Copyright

Copyright belongs to that category of rights that we refer to as “intellectual property rights”. It confers both economic rights on the owner (e.g. the right to copy and sell a written work) and moral rights (e.g. the right to claim authorship of a written work).

The origin of the term “copyright” in English is quite straightforward: the word literally means “the right to copy”. There are two words that have been used in Chinese to express this concept: banquan, which is close to the English word and means “printing rights”, and zhuzuoquan, which derives from the concept of the “right of authorship” under German law and is the statutory term used in China.

Written documents are among the most common “work products” that lawyers create and include memoranda of advice and contracts. This column considers whether lawyers enjoy copyright in relation to written documents and the exclusive rights that copyright confers, such as the right to copy, revise, rearrange and translate.

Although lawyers rarely turn their mind to this question, and very rarely claim copyright against their clients, it is not simply a theoretical issue. In fact, the standard engagement terms that law firms provide to their clients often include a provision that deals with this question. Take, for example, the following provision:

We enjoy copyright and all other relevant intellectual property rights in our work products but you will have a licence to use and make copies of the documents we prepare for the purposes of the matter in which you have instructed us but not for any other matter unless we have otherwise agreed.

What is the effect of such a provision? Does it simply state the legal position or does it provide the law firm with protection that it would not otherwise have under law? The question could become relevant in various circumstances. Let’s consider a couple of scenarios. In scenario A, a client and its law firm have a dispute over the payment of the legal fees and the law firm withdraws from the engagement. In this scenario, can the law firm claim copyright over the agreement that it has drafted and prevent the client, or another law firm that the client instructs, from using the agreement to complete the deal, or using the agreement for another deal?

In scenario B, a law firm provides a detailed memorandum of advice to a client on a point of law. Another law firm obtains a copy of the memorandum and copies it for the purpose of giving advice to another party. Can the law firm that drafted the memorandum of advice claim copyright against the other law firm?

There are several issues that need to be considered in determining whether lawyers or law firms enjoy copyright in respect of their work products:

• Is the specific work product protected by copyright? (i.e. does it qualify for copyright protection?)
• If so, is there any basis on which a client or another party may still copy or revise the work product?

Let’s consider each of these questions in turn.

A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at law.asia.