Decree of the State Council of the people’s Republic of China
No. 339
Regulations on Computers Software Protection are hereby
Promulgated and shall be effective as of January 1, 2002.
Premier, Zhu Rongji
December 20, 2001
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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
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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
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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
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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
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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
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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;
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(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
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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.
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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
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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
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(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;
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(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
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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
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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.