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Copyright  
 
Regulations on Computers Software Protection


Regulations on Computers Software Protection


Chapter I    General Provisions

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 development 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.


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-developers.
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
successer(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 rights 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 computers, 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.


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.


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 ones 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

(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 a 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.


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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