Copyright and Design Right Enforcement

Copyright enforcement in China has evolved significantly in recent years, offering rights holders a multi-faceted approach to protect their intellectual property. The Chinese system provides three main avenues for copyright enforcement: civil litigation, administrative action, and criminal prosecution.

Civil litigation is a common route for copyright holders seeking to enforce their rights. The process typically involves:

1. Filing a complaint with the appropriate court
2. Presenting evidence of copyright ownership and infringement
3. Court hearings and judgment

China has established specialized IP courts in Beijing, Shanghai, and Guangzhou, as well as IP tribunals in various Higher People’s Courts, to handle complex copyright cases. These courts have developed expertise in handling IP matters, leading to more consistent and predictable outcomes.

Recent amendments to the Copyright Law have strengthened civil enforcement:

• Increased statutory damages up to RMB 5 million
• Introduction of punitive damages for willful infringement
• Shift in burden of proof to the defendant in certain circumstances

A unique feature of China’s copyright protection system is its robust administrative enforcement mechanism. The National Copyright Administration of China (NCAC) and local copyright administrative authorities (CAAs) play a crucial role in this process. Key aspects of administrative enforcement include:

1. Efficiency: Cases are typically resolved within a few months
2. Cost-effectiveness: Administrative actions are generally less expensive than litigation
3. Limited remedies: While CAAs can order infringers to cease activities and impose fines, they cannot award damages to copyright holders

The administrative route is particularly effective for straightforward cases and can serve as a valuable tool for gathering evidence for subsequent civil litigation.

For serious copyright infringement cases, criminal prosecution is an option. The threshold for criminal liability is typically met when the case involves significant illegal income or a large number of infringing copies.

With the rise of digital content, online copyright protection has become increasingly important. China has implemented several measures to address this:

1. Jianwang Campaign: An annual initiative targeting online copyright infringement, particularly in areas such as music, movies, literature, and software.
2. Notice-and-takedown procedures: E-commerce platforms are required to remove infringing content promptly upon notification.
3. Internet Courts: Specialized courts in Beijing, Hangzhou, and Guangzhou handle online copyright disputes.

China Customs also plays a role in copyright enforcement by intercepting infringing goods at the border. Copyright holders can record their rights with Customs to facilitate this process.

When enforcing copyrights in China, rights holders should consider:

1. Registering copyrights: While not mandatory, registration provides stronger evidence of ownership.
2. Gathering evidence: Collect and preserve evidence of infringement before initiating action.
3. Choosing the appropriate enforcement route: Consider factors such as case complexity, desired outcome, and available resources.
4. Combining enforcement methods: For example, using administrative action to gather evidence, followed by civil litigation.

Design right enforcement in China has become increasingly robust, offering rights holders multiple avenues to protect their intellectual property. The primary legal basis for design protection in China is the Patent Law, as designs are considered a type of patent.

Design patents in China protect the overall appearance of a product, including its shape, pattern, or color, or a combination of these elements. As of June 1, 2021, significant amendments to the Patent Law came into effect, strengthening design protection:

1. The protection term for design patents was extended from 10 to 15 years.
2. Partial designs became eligible for protection, aligning with international practices.
3. Domestic priority was introduced, allowing applicants to claim priority from an earlier Chinese application within six months.

Design right holders in China have several options for enforcing their rights:

1. Civil Litigation: This is the most common route for design patent enforcement. Civil lawsuits allow plaintiffs to seek injunctions and damages.
2. Administrative Enforcement: Local Administrations for Market Regulation (AMRs) can investigate and order infringers to cease their activities.
3. Customs Protection: China Customs can detain suspected infringing goods at the border, particularly for exports.
4. Criminal Prosecution: In cases of severe infringement, criminal charges may be pursued.

Civil litigation for design patent infringement typically involves the following steps:

1. Filing a complaint with a competent court
2. Evidence preservation and collection
3. Court hearings
4. Judgment and potential appeals

Recent improvements in civil litigation include:

• Increased statutory damages up to RMB 5 million
• Introduction of punitive damages for willful infringement
• Shift in burden of proof to the defendant in certain circumstances

Administrative enforcement through AMRs offers a faster and less costly alternative to litigation. Key features include:

1. Rapid resolution, typically within a few months
2. Authority to conduct raids and inspections
3. Power to order cessation of infringing activities
4. Ability to impose fines on infringers

While AMRs cannot award damages, their actions can be valuable for gathering evidence for subsequent civil litigation.

Design right holders can record their rights with China Customs to facilitate border enforcement. Customs officials can detain suspected infringing goods and notify the rights holder. This is particularly effective for combating the export of infringing products.

When enforcing design rights in China, rights holders should consider:

1. Registering designs promptly: China operates on a first-to-file system, making early registration crucial.
2. Conducting thorough searches: Before enforcement, ensure your design is not infringing on others’ rights.
3. Gathering strong evidence: Collect and preserve evidence of infringement before initiating action.
4. Choosing the appropriate enforcement route: Consider factors such as case complexity, desired outcome, and available resources.
5. Combining enforcement methods: For example, using administrative action to gather evidence, followed by civil litigation.

The 2021 amendments to the Patent Law have significantly strengthened design protection in China. The introduction of partial design protection allows for more targeted enforcement against infringers who copy specific parts of a product. Additionally, the extended protection term of 15 years brings China in line with international standards and enhances the value of design patents.