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Commons:Copyright rules by territory/China/ko

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저작권 법규: People's Republic of China
단축: COM:China
People's Republic of China의 기
People's Republic of China의 지도
보호기간
일반저작물 생애 + 사후 50년
사진저작물 Publish + 50 years (before June 1, 2021)
Life + 50 years (after June 1, 2021)
익명의 저작물 공표 후 50년
영상저작물 공표 후 50년
공공저작물 Public domain (not always)
기타
파노라마의 자유 For 3D works
보호기간이 연말에 만료 예
공용 라이선스 틀 {{PD-China}}
{{PD-PRC-exempt}}
국제 협약
베른 협약 1992년 10월 15일
세계 저작권 협약 1992년 10월 30일
세계 무역 기구 2001년 12월 11일
URAA 회복일‌ [1] 1996년 1월 1일
WIPO 조약 2007년 6월 9일
 [1]‌A work is usually protected in the US if it is a type of work copyrightable in the US, published after 31 December 1928 and protected in the country of origin on the URAA date.

This page provides an overview of copyright rules of the People's Republic of China relevant to uploading works into Wikimedia Commons. Note that any work originating in China must be in the public domain, or available under a free license, in both China and the United States before it can be uploaded to Wikimedia Commons. If there is any doubt about the copyright status of a work from China, refer to the relevant laws for clarification.

Different legal regimes and copyright terms apply in the special administrative regions of Hong Kong and Macau, and in Taiwan.

Background

China has been independent for centuries, first as an empire and then since 1912 as a republic. Hong Kong was ceded to Britain in 1842, and in 1 July 1997 was returned to China as a special administrative region. In 1887 Portugal gained rights to Macao, which was returned to China as a special administrative region in 1999. The Japanese seized Manchuria in 1931 and created the puppet state of Manchukuo. This was returned to China in 1946.

After the Chinese Civil War the government of the Republic of China fled to Taiwan in 1949, but continued to claim to be the legitimate government of mainland China. The mainland People's Republic of China does not recognise the legitimacy of the Republic of China, and claims sovereignty over Taiwan. The same copyright rules apply to mainland China and Taiwan up to 1949.

China has been a member of the Berne Convention since 15 October 1992, the Universal Copyright Convention since 30 October 1992, the World Trade Organization since 11 December 2001 and the WIPO Copyright Treaty since 9 June 2007.

[1]

As of 2021 the World Intellectual Property Organization (WIPO), an agency of the United Nations, listed the Copyright Law of the People's Republic of China (as amended up to the Decision of November 11, 2020, of the Standing Committee of the National People's Congress on Amending the Copyright Law of the People's Republic of China) as the main copyright law enacted by the legislature of China. For the time being, the WIPO Lex database only holds its Chinese edition.[1] Wikisource has a Chinese version and an English translation.

[2][3][4]

Copyright Law of the People's Republic of China is retroactive.

The rights of copyright owners, publishers, performers, producers of sound recordings and video recordings, radio stations and television stations as provided in this Law, of which the term of protection specified in this Law has not yet expired on the date of this Law's entry into force, shall be protected in accordance with this Law.[1990 Art.55][5]

General

According to the 2020 Copyright Law of the People's Republic of China,

  • A work created by a natural person when fulfilling the tasks assigned to him by a legal entity or another unincorporated organization shall be deemed to be a service work. Unless otherwise provided in Paragraph 2 of this Article, the copyright of such a work shall be enjoyed by the author, but the legal entity or unincorporated organization shall have a priority right to exploit the work within the scope of its professional activities....[2020 Art.18]
  • The rights of authorship, alteration and integrity of an author shall be unlimited in time.[2020 Art.22]
  • The term of protection for the right of publication ... in respect of a work of a citizen shall be the lifetime of the author and fifty years after his death, and expires on 31 December of the fiftieth year after the death of the author.[2020 Art.23]
  • In the case of a work of joint authorship, such term shall expire on 31 December of the fiftieth year after the death of the last surviving author.[2020 Art.23]
  • For a work of a legal person or an unincorporated organization, and a work for hire whose copyright (excluding right of signature) is owned by a legal person or an unincorporated organization, the protection period for its right of publication shall be 50 years, ending on December 31 of the 50th year after the creation of the work; and the protection period for its rights shall be 50 years, ending on December 31 of the 50th year after the first publication of the work, but if a work has not been published within 50 years after the completion of the creation, it shall no longer be protected by this Law.[2020 Art.23]
  • For an audiovisual work, the protection period for its right of publication shall be 50 years, ending on December 31 of the 50th year after the creation of the work; and the protection period for its rights shall be 50 years, ending on December 31 of the 50th year after the first publication of the work, but if a work has not been published within 50 years after the completion of the creation, it shall no longer be protected by this Law.[2020 Art.23]

According to the Implementing Regulations of the Copyright Law of the People's Republic of China:[6]

  • Article 13: In the case of a work of an unknown author, the copyright, except the right of authorship, shall be exercised by the lawful holder of the original copy of the work. Where the author has been identified, the copyright shall be exercised by the author or his heir in title.
  • Article 16: The using of copyright enjoyed by the State shall be managed by the State Council copyright administration departments.
  • Article 17: In the case of posthumous works, the right of publication may be exercised by the author's heir in title or other behested beneficiary within a period of 50 years, unless the author expressly had stated otherwise. In the absence of an heir in title or other behested beneficiary, the said right shall be exercised by the lawful holder of the original copy of the work.
  • Article 18: In the case of a work of an unknown author, the protection term in relation to the rights as mentioned by item 5 to item 17 of first paragraph of Article 10 of the Law shall be 50 years ending on December 31 of the fiftieth year after the first publication of the work. Article 21 of the Law shall be applicable after the author of the work has been identified.

According to the Part IV Personality Rights, Chapter IV Portraiture Right, Article 1019 of the Civil Code of the People's Republic of China, any organizations or peoples are not permitted to violate portraiture rights of other peoples by smear, stain, counterfeit by using information technology or else ways. No making, using and publishing of portrait owners' images are allowed without their consent, unless permitted by other laws. The copyright owners of portraint works are also not allowed to use or disclosure by releasing, copying, distributing, hiring, exhibiting or other ways without their consent. Portraiture rights provisions mentioned above are non-copyright restrictions.

[7]

There were some discussions about the copyright situations of the works of Communist Party of China, a de facto consensus on Chinese Wikisource (see s:zh:Template:PD-PRC-CPC) considered that, based on the Criminal Justice Reference guiding cases №. 680, CPC works may considered as in Public Domain per Article 5 if they are published by central organizations of CPC, such as National Congress, Central Committee and their subordinate bodies. If not published by central organizations, then CPC works may considered as copyrighted.

Not protected

단축

참조: Commons:Unprotected works

According to the 2020 Copyright Law of the People's Republic of China, this Law shall not be applicable to: (1) laws, regulations, resolutions, decisions and orders of state organs; other documents of legislative, administrative or judicial nature; and their official translations; (2) simple factual information; and (3) calendars, numerical tables, forms of general use and formulas.[2020 Art.5]

Terms

Individual works

Date of author's death Date of publication Copyright tag
– 1973년 12월 31일 – 1928년 12월 31일 {{PD-China-expired}} + {{PD-old-auto-expired}}
{{PD-China-expired}}{{PD-old-auto-expired|deathyear=death year}}
– 1945년 12월 31일 1929년 1월 1일 – {{PD-China-1996}} + {{PD-old-auto-1996}}
{{PD-China-1996}}{{PD-old-auto-1996|country=China|deathyear=death year}}
Others The work is still protected under China law and/or URAA.

Anonymous, Pseudonymous or Cooperative works

If the author of the work is unveiled during its copyright term, it is protected as an individual work.

Date of publication Copyright tag
– December 31, 1928 {{PD-China-expired}} + {{PD-anon-expired}}
{{PD-China-expired}}{{PD-anon-expired}}
January 1, 1929 – December 31, 1945 {{PD-China-1996}} + {{PD-anon-auto-1996}}
{{PD-China-1996}}{{PD-anon-auto-1996|country=China|publication=year}}
Others The work is still protected under China law and/or URAA.

Photographs

Date of creation Date of publication Copyright tag
– December 31, 1928 – December 31, 1928 {{PD-China-expired}} + {{PD-old-auto-expired}}
{{PD-China-expired}}{{PD-old-auto-expired|deathyear=death year}}
– December 31, 1945 Unpublished {{PD-China-1996}} + {{PD-old-auto-1996}}
{{PD-China-1996}}{{PD-old-auto-1996|country=China|deathyear=death year}}
January 1, 1929 – December 31, 1945
January 1, 1996 –
Others The work is still protected under China law and/or URAA.

Exceptions


단축

참조: Commons:저작권 틀

  • {{PD-China}} – for images in the public domain according to the People's Republic of China (mainland) and the Republic of China (Taiwan).
  • {{PD-China-film}} – for movies or images from movies published in the China more than 50 years ago according to Mainland China and Taiwan.
  • {{PD-Empire of China Government Gazette}} – for the Government Gazette from January to March 1916 (Hongxian Year 1) by the Empire of China.
  • {{PD-Manchukuo-stamps}} – for images of Manchukuo stamps that are now in the public domain in China.
People's Republic of China
Republic of China

Works with these tags may be published before or after 1949 within the jurisdiction of the Republic of China:

Older (1912–1949) works published within the jurisdiction of the Republic of China

Cheque

단축

참조: Commons:Cheque

괜찮습니다 {{PD-shape}} for cheques with simple designs. However, many Chinese cheques have security features that exceed threshold of originality and therefore  괜찮지 않음.

Currency

단축

참조: 공용:화폐

 괜찮지 않음. The design of renminbi is exceeding the threshold of originality of China and there is no apparent evidence that renminbi designs are in public domain.

However, for currencies that are in circulation, there are some non-copyright restrictions. The use of Renminbi designs is subject to approval. According to the Measures for the Administration of the Use of Renminbi Designs (人民币图样使用管理办法) (amended in 2019)[8]:

  • Article 4 The use of Renminbi designs are not permitted for ceremonial, lifestyle and finance bill purposes;
  • Article 6 The use of Renminbi designs are administrated territorially, and every use cases shall be approved one by one. The People's Bank of China, to which their headquarter is located in Shanghai, as well as their branches, business management departs, sub-branches of the capitals of provinces, and centre bank of PBC in Shenzhen, are the approval authorities of Renminbi use cases. The local branches of PBC are acceptance agencies of applications of cases.
  • Article 9 The use of Renminbi designs should follow the following terms:
    • Only one paper face by one picture;
    • No harms of Renminbi images, national interests and public interests are allowed;
    • Will not let the public consider mistakenly as the Renminbi itself;

...

괜찮습니다 for those with expired copyright.

Freedom of panorama

단축

참조: Commons:파노라마의 자유

In general, 괜찮습니다 , with attribution {{FoP-China}}, for outdoor and indoor works (since June 2021 with the 2020 amendment of the copyright law allowing indoor works[9]) but Warning sign practically may be problematic with regards to images of 2D works like murals and permanent outdoor paintings (reference: Commons:Deletion requests/File:Mao Zedong portrait.jpg). To summarize:

  • 괜찮습니다 for architecture,
  • 괜찮습니다 for 3D works like sculptures (and possibly things like handicrafts, ceramics, and tiles), and
  • generally  괜찮지 않음 for 2D works like murals and outdoor paintings, unless their presences in images are not being main subjects.

The reproduction of artistic, architectural, or applied artwork, is covered under the Copyright Law of the People's Republic of China, which allows reproduction of works in an outdoor public place if the author and the name of the original work is attributed.

  • Article 24: In the following cases, a work may be exploited without the permission from, and without payment of remuneration to, the copyright owner, provided that the name or designation of the author and the title of the work are mentioned and the normal use of the work, or unreasonably damage the lawful rights and interests of the copyright owner shall not be affected:
    (10) copying, drawing, photographing, or video recording of an artistic work located or on display in a public place;...
    The provisions of the preceding paragraph shall apply to restrictions on copyright-related rights.

The "Copyright Law of the People's Republic of China" (2020) Article 24, clause 10 states that:

[A] work may be exploited without the permission from, and without payment of remuneration to, the copyright owner, provided that the name or designation of the author and the title of the work are mentioned and the normal use of the work, or unreasonably damage the lawful rights and interests of the copyright owner shall not be affected:
copying, drawing, photographing, or video recording of an artistic work located or on display in a public place

Regulations and court decisions regarding to freedom of panorama:

The following examples are 괜찮습니다:

  • Photos of the May Wind sculpture. Shandong Province Higher People's Court ruled in a civil case that the usage of an image of this sculpture as a wallpaper in cellphones by a cellphone manufacturer is permissible. China's Supreme Court later on endorsed this ruling.
Some limitations to the Chinese freedom of panorama as ruled by courts
  • The Chinese FOP provision can hardly apply to works temporarily displayed in public places according to the reply by Supreme People's Court in 1995, which stated that works displayed only during the festival cannot be considered as "an artistic work located or on display in a public place".
  • More recently, however, Chongqing Yuzhong District People's Court ruled in 2016 that the use of a photo of an outdoor sculpture on postcards for sale (commercial use without attribution) to be an infringement of the sculpture creator's rights (source: [7][8]). Note that the judge applied criteria pertaining to "fair use", including the purpose of reuse, the nature of use, and the consequences of use. Regarding the nature of use, the judge comments, "in this case, the photo contained in the 'Folklore Heritage' postcard issued by the advertising company is a full-body frontal photo of the sculpture of the 'Ciqikou night watchman', which is featured prominently in the picture and is the main vehicle for the postcard to express the design theme of 'Folklore Heritage', so this kind of use is not incidental."
  • Regarding 2D works like outdoor paintings permanently installed in public spaces and murals, a recent court case by Beijing IP court (2020) gave a negative decision: "The Court believes that the general use of 2D art works by copyright owners is relatively simple, that is, copying works, creating derivative works on the basis of the original works for commercial use or authorizing others to do so. If a 2D art work is displayed in a public place, others can freely use it for commercial purposes after photographing, drawing or copying, the licensing and copyright owner's income will be seriously threatened, then the normal use of the work will be affected and the legitimate rights and interests enjoyed by the copyright owner will be prejudiced."
See also: Category:Chinese FOP cases.

Threshold of originality

단축

참조: 공용:창작성의 기준

China has a relatively low threshold of originality standard; basic designs may be copyrightable. One of the most noticeable cases is the logo of a company named Gang Heng (listed below) ruled by China's supreme court as copyrighted (see below).

The following examples are 괜찮습니다:

  • "Matchstick man" (image) with a black sphere as a head, black lines as torso, limbs and feet is not copyrightable for lacking originality, ruled Higher People's Court of Beijing Municipality (source).
  • Five SKECHERS logos (image) are not copyrightable for lacking originality, ruled Higher People's Court of Beijing Municipality in 2020 (final judgement and related news coverage).
  • "BIOU" logo (image), with letter "b" and "o", and a small barcode in the upper right corner, is not copyrightable for lacking originality, ruled Higher People's Court of Beijing Municipality in 2018 (final judgement and related articles [9] [10]). Note that the logo was initially ruled as copyrightable by the Trademark Review and Adjudication Board and a lower court.
  • "KON" logo (see below), with three black bars crossed together, is not copyrightable for lacking originality, ruled Beijing Dongcheng District People's Court in 2019 (final judgement and news coverage).
  • "Chao Qun" logo (see below), is not copyrightable for lacking originality, ruled China's Supreme People's Court in 2012 (original judgment by the Court). The court asserted that the expression does not show the existence of a unique style; there are only subtle differences when compared to the common Seal script and Clerical script, the "Chao Qun" logo does not reach a certain creative height, and does not have originality.
  • A stick figure similar to this image, where the head is represented by a circle and other parts represented by straight lines, is not copyrightable.
    A stick figure similar to this image, where the head is represented by a circle and other parts represented by straight lines, is not copyrightable.
  • The SKECHERS's S logo is not copyrightable.
    The SKECHERS's S logo is not copyrightable.
  • KON logo with three black bars crossed together is not copyrightable.
    KON logo with three black bars crossed together is not copyrightable.
  • Chao Qun logo is not copyrightable.
    Chao Qun logo is not copyrightable.

The following examples are  Not OK:

are copyrighted (Copyright Law of the PR China: "Article 2 Works of Chinese citizens, legal entities or other organizations, whether published or not, shall enjoy copyright in accordance with this Law." ; "Article 3 'Works' mentioned in this Law shall include [...] in the following forms: (4) works of fine art and architecture" ; Regulations for the Implementation: "Article 4 (8) 'works of fine arts' means [...] such as paintings, works of calligraphy and sculptures;")
  • Handwriting: a hand-written manuscript was deemed copyrightable as work of art, according to a decision made by Nanjing Intermediate People's Court in 2017 (sources: [11] [12], Final judgement).
  • "LY" company logo (alternative link; archived from the original), although arguably relatively simple, has been ruled copyrightable by Trademark Appeal Board of the State Administration of Industry & Commerce, Beijing Intellectual Property Court, and Higher People's Court of Beijing Municipality.
  • Typefaces of characters "笑", "喜", and "城市宝贝" in these two logos are copyrightable, ruled Nanjing Intermediate People's Court in 2012. However the character "巴" in the same logo was decided not copyrightable for lacking originality in the same decision. (source, court decision full text: Final judgement)
  • Gang Heng logo: China's Supreme People's Court ruled this logo to be protected by copyright in 2014 (original judgment by the Court; related news coverage).
  • Dyneema logo (in this article): China's Supreme People's Court ruled this logo to be protected by copyright in 2017 (original judgment by the Court).
  • K2 Sports logo as shown in the image below is eligible for copyright protection, determined during trademark adjudication proceedings in 2010 (source).
  • The logo of K2 Sports is copyrightable in China (but not copyrightable in its country of origin, the US).
    The logo of K2 Sports is copyrightable in China (but not copyrightable in its country of origin, the US).

Signatures

단축

참조: 공용:PD-signature 틀을 사용할 때

 Not OK: According to the laws of the People's Republic of China, whether a work is protected by copyright, that is contingent on the originality (独创性, literally "independent creativity"). Works having originality are protected and the copyright held by their authors ("Copyright Law of the People's Republic of China (2020) Article 15: "A work created by compilation shall refer to the work which is compiled of some works, fragments of works or the data or other materials not constituting a work, and the choice or layout of the contents of which embodies the original creation. The copyright of the compilation work shall be enjoyed by the compiler, provided that the exercise of such copyright does not infringe upon the copyright of the pre-existing works included in the compilation.") The signatures are commonly created independently rather than imitatively.

The signatures by the Chinese people containing Chinese characters may be considered as Chinese calligraphy works, and thus defined as artwork (美术作品, or translated as "works of fine arts") and protected by law ("Regulations for the Implementation of the Copyright Law of the People's Republic of China (2002) Article 4: "(8) 'works of fine arts' means two- or three-dimensional works of the plastic arts created in lines, colours or other media which impart aesthetic effect, such as paintings, works of calligraphy and sculptures;"). In a typical case, Dow Jones & Company had used a calligraphy "道" written by calligrapher Guan Dongsheng. In 2003, Guan Dongsheng won his court action against the company, ruling by the Beijing First Intermediate People's Court. The artwork can be seen here.

Exceptions OK:

  • If a signature is originally from documents of legislative, administrative, or judicial nature, it is in the public domain (see {{PD-PRC-exempt}}).
  • Signatures whose author died more than 50 years ago are in the public domain.
  • If the work is not a handwritten signature, but was instead created using standard, common typefaces of Ming, Sans-serif, or Regular script, it may be in the public domain. However, the vector glyphs in computer fonts may still be copyrighted.

Stamps

단축

참조: Commons:Stamps

As mentioned elsewhere (see Manchukuo and Wang Jingwei regime CRT pages), stamps issued by the government of Manchukuo, or the Wang Jingwei regime are nowadays in public domain, as both are considered as puppet regimes by Chinese Government, and hence never recognized their copyright status.

Pending informations, but in normal cases  Not OK for nearly all non-Manchukuo, non-Wang-regime stamps in China, because in most cases, the dates of birth of authors of those stamps are not publicly known, unless if that's issued before Jan 1, 1929 which is a {{PD-anon-expired}} case, we should de facto judge them as copyrighted by China Post or its affiliates (e.g. Beijing Stamp Factory).[7]

In rare cases, if the dates of birth of authors of some individual stamps are known, those can enter the public domain 50 years after the death of the creator.

See also

Citations

  1. ↑ a b China Copyright and Related Rights (Neighboring Rights). WIPO: World Intellectual Property Organization (2021). Retrieved on 2021-11-08.
  2. ↑ Copyright Law of the People’s Republic of China (as amended up to the Decision of February 26, 2010, by the Standing Committee of the National People's Congress on Amending the Copyright Law of the People's Republic of China). China (2010). Retrieved on 2018-11-08.
  3. ↑ 中华人民共和国著作权法 (2010年) Copyright Law of the People's Republic of China (2010)
  4. ↑ Copyright Law of the People's Republic of China (2010)
  5. ↑ 中华人民共和国著作权法 (1990年) Copyright Law of the People's Republic of China (1990)
  6. ↑ 中华人民共和国著作权法实施条例 Implementing Regulations of the Copyright Law of the People's Republic of China
  7. ↑ a b 中华人民共和国民法典 Civil Code of the People's Republic of China
  8. ↑ People's Bank of China. 人民币图样使用管理办法. China Banknote Priting and Minting Corp.
  9. ↑ 中华人民共和国著作权法 (2020年) Copyright Law of the People's Republic of China (2020)
Caution: The above description may be inaccurate, incomplete and/or out of date, so must be treated with caution. Before you upload a file to Wikimedia Commons you should ensure it may be used freely. 참조: Commons:General disclaimer
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