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| Category | INTELLECTUAL PROPERTY RIGHT | Organ of Promulgation | The State Council | Status of Effect | In Force |
| Date of Promulgation | 1991-06-04 | Effective Date | 1991-10-01 |
|
Regulations for the Protection of Computer Software |
|---|
Article 1 These Regulations are formulated in accordance with the
provisions of the Copyright Law of the People's Republic of China for the
purpose of protecting the rights and interests of copyright owner of computer
software, of adjusting the interests arising from the development,
dissemination and use of computer software, of encouraging the development
and circulation of computer software, and of promoting the development of
computer application.
Article 2 For the purpose of these Regulations, computer software
(hereinafter referred to as software) refers to computer programmes and their
related documentation.
Article 3 Meanings of the following terms used in these Regulations are
as follows:
(1) computer programme: refers to a sequence of coded instructions which
can be executed by such devices as computers that have the
information-processing capacity for achieving a specific result, or a
sequence of the symboled instructions or a sequence of symboled statements
which can be automatically converted into a sequence of coded instructions.
Computer programmes include source code programmes and object code
programmes. The source code text and object code text of the same programme
shall be deemed to be one and the same work.
(2) documentation: refers to written materials and diagrams in natural
language or formalized language and used to describe the contents,
composition, design, function specifications, development circumstances,
testing results and method of use of a programme, such as programme design
specifications, flow charts and user manuals.
(3) software developer: refers to those legal entities or entities
without legal personality (hereinafter referred to as entities) who actually
organize, undertake the developing work, and provide working conditions to
complete the development of software and take responsibilities therefor; and
citizens who rely on their own conditions to complete the development of
software and take responsibilities therefor.
(4) software copyright owner: refers to those entities and citizens who
enjoy the copyright of software in accordance with these Regulations.
(5) reproduction: refers to the acts of transferring software onto a
tangible medium.
Article 4 The protection of software, as referred to in these
Regulations, means the rights to the software copyright enjoyed by the
software copyright owner or his assignee as stipulated in these Regulations.
Article 5 Software protected under these Regulations shall be
independently developed by the developer and have been fixed on a tangible
medium.
Article 6 Chinese citizens and entities shall enjoy the copyright under
these Regulations for the software they have developed, regardless of whether
and where it has been published.
Foreigners having software first published in the territory of the
People's Republic of China shall enjoy the copyright under these Regulations.
Any software of a foreigner published outside the territory of the
People's Republic of China which is eligible to enjoy copyright under an
agreement concluded between the country to which the foreigner belongs and
China, or under an international treaty to which both countries are parties,
shall be protected under these Regulation.
Article 7 The protection of software under these Regulations does not
extend to any idea, concept, discovery, principle, algorithm, process and
operating method used in the development thereof.
Article 8 The software registration administrative department authorized Article 9 A software copyright owner shall enjoy the following rights: (1) the right of publication, that is, the right to decide whither to (2) the right of developership, that is, the right to claim developer's (3) the right of exploitation, that is, the right of exploiting the (4) the right of authorizing to exploit and receiving remuneration, that (5) the right of assignment, that is, the right to assign to others the Article 10 The copyright of a software shall belong to its developer Article 11 Where a software is developed jointly by two or more entities The co-operative developers shall exercise the copyright of the software Article 12 The ownership of copyright of a software which is Article 13 The ownership of copyright of a software which is developed With regard to software which is of great significance to national or Article 14 With regard to a software developed by a citizen while Where a software developed by a citizen is not the result of performing Article 15 The term of protection of software copyright shall be 25 The term of protection for the right of developership of software Article 16 During the term of copyright protection of a software, the The act of inheritance shall not affect the term of protection of the Article 17 During the term of copyright protection of a software, in the The change of the entity which holds the software copyrights shall not Article 18 During the term of copyright protection of a software, the The licensing of software exploitation rights shall be conducted in the The term of validity of a license contract shall not exceed 10 years each The licensed rights to software shall be deemed to be no-exclusive in the The occurrence of the above-mentioned licensing activities shall not Article 19 During the term of copyright protection of a software, those The assignment of the rights to a software shall be conducted in the form The act of assignment shall not affect the term of protection of the Article 20 As soon as the term of protection expires, various rights to The rights to a software, except for the right of developership, shall (1) in case an entity that owns the software copyright dissolves without (2) in case a citizen that owns the software copyright dies without a Article 21 Those entities or citizens who lawfully hold copies of a (1) to load the software into a computer so as to use it; (2) to make back-up copies for archival purpose. However, these back-up (3) to make necessary alteration in order to adapt the software to the Article 22 The making of a few copies of a piece of software for Article 23 Any piece of software published after the promulgation of Article 24 The registration of the copyright of a software with the The certificate of registration issued by the software registration and Article 25 In applying for registration, the software copyright owners (1) a software copyright registration form filled out as prescribed; (2) software identifying materials conforming to the prescribed rules; The copyright owners of the software shall pay a registration fee as The specific administrative procedures and schedule of charges for Article 26 Registration of a software copyright may be revoked in either (1) in accordance with a final judicial judgement; (2) where the primary information provided in the application for the Article 27 With regard to any software already registered, where the Article 28 When a Chinese software copyright owner licenses or assigns Article 29 Any functionary currently engaged or ever engaged in the past Article 30 With the exception of the events stipulated in Articles 21 (1) publishing a piece of software without the consent of the copyright (2) publishing a piece of software developed by others as one's own work; (3) publishing a piece of software developed in cooperation with others (4) having one's name mentioned or altering the name mentioned in (5) altering, translating or annotating a piece of software without the (6) reproducing or partly reproducing a piece of software without the (7) distributing or revealing a piece of software to the public without (8) conducting business concerning the licensing or transferring a piece Article 31 Similarities of a software newly developed with an existing (1) where it is necessary to enforce the policies, law, regulations and (2) where it is necessary to enforce the technical standards of the State; (3) where there is a limited number of available forms of expression. Article 32 Where a holder of a piece of software is unaware or has no The provider of the infringing software mentioned in the preceding Article 33 A party who fails to fulfil his contractual obligations, or Article 34 A dispute over software copyright infringement may be settled Article 35 A dispute over a software copyright contract may be settled The parties shall implement the arbitration award. One of the parties If the people's court that has been requested to enforce an arbitration Any party may institute proceedings directly in a people's court in the Article 36 Any party who objects to an administrative penalty imposed by Article 37 Any functionary of the software registration and Article 38 Any infringement of software copyright and the rights Article 39 The software registration and administration department and Article 40 These Regulations shall enter into force as of October 1,
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by the State Council shall be responsible for the nationwide registration of
software.
Chapter II Copyright of Computer Software
make the software available to the public;
identity and to have the developer's name mentioned in connection with the
software;
software by reproduction, demonstration, distribution, alteration,
translation, annotation and the like on the premise of not harming the public
interest;
is, the right of authorizing others to exploit the software in part or all of
the manners stipulated in Item (3) of this Article, and the right of
receiving remuneration therefor;
right of exploitation and the right of authorizing to exploit stipulated in
Items(3) and (4) of this Article.
except otherwise specifically provided for in these Regulations.
or citizens, the copyright of the software shall be jointly enjoyed by those
co-operative developers except as otherwise provided for in an agreement
among the co-operative developers.
pursuant to the written agreement reached beforehand. If there is no
written agreement, and if the jointly developed software can be exploited
separately, each of the cooperative developers shall be entitled to
independent copyright in the part that he has developed, but the exercise of
such copyright shall not extend to the copyright in jointly developed
software as a whole. Where the jointly developed software cannot be exploited
separately, the co-operative developers shall exercise the copyright through
consultation. If no consensus is reached, and in the absence of any proper
reason, no party may prevent any other party from exercising the rights
except for the right of assignment. However, benefits gained therefrom shall
be fairly distributed among all co-operative developers.
commissioned to be developed by others shall be agreed upon in a written
agreement between the commissioning and the commissioned parties. In the
absence of a written agreement or of an explicit stipulation in the
agreement, the copyright of the software shall belong to the commissioned
party.
pursuant to the tasks assigned by the entity at a higher level or a
government department shall be based on the stipulations contained in the
project task document or contract; where no explicit stipulation is made in
the project task document or contract, the copyright of the software shall
belong to the entity to which the task was assigned.
public interests and is developed by the entities under ownership of the
whole people within their respective system or under their jurisdiction, the
competent administrative departments of the State Council or the people's
governments of provinces, autonomous regions, or municipalities directly
under the Central Government have the power to permit designated entities to
use the software. The entities using such software shall pay a fee according
to relevant regulations of the State.
working in an entity, where such a software is the result of performing his
assigned duty, that is, where it is developed in accordance with a
development objective explicitly assigned in the line of duty, or is the
predictable or natural result of his activities in the line of duty, the
copyright of the software shall belong to the entity.
his assigned duty and has no direct connections with the content of the work
at the entity in which the citizen is engaged, nor involves the use of the
entity's material and technical resources, the copyright of the software
shall belong to the developer.
years, expiring on the 31th of December of the twenty-fifth year after the
first publication of the software. Before the expiration of the term of
protection, the software copyright owner may apply to the software
registration administrative department for extending the protection by 25
years, but the term of protection may not exceed 50 years at the longest.
developer shall be unlimited.
software copyright owner's heir may, in accordance with the relevant
provisions in the Inheritance Law of the People's Republic of China, inherit
the rights stipulated in Items (3) and (4) of Article 9 of these Regulations.
rights to the software.
event of a change of the entity which holds the software's copyright, the
legal succeeding entity shall enjoy all the rights of the software.
affect the term of protection of the rights to the software.
software copyright owner or his assignee has the right to authorize others to
exercise the right of exploitation stipulated in Item (3) of Article 9 of
these Regulations. In authorizing others to exercise the right of
exploitation, software copyright owner or his assignees may receive a fee
according to an agreement.
form of the conclusion and implementation of a written contract according to
the relevant laws and regulations of the People's Republic of China. The
licensee shall exercise the right of exploitation by adhering to the manner,
condition, scope, and period stipulated in the contract.
time. The contract may be renewed on expiration of that term.
absence of an explicit expression of exclusiveness in the license contract.
affect the ownership of the software copyright.
who enjoy the right of exploitation and the right to authorize the
exploitation stipulated in Items (3) and (4) of Article 9 of these
Regulations, may assign to others the right of exploitation and the right to
authorize the exploitation.
of the conclusion and implementation of a written contract according to the
relevant laws and regulations of the People's Republic of China.
copyright to software.
a software, except for the right of developership, shall terminate.
enter the domain of public ownership prior to the expiration of the term of
protection, if the case confirms to either of the following circumstances:
a lawful successor;
lawful heir.
software have the following rights without the consent of the copyright owner:
copies shall not be provided to others in any way. Once the holders lose the
right of lawfully holding this software, all the said backup copies shall be
destroyed;
practical application environment of computer or to improve the function of
the software. However, the altered version shall not be supplied to any third
party without the consent of the copyright owner or his lawful assignee
unless otherwise stipulated in an agreement.
noncommercial purposes such as classroom teaching, scientific research or
performance of official duties by a state organ, does not need permission
from and pay remuneration to the software copyright owner or his lawful
assignee, but the title of the software and the name of its developer shall
be indicated in the use of the software, and other rights enjoyed by the
software copyright owner or his lawful assignee according to these
Regulations shall not be infringed. After being used, the said copies of the
software shall be appropriately preserved, or taken back or destroyed, and
shall not be used for any other purpose or supplied to others.
Chapter III Registration and Administration of Computer Software
these Regulations may be applied to the software registration and
administration department for registration. After the approval of the
registration, the software registration and administration department shall
issue a certificate of registration and announce it to the public.
software registration and administration department is the prerequisite to
initiate an eventual administrative settlement or a law suit concerning a
dispute over the rights of the software in accordance with these Regulations.
administration department is a preliminary evidence for proving the validity
of the software copyright or the reliability of the facts described in the
application documents for the registration.
shall submit:
prescribed.
software registration shall be announced by the software registration and
administration department.
of the following situations:
registration has been proved to be untrue.
rights to the software are assigned, the assignee shall report it to the
software registration and administration department for the record within
three months after the formal signing of the assignment contract. Otherwise,
the assignee is not entitled to oppose any infringement activities from a
third party.
the rights of a software developed within China's territory to a foreigner,
he shall make a request for approval to the relevant department of the State
Council and also report to the software registration and administration
department for the record.
in software registration affairs, shall not utilize or disclose to others,
within the term of protection of the software copyright, the filed material
or other relevant information submitted by the applicant in the application
for registration, except for the purpose of performing the duties of
registration and administration.
Chapter IV Legal Liabilities
and 22 of these Regulations, anyone who commits any of the following acts of
infringement shall bear civil liability for such remedies as ceasing the
infringing act, eliminating the effects of the act, making a public apology
or paying compensation for damages, depending on the circumstances, and may,
in addition, be subjected by the State administration department of software
copyright to such administrative penalties as confiscation of unlawful income
from the act or imposition of a fine:
owner thereof;
as a work completed on one's own, without the consent of the other
cooperative developers;
connection with a piece of software developed by another;
consent of the software copyright owner or his lawful assignee;
consent of the software copyright owner or his lawful assignee;
the consent of the software copyright owner or his lawful assignee;
of software to any third party, without the consent of the software copyright
owner or his lawful assignee.
software caused by one of the following cases shall not constitute
infringement on the copyright of the existing software:
rules of the State;
reasonable basis to believe that the piece of software he holds is an article
of infringement, the liability of infringement shall be borne by the provider
of the infringing software. However, if it is not enough to protect the
rights and interests of the copyright owner of the software without the
destruction of such a piece of software, the holder shall have the obligation
to destroy the infringing software held by him, and may make the provider of
the infringing software to compensate retroactively for the losses suffered.
paragraph includes one who is fully aware of the infringing character of the
software while providing it to others.
executes them in a manner that is not in conformity with the agreed
conditions of the contract, shall bear civil liability in accordance with the
relevant provisions of the General Principles of the Civil Law.
by mediation. If mediation is unsuccessful, or if one of the parties fails to
carry out an agreement reached by mediation, legal proceedings may be
instituted in a people's court. Proceedings may also be instituted directly
in a people's court if the parties do not wish to settle dispute by mediation.
by mediation. It may also be applied for arbitration to a State software
copyright arbitration body under the arbitration clause in the contract, or
under a written arbitration agreement subsequently concluded.
fails to implement the award, the other party may apply to a people's court
for enforcement.
award finds the award unlawful, it has the right to refuse the enforcement.
If a people's court refuses to enforce an arbitration award, the parties may
institute legal proceedings concerning the contractual dispute in a people's
court.
absence of an arbitration clause in the contract or in the absence of a
written arbitration agreement subsequently concluded.
the State administration department of software copyright may institute
proceedings in a people's court within three months from the date of
receiving the notification of the decision on the penalty. If a party neither
implements the decision on penalty nor institutes proceedings within the
above time limit, the State administrative department of software copyright
may apply to a people's court for enforcement.
administration department who has violated the provisions of Article 29 of
these Regulations shall be subjected to disciplinary sanction by the software
registration and administration department or the competent authority at
higher level. If the circumstances are so serious as to commit a crime, the
judicial organ shall investigate his criminal liability according to law.
Chapter V Supplementary Provisions
relating to software copyright committed prior to the entry into force of
these Regulations shall be dealt with under the relevant regulations in force
at the time when the infringement was committed.
the administrative department of software copyright under the State Council
shall be responsible for the interpretation of these Regulations.
1991.
URL: http://www.asianlii.org/cn/legis/cen/laws/rftpocs542