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Regulations on Computer Software Protection

Regulations on Computer Software Protection
Chapter I
General Provisions
1.  These Regulations are instituted, in accordance with the Copyright Law of the People’s Republic of China, in a view to protecting the rights and interests of copyright owners of computer software, regulating the relationship of interest 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.
2.  As used in these Regulations, the term “computer software” (hereinafter referred to as “software”) means computer programs and their relevant documents.
3.  For the purposes of these Regulations:
(1)  “computer program” shall mean 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” shall mean 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” shall mean a legal entity or other body 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 carries out, relying on his own facilities, the development of a piece of software and assumes responsibility for the accomplished software;
(4)  “software copyright owner” shall mean a natural person, legal entity or other body that enjoys software copyright in accordance with these Regulations.
4.  The software protected under these Regulations must be developed independently and fixed in some material form.
5. Chinese citizens, legal entities or other bodies shall enjoy, in accordance with these Regulations, copyright in respect of software which they have developed, whether published or not.
Software of foreigners or stateless persons first published on the territory of the People’s Republic of China shall enjoy copyright in accordance with these Regulations.
Software copyright of a foreigner or stateless person which he enjoys under an agreement concluded between China and the country to which its developer belongs or in which its developer has his habitual residence, or, under an international treaty to which China is a party, shall be protected in accordance with these Regulations.
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.
7.  A software copyright owner may comply with registration to the software registry recognized by the copyright administration department under the State Council.  A registration certificate issued by the software registry is a preliminary proof for the registered items to be true.
Fees shall be paid to the software registry for compliance with software registration.  The payment tariffs for software registration shall be established by the copyright administration department under the State Council in collaboration with the department responsible for price under the State Council.
Chapter II
Software Copyright
8.  A software copyright owner shall enjoy the following rights:
(1)  the right of publication, 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-ship 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 in such a way that members of the public may access 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 another person’s exercising his copyright and receive remuneration therefor.
A software copyright owner may transfer, wholly or in part, his copyright and receive remuneration therefor.
9. Except where otherwise provided in these Regulations, the copyright in a piece of software shall belong to its developer.
The natural person, legal entity or other body whose name is mentioned in connection with a piece of software shall, in the absence of proof to the contrary, be deemed to be its developer.
10. Where a piece of software is developed jointly by two or more natural persons, legal entities or other bodies, the ownership of its copyright shall be agreed upon in a written contract  between the co-developers.  In the absence of a written contract or an explicit agreement in the contract, each co-developer shall be entitled to independent copyright in the part which he has developed if the joint software can be separated into independent parts and exploited separately, provided that the exercise of such copyright does not extend to the copyright in the joint software as a whole.  If the joint software cannot be separated into independent parts and exploited separately, its copyright shall be enjoyed jointly by those co-developers and exercised by agreement.  In the absence of such an agreement, any co-developer shall not prevent, without reasonable ground, the other(s) from exercising 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.
11.  Where a piece of software is developed on commission, the ownership of its copyright 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.
12.  Where a piece of software is developed in the course of fulfilling a task assigned by a state organ, the ownership and exercise 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 body that has fulfilled the task.
13.  In any of the following cases the copyright in a piece of software developed by a natural person during his employment by a legal entity or other body shall be enjoyed by the latter, which may reward the natural person for having developed the software:
(1)  the software is developed in connection with the development objective explicitly designated in the duty of the natural person;
(2)  the software is a foreseeable or ordinary result of fulfilling his duty by the natural person;  or
(3)  the software is developed mainly with the material and technical resources of the legal entity or other body, such as funds, special facilities or unpublished special information, and under its responsibility.
14.  The copyright in a piece of software shall exist from the date on which its development has been completed.
In the case of software copyright enjoyed by 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.  Where a piece of software is developed jointly, 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 enjoyed by a legal entity or other body, 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.
15.  Where software copyright belongs to a natural person, the rights covered in Article 8 of these Regulations except the right of developer-ship shall, after his death, be transferred, during the term of protection provided for in these Regulations, to his inheritor(s) in accordance with the Inheritance Law of the People’s Republic of China.
Where software copyright belongs to a legal entity or other body, the copyright shall, after the change or the termination of the status of the legal entity or other body, be enjoyed, during the term of protection provided for in these Regulations, by the succeeding legal entity or other body that has taken over the former’s rights and obligations, or, in the absence of such successor body, by the State.
16.  Owners of lawful copies of a piece of software shall have the following privileges:
(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.
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
18.  In the case of a license to exercise software copyright, the parties shall conclude a licensing contract.
The licensee shall not exercise any right that the software copyright owner has not expressly granted in the contract.
19. In the case of an exclusive license to exercise 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 exercise shall be deemed as a non-exclusive right.
20.  In the case of a transfer of software copyright, the parties shall conclude a written contract.
21. Anyone that concludes an exclusive licensing contract or a transfer contract may comply with registration to the software registry recognized by the copyright administration department under the State Council.
22.  A Chinese citizen, legal entity or other body that authorizes a foreigner’s exercising software copyright, or transfers it to a foreigner, shall comply with the Regulations of the People’s Republic of China on Control over Import and Export of Technologies.
Chapter IV
Legal Liabilities
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 bear civil liabilities, such remedies as ceasing the infringing act, eliminating the effects of the act, making an apology, or paying compensation for damages, depending on the circumstances:
(1)  to publish, or comply with registration in respect of, a piece of software without the consent of the software copyright owner;
(2)  to publish, or comply with registration in respect of, a piece of software developed by another person as ones own;
(3)  to publish, or comply with registration in respect of, a piece of joint software as developed solely by oneself, without the consent of the other co-developers;
(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 consent of the software copyright owner;  or
(6)  to commit other acts of infringing software copyright.
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 commits any of the following acts of infringement shall bear civil liabilities, such remedies as ceasing the infringing act, eliminating the effects of the act, making an apology, or paying compensation for damages, depending on the circumstances;  where the act also prejudices the larger public interest, the copyright administration department may order the infringing act to be ceased, confiscate unlawful income, confiscate or destroy the infringing copies, and impose a fine;  where the circumstance is serious, the above-mentioned department may also confiscate the material, tools and instrument mainly used to produce infringing copes;  and where the act violates the Criminal Law, the person that commits the act shall be investigated criminal liabilities in accordance with the provisions in the Criminal Law on the crime of violating copyright or selling infringing copies:
(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 exercise, the software copyright of the owner.
In respect of the act referred to in item (1) or (2) of the preceding paragraph, the copyright administration department may also imposes a fine calculated on 100 yuan in RMB per copy or not more than 5 times of the total value of goods;  and, in respect of the act referred to in item (3), (4) or (5) of the preceding paragraph, the above-mentioned department may also imposes a fine not more than 50,000 yuan in RMB.
25.  The amount of the compensation paid for infringing software copyright shall be determined in accordance with Article 48 of the Copyright Law of the People’s Republic of China.
26.  A software copyright owner that can present evidence to prove that another person is committing, or is about to commit, an infringement which, if not being prevented promptly, is likely to cause irreparable harm to him, may, before instituting 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 desisting the relevant act and for measures of property preservation.
27.  In order to prevent infringement, a software copyright owner may, before instituting 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 difficult to obtain later.
28.  A publisher or producer of copies of a piece of software that fails to prove the legal permission 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 distribute or rent, shall bear legal liabilities.
29. The development of a piece of software which is similar to a pre-existing one owing to a limit of alternative expressions does not constitute an infringement of the copyright in the pre-existing one.
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 paying 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 material damages to him, the holder of such copies may, having paid reasonable remuneration to the copyright owner, continue to use such copies.
31.  A dispute over software copyright infringement may be settled by mediation.
A dispute over software copyright contract may be submitted to an arbitration organ for arbitration under an arbitration clause in the copyright contract or under a written arbitration agreed upon later between the parties.
Any party may institute proceedings directly in a people’s court in the absence of an arbitration clause in the contract or of a written arbitration agreed upon later between the parties.
Chapter V
Supplementary Provisions
32. Any act of infringing software copyright committed prior to the entry into force of these Regulations shall be dealt with under the relevant national regulations in force at the time when the act was committed.
33.  These Regulations shall entry into force on January 1, 2002.  The Regulations on Computer Software Protection issued by the State Council on June 4, 1991 shall be void in the meantime.