Regulation for Computer Software Protection
Contents
Chapter I General Provisions
Chapter II Software Copyright
Chapter III Licensing and Transfer of Software Copyright
Chapter IV Legal Responsibility
Chapter V Supplementary Provisions
Chapter I General Provisions
Article 1 For the purposes of protecting the rights and interests of computer software copyright owners, regulating beneficial relations in the development, dissemination and use of computer software, encouraging the computer software development and application and promoting the advance of the software industry and the information-based national economy, and in accordance with the Copyright Law of the People's Republic of China, this Regulation is formulated.
Article 2 In this Regulation, computer software (hereinafter cited as the software) shall mean computer programs and their documentation.
Article 3 Meanings of the following expressions in this Regulation:
1. Computer program shall mean a sequence of code-based instructions that can be executed by such devices having information processing capacity as computer for achieving a certain result, or a sequence of symbol-based instructions or expressions that can be automatically converted into a sequence of code-based instructions. The source program and the object program in a computer program shall be an identical work.
2. Documentation shall mean the written materials and diagrams, such as the program design specifications, flow charts and operating manual, which are used to describe the contents, elements, design, functions and specifications, development, testing results and operating method of the program.
3. Software creator shall mean the legal person or other organization which actually organizes to create or directly creates the software and assumes responsibility for that software; or the natural person who creates the software by virtue of his own resources and assumes responsibility for that software.
4. Software copyright owner shall mean the natural person, legal person or other organization that shall enjoy copyright in the software under the provisions of this Regulation.
Article 4 The software protected by this Regulation must be independently created by the creator and has been already fixed on any form of tangible medium.
Article 5 The software created by Chinese citizens, legal persons or other organizations shall have copyright under this Regulation, regardless of whether or not it is published.
The software of foreign or stateless persons shall have copyright under this Regulation, if it is first distributed in the territory of China.
The copyright in the software of foreign or stateless persons under the agreements concluded with China by the countries to which the creators belong or in which the creators reside habitually or under the international conventions to which China is a member state shall be protected by this Regulation.
Article 6 Protection for software copyright offered by this Regulation may not be extended to the ideas, processing operations, operating methods or algorithm concepts for creating the software.
Article 7 Software copyright owners may acquire registration from the software registration agencies acknowledged by the copyright administrative department under the State Council. The registration certificate issued by the software registration agencies shall be the preliminary evidence for the registration.
The acquisition of software registration shall be subject to the payment of fees. The fee schedule is to be specified by the copyright administrative department under the State Council in collaboration with the competent department of price under the State Council.
Chapter II Software Copyright
Article 8 Software copyright owners shall enjoy the following rights:
1. The right of publication, that is, the right to decide whether or not to make their software available to the public;
2. The right of authorship, that is, the right to indicate the creators' identity and to sign their names on their software;
3. The right of alteration, that is, the right to add or delete the elements of their software or to alter instructions or expression sequences;
4. The right of reproduction, that is, the right to make one or more copies of their software;
5. The right of distribution, that is, the right to supply the originals or copies of their software to the public in the form of sale or gift;
6. The right of rental, that is, the right to license other persons to use their software temporarily, except where their software is not the key subject matter of the rental;
7. The right of dissemination through information networks, that is, the right to supply their software to the public in the form of wire or wireless, in order to make the members of the public to obtain their software on the time or in the place selected;
8. The right of translation, that is, the right to convert their original software from a natural language into another; and
9. Other rights that shall be enjoyed by software copyright owners.
Software copyright owners may license other persons to exercise their software copyright and shall have the right to accept compensations.
Software copyright owners may, wholly or partly, transfer their software copyright and shall have the right to accept compensations.
Article 9 Software copyright shall belong to the software creators, unless otherwise specified in this Regulation.
Failing proof to the contrary, natural persons, legal persons or other organizations named in the software shall be the creators.
Article 10 The ownership of copyright in the software that was jointly created by two or more natural persons, legal persons or other organizations shall be stipulated in a written contract by the co-creators.
In the absence of such a written contract or an explicit stipulation in the contract, any of the co-creators may enjoy the copyright in the part he created if that software can be separated for use. Notwithstanding, his exercise of copyright may not be extended to the whole copyright in that software.
If that software cannot be separated for use, the copyright in it shall be jointly enjoyed by the co-creators and exercised by negotiation among them. In the case of failure of negotiation and without due grounds, one party may not prevent the other party from exercising the rights other than the right of transfer. Notwithstanding, profits thus received shall be distributed among all the co-creators reasonably.
Article 11 The ownership of copyright in the software that was created under the commission of other person shall be stipulated in a written contract by the commissioning and commissioned parties. In the absence of such a written contract or an explicit stipulation in the contract, the copyright in that software shall belong to the commissioned party.
Article 12 The ownership and exercise of copyright in the software that was created pursuant to a task assigned by a State organ shall be stipulated in the project task document or contract. If no explicit stipulation is made in the project task document or contract, the copyright in that software shall belong to the legal person or other organization that accepts the task.
Article 13 Under any of the following circumstances, the copyright in the software that was created by a natural person within the term of his duty in the legal person or other organization shall belong to the legal person or other organization.The legal person or other organization may give praises and rewards to the natural person who created the software:
1. The software was created for the purpose determined in the duty;
2. The software so created is the predictable or natural result in the activities of duty; or
3. The software was created mainly by virtue of such material and technical resources as fund, special equipment or undisclosed special information of the legal person or other organization and for which the legal person or other organization shall assume responsibility.
Article 14 The copyright in the software shall be commenced from the date on which the software is created.
The term of protection for the copyright in the software of the natural person shall be the life of the natural person and fifty years after his death, and shall end on 31st of December of the fiftieth year after his death. If the software was created jointly, the term of protection shall end on 31st of December of the fiftieth year after the death of the last surviving natural person.
The term of protection for the copyright in the software of the legal person or other organization shall be fifty years and shall end on 31st of December of the fiftieth year after the first publication of the software. However, if the software has not been published within fifty years from the date of creation, it shall not be protected by this Regulation.
Article 15 If the software copyright belongs to the natural person, the software copyright successor in title may, after the death of the natural person and within the term of protection, succeed to the rights other than the right of authorship offered by Article 8 of this Regulation according to the relevant provisions of the Succession Law of the People's Republic of China.
If the software copyright belongs to the legal person or other organization, but the legal person or other organization changes or terminates, the copyright shall, within the term of protection specified in this Regulation, belong to the legal person or other organization that assumes the rights and liabilities of the original legal person or other organization. In the absence of such legal person or other organization, the copyright shall belong to the State.
Article 16 Owners of lawful copies of software shall enjoy the following rights:
1. To load the software into such devices having information processing capacity as computer according to the operational need;
2. To make back-ups for avoiding damage to the copies. These back-ups may not be provided to other persons for use in any way. Once the owner loses the ownership of the lawful copies, he shall be responsible for destroying all the back-ups; and
3. To make necessary modifications in order to use the software in the practical application environment for computers or to improve the functions of the software.
The software so modified may not, however, be provided to the third party without the license of the software copyright owner, unless otherwise stipulated in the contract.
Article 17 Without the license of and payment to the software copyright owner, a person may use software for learning and studying the design idea and principle of the software in the form of loading, display, transmission or storage.
Chapter III Licensing and Transfer of Software Copyright
Article 18 The licensing of software copyright shall be in possession of a contract for licensing.
The licensee may not exercise the right that has not been licensed by the software copyright owner in the contract for licensing.
Article 19 If a software copyright is licensed to other persons to exclusively exercise, the parties concerned shall conclude a contract in writing.
In the absence of such a contract in writing or an explicit stipulation on exclusive license in the contract, the right so licensed to exercise shall be considered as the non-exclusive right.
Article 20 If a software copyright is transferred, the parties concerned shall conclude a contract in writing.
Article 21 The contracts for licensing other persons to exclusively exercise the software copyright or the contracts for transferring the software copyright may be registered at the software registration agencies acknowledged by the copyright administrative department under the State Council.
Article 22 Chinese citizens, legal persons or other organizations that license or transfer the software copyright to the foreign persons shall comply with the relevant provisions of the Regulation of the People's Republic of China on Administration of Import or Export of Technologies.
Chapter IV Legal Responsibility
Article 23 Except as otherwise provided in the Copyright Law of the People's Republic of China and this Regulation, any one who commits any of the following infringing acts shall, upon the situation, stop the infringement, eliminate the effect, make a public apology, compensate for loss and bear other civil responsibilities:
1. Without the licensing by the software copyright owner, to publish or register his software;
2. To publish or register another person's software as his own;
3. Without the licensing by the co-creator, to publish or register the software created jointly as one created by his own;
4. To sign his name in another person's software or to alter the name indicated therein;
5. Without the licensing by the software copyright owner, to alter or translate his software; or
6. Other acts of infringing the software copyright.
Article 24 Except as otherwise provided in the Copyright Law of the People's Republic of China, this Regulation or other laws or administrative regulations, any one who, without the licensing by the software copyright owner, commits any of the following infringing acts, shall, upon the situation, stop the infringement, eliminate the effect, make a public apology, compensate for loss and bear other civil responsibilities; if his act prejudices the social and public interests, the copyright administrative department shall order him to stop the infringing act, confiscate of his illegal gains, confiscate and destroy the infringing copies and may concurrently impose a fine; if the circumstances are serious, the copyright administrative department may concurrently confiscate of the key materials, tools and equipment for making the infringing copies; if his act prejudices the Criminal Law, he shall, according to law, be demanded for criminal responsibility under the provisions of the Criminal law on crimes of infringing on the copyright and crimes of selling the infringing copies:
1. To reproduce, wholly or partly, the software of the copyright owner;
2. To distribute, rent or disseminate through information networks the software of the copyright owner to the public;
3. Intentionally to escape from or disrupt the technical measures adopted by the copyright owner for protecting his software copyright;
4. Intentionally to delete or alter electric data for software right management; or
5. To transfer or license another person to exercise the software copyright of the copyright owner.
In addition, the infringer who commits the act under subparagraph 1 or 2 of the paragraph above shall be concurrently imposed a fine of 100 yuan per copy or not exceeding five times the value of the copies; the infringer who commits the act under subparagraph 3, 4 or 5 of the paragraph above shall be concurrently imposed a fine not exceeding 50,000 yuan.
Article 25 The amount of compensation for infringing the software copyright shall be determined under the provisions of the Copyright Law of the People's Republic of China.
Article 26 The software copyright owner who has evidences to prove that another person is committing or will commit an act of infringing his right which can cause a damage to his legitimate rights and interests if that act is not prevented promptly, may apply to the people's court for ordering to stop the act and adopting property preservation measures in accordance with the provisions of Article 49 of the Copyright Law of the People's Republic of China before he initiates the action.
Article 27 For the purpose of preventing the infringing act and under the situation that the evidence can be lost or difficult to obtain afterward, the software copyright owner may apply to the people's court for evidence preservation in accordance with the provisions of Article 50 of the Copyright Law of the People's Republic of China before he initiates the action.
Article 28 Publishers or producers of software copies who fail to offer evidences to prove official authorization for their publication or production, or distributors or renters who fail to offer evidences to prove the legal sources for their distribution and rental, shall bear legal responsibility.
Article 29 Similarity of a creator's software with the software already published due to the limited number of available forms of expression shall not constitute the infringement on the copyright in the software already published.
Article 30 The software copy holder who is unknown or has no reasonable grounds to know that his software is an infringing copy shall not bear the responsibility for compensation; however, he shall stop the use or destroy the infringing copy.
If the cease of use and destruction of the infringing copy has caused a serious loss to the copy user, the latter may continue the use after he makes a reasonable payment to the software copyright owner.
Article 31 All disputes in respect of the infringement on the software copyright may be mediated.
All disputes in respect of the contracts for software copyright may be applied for arbitration to the arbitration organizations pursuant to the arbitration clauses in the contracts or written arbitration agreements concluded afterwards.
The parties concerned may bring the action directly before the people's court in the absence of an arbitration clause in the contract or in the absence of a written arbitration agreement concluded afterwards.
Chapter V Supplementary Provisions
Article 32 The infringing acts committed prior to the entry into operation of this Regulation shall be handled under the relevant provisions in force of the State at the time when they were committed.
Article 33 This Regulation shall enter into operation on January 1, 2002.
The Regulation on the Protection of Computer Software promulgated on June 4, 1991 by the State Council shall be repealed on the same day.