What Should Foreigners Know About Copyright Transfer?

  

Source: OT-Team(G), 人民日报海外版

 Recently, the Overseas Edition of People's Daily published a detailed answer to a question from a foreign photographer regarding the legal considerations for transferring copyright of photographic works in China. 

• The Query:

  Jennifer (pseudonym), a foreign photographer working in China, posed the following question:

  "I am a foreign photographer working in China. Recently, I created a series of time-lapse photos depicting the cityscape of Changsha, Hunan. A local real estate company contacted me and expressed interest in signing a contract to purchase the rights to use my time-lapse photos for commercial promotions.

  I have not signed any contracts with companies, and the photos are my independent creation. I would like to know what legal issues I should be aware of when transferring the rights to these works."

• Legal Advice from a Professional:

  According to Chinese copyright law, photographic works are considered intellectual property under the framework of the Copyright Law of the People's Republic of China (hereinafter referred to as "the Copyright Law"). These works must exhibit originality and be expressed in a tangible form, which includes photographs. In the case of Jennifer's time-lapse photos, which are her personal and independent creation, they are not considered work-for-hire or commissioned works (as defined in Articles 18 and 19 of the Copyright Law). Therefore, Jennifer, as the creator, holds the copyright to her photographs and has the right to transfer it.

The lawyer provided the following detailed explanation on the matter:

1. Does the Photograph Hold Copyright Protection in China?

Under China's Copyright Law, copyright is automatically granted when a work is completed and fixed in a tangible form. According to Article 2 of the Copyright Law and Article 8 of the Regulations for the Implementation of the Copyright Law, Jennifer's photographs are eligible for copyright protection in China if certain conditions are met. The key points are:

(1)International Copyright Agreements: If Jennifer's home country or country of habitual residence has signed an agreement with China, such as the Berne Convention for the Protection of Literary and Artistic Works, her photographs will be protected in China.

(2)Publication in China: If the photographs were first published in China, or if they were first published outside China but within 30 days were published in China, they are automatically granted copyright protection.

(3)International Treaties: If the photographs were first published in a country that is a member of an international treaty that China is also a part of, the work would enjoy copyright protection in China.

(4)Other Scenarios: Any other applicable situation where copyright protection applies.

2. Registration of Works

  While copyright protection is automatic, registering the work provides additional security and legal benefits. The Certificate of Copyright Registration is a voluntary document issued by the copyright administration authorities, which serves as proof of copyright ownership. This registration is not required to enforce copyright, but it can be helpful in case of disputes, and it can streamline processes when transferring rights.

  To protect her legal rights, Jennifer is advised to register her time-lapse photography works with the local copyright authority before transferring the rights. This involves submitting the required application forms, proof of identity, proof of ownership, work samples, and other relevant documentation to the copyright office.

3. Signing a Written Transfer Agreement

  When transferring the rights to her photographs for commercial use, a written agreement should be signed with the real estate company. This agreement should clearly outline:

(1)The name of the work.

(2)The types of rights being transferred (e.g., reproduction rights, distribution rights, and rights to use the work for online distribution).

(3)The geographical scope of the rights.

(4)The payment amount and schedule.

(5)Any penalties for breach of contract.

  According to Article 27 of the Copyright Law, transferring these rights requires a written contract. Although not mandatory, the lawyer recommends that Jennifer also file this contract with the copyright authority, as this can serve as evidence in case of future disputes.

4. Tax Considerations

  According to China's Individual Income Tax Law and relevant regulations from the State Administration of Taxation, foreign nationals earning income from copyright transfers within China are required to pay individual income tax. Therefore, Jennifer must comply with China's tax laws when receiving payment for the transfer of her time-lapse photographs.

• Conclusion

  For foreign photographers like Jennifer, transferring the rights to their works in China requires attention to copyright laws, registration processes, and tax obligations. By registering the work, ensuring a written transfer agreement is in place, and paying the appropriate taxes, photographers can protect their rights and ensure a smooth transaction. It is advisable to seek legal counsel before proceeding with such transfers to fully understand the legal landscape and safeguard their intellectual property.

  This guidance should help foreign photographers navigate the legal complexities of transferring copyrights in China.