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Regulations on Computer Software Protection
Chapter I General Provisions
Article 1 These Regulations are hereby formulated in accordance
with the provisions of the Copyright Law of the People's Republic
of China with a view to protecting the rights and interests of
copyright owners of computer software, regulating the interests
generated in the development, dissemination and use of computer
software, encouraging the development and circulation of computer
software and promoting the development of the software industry
and informationisation of the national economy.
Article 2 Computer software (hereinafter referred to as software)
as mentioned in these Regulations refers to computer programs
and their relevant documents.
Article 3 The meanings of the following terms in these Regulations
are:
(1) A computer program refers to a coded instruction sequence
which is written for the purpose of obtaining a certain result
and 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. The source program and object
program of the same computer program are of one work.
(2) Documents refer to literal data and charts used to describe
the contents, composition, design, function norms, state of development,
test results and method of use, such as program design specifications,
flowcharts, and users' manuals.
(3) Software developers refer to legal entities or other organisations
actually organising and carrying out development work, and assuming
responsibility for the developed software; or natural persons
independently accomplishing software development by relying on
their own facilities and assuming responsibility for the software.
(4) Software copyright owners refer to natural persons, legal
entities or other organisations enjoying the copyright of software
in accordance with the provisions of these Regulations.
Article 4 Software protected under these Regulations must be
developed independently by the developers and already fixed on
certain tangible objects.
Article 5 In respect of the software he or it has developed,
regardless of whether or where the said software has been made
public, a Chinese citizen, legal entity or any other organisation
shall enjoy the copyright in accordance with these Regulations.
Where the software of a foreign person or stateless person is
first made public in China, he shall enjoy the copyright in accordance
with these Regulations.
The copyright of the software of foreign persons or stateless
persons shall be protected under these Regulations in accordance
with agreements concluded between the countries to which the developers
belong or in which their have they habitual residence and China
or according to international conventions China has acceded to.
Article 6 The protection of software under these Regulations
shall not be extended to ideas, handling processes, operating
methods or mathematical conceptions used in software development.
Article 7 Software copyright owners may register their software
with a software registry organ designated by the Copyright Administration
Department under the State Council. The certificates issued by
the registry organs are the preliminary regulatory proof of the
registration.
Registration of software requires payment of fees. The rate of
fees for software registration shall be provided for by the Copyright
Administration Department under the State Council in conjunction
with the competent pricing department under the State Council.
Chapter II Copyright of Software
Article 8 A software copyright owner shall enjoy the following
rights:
(1) The right of making public, i.e., the right to decide whether
to make the software available to the public;
(2) The right of authorship, i.e., the right to make known his
identity as developer and the right to have his name indicated
on his software;
(3) The right of alteration, i.e., the right to make addition
to, deletion from or modification of, instructions and/or statement
sequence;
(4) The right of reproduction, i.e., the right to produce one
or more copies of the software;
(5) The right of distribution, i.e., the right to make the original
copy or reproductions of the software available to the public
by virtue of sale or donation;
(6) The right of rental, i.e., the right to permit, with remuneration
paid to the authoriser, others to temporarily use software unless
the software is not the main subject matter of the rental;
(7) The right of communication on information networks, i.e.,
the right to communicate software to the public by wire or by
wireless means in such a way that members of the public may access
to the software at a time and from a place individually chosen
by them;
(8) The right of translation, i.e., the right to translate the
original software from one natural language and/or writing system
into another natural language and/or writing system; and
(9) Other rights the software copyright owners are entitled to.
The software copyright owner may authorise others to exercise
his software copyright and has the right to receive remuneration
therefor.
The software copyright owner may wholly or partially assign his
software copyright and has the right to receive remuneration therefor.
Article 9 The copyright of items of software shall be owned by
the respective software developers, except that these Regulations
provide otherwise for.
In the absence of evidence to the contrary, the natural person,
legal entity or other organisation whose name is indicated on
the software is the developer thereof.
Article 10 In respect of an item of software developed by two
or more natural persons legal entities or other organisations
in cooperation, the ownership of the copyright in the software
shall be stipulated by the conclusion of a written agreement between
the developers who have cooperated in the development of the software.
Where there is no written agreement, nor is there explicit stipulation
made in the agreement or where the software developed in cooperation
may be partitioned and used, the developers may separately enjoy
the copyright to the respective parts developed by them, but the
exercise of such copyright may not be extended to the copyright
of the jointly developed software as a whole. Where the software
developed in cooperation cannot be partitioned and used in parts,
the copyright shall be owned by the cooperating developers after
reaching unanimity through consultation. Where unanimity cannot
be reached through consultation, nor is there any justification,
none of the parties shall prevent the other party or parties from
exercising the rights except the right of assignment, but the
proceeds shall be appropriately distributed to all cooperating
developers.
Article 11 The ownership of the copyright of an item of software
developed on commission shall be stipulated by the conclusion
of a written agreement between the commissioning party and the
commissioned party. Where there is no written agreement, nor is
an explicit stipulation made in the agreement, the copyright shall
go to the commissioned party.
Article 12 The ownership and exercise of the copyright of an
item of software developed in fulfilling a task assigned by a
governmental department shall be stipulated by a letter of assignment
or by a contract. Where no explicit stipulation is made in the
letter of assignment or in the contract, the copyright of the
software shall go to the legal entity or other organisation accepting
the assignment.
Article 13 Where an item of software developed by a natural person
during his service the legal entity or other organisation falls
into any of the following provisions, the copyright of the software
shall be owned by the legal entity or other organisation, and
the legal entity or other organisation may reward the natural
person who has developed the software:
(1) The software is developed in accordance with development objective
explicitly assigned in line of duty;
(2) The developed software is a foreseeable or natural result
of his carrying on activities in the line of duty; or
(3) The software is one that is developed mainly by utilising
the fund, special equipment, undisclosed special information or
other material and technical facilities of a legal entity or other
organisation and for which the legal entity or other organisation
is responsible for.
Article 14 The copyright in software is generated on the date
of accomplishment of the development of the software.
The term of protection for a natural person's software copyright
shall be the lifetime of the natural person and fifty years after
his death, and expires on 31 December of the fiftieth year after
the death of the natural person; in the case of software of joint
development, such term shall expire on 31 December of the fiftieth
year after the death of the last surviving natural person.
The term of protection for a legal entity or other organisation's
software copyright shall be fifty years, and expires on 31 December
of the fiftieth year after the software is made public for the
first time. However, any item of software that has not been made
public for fifty years since the date on which the development
thereof is accomplished shall no longer be protected under these
Regulations.
Article 15 Where the copyright of an item of software belongs
to a natural person and the copyright is still within the term
of protection after the death of the natural person, the successor
to the software copyright shall succeed to the rights, except
the right of authorship, as stipulated in Article 8 of these Regulations
in accordance with the relevant provisions of the Law of Succession
of the People's Republic of China.
Where the copyright in an item of software belongs to a legal
entity or other organisation, its copyright shall, after the change
or termination of the status of the legal entity or other organisation,
during the term of protection provided for in these Regulations,
be enjoyed by the succeeding legal entity or other organisation
which has taken over the former's rights and obligations, or,
in the absence of such a successor legal entity or other organisation,
by the State.
Article 16 An owner of legitimate duplicates of an item of software
enjoys the following rights:
(1) to load the software into a computer or device capable of
information processing according to the need of use;
(2) to make backup duplicates for filing to prepare for damaged
duplicates. However, such backup duplicates shall not be supplied
in any way to others for their use. Once a holder loses its/his
right to hold the software lawfully, he or it shall be responsible
to destroy the said backup duplicates.
(3) to make necessary revisions of the software in order to use
it in an actual environment of computer application or to improve
its function and performance. However, except otherwise agreed,
it or he shall not supply the revised version to any third party
without the consent of the copyright owner of the software.
Article 17 Items of software may be used by way of installation,
display, transmission or storage, etc. for the purposes of study
and research of the concepts and principle underlying the design
of the software without the consent of, or remuneration to, the
copyright owner of the software.
Chapter III Licensing and Assignment of Software Copyright
Article 18 To license another person to exercise software copyright,
a licensing contract shall be concluded.
The licensee shall not exercise the right the software copyright
owner has not explicitly licensed in the licensing contract.
Article 19 To license another person to exclusively exercise
software copyright, the interested parties shall conclude a licensing
contract in writing.
Where no contract is concluded in writing, or where exclusive
licensing is not explicitly agreed in the contract, the licensed
right shall be deemed to be a non-exclusive right.
Article 20 Where a software copyright is to be assigned, the
interested parties shall conclude a contract in writing.
Article 21 Any contract concluded for licensing another person
to exclusively exercise software copyright, or for assigning a
software copyright, may be registered with a registry organ designated
by the Copyright Administrative Department under the State Council.
Article 22 Where a Chinese citizen, legal entity or other organisation
licenses or assigns his or its software copyright, he or it shall
comply with the relevant provisions of the Regulations of the
People's Republic of China on Technology Import and Export Administration.
Chapter IV Legal Liabilities
Article 23 Except otherwise provided for in the Copyright Law
of the People's Republic of China or these Regulations, where
any of the following acts of infringement occurs, the infringer
shall, according to circumstances, bear such civil liabilities
as stopping the infringement, eliminating the ill effects, making
an apology and compensating for the damages:
(1) to make public or register an item of software without the
consent of the software copyright owner;
(2) to make public or register, as one's own, an item of software
developed by another person;
(3) to make public or register, as a work completed on one's own,
an item of software developed in cooperation with others without
the consent of the cooperators;
(4) to have one's own name indicated on an item of software developed
by another person or to change the name indicated on an item of
software developed by another person;
(5) to alter or translate an item of software without the consent
of the software copyright owner; or
(6) to commit any other act of infringement of software copyright.
Article 24 Except otherwise provided for in the Copyright Law
of the People's Republic of China, these Regulations or other
laws and administrative regulations, where any of the following
acts of infringement occurs, the infringer shall, according to
circumstances, bear such civil liabilities as stopping the infringement,
eliminating the ill effects, making an apology and compensating
for the damages; where, meanwhile, the public interests are prejudiced,
the Copyright Administrative Department shall order cessation
of the infringing act, confiscate unlawful income from the act,
confiscate and destroy infringing duplicates, and may impose a
fine; if the circumstances are serious, the Copyright Administration
Department may also confiscate the materials, tools and equipment
mainly used for making the infringing duplicates; if the act violates
the criminal law, the infringer shall be prosecuted for his or
its criminal liabilities as imposed on the crime of copyright
infringement or the crime of selling infringing duplicates under
the Criminal Law:
(1) duplicating or partially duplicating the software of a copyright
owner;
(2) distributing, renting, or communicating to the public on an
information network, the software of a copyright owner;
(3) intentionally circumventing or destroying the technological
measures taken by a copyright owner for protecting the copyright
in his or its software;
(4) intentionally deleting or altering the electronic right management
information of software; or
(5) assigning, or licensing others to exercise, the copyright
in the software of a copyright owner.
Where the preceding act (1) or (2) is committed, a fine of RMB
100 yuan apiece, or of an amount no more than five times the amount
of the value of the goods, may be imposed; where the preceding
act (3), (4) or (5) is committed, a fine of no more than RMB 50,000
yuan may be imposed.
Article 25 The amount of damages for an infringement of software
copyright shall be fixed in accordance with the provisions of
Article 48 of the Copyright Law of the People's Republic of China.
Article 26 A software copyright owner who has evidence to establish
that another person is committing or, will commit, an act of infringement
of his right, which could cause irreparable injury to his legitimate
rights and interests if the act is not stopped immediately may,
according to the provision of Article 49 of the Copyright Law
of the People's Republic of China, apply to the People's Court
for ordering cessation of the related act and for tacking the
measures for property preservation before instituting legal proceedings.Article
27 For the purpose of preventing an infringing act and under the
circumstance where the evidence may be lost or is difficult to
obtain afterwards, the software copyright owner may, according
to the provision of Article 50 of the Copyright Law of the People's
Republic of China, apply to the People's Court for evidence preservation
before instituting legal proceedings.
Article 28 The publisher or producer of duplicates of an item
of software cannot prove that his publication or production has
been authorised, or the distributor or the renter of the reproduction
of an item of software who cannot prove that the reproductions
he or it has distributed or rented is from a legitimate source,
shall bear legal liability.
Article 29 Software developed by a software developer is similar
to an item of existing software due to limited alternatives of
expression available does not constitute an infringement of the
existing software copyright.
Article 30 The holder of duplicate of an item of software who
does no know, nor has any reasonable ground to know, that the
item of software is an infringing duplicate shall not be liable
for damages. However, he or it shall stop using and destroy the
infringing duplicate. If stopping the use of, or destroying, the
infringing duplicate causes great losses to the user of the duplicate,
the user of the duplicate may go on using it after paying the
software copyright owner the appropriate fees.
Article 31 A contractual dispute over software copyright infringement
may be settled through mediation.
The parties may apply to the arbitration organ for arbitration
of a contractual dispute over software copyright in accordance
with the arbitration clause in the contract or a written arbitration
agreement subsequently concluded.
Where the parties have not inserted an arbitration clause in the
contract, nor have they subsequently concluded a written arbitration
agreement, either of the parties may directly institute proceedings
in the People's Court.
Chapter V Supplementary Provisions
Article 32 Acts of infringement which occur before these Regulations
enter into force shall be dealt with in accordance with the relevant
State regulations in effect at the time said acts of infringement
occur.
Article 33 These Regulations shall enter into force as of 1 January
2002. The Regulations on Computer Software Protection issued by
the State Council on 4 June 1991 is simultaneously abrogated.
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