Article 1. These
Regulations are formulated in accordance with the Copyright Law of
the People's Republic of China, for the purposes of protecting the
rights and interests of copyright owners of computer software, regulating
the relationship of interests generated in the development, dissemination
and use of computer software, encouraging the development and application
of computer software, and promoting the development of software industry
and the informatization of national economy.
Article
2. For the purposes of these Regulations, the term "computer software" (hereinafter referred to as "software") means computer programs and relevant documents.
Article
3. For the purposes of these Regulations, the following definitions apply:
(1) "computer
program" means a coded instruction sequence which may be executed
by devices with information processing capabilities such as computers,
or a symbolic instruction sequence or symbolic statement sequence
which may be automatically converted into a coded instruction sequence
for the purpose of obtaining certain expected results; the source
program and object program of a computer program shall be deemed as
one and the same work;
(2) "documents" means literal descriptions or charts used to describe
the content, structure, design, functional performance, historical
development, test results and usage, such as program design instructions,
flowcharts, and user's manuals;
(3) "software developer" means a legal entity or other organization
that actually organizes, or directly carries out, the developments
of a piece of software and assumes responsibility for the accomplished
software, or a natural person who independently completes, relying
on his own conditions, the development of a piece of software and
assumes responsibility therefor;
(4) "software copyright owner" means a natural person, legal entity
or other organization that enjoys software copyright in accordance
with these Regulations.
Article
4. The software protected under these Regulations must be developed independently by the developer and fixed on tangible medium.
Article
5. Chinese
citizens, legal entities or other organizations enjoy, in accordance
with these Regulations, copyright in the software which they have
developed, whether published or not.
Foreigners or stateless persons having software first published within
the territory of the People's Republic of China enjoy copyright in
accordance with these Regulations. Software copyright enjoyed by foreigners
or stateless persons under an agreement concluded between China and
the country to which they belong to or in which they have their habitual
residences, or, under an international treaty acceded to by China,
is protected in accordance with these Regulations.
Article
6. The
protection of software copyright under these Regulations shall not
extend to the ideas, processing, operating methods, mathematical concepts
or the like used in software development.
Article
7. A
software copyright owner may register with the software registration
institution recognized by the copyright administration department
of the State Council. A registration certificate issued by the software
registration institution is a preliminary proof of the registered
items.
Fees shall be paid for software registration. The charging standards
for software registration shall be provided for by the copyright administration
department of the State Council jointly with the competent department
for pricing of the State Council.
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Chapter
II Software Copyright
Article
8. A
software copyright owner shall enjoy the following rights:
(1) the right of divulgation, that is, the right to decide whether
to make the software available to the public;
(2) the right of developer-ship, that is, the right to claim developer's
identity and to have the developer's name mentioned in connection
with the software;
(3) the right of alteration, that is, the right to supplement or abridge
the software, or to change the sequence of instructions or statements;
(4) the right of reproduction, that is, the right to produce one or
more copies of the software;
(5) the right of distribution, that is, the right to provide the original
copy or reproductions of the software to the public by selling or
donating;
(6) the right of rental, that is, the right to authorize others to
use temporarily and onerously the original copy or reproductions of
the software, except where the software itself is not the essential
object of the rental;
(7) the right of communication through information network, that is,
the right to make the software available to the public by wire or
wireless means so that members of the public may have access to the
software from a place and at a time individually chosen by them;
(8) the right of translation, that is, the right to converse the natural
language of the software into another natural language; and
(9) other rights which shall be enjoyed by software copyright owners.
A software copyright owner may authorize others to exploit his copyright,
and has a right to receive remuneration.
A software copyright owner may transfer, wholly or in part, his copyright,
and has a right to receive remuneration.
Article
9. Except where otherwise provided in these Regulations, the copyright in a piece of software belongs to its developer.
The natural
person, legal entity or other organization whose name is mentioned
in connection with a piece of software shall, in the absence of proof
to the contrary, will be its developer.
Article
10. Where a piece of software is developed jointly by two or more natural persons, legal entities or other organizations, the copyright ownership shall be agreed upon in a written contract between the co-developers. Where, in the absence of a written contract or an explicit agreement in the contract, the joint software can be separated into independent parts and exploited separately, each co-developer may enjoy independent copyright in the part which he has developed, but the exploitation of such copyright shall not extend to the copyright in the joint software as a whole. Where the joint software cannot be separated into independent parts and exploited separately, its copyright is enjoyed jointly by those co-developers and exploited by agreement. In the absence of such an agreement, any co-developer shall not prevent, without justification, the other(s) from exploiting the copyright except the right of transfer; however, the profit received for exploiting the joint software shall be reasonably shared between all the co-developer.
Article
11. Where
a piece of software is developed on commission, the copyright ownership
shall be agreed upon in a written contract between the commissioning
and the commissioned parties. In the absence of a written contract
or an explicit agreement in the contract, the copyright shall be enjoyed
by the commissioned party.
Article
12. Where
a piece of software is developed under a task assigned by a State
organ, the ownership and exploitation of its copyright shall be stipulated
in a letter of project assignment or a contract. In the absence of
an explicit stipulation in the letter of project assignment or the
contract, the copyright shall be enjoyed by the legal entity or other
organization that has accepted the task.
Article
13. Where
a piece of software developed by a natural person working in a legal
entity or other organization in the course of his service involves
one of the following circumstances, the copyright therein shall be
enjoyed by such legal entity or organization, which may reward the
natural person for the development of the software:
(1) the software
is developed based on the development objective explicitly designated
in the line of his service duty;
(2) the software is a foreseeable or natural result of his work activities
in the line of his service duty; or
(3) the software is developed mainly with the material and technical
resources of the legal entity or other organization, such as funds,
special equipment or unpublished special information, and the legal
entity or other organization assumes the responsibility therefor.
Article
14. The
software copyright shall exist from the date on which its development
has been completed.
In the case of software copyright of a natural person, the term of
protection shall be the lifetime of such person and fifty years after
his death, expiring on December 31 of the fiftieth year after his
death. In the case of a piece of joint software, the term of protection
shall expire on December 31 of fiftieth year after the death of the
last surviving developer.
In the case of software copyright a legal entity or other organization,
the term of protection shall be fifty years, expiring on December
31 of the fiftieth year after the first publication of such software;
however, if any such software has not been published within fifty
years from the date on which its development has been completed, it
shall be no longer protected under these Regulations.
Article
15. Where
software copyright belongs to a natural person, his successor(s) may,
after his death, inherit the rights provided for in Article 8 of these
Regulations except the right of developer-ship, during the term of
protection provided for in these Regulations, in accordance with the
succession Law of the People's Republic of China.
Where software copyright belongs to a legal entity or other organization,
the copyright shall, after the change or the termination of the legal
entity or other organization, be enjoyed, during the term of protection
provided for in these Regulations, by the legal entity or other organization
that has taken over the former's right and obligations, or, in the
absence of such entity or organization, by the State.
Article
16. Owners
of lawful copies of a piece of software enjoy the following rights:
(1) to install and store the software in devices with information
processing capabilities, such as computer, according to the need of
their use;
(2) to make backup copies against damage, provided that such owners
do not offer others in any way the backup copies for their use and
that they destroy such copies once they lose the ownership thereof;
and
(3) to make necessary alterations to the software in order to implement
it in an actual environment of computer application or to improve
its functions or performance, provided that such owners do not ,except
otherwise agreed in the contract, offer any third party the altered
software without permission from the software copyright owner.
Article
17. A
piece of software may be used by its installing, displaying, transmitting
or storing for the purposes of studying or researching the design
ideas or principles embodied therein, without permission from, and
without payment of remuneration, to the software copyright owner.
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Chapter
III Software Copyright Licensing and Transfer
Article 18. In
the case of a license to exploit software copyright, the parties shall
conclude a licensing contract. The licensee shall not exploit any
right that the software copyright owner has not expressly granted
in the contract.
Article
19. In
the case of an exclusive license to exploit software copyright, the
parties shall conclude a written contract.
In the absence
of a written contract or an explicit agreement upon exclusive license
in the contract, the right that the licensee is authorized to exploit
shall be deemed as a non-exclusive right.
Article 20. In the case of a transfer of software copyright, the parties shall conclude a written contract.
Article
21. Anyone that concludes an exclusive licensing contract or a transfer contract of software copyright may register with the software registration institution recognized by the copyright administration department of the State Council.
Article
22. A
Chinese citizen, legal entity or other organization that authorizes
a foreigner's exploiting software copyright, or transfers it to a
foreigner, shall comply with the Regulations of the People's Republic
of China on Administration of Technology Import and Export.
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Chapter
IV Legal Liability
Article
23. Except
where otherwise provided in the Copyright Law of the People's Republic
of China or these Regulations, anyone who commits any of the following
acts of infringement shall, in light of the circumstances, bear civil
liability by means of ceasing infringements, eliminating ill effects,
making an apology, or compensating for losses:
(1) to publish or register a piece of software without the authorization
of the software copyright owner;
(2) to publish or register a piece of software developed by another
person as ones own;
(3) to publish, or register, a piece of joint software as developed
solely by oneself, without the authorization of the other co-developer(s);
(4) to have one's name mentioned in connection with, or alter the
name on, a piece of software developed by another person;
(5) to alter or translate a piece of software without the authorization
of the software copyright owner; or
(6) to commit other acts of infringing upon software copyright.
Article
24. Except
where otherwise provided in the Copyright Law of the People's Republic
of China, these Regulations, or other laws or administrative regulations,
anyone who, without the authorization of the software copyright owner,
commits any of the following acts of infringement shall, in light
of the circumstances, bear civil liability by means of ceasing infringements,
eliminating ill effects, making an apology, or compensating for losses;
where such act also prejudices the public interest, the copyright
administration department may order to cease infringements, confiscate
illegal income, confiscate or destroy the infringing copies, and may
impose a fine concurrently; where the circumstances are serious, the
copyright administration department may confiscate the material, tools
and equipment mainly used to produce infringing copies; and where
the act violates the Criminal Law, criminal liability shall be investigated
for the crime of infringing upon copyright or selling infringing copies
in accordance with the provisions of the Criminal Law:
(1) to reproduce, wholly or in part, a piece of software of the copyright
owner;
(2) to distribute, rent or communicate to the public through information
network a piece of software of the copyright owner;
(3) to knowingly circumvent or sabotage technological measures used
by the copyright owner for protecting the software copyright;
(4) to knowingly remove or alter any electronic rights management
information attached to a copy of a piece of software; or
(5) to transfer, or authorize another person to exploit, the software
copyright of the owner.
Whoever commits the act referred to in item (1) or (2) of the preceding
paragraph may be concurrently fined 100 Yuan for per copy or not more
than 5 times of the value of the products; and, those who commits
the act referred to in item (3), (4) or (5) of the preceding paragraph
may be fined not more than 50, 000 Yuan concurrently.
Article
25. The
compensation paid for infringing upon software copyright shall be
determined in accordance with Article 48 of the Copyright Law of the
People's Republic of China.
Article
26. A software copyright owner that can present evidence to prove that another person is committing, or is to commit, an infringement which, if not being prevented promptly, is likely to cause irreparable harm to him, may, before instituting legal proceedings, apply to a people's court, in accordance with Article 49 of the Copyright Law of the People's Republic of China, for an order of a stop to relevant act and for measures of property preservation.
Article
27. In
order to prevent infringement, a software copyright owner may, before
instituting legal proceedings, apply to a people's court, in accordance
with Article 50 of the Copyright Law of the People's Republic of China,
for evidence preservation where the evidence is likely to be missing,
or to be obtained difficultly later.
Article
28. A
publisher or producer of copies of a piece of software that fails
to prove that the legal authorization for the publication or production,
or, a distributor or renter of copies of a piece of software that
fails to prove the legal source of the copies which he distributes
or rents, shall bear legal liability.
Article
29. The development of a piece of software which is similar to pre-existing one due to a limit of alternative forms of expression does not constitute an infringement of the copyright in the pre-existing one.
Article
30. A holder of copies of a piece of software that neither knows nor has reasonable grounds to know that such copies are infringing ones does not bear liability of compensation but shall cease the use of, and destroy, the infringing copies. Nevertheless, if the cease of use or the destruction of such copies is likely to cause heavy losses to him, the holder of such copies may, after paying reasonable remuneration to the software copyright owner, continue to use such copies.
Article
31. A
dispute over software copyright infringement may be settled by mediation.
A dispute over a software copyright contract may be submitted to an
arbitration institution for arbitration under an arbitration clause
in the copyright contract or under a written arbitration agreement
concluded later between the parties.
Any party may institute legal proceedings directly in a people's court
in the absence of an arbitration clause in the contract or of a written
arbitration agreement concluded afterwards between the parties.
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Chapter
V Supplementary Provisions
Article 32. Any
act of infringing upon software copyright committed prior to the entry
into force of these Regulations shall be dealt with under the relevant
provisions of the State that are in force at the time when the act
was committed.
Article
33. These
Regulations shall be effective as of January 1, 2002. The Regulations
on Computer Software Protection promulgated by the State Council on
June 4, 1991 shall be repealed simultaneously.
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