Determine what can be copyrighted and establish protection regime
March 07, 2011 | BY
Janice QuBeing proactive in planning rights ownership helps enforcement
Companies need to have an overall picture of their copyright ownership and a clear purpose for the exercise of such rights in the long term. Also of importance is the development of comprehensive precautions involving considerations of applicability of the law, say counsel.
Following the recent shutdown of free music and video content provider, VeryCD, Chinese netizens can no longer take for granted that the free downloadable resources they have enjoyed via peer-to-peer sites will continue to be available. The popular website's closure signifies the government's determination to safeguard rights holders and crack down on the rampant online copyright infringement that persists in China.
Xiaogang Ma, director of the China Copyright Association and a senior partner of Hylands Law Firm, says that combating online infringement is a unique challenge because of the uncertainty of the consequences of infringing acts, “invisibility” of the infringers, vulnerable evidence and applicability of relevant laws.
“A starting point is to make clear what possible various types of rights ownership can arise from business operations,” Ma said. These rights ownerships can be formed during the creation of a company's marketing and business strategies, or in the ownership agreements with its research and development personnel. Many companies may not be aware that original concepts devised during daily operations can be copyrighted.
“Companies need to be aware of what the consequences of the applicability of laws in relevant jurisdictions are,” said Ma. “For example, laws in mainland China and common law countries with regard to the use and ownership of commissioning works are different.”
Since copyright is defined by the way in which it is exercised, businesses need to have a “well-armed protection regime” of how these rights could be legally exercised and the way they expect it to be exercised. Ma says planning a protection strategy must cover the further exercise of rights because “in reality, due to an insufficient planning of rights ownership, many companies lose their rights that could have been enforceable”.
For a protection regime, a copyright owner must have a clear expectation of what will be received from the right and how to gain from it. The copyright owner's strategy should be forward-looking and a plan should be created on how he or she plans to exercise the right.
The compensation for copyright infringements in China is capped under statutory limits at Rmb500,000 or no more than five times the right holder's licence fee. However, the courts have attempted to break through this ceiling. “For internet infringement, the success of a claim is based on the collection of effective evidence and the grounds for which the calculation of damages is rested on,” said Ma.
In addition to monetary remedies, rights owners can also seek administrative penalties such as a revocation of licence, confiscation of equipment and profits, or require public apologies. JQ
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