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中华人民共和国著作权法实施条例 PRC Copyright Law Implementing Regulations

2006-05-13 11:21   我要纠错 | 打印 | 收藏 | | |

国务院令第359号

(Promulgated by the State Council on 2 August 2002 and effective as of 15 September 2002.)

颁布日期:20020802  实施日期:20020915  颁布单位:国务院

  Article 1 These Regulations are formulated in accordance with the PRC, Copyright Law (the Copyright Law)。

  Article 2 For the purposes of the Copyright Law, the term “works” means unique intellectual achievements in the fields of literature, art and science that can be reproduced in a tangible form.

  Article 3 For the purposes of the Copyright Law, the term “creation” means intellectual activity that directly produces literary, artistic or scientific works.

  Conducting organizational work, giving advice or comments, providing material conditions or otherwise rendering support in respect of the creation of works by others shall not be regarded as creation.

  Article 4 For the purposes of the Copyright Law and these Regulations, the following works shall have the meanings set forth below:

  1. “written works” means works expressed in written form, such as novels, poems, prose, treatises, etc.;

  2. “oral works” means extemporaneous works expressed in oral form, such as speeches, lectures, court arguments, etc.;

  3. “musical works” means works with or without lyrics that can be sung or played, such as songs, symphonies, etc.;

  4. “theatrical works” means works for stage performance such as dramas, operas, local operas, etc.;

  5. “works of quyi” means works mainly performed through storytelling and ballad singing, such as comic dialogues, quick-patter, versified stories sung to the accompaniment of a small drum and other instruments, storytelling, etc.;

  6. “choreographic works” means works that express thoughts and feelings through continuous movement, postures, facial expressions, etc.;

  7. “acrobatic works” means works expressed through bodily movements and techniques, such as acrobatics, conjuring, circus performances, etc.;

  8. “works of fine art” means two- or three-dimensional aesthetic works of visual art made up of line, colour or other means, such as paintings, calligraphy, sculptures, etc.;

  9. “works of architecture” means aesthetic works expressed in the form of buildings or structures;

  10. “photographic works” means artistic works that are images of objects recorded on light-sensitive material or other media by means of instruments;

  11. “cinematographic works and works created by a process analogous to cinematography” means works filmed on a certain medium and consisting of a series of frames, with or without accompanying sound, which are projected or otherwise communicated by means of appropriate equipment;

  12. “graphic works” means drawings of engineering designs and drawings of product designs that are made for construction work or engineering purposes, and to maps, schematic drawings, etc. that reflect geographical phenomena or illustrate the principles or structures of things;

  13. “model works” means three-dimensional works made to a certain scale on the basis of the shape and structure of objects, for purposes of display, testing or observation, etc.

  Article 5 For the purposes of the Copyright Law and these Regulations, the following terms shall have the meanings set forth below:

  1. “news of current events” means pure factual information reported by such media as newspapers, periodicals, radio stations, television stations, etc.;

  2. “sound recording” means any recording of the sound of a performance or other sound;

  3. “video recording” means any recording of continuous, related images or pictures with or without accompanying sound other than a cinematographic work or a work created by a process analogous to cinematography;

  4. “producer of a sound recording” means a person that first produces a sound recording;

  5. “producer of a video recording” means a person that first produces a video recording;

  6. “performer” means an actor or actress, an organization of performing artists or another person that performs a literary or artistic work.

  Article 6 Copyright arises on the date on which creation of the work is completed.

  Article 7 Copyright in works of foreigners or stateless persons that are first published in the People's Republic of China, as mentioned in the third paragraph of Article 2 of the Copyright Law, is protected from the date of first publication.

  Article 8 A work of a foreigner or stateless person that is published in China within 30 days after it is first published outside China shall be deemed to have been simultaneously published in China.

  Article 9 Where a joint work cannot be used by dividing it, the copyright therein shall be owned jointly by the co-authors and be exercised after they have reached a consensus thereon through consultations. If the co-authors fail to reach a consensus and there is no proper cause for such failure, no party may prevent any of the other parties from exercising any right other than the right of assignment; however, the gains derived shall be reasonably distributed among all the co-authors.

  Article 10 If a copyright owner permits another person to film his work into a cinematographic work or a work created by a process analogous to cinematography, he shall be deemed to have agreed to the making of necessary modifications to his work; however, such modifications may not distort or mutilate the original work.

  Article 11 For the purposes of the provisions concerning occupational works in the first paragraph of Article 16 of the Copyright Law, the term “task” means a duty to be performed in such legal person or other organization by the citizen.

  For the purposes of the provisions concerning occupational works in the second paragraph of Article 16 of the Copyright Law, the term “material and technical resources” means funds, equipment or materials provided exclusively by the legal person or other organization for the citizen's completion of the creation.

  Article 12 If the author of an occupational work, with the permission of his work unit, permits a third party to use the work in the same way as does the work unit within two years after completion of the work, the remuneration so derived shall be shared by the author and the work unit according to the ratio agreed upon.

  The two-year time limit following completion of the work shall commence on the date on which the author delivers the work to his work unit.

  Article 13 The copyright, other than the right of attribution, in a work by an author whose identity is unknown shall be exercised by the owner of the original copy of the work. Once the author's identity has been ascertained, the copyright shall be exercised by the author or his successor.

  Article 14 If a co-author dies without a successor to or legatee of the rights specified in Items (5) to (17) of the first paragraph of Article 10 of the Copyright Law that were held by him in connection with the joint work, such rights shall vest in the other co-authors.

  Article 15 After the death of an author, the attribution, revision and integrity rights in his work shall be protected by his successor or legatee.

  If there is neither a successor to nor a legatee of copyright, the attribution, revision and integrity rights shall be protected by the copyright administration departments.

  Article 16 The use of works in which the State holds copyright shall be administered by the copyright administration department of the State Council.

  Article 17 If the author of an unpublished work did not expressly indicate before his death that the work should not be published, the right of publication of the work may be exercised by his successor or legatee for 50 years following the author's death. If there is neither a successor nor a legatee, the right of publication shall be exercised by the owner of the original copy of the work.

  Article 18 The period of protection of the rights specified in Items (5) to (17) of the first paragraph of Article 10 of the Copyright Law in respect of a work by an author whose identity is unknown shall end on 31 December of the 50th year after the first publication of the work. After the identity of the author has been ascertained, Article 21 of the Copyright Law shall apply.

  Article 19 When using another's work, the name of the author and the title of the work shall be indicated, unless the parties have agreed otherwise or the characteristics of the manner of use of the work make it impossible to indicate the same.

  Article 20 For the purposes of the Copyright Law, the term “published work” means a work that has been made available to the public by the copyright owner himself or by a person whom he has permitted to do so.

  Article 21 The use of a published work without permission from the copyright owner, pursuant to the relevant provisions of the Copyright Law, may not prejudice the normal use of the work and may not unreasonably prejudice the lawful rights and interests of the copyright owner.

  Article 22 The rates for remuneration for the use of works pursuant to Article 23, the second paragraph of Article 32 and the third paragraph of Article 39 of the Copyright Law shall be stipulated and published by the copyright administration department of the State Council in conjunction with the department in charge of pricing of the State Council.

  Article 23 Anyone who wishes to use the work of another shall conclude a licensing contract with the copyright owner. If the licence is exclusive, such contract shall be made in writing, except in the case of works carried by newspapers or periodicals.

  Article 24 The particulars of an exclusive licence as provided for in Article 24 of the Copyright Law shall be stipulated in the contract. If such particulars are not stipulated, or not stipulated clearly, in the contract, the licensee shall be deemed to have the right to exclude all others, including the copyright owner, from using the work in the same manner. Unless stipulated otherwise in the contract, sublicenses shall be subject to the permission of the copyright owner.

  Article 25 Exclusive licensing contracts or assignment contracts concluded with copyright owners may be recorded with the copyright administration departments.

  Article 26 For the purposes of the Copyright Law and these Regulations, the term “neighbouring rights” means the rights of publishers in the layouts of the books and periodicals published by them, the rights of performers in their performances, the rights of producers of sound recordings and producers of video recordings in the sound recordings and video recordings produced by them, and the rights of radio and television stations in the radio and television programmes broadcast by them.

  Article 27 The exercise by publishers, performers, producers of sound recordings, producers of video recordings, radio stations and television stations of their rights may not prejudice the rights of the owners of the copyright in the works used or those of the owners of the copyright in the original works.

  Article 28 If a book publishing contract provides that the book publisher has the exclusive right of publication but the particulars of such right are not specified, the book publisher shall be deemed to have the exclusive right to publish the original edition or revised editions of the book in the same language within the territory stipulated in the contract during the term of the contract.

  Article 29 For the purposes of Article 31 of the Copyright Law, a book shall be deemed to be out of stock when two orders sent to the book publisher by the copyright owner are not filled within six months.

  Article 30 Where a copyright owner wishes to declare by virtue of the second paragraph of Article 32 of the Copyright Law that his work may not be reprinted or excerpted, he shall attach such a declaration to the work at the time of its publication in a newspaper or periodical.

  Article 31 Where a copyright owner wishes to declare by virtue of the third paragraph of Article 39 of the Copyright Law that no sound recordings may be produced of his work, he shall make such a declaration at the time when a lawful sound recording is produced of the work.

  Article 32 Where use is made of another's work pursuant to Article 23, the second paragraph of Article 32 or the third paragraph of Article 39 of the Copyright Law, remuneration shall be paid to the copyright owner within two months of the date on which the work commences to be used.

  Article 33 Performances rendered inside China by foreigners and stateless persons shall be protected under the Copyright Law.

  The rights, based on international treaties to which China has acceded, that foreigners and stateless persons enjoy in their performances shall be protected under the Copyright Law.

  Article 34 Sound recordings produced and/or distributed in China by foreigners and stateless persons shall be protected under the Copyright Law.

  The rights, based on international treaties to which China has acceded, that foreigners and stateless persons enjoy in the sound recordings produced and/or distributed by them shall be protected under the Copyright Law.

  Article 35 The rights, based on international treaties to which China has acceded, that foreign radio stations and television stations enjoy in the radio and television programmes broadcast by them shall be protected under the Copyright Law.

  Article 36 If an infringing act as mentioned in Article 47 of the Copyright Law is committed and such act also prejudices the public interest, the copyright administration department may impose a fine of not more than three times the amount of the illegal turnover or, if the amount of the illegal turnover is difficult to calculate, a fine of not more than Rmb 100,000.

  Article 37 Infringing acts as mentioned in Article 47 of the Copyright Law that also prejudice the public interest shall be investigated and dealt with by the copyright administration department of the local people's government.

  Infringing acts that have a serious impact nationwide may be investigated and dealt with by the copyright administration department of the State Council.

  Article 38 These Regulations shall be implemented as of 15 September 2002. The PRC, Copyright Law Implementing Regulations approved by the State Council on 24 May 1991 and issued by the National Copyright Administration on 30 May 1991 shall be repealed on the same date.

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