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Regulations on Computer Software Protection

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

Regulations on Computers Software Protection

Chapter I General Provisions

Article 1 These Regulations are formulated in accordance with the

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

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

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

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

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

A software copyright owner may transfer, wholly or in part, his

Article 9 Except where otherwise provided in these Regulations, the

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

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

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;

(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

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.

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

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

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

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

(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

(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 exploit, the software

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

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

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

arbitration institution for arbitration under an arbitration clause in the

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.

China

CN002

Regulations of December 20, 2001, on Computers Software Protection (promulgated by Decree No. 339 of December 20, 2001, of the State Council of the People’s Republic of China)