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
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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
copyright (hereinafter referred to as “licensing contracts”) with users;
(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
copyright or rights related to copyright.
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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
copyright or rights related to copyright.
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.
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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
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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,
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within 60 days from receiving such materials, decide whether to approve
the application or not. If the application is approved, a license for
copyright collective administration shall be issued to the applicant; if the
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
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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
copyright administration department of the State Council for the approval,
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
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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;
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(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
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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
copyright collective administration with a copyright collective
administration organization, authorizing the organization to administer
copyright or rights related to copyright which he enjoys according to law.
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
copyright collective administration with a copyright collective
administration organization, shall not exercise, or authorize another
person to exercise, the rights stipulated in the contract to be exercised by
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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
copyright collective administration. However, any licensing contract that
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
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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
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the organization administers.
Article 25 A copyright collective administration organization shall,
according to the rates for collecting licensing fees published by the
copyright administration department of the State Council, agree with a
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
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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
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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
copyright administrative department and the civil affairs department of
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
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administration department of the State Council where he deems that a
copyright collective administration organization involves itself in one of
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
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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
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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
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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
copyright, and its registration shall be cancelled by the civil affairs
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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
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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
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copyright collective administration organization which administers 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.
中华人民共和国国务院令 （第429号）
《著作权集体管理条例》已经2004年12月22日国务院第74次常务会议通过，现予公布，自2005年3月1日起施行。 总理 温家宝 二00四年十二月二十八日
著作权集体管理条例
第一章 总则
第一条 为了规范著作权集体管理活动，便于著作权人和与著作权有关的权利人（以下简称权利 人）行使权利和使用者使用作品，根据《中华人民共和国著作权法》（以下简称著作权法）制定本条例。
第二条 本条例所称著作权集体管理，是指著作权集体管理组织经权利人授权，集中行使权利人 的有关权利并以自己的名义进行的下列活动： （一）与使用者订立著作权或者与著作权有关的权利许可使用合同（以下简称许可使用合同）； （二）向使用者收取使用费； （三）向权利人转付使用费； （四）进行涉及著作权或者与著作权有关的权利的诉讼、仲裁等。
第三条 本条例所称著作权集体管理组织，是指为权利人的利 益依法设立，根据权利人授权、对权利人的著作权或者与著作权有关的权利进行集体管理的社会团体。 著作权集体管理组织应当依照有关社会团体登记 管理的行政法规和本条例的规定进行登记并开展活动。
第 四条 著作权法规定的表演权、放映权、广播权、出租权、信息网络传播权、复制权等权利人自己难以有效行使的权利，可以由著作权集体 管理组织进行集体管理。
第五条 国务院著作权管理部门主管全国的著作权集体管理工作。
第六条 除依照本条例规定设立的著作权集体管理组织外，任何组织和个人不得从事著作权集体管理活动。
第二章 著作权集体管理组织的设立
第七条 依法享有著作权或者与著作权有关的权利的中国公民、 法人或者其他组织，可以发起设立著作权集体管理组织。 设立著作权集体管理组织，应当具备下列条件： （一）发起设立著作权集体管理 组织的权利人不少于50人； （二）不与已经依法登记的著作权集体管理组织的业务范围交叉、重合； （三）能在全国范围代表相关权利 人的利益； （四）有著作权集体管理组织的章程草案、使用费收取标准草案和向权利人转付使用费的办法（以下简称使用费转付办法）草案。
第八条 著作权集体管理组织章程应当载明下列事项： （一）名称、住所； （二）设立宗旨； （三）业务范围； （四）组织机构及其职权； （五）会员大会的最低 人数； （六）理事会的职责及理事会负责人的条件和产生、罢免的程序； （七）管理费提取、使用办法； （八）会员加入、 退出著作权集体管理组织的条件、程序； （九）章程的修改程序； （十）著作权集体管理组织终止的条件、程序和终止后资产的处理。
第九条 申请设立著作权集体管理组织，应当向国务院著作权 管理部门提交证明符合本条例第七条规定的条件的材料。国务院著作权管理部门应当自收到材料之日起60日内，作出批准或者不予批准的决定。批准的，发给著作 权集体管理许可证；不予批准的，应当说明理由。
第十 条 申请人应当自国务院著作权管理部门发给著作权集体管理许可证之日起30日内，依照有关社会团体登记管理的行政法规到国务院民政 部门办理登记手续。
第十一条 依法登记的著作权集体管理组织，应当自国务院民政部门发给登记证书之日起30日内，将其登记证书副本报国务院著作权管理部门备案；国务院著作权管理部门应 当将报备的登记证书副本以及著作权集体管理组织章程、使用费收取标准、使用费转付办法予以公告。
第十二条 著作权集体管理组织设立分支机构，应当经国务院著作权管理部门批准，并依照有关 社会团体登记管理的行政法规到国务院民政部门办理登记手续。经依法登记的，应当将分支机构的登记证书副本报国务院著作权管理部门备案，由国务院著作权管理 部门予以公告。
第十三条 著 作权集体管理组织应当根据下列因素制定使用费收取标准： （一）使用作品、录音录像制品等的时间、方式和地域范围； （二）权利的种 类； （三）订立许可使用合同和收取使用费工作的繁简程度。
第十四条 著作权集体管理组织应当根据权利人的作品或者录音录像制品等使用情况制定使用费转 付办法。
第十五条 著作权集 体管理组织修改章程，应当将章程修改草案报国务院著作权管理部门批准，并依法经国务院民政部门核准后，由国务院著作权管理部门予以公告。
第十六条 著作权集体管理组织被依法撤销登记的，自被撤 销登记之日起不得再进行著作权集体管理业务活动。
第三章 著作权集体管理组织 的机构
第十七条 著作权集体管理组织会员大会（以下简称会员大会）为著作权集体管理组织的权力机构。 会员大会由理事会依照本条例规定负责召集。理事会应当于会 员大会召开60日以前将会议的时间、地点和拟审议事项予以公告；出席会员大会的会员，应当于会议召开30日以前报名。报名出席会员大会的会员少于章程规定 的最低人数时，理事会应当将会员大会报名情况予以公告，会员可以于会议召开5日以前补充报名，并由全部报名出席会员大会的会员举行会员大会。 会员大会行使下列职权： （一）制定和修改章程； （二）制定和修改使用费收取标准； （三）制定和修改使用费转付办法； （四）选举和罢免理事； （五）审议批准理事会的工作报告和财务报告；