Regulations on the Protection of Computer Software (2013 Revision)

Release Date: 01-03-2013

Source: China State Council site

Chinese Title: 计算机软件保护条例 (2013修订)

Chapter I General Provisions

(Promulgated by Decree No.339 of the State Council of the People’s Republic of China, revised for the first time according to the Decision of the State Council on Repealing and Revising Certain Administrative Regulations, 8 January 2011, revised for the second time according to the Decision of the State Council on Revising the Regulations on the Protection of Computer Software, 30 January 2013)

Article 1 These Regulations, made in accordance with the Copyright Law of the People’s Republic of China, are intended to protect the rights and interests of holders of computer software copyright, regulate the relationships of interests arising from the development, dissemination and use of computer software, encourage the development and application of computer software thereby developing the software industry as well as the national economy based on information technology.

Article 2 “Computer software” (hereinafter referred to as “software”) as used in these Regulations refers to computer programs and related files.

Article 3 For the purpose of these Regulations:

(1) “Computer program” refers to coded command sequences, or symbolic command sequences or symbolic statement sequences that can be automatically transformed into coded command sequences, which computers or other such devices with information processing ability execute in order to achieve a required result. Source programs and target programs within one computer program are regarded as being the same work.

(2) “File” refers to texts and graphics used to describe the content, structure, design, functional specifications, developmental state, results of testing and methods of use of a program, such as program design books, flow sheets and users’ manuals.

(3) “Software developer” refers to a legal persons or other organisation which has actually organised and directly executed the development of, and assume liability for completed software; or a natural person who has relied on his own means to independently complete the software development and assumes liability for the software.

(4) “Software copyright holder” refers to a natural person, legal person or other organisation that is entitled to the copyright of software under these Regulations.

Article 4 Software to be protected under these Regulations must have been developed independently by its developer and already been fixed on a certain type of tangible object.

Article 5 A Chinese citizen, legal person or other organisation is entitled under these Regulations to the copyright of the software he/it has developed, whether the software is released publicly or not.A foreigner or a stateless person who releases his software first within the Chinese territory is entitled to its copyright under these Regulations.

These Regulations protect a foreigner or stateless person’s entitlement to software copyright gained in accordance with an agreement signed between China and the home country or the country of habitual residence of the developer, or an international treaty to which China is a signatory.

Article 6 Software copyright protection as provided by these Regulations does not extend to cover ideas, processing procedures, operational methods and mathematical concepts employed in the development of software.

Article 7 A software copyright holder may register with the software registration agency appointed by the State Council copyright administrative department. The registration certificate issued by this agency is prima facie evidence of items having been registered. Fees shall be charged for the registration of computer software. Standards for such fees are set by the State Council copyright administrative department together with the State Council department in charge of pricing.

Chapter II Software Copyright

Article 8 A software copyright holder is entitled to the following rights:

(1) right of publication, namely the right to determine whether software is to be made public;

(2) right of acknowledgement, namely the right to make known the identity of the developer and state his name on the software;

(3) right of alteration, namely the right to make additions or deletions to the software, or to change the sequence of commands or statements;

(4) right of reproduction, namely the right to make one or more copies of the software;

(5) right of distribution, namely the right to provide the original work or copies to the public by means of sale or gifts;

(6) right of leasing, namely the right to permit others to temporarily use the software with compensation, but it does not include cases where the software is not the prime object of the lease;

(7) right of dissemination through information networks, namely the right to provide software to the public through wire or wireless devices so as to enable the public to obtain the software at a time and place they choose;

(8) right of translation, namely the right to convert the software from one natural language to another natural language; and

(9) other rights to which a software copyright holder is entitled.A software copyright holder may authorise another person to exercise his software copyright and has the right to remuneration.

A software copyright holder may assign in full or in part his software copyright and has the right to remuneration.

Article 9 Software copyright belongs to the software developer unless otherwise provided by these Regulations.Without contrary evidence, the natural person, legal person or other organisation whose name is stated on the software is the developer.

Article 10 Copyright on software developed through cooperation between two or more natural persons, legal persons or other organizations shall be determined in accordance with the written contract signed by the joint developers. If there is no written contract or copyright ownership is not expressly stipulated in the contract, and if the jointly developed software is able to be divided for use, each of the developers may have independent copyright for that portion of the software which he/it has developed, but in exercising the copyright, he/it may not extend to the jointly developed software’s overall copyright. If jointly developed software is unable to be divided for use, copyright shall be enjoyed jointly by the joint developers, and shall be exercised pursuant to unanimous agreement through consultation. If unanimous agreement cannot be reached, no party shall, without due reason, prevent any other party from exercising the copyright other than the right of assignment, but any resulting benefits shall be distributed equitably among all the software developers.

Article 11 Ownership of copyright in relation to software developed on commission from another party shall be agreed on in a written contract concluded between the commissioning and commissioned parties. If there is no written contract or copyright ownership is not expressly stipulated in the contract, copyright shall belong to the commissioned party.

Article 12 Ownership of copyright on software developed as a task assigned by a state organ shall be stipulated in the project assignment or contract. If copyright ownership is not expressly stipulated in the project assignment or contract, copyright shall belong to the legal person or organisation that accepts the task.

Article 13 Where software is developed by a natural person who works for a legal person or an organisation in the course of executing a task, copyright on the software, in any of the following circumstances, shall belong to the legal person or the organisation, and the said legal person or organisation may award the natural person who developed the software:

(1) the software is developed as the result of a clearly defined development target connected with his work;

(2) the developed software is a foreseen or natural result of engaging in the work activities; and

(3) the software is developed mainly using the legal person’s or the organisation’s capital, special facilities, un-published information and other special materials and technological conditions, and liabilities are borne by the legal person or organisation.

Article 14 Software copyright commences from the date on which the development of the software is completed.The protection period for a natural person’s software copyright shall be the natural person’s whole lifetime plus 50 years after his death, concluding on 31 December of the 50th year after the natural person’s death; or, if the software is developed jointly, concluding on 31 December of the 50th year after the last natural person’s death.

The protection period for software copyright of a legal person or other organization shall be 50 years, concluding on 31 December of the 50th year after the software’s initial release. But if the software has not been released within 50 years from the date on which the software development is completed, it shall no longer receive the protection of these Regulations.

Article 15 Where software copyright belongs to a natural person, during the protection period for software copyright, an heir to software copyright may, pursuant to the relevant provisions of the Law of Succession of the People’s Republic of China, inherit the rights provided in Article 8 of these Regulations, other than the right of acknowledgement, after the death of the natural person.Where software copyright belongs to a legal person or other organisation, if the legal person or the organisation is changed or is terminated during the protection period provided in these Regulations, the copyright shall belong to the legal person or organisation which assumes the rights and obligations of the said legal person or organisation. Where there is no legal person or organisation to assume the rights and obligations, the copyright shall belong to the State.

Article 16 An owner of a legal copy of software is entitled to the following rights:

(1) the right to install the software into a computer or other device capable of information processing, so as to use the software;

(2) the right to make back-up copies in case the software copy is damaged. The back-up copies must not be supplied to another party for use through any means whatsoever, and shall be destroyed when the holder has lost ownership to the said legal copy;

(3) the right to alter software in order to use it in a computer’s actual applied environment or to improve its functional performance. However, unless otherwise stipulated in the contract, the altered version of the software shall not be supplied to a third party without the permission of the software copyright holder.

Article 17 Where software is used by means of installation, display, transmission or storage, etc. for the purposes of studying the concepts and principles of the design, the permission of the software copyright holder is not required and no remuneration is needed.

Chapter III Licensing and Assignment of Software Copyright

Article 18 When another is to be authorised to exercise software copyright, a licensing contract must be concluded.A licensee shall not exercise a right that is not expressly authorised under the licensing contract.

Article 19 When another is to be licensed to exclusively exercise software copyright, the parties shall conclude a written contract.Where no written contract has been concluded or the contract does not stipulate the licensed right as exclusive, the right shall be regarded as non-exclusive.

Article 20 A written contract shall be concluded for the assignment of software copyright.

Article 21 A contract authorising another person to exclusively exercise software copyright and a contract assigning software copyright may be registered with the software registration agency appointed by the State Council copyright administrative department.

Article 22 A Chinese citizen, legal person or other organization’s licensing or assigning software copyright to a foreigner is subject to the Regulations of the People’s Republic of China on the Administration of the Import and Export.

Chapter IV Legal Liability

Article 23 Unless otherwise provided by the Copyright Law of the People’s Republic of China or these Regulations, civil liability in such forms as ceasing injurious acts, dispelling influence, making an apology or compensating losses, depending on the circumstances, shall be assumed in the event of any of the following infringements:

(1) publishing or registering software without the permission of the copyright holder;

(2) publishing or registering another person’s software as one’s own work;

(3) publishing or registering jointly developed software as one’s own independent work , without the permission of the other developer(s);

(4) stating one’s own name on software developed by another person or altering the name on software developed by another person;

(5) altering or translating software without the permission of the copyright holder; and

(6) any other acts infringing upon software copyright.

Article 24 Unless otherwise provided by the Copyright Law of the People’s Republic of China, these Regulations or other laws and administrative regulations, where any of the following infringements occur as a result of failing to obtain permission from copyright holder, civil liability in such forms as ceasing infringement, dispelling influence, making an apology or compensating losses, depending on the circumstances, shall be assumed; if the infringement also has infringed upon the public interest, the software copyright administrative department shall order the infringing acts to cease, confiscate illegal earnings, and confiscate and destroy the infringing copies, and may, in addition, impose a fine; where circumstances are serious, the software copyright administrative department may also confiscate the materials, tools and equipment that are used mainly for producing pirated copies; where criminal law has been violated, criminal liability shall be pursued in accordance with the provisions of the Criminal Law on crimes against copyright and crimes of selling pirated copies:

(1) copying or partly copying a copyright holder’s software;

(2) distributing, leasing or disseminating through the information network to the public a copyright holder’s software;

(3) intentionally evading or disrupting the technological measures adopted by the copyright holder for the protection of his software copyright;

(4) intentionally deleting or altering electronic information of the software right administration; and

(5) assigning or authorising others to exercise the copyright holder’s software copyright.Whoever commits the act referred to in Item 1 or 2 of the preceding paragraph may be imposed a fine of 100 yuan for every copy or not less than once and not more than five times of the value of the goods concurrently; whoever commits the act referred to in Item 3, 4 or 5 of the preceding paragraph may be imposed a fine not more than 200, 000 yuan concurrently.

Article 25 The amount of compensation for software copyright infringement shall be determined in accordance with the provisions in Article 49 of the Copyright Law of the People’s Republic of China.

Article 26 A software copyright holder, where there is evidence indicating that another person is infringing or is going to infringe upon his rights, which, if is not prevented, will bring serious harm to his legitimate rights and interests, may apply to the people’s court for an order to have the relevant acts stopped and for the adoption of property preservation measures in accordance with the provisions in Article 50 of the Copyright Law of the People’s Republic of China, before initiating litigation.

Article 27 In the event that evidence is likely to be destroyed or lost or will be difficult to obtain at a later time, a software copyright holder may, for purpose of preventing an infringement, apply to the people’s court for adoption of property preservation measures in accordance with the provisions in Article 51 of the Copyright Law of the People’s Republic of China, before initiating litigation.

Article 28 A publisher or producer of software copies who is unable to prove his/its publication or production is lawfully authorized, or a distributor or leaser of software copies who is unable to prove that the copies he/it is distributing or leasing come from lawful sources, shall bear legal liability.

Article 29 Where software developed by a software developer is similar to existing software because the available means of conveying it are limited, it does not constitute an infringement upon the copyright of the existing software.

Article 30 In the case of a holder of a software copy who is unaware and also has no reasonable grounds for knowing that the software is a pirated copy, no liability of compensation shall be assumed. But the use of the pirated copy shall cease and the pirated copy shall be destroyed. If ceasing the use of and destroying the pirated copy will bring significant losses to the copy-user, the copy-user may continue to use the copy after paying a reasonable fee to the software copyright holder.

Article 31 Mediation may be used in a dispute over software copyright infringement.A dispute over a software copyright contract may be submitted to an arbitration organ for arbitration in accordance with the arbitration clause in the contract or a written arbitration agreement reached after the dispute.

Where parties to the dispute include no arbitration clause in the contract and have not reached any written arbitration agreement after the dispute, they may directly initiate litigation in a people’s court.

Chapter V Supplementary Provisions

Article 32 Infringements occurring before the entry into force of these Regulations shall be handled in accordance with relevant state provisions in force at the time of the infringement.

Article 33 These Regulations come into effect on 1 January 2002. The Regulations on the Protection of Computer Software promulgated by the State Council on 4 June 1991 are hereby repealed.