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计算机软件保护条例 REGULATIONS FOR THE PROTECTION OF COMPUTER SOFTWARE

2006-05-17 14:56   我要纠错 | 打印 | 收藏 | | |

国务院令第84号
(Promulgated on June 4, 1991)
时效性:失效  颁布日期:19910604  实施日期:19911001  失效日期:20020101  颁布单位:国务院

  Chapter I General Provisions

  Article 1 In order to protect the rights and interests of creators of computer software, to adjust the relationships of interest during the development, dissemination and use of computer software, to encourage the development and circulation of computer software, and to promote the development of computer applications these regulations are enacted in accordance with the provisions of the Copyright Law of the People's Republic of China.

  Article 2 For the purposes of these regulations computer software (hereinafter referred to as software) refers to computer programs and related documentation.

  Article 3 Meanings of the following words used in these regulations are:

  (1) Computer programs: refers to coded instructional sequences-or those symbolic instructional sequences or numeric language sequences which can be automatically converted into coded instructional sequences-which are for the purpose of obtaining a certain result and which are operated on information processing equipment such as computers.

  Computer programs include source code programs and object code programs. The source code text of a piece of software and its object code text should be seen as one work.

  (2) Documentation: refers to written materials and diagrams, using natural language or formal language, which are used to describe the contents, organization, design, functions and specifications, development circumstances, testing results and method of use of the program, for example: program design explanations, flow charts, user manuals, etc.

  (3) Software developers: refers to those legal persons or units which are not legal persons (hereinafter referred to as units) who actually organize, undertake the work of development, and provide working conditions to complete the development of software and who take responsibility for the software as well; citizens who rely on their own conditions to complete software and who take responsibility for the software.

  (4) Software copyright owners: refers to those units and citizens who, in accordance with these regulations, enjoy the copyright of a computer software.

  (5) Reproduction: refers to the act of transferring software into a material form.

  Article 4 The provision of protection to computer software, as referred to in these regulations, refers to (the fact that) that computer software copyright holders or transferees enjoy all the rights of copyright stipulated in these regulations.

  Article 5 Software which enjoys protection under these regulations must be independently developed by the developer and must already be in material form.

  Article 6 Chinese citizens and units enjoy the copyright under these regulations for software they have developed, regardless of whether it has been published and regardless of where it has been published.

  Foreigner's software first published in China enjoys the copyright under these regulations.

  Software published outside of China by foreigners enjoys copyright in China and protection under these regulations according to a bilateral agreement signed between the country to which it belongs and China or according to international convention to which they are both parties.

  Article 7 The protection provided to software under these regulations cannot be expanded to encompass the ideas, concepts, discoveries, principles, algorithms, processing methods and operations used in the development of computer software.

  Article 8 The State Council's designated software registration agency administers the registration of software throughout the entire country.

  Chapter II Computer Software Copyrights

  Article 9 Software copyright holders enjoy the following rights:

  (1) Right of publication, is the right to decide whether the software should b e released to the public;

  (2) Developer's right of authorship, is the right to indicate the developer's identity and to place his name on the software;

  (3) The right of use, is the right to use the software by copying, demonstrating, distributing, altering, translating, annotating, etc., under the precondition of not harming the public interest.

  (4) The right of licensing use and receiving remuneration, is the right to license others, under provision 3 of this article, to use the entire software or a part of it, and the right to get remuneration for this.

  (5) The right of transfer, is the right to transfer to others the right of use and right of licensing under provisions 3 and 4 of this article.

  Article 10 The copyright of a software belongs to its developer, where this regulations have specific stipulations those should be followed.

  Article 11 Where software is developed jointly by 2 or more units, citizens, except as provided for in a separate agreement, the copyright of the software shall be jointly enjoyed by the developers.

  Exercise of the copyright co-developers shall be carried out in accordance with any written agreement reached prior to creation of the software. If there is no written agreement, and if the jointly developed software can be used in separate parts, the co-developers can separately enjoy the copyright on the parts they developed, but during the exploitation of the copyright this may not be extended to the copyright of the jointly developed work in its entirety. If the jointly developed software cannot be used in separate parts, the co-developers may exploit the copyright by consensus. If consensus cannot be reached, and in the absence of any unusual reasons, neither party can prevent the other from implementing its exclusive rights, with the exception of the right of transfer to a third party. However, any benefits earned shall be fairly distributed among the co-authors.

  Article 12 The copyright of software which is commissioned to be developed by another person, shall be governed by any written agreement signed between the person who commissioned the work and the person who undertook the commission; if there is no written agreement or if it is not clearly stipulated in the agreement, the copyright shall be enjoyed by the person undertaking the commission.

  Article 13 The copyright of software which is developed pursuant to tasks assigned by a legal person's superior organization or government department shall be based on stipulations contained in the project task document or contract; if not clearly stipulated in the project task document or contract, the copyright belongs to the organization to which the task was assigned.

  With regard to software which possesses major significance for national or public security interests and is developed by organizations within this system or organizations under their jurisdiction, responsible departments of the State Council or the People's Governments of provinces, autonomous regions, or centrally administered cities have the right to permit designated organizations to use the software. The organization using such software will pay a fee according to relevant national regulations.

  Article 14 If software developed by a citizen while working in an organization is the product of work executed for the organization, is developed in accordance with the clearly stipulated development goals for work in the organization, or is the predictable or natural result of activities involved in the organization's work, then the software's copyright belongs to the organization.

  If software developed by a citizen is not the result of work executed for the organization, has no direct relationship to the content of the work at the organization in which the developer is engaged, and does not use the organization's material technical conditions, the software's copyright belongs to the developer himself.

  Article 15 The term of protection of software copyright is 25 years, ending on the 31st of December of the twenty- fifth year after the first publication of the software. Prior to the fulfillment of the term of protection, the software copyright holder may apply to the software registration administration organization to extend the protection by 25 years, although the period of protection may not exceed 50 years at the longest.

  There is no limit on the period of protection of the software developer's right of authorship.

  Article 16 During term of copyright protection of a given piece of software, the software copyright holder's heir may, in accordance with relevant provisions in the “People's Republic of China Inheritance Law”, inherit the rights in Items 3 and 4 of Article 9 of these regulations.

  The act of inheritance may not change the term of protection of the rights of the software.

  Article 17 During the term of copyright protection of a given piece of software, after a change has occurred in the organization which holds the software's copyright, the succeeding organization legally will enjoy all the rights to the software.

  The occurrence of succession will not change the term of protection of the software's rights.

  Article 18 During the software copyright's term of protection, the software copyright holder or his transferee may authorize others to implement the right of use Article 9, Item 3, of these regulations. Software copyright holders or their transferees may receive a fee while they are authorizing others to implement the right of use.

  Authorization to implement a software copyright should be agreed and executed according to China's laws and regulations in the form of a written contract. The authorized person should implement the right of use within the form, conditions, scope, and period of the contract.

  The period of effectiveness an authorizing contract may not exceed 10 years. When the period is complete, the contract may be extended.

  The act of authorization cited described above does not alter ownership of software copyright.

  Article 19 During the software copyright period of protection, those who enjoy the rights of use and license under Article 9, Items 3 and 4, may transfer the rights use and license to other people.

  Authorization to transfer copyright should be carried out in accordance with laws and regulations of China under a signed and executed written contract.

  The act of transfer does not alter ownership of software copyright.

  Article 20 When the term of validity of a software copyright expires, all rights to the software cease, except for the developer's right of authorship.

  In the event that any circumstances fit either of the following situations, all rights to a given piece of software, except the right of authorship, will enter the public domain prior to the end of the term of protection:

  (1) The organization holding the software copyright terminates (dissolves) and there is no legal successor;

  (2) The citizen holding the software copyright dies without a legal heir.

  Article 21 Those organizations or citizens who legally own reproductions of software have the right, without obtaining consent of the proprietary owner, to:

  (1) To install and use in a computer according to the needs of use;

  (2) For the purpose of maintaining files, make a backup copy. However these back-up copies may not be provided to other persons by any means.

  Once the owners lose the rights legally to own this software, these reference copies must be completely destroyed;

  (3) In order to carry out necessary revisions for the purpose of using said software in the real computer environment or improving its performance. However, except in cases where there is additional agreement, (the owner) may not provide to any third party the revised document, without the agreement of the software copyright holder or his legal transferee.

  Article 22 For the non-commercial purposes of work conducted in classroom education, scientific research, the execution of legal duties by state organs, etc., a small number of software reproductions may be made, without obtaining the consent of the software copyright owner or his legal transferee, and without giving compensation. However, when used, the name of the software and its developer must be stated, and none of the rights enjoyed by the copyright owners or their transferees under the terms of these regulations shall be violated. After the use of these copies if ended, they should be appropriately managed, taken back, or destroyed. They must not be used for other purposes or given to other persons.

  Chapter III Computer Software Registration Administration

  Article 23 Software published after these regulations are promulgated may make application for registration at the copyright registration administration organization. After approval of registration, the Software Registration Administration Organization will issue documents of proof of registration and make public notice (of the registration)。

  Article 24 Registration of software copyrights with the software registration administration organization in accordance with these regulations is the prerequisite for administrative treatment of rights disputes or of lawsuits.

  Documents of proof of registration issued by the Software Registration Administration Organization are the initial documents certifying that a software copyright is in effect or is in the process of applying for registration.

  Article 25 When applying for registration computer software copyright holders must provide:

  (1) A software copyright registration form filled out in accordance with the regulations;

  (2) Software identifying material in keeping with the rules.

  Software copyright holders must pay a registration fee according to the rules.

  Specific software registration administration methods and fee standards will b e announced by the Software Registration Administration Organization.

  Article 26 Software copyright may be cancelled in either of the following situations:

  (1) According to final judicial judgement;

  (2) When primary information provided during the registration application is acknowledged not to be authentic.

  Article 27 For any computer software which has already been registered, when activities relating to transfer of software rights occur, the receiver should put on record with the National Software Registration Administration Organization within 3 months of the signing of the contract of transfer, otherwise infringement activities by third parties cannot be contested.

  Article 28 When a Chinese national software copyright owner licenses or transfers to a foreigner rights to software developed within China's territory, he shall first make a request for approval to the relevant responsible organs of the State Council and also make a report to the Software Registration Administration Organization.

  Article 29 Other than to carry out registration administration responsibilities, employees who work in software registration and persons who have previously worked in this position, may not, during the period of protection of a software copyright, utilize or reveal to any other person the file material or other relevant information provided at the time of the application for registration.

  Chapter IV Legal Responsibilities

  Article 30 Except for the situations described in Articles 21 and 22, in the event of the following infringing activities, according to conditions cessation of the infringement, elimination of the effects, public apology, compensation for losses and other civil responsibilities should be undertaken; moreover, state software copyright executive administration departments may adopt executive punishments such as confiscating unearned illegal income, fines, etc.:

  (1) Publishing software works without the consent of the software copyright owner;

  (2) Taking software developed by others and publishing it in one's own name;

  (3) Taking software developed in cooperation with another person and publishing it as a work completed by oneself alone, without the permission of the cooperating developer;

  (4) Signing one's name to software developed by another person or altering the signature on software developed by another;

  (5) Revising, translating, or annotating software without the permission of the software copyright owner or his legal transferee;

  (6) Copying software, in whole or in part, without the permission of the software copyright owner or his legal transferee;

  (7) Disseminating or revealing software. to the public without the permission of the software copyright owner or his legal transferee;

  (8) Effecting the licensing or transfer of software to a third party without the permission of the software copyright owner or his legal transferee.

  Article 31 Resulting similarities between software developed and software already in existence does not constitute a violation of the copyright of existing software in the following situations:

  (1) Because it is necessary for the execution of national policies, laws, and rules and regulations;

  (2) Because it is necessary for the setting of technical standards;

  (3) Because of the limited categories of forms of expression.

  Article 32 If a software owner is unaware that or has no reasonable basis to believe that the software infringes on a software product right, the responsibility for the violation shall be borne by the rights violator who provided the software. However, when failure to destroy the infringed software will not adequately protect the rights and interests of the software copyright owner, the owner has a duty to destroy the infringing software, so that losses may be forced back onto the provider of the infringing software.

  The provider of infringing software cited in the previous provision is a person who knows the software is an infringement and supplies it to others.

  Article 33 A concerned party who does not carry out his duty or who carries it out not in accordance with prescribed conditions shall bear civil responsibilities according to the General Procedures of the Civil Law.

  Article 34 Software copyright disputes may be mediated. If mediation fails to produce an agreement, or if it produces agreement which one party fails to honor, a lawsuit may be brought before a People's Court. A concerned party who is unwilling to enter mediation may also bring a lawsuit before a People's Court.

  Article 35 A software copyright contract dispute may be mediated. It may also be applied for mediation by the state software copyright arbitration organization, on the basis of an arbitration provision in the contract or a written arbitration agreement concluded after the contract.

  Concerned parties will carry out an arbitration ruling. If one party fails to carry out the arbitration ruling, the other may bring a lawsuit before a People's Court.

  If the People's Court receiving the application discovers that the arbitration ruling is illegal, it has the power not to execute the ruling.

  If the People's Court does not carry out the ruling, concerns parties may bring a lawsuit before the People's Court.

  If concerned parties have not inserted an arbitration clause into the contract, and there is no written arbitration agreement after the event, they may bring a lawsuit directly before the People's Court.

  Article 36 If a concerned party is dissatisfied with the remedial decisions of the national copyright executive administrative department, he may bring suit before the People's Court within 3 months from receipt of notice. When this period has expired and no lawsuit has been brought, the national copyright executive administrative department may apply to the People's Court to force action.

  Article 37 Software registration administration organizations will assess administrative punishment against employees of software registration administration organizations who have violated Article 29 of these regulations. If the circumstances are severe, constituting a crime, judicial organs are responsible for investigating the crime.

  Chapter V Supplementary Articles

  Article 38 Infringement actions which take place prior to these regulations taking effect should be dealt with in accordance with regulations in effect at the time of the infringing activity.

  Article 39 These regulations will be interpreted by the State Council's department for software registration administration and software copyright administration departments.

  Article 40 These provisions take effect from October 1, 1991.

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