Software Copyright Registration in China, know before you go

Original article may be found here.
Please see the bottom of this article for attribution and associated licensing information.

In Europe registering software as a copyright is a relatively uncommon practice, with only few EU member states providing copyright registration. Instead, evidence to prove authorship is usually sufficient to enforce IPR ownership. This is not, however, the case in China, where copyright registration is highly recommended. This article discusses the importance of registering software as a copyright in China, and describes the registration process in China.

Why register software in China?

China has a software copyright registration system, which is not mandatory in order to enjoy legal protection of rights, but is very useful in proving ownership if you ever need to enforce your IP. This is because in most cases enforcement occurs at least 1-2 years after a software programme is finished, and consequently it can be difficult for the plaintiff to collect evidence of authorship at that time. Additionally, in practice such evidence is almost always challenged by the defendant, especially the date of establishment and ownership of the programme. In China, authorities including the Chinese People's Courts have shown a strong tendency to rely on formally registered documentary evidence. Therefore, software registration effectively and substantially reduces the burden of ensuring proof of ownership when enforcing IP.

In short, one copyright registration certificate can replace a large amount of weaker ownership evidence during litigation in China.

Not registering your software may save you money today, however you risk incurring significantly greater costs in future.

Where and how to register?

The Copyright Protection Centre of China is the official body responsible for software registration in China.

The following is required for software registration:

1) Bibliographical details of the owner, including name and address.

2) Copy of proof of identification of owner, for example business registration certificate of a company.

3) Details of the software programme including:

• Date of establishment.
• Operating environment, including details of hardware requirements and operating system.
• Programming language used.
• IF the software is not developed by the owner: how the rights to the software are derived, for example by assignment or inheritance, and related documentary proof.
• Substance of the software, which can be submitted in either the form of ordinary deposition or exceptional deposition, as described below.

Ordinary deposition

First and last 30 pages of:

1). Source code.

2). Specification/operation manual or entire documents if these have less than 60 pages each.

Exceptional deposition (any one of the below)

a) First and last 30 pages of source code with confidential portions concealed, but the total concealed portions not exceeding 50% of the submitted source code.

b) First 10 pages of source code, plus any consecutive 50 pages of any other portion of the source code.

c) First and last 30 pages of target code, plus any consecutive 50 pages of any other portion of the source code.

The above rules a) to c) are also applicable to the submitted specification/operation manual and it should be noted that each page of the source code must have at least 50 lines.

Who can register copyright in China?

Any business or individual can apply to register copyright but applicants without a registered business in China will need to provide a copy of their business license (both in the original language and translated into Chinese) authorised by the Embassy of the P.R.C in their own country. In place of the business license an individual would be required to submit a copy of their passport and its Chinese translation. Copyright holders may apply directly for copyright registration or entrust an agent to apply on their behalf. Where an agent is used, the agent must additionally submit his or her identification documents and a Power of Attorney from the copyright holder. It is recommended that EU-based applicants consult a Chinese legal firm to ensure translations of their documents are accurate.

Time

Applications for copyright registration are processed within 30 days after the CPCC accepts the application or if supplemental materials are required, within 30 days of receipt of the supplemental materials. However, registration may be delayed if registration fees are not paid within 10 days of receipt of the notice for payment.

How much does it cost?

The costs to register software as a copyright in China are in the region of 2,200 to 3,200 RMB (about 240 to 345 EUR), including official fees, depending on the number of documents involved. Exceptional deposition will cost an additional 320 RMB (about 35 EUR) for each item.

Handy tips

It is always desirable to disclose the source code of your software as little as possible. The following should be considered in order to achieve this purpose:

• Exceptional deposition should be considered and used if possible; confidential areas of the source code programme can be blacked out.
• The first 10 pages, preferably the first 30 pages of the source code, should contain as little important information as possible.
• Apply for ‘sealing up’ of the source code programme, documentation or samples. Only the right holder and judicial departments are then permitted to open the sealed material.

Furthermore, to ensure efficient proof of ownership and infringement by a third party, it is desirable to insert some specific identification, for example name, trade mark, or even slogan of the owner into the source code. It is preferred for such specific identification to appear in the first 10 to 30 pages of the source code, and should be unique to each software programme, for example the name of the software, the relevant version, and the programmer(s) involved. China Copyright Law clearly provides that where there is no evidence to the contrary, the citizen, legal entity or organisation whose name is shown on a work shall be deemed the author of the work.

Take-away message

Copyright registration of your software offers an easy way to prove your IP ownership in case there are any problems of IP infringement. If you do not register your software through the Chinese copyright registration system, it may be very difficult to prove ownership when enforcing your IP.

The China IPR SME Helpdesk is a European Commission funded project that provides free, practical, business advice relating to China IPR to European SMEs. To learn about any aspect of intellectual property rights in China, visit our online portal External Link. For free expert advice on China IPR for your business, e-mail China IPR SME Helpdesk with your questions.You will receive a reply from one of the Helpdesk experts within seven working days. The China IPR SME Helpdesk is jointly implemented by DEVELOPMENT Solutions and the European Union Chamber of Commerce in China.