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Guidance
Ownership of copyright of a work created in the course of employment
IPR in China      2009-07-23 15:07:57
    Copyright Law of the People's Republic of China provides that a work created by a citizen in the fulfillment of tasks assigned to him by a legal person or entity without legal personality shall be deemed to be a work created in the course of employment.  Ownership of copyright of a work created in the course of employment can be divided into two situations:

1. The entity shall enjoy the copyright of a work created in the course of employment, while the author shall enjoy the right of authorship.

The author of a work created in the course of employment in one of the following circumstances shall enjoy the right of authorship, while the legal person or entity without legal personality shall enjoy the other rights included in the copyright and may reward the author:

1.1. Drawings of engineering designs and product designs and description thereof; computer software; maps and other works created in the course of employment mainly with the material and technical resources of the legal person or entity without legal personality and under its responsibility;

1.2. Works created in the course of employment where the copyright is, in accordance with laws, administrative rules and regulations or contracts concerned, enjoyed by the legal person or entity without legal personality.

2. The copyright in such a work shall be enjoyed by the author, provided that the legal person or entity without legal personality shall have a right of priority to exploit the work.

Except the above-mentioned situation that the copyright in a work created in the course of employment shall be enjoyed by the legal person or entity without legal personality, the copyright of the general work created in the course of employment shall be enjoyed by the author, provided that the legal person or entity without legal personality shall have a right of priority to exploit the work within the scope of its professional activities.  During the two years after the completion of the work, the author may not, without the consent of the legal person or entity without legal personality; authorize a third party to exploit the work in the same way as the legal person or entity without legal personality does.  However, during the two years after the completion of the work, the entity does not use the work within the scope of its professional activities, the author may request the entity to allow a third party to use the work as the way the entity use, the entity can not refuse without proper reasons.  Within two years after the completion of the work, with the permission of the entity, the reward that the author gets from allowing a third party to use the work as the way the entity use shall be distributed between the author and entity in proportion.  The period of two years after the completion of work shall start from the date of delivering the work to the entity.

Besides, for the computer software in a work created in the course of employment according to Regulation for the Protection of Computer Software, article 13: natural person while working for the legal person or entity without legal personality in one of the following circumstances, the copyright of the software shall be enjoyed by the legal person or other organization who may reward the author:

2.1. Software is the product of work executed for the organization, is developed in accordance with the clearly stipulated development goals for work in organization;

2.2. The developed software is the predictable or natural result of activities involved in the organization's work;

2.3. Mainly use the funds, special equipment and undisclosed specialized information and some other material technical conditions of the legal person or other organization who also take responsibility.

 

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