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计算机软件保护条例 Protection of Computer Software Regulations

2006-05-13 15:16   我要纠错 | 打印 | 收藏 | | |

国务院令第339号
(Promulgated by the State Council on 20 December 2001 and effective as of 1 January 2002.)
颁布日期:20011220  实施日期:20020101  颁布单位:国务院

  PART ONE GENERAL PROVISIONS

  Article 1 These Regulations are formulated in accordance with the PRC, Copyright Law to protect the rights and interests of copyright owners of computer software, to regulate the interests of parties arising in the course of development, dissemination and use of computer software, to encourage the development and application of computer software, and to promote the development of software and information technology of the national economy.

  Article 2 For the purposes of these Regulations, the term "computer software" (Software) shall mean computer programs and their relevant files.

  Article 3 For the purposes of these Regulations, the following terms shall have the meanings set forth below:

  1. "Computer program" shall mean a coded command sequence, or a symbolic command sequence or symbolic statement sequence automatically convertible to a coded command sequence that can be executed by a device capable of processing information, such as a computer and other such devices, where the purpose of such sequence is to achieve a certain result. The source program and the target program of the same computer program shall be the same work;

  2. "Files" shall mean written information and diagrams used to describe the contents, composition, design, function specifications development details, test results and method of use of a program, such as program design explanations, flow charts and user's manuals;

  3. "Software developer" shall mean a legal person or other organization that actually organizes, directly carries out the development work and bears responsibility for the completed Software, or a natural person who completes the development of Software independently on the strength of his own facilities and bears responsibility for such Software; and

  4. "Software copyright owner" shall mean a natural person, legal person or other organization that owns the copyright in Software in accordance with these Regulations.

  Article 4 Software must have been developed independently by a developer and fixed on physical media in order to be protected under these Regulations.

  Article 5 Software developed by Chinese citizens, legal persons or other organizations shall enjoy the copyright in their Software under these Regulations regardless of whether the Software is published.

  Software developed by foreigners or stateless persons first published in China shall enjoy copyright in the Software under these Regulations.

  Where a foreigner or stateless person, in accordance with an agreement between his home country or his country of habitual residence and China, or an international treaty acceded to by China, enjoys copyright in the Software, such copyright shall enjoy protection hereunder.

  Article 6 The protection provided by these Regulations over the copyright in Software shall not extend to the idea, process, operating method or mathematical concepts employed in the development of the Software.

  Article 7 A Software copyright owner may register the copyright with the Software registration authority recognized by the copyright administration department of the State Council. The registration certificate issued by the Software registration authority shall be the prima facie evidence for the registered item.

  A fee shall be paid for registration of Software. The charging standard for Software registration shall be stipulated by the copyright administration department of the State Council in conjunction with the State Council department in charge of pricing.

  PART TWO SOFTWARE COPYRIGHT

  Article 8 Software copyright owners enjoy the following rights:

  1. the right of publication, i.e. the right to decide whether to make the Software available to the public;

  2. the right of attribution, i.e. the right to indicate the developer's identity and to affix one's name to Software;

  3. the right of revision, i.e. the right to make additions and supplements to, or abridge the Software, or change the order of commands and statements;

  4. the right of reproduction, i.e. the right to make one or more copies of the Software;

  5. the right of distribution, i.e. the right to provide originals or reproductions of Software to the public by means of sale or gift;

  6. the right of rental, i.e. the right to permit others to temporarily use Software for consideration, unless the Software itself is not the essential object of the rental;

  7. the right of communication via an information network, i.e. the right to make Software available to the public by wire or by wireless means, enabling members of the public to access the Software at a time and from a place individually chosen by them;

  8. the right of translation, i.e. the right to convert an original Software from one natural language to another natural language; and

  9. other rights to which the Software copyright owner is entitled.

  A Software copyright owner may permit others to exercise his Software copyright, and has the right to receive remuneration.

  A Software copyright owner may assign all or part of his Software copyright, and has the right to receive remuneration.

  Article 9 Unless these Regulations provide otherwise, the copyright in Software shall vest in the Software developer.

  Absent evidence to the contrary, the natural person, legal person or other organization that puts his or its name on Software shall be the developer thereof.

  Article 10 Where Software is jointly developed by two or more natural persons, legal persons or other organizations, the ownership of the copyright shall be agreed upon in a written contract signed by the co-developers. If there is no written contract or the contract does not expressly provide for ownership, the jointly developed Software may be used by dividing it, and each co-developer may hold separate copyright in the part that he developed provided that his exercise of such right does not extend to the copyright in the jointly developed Software as a whole. Where the jointly developed Software is not divisible into separate usable parts, the copyright shall be owned jointly by each co-developer after having reached a consensus. Where the co-developers fail to reach a consensus and there is no proper reason, no party may prevent any of the other parties from exercising any right other than the right of assignment, provided that the gains obtained shall be reasonably distributed among all the co-developers.

  Article 11 The ownership of the copyright in Software the development of which is commissioned by another party shall be agreed upon in a written contract signed by the commissioner and the commissioned party. If there is no such written contract or the contract does not expressly provide for ownership, copyright shall be vested in the commissioned party.

  Article 12 The ownership of copyright in Software that is developed pursuant to an assignment given by a State authority shall be provided for in a project assignment letter or in a contract. Where the project assignment letter or the contract does not expressly provide for ownership, copyright in the Software shall be vested in the legal person or other organization that accepted the assignment.

  Article 13 Where the Software developed by a natural person during his employment period at a legal person or other organization is in any of the following circumstances, the copyright in that Software shall be vested in the legal person or other organization, and such legal person or other organization may reward the natural person that develops the Software:

  1. where such Software is developed to achieve an expressly designated development objective of his job;

  2. where the Software developed is a foreseeable or natural result of the activities performed in his duties; or

  3. where the Software is developed mainly by using the material and technical resources such as the capital, specific equipment or special information not yet disclosed of a legal person or other organization, and the responsibility for the Software is borne by the legal person or other organization.

  Article 14 Copyright in Software shall arise on the date on which the development of the Software is completed.

  A natural person's copyright in Software shall be protected for a period consisting of the natural person's lifetime and 50 years after his death, and ending on 31 December of the 50th year after the natural person's death. Where the Software is jointly developed, such period shall end on 31 December of the 50th year after the death of the last surviving natural person.

  The copyright in Software of a legal person or other organization shall be protected for a period of 50 years, ending on 31 December of the 50th year after the first publication of the Software, except that if such Software is not published within 50 years from the date of completion of its development, it shall no longer be protected under these Regulations.

  Article 15 Where copyright in Software vests in a natural person, the successor to the Software copyright may, after the death of the natural person, succeed to the rights stipulated in Article 8 hereof except the right of attribution in accordance with the relevant provisions of the PRC, Inheritance Law within the period of protection of the Software copyright.

  Where copyright in Software vests in a legal person or other organization, the copyright shall, after such legal person or other organization is changed or terminated, vest in the legal person or other organization that inherited the former's rights and obligations or, if no legal person or other organization inherited such rights and obligations, in the State, for the period of protection provided for in these Regulations.

  Article 16 The owner of the legal reproductions of Software shall enjoy the following rights:

  1. install the Software into a computer and other instruments that possess the capacity for information processing as required for use;

  2. make back-up reproductions to prevent damage to the reproductions. Such back-up reproductions may not be made available to others by any means, and shall be responsible for destroying the back-up reproductions when the owner loses the ownership of the legal reproductions; and

  3. make necessary modifications to the Software in order to use it in the actual computer application environment or to improve its functions and performance. Unless agreed otherwise in a contract, the modified Software may not be provided to any third party without the permission of the Software copyright owner.

  Article 17 Where Software is used in the forms such as installing, displaying, transmitting or saving the Software to learn and study the design concepts and principles, permission from, and payment of remuneration to, the Software copyright owner is not required.

  PART THREE LICENSING AND ASSIGNMENT OF SOFTWARE COPYRIGHTS

  Article 18 To license others to exercise Software copyrights, a licensing contract shall be concluded.

  A licensee may not exercise any right that the Software copyright owner has not explicitly licensed in the licensing contract.

  Article 19 To license others to exclusive exercise of Software copyright, the party shall conclude a written contract.

  Where there is no written contract or where the licence is not expressly agreed in the contract to be exclusive, the exercise of the right licensed shall be regarded as non-exclusive.

  Article 20 Assignment of Software copyright shall require the conclusion of a written contract.

  Article 21 Licensing contracts that license others to exclusive exercise of Software copyright or contracts of assignment of Software copyright may be registered with the Software registration authority recognized by the copyright administration department of the State Council.

  Article 22 Chinese citizens, legal persons or other organizations that license or assign Software copyright to foreigners shall comply with the relevant provisions of the PRC, Administration of Technology Import and Export Regulations.

  PART FOUR LEGAL LIABILITY

  Article 23 Unless stipulated otherwise in the PRC, Copyright Law and these Regulations, anyone who commits any of the following infringing acts shall undertake civil liability by ceasing the infringement, eliminating the effects, apologizing, paying damages, etc., depending on the circumstances:

  1. publication or registration of Software without permission from the owner of the copyright therein;

  2. publication or registration of another's Software as one's own Software;

  3. publication or registration of a jointly developed Software without permission from the other co-developers as Software completed solely by oneself;

  4. affixing one's name to another's Software or altering the name affixed to another's Software;

  5. revising or translating Software without permission from the Software copyright owner; or

  6. other infringements of Software copyright.

  Article 24 Unless stipulated otherwise in the PRC, Copyright Law, these Regulations or other laws and administrative regulations, anyone who commits any of the following infringing acts without permission by the Software copyright owner shall undertake civil liability by ceasing the infringement, eliminating the effects, apologizing, paying damages, etc., depending on the circumstances; if his act also prejudices the public interest, he may be subjected by a copyright administration department to an order to cease the infringing act, confiscation of unlawful income, confiscation and destruction of the infringing reproductions and the imposition of a fine; if the circumstances are serious, the copyright administration department may also confiscate the materials, tools, equipment, etc. mainly used in the manufacture of the infringing reproductions; if the act violates the criminal law, his criminal liability shall be pursued in accordance with the relevant provisions of the criminal law on the crime of infringing copyright or selling infringing reproductions:

  1. reproduce or reproduce part of the Software of the copyright owner;

  2. distribute, rent or communicate the Software of the copyright owner via an information network to the public;

  3. evade or damage intentionally the technical measures taken by the copyright owner to protect his Software copyright;

  4. delete or amend intentionally the electronic information of administration of the Software rights; or

  5. assign or license others to exercise the Software copyright of the copyright owner.

  In the case of an act specified in Item (1) or (2) in the preceding paragraph, a fine of Rmb 100 per item or a fine of not more than five times of the amount of the goods may be imposed. In the case of an act specified in Item (3), (4) or (5) in the preceding paragraph, a fine of not more than Rmb 50,000 may be imposed.

  Article 25 The measure of damages for infringement of Software copyright shall be determined in accordance with Article 48 of the PRC, Copyright Law.

  Article 26 If a Software copyright owner has evidence showing that another person is carrying out or about to carry out an act of infringement upon his rights and that failure to immediately halt such act would cause damage to his lawful rights and interests that would be difficult to remedy, he may, in accordance with Article 49 of the PRC, Copyright Law, apply to a people's court for an injunction against the act and an order of preservation of property prior to the institution of proceedings.

  Article 27 A Software copyright owner may, with the object of halting infringing conduct, apply to a people's court for the preservation of evidence prior to the institution of proceedings in accordance with Article 50 of PRC, Copyright Law, if such evidence might be destroyed, lost or difficult to obtain later.

  Article 28 If a publisher or producer of Software reproductions is unable to produce evidence that his publication or production was lawfully authorized, or if a distributor of Software reproductions or a person renting out Software reproductions is unable to produce evidence of the lawful origin of the reproductions that he distributes or rents out, he shall bear legal liability.

  Article 29 Where Software developed by a Software developer is similar to an existing Software due to a limited selection of forms of expression that may be used, it shall not constitute an infringement of the copyright of the already existing Software.

  Article 30 If the holder of a Software reproduction does not know or there are no reasonable grounds for him to know that the Software is an infringing reproduction, he shall not be liable for compensation, but he should cease the use and destroy the infringing reproduction. If the cease of use and destruction of the infringing reproduction will result in major losses to the user of the reproduction, he may continue to use after paying the Software copyright owner a reasonable fee.

  Article 31 A dispute over infringement of Software copyright may be the subject of mediation.

  A dispute over a Software copyright contract may be submitted to an arbitration institution for arbitration pursuant to the arbitration clause of the contract or a written arbitration agreement subsequently concluded.

  If the parties have neither included an arbitration clause in their contract nor subsequently concluded a written arbitration agreement, proceedings may be instituted directly in a people's court.

  PART FIVE SUPPLEMENTARY PROVISIONS

  Article 32 Infringing acts that occur before these Regulations come into effect shall be handled in accordance with the relevant provisions of the State at the time of occurrence of the infringing acts.

  Article 33 These Regulations shall be effective as of 1 January 2002. The Computer Software Protection Regulations promulgated by the State Council on 4 June 1991 shall be repealed simultaneously.

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