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著作权集体管理条例 Collective Management of Copyright Regulations

2006-05-12 20:01   我要纠错 | 打印 | 收藏 | | |

国务院令第429号

(Promulgated by the State Council on 28 December 2004 and effective as of 1 March 2005.)

颁布日期:20041228  实施日期:20050301  颁布单位:国务院

  PART ONE GENERAL PROVISIONS

  Article 1 These Regulations are formulated in accordance with the PRC, Copyright Law (the Copyright Law) in order to regulate the collective management activities of copyrights, and facilitate the exercise of rights by copyright owners and owners of neighbouring rights (Right Owners) and use of works by users.

  Article 2 For the purposes of these Regulations, the term “collective management of copyright” shall mean a collective management organization, upon authorization of a Right Owner, collectively exercises the relevant rights of the Right Owner and conducts the following activities in its own name:

  1. conclude a licensing contract for use of the copyright and neighbouring rights (Licensing Contract) with the user;

  2. collect a royalty fee from the user;

  3. transfer the royalty fee to the Right Owner; and

  4. participate in litigation or arbitration involving the copyright or neighbouring rights.

  Article 3 For the purposes of these Regulations, a “copyright collective management organization” shall mean a social organization established according to law for the interests of Right Owners that, upon authorization of the Right Owners, conduct collective management of their copyright and neighbouring rights.

  Copyright collective management organizations shall register and conduct activities in accordance with the administrative regulations on the administration of registration of social organizations and the provisions hereof.

  Article 4 Copyright collective management organizations may exercise collective management of copyrights that the Right Owners find it difficult to effectively exercise the rights on their own, such as the right of performance, the right of projection, the right of broadcast, the right of rental, the right of communication via an information network, and the right of reproduction stipulated in the Copyright Law.

  Article 5 The copyright administration department of the State Council shall be responsible for the nationwide collective management of copyright.

  Article 6 No organization or individual may engage in copyright collective management activities except for copyright collective management organizations established in accordance with the provisions hereof.

  PART TWO ESTABLISHMENT OF COPYRIGHT COLLECTIVE MANAGEMENT ORGANIZATIONS

  Article 7 Chinese citizens, legal persons and other organizations that enjoy copyright or neighbouring rights according to law may initiate the establishment of copyright collective management organization.

  To establish a copyright collective management organization, the following criteria shall be satisfied:

  1. the number of Right Owners that initiates the establishment of copyright collective management organization shall not be less than 50;

  2. the business scope does not intersect or overlap with that of the copyright collective management organizations already registered according to law;

  3. it is able to represent the interests of the relevant Right Owners throughout the country; and

  4. it has draft articles of association, draft standards for collection of royalty fees, and draft method of transferring royalty fees to Right Owners (Method of Transferring Royalty Fees) for the copyright collective management organization.

  Article 8 The articles of association of a copyright collective management organization shall set forth the following particulars:

  1. name and domicile;

  2. purpose of establishment;

  3. business scope;

  4. organization and organs, and their functions and powers;

  5. minimum quorum for members‘ assembly;

  6. duties of the board of governors as well as the qualifications, procedure for selection and dismissal of the responsible person of the board of governors;

  7. methods of withdrawal and use of management fees;

  8. criteria and procedure for members to join and withdraw from the copyright collective management organization;

  9. procedure for amending the articles of association; and

  10. criteria and procedure for termination of the copyright collective management organization, and the disposal of assets upon termination.

  Article 9 To apply for establishment of a copyright collective management organization, the materials proving compliance with the requirements stipulated in Article 7 hereof shall be submitted to the copyright administration department of the State Council. The copyright administration department of the State Council shall render a decision on whether or not to approve the application within 60 days of the date of receipt of the materials. Where an application is approved, a permit for collective management of copyright shall be issued. Where approval is not granted, the reasons therefor shall be stated.

  Article 10 Applicants shall handle registration procedures with the civil affairs department of the State Council in accordance with the administrative regulations on the administration of registration of social organizations within 30 days of the date of issue of the permit for collective management of copyright by the copyright administration department of the State Council.

  Article 11 Copyright collective management organizations that are registered according to law shall, within 30 days from the date on which the civil affairs department of the State Council issues the registration certificate, submit a copy of the registration certificate to the copyright administration department of the State Council for record filing. The copyright administration department of the State Council shall publicize the filed copy of the registration certificate, and the articles of association, the standards for collection of royalty fees, and the Method of Transferring Royalty Fees of the collective management organization.

  Article 12 Where a copyright collective management organization establishes a branch office, it shall obtain the approval of the copyright administration department of the State Council, and shall handle registration procedures with the civil affairs department of the State Council in accordance with the administrative regulations on the administration of registration of social organizations. Upon registration according to law, the copyright collective management organization shall submit, for record filing, a copy of the registration certificate of the branch office to the copyright administration department of the State Council, which shall make an announcement thereof.

  Article 13 Copyright collective management organizations shall formulate the standards for collection of royalty fees according to the following factors:

  1. the time, method and geographic scope of the use of the works and audio and video products;

  2. the type of rights; and

  3. the degree of complexity in concluding the Licensing Contract and collecting royalty fees.

  Article 14 Copyright collective management organizations shall formulate the Method of Transferring Royalty Fees according to the use of the works or audio and video products of the Right Owner.

  Article 15 Where a copyright collective management organization amends its articles of association, it shall submit the draft amendment to the copyright administration department of the State Council for approval. The copyright administration department of the State Council shall announce the amended articles of association after verification by the civil affairs department of the State Council according to law.

  Article 16 Where the registration of a copyright collective management organization is cancelled according to law, the copyright collective management organization may not engage in business activities of collective management of copyright from the date on which its registration is cancelled.

  PART THREE ORGANS OF COPYRIGHT COLLECTIVE MANAGEMENT ORGANIZATIONS

  Article 17 The members‘ assembly of a copyright collective management organization (Members’ Assembly) shall be the organ with authority of the copyright collective management organization.

  The board of governors shall be responsible for convening Members‘ Assemblies in accordance with the provisions hereof. The board of governors shall announce the date, venue and proposed items for deliberation 60 days before the Members’ Assembly is convened. Members that attend the Members‘ Assembly shall register 30 days before the Members’ Assembly is convened. If the number of members that registers to attend the Members‘ Assembly is less than the minimum quorum stipulated in the articles of association, the board of governors shall announce the registration details of the Members’ Assembly. Members may carry out supplementary registration five days before the Members‘ Assembly is convened. The Members’ Assembly shall be held by all members that register to attend the Members‘ Assembly.

  The Members‘ Assembly shall exercise the following functions and powers:

  1. formulate and amend the articles of associations;

  2. formulate and amend the standards for collection of royalty fees;

  3. formulate and amend the Method of Transferring Royalty Fees;

  4. elect and dismiss members of the board of governors;

  5. deliberate on and approve the work reports and financial reports of the board of governors;

  6. formulate an internal management system;

  7. decide on the proposals for transferring royalty fees and the ratio of management fees to be withdrawn by the copyright collective management organization; and

  8. decide on other major matters.

  The Members‘ Assembly shall be convened once a year. An interim Members’ Assembly may be held if it is proposed by over 10% of the members or by the board of governors. The decisions of the Members‘ Assembly shall be passed by over half of the members present at the meeting through voting.

  Article 18 Copyright collective management organizations shall establish a board of governors accountable to the Members‘ Assembly and execute the decisions of the Members’ Assembly. There shall not be fewer than nine persons of members of the board of governors.

  The term of the board of governors shall be four years. An election shall be held upon expiration of the term. In special circumstances, the election may be held earlier or postponed, provided that it is not postponed for more than one year.

  PART FOUR COPYRIGHT COLLECTIVE MANAGEMENT ACTIVITIES

  Article 19 A Right Owner may enter into a contract for collective management of copyright in writing with a copyright collective management organization to authorize the said organization to manage the copyright or neighbouring rights to which the Right Owner is entitled according to law. Where the Right Owner meets the criteria for joining in accordance with the articles of association, the copyright collective management organization shall conclude the copyright collective management contract with the Right Owner, and may not turn down the Right Owner.

  After the Right Owner has concluded a contract for collective management of copyright with the copyright collective management organization and completed the relevant procedures in accordance with the articles of association, he shall become a member of the copyright collective management organization.

  Article 20 After the Right Owner has concluded a contract for collective management of copyright with the copyright collective management organization, the Right Owner may not, within the time period stipulated in the contract, exercise by himself or authorize others to exercise the rights that shall be exercised by the copyright collective management organization according to the stipulations of the contract.

  Article 21 The Right Owner may withdraw from the copyright collective management organization in accordance with the procedures stipulated in the articles of association and terminate the contract for collective management of copyright. However, where the copyright collective management organization has already concluded a Licensing Contract with another party, such contract shall continue to be valid until the contract expires. Within the term of validity of the contract, the Right Owner is entitled to receive the corresponding royalty fees, and may access the relevant business materials.

  Article 22 Foreigners or stateless persons may, through an overseas organizations of the same type that has concluded a mutual representation agreement with a Chinese copyright collective management organization, authorize the Chinese copyright collective management organization to manage the copyrights and neighbouring rights to which they are entitled according to law in the People‘s Republic of China.

  For the purposes of the preceding paragraph, the term “mutual representation agreement” shall mean an agreement concluded between a Chinese copyright collective management organization and an overseas organization of the same type that mutually authorize the other party to conduct collective copyright management activities in their respective country or region.

  Mutual representation agreements concluded between copyright collective management organizations and overseas organizations of the same type shall be submitted, for record filing, to the copyright administration department of the State Council, which shall make an announcement thereof.

  Article 23 Where a copyright collective management organization permits others to use the works and audio and video products it manages, it shall conclude a written Licensing Contract with the user.

  The copyright collective management organization may not conclude an exclusive Licensing Contract with the user.

  Where a user, on the basis of reasonable terms, requests to conclude a Licensing Contract with the copyright collective management organization, the copyright collective management organization may not refuse to do so.

  The term of a Licensing Contract may not exceed two years, and may be renewed upon expiration of the term.

  Article 24 Copyright collective management organizations shall establish a right information inquiry system for inquiry by Right Owners and users. The right information inquiry system shall include the types of right managed by the copyright collective management organization, the title of the works and audio and video products, the name or title of Right Owners and the term of authorized management.

  Where a Right Owner or user inquires about the information of the rights managed by the copyright collective management organization, the organization shall respond to such inquiry.

  Article 25 Except for the royalty fees required to be paid as stipulated in Article 23, Paragraph Two of Article 32, Paragraph Three of Article 39, Paragraph Two of Article 42 and Article 43 of the Copyright Law, a copyright collective management organization shall, in accordance with the standards for collection of royalty fees announced by the copyright administration department of the State Council, agree with users on the specific amount of royalty fee to be collected.

  Article 26 Where two or more copyright collective management organizations collect royalty fees from the same user for the same type of use, the organizations may determine in advance upon consultation that the fees shall be collected centrally by one of the copyright collective management organizations. The royalty fees collected centrally may be distributed upon consultation among the relevant copyright collective management organizations.

  Article 27 When a user pays royalty fees to a copyright collective management organization, it shall provide such details of use as the title of the works and audio and video products used, the name or title of the Right Owner, and the method, quantity and time of use, unless otherwise stipulated by the Licensing Contact.

  If the relevant details of use provided by the user involves the trade secrets of the user, the copyright collective management organization shall be obliged to maintain confidentiality.

  Article 28 Copyright collective management organizations may withdraw a certain percentage of the royalty fees collected as management fees for the purpose of maintaining their normal business activities.

  The percentage of management fees withdrawn by the copyright collective management organization shall be gradually reduced with the increase in royalty fees.

  Article 29 The royalty fees collected by copyright collective management organizations, after the withdrawal of management fees, shall be transferred in full to the Right Owner and may not be used for other purposes.

  When transferring the royalty fees, copyright collective management organizations shall formulate royalty fee transfer records. The royalty fee transfer records shall specify such matters as the total amount of royalty fees, the amount of management fees, name or title of the Right Owner, the title of the works or audio and video products, details of the use, and the specific amount of royalty fees transferred to each Right Owner, and shall be kept for at least 10 years.

  PART FIVE SUPERVISION OF COPYRIGHT COLLECTIVE MANAGEMENT ORGANIZATIONS

  Article 30 Copyright collective management organizations shall establish financial, accounting and asset management systems according to law and set up accounting books in accordance with the relevant State regulations.

  Article 31 The use of assets and financial management of copyright collective management organizations shall be supervised by the copyright administration department of the State Council and the civil affairs department of the State Council.

  Copyright collective management organizations shall prepare financial and accounting reports at the end of each fiscal year and appoint an accounting firm to conduct audit according to law, and shall announce the audit results to the public.

  Article 32 Copyright collective management organizations shall make a record of the following matters for access by Right Owners and users:

  1. the licensing details of the works;

  2. the details of the collection and transfer of royalty fees; and

  3. the details of the withdrawal and use of management fees.

  Right Owners have the right to access and reproduce the financial reports, work reports and other business materials of the copyright collective management organization. The copyright collective management organization shall provide convenience to such access and reproduction.

  Article 33 Where a Right Owner deems that the copyright collective management organization is in any of the following circumstances, he may report to the copyright administration department of the State Council:

  1. a Right Owner that meets the criteria for joining stipulated in the articles of association requests to join the copyright collective management organization, or a member requests to withdraw from the copyright collective management organization in accordance with the procedure stipulated in the articles of association, but is rejected by the copyright collective management organization;

  2. the copyright collective management organization fails to collect or transfer royalty fees, or to withdraw or use the management fees in accordance with the provisions; or

  3. a Right Owner requests to access the records and business materials stipulated in Article 32 hereof, and the copyright collective management organization refuses to provide them.

  Article 34 Where a user deems that the copyright collective management organization is in any of the following circumstances, he may report to the copyright administration department of the State Council:

  1. the copyright collective management organization, in violation of Article 23 hereof, refuses to conclude a Licensing Contract with the user;

  2. the copyright collective management organization fails to collect the specific amount of royalty fees according to the standards for collection of royalty fees in the announcement; or

  3. the user requests to access the records and business materials stipulated in Article 32 hereof, and the copyright collective management organization refuses to provide them.

  Article 35 Where a citizen, legal person or other organization other than the Right Owner and the user deems that the copyright collective management organization has committed an act in violation of the provisions hereof, such person or organization may report the violation to the copyright administration department of the State Council.

  Article 36 The copyright administration department of the State Council shall, within 60 days of the date of receipt of a report, conduct an investigation into the exposed or reported matter and handle the same according to law.

  Article 37 The copyright administration department of the State Council may supervise copyright collective management organizations by way of the following means and make a record of its supervision activities:

  1. inspect whether the business activities of the copyright collective management organization comply with the provisions hereof and its articles of association;

  2. verify and examine the accounting books, annual budget and final reports and other relevant business materials of the copyright collective management organization; and

  3. despatch personnel to attend such major meetings of the copyright collective management organization as the Members‘ Assembly and meeting of the board of governors.

  Article 38 Copyright collective management organizations shall accept the supervision of the civil affairs department and other relevant departments of the State Council.

  PART SIX LEGAL LIABILITY

  Article 39 If the copyright collective management organization is in any of the following circumstances, the copyright administration department of the State Council shall order rectification within a prescribed time limit:

  1. failure to submit the mutual representation agreement concluded with the overseas organization of the same type to the copyright administration department of the State Council for record filing in accordance with Article 22 hereof;

  2. failure to establish a right information inquiry system in accordance with Article 24 hereof; or

  3. failure to collect the specific amount of royalty fees according to the standards for collection of royalty fees in the announcement.

  If a copyright collective management organization exceeds its business scope in the management of rights of Right Owners, the copyright administration department of the State Council shall order rectification within a prescribed time limit, and the Licensing Contract concluded with the users shall become invalid. Where damages are caused to the Right Owners or users thereby, the copyright collective management organization shall bear civil liability according to law.

  Article 40 Where a copyright collective management organization is in any of the following circumstances, the copyright administration department of the State Council shall order rectification within a prescribed time limit. If no rectification is made within the time limit, the copyright administration department of the State Council shall request the Members‘ Assembly or board of governors to remove or dismiss the directly responsible personnel from office in accordance with the scope of authority stipulated herein:

  1. refuses to conclude a contract for collective management of copyright with the Right Owner in violation of Article 19 hereof, or rejects the request of a member to withdraw from the organization in violation of Article 21 hereof;

  2. refuses to conclude a Licensing Contract with the user in violation of Article 23 hereof;

  3. withdraw management fees in violation of Article 28 hereof;

  4. transfers royalty fees in violation of Article 29 hereof; or

  5. refuses to provide or provides false accounting books, annual budgets and final reports or other relevant business materials.

  Article 41 Where a copyright collective management organization, without any proper reasons, fails to conduct copyright collective management activities for more than six months from the date on which the civil affairs department of the State Council issues the registration certificate, or if it suspends copyright collective management activities for more than six consecutive months, the copyright administration department of the State Council shall revoke its permit for collective management of copyright, and the civil affairs department of the State Council shall cancel its registration.

  Article 42 Where a copyright collective management organization engages in for-profit business activities, it shall be banned, and the illegal income shall be confiscated, by the administration for industry and commerce according to law. Where a criminal offence is constituted, criminal liability shall be pursued in accordance with the law.

  Article 43 Where, in violation of Article 27 hereof, a user is able to provide the details of use but refuses to do so or practises fraud in providing such information, the copyright administration department of the State Council shall order rectification. The copyright collective management organization may terminate the Licensing Contract.

  Article 44 Where a copyright collective management organization or a branch office is established, or copyright collective management activities are carried out, without authorization, the organization or branch office shall be banned, and the illegal income shall be confiscated, by the copyright administration department of the State Council or the civil affairs department of the State Council in accordance with the division of responsibilities. Where a criminal offence is constituted, criminal liability shall be pursued in accordance with the law.

  Article 45 Where the personnel of State administrative authorities that are responsible for the examination and approval, and supervision of copyright collective management organizations pursuant to the provisions hereof are derelict in their duties, abuse power, or practise graft, criminal liability shall be pursued in accordance with the law where a criminal offence is constituted. Where the act is not sufficient to constitute a criminal offence, administrative penalty shall be imposed in accordance with the law.

  PART SEVEN SUPPLEMENTARY PROVISIONS

  Article 46 Copyright collective management organizations already established before the implementation hereof shall, within three months of the date on which these Regulations become effective, submit their articles of associations, standards for collection of royalty fees, Method of Transferring Royalty Fees and other relevant materials to the copyright administration department of the State Council for examination and verification, and shall also submit their mutual representation agreements concluded with overseas organizations of the same type to the copyright administration department of the State Council for record filing.

  Article 47 Where any person uses the works of others in accordance with Article 23, Paragraph Two of Article 32, and Paragraph Three of Article 39, but fails to pay the royalty fees to the Right Owner in accordance with Article 32 of the PRC Copyright Law Implementing Regulations, it shall submit the royalty fees, the postal fees, and the details on the use of works to the copyright collective management organization that manages the relevant rights. The copyright collective management organization shall transfer the royalty fees to the Right Owner.

  The copyright collective management organization responsible for transferring royalty fees shall establish an inquiry system for details of use of works for access by both Right Owners and users.

  The copyright collective management organization responsible for transferring the royalty fees may withdraw such fees collected as management fee. The amount to be withdrawn shall equal to 50% of the management fee of the copyright collective management organization determined at the Members‘ Assembly. Except for management fees, the copyright collective management organization shall not withdraw any other fees from the royalty fees collected.

  Article 48 These Regulations shall be effective as of 1 March 2005.

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