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Regulations on Computer Software Protection

Decree of the State Council of the People’s Republic China

No.429

Regulations on Copyright Collective Administration, adopted at the

74th Executive Meeting of the State Council on December 22, 2004, are

hereby Promulgated and shall be effective as of March 1, 2005.

Premier, Wen Jiabao

December 28, 2004

Regulations on Copyright Collective Administration

Chapter I General Provisions

Article 1 These Regulations are formulated for the purposes of

regulating activities of copyright collective administration, and

facilitating exercise of the rights by copyright owners and owners of

rights related to copyright (hereinafter referred to as right owners) and

use of works by users in accordance with the Copyright Law of the

People’s Republic of China (hereinafter referred to as the Copyright

Law).

Article 2 The term “copyright collective administration” in these

Regulations means centralized exercising of relevant rights of right

owners by a copyright collective administration organization with the

right owners’ authorization and, in its own name, conducting of the

following activities:

(1) to conclude licensing contracts on copyright or rights related to

(2) to collect licensing fees from users;

(3) to distribute licensing fees to the right owners; and

(4) to participate in litigation or arbitration proceedings concerning

Article 3 The term “copyright collective administration

organization” in these Regulations means an association which is

established according to law for the benefit of right owners and which,

with the right owners’ authorization, collectively administers their

Any copyright collective administration organization shall be

registered as such and carry out its activities in accordance with the

provisions of the administrative regulations on registration administration

of associations and of these Regulations.

Article 4 Rights which are difficult for right owners to exercise

effectively by themselves, such as those of performance, presentation,

broadcasting, rental, communication through information network, and

reproduction provided for in the Copyright Law, may be collectively

administered by a copyright collective administration organization.

Article 5 The copyright administration department of the State

Council shall take charge of the nationwide work of copyright collective

administration.

Article 6 No organization or individual other than copyright

collective administration organizations established in accordance with the

provisions of these Regulations shall carry out activities of copyright

collective administration.

Chapter II Establishment of Copyright Collective

Administration Organizations

Article 7 Chinese citizens, legal persons or other organizations that

enjoy copyright or rights related to copyright according to law may

sponsor establishment of a copyright collective administration

organization.

Establishment of a copyright collective administration organization

shall meet the following conditions:

(1) the number of the right owners who sponsor establishment of

such an organization is not less than 50;

(2) the business scope of such an organization will not overlap or

coincide with that of any copyright collective administration organization

which has been registered according to law;

(3) such an organization will be able to represent the interests of

relevant right owners nationwide;

(4) there are a draft of the articles of association, draft of the rates

for collecting licensing fees, and draft of the methods for transferring

licensing fees to the right owners (hereinafter referred to as the methods

for transferring licensing fees) of such an organization.

Article 8 The articles of association of a copyright collective

administration organization shall include the following items:

(1)its name and domicile;

(2)the objectives of its establishment;

(3)its business scope;

(4)its organization structure and its functions and powers;

(5)the minimum number of attendance at its members’ general

meeting ;

(6)the functions and duties of its board of directors, as well as the

qualifications for, and the procedures for appointing and removing of the

responsible persons of the board;

(7)the methods for deducting and spending of the administrative

costs;

(8)the conditions and procedures for joining and withdrawal from

that organization;

(9)the procedures for revising its articles of association;

(10)the conditions and procedures for termination of that

organization, as well as disposal of its assets after its termination.

Article 9 An applicant shall, when applying to establish a copyright

collective administration organization, submit to the copyright

administration department of the State Council the materials that prove

that the conditions provided for in Article 7 of these Regulations are met.

The copyright administration department of the State Council shall,

within 60 days from receiving such materials, decide whether to approve

the application or not. If the application is approved, a license for

application is not approved, the reasons for disapproval shall be given.

Article 10 The applicant shall, within 30 days from issuance of the

license by the copyright administration department of the State Council,

go through the procedures for registration with the civil affairs

department of the State Council in accordance with the administrative

regulations on registration administration of associations.

Article 11 A copyright collective administration organization

registered according to law shall, within 30 days from issuance of a

registration certificate by the civil affairs department of the State Council,

send a copy of the certificate to the copyright administration department

of the State Council for the record, and that department shall publish the

copy of the certificate submitted for the record, as well as the articles of

association, the rates for collecting licensing fees, and the methods for

transferring licensing fees.

Article 12 Establishment of a branch by a copyright collective

administration organization shall be subject to approval of the copyright

administration department of the State Council, and the procedures for

registration shall be gone through with the civil affairs department of the

State Council in accordance with the administrative regulations on

registration administration of associations. Where its branch has been

registered according to law, a copy of the registration certificate for that

branch shall be submitted to the copyright administration department of

the State Council for the record and be published by such department.

Article 13 A copyright collective administration organization shall

set the rates for collecting licensing fees based on the following factors:

(1) the time, manner and territory of using works, sound or video

recordings, etc.;

(2) the categories of the rights; and

(3) the degree of difficulty of activities to conclude licensing contracts

and to collect licensing fees.

Article 14 A copyright collective administration organization shall

draw up the methods for transferring licensing fees on the basis of the use

of right owners’ works, sound or video recordings, etc.

Article 15 A copyright collective administration organization which

revises its articles of association shall submit the revised draft to the

and that department will publish the revised draft after it is checked and

approved by the civil affairs department of the State Council according to

law.

Article 16 A copyright collective administration organization whose

registration has been cancelled according to law shall not further carry

out activities of copyright collective administration from the date of the

cancellation.

Chapter III Structure of Copyright Collective

Administration Organizations

Article 17 The members’ general meeting of a copyright collective

administration organization (hereinafter referred to as the members’

general meeting) is the organ of power of that organization.

The members’ general meeting shall, in accordance with the

provisions of these Regulations, be convened by the board of directors,

which shall announce the time and place of the meeting, as well as the

matters to be reviewed 60 days before holding of the meeting. Members

to attend the members’ general meeting shall sign up 30 days before

holding of the meeting. When the number of members who have signed

up is less than the minimum number of attendance prescribed in the

articles of association, the board of directors shall announce the situation

of signing up of the meeting, and other members may still sign up five

days before holding of the meeting, which shall be held by all of the

members who have entered their names.

The members’ general meeting shall exercise the following functions

and powers:

(1)to formulate and revise the articles of association;

(2)to set and readjust the rates for collecting licensing fees;

(3)to formulate and revise the methods for transferring licensing

fees;

(4)to elect and remove directors;

(5)to review and approve work reports and finance reports of the

board of directors;

(6)to set up the internal administration system;

(7)to decide schemes for transferring licensing fees and the

proportion of administrative costs to be collected by that organization;

(8)to decide on other major matters.

The members’ general meeting shall be held once each year, but an

interim meeting may be convened upon proposal made by the board of

directors or by ten percent or more of its members. Any decision of the

members’ general meeting shall be adopted by the affirmative votes of

more than half of the members who attend the meeting.

Article 18 A copyright collective administration organization shall

establish a board of directors that is responsible to and implements

decisions of the members’ general meeting. The number of the members

of the board shall be not less than nine.

The term of office of the board of directors shall be four years and

board of directors shall be re-elected upon the expiry of the said term.

The board of directors may, on account of special conditions, be

re-elected before or after the expiry of the said term, but not later than

one year from the expiry of the said term.

Chapter IV Activities of Copyright Collective

Administration

Article 19 A right owner may conclude a written contract for

administration organization, authorizing the organization to administer

Where any right owner meets the entrance conditions prescribed in the

articles of association, the copyright collective administration

organization shall conclude a contract for copyright collective

administration with the right owner, and shall not refuse to do so.

Any right owner who has concluded a contract for copyright

collective administration with a copyright collective administration

organization and gone through the relevant procedures prescribed in the

articles of association will become a member of that organization.

Article 20 Any right owner, after having concluded a contract for

administration organization, shall not exercise, or authorize another

person to exercise, the rights stipulated in the contract to be exercised by

that organization during the term agreed upon in the contract.

Article 21 Any right owner may, according to the procedures

prescribed in the articles of association, withdraw from a copyright

collective administration organization, thus terminating the contract for

has been concluded, at that time, between that organization and another

person shall remain valid until it expires, and the right owner shall, during

the term of validity of the contract, have the right to obtain the relevant

licensing fees and to consult the relevant business material.

Article 22 A foreigner or stateless person may, through a like

overseas organization that has concluded a reciprocal representation

agreement with a Chinese copyright collective administration

organization, authorize the Chinese organization to administer copyright

or rights related to copyright which he enjoys in the territory of China

according to law.

The term “reciprocal representation agreement” in the preceding

paragraph means an agreement in which a Chinese copyright collective

administration organization and a like overseas organization mutually

authorize the other party to carry out activities of copyright collective

administration in the country or region to which the other party belongs.

A copy of reciprocal representation agreements concluded between a

Chinese copyright collective administration organization and a like

overseas organization shall be submitted to the copyright administration

department of the State Council for the record and be published by such

department.

Article 23 A copyright collective administration organization shall,

when authorizing another person to use works, sound or video recordings,

etc. which it administers, conclude a written licensing contract with the

user.

A copyright collective administration organization shall not

conclude exclusive licensing contracts with users.

A copyright collective administration organization shall not refuse

any user’s request to conclude with it a licensing contract on a reasonable

basis.

The term of a licensing contract shall not exceed two years; however,

a licensing contract may be renewed when it expires.

Article 24 A copyright collective administration organization shall

develop a rights information inquiring system for right owners’ and users’

inquiry. Such system shall contain the categories of the rights

administered by that organization, the titles of the works, sound or video

recordings, etc., the names or titles of the right owners, and the periods of

the authorized administration.

A copyright collective administration organization shall make a

reply when a right owner or user inquires the information on rights which

the organization administers.

Article 25 A copyright collective administration organization shall,

according to the rates for collecting licensing fees published by the

user upon the exact amount of licensing fees, except those that shall be

paid in accordance with Article 23, the second paragraph of Article 32,

the third paragraph of Article 39, the second paragraph of Article 42, and

Article 43 of the Copyright Law.

Article 26 Two or more copyright collective administration

organizations that collect licensing fees from the same user in the same

manner may, after consultation, decide that one of copyright collective

administration organizations collects all the licensing fees unitarily. The

licensing fees unitarily collected shall be divided by the copyright

collective administration organizations concerned by agreement.

Article 27 A user shall, when paying licensing fees to a copyright

collective administration organization, provide with that organization the

information on specific use, such as the titles of the used works, sound or

video recordings, etc., the names or tittles of the right owners, as well as

the manner, amount and time of the use; except otherwise stipulated in

the licensing contract.

Where the information provided by the user involves his trade

secrets, the copyright collective administration organization shall have

the obligation to maintain secrecy.

Article 28 A copyright collective administration organization may

deduct a certain proportion of the licensing fees which it has collected, as

administrative costs to maintain its regular business activities.

The proportion that a copyright collective administration

organization may deduct as administrative costs shall gradually decrease

with the increase of the amount of collected licensing fees.

Article 29 Licensing fees collected by a copyright collective

administration organization shall, after the deduction of administrative

costs, be completely transferred to the right owners, and shall not be

diverted to any other purpose.

To transfer licensing fees, a copyright collective administration

organization shall keep a transferring record, which shall contain such

items as the total licensing fees collected, the amount of the

administrative costs, the names or titles of the right owners, the titles and

specific use of the works, sound or video recordings, etc., as well as the

respective exact amount of licensing fees paid to each of the right owners,

and which shall be preserved for more than 10 years.

Chapter V Supervision over Copyright Collective

Administration Organizations

Article 30 A copyright collective administration organization shall

establish a finance and accounting system as well as a system of asset

management according to law, and shall set up accounting books in

accordance with the relevant provisions.

Article 31 The asset use and the finance management of a copyright

collective administration organization shall be supervised by both the

the State Council.

A copyright collective administration organization shall, at the end of

each accounting year, work out the finance and accounting reports,

commission an accounting firm to conduct an audit according to law, and

publish the audit result.

Article 32 A copyright collective administration organization shall

record the following items for consultation by right owners and users:

(1)the licensing use of works;

(2)the collection and transference of licensing fees; and

(3)the deduction and spending of administrative costs.

A right owner shall have the right to consult or to copy finance reports,

work reports and other business materials of the copyright collective

administration organization; and the organization shall provide the right

owner with convenience therefor.

Article 33 A right owner may make an exposure to the copyright

administration department of the State Council where he deems that a

the following circumstances:

(1) to refuse the right owner’s request to join that organization if he

meets the entrance conditions prescribed in its articles of association or

the right owner’s request to withdraw from that organization according to

the procedures prescribed in its articles of association;

(2) to fail to collect or transfer licensing fees, or to fail to deduct or

spend administrative costs in accordance with the relevant provisions; or

(3) to refuse the right owner’s request to consult the record or other

business materials provided for in Article 32 of these Regulations.

Article 34 A user may make an exposure to the copyright

administration department of the State Council where he deems that such

organization involves itself in one of the following circumstances:

(1) to refuse to conclude a licensing contract with the user in

violation of Article 23 of these Regulations;

(2) to fail to collect the exact amount of licensing fees agreed upon

according to the published rates for collecting licensing fees; or

(3) to refuse the user’s request to consult the record provided for in

Article 32 of these Regulations.

Article 35 Citizens, legal persons and other organizations other than

right owners and users may inform to the copyright administration

department of the State Council if they deem that such organization

commits an act violating any provision of these Regulations.

Article 36 The copyright administration department of the State

Council shall, within 60 days after having received an exposure or

information, investigate into the exposed or informed matter and deal

with it according to law.

Article 37 The copyright administration department of the State

Council may supervise a copyright collective administration organization

in the following manners, and shall record its supervising activities:

(1) examining whether the organization’s activities conform to the

provisions of these Regulations and of the articles of association;

(2) checking the organization’s accounting books, annual budget

and final account reports, as well as other relevant business materials;

(3)sending a staff member, as a none-voting member, to attend the

organization’s major meetings, such as the members’ general meeting or

meeting of the board of directors.

Article 38 Any copyright collective administration organization

shall, according to law, subject itself to supervision by the civil affairs

department or other relevant departments of the State Council.

Chapter VI Legal Liability

Article 39 Where a copyright collective administration organization

involves itself in one of the following circumstances, it shall be ordered

by the copyright administration department of the State Council to make

a correction within a specified time limit:

(1) in violation of Article 22 of these Regulations, to fail to send a

copy of the reciprocal representation agreement concluded with a like

overseas organization to the copyright administration department of the

State Council for the record;

(2) in violation of Article 24 of these Regulations, to fail to develop

a rights information inquiry system; or

(3) to fail to collect licensing fees in conformity with the agreed

amount on the basis of the published rates for collecting licensing fees.

A copyright collective administration organization which administers

right owners’ rights beyond its proper business scope shall be ordered by

the copyright administration department of the State Council to make a

correction within a specified time limit, and licensing contracts concluded

in such a case between that organization and users shall be invalid. Where

damage has been caused on the right owners or users, the organization

shall also bear civil liability according to law.

Article 40 If a copyright collective administration organization

involves itself in one of the following circumstances, it shall be ordered

by the copyright administration department of the State Council to make

a correction within a specified time limit. Where that organization fails to

make a correction within the time limit, its members’ general meeting or

its board of directors shall be ordered to remove or dismiss, according to

the competence as provided in these Regulations, the persons in charge

directly responsible:

(1) to refuse to conclude a contract for copyright collective

administration with a right owner, or to refuse a member’s request to

withdraw from that organization in violation of Article 19 or 21 of these

Regulations;

(2) to refuse to conclude a licensing contract with a user in violation

of Article 23 of these Regulations;

(3) to deduct administrative costs in violation of Article 28;

(4) to transfer licensing fees in violation of Article 29; or

(5) to refuse to offer or offer falsely its accounting books, annual

budget, final account reports and other relevant business material.

Article 41 If, without justification, a copyright collective

administration organization has not carried out or has suspended activities

of copyright collective administration for more than six consecutive

months after the civil affairs department of the State Council issued to it

the registration certificate, its license for copyright collective

administration shall be revoked by the administrative department for

department of the State Council.

Article 42 If a copyright collective administration organization is

engaged in activities for profit purposes, it shall be banned, and its illegal

income shall be confiscated according to law by the administrative

department for industry and commerce. Where a crime is constituted,

criminal liability shall be investigated according to law.

Article 43 If, in violation of Article 27 of these Regulations, a user

refuses to provide the relevant use information although he can do so, or

practice fraud when providing such information, he shall be ordered by

the copyright administration department of the State Council to make

corrections, and the relevant copyright collective administration

organization may suspend the licensing contract concluded with him.

Article 44 If, without authorization, copyright collective

administration organizations or their branches are established, or

activities of copyright collective administration are carried out, they shall

be banned, and the illegal income confiscated by the copyright

administrative department or the civil affairs department of the State

Council on the basis of the division of functions and duties. Criminal

liability shall be investigated according to law if a crime is constituted.

Article 45 If a staff member of the State administrative organ, in

his work of examining and approving copyright collective administration

organizations or of supervising their activities, neglects his duty, or

abuses his power, or commit illegalities for personal gains or by

fraudulent means, if a crime is constituted, he shall, according to law, be

investigated for criminal liability. If his act does not constitute a crime, he

shall be given administrative sanctions according to law.

Chapter VI Supplementary Provisions

Article 46 Any copyright collective administration organization

established before these Regulations become effective shall, within three

months from the effective date of these Regulations, submit its articles of

association, rates for collecting licensing fees, methods for transferring

licensing fees, as well as other relevant materials to the copyright

administration department of the State Council for the examination, and

send copies of the reciprocal representation agreement which it has

concluded with like overseas organizations to that department for the

record.

Article 47 A user who has used others’ works in accordance with

Article 23, the second paragraph of Article 32, or the third paragraph of

Article 39 of the Copyright Law but fails to pay licensing fees to the right

owners according to Article 32 of the Regulations for the Implementation

of the Copyright Law, shall deliver the licensing fees, together with the

postage, as well as the information concerning the specific use, to the

relevant right which shall transfer such fees to the right owners.

A copyright collective administration organization which is

responsible for transferring licensing fees shall develop a use information

inquiry system for right owners’ and users’ inquiry.

A copyright collective administration organization which is

responsible for transferring licensing fees may collect, by half of the

proportion determined by its members’ general meeting, the

administrative costs, but not any other costs, from the licensing fees

collected.

Article 48 These Regulations shall be effective as of March 1, 2005.

China

CN036

Regulations on Collective Management of Copyright