CHINA INTELLECTUAL PROPERTY LAW NEWSLETTER
SPECIAL ISSUE:
Regulation for Implementation of the Copyright Law of the People's Republic of China
(Promulgated by the State Council on September 15, 2002)
Article 1
Pursuant to the Copyright Law of the People's Republic of China (hereinafter
referred to as the "Copyright Law"), this Regulation is hereby
enacted.
Article 2
"Works" in the Copyright Law means intellectual results which
have the nature of originality and can be reproduced in a tangible form
in the fields of literature, arts and sciences.
Article 3
"Creation" in the Copyright Law means the intellectual activity
which directly produces literary, artistic or scientific works.
Providing organizational work, consultation and opinions, materials support
or other assisting activities to others in their creation shall not be
considered as creation.
Article 4
In the Copyright Law and this Regulation,
1. literary works mean novels, poetry, proses, theses and other works,
which are expressed in a written form;
2. oral works mean extemporaneous speeches, lectures, court debates and
other works, which are created in spoken language and are not fixed on
any material media;
3. musical works mean songs, symphonies and other works, with or without
words, which can be sung or performed;
4. dramatic works mean drama, opera, local operas and other works, which
are for the purpose of stage performance;
5. quyi works mean xiangsheng (comedy dialogue), kuanshu (rhythmic talk
accompanied with bamboo or copper clappers), dagu (ballad sung to the
accompaniment of a drum), pingshu (story telling) and other works, which
are mainly performed by singing and reciting;
6. choreographic works mean the works which are expressed or performed
in progressive body movements, gestures and facial expressions and express
thoughts and feelings;
7. acrobatic artistic works mean acrobatics, magic, and circus acts and
works that are expressed through the gestures and skills of the human
body.
8. artistic works mean paintings, calligraphic works, sculptures, architectural
works and other works, which compose planar or three-dimensional form
by using lines, colors or other methods, and which have aesthetic significance;
9. construction works mean works of aesthetic value expressed in the form
of buildings or structures.
10. photographic works mean such artistic works which, with the aid of
devices, record the physical appearance of objects on light-sensitive
materials;
11. Cinematographic works and works created by the analogous method of
film production mean such works which are recorded on a certain media,
are composed of a series of images with or without sound tracks, and are
projected or broadcast with the aid of suitable devices;
12. Graphic works mean works of engineering designs and product designs
made for the purpose of construction and production as well as maps, sketches
and other works reflecting a geographic phenomenon and illustrating the
essence of an object.
13. Model works mean three-dimensional works made according to a ratio
and to the shape and structure of an object, for the purpose of exhibition,
test and observation.
Article 5
In the Copyright Law and this Regulation,
1. news of current events mean the coverage of facts and reporting by
such media as newspapers, periodicals, radio or television stations;
2. sound recordings mean the recorded products of the sounds of a performance
and other sounds;
3. video recordings mean the originally recorded products of continuing
and related images other than those cinematographic works and works created
by virtue of the analogous method of film production, with or without
sound tracks;
4. sound recording producers mean the persons who first make the sound
recordings;
5. video recording producers mean the persons who first make the video
recordings; and
6. performers mean the entertainers, performing units or other persons
who perform the literary and artistic works.
Article 6
The copyright subsists on the date of the completion of a work.
Article 7
The copyright of "works of foreigners and stateless persons first
published in the territory of China" in Paragraph 2 of Article 2
of the Copyright Law shall enjoy protection from the date it is first
published.
Article 8
Works of foreigners and stateless persons first published outside China
is considered a work simultaneously published in China if it is published
in China within 30 days of its first publication outside China.
Article 9
Where a joint work cannot be separately exploited, the copyright of the
work shall be enjoyed and exercised by all the co-authors through consultation;
and where the co-authors fail to reach a consensus over the exercise of
the copyright through consultation, any contributor may not obstruct,
without reasonable grounds, the other contributors from exercising any
rights other than the licensing rights in the said work. However, the
income incurred thereof shall be reasonably distributed among all the
co-authors.
Article 10
Where a copyright owner authorizes others to make his or her work into
a cinematographic work or a work created by virtue of the analogous method
of film production, it shall be considered that the said owner allows
necessary alternation on his or her work, but such alternation may not
distort or mutilate the original work.
Article 11
"Tasks" provided in Paragraph 1 of Article 16 in the Copyright
Law regarding works produced in the course of employment mean the duties
that citizens are obliged to carry out for legal persons or other organizations.
"The material and technical resources" provided in Paragraph
1 of Article 16 regarding works produced in the course of employment mean
the funds, equipment and documents provided to citizens by legal persons
or other organizations specially for the fulfillment of the creative work.
Article 12
Within two years of completing the work and in accordance with the proportion
agreed upon, the author and his or her unit shall divide the receipts
thus obtained when the author, upon approval by his or her unit, allows
a third party to use his or her work in the same manner of exploitation
by the unit.
Article 13
In regard to a work of which the author could not be identified, the legal
holder of the original copy of the work shall exercise the copyright other
than the authorship right. After the author is identified, the author
or his or her heir shall exercise the copyright in the said work.
Article 14
Where the author in a joint work as provided in Paragraph 1 (5) and (17)
of Article 10 of the Copyright Law does not have a successor or a beneficiary
endowed by the will after his or her death, their co-author rights shall
be enjoyed by the other co-authors.
Article 15
The heir or other bequeathed beneficiary of an author shall, after the
author dies, protect the rights of authorship, protect the integrity and
save the works from alteration.
The administrative management department of the Copyright Authority shall
protect the rights of authorship and integrity, and prevent the alternation
in the copyright of works which there is no heir and other bequeathed
beneficiary.
Article 16
The administrative management department of the Copyright Authority shall
exercise the copyright that is enjoyed by the State.
Article 17
The publishing right in an unpublished work, which the author fails expressly
to state is not to be published may, within 50 years after the death of
the author, be exercised by the author's heir or other bequeathed beneficiary.
If there is no heir or other bequeathed beneficiary to the work, the said
right shall be exercised by the owner of the original copy of the said
work.
Article 18
The term of protection for the rights in a work of which the author is
unidentified is 50 years, as provided in Paragraph 1 (5) and (17) of Article
10 of the Copyright Law. This terms of protection ends on December 31
of the 50th year from the first publication of the work. If the identity
of the author is known, the provisions of Article 21 of the Copyright
Law shall apply.
Article 19
The name of the author and the name of his or her work shall be identified
when his or her work is exploited by others, except when the parties have
agreed otherwise or when there is no way to make the identification due
to the special property of the exploitation method.
Article 20
Published works as provided by the Copyright Law mean works made available
to the public by the copyright owner or to others authorized by the copyright
owner.
Article 21
Whoever exploits the published work of others without the authorization
of the copyright owner, pursuant to the Copyright Law, may not preclude
the normal exploitation of the work and infringe the lawful rights and
interests of the copyright owner of the work.
Article 22
The penalty for the exploitation of works provided in Article 23, Paragraph
2 of Article 32 and Paragraph of Article 39 of the Copyright Law shall
be decided and promulgated by the administrative management department
of the Copyright Authority of the State Council together with the price
management department of the State Council.
Article 23
Those wishing to exploit the works shall enter into a license agreement
with the copyright owner. If the licensed rights are exclusive exploitation
rights, a written contract shall be entered, except when the works are
published by newspapers or periodicals.
Article 24
The nature of the "exclusive right of use" provided in article
24 of the Copyright Law shall be defined within the license agreement.
Where the license rights are not defined or not explicitly defined, a
user who has obtained a particular exclusive right of use is entitled
to prevent anyone else to use the work in the same manner, including the
copyright owner; and if the user permits a third party to exercise the
same right, he must obtain consent from the owner of copyright, except
as otherwise agreed upon by the license agreement.
Article 25
The exclusive license agreement and any assignment agreement entered with
the copyright owner may be filed with the Copyright Authorities.
Article 26
"Copyright-related rights" in the Copyright Law and this Regulation
means the right enjoyed by the publishers over the format design of the
books, newspapers and periodicals they published; the rights enjoyed by
the performers over their performances; the rights enjoyed by the sound
or video recording producers over their sound or video recordings they
have made; and the rights enjoyed by radio or television stations over
the radio or television programs they have produced.
Article 27
Publishers, performers, sound and video recording producers, radio and
television stations, when exercising their rights, may not harm the copyright
owners rights in the works used and in the original works.
Article 28
Where, pursuant to an agreement, the exclusive publishing right is granted
to a publisher without specifying the content of the right, the publisher
shall be regarded as having the right to publish the book in the same
manner as the original edition, revised edition or abridged version in
the same language within the term and geographic area agreed upon.
Article 29
If the copyright owner makes two consecutive purchase orders for the works
and the publisher fails to fill the purchase orders within six months,
it will be considered "the stocks of the book are exhausted"
as in Article 31 of the Copyright Law.
Article 30
Pursuant to Paragraph 2 of Article 32 of the Copyright Law, a copyright
owner who declares that any reprinting or excerpting is not allowed, shall
attach the declaration to the said work when it is first published in
a newspaper or periodical.
Article 31
To declare that the production of sound recording products of a copyright
owners work is not permitted pursuant to paragraph 3 of Article 39 of
the Copyright Law, the copyright owner shall make a statement to this
effect at the same time when the sound-recording products of the work
are legitimately produced.
Article 32
Pursuant to paragraph 2 of Article 32 and paragraph 3 of Article 39 of
the Copyright Law, whoever uses a work belonging to another shall make
payment to the owner of the copyright work within 2 month of the work
being used.
Article 33
The Copyright Law protects performances given by foreigners and stateless
persons in China.
The international treaties ratified by China shall protect the rights
enjoyed by foreigners and stateless persons in accordance with the Copyright
Law.
Article 34
The Copyright Law protects sound recordings made and distributed by foreigners
and stateless persons within China.
The international treaties ratified by China shall protect sound recordings
made and distributed by foreigners and stateless persons in accordance
with the Copyright Law.
Article 35
The rights enjoyed by foreign radio and television organizations in their
broadcasts pursuit to the international treaties to which China has acceded
shall be protected under the Copyright Law.
Article 36
The acts of infringement listed in Article 47 of the Copyright Law, which
have at the same time caused damage to the social and public interest,
the administrative management department of the Copyright Authority shall
impose a fine not exceeding three times the amount of the illegal business
gains, or a maximum fine of RMB 100,000 when it is difficult calculate
the amount of the illegal business gains.
Article 37
The administrative departments of the local people's governments Copyright
Authority are responsible for investigating and disposing of the copyright
infringing acts listed in Article 47 of the Copyright Law, which have
at the same time caused damage to the social and public interest.
The administrative department of the Copyright Authority under the authority
of the State Council is responsible for investigating and prosecuting
copyright infringing acts of national significance and importance.
Article 38
This Regulation shall enter into force on September 15, 2002. The Regulation
for Implementation of the Copyright Law of the People's Republic of China
approved by the State Council on May 24, 1991 and promulgated by the State
Administration of Copyright on May 30, 1991 shall be repealed on the same
date.
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Lehman Lee & Xu
China Lawyers, Notaries, Patent, Copyright and Trademark Agents
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The China Intellectual Property Law Newsletter is intended to be used for news purposes only. It should not be taken as comprehensive legal advice, and Lehman, Lee & Xu will not be held responsible for any such reliance on its contents.