessary, non-compete provisions. It is also can be negotiated. In lieu of a full contract, insist onimportant that you limit access to certain valuable having a confidentiality agreement before negotiationsinformation to only certain employees with a need to start or documents are transferred.know and to conduct exit interviews. Preventative operating measuresIt is also a good practice to insist that third parties, Finally, business savvy and employing preventativeincluding potential clients or suppliers, sign a operating measures can go a long way in ensuringconfidentiality agreement before you start negotiations that your IP is protected. It is important to draw a lineor transfer documents. Sometimes, however, a prior to negotiations on how far you are willing to skirtpotential client may refuse to sign a confidentiality on IP protections so that you know when to walk awayagreement because they may consider such a request from a potential business opportunity. Protecting youras “hostile”. In these instances, insist, but if they IP may require you to forgo certain opportunities. Thiscontinue to refuse, it is important that you only disclose may be extremely difficult, particularly for smallvery preliminary work product such as simple rough creative businesses, but a potential client who is notsketches or previous designs which you do not willing to recognise your desire to protect your IP isconsider to be operational or of high value. also the client who is most likely to steal your IP or not pay you for your work.5. PREVENTATIVE MEASURES FOR IPPROTECTION MEETING TIPSAlthough there are effective legal and Often in the early preliminary stages or at the bidadministrative remedies for IP infringement in soliciting stage, potential clients will insist that youChina, cost-effective protection of creative ideas submit full conceptual designs andand designs in China generally requires a three-dimensional renderings. In suchcombination of knowledge, prevention and circumstances, it is understandably difficult tobusiness savvy. Preventative strategies for the insist on confidentiality measures. It is at this pointprotection of IP generally include: where registering your IP and thoroughly documenting the transfer of documents is critical. Registration of IP Although circumstances will vary in each instance, Contractual protection you may also wish to try to: Preventative operating measures Meet your potential clients face-to-face to get aRegistration of IP feeling of their professionalism and to develop aYour IP is most protected when properly registered. personal relationship.Industrial designs, invention patents, utility models, Show them only preliminary sketches of ideas.and trademarks must all be registered for them to be Ask for payment upfront or in increments basedprotected in China. Although copyrights do not need to on performance targets.be registered, this is useful in the event you need to Seek references from colleagues orenforce your copyrights. It is important to have a plan acquaintances.in place to determine which IP you will register and to Ask them to visit you at your business premises to be shown your full conceptual designs ortake proper measures for IP you will not register. three-dimensional renderings. 3Free Business Tools to Manage your IPR in China
  4. 4. WWW.CHINA-IPRHELPDESK.EUThe China IPR SME Helpdesk provides free, confidential, business-focused advice relating to China IPR to EuropeanSmall and Medium Enterprises (SMEs).Helpdesk Enquiry Service: Submit further questions to the Helpdesk via phone, email(enquiries@china-iprhelpdesk.eu) or in person and receive free and confidential first-line advice within seven workingdays from a China IP expert.Training: The Helpdesk arranges training on China IPR protection and enforcement across Europe and China,tailored to the needs of SMEs.Materials: Helpdesk business-focused guides and training materials on China IPR issues are alldownloadable from the online portal.Online Services: Our multi-lingual online portal (www.china-iprhelpdesk.eu) provideseasy access to Helpdesk guides, case studies, E-learning modules, eventinformation and webinars.For more information please contact the Helpdesk:Room 900, Beijing Sunflower TowerNo. 37 Maizidian StreetChaoyang DistrictBeijing 100125, P.R. ChinaTel: +86 (10) 8527 6922 Disclaimer: TAKE-AWAY MESSAGE The contents of this publication do not necessarily reflect the position or opinion of the European Commission. Though seemingly daunting, with a few simple preventative steps and The services of the China IPR SME appropriate registration of rights, your creative work can be adequately Helpdesk are not of a legal or advisory protected in China. nature and no responsibility is accepted for the results of any actions Make sure your creative works are properly registered as copyrights, industrial made on the basis of its services. designs, invention patents, utility models and trademarks, and always use the © Before taking specific actions in relation to IPR protection or symbol when they are reproduced. enforcement all customers are Use confidentiality agreements before negotiations start or documents are advised to seek independent advice. transferred, and ensure all subsequent contracts contain non-disclosure Project implemented by: provisions or non-compete provisions, clearly stipulating ownership of IP. Conduct exit interviews with employees, and limit access to valuable information to only certain employees with a need to know by using passwords and marking documents as confidential. 4 China IPR SME Helpdesk © 2011

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