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Decision of the State Council on Amending the Regulations on Computer
Software Protection
(Adopted at the 231st Executive Meeting of the State Council on January 16, 2013,
promulgated by Decree No. 632 of the State Council of the People’s Republic of
China on January 30, 2013, and effective as of March 1, 2013)
The State Council decides to amend the Regulations on Computer Software
Protection as follows:
The second paragraph of Article 24 is amended to read: “Whoever commits the
act referred to in subparagraph (1) or (2) of the preceding paragraph may concurrently
be fined 100 yuan for per copy, or not less than one time but not more than five times
the value of the products; whoever commits the act referred to in subparagraph (3),
(4) or (5) of the preceding paragraph may concurrently be fined not more than
200,000 yuan.”
This Decision shall be effective as of March 1, 2013.
The Regulations on Computer Software Protection shall be amended according
to this Decision and be promulgated anew.
Regulations on Computer Software Protection
(Promulgated by Decree No. 339 of the State Council of the People’s Republic of
China on December 20, 2001, revised for the first time in accordance with the
Decision of the State Council on Annulling and Amending Certain Administrative
Regulations on January 8, 2011, and revised for the second time in accordance with
the Decision of the State Council on Amending the Regulations on Computer
Software Protection on January 30, 2013)
Chapter I General Provisions
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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 the software industry and the informatization of the 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 of a program, 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
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independently by the developer and fixed on a 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 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 the developers 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 developership, 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;
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(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 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.
In the absence of proof to the contrary, the natural person, legal entity or other
organization whose name is mentioned in connection with a piece of software 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.
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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 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;
(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
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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 50 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 the fiftieth year after the death of the last
surviving developer.
In the case of software copyright of a legal entity or other organization, the term
of protection shall be 50 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 50 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
successor(s) may, after his death, inherit the rights provided for in Article 8 of these
Regulations except the right of developership, during the term of its copyright
protection, 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
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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 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 on 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
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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 permission of the
software copyright owner;
(2) to publish or register a piece of software developed by another person as
one’s own;
(3) to publish, or register, a piece of joint software as developed solely by
oneself, without the permission of the other co-developer(s);
(4) to have one’s 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 permission of the software
copyright owner; or
(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 permission 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 shall order the infringer 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;
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(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 copyright of
the owner.
Whoever commits the act referred to in subparagraph (1) or (2) of the preceding
paragraph may concurrently be fined 100 yuan for per copy, or not less than one time
but not more than five times the value of the products; whoever commits the act
referred to in subparagraph (3), (4) or (5) of the preceding paragraph may
concurrently be fined not more than 200,000 yuan.
Article 25 The compensation paid for infringing upon software copyright shall
be determined in accordance with Article 49 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 his lawful rights and
interests, 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 an order to stop the 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 51 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 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
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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 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.