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| Regulations on Computer Software Protection |
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| Publish Time：2005-5-16 13:58:57 |
(June 4 1991)
Chapter I General Provisions
Article 1 These Regulations are formulated in accordance with the provision 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 soft ware, regulating the interests generated in the development. dissemination and use of computer software, encouraging the development and circulation of computer software and promoting the application of computers.
Article 2 Computer software (hereinafter referred to as software for short) as mentioned in these Regulations refers to computer programs and their relevant documentation.
Article 3 The meanings of the following terms in these Regulations are as follows:
(1) A computer program refers to 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. Computer programs include source programs and object programs. The source text and object text of the same pro-gram shall be deemed to be one and the same copyright piece.
( 2 ) Documentation refers to literal descriptions and charts compiled and written in natural language or formal languages and used to describe the content structure design functional performance, historical development, test results and usage, such as program design instructions, flowcharts. and users’ manuals.
(3) Software developers refer to legal persons or non-le-gal person entities (hereinafter referred to as entities) actually organizing and carrying out development work, providing working facilities for accomplishing software development. and assuming responsibility for the software, and citizens accomplishing software development by relying on their own facilities and assuming responsibility for the pieces of software.
(4) Software copyright owners refer to entities and citizens enjoying the copyright of software in accordance with the provision of these Regulations.
(5) Copying refers to acts of transferring software onto physical objects.
Article 4 Protection for software as mentioned in these Regulations refers to the enjoyment by a copyright owner of a piece of software or his assignee of the various rights under software copyright prescribed by these Regulations.
Article 5 Software being protected under these Regulations must be developed independently by the developers and borne by physical objects.
Article 6 In respect of a piece of software developed by a Chinese citizen or entity, regardless of whether or where the said software has been made public, he or it shall enjoy the copyright in accordance with these Regulations.
Where a piece of software developed by a foreigner is first made public in China, he shall enjoy the copyright in accordance with these Regulations.
The copyright of the software of a foreigner made public outside China shall be protected by these Regulations in accordance with agreements concluded between his country and China or with international conventions acceded to by his country and China.
Article 7 The protection of software under these Regulations cannot be extended to cover the ideas, concepts. discoveries, theories, algorithms, processing and operating methods used in software development.
Article 8 The organ for software registration and ad-ministration authorized by the State Council shall be in charge of software registration throughout the country.
Chapter II Copyright of Computer Software
Article 9 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 the developer’ s authorship, i.e., the right to make known his identity as developer and the right to have his name indicated on his piece of software;
(3) The right of exploitation, i. e., the right to exploit his software in such manners as copying, display, distribution . revision, translation, and annotation on the premise that the public interests is not damaged;
(4) The right of authorization for use and the right of being remunerated, i. e., the right to authorize others to use his piece of software in some or all of the manners stipulated in (3) of this article and to receive remuneration therefor;
(;) ) The right of assignment, i. e., the right to assign to others the right of exploitation and the right of authorization for use as stipulated in (3) and (4) of this article.
Article 10 The copyright of a piece of software shall be owned by the software developer. Where there are special provisions in these Regulations, the provisions shall apply.
Article 11 In respect of a piece of software developed by two or more entities or citizens in cooperation, the copyright of the software shall be jointly owned by the developers who have cooperated in its development.
The software copyright owned by the cooperating developers shall be exercised according to a written agreement concluded in advance. Where there is no written agreement while the software developed in cooperation may be partitioned and used, the developers may separately enjoy the copyright to the respective portions 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 piece of software developed in cooperation cannot be partitioned and used, the copyright shall be exercised by the co-operating developers after reaching unanimity through consultation. Where unanimity cannot be reached through consultation, nor is there any justified reason, none of the parties shall prevent the other party or parties from exercising the rights other than the right of assignment, but the proceeds shall be distributed reasonably to all cooperating developers.
Article 12 The attribution of the copyright of a piece 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 be attributed to the commissioned party.
Article 13 The attribution of the copyright of a piece of software developed in fulfilling a task assigned by a higher entity or government department shall be stipulated by a letter of work assignment or contract. Where no explicit stipulation is made in the letter of work assignment or contract, the copyright of the piece of software shall be attributed to entity accepting the assignment.
The relevant departments under the State Council and the People’s Governments of the various provinces. autonomous regions and municipalities have the right to decide, in respect of software which is developed by entities under ownership of the whole people within their respective sectors or under their jurisdiction and which is of great significance to national interests and public interests, to allow such pieces of software to be exploited by designated entities, and the exploiting entities shall pay exploitation fees to the developing entities in accordance with the relevant enactments of the State .
Article 14 In respect of a piece of software developed by a citizen while working in an entity, where such a piece of software is a result of performing his assigned duty, i.e., where it is developed in accordance with a development objective explicitly assigned in the line of duty, or a foreseen result or natural result of his carrying out activities in the line of duty, the copyright of the software shall be attributed to the entity.
Where a piece of software developed by a citizen is not a result of performing his duty, and is not directly related to the content of the work engaged in by the developer in the entity, nor have the material and technical facilities of the entity been utilized, the copyright of the software shall be attributed to the developer.
Article l 5 The term of protection for the copyright of a piece of software shall be twenty-five years, ending on the 31st day of December of the twenty-fifth year after the soft-ware is first made public. Before the expiration of the term of protection, the software copyright owner may apply to the organ for software registration and administration for an extension of twenty-five years, but the total term of protection shall not exceed fifty years at the longest.
The term of protection for the right of the developer’ s authorship of the software shall be unlimited.
Article 16 Within the term of protection for the copy-right of a piece of software, the successor to the software copyright shall be entitled to the rights stipulated in Items (3) and (4) of Article 9 of these Regulations in accordance with the relevant provisions of the Inheritance law of the People ‘ s Republic of China .
The occurrence of succession shall not change the term of protection for the rights pertaining to the software.
Article 17 After the occurrence of a change of the entity owning the copyright of a piece of software within the term of protection for the copyright of that piece of software, the various rights pertaining to that piece of software shall be owned by the lawful succeeding entity.
Where there is a change of the entity owning the copyright of a piece of software, the term of protection for the rights pertaining to that piece of software shall not change.
Article 18 Within the term of protection for the copy-right of a piece of software, the copyright owner of the piece of software or his assignee has the right to authorize others to exercise the right of exploitation stipulated in Item (3) of Article 9 of these Regulations. In authorizing others to exercise the right of exploitation, the copyright owner or his assignee may charge fees according to an agreement.
The licensing of software rights should be conducted in the manner of concluding and executing a written contract in accordance with the relevant laws and regulations of the People’ s Republic of China. The licensee should exercise the right of exploitation by adhering to the manner, conditions, scope and duration stipulated in the contract.
The period of validity of a licensing contract shall not exceed ten years each time. A contract may be renewed on expiration.
Where the licensed rights pertaining to the software are not explicitly stipulated in the contract as exclusive, they should be deemed to be non-exclusive.
The occurrence of the above-mentioned licensing activities shall not change the attribution of the copyright of the software.
Article 19 Within the term of protection for a piece of software, the owner of the right of exploitation and the right of authorization for use stipulated in Items (3) and (4) of Article 9 of these Regulations may assign to others the right of exploitation and the right of authorization for use.
The assignment of rights pertaining to a piece of soft-ware should be conducted in the manner of concluding and executing a written contract according to the relevant laws and regulations of the People’s Republic of China.
The occurrence of assignment activities shall not change the term of protection for the copyright of the piece of software .
Article 20 After the term of protection for the copy-right of a piece of software expires, the rights, other than the right of the developer’s authorship, pertaining to the soft-ware shall be terminated.
In one of the following events, the various rights, other than the right of the developer’s authorship, pertaining to a piece of software shall enter the public domain before the expiration of the duration of protection:
(1) the entity owning the copyright of the software having been dissolved and there having been no lawful successor;
(2) the citizen owning the copyright of the software being dead and there having been no lawful successor.
Article 21 Entities or citizens lawfully holding copies of a piece of software shall enjoy the following rights without the consent of the copyright owner of the software:
(1) to install and store the piece of software on a computer according to its/his need and {or the purpose of using it:
( 2 ) to make backup copies for filing. However . such backup copies shall not be supplied in any way to others for their use. Once the holders lose the right to hold the software lawfully, all the said backup copies must be destroyed;
(3) to make necessary revisions in the piece of software in order to implement it in an actual environment of computer application, or to improve its function and performance. How ever, except otherwise agreed, the holder shall not supply the revised version to any third party without the consent of the copyright owner of the software or his lawful assignee.
Article 22 A piece of software may be copied in small quantities to serve such non-commercial purposes as education, scientific research, or government business without the consent of, or remuneration to, the copyright owner of the software or his lawful assignee. However, in exploiting the software in such a manner, the title and developer of the piece of software should be made known, and the various other rights enjoyed by the copyright owner or his lawful assignee in accordance with these Regulations must not be infringed. The copies should be properly stored, redeemed or destroyed after use and must not be used for other purposes or supplied to others.
Chapter III
The Registration and Administration of Computer Software
Article 23 In respect of a piece of software being made public after the issuance of these Regulations, an application for its registration may be filed with the organ for software registration and administration. After the application for registration is approved, a registration certificate shall be granted and an announcement shall be made to the public by the organ for software registration and administration.
Article 24 The registration of the copyright of a piece of software with the organ for software registration and ad-ministration is the premise to submitting a request for the administrative intervention in, or to instituting legal proceedings for, a software right dispute.
A registration certificate granted by the organ for soft-ware registration and administration is the initial certification of the validity of the copyright of a piece of software or of the verification and proof of the facts stated in the application document for registration.
Article 25 In applying for registration, the copyright owner of a piece of software should submit:
(1) a software copyright registration form to be filled in as prescribed;
(2) a written appraisal of the piece of software conforming to the prescribed rules.
The copyright owner of the software should also pay a registration fee as prescribed. The specific administrative procedures and schedule of charges for software registration shall be published by the organ for software registration and administration.
Article 26 The registration of the copyright of a piece of software may be cancelled in one of the following events:
(1) in accordance with a final judicial judgment;
(2) the principal information provided in the application for registration having been confirmed to be untrue.
Article 27 In respect of a piece of software already registered, where the software rights are assigned, the assignee should report the transaction to the organ for software registration and administration for the record within three months of the official signing of the assignment contract, otherwise the assignee will not be able to counter the infringing activities of a third party.
Article 28 Where a Chinese software copyright owner licenses or transfers to a foreigner the rights of a piece of software developed in China, the copyright owner shall report the transaction to the relevant department under the State Council for approval, and to the organ for software registration and administration for the record.
Article 29 Personnel engaging in software registration and those who have worked in this capacity shall not make use of or divulge to others, within the duration of protection for the copyright of the software, the filed material and related information that applicants submit on registration except fot the purpose of performing the duties of registration and administration.
Chapter IV Legal Liabilities
Article 30 With the exception of the events stipulated in Articles 21 and 22 of these Regulations, where any of the following acts of infringement occurs, the infringer should, according to circumstances, bear such civil liabilities as stop-ping the infringement, eliminating the adverse effects, making a public apology and compensating for the damages, and the administrative authorities of the State for software copyright may inflict administrative sanctions on the infringer such as confiscating the unlawful income and imposing a fine:
(1) to make a piece of software public without the con-sent of the copyright owner of the software;
(2) to make public as one’ s own work a piece of software developed by others;
(3) to make public as a work completed on one’ s own a piece of software developed in cooperation with others with-out the consent of the cooperators;
(4) to have one’ s own name indicated on a piece of soft-ware developed by others or to obliterate the name indicated on a piece of software developed by others;
( 5 ) to alter, translate or annotate a piece of software without the consent of the copyright owner of the software or its lawful assignee;
(6) to copy, or copy in part, a piece of software without the consent of the copyright owner of the software or its lawful assignee:
(7) to distribute or disclose to the public a copy of a piece of software without the consent of the copyright owner of the software or its lawful assignee;
( 8 ) to conduct business concerning the licensing or transfer of a piece of software to any third party without the consent of the copyright owner of the software or its lawful assignee .
Article 31 Similarity between a piece of software developed by oneself and an existing piece of software caused by one of the following events shall not constitute infringement on the copyright of the existing piece of software:
( 1 ) where it is necessary to implement the relevant policies, laws. regulations and rules of the State;
( 2 ) where it is necessary to implement the technical standards of the State;
(3) where there is a limited number of available options in the forms of presentation.
Article 32 Where the holder of a piece of software has no knowledge of or has no reasonable basis for having knowledge of, the piece of software being an infringing object. the liability for infringement shall be borne by the supplier of the infringing piece of software. However, where the rights and interests of the copyright owner of the software will not be sufficiently protected without that piece of soft ware held by the holder being destroyed. the holder has the obligation to destroy the piece of software it holds. and the holder may demand compensation from the supplier of the in-fringing piece of software for the losses the holder suffers in this connection.
The term ‘supplier of an infringing piece of software” mentioned in the preceding section covers one who supplies an infringing piece of software to others fully knowing that it is an infringing piece of software.
Article 33 Where an interested party fails to perform the obligations in a contract or fails to perform the obligations in a contract in conformity with the conditions stipulated, it should bear civil liabilities according to the relevant provisions of the General Principles of the civil law.
Article 34 An infringement dispute over software copy-right may be settled through mediation. Where mediation fails or where one of the parties changes its mind after an agreement has been concluded through mediation, proceedings may be instituted in the People’s Court. Proceedings may al-so be instituted directly in the People’s Court where the par-ties do not wish to settle the dispute through mediation.
Article 35 A contract dispute over software copyright may be settled through mediation . or the parties may apply to the software copyright arbitration organ of the State for arbitration in accordance with the arbitration clause in the contract or a written arbitration agreement subsequently concluded.
The parties should execute the arbitral award. Where one party fails to execute the arbitral award, the other party may apply to the People’s Court for execution.
Where the People’s Court which is applied to finds the arbitral award illegal, it has the right not to execute the award. Where the award is not executed by the People’ s Court. a party may institute proceedings in the People’ s Court in respect of the contracual dispute.
Where the parties have not inserted an arbitration clause in the contract, nor have they concluded subsequently a writ-ten arbitration agreement, either of the parties may directly institute proceedings in the People’s Court.
Article 36 Where a party is not satisfied with the administrative sanction imposed by the administrative authority of the State for software copyright affairs, it may institute proceedings in the People’s Court within three months from the date of receipt of the relevant notification. Where the said party neither executes the decision on sanction nor institutes proceedings in the People’s Court within the time limit, the administrative authority of the State for software copy-right may apply to the People’s Court for compulsory execution.
Article 37 Where a staff member of the organ for soft-ware registration and administration contravenes the provision of Article 29 of these Regulations, administrative sanctions shall be imposed on him by the organ for software registration and administration or a superior department in charge; where the circumstances are so serious as to constitute an offence, he shall be prosecuted for his criminal liability by the judicial organs according to law.
Chapter V Supplementary Provisions
Article 38 Acts of infringement which occur before these Regulations come into effect shall be dealt with in accordance with the relevant enactments in effect when the said acts of infringement occur.
Article 39 The administrative authority in charge of software copyright affairs as well as software registration and administration under the State Council shall be responsible for interpreting these Regulations.
Article 40 These Regulations shall come into effect as of 1 October 1991
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