China: Procedures For Work Reproduction Q&A

Last Updated: 10 April 2017
Article by Watson & Band Law Offices

How can I know whether the content I intend to reprint is copyrighted?

The protection granted by the Copyright Law normally does not apply to following works:

  1. Works for which the copyright term has expired. This category includes:

(i) works of natural persons when the 50st year after the death of the author has passed. For example, the copyright of the works of Lu Xun, who died in 1936, expired in 1986; and

(ii) works of legal persons when the 50st year after the publication of such works has passed. Since Steamboat Willie, the screen debut for Mickey Mouse, was published in 1928, it became free for reproduction in 1978.

The above two types of works apply very different starting points to calculate the term of copyright. One way to distinguish between the two is the signature: the work under the signature of a natural person is usually the work of natural person.

2. The second category includes content that does not qualify as a "work" such as statutes and regulations, calendars, statements of facts and daily conversations.

Both kinds of content referenced above may be freely reprinted without the need to obtain authorization.

Does reproduction require the authorization of the copyright owner?

Under most circumstances, one needs to obtain authorization for copying the written work, pictures (including photographs) or videos of another party and reproducing it somewhere else. However, a few exceptions apply, as summarized as below:

Certain acts not subject to copyright protection.

If you are merely reproducing a link to a work, there is no need for authorization of the copyright owner. This is because a copyright does not restrict this act of "reproduction". Take this article for example -- when it appears on the WeChat public account of Watson & Band, which is a non-infringing source of the work, you may, through "send to chat" or "share in Moment", reprint the article any way you wish without the need to obtain permission from the author or W&B Law Offices (since this article is a service work).

Certain reproduction is permitted for the purpose of "fair use".

In addition to acts not restricted by the Copyright Law, the law also lists 12 types of fair use. It should be noted that the law imposes strict conditions on all 12 uses. Failure to meet any condition will disqualify the act for "fair use" and will subject it to the requirement of authorization from the copyright owner. The author's opinion is that under most circumstances, reproducing a work does not fall within the scope of "fair use". For information purposes, the circumstances that constitute fair use are listed below:

(I) Use of a published work for the purpose of individual study, research or enjoyment;

(II) Appropriate quotation from a published work, where such quotation is used to introduce or comment on certain works or to explain a certain issue;

(III) Unavoidable representation or quotation by media such as newspapers, periodicals, radio stations, television stations, etc., of a published work, where such representation or quotation is carried out for the purpose of reporting current events;

(IV) Printing or broadcast by media such as newspapers, periodicals, radio stations and television stations on a current political, economic or religious topic already published by a medium such as another newspaper, periodical, radio station or television station, except where the author has declared that the reproduction or rebroadcast of such publication is not permitted;

(V) Printing or broadcasting by media such as newspapers, periodicals, radio stations or television stations of a speech delivered at a public gathering, except where the author has declared that the printing or broadcast thereof is not permitted;

(VI) Translation or reproduction of a small number of copies of a published work, where such translation or reproduction is done for the purpose of classroom teaching or scientific research and is to be used by teachers or scientific researchers, provided that such translation or reproduction is not published or distributed;

(VII) A state entity's reasonable use of a published work for the purpose of carrying out official duties;

(VIII) Reproduction by a library, archive, memorial hall, museum, art gallery, etc., of a work in its collection, where reproduction is for the purpose of exhibiting or preserving an edition of such work;

(IX) Gratuitous performance of a published work, where no fee is collected from the public nor any remuneration paid to the performers for the performance;

(X) Copying, painting, photographing or videotaping of a work of art placed or exhibited at an outdoor public place;

(XI) Translation of a work already published by a Chinese citizen, legal person or other organization and created in the Han language [Chinese] into a work in the language of a domestic minority ethnic group, and publication and distribution within China of such translation; and

(XII) Translation of a published work into Braille for publication.

The first exception is often misperceived as the idea that the work may be freely reprinted as long as it is for the purpose of study, research or enjoyment. This is incorrect, however, since the requirements for the legal application under this exception are very strict. Reproduction as discussed in this article mostly does not fall within this category. The author strongly advises against using the first exception as a protective shield to justify reproduction, because it is not strong enough.

Some authors permit reproduction in certain forms.

There are authors who, as soon as their work is published, announce that the work is free for reproduction. Under these circumstances, as long as all the requirements of the author have been met, one may freely reprint the work without having to ask for the author's permission. Articles designed for amusement, for example, may be freely reproduced, as long as the source of those works is attributed.

How can a copyright owner be located?

Contact the author using the contact information provided in the work.

This is the simplest method, and this article will not elaborate on it.

Contact the author using the contact information provided by the website on which the work is published.

Quite a few websites, while allowing users to upload their work, also enable users to contact each other through a "private messaging" function within the website to facilitate social contact. This is apparently the safest and most convenient way to get in touch with the author.

Search by the author's name in the work.

If, due to the nature of the work or a user statement by the work's provider, the uploader of the work is not the copyright owner, indicating that the uploader has not obtained authorization for the reproduction of the work, it may be too little avail to contact the provider. Nevertheless, the author suggests checking the reprinted work to see if there is a way to identify the creator and then search the Internet for the creator's contact information. This approach often applies, for example, where the copyright owner is a well-known author.

Browse the search engine.

If the provider of the work is not the copyright owner, and if there is no signature in the work, or the creator cannot be identified through the signature, the author suggests searching for the work using Internet search engines.

What if I cannot find the copyright owner?

What should you do if you cannot find the copyright owner? The author suggests that if you wish to exercise great caution not to infringe the rights and interests of the copyright owner, you may contact the collective management organization of the reprinted work. You may pay this organization to protect both your own rights and the copyright owner's rights.

It should also be noted that even if you declare that "We are waiting for the copyright owner to contact us for payment of royalties" or "If the copyright owner deems this use infringing, please contact us so that we can delete it as soon as possible", the reproduction may still constitute infringement. Indeed, such declarations can be used as evidence of intentional infringement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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