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中华人民共和国著作权法实施条例 REGULATIONS FOR THE IMPLEMENTATION OF THE COPYRIGHT LAW OF THE PEOPLE'S REPUBLIC OF CHINA

2006-05-17 14:57   我要纠错 | 打印 | 收藏 | | |

国家版权局令第1号
(Promulgated on May 30, 1991)
颁布日期:19910530  实施日期:19910601  失效日期:20020915  颁布单位:国家版权局

  Chapter I General Provisions

  Article 1 The present Regulations are formulated according to the Article 54 of the Copyright Law of the People's Republic of China (hereinafter referred to as the Copyright Law)。

  Article 2 The term “works” used in the Copyright Law refers to original intellectual creations in the literary, artistic and scientific domain, in so far as they are capable of being reproduced in a certain tangible form.

  Article 3 The term “creation” mentioned in the Copyright Law refers to intellectual activities from which literary, artistic and scientific works are directly resulted.

  The making of arrangement and the provision of consultation, material means or supporting service, done for others in their creating activities, shall not be deemed as acts of creating.

  Article 4 These works mentioned in the Copyright Law and the present Regulations mean the following:

  (1) Written works are works expressed in writing, such as novels, poems, essays and thesis;

  (2) Oral works are works, such as unprepared speeches, lectures and court debates, which are created in spoken words and have not been fixed on any material carrier;

  (3) Musical works are works, with or without accompanying words, which can be sung or performed, such as symphony and songs;

  (4) Dramatic works are works, such as dramas, operas and local art forms, which are created for stage performance;

  (5) Qu Yi works are works created mainly for being performed in a way involving recitation, singing, or both, such as cross talk, clapper talk, ballad singing and story telling;

  (6) Choreographic works are works which are or can be expressed in successive body movements, gestures and facial movements;

  (7) Works of fine art are two-or three-dimensional works created in lines, colours or other medium which, when being viewed, impart aesthetic effect, such as paintings, works of calligraphy, sculptures and works of architecture;

  (8) Photographic works are the kind of artistic works created by recording images on light-sensitive materials with the aid of devices;

  (9) Cinematographic, television and video graphic works are works which, being recorded on some material, consist of a series of frames of images, with or without accompanying sound, and can be projected with the aid of devices suitable in relation to a specific works;

  (10) Drawings of engineering designs and product designs and the accompanying descriptions are drawings made for the purpose of actual construction and manufacturing and descriptive works contained in the said design drawings;

  (11) Maps, diagrams and other graphic works refer to two-or three-dimensional works showing geographical phenomenon and demonstrating the fundamental or the structure of a thing or an object, such as geographical maps, plan of electrical circuit or an anatomical drawings.

  Article 5 The exploitation referred to in the present Law in relation to works shall mean the doing of the following acts:

  (1) Reproduction is the making of if one or more copies of a work by means like printing, photocopying, copying by hand, rubbing, audio-recording, video-recording, re- recording or photographing;

  (2) Performance is the public presentation of a work through vocal sound, facial movements and body movements, directly or with the aid of technical devices;

  (3) Broadcasting is the communication of works through wireless radio waves and cable television system;

  (4) Exhibition is the public display of works of fine art and photography, whether their original copies or reproductions;

  (5) Distribution is the provision of copies of a work to the public by means such as sale and rental, in so far as the number of copies satisfy the reasonable need of the public;

  (6) Publication is the public distribution of copies of the edited version of a work;

  (7) Making of cinematographic, television and video works means the fixation for the first time of a work on some materials by means of cinematographic production or analogous process. This subsection shall not apply to the mere mechanical recording of performance or scenes or material objects;

  (8) Adaptation is the creation of new original works on the basis of pre-existing ones by changing their original form of expression or the purposes they are originally designed to serve;

  (9) Translation is the conversion of the language of a work into another language;

  (10) A notation is the explanation of characters, words and sentences used in a literary work;

  (11) Compilation is the creation of a work by assembling a number of selected pre-existing works, in whole or in parts, according to an arrangement designed for a specific purpose;

  (12) Sorting-out is the rearrangement of pre-existing works or materials by changing their former state of being fragmented and poorly-ordered into a one of being systematic and orderly, such as the glossing and repairing of ancient classics.

  Article 6 As used in the Law, the terms listed below shall mean the following:

  (1) News of current events refers to the mere report of facts or happenings conveyed by newspapers, periodicals and radio and television stations;

  (2) Sound recordings refers to the original recordation of any sounds;

  (3) Video recordings refers to the original recordation of a series of related images, with or without accompanying sounds, other than cinematographic and television and video graphic works;

  (4) Radio and television broadcasts refer to the programme communicated by radio or television station by means of diffusing signals carrying sound or images or both;

  (5) Producer of sound recordings refers to a person who makes sound recordings ;

  (6) Producer of video recordings refers to a person who makes video recordings;

  (7) Performer refers to persons who perform literary and artistic works professionally or not professionally.

  Chapter II Copyright Administrative Authorities

  Article 7 The national Copyright Administration, being an administrative department for copyright matters under the State Council, is responsible for the nation-wide work of administration of copyright by mainly carrying out the following functions:

  (1) To implement copyright-related laws and regulations and to promulgate rules in relation to copyright administration;

  (2) To investigate and redress cases of infringement of copyright that are of nation-wide influence;

  (3) To approve the formation of and to supervise the operation of collective administration of copyright, copyright agent business dealing with cross-border transactions and arbitrations scheme for disputes arose in relation to copyright contracts;

  (4) To undertake administration as far as external copyright relation is concerned;

  (5) To administer copyright of which the State is the owner;

  (6) To provide guidance for local copyright authorities with their performance of administrative functions;

  (7) To carry out other duties assigned by the State Council in relation to copyright administration.

  Article 8 The copyright department under the local governments are responsible for copyright administration within their respective jurisdiction, whose duties shall be determined by the government of each of the provinces, autonomous regions and municipalities directly under the central government.

  Chapter III Ownership and Exercise of Copyright

  Section 1. Ownership of Copyright

  Article 9 Unless the Law provided otherwise, copyright shall belong to citizens who have created works and the legal and non-legal entities who are deemed authors by virtue of the Law.

  The conditions laid down by the General Principles of the Civil Law of the People's Republic of China must be satisfied to be a legal entity.

  Social institutions and economic organizations, by not being able to meet the conditions to be legal entities, and the relatively independent departments forming a legal entity are non-legal entities for the purpose of the Law.

  Article 10 Persons who have glossed or sorted-out pre-existing works shall enjoy the copyright in the works thus created, in so far as they are not entitled to copyright in the works they used and do not have the right to prohibit the glossing or sorting-out done by other person in relation to the same pre-existing work.

  Article 11 Where joint authors failed to reach an agreement on the exercise of copyright in a work of joint authorship which can not be used piecemeal, any party may not unreasonably prohibit the exercise by others of the said copyright.

  Article 12 In the case of works of compilation, being in the form of encyclopaedias, dictionaries, text books or photo books of large size, as the case may be, copyright in the work as a whole shall belong to legal entities or non-legal entities who have arranged manpower or provided financial aid and material means for their creation and bear the responsibility in relation to the said work.

  Article 13 Permission to make necessary alteration shall be implied where the copyright owner has authorized the making cinematographic, television or videographic work based on his or her work, in so far as such alteration does not distort or mutilate the original work.

  Article 14 Where copyright in a work created within the fulfillment of duties belongs to the author, the author may ask his institution to permit a third party to use the work in the same manner as the institution might have done. if the institution does not use the work in the course of its business within 2 years after the creation of the work.

  Within 2 years after the creation of the work, the author may, with the permission of the institution, permit a third party to use the work in the manner as the institution may have done. Remunerations thus obtained shall be divided between them according to agreed proportion.

  Even after the expiry of the said 2 years, the institution may continue with use of the work in the course of its business.

  The aforementioned 2 years period after the creation of the work shall be calculated from the date on which the work concerned is submitted to the institution.

  Article 15 Material and technical conditions mentioned in paragraph 2 of Article 16 (1) of the Law shall mean fund, equipments or materials provided expressly for the creation of a work.

  Article 16 In the case of a work of unknown author, the copyright, except the right of indication of authorship, shall be exercised by the lawful holder of the original copy of the work. With the restoration of authorship, the copyright shall be exercised by the author or his heir in title.

  Article 17 Article 18 of the Law, which says that transfer of ownership of the original copy of a work of fine art shall not be deemed as transfer of copyright in the work, is applicable to all works the ownership of original copy of which can be transferred.

  Section 2. Inheritance of Copyright

  Article 18 Inheritance of economic rights contained in copyright shall be executed in accordance with the Law of Inheritance.

  Article 19 In the case where one of the co-authors of a work of joint authorship dies without having heir in title or other beneficiary, the economic rights he enjoyed in relation to his contribution to the work shall be exercised by the other co-authors.

  Article 20 Right of indication of authorship, right of revision and right of integrity contained in copyright shall, after the death of the author, be protected by the heir in title and other person to whom the economic rights are granted.

  In the absence of heir in title or other beneficiary, right of indication of authorship, right of revision and right of integrity contained in copyright shall be protected by the copyright administrative authority.

  Article 21 Copyright enjoyed by the State shall be enforced by the copyright administrative authority on behalf of the State.

  Article 22 In the case of posthumous works, the right of disclosure may be exercised by the author's heir in title or other beneficiary for a period of 50 years, unless a prior statement by the author says expressly to the contrary. In the absence of heir in title or other beneficiary, the said right shall be exercised by the lawful holder of the original copy of the work.

  Section 3. Coming into existence of copyright and Calculation of the of Protection

  Article 23 Copyright protected under this Law shall emerge on the date when a work is created.

  Article 24 In the case of a work of unknown author, the term of protection in relation to economic rights shall be 50 years ending on December 31 of the fiftieth year after the first publication of the work. Article 21 of the Law shall be applicable after authorship of the work becomes ascertained.

  Article 25 In the case of works by foreign authors that have first published in China, the term of protection shall be calculated from the date of first publication of the work.

  The first publication in China mentioned in the paragraph 2 of Article 2 of the Law in relation to works of foreigners refer to the situation where unpublished works of foreigners have been published for the first time in China by lawful means.

  Works of foreigners first published outside China shall be deemed first published in China if it is published in China within 30 days after its first publication.

  Unpublished works of foreigners shall also be deemed first published in China if their authorized adaptations or translations are first published in China.

  Section 4. Limitations on Rights

  Article 26 As used in the Law, a published work refers to a work which has been made known to the public by means stipulated in the Law.

  Article 27 The following conditions have to be satisfied for an act to be deemed appropriate quotation of published works by act to be deemed appropriate quotation of published works by others mentioned in Article 22 (2) of the Law:

  (1) The quotation is made solely for the purpose of introducing or reviewing the source works or making clear a point;

  (2) What has been quoted does not form a major or substantial part of the work of the quoter;

  (3) The interests of the copyright owner of the work being quoted shall not be prejudiced.

  Article 28 Article 22 (3) of the Law refers to unavoidable inclusion of published works as is justified by the purpose of reporting current events.

  Article 29 Making use of published works of other persons by virtue of Article 22 (6) and (7) shall not harm the normal exploitation of the works concerned and shall not unreasonably prejudice the legitimate interests of the copyright owners.

  Article 30 In the case of performance of published works as is permitted by Article 22 (9) of the Law, no fees shall be charged on viewing or hearing audience and no remuneration shall be paid to the performers.

  Article 31 Article 22 (11) of the Law shall be applicable only to works originally created in Chinese.

  Chapter IV Copyright Licencing Contracts

  Article 32 It is a requirement that contracts with copyright owners and licence obtained for using their works be made in writing, except the cases where works are to be published by newspaper and periodicals.

  Article 33 In default of a clear indication in a contract in relation to the grant of exclusive right to use, only non-exclusive right to use by the licensee shall be implied, unless the Law stipulated otherwise.

  Article 34 The provision of standard forms of various copyright licencing contracts shall be the responsibility of the National Copyright Administration.

  Article 35 The person who has obtained exclusive right in relation to the use in a certain way of a work shall have the right to prevent any other person including the copyright owner as licensor from using the work in the same way. However, the sublicensing of the same right to a third party shall be subject to permission by the copyright owner, unless the contracting parties agreed otherwise.

  Chapter V Exercise of and Limitations on Rights Related to Copy- right

  Article 36 As is used in the Law and the Regulation, rights related to copyright mean the right enjoyed by publishers in their publications, the right enjoying by performers in their performances, the right enjoyed by producers of audio and video recordings in their products and the right enjoyed by radio and television stations in their broadcasts.

  Article 37 Publishers, performers, producers of audio and video recordings and radio and television stations, in the course of exercising their rights, shall not prejudice copyrights their owners enjoyed in the works being used.

  Article 38 Publishers shall enjoy exclusive right of exploitation in typographical design of the books, newspapers and periodicals they have published.

  Article 39 By virtue of Article 30 of the Law, legal protection shall be available for the exclusive right a publisher obtained to publish, within the term of validity of and the territory of execution defined by the contract, a work in its original language and in the form of original edition, revised version or condensed version.

  Article 40 In the case where manuscripts was submitted to a publisher on the author's own initiative, the publisher shall, within 6 months, notify the author whether he will publish the work or not. In the case of acceptance, a contract shall be made; in the case of refusal, notification shall be sent to the author in a timely manner. In the case where no notification is served and no contract is made, the author may, upon expiry of the said 6 months, demand that the manuscripts be returned and economic compensation be made. The said 6 months shall be calculated from the date of receipt by the publisher of the manuscripts.

  Article 41 Articles 29, 30, 31 and 33 of the Law shall not be applicable to the case where the cost of publication of a work is born by the author.

  Article 42 The state of being out of print in relation to a work mentioned in Article 31 of the Law shall be established if a period of 6 months after two subscription forms were mailed by the author to the publisher expires without action being taken to satisfy the subscription.

  Article 43 To object to the reprinting of his or her work in whole or in part by virtue of paragraph 2 of Article 32 of the Law, the copyright owner is required to make a statement to that effect at the same time when the work is first published in a newspaper or a periodical.

  Article 44 No time limit shall be set on the term of protection in relation to the rights provided for in Article 36 (1) and (2) of the Law.

  In the case of the term of protection in relation to the right of remuneration the performers enjoyed by virtue of paragraph 2 of Article 39 and paragraph 3 of Article 42 of the Law, paragraph 1 of Article 39 and paragraph 2 of Article 42 of the Law shall apply.

  Article 45 With reference to Article 35 of the Law, payment of remuneration by performers to copyright owner shall be done through the person who has organized the performance in question.

  Article 46 Performance by foreign performers taking place in China shall be protected by the Law.

  Article 47 Audio and video recordings produced and distributed in China by foreign producers shall be protected by the Law.

  Article 48 To object to the performance, recording or making broadcasts of his or her work by virtue of paragraph 2 of Article 35, paragraph 1 of Article 37 and paragraph 2 of Article 40 of the Law, the copyright owner is required to make a statement to that effect at the same time when his or her work is published, or have the statement carried in copyright bulletin issued by the National Copyright Administration.

  Article 49 To use published works of other persons by virtue of paragraph 2 of Article 32, paragraph 2 of Article 35, paragraph 1 of Article 37 and paragraph 2 of Article 40 of the Law, the user is required to pay remuneration to the copyright owner. In the case where the copyright owner is not identifiable or the address of the copyright owner is not available, the remuneration payable shall be remitted to the body designated by the National Copyright Administration for further transfer to the due copyright owner within 1 month.

  Chapter VI Administrative Sanctions

  Article 50 Infringements against copyright enumerated in Article 46 of the Law shall be liable to the administrative sanctions to be imposed by copyright administrative authority in the form of public warning, injunction in relation to the production and distribution of infringing copies, confiscation of unlawful gains and seizure of infringing copies and equipments used for making infringing copies, as well as fine.

  Article 51 The amount of the fine to be imposed for infringements against copyright enumerated in Article 46 of the Law shall be the following, depending on situation of each of the cases:

  (1) Infringing act given by Article 46 (1) of the Law shall be liable to a fine of from 100 to 5000 yuan in RMB;

  (2) Infringing acts given by Article 46 (2), (3), (4), (5), and (6) of the Law shall be liable to a fine of 10000 to 100000 yuan in RMB, or an amount of 2 to 5 times as much as the entire price of the infringing copies;

  (3) Infringing act given by Article 46 (7) of the Law shall be liable to a fine of from 1000 to 50000 yuan in RMB

  Article 52 Copyright administrative authorities under the local governments shall be empowered to redress the infringements against copyright enumerated in Article 46 of the Law.

  The National Copyright Administration shall investigate and redress the following infringements against copyright:

  (1) Infringements against copyright that are of nationwide influence;

  (2) Infringements against copyright where a foreign party is involved;

  (3) Infringements against copyright that should be redressed by the National Copyright Administration, as the Administration might think.

  Article 53 In exercising its right of imposing administrative sanctions, copyright administrative authority may order the infringer to compensate the loss the infringed party suffered.

  Chapter VII Supplementary Provisions

  Article 54 Copyright owners may exercise their copyrights by way of collective administration.

  Article 55 The interpretation of this Regulation shall be the responsibility of the National Copyright Administration.

  Article 56 This Implementing Regulation shall enter in force on June 1, 1991.

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