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(Promulgated
on June 4, 1991)
Chapter
I General Provisions
Article1
In
order to protect the rights and interests of creators of computer
software, to adjust the relationships of interest during the development,
dissemination and use of computer software, to encourage the development
and circulation of computer software, and to promote the development
of computer applications these regulations are enacted in accordance
with the provisions of the Copyright Law of the People's Republic
of China.
Article2
For
the purposes of these regulations computer software (hereinafter
referred to as software) refers to computer programs and related
documentation.
Article3
Meanings
of the following words used in these regulations are:
(1)
Computer programs: refers to coded instructional sequences-or those
symbol ic instructional sequences or numeric language sequences
which can be automatically converted into coded instructional sequences-which
are for the purpose of obtaining a certain result and which are
operated on information processing equipment such as computers.
Computer
programs include source code programs and object code programs.
The source code text of a piece of software and its object code
text should be seen as one work.
(2)
Documentation: refers to written materials and diagrams, using natural
language or formal language, which are used to describe the contents,
organization, design, functions and specifications, development
circumstances, testing results and method of use of the program,
for example: program design explanations, flow charts, user manuals,
etc.
(3)
Software developers: refers to those legal persons or units which
are not legal persons (hereinafter referred to as units) who actually
organize, undertake the work of development, and provide working
conditions to complete the development of software and who take
responsibility for the software as well; citizens who rely on their
own conditions to complete software and who take responsibility
for the software.
(4)
Software copyright owners: refers to those units and citizens who,
in accordance with these regulations, enjoy the copyright of a computer
software.
(5)
Reproduction: refers to the act of transferring software into a
material form.
Article4
The
provision of protection to computer software, as referred to in
these regulations, refers to (the fact that) that computer software
copyright holders or transferees enjoy all the rights of copyright
stipulated in these regulations.
Article5
Software
which enjoys protection under these regulations must be independently
developed by the developer and must already be in material form.
Article6
Chinese
citizens and units enjoy the copyright under these regulations for
software they have developed, regardless of whether it has been
published and regardless of where it has been published.
Foreigner's
software first published in China enjoys the copyright under these
regulations.
Software
published outside of China by foreigners enjoys copyright in China
and protection under these regulations according to a bilateral
agreement signed between the country to which it belongs and China
or according to international convention to which they are both
parties.
Article7
The
protection provided to software under these regulations cannot be
expanded to encompass the ideas, concepts, discoveries, principles,
algorithms, processing methods and operations used in the development
of computer software.
Article8
The
State Council's designated software registration agency administers
the registration of software throughout the entire country.
Chapter
II Computer Software Copyrights
Article
9
Software
copyright holders enjoy the following rights:
(1)
Right of publication, is the right to decide whether the software
should b e released to the public;
(2)
Developer's right of authorship, is the right to indicate the developer's
identity and to place his name on the software;
(3)
The right of use, is the right to use the software by copying, demonstrating,
distributing, altering, translating, annotating, etc., under the
precondition of not harming the public interest.
(4)
The right of licensing use and receiving remuneration, is the right
to license others, under provision 3 of this article, to use the
entire software or a part of it, and the right to get remuneration
for this.
(5)
The right of transfer, is the right to transfer to others the right
of use and right of licensing under provisions 3 and 4 of this article.
Article
10
The
copyright of a software belongs to its developer, where this regulations
have specific stipulations those should be followed.
Article
11
Where
software is developed jointly by 2 or more units, citizens, except
as provided for in a separate agreement, the copyright of the software
shall be jointly enjoyed by the developers.
Exercise
of the copyright co-developers shall be carried out in accordance
with any written agreement reached prior to creation of the software.
If there is no written agreement, and if the jointly developed software
can be used in separate parts, the co-developers can separately
enjoy the copyright on the parts they developed, but during the
exploitation of the copyright this may not be extended to the copyright
of the jointly developed work in its entirety. If the jointly developed
software cannot be used in separate parts, the co-developers may
exploit the copyright by consensus. If consensus cannot be reached,
and in the absence of any unusual reasons, neither party can prevent
the other from implementing its exclusive rights, with the exception
of the right of transfer to a third party. However, any benefits
earned shall be fairly distributed among the co-authors.
Article
12
The
copyright of software which is commissioned to be developed by another
person, shall be governed by any written agreement signed between
the person who commissioned the work and the person who undertook
the commission; if there is no written agreement or if it is not
clearly stipulated in the agreement, the copyright shall be enjoyed
by the person undertaking the commission.
Article
13
The
copyright of software which is developed pursuant to tasks assigned
by a legal person's superior organization or government department
shall be based on stipulations contained in the project task document
or contract; if not clearly stipulated in the project task document
or contract, the copyright belongs to the organization to which
the task was assigned.
With
regard to software which possesses major significance for national
or public security interests and is developed by organizations within
this system or organizations under their jurisdiction, responsible
departments of the State Council or the People's Governments of
provinces, autonomous regions, or centrally administered cities
have the right to permit designated organizations to use the software.
The organization using such software will pay a fee according to
relevant national regulations.
Article
14
If
software developed by a citizen while working in an organization
is the product of work executed for the organization, is developed
in accordance with the clearly stipulated development goals for
work in the organization, or is the predictable or natural result
of activities involved in the organization's work, then the software's
copyright belongs to the organization.
If
software developed by a citizen is not the result of work executed
for the organization, has no direct relationship to the content
of the work at the organization in which the developer is engaged,
and does not use the organization's material technical conditions,
the software's copyright belongs to the developer himself.
Article
15
The
term of protection of software copyright is 25 years, ending on
the 31st of December of the twenty- fifth year after the first publication
of the software. Prior to the fulfillment of the term of protection,
the software copyright holder may apply to the software registration
administration organization to extend the protection by 25 years,
although the period of protection may not exceed 50 years at the
longest.
There
is no limit on the period of protection of the software developer's
right of authorship.
Article
16
During
term of copyright protection of a given piece of software, the software
copyright holder's heir may, in accordance with relevant provisions
in the "People's Republic of China Inheritance Law", inherit
the rights in Items 3 and 4 of Article 9 of these regulations.
The
act of inheritance may not change the term of protection of the
rights of the software.
Article
17
During
the term of copyright protection of a given piece of software, after
a change has occurred in the organization which holds the software's
copyright, the succeeding organization legally will enjoy all the
rights to the software.
The
occurrence of succession will not change the term of protection
of the software's rights.
Article
18
During
the software copyright's term of protection, the software copyright
holder or his transferee may authorize others to implement the right
of use Article 9, Item 3, of these regulations. Software copyright
holders or their transferees may receive a fee while they are authorizing
others to implement the right of use.
Authorization
to implement a software copyright should be agreed and executed
according to China's laws and regulations in the form of a written
contract. The authorized person should implement the right of use
within the form, conditions, scope, and period of the contract.
The
period of effectiveness an authorizing contract may not exceed 10
years. When the period is complete, the contract may be extended.
The
act of authorization cited described above does not alter ownership
of software copyright.
Article
19
During
the software copyright period of protection, those who enjoy the
rights of use and license under Article 9, Items 3 and 4, may transfer
the rights use and license to other people.
Authorization
to transfer copyright should be carried out in accordance with laws
and regulations of China under a signed and executed written contract.
The
act of transfer does not alter ownership of software copyright.
Article
20
When
the term of validity of a software copyright expires, all rights
to the software cease, except for the developer's right of authorship.
In
the event that any circumstances fit either of the following situations,
all rights to a given piece of software, except the right of authorship,
will enter the public domain prior to the end of the term of protection:
(1)
The organization holding the software copyright terminates (dissolves)
and there is no legal successor;
(2)
The citizen holding the software copyright dies without a legal
heir.
Article
21
Those
organizations or citizens who legally own reproductions of software
have the right, without obtaining consent of the proprietary owner,
to:
(1)
To install and use in a computer according to the needs of use;
(2)
For the purpose of maintaining files, make a backup copy. However
these ba ck-up copies may not be provided to other persons by any
means.
Once
the owners lose the rights legally to own this software, these reference
copies must be completely destroyed;
(3)
In order to carry out necessary revisions for the purpose of using
said software in the real computer environment or improving its
performance. However, except in cases where there is additional
agreement, (the owner) may not provide to any third party the revised
document, without the agreement of the software copyright holder
or his legal transferee.
Article
22
For
the non-commercial purposes of work conducted in classroom education,
scientific research, the execution of legal duties by state organs,
etc., a small number of software reproductions may be made, without
obtaining the consent of the software copyright owner or his legal
transferee, and without giving compensation. However, when used,
the name of the software and its developer must be stated, and none
of the rights enjoyed by the copyright owners or their transferees
under the terms of these regulations shall be violated. After the
use of these copies if ended, they should be appropriately managed,
taken back, or destroyed.
They
must not be used for other purposes or given to other persons.
Chapter
III Computer Software Registration Administration
Article
23
Software
published after these regulations are promulgated may make application
for registration at the copyright registration administration organization.
After approval of registration, the Software Registration Administration
Organization will issue documents of proof of registration and make
public notice (of the registration).
Article
24
Registration
of software copyrights with the software registration administration
organization in accordance with these regulations is the prerequisite
for administrative treatment of rights disputes or of lawsuits.
Documents
of proof of registration issued by the Software Registration Administration
Organization are the initial documents certifying that a software
copyright is in effect or is in the process of applying for registration.
Article
25
When
applying for registration computer software copyright holders must
provide:
(1)
A software copyright registration form filled out in accordance
with the regulations;
(2)
Software identifying material in keeping with the rules.
Software
copyright holders must pay a registration fee according to the rules.
Specific
software registration administration methods and fee standards will
b e announced by the Software Registration Administration Organization.
Article
26
Software
copyright may be cancelled in either of the following situations:
(1)
According to final judicial judgement;
(2)
When primary information provided during the registration application
is acknowledged not to be authentic.
Article
27
For
any computer software which has already been registered, when activities
relating to transfer of software rights occur, the receiver should
put on record with the National Software Registration Administration
Organization within 3 months of the signing of the contract of transfer,
otherwise infringement activities by third parties cannot be contested.
Article
28
When
a Chinese national software copyright owner licenses or transfers
to a foreigner rights to software developed within China's territory,
he shall first make a request for approval to the relevant responsible
organs of the State Council and also make a report to the Software
Registration Administration Organization.
Article
29
Other
than to carry out registration administration responsibilities,
employees who work in software registration and persons who have
previously worked in this position, may not, during the period of
protection of a software copyright, utilize or reveal to any other
person the file material or other relevant information provided
at the time of the application for registration.
Chapter
IV Legal Responsibilities
Article
30
Except
for the situations described in Articles 21 and 22, in the event
of the following infringing activities, according to conditions
cessation of the infringement, elimination of the effects, public
apology, compensation for losses and other civil responsibilities
should be undertaken; moreover, state software copyright executive
administration departments may adopt executive punishments such
as confiscating unearned illegal income, fines, etc.:
(1)
Publishing software works without the consent of the software copyright
ow ner;
(2)
Taking software developed by others and publishing it in one's own
name;
(3)
Taking software developed in cooperation with another person and
publishin g it as a work completed by oneself alone, without the
permission of the cooperating developer;
(4)
Signing one's name to software developed by another person or altering
the signature on software developed by another;
(5)
Revising, translating, or annotating software without the permission
of the software copyright owner or his legal transferee;
(6)
Copying software, in whole or in part, without the permission of
the software copyright owner or his legal transferee;
(7)
Disseminating or revealing software. to the public without the permission
of the software copyright owner or his legal transferee;
(8)
Effecting the licensing or transfer of software to a third party
without the permission of the software copyright owner or his legal
transferee.
Article
31
Resulting
similarities between software developed and software already in
existence does not constitute a violation of the copyright of existing
software in the following situations:
(1)
Because it is necessary for the execution of national policies,
laws, and rules and regulations;
(2)
Because it is necessary for the setting of technical standards;
(3)
Because of the limited categories of forms of expression.
Article
32
If
a software owner is unaware that or has no reasonable basis to believe
that the software infringes on a software product right, the responsibility
for the violation shall be borne by the rights violator who provided
the software. However, when failure to destroy the infringed software
will not adequately protect the rights and interests of the software
copyright owner, the owner has a duty to destroy the infringing
software, so that losses may be forced back onto the provider of
the infringing software.
The
provider of infringing software cited in the previous provision
is a person who knows the software is an infringement and supplies
it to others.
Article
33
A
concerned party who does not carry out his duty or who carries it
out not in accordance with prescribed conditions shall bear civil
responsibilities according to the General Procedures of the Civil
Law.
Article
34
Software
copyright disputes may be mediated. If mediation fails to produce
an agreement, or if it produces agreement which one party fails
to honor, a lawsuit may be brought before a People's Court. A concerned
party who is unwilling to enter mediation may also bring a lawsuit
before a People's Court.
Article
35
A
software copyright contract dispute may be mediated. It may also
be applied for mediation by the state software copyright arbitration
organization, on the basis of an arbitration provision in the contract
or a written arbitration agreement concluded after the contract.
Concerned
parties will carry out an arbitration ruling. If one party fails
to carry out the arbitration ruling, the other may bring a lawsuit
before a People's Court.
If
the People's Court receiving the application discovers that the
arbitration ruling is illegal, it has the power not to execute the
ruling.
If
the People's Court does not carry out the ruling, concerns parties
may bring a lawsuit before the People's Court.
If
concerned parties have not inserted an arbitration clause into the
contract, and there is no written arbitration agreement after the
event, they may bring a lawsuit directly before the People's Court.
Article
36
If
a concerned party is dissatisfied with the remedial decisions of
the national copyright executive administrative department, he may
bring suit before the People's Court within 3 months from receipt
of notice.
When
this period has expired and no lawsuit has been brought, the national
copyright executive administrative department may apply to the People's
Court to force action.
Article
37
Software
registration administration organizations will assess administrative
punishment against employees of software registration administration
organizations who have violated Article 29 of these regulations.
If the circumstances are severe, constituting a crime, judicial
organs are responsible for investigating the crime.
Chapter
V Supplementary Articles
Article
38
Infringement
actions which take place prior to these regulations taking effect
should be dealt with in accordance with regulations in effect at
the time of the infringing activity.
Article
39
These
regulations will be interpreted by the State Council's department
for software registration administration and software copyright
administration departments.
Article
40
These
provisions take effect from October 1, 1991.
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