Decree of the State Council of the People’s Republic of China
No.468
Regulations on Protection of the Right of Communication through
Information Network, adopted at the 135 Executive Meeting of the State
Council on May 10, 2006, are hereby promulgated and shall be effective
as of July 1, 2006.
th
Premier, Wen Jiabao
May 18, 2006
1
Regulations on Protection of the Right of Communication through
Information Network
Article 1 These Regulations are formulated in accordance with the
Copyright Law of the People’s Republic of China (hereinafter referred to
as the Copyright Law) for the purpose of protecting the right of
communication through information network enjoyed by copyright
owners, performers, and producers of sound and video recordings
(hereinafter collectively referred to as right owners), and encouraging the
creation and communication of works conducive to the building of a
socialist society which is advanced ethically and materially.
Article 2 The right of communication through information network
enjoyed by right owners is protected by the Copyright Law and these
Regulations. Any organization or individual that makes another person’s
work, performance, or sound or video recording available to the public
through information network shall obtain permission from, and pay
remuneration to, the right owner, except as otherwise provided for by
laws or administrative regulations.
Article 3 Such works, performances, and sound and video recordings
as are prohibited from being made available in accordance with law are
not protected by these Regulations.
2
Right owners, in exercising their right of communication through
information network, shall neither violate the Constitution, laws and
administrative regulations nor impair public interests.
Article 4 Right owners may adopt technological measures in order to
protect their right of communication through information network.
No organization or individual may intentionally circumvent or
sabotage technological measures, or intentionally manufacture, import, or
make available to the public devices or components mainly used to
circumvent or sabotage technological measures, or intentionally provide
other persons with technical services to circumvent or sabotage
technological measures, except where such circumvention is permitted by
laws or administrative regulations.
Article 5 Without permission from a right owner, no organization or
individual may commit any of the following acts:
(1) to intentionally remove or alter any electronic rights management
information attached to a work, performance, or sound or video recording
made available to the public through information network, except that it
is unavoidable for such information to be removed or altered because of
any technical reason; or
(2) to make available to the public through information network a
work, performance, or sound or video recording, knowing or having
reasonable grounds to know that the electronic rights management
3
information thereof has been removed or altered without permission from
the right owner.
Article 6 In any of the following cases, another person’s work may be
made available through information network without permission from,
and without payment of remuneration to, the copyright owner:
(1) when a published work is appropriately quoted, for the purpose of
introducing or commenting a certain work or explaining a certain point,
in one’s own work made available to the public;
(2) when a published work is unavoidably included or quoted, for the
purpose of reporting current events, in one’s own work made available to
the public;
(3) when a small quantity of copies of a published work are made
available to a small number of teachers or scientific researchers for the
purpose of classroom teaching or scientific research;
(4) when a published work is made available to the public by a State
organ to a justifiable extent for the purpose of fulfilling its official duties;
(5) when a translation of a published work of a Chinese citizen, legal
entity or any other organization from Han language into a national
minority language is made available to the people of the national minority
in the territory of China;
(6) when a published written work is made available to blind persons
for a non-profit purpose in such particular way that it is perceptible to
4
them;
(7) when an article published over information network on current
political or economic topics is made available to the public; or
(8) when a speech delivered at a public gathering is made available to
the public.
Article 7 A library, archive, memorial hall, museum, or art gallery,
and so on may make available to the service recipients on its premises
through information network a digital work in its collection which is
legally published, or a work which is reproduced in digital form for the
purpose of displaying, or preserving copies of, the same work in
accordance with law, without permission from, and without payment of
remuneration to, the copyright owner, provided that no direct or indirect
financial benefit is gained therefrom, unless the parties have agreed
otherwise.
The work reproduced in digital form for display or preservation
purpose, as referred to in the preceding paragraph, shall be a work of
which a copy in the collection is on the brink of damage or is damaged,
lost or stolen, or of which the storage format is outmoded, and which is
unavailable or only available at a price obviously higher than the marked
one on the market.
Article 8 For the purpose of implementing the plan of nine-year
compulsory education or the plan of national education through
5
information network, excerpts from a work, a short written work or
musical work, or a single work of fine arts or photographic work, if
published, may be used to produce courseware which may be made
available to registered students through information network by distance
education institutions which have produced such courseware or have
legally obtained a copy of such courseware, without permission from the
copyright owner, provided that remuneration is paid to the copyright
owner.
Article 9 A network service provider, before making available, free of
charge, to the public in rural areas through information network, for the
purpose of aiding poverty-stricken areas, a published work of a Chinese
citizen, legal entity or any other organization which deals with a topic of
aiding poverty-stricken areas such as cultivation and breeding, prevention
and treatment of diseases, or prevention and reduction of disasters, or
which satisfies the basic needs for culture, shall announce the title of the
work to be made available and the name of its author as well as the rates
of remuneration to be paid. Where the copyright owner raises an
objection to the making available of the said work within 30 days from
the date on which the announcement is made, the network service
provider shall not make the said work available. Where the copyright
owner raises no objection upon expiration of 30 days from the date on
which the announcement is made, the network service provider may
6
No financial benefit may be directly or indirectly gained from the
making available of a work in accordance with the provisions of the
preceding paragraph.
Article 10 Where a work is made available to the public through
information network without permission from the copyright owner in
accordance with the provisions of these Regulations, the following
provisions shall be observed:
(1) the work may not be made available if its author has declared in
advance that the making available of the work is not permitted, except in
the cases provided for in subparagraphs (1) to (6) of Article 6 and in
Article 7 of these Regulations；
(2) the title of the work and the name of its author shall be indicated;
(3) remuneration shall be paid in accordance with the provisions of
these Regulations;
(4) technological measures shall be adopted to prevent any person
7
the interests
of the copyright owner; and
(5) the other rights enjoyed by the copyright owner in accordance
with law shall not be infringed.
Article 11 Where another person’s performance or sound or video
recording is made available through information network, the provisions
of Articles 6 to 10 of these Regulations shall be observed.
Article 12 In any of the following cases, technological measures may
be circumvented, provided that technologies, devices or components used
to circumvent technological measures are not made available to other
persons, and that the other rights enjoyed by a right owner in accordance
with law are not infringed:
(1) when a published work，performance or sound or video recording
is made available to a small number of teachers or scientific researchers
through information network for the purpose of classroom teaching or
scientific research, and the said work，performance or sound or video
recording is only accessible over information network;
(2) when a published written work is made available to blind persons
through information network for a non-profit purpose in such particular
8
way that it is perceptible to them, and the said work is only accessible
over information network;
(3) when a State organ fulfils its official duties in accordance with the
administrative or judicial procedure; or
(4) when a safety test is carried out over information network on a
computer and its system or on such network.
Article 13 In order to investigate and handle an act infringing on the
right of communication through information network, the administrative
department for copyright may request the network service provider to
provide such data as the name, contact means and network address of a
service recipient suspected of infringement.
Article 14 Where a right owner believes that a work, performance, or
sound or video recording involved in the service of a network service
provider who provides information storage space or provides searching or
linking service has infringed on the right owner’s right of communication
through information network, or that the right owner’s electronic rights
management information attached to such work, performance, or sound
or video recording has been removed or altered, the right owner may
deliver a written notification to the network service provider, requesting it
to remove the work, performance, or sound or video recording, or
disconnect the link to such work, performance, or sound or video
recording. The written notification shall contain the following particulars:
9
(1) the name, contact means and address of the right owner;
(2) the title and network address of the infringing work, performance,
or sound or video recording which is requested to be removed or to which
the link is requested to be disconnected; and
(3) the material constituting preliminary proof of infringement.
The right owner shall be responsible for the authenticity of the
written notification.
Article 15 A network service provider shall, upon receiving a
notification from a right owner, promptly remove the work, performance,
or sound or video recording suspected of infringement, or disconnect the
link to such work, performance, or sound or video recording, and shall, at
the same time, transfer the notification to the service recipient who makes
available the said work, performance, or sound or video recording. Where
the notification cannot be transferred because the network address of the
service recipient is unknown, the network service provider shall, at the
same time, make the contents of the notification known to the public over
information network.
Article 16 Where a service recipient, upon receiving a notification
transferred from a network service provider, believes that the work,
performance, or sound or video recording made available thereby does
not infringe on the right of another person, the service recipient may
deliver a written explanatory statement to the network service provider,
10
requesting it to replace the removed work, performance, or sound or
video recording, or to replace the disconnected link to such work,
performance, or sound or video recording. The written explanatory
statement shall contain the following particulars:
(1) the name, contact means and address of the service recipient;
(2) the title and network address of the work, performance, or sound
or video recording which is requested to be replaced; and
(3) the material constituting preliminary proof of non-infringement.
The service recipient shall be responsible for the authenticity of the
written explanatory statement.
Article 17 Upon receiving a written explanatory statement delivered
by a service recipient, a network service provider shall promptly replace
the removed work, performance, or sound or video recording, or may
replace the disconnected link to such work, performance, or sound or
video recording and, at the same time, transfer the written explanatory
statement delivered by the service recipient to the right owner. The right
owner shall not notify the network service provider anew to remove the
work, performance, or sound or video recording, or to disconnect the link
to such work, performance, or sound or video recording.
Article 18 Where, in violation of the provisions of these Regulations,
an organization or individual commits any of the following acts of
infringement, such organization or individual shall, depending on the
11
circumstances, bear such civil liability as ceasing the infringement,
eliminating the bad effects of the act, making an apology, or paying
compensation for losses. Where public interests are impaired, the
administrative department for copyright may order cessation of the act of
infringement, confiscate the illegal gain, and may impose a fine of not
more than 100,000 yuan. If the circumstances are serious, the
administrative department for copyright may confiscate the equipment
such as computers mainly used to provide network service. If a crime is
constituted, criminal liability shall be investigated for in accordance with
law:
(1) to make available to the public through information network
another person’s work, performance, or sound or video recording without
permission;
(2) to intentionally circumvent or sabotage technological measures;
(3) to intentionally remove or alter the electronic rights management
information attached to a work, performance, or sound or video recording
made available to the public through information network; or to make
available to the public through information network a work, performance,
or sound or video recording, knowing or having reasonable grounds to
know that the electronic rights management information attached to such
work, performance, or sound or video recording has been removed or
altered without permission from the right owner;
12
(4) to make available to rural areas through information network a
work, performance, or sound or video recording for the purpose of aiding
poverty-stricken areas, beyond the limits as specified, or without paying
remuneration according to the announced rates, or, after the copyright
owner has raised an objection to the making available of the work,
performance, or sound or video recording, without promptly having it
removed; or
(5) to make available through information network another person’s
work, performance, or sound or video recording without indicating the
title of the work, performance, or sound or video recording or the name of
its author, performer or producer of the sound or video recording, or
without paying remuneration, or without adopting technological measures
in accordance with the provisions of these Regulations to prevent any
person other than a service recipient from accessing the said work,
performance, or sound or video recording, or without preventing any act
of reproduction of a service recipient from substantially impairing the
interests of the right owner.
Article 19 Where, in violation of the provisions of these Regulations,
an organization or individual commits any of the following acts, the
administrative department for copyright shall give a warning, confiscate
the illegal gain, and confiscate the devices or components mainly used to
circumvent or sabotage technological measures. If the circumstances are
13
serious, the said department may confiscate the equipment such as
computers mainly used to provide network service, and may impose a
fine of not more than 100,000 yuan. If a crime is constituted, criminal
liability shall be investigated for in accordance with law:
(1) to intentionally manufacture, import, or make available to
another person any devices or components mainly used to circumvent or
sabotage technological measures; or to intentionally provide another
person with technical service to circumvent or sabotage technological
measures;
(2) to gain financial benefit from making available through
information network another person’s work, performance, or sound or
video recording; or
(3) to fail to announce the title of a work, performance, or sound or
video recording and the name of its author, performer or producer of the
sound or video recording as well as the rates of remuneration to be paid
before making available the said work, performance, or sound or video
recording to rural areas through information network for the purpose of
aiding poverty-stricken areas.
Article 20 A network service provider which, at the direction of a
service recipient, provides the service of automatic network access, or the
service of automatic transmission of a work, performance, or sound or
video recording made available by the service recipient, and which meets
14
the following conditions, bears no liability for compensation:
(1) it does not make any selection of and modification to the work,
performance, or sound or video recording transmitted thereby; and
(2) it makes available the work, performance, or sound or video
recording to anticipated service recipients only, and has prevented any
person other than the anticipated service recipients from accessing the
said work, performance, or sound or video recording.
Article 21 A network service provider which, in order to increase the
efficiency of network transmission, provides the service of automatic
storage of a work, performance, or sound or video recording accessible
from another network service provider, and of automatic making
available of the work, performance, or sound or video recording to
service recipients through a technical process, and which meets the
following conditions, bears no liability for compensation:
(1) it does not make any modification to the work, performance, or
sound or video recording automatically stored;
(2) it does not hinder the original network service provider which
makes available the work, performance, or sound or video recording from
keeping abreast of the information concerning the access by service
recipients to such work, performance, or sound or video recording; and
(3) it automatically modifies, removes, or disables access to the work,
performance, or sound or video recording through a technical process
15
when the original network service provider modifies, removes, or
disables access to the same work, performance, or sound or video
recording.
Article 22 A network service provider which provides an information
storage space to a service recipient, thus enabling the service recipient to
make available to the public through information network a work,
performance, or sound or video recording, and which meets the following
conditions, bears no liability for compensation:
(1) it clearly indicates that such information storage space is provided
for the service recipient, and it makes known to the public its name, the
person to be contacted and network address of the network service
provider;
(2) it does not make any modification to the work, performance, or
sound or video recording made available by the service recipient;
(3) it does not know or has no reasonable grounds to know that the
work, performance, or sound or video recording made available by the
service recipient is an infringement;
(4) it does not gain any direct financial benefit from the service
recipient making available the work, performance, or sound or video
recording; and
(5) upon receiving a written notification of the right owner, it removes,
in accordance with the provisions of these Regulations, the work,
16
performance, or sound or video recording which the right owner believes
to be an infringement.
Article 23 A network service provider which provides searching or
linking service to a service recipient and which, upon receiving a written
notification of the right owner, disconnects the link to an infringing work,
performance, or sound or video recording in accordance with the
provisions of these Regulations bears no liability for compensation;
however, if it knows or has reasonable grounds to know that the linked
work, performance, or sound or video recording is an infringement, it
shall bear the liability for contributory infringement.
Article 24 Where, as the result of the notification of a right owner, a
network service provider wrongly removes, or wrongly disconnects the
link to, a work, performance, or sound or video recording, and thereby
causes losses to service recipients, the right owner shall bear the liability
for compensation.
Article 25 Where, without just cause, a network service provider
refuses or delays the provision of such data as the name, contact means
and network address of a service recipient suspected of infringement, the
administrative department for copyright shall give a warning thereto and,
if the circumstances are serious, confiscate the equipment such as
computers mainly used to provide network service.
Article 26 As used in these Regulations:
17
18
The term “right of communication through information network”
means the right to make available to the public a work, performance, or
sound or video recording, by wire or by wireless means, in such a way
that members of the public may access the said work, performance, or
sound or video recording from a place and at a time individually chosen
by them.
The term “technological measures” means effective technologies,
devices or components used to prevent or restrict browsing or
appreciating a work, performance, or sound or video recording, or
making available to the public through information network a work,
performance, or sound or video recording without permission from the
right owner.
The term “electronic rights management information” means
information which identifies a work, performance, or sound or video
recording and its author, performer or producer or its right owner, or
information concerning the terms and conditions of use of the work,
performance, or sound or video recording, or any numbers or codes
which represent such information.
Article 27 These Regulations shall be effective as of July 1, 2006.