It's that time of year where intellectual property aficionados mark ‘Public Domain Day’. As readers of this blog will know, on January 1st each year copyright protection, in various categories of work and in certain jurisdictions (including the UK and China), expires and as such enters the public domain (see our UK focussed 2024 post on considerations for businesses here and click here for our UK focussed 2023 blog post about some of our favourite works whose status changed on Public Domain Day last year). When copyright protection expires, works enter the public domain and become more readily available for everyone to use (but see the 2024 post linked above for an exploration of some of the complex UK wrinkles in this area). 

In this post, we explore the differences between the copyright expiration regimes in the UK and China. While both the UK and China are signatories to the Berne Convention, there are divergences in the type, length and applicability of protection given to works attracting copyright protection.  The expiration of copyright may be a key consideration for creators, businesses, and cultural institutions who may look to use or build upon past works, and understanding these distinctions is crucial for navigating the legal landscape in each country. 

It is crucial to understand that a work created by a British resident of Shenzhen, while only being protected by Chinese copyright for the author's life plus 50 years from the end of the year of the year in which the author died will still be protected in the UK for life plus 70 years. IP practitioners recognise this as being similar to the principle enshrined as Article 7(8) of the Berne Convention. This provides that works from short-copyright Country A have a long copyright term in long-copyright Country B, and works from Country B have short copyright protection in Country A unless in each case otherwise stated in a state’s legislation (the UK's Copyright, Designs and Patents Act 1998 (CDPA) providing that “where the work does not originate in the UK and the author is not a UK national”, the duration of copyright is “that to which the work is entitled in the country of origin” - as long as this is not longer than equivalent protection in the UK). It should be noted that the Berne convention will not apply to all protected works in our table below, but similar provisions can be found in international instruments relating to film, TV, recordings and other “entrepreneurial” works e.g. Article 1(2)(b) of the Satellite/Cable Directive (93/83/EC) and Article 2 of the International Convention for the protection of Performers, producers of Phonograms and Broadcasting Organisations (Rome Convention) 1961etc..

The practical effect of the above is that any rights holder seeking to rely on the Shenzhen author's work being in the public domain in China, will have to ensure that any inclusion or adaptation of such work is either edited out (e.g. replacing a re-recorded composition in a film soundtrack) or the work is held back from release in the UK where such work is still protected by UK copyright. To aid this analysis, at the end of this post you'll find a table comparing the key elements of the copyright regimes in the UK and China. The table will help prepare a clearer view of how these two countries provide for the end of a work's copyright protection. However, determining when a specific work is in the public domain and assessing possible scope of exploitation will always require fact specific analysis and advice across relevant jurisdictions. For advice on any of the issues identified in this article, contact Alex Lowe & Duncan Calow of DLA Piper UK LLP and Wilson Lung of DLA Piper Hong Kong.

We hope you're having a great 2025 so far and enjoy your Chinese New Year celebrations on January 29th! 

¹ In the UK, this excludes Crown and Parliamentary Copyright and there are different durations of protection if the author is unknown (i.e. orphan works).

² In the UK, this is provided they are ‘original’ i.e. the result of the “expresses the authors own intellectual creation” Infopaq ECJ.C-5/08.

³ In the UK, for works of joint authorship, this will be 70 years from the end of the calendar year in which the last known author dies.

⁴ In China, for works of joint authorship by natural persons, this will be 50 years from the last surviving author's death, ending on 31 December of the 50th year.

⁵ In China, this also includes the copyright in certain works created by a natural person during employment which may be first owned by his/her employer (a legal person or an unincorporated organisation). This position is similar to the UK statutory presumption of ownership where the work was completed "during the course of employment".

⁶ In the UK, if unpublished, this will be 50 years from the end of the calendar year in which the recording is made.

⁷ In the UK, by way of example, a recording of Frédéric François Chopin’s Nocturne in E Flat Major made during 1954 will now be in the public domain (Chopin having died in 1849)

⁸ In the UK, a ‘Specified person’ means the: principal director; author of the screen play; author of the dialogue; and, if commissioned specifically for the film, composer.

⁹ Many English law commentators believe that AI generated films would be considered a computer generated work, so the shorter protection when compared to a film will be of note to anyone utilising generative AI in creative endeavours.

¹⁰ In China, a work solely generated by computer can only be protected by copyright if it was created according to the will and under the responsibility of a legal person or an unincorporated organisation. In the UK, a computer generated work is defined under the CDPA as a " work is generated by computer in circumstances such that there is no human author of the work."