An Academic Interview == 一次学术访谈

我按:一位在欧洲做知识产权研究的朋友发给我一些有关中国知识产权执法的问题,以下选取其中一些贴出来。为了方便阅读,他的问题和我的回答都是中英双语的。
Note: A friend doing research in Europe sent me some questions on Chinese IP implementation. Here are some selected answers. To facilitate reading, both his questions and my answers are bilingual here.

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1. It is in many occasions argued that the confucian philosophy and its impact on the Chinese culture is one of the major factors that IPRs in China are so hard to implement. This doctrine argues that if one want to achieve excellence, he must imitate the works of the one who is doing the best work in that specific field. What are your views on this explanation on IPRs infringements?

很多人认为儒家哲学及其对中国文化的影响是知识产权难以在中国得到保障的原因之一。因为儒家哲学中认为,如果一个人希望成功,他就应当模仿他的行业中最优秀的人的作品。对这一观点,你怎么看?

我按:一位在欧洲做知识产权研究的朋友发给我一些有关中国知识产权执法的问题,以下选取其中一些贴出来。为了方便阅读,他的问题和我的回答都是中英双语的。
Note: A friend doing research in Europe sent me some questions on Chinese IP implementation. Here are some selected answers. To facilitate reading, both his questions and my answers are bilingual here.

———————————————————- 

1. It is in many occasions argued that the confucian philosophy and its impact on the Chinese culture is one of the major factors that IPRs in China are so hard to implement. This doctrine argues that if one want to achieve excellence, he must imitate the works of the one who is doing the best work in that specific field. What are your views on this explanation on IPRs infringements?

很多人认为儒家哲学及其对中国文化的影响是知识产权难以在中国得到保障的原因之一。因为儒家哲学中认为,如果一个人希望成功,他就应当模仿他的行业中最优秀的人的作品。对这一观点,你怎么看?

 

From my experience, confusian philosophy can be a reason on why the contemporary IP law did not emerged in China but in western world, nevertheless it is hard to say that Confucianism is of a mjor factor affecting the implementation of Chinese IP Law. Although Confucianism did agree with the doctine you mentioned, it is a world wide accepted view but not only in Chinese philosophy. The international IP regime does not refuse the imitation of the best work but only prohibit those unlawful imitation. Imputing the pervasive IP infringements to the confucianism needs more empirical evidences.

从我了解的情况看,儒家哲学可以被作为回答“中国为什么没有产生现代知识产权法”的一个原因,但没有充足的证据证明:“儒家哲学是影响中国知识产权法律执行的一个主要原因”。儒家思想中的确包含您所说的观念,但这种观念不仅在中国,而是在全世界都是存在的。国际知识产权体制并不拒绝对优秀知识产品的模仿,而只是禁止那些非法的模仿行为。将知识产权侵权行为的普遍存在归咎于儒家思想的观点,需要更多的实证研究资料来支撑。

 

2. The communist heritage is also one of the common explanations why the Chinese have such a hard time to cope with western views on IPRs. (The name of the Chinese Communist Party in chinese, Gong Chan Dang = the public property party). What are your views on this ideological explanation?

人们普遍认为共产主义思想是另一个令中国难以接受西方观念下的知识产权的原因(共产党的名字就蕴涵着“公共财产”的意思)。你对这种意识形态角度的解释怎么看?

 

Communist ideology comes from western world also. It is too simplified to illustrate communism by its name directly. In my knowledge, the classical communist ideology that affected Chinese regime composed of three branches: dialectical materialism philosophy, Marxism political economy and Leninism. Chinese communist party claimed that it has developed them in the practice of Chinese revolution and construction. There might be some slogans, theories and regulations before 1980s are expressed anti-IPRs, but we never know whether they generally come from communism or not if we do not analize them with the social background at the time specifically.

共产主义意识形态也来源于西方。用它的名字来解释共产主义的想法过于简单化了。从我的知识来看,共产主义包括三个部分,辩证唯物主义哲学、马克思主义政治经济学和列宁主义。中国共产党认为其在中国的革命和建设中发展了这些理论。在1980年代以前,的确可能有一些口号、理论和制度是反知识产权的,但如果不根据当时的社会背景进行具体分析,我们很难笼统地说这些东西是否来源于共产主义。

 

3.  The Chinese often claim that they take the problem seriously, and do all within their power to crack down on piracy. Is this in your view true? What could they do more?

中国人(在国际谈判中)常常声称他们已经对(知识产权)问题十分重视,(政府)使用了权力范围内的所有能力去打击盗版。你认为这是真的吗?他们还可以做哪些?

 

Yes, as to the piracy (if we distinct the piracy from the infringement), I think the administrative orgnization has tried them best in cracking down on piracy. The problem is: the standards are often too strict (or too inefficient or unreasonable in their legislative technique) to be implemented. So the public organizations can only choose some cases to investigate and punish. This is a tragic situation to the rule of law. Hence what could the Chinese authrities should do are mainly on reviewing the exsiting regulations and policies and improving the legislative techniques, but not simply promulgate new regulations which may sounds advanced. Release the unecessary burdens to the entities in ecnomic practice should be of another focus.

如果我们把盗版和侵权分开理解的话,我认为行政机关已经尽力地反盗版了。问题在于:法律所规定的标准往往太严格(或在立法技巧方面规定得太没有效率或缺乏逻辑性),以至于人们都很难达到法律的要求。因此,公权力机构就只能选择性地执法和处罚。这是对法治的损害。所以,中国应该着重检讨既存的法律规则和政策,加强其中的法律技术,而非仅仅颁布听上去“先进”新的规则。此外,解除对经济主体的不必要的负担也应成为工作的重点。

 

4. The U.S. (or Hollywood, Microsoft and the US medical industry) are currently filing a lawsuit against China at the WTO’s Dispute Settlement Body, because they feel that China has not done enough on IPR infringements. Do you think that western countries have unrealistic expectations of the Chinese government’s ability to reduce piracy?

与上个问题相关,美国(或者好莱坞、微软和美国制药产业)目前正在WTO对中国进行诉讼。他们认为中国在知识产权制度的执行方面做得不够。你认为西方国家是否对中国政府减少盗版的能力有不现实的估计?

Yes, I agree with this point. Not only China, no government in this world can reduce the piracy soly by promulgating strict laws and punishing those illegal practices. The WTO dispute settlement body is good at solving specific trade disputes but not at improving general systematic situation of a regime.

是的我同意这种说法。不但是中国,世界上没有任何一个国家政府能仅仅通过制定严格的法律和处罚非法行为来减少盗版(及仿冒)行为。WTO争端解决机构对具体的贸易纠纷是有效的,但希望用这种机制去促成一个体制性的、宏观层面的进步是很难的。

2006 IIPA Report on Special 301 – PRC Part

See Here:
http://www.iipa.com/rbc/2006/2006SPEC301PRC.pdf

Reference:

See Here:
http://www.iipa.com/rbc/2006/2006SPEC301PRC.pdf
Reference:
Hong Kong Part:
http://www.iipa.com/rbc/2006/2006SPEC301HONGKONG.pdf
Taiwan Part:
http://www.iipa.com/rbc/2006/2006SPEC301TAIWAN.pdf

Eng Trans of Copyright Law and Regulation of PRC

中国《著作权法》和《著作权法实施条例》英文版。随时要用,懒得找数据库,干脆Copy出来。

Copyright Law of People’s Republic of China

http://www.npc.gov.cn/englishnpc/Law/2007-12/12/content_1383888.htm

(Adopted at the 15th Meeting of the Standing Committee of the Seventh National People’s Congress on September 7, 1990 and promulgated by order No.31 of the President of the People’s Republic of China on September 7, 1990; amended according to the Decision on Amending the Copyright Law of the People’s Republic of China at the 24th Meeting of the Standing Committee of the Ninth National People’s Congress on October 27, 2001)

Contents

Chapter I General Provisions

Chapter II Copyright

Section 1 Copyright Owners and Their Rights

Section 2 Ownership of Copyright

Section 3 Term of Protection for the Rights

Section 4 Limitations on Rights

Chapter III Copyright Licensing and Transfer Contracts

Chapter IV Publication, Performance, Sound Recording, Video Recording and Broadcasting

Section 1 Publication of Books, Newspapers and Periodicals

Section 2 Performance

Section 3 Sound Recording and Video Recording

Section 4 Broadcasting by a Radio Station or Television Station

Chapter V Legal Liabilities and Enforcement Measures

Chapter VI Supplementary Provisions

Chapter I General Provisions

Article 1 This law is enacted, in accordance with the Constitution, for the purpose of protecting the copyright of authors in their literary, artistic and scientific works and the rights and interests related to copyright, encouraging the creation and dissemination of works conducive to the building of a socialist society that is advanced ethically and materially, and promoting the progress and flourishing of socialist culture and sciences.

Article 2 Chinese citizens, legal entities or other organizations shall, in accordance with this Law, enjoy the copyright in their works, whether published or not.

The copyright enjoyed by foreigners or stateless persons in any of their works under an agreement concluded between China and the country to which they belong or in which they have their habitual residences, or under an international treaty to which both countries are parties, shall be protected by this Law.

Foreigners and stateless persons whose works are first published in the territory of China shall enjoy the copyright in accordance with this Law.

Any work of an author of a country that has not concluded any agreement with China or that is not a party to any international treaty to which China is a party and any work of a stateless person, which is first published in a member country of an international treaty to which China is a party, or simultaneously published in a member country of the treaty and in a non-member country, shall be protected by this Law.

Article 3 For purposes of this law, the term "works" includes, among other things, works of literature, art, natural sciences, social sciences, engineering and technology, which are created in any of the following forms:

(1) written works;

(2) oral works;

(3) musical, dramatic, quyi, choreographic and acrobatic works;

(4) works of the fine arts and architecture;

(5) photographic works;

(6) cinematographic works and works created by a process analogous to cinematography;

(7) graphic works such as drawings of engineering designs and product designs, maps and sketches, and model works;

(8) computer software; and

(9) other works as provided for in laws and administrative regulations.

Article 4 Works the publication and dissemination of which are prohibited by law shall not be protected by this Law.

In exercising their copyright, no copyright owners may violate the Constitution or laws, nor may they impair public interests.

Article 5 This Law shall not be applicable to:

(1) laws and regulations, resolutions, decisions and orders of State organs, other documents of a legislative, administrative or judicial nature and their official translations;

(2) news on current affairs; and

(3) calendars, numerical tables and forms of general use, and formulas.

Article 6 Measures for the protection of copyright in works of folk literature and art shall be formulated separately by the State Council.

Article 7 The administrative department for copyright under the State Council shall be responsible for the administration of copyright nationwide. The administrative departments for copyright under the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government shall be responsible for the administration of copyright in their respective administrative regions.

Article 8 Copyright owners or owners of the rights related to the copyright may authorize collective copyright administration organizations to exercise their copyright or rights related to the copyright. Upon authorization, a collective copyright administration organization may exercise the copyright or the rights related to the copyright in its own name for the copyright owner or the owner of the rights related to the copyright and participate as a party in legal or arbitration proceedings concerning the copyright or the rights related to the copyright.

Collective copyright administration organizations are non-profit organizations, and regulations concerning the way of their establishment, their rights and obligations, their collection and distribution of copyright licensing fees, and their supervision and administration shall be formulated separately by the State Council.

Chapter II Copyright

Section 1 Copyright Owners and Their Rights

Article 9 Copyright owners include:

(1) authors; and

(2) other citizens, legal entities and other organizations enjoying the copyright in accordance with this Law.

Article 10 Copyright includes the following personal rights and property rights:

(1) the right of publication, that is, the right to decide whether to make a work available to the public;

(2) the right of authorship, that is, the right to claim authorship in respect of, and to have the author’s name mentioned in connection with, a work;

(3) the right of revision, that is, the right to revise or authorize others to revise a work;

(4) the
right of integrity, that is, the right to protect a work against distortion and mutilation;

(5) the right of reproduction, that is, the right to produce one or more copies of a work by printing, photocopying, lithographing, making a sound recording or video recording, duplicating a recording, or duplicating a photographic work, or by other means;

(6) the right of distribution, that is, the right to provide the original copy or reproductions of a work to the public by selling or donating;

(7) the right of rental, that is, the right to authorize others to use temporarily a cinematographic work or a work created by a process analogous to cinematography, or computer software, except where the software itself is not the essential object of the rental;

(8) the right of exhibition, that is, the right to publicly display the original copy or reproductions of a work of the fine arts or of a photographic work;

(9) the right of performance, that is, the right to publicly perform a work, and to publicly communicate the performance of a work by any means or process;

(10) the right of presentation, that is, the right to publicly present a work of the fine arts, a photographic work, a cinematographic work, a work created by a process analogous to cinematography, or other works, by projector, slide projector or any other technology or instrument;

(11) the right of broadcasting, that is, the right to broadcast a work or disseminate it to the public by any wireless means, to communicate the broadcast of a work to the public by wire or by rebroadcasting, and to publicly communicate the broadcast of a work by loudspeaker or any other analogous instrument transmitting signs, sounds or images;

(12) the right of communication through information network, that is, the right to make a work available to the public by wire or by wireless means, so that people may have access to the work from a place and at a time individually chosen by them;

(13) the right of cinematography, that is, the right to fix an adaptation of a work in a medium by cinematography or a process analogous to cinematography;

(14) the right of adaptation, that is, the right to change a work into a new one with originality;

(15) the right of translation, that is, the right to change the language in which the work is written into another language;

(16) the right of compilation, that is, the right to compile by selection or arrangement preexisting works or passages therefrom into a new work; and

(17) other rights to be enjoyed by copyright owners.

Copyright owners may authorize others’ exercising of the rights provided for in Subparagraph (5) through Subparagraph (17) of the preceding paragraph and receive remuneration in accordance with the terms of contracts or the relevant provisions in this Law.

Copyright owners may transfer, wholly or in part, the rights provided for in Subparagraph (5) through Subparagraph (17) of the first paragraph in this Article and receive fees in accordance with the terms of contracts or the relevant provisions in this Law.

Section 2 Ownership of Copyright

Article 11 Except where otherwise provided for in this Law, the copyright in a work shall belong to its author.

The author of a work is the citizen who creates the work.

Where a work is created under the auspices and according to the intention of a legal entity or other organization, which bears responsibility for the work, the said legal entity or organization shall be deemed to be the author of the work.

The citizen, legal entity or other organization whose name is mentioned in connection with a work shall, in the absence of proof to the contrary, be deemed to be the author of the work.

Article 12 Where a work is created by adaptation, translation, annotation or arrangement of a preexisting work, the copyright in the work thus created shall be enjoyed by the adapter, translator, annotator or arranger, provided that the exercise of such copyright does not prejudice the copyright in the preexisting work..

Article 13 Where a work is created jointly by two or more authors, the copyright in the work shall be enjoyed jointly by the co-authors. No co-authorship may be claimed by anyone who has not participated in the creation of the work.

Where a work of joint authorship can be separated into parts and exploited separately, each co-author may be entitled to independent copyright in the part that he creates, provided that the exercise of such copyright does not prejudice the copyright in the joint work as a whole.

Article 14 A collection of preexisting works or passages therefrom, or of data or other material which does not constitute a work, if manifesting the originality of a work by reason of the selection or arrangement of its contents, is a compilation. The copyright in such compilation shall be enjoyed by the compiler, provided that the exercise of such copyright does not prejudice the copyright in the preexisting works.

Article 15 The copyright in a cinematographic work or in a work created by a process analogous to cinematography shall be enjoyed by the producer of the work, while its scriptwriter, director, cameraman, lyricist, composer and other authors shall enjoy the right of authorship therein and shall be entitled to receive remuneration in accordance with the terms of the contracts concluded between them and the producer.

The authors of the script, the musical works and the other works which are included in a cinematographic work or in a work created by a process analogous to cinematography and which can be exploited separately shall be entitled to exercise their copyright independently.

Article 16 A work created by a citizen in the fulfillment of tasks assigned to him by a legal entity or other organization is a work created in the course of employment. Subject to the provisions of the second paragraph of this Article, the copyright in such work shall be enjoyed by the author; however, the legal entity or other organization shall have priority to exploit the work within the scope of its professional activities. Within two years after the completion of the work, the author may not, without the consent of the legal entity or other organization, authorize the exploitation of the work by a third party in the same manner as the legal entity or other organization exploits the work.

In any of the following cases, the author of a work created in the course of employment shall enjoy the right of authorship, while the legal entity or other organization shall enjoy the other rights included in the copyright and may reward the author:

(1) drawings of engineering designs and product designs, maps, computer software and other works which are created in the course of employment mainly with the material and technical resources of the legal entity or other organization and for which the legal entity or other organization bears responsibility;

(2) works created in the course of employment the copyright in which is, in accordance with laws, administrative regulations or contracts, enjoyed by the legal entity or other organization.

Article 17 The ownership of t
he copyright in a commissioned work shall be agreed upon in a contract between the commissioning and the commissioned parties. In the absence of such a contract or of an explicit agreement in such a contract, the copyright in the work shall belong to the commissioned party.

Article 18 The transfer of ownership of the original copy of a work of the fine arts or other works shall not be deemed to include the transfer of the copyright in such work or works; however, the right to exhibit the original copy of the work of the fine arts shall be enjoyed by the owner of the original copy.

Article 19 Where the copyright in a work belongs to a citizen, the rights as provided for in Subparagraph (5) through Subparagraph (17) of the first paragraph in Article 10 of this Law in respect of the work shall, after his death and during the term of protection provided for in this Law, be transferred in accordance with the provisions of the Law of Succession.

Where the copyright in a work belongs to a legal entity or other organization, the rights provided for in Subparagraph (5) through Subparagraph (17) of the first paragraph in Article 10 of this Law shall, after the change or the termination of the status of the legal entity or other organization and during the term of protection provided for in this Law, be enjoyed by the succeeding legal entity or other organization which takes over the former’s rights and obligations, or, in the absence of such succeeding entity or organization, by the State.

Section 3 Term of Protection for the Rights

Article 20 No time limit shall be set on the term of protection for an author’s rights of authorship and revision and his right to protect the integrity of his work.

Article 21 In respect of a work of a citizen, the term of protection for the right of publication and the rights as provided for in Subparagraph (5) through Subparagraph (17) of the first paragraph in Article 10 of this Law shall be the lifetime of the author and fifty years after his death, expiring on December 31 of the fiftieth year after his death. In the case of a work of joint authorship, the term shall expire on December 31 of the fiftieth year after the death of the last surviving author.

In respect of a work of a legal entity or other organization or a work which is created in the course of employment and the copyright (except the right of authorship) in which is enjoyed by a legal entity or other organization, the term of protection for the right of publication and the rights as provided for in Subparagraph (5) through Subparagraph (17) of the first paragraph in Article 10 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such work; however, such work shall no longer be protected under this Law if it is not published within fifty years after the completion of its creation.

In respect of a cinematographic work, a work created by a process analogous to cinematography or a photographic work, the term of protection for the right of publication and the rights as provided for in Subparagraph (5) through Subparagraph (17) of the first paragraph in Article 10 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such work; however, such work shall no longer be protected under this Law if it is not published within fifty years after the completion of its creation.

Section 4 Limitations on Rights

Article 22 In the following cases, a work may be used without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work are mentioned and the other rights enjoyed by the copyright owner in accordance with this Law are not prejudiced:

(1) use of another person’s published work for purposes of the user’s own personal study, research or appreciation;

(2) appropriate quotation from another person’s published work in one’s own work for the purpose of introducing or commenting a certain work, or explaining a certain point;

(3) unavoidable inclusion or quotation of a published work in the media, such as in a newspaper, periodical and radio and television program, for the purpose of reporting current events;

(4) publishing or rebroadcasting by the media, such as a newspaper, periodical, radio station and television station, of an article published by another newspaper or periodical, or broadcast by another radio station or television station, etc. on current political, economic or religious topics, except where the author declares that such publishing or rebroadcasting is not permitted;

(5) publishing or broadcasting by the media, such as a newspaper, periodical, radio station and television station of a speech delivered at a public gathering, except where the author declares that such publishing or broadcasting is not permitted;

(6) translation, or reproduction in a small quantity of copies of a published work by teachers or scientific researchers for use in classroom teaching or scientific research, provided that the translation or the reproductions are not published for distribution;

(7) use of a published work by a State organ to a justifiable extent for the purpose of fulfilling its official duties;

(8) reproduction of a work in its collections by a library, archive, memorial hall, museum, art gallery, etc. for the purpose of display, or preservation of a copy, of the work;

(9) gratuitous live performance of a published work, for which no fees are charged to the public, nor payments are made to the performers;

(10) copying, drawing, photographing or video-recording of a work of art put up or displayed in an outdoor public place;

(11) translation of a published work of a Chinese citizen, legal entity or other organization from Han language into minority nationality languages for publication and distribution in the country; and

(12) transliteration of a published work into braille for publication.

The provisions of the preceding paragraph shall be applicable also to the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations.

Article 23 Except where the author declares in advance that use of his work is not permitted, passages from a work, a short written work, musical work, a single work of the fine arts or photographic work which has been published may, without permission from the copyright owner, be compiled in textbooks for the purpose of compiling and publishing textbooks for the nine-year compulsory education and for national education planning, provided that remuneration is paid, the name of the author and the title of the work are mentioned, and the other rights enjoyed by the copyright owner in accordance with this Law are not prejudiced.

The provisions of the preceding paragraph shall be applicable also to the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations.

Chapter III Copyright Licensing and Transfer Contracts

Article 24 Anyone who exploits another person’s work shall conclude a copyright licensing contract with the copyright owner, except where no permission need be obtained under this Law
.

A licensing contract shall include the following main points:

(1) the category of the right to exploit the work covered by the license;

(2) the exclusive or non-exclusive nature of the right to exploit the work covered by the license;

(3) the territory and the term covered by the license;

(4) the rates of remuneration and the means of payment;

(5) the liabilities in the case of breach of the contract; and

(6) other matters which the parties consider it necessary to agree upon.

Article 25 Anyone who transfers any of the rights provided for in Subparagraph (5) through Subparagraph (17) of the first paragraph in Article 10 of this Law shall conclude a written contract.

A copyright transfer contract shall include the following main points:

(1) the title of the work;

(2) the category of the right to be transferred and the territory covered by the transfer;

(3) the rates of the transfer fee;

(4) the date and the means of payment of the transfer fee;

(5) the liabilities in the case of breach of the contract; and

(6) other matters that the parties consider it necessary to agree upon.

Article 26 The other party may not, without permission from the copyright owner, exercise any right that is not explicitly licensed or transferred by the copyright owner in the contract.

Article 27 The rates of remuneration for the exploitation of a work may be agreed upon by the parties and may also be paid in accordance with the rates fixed by the administrative department for copyright under the State Council in conjunction with the other departments concerned. In the absence of an explicit agreement in the contract, the remuneration shall be paid in accordance with the rates fixed by the said department under the State Council in conjunction with the other departments concerned.

Article 28 No publishers, performers, producers of sound recordings and video recordings, radio stations, television stations, etc. that exploit another person’s work in accordance with the relevant provisions of this Law may infringe upon the authors’ rights of authorship, revision or protection of the integrity of the works, or their right to remuneration.

Chapter IV Publication, Performance, Sound Recording, Video Recording and Broadcasting

Section 1 Publication of Books, Newspapers and Periodicals

Article 29 A book publisher who intends to publish a book shall conclude a publishing contract with, and pay remuneration to, the copyright owner.

Article 30 The exclusive right enjoyed by the book publisher in accordance with the agreement in the contract to publish a work that the copyright owner delivered to him for publishing shall be protected by law, and the work may not be published by others.

Article 31 The copyright owner shall deliver the work within the term specified in the contract. The book publisher shall publish the work in compliance with the quality requirements and within the term as specified in the contract.

The book publisher who fails to publish the work within the term specified in the contract shall bear civil liabilities provided for in Article 53 of this Law.

When the book publisher reprints or republishes the work, it shall notify the copyright owner of the matter and pay remuneration to him. If the publisher refuses to reprint or republish the work when the stock of the book is exhausted, the copyright owner shall have the right to terminate the contract.

Article 32 Where a copyright owner has submitted the manuscript of his work to a newspaper or periodical publisher for publication and has not received, within 15 days from the newspaper or within 30 days from the periodical publisher, counted from the date of submission of the manuscript, any notification of the said newspaper’s or publisher’s decision to publish the work, the copyright owner may submit the manuscript of the same work to another newspaper or periodical publisher for publishing, unless the parties have agreed otherwise.

Except where the copyright owner declares that no reprinting or excerpting of his work is permitted, a newspaper or periodical publisher may, after the work is published by another newspaper or periodical publisher, reprint the work or print an abstract of it or print it as reference material, provided that remuneration is paid to the copyright owner in accordance with relevant regulations.

Article 33 A book publisher may, with the permission of the author, revise or abridge the work.

A newspaper or periodical publisher may make editorial modifications and abridgments in the language of a work. Any revision in the contents of the work shall be subject to permission by the author.

Article 34 When publishing a work created by adaptation, translation, annotation, arrangement or compilation of a preexisting work, the publisher shall obtain permission from, and pay remuneration to, both the owner of the copyright in the work created by adaptation, translation, annotation, arrangement or compilation and the owner of the copyright in the preexisting work.

Article 35 A publisher shall have the right to permit another person to exploit, or prohibit such person from exploiting, the typographical design of the book or the periodical which he publishes.

The term of protection for the right specified in the preceding paragraph shall be ten years, expiring on December 31 of the tenth year after the first publication of the book or the periodical in which the typographical design is used.

Section 2 Performance

Article 36 A performer (an individual performer or a performing group) who exploits, for a performance, a work created by another person shall obtain permission from, and pay remuneration to, the copyright owner. Where a performance is organized by a person, the organizer shall obtain permission from, and pay remuneration to, the copyright owner.

Anyone who exploits, for a performance, a work created by adaptation, translation, annotation or arrangement of a preexisting work shall obtain permission from, and pay remuneration to, both the owner of the copyright in the work created by adaptation, translation, annotation or arrangement and the owner of the copyright in the preexisting work.

Article 37 A performer shall, in respect of his performance, enjoy the following rights:

(1) to claim performership;

(2) to protect the image inherent in his performance from distortion;

(3) to authorize others’ live broadcasting or communicating to the public of his performance, and receive remuneration therefrom;

(4) to authorize others’ making of sound recordings and video recordings of his performance, and receive remuneration therefrom;

(5) to authorize others’ reproduction and distribution of the sound recordings and video recordings of his performance, and receive remuneration therefrom
; and

(6) to authorize others’ making of his performance available to the public through information network, and receive remuneration therefrom.

A person who is authorized exploitation of a work in the manner provided for in Subparagraph (3) through Subparagraph (6) of the preceding paragraph shall, in addition, obtain permission from, and pay remuneration to, the copyright owner.

Article 38 No time limit shall be set on the term of protection for the rights provided for in Subparagraphs (1) and (2) of the first paragraph in Article 37 of this Law.

The term of protection for the rights provided for in Subparagraph (3) through Subparagraph (6) of the first paragraph in Article 37 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the performance takes place.

Section 3 Sound Recording and Video Recording

Article 39 A producer of sound recordings or video recordings who exploits, for making a sound recording or video recording, a work created by another person shall obtain permission from, and pay remuneration to, the copyright owner.

A producer of sound recordings or video recordings who exploits a work created by adaptation, translation, annotation or arrangement of a preexisting work shall obtain permission from, and pay remuneration to, both the owner of the copyright in the work created by adaptation, translation, annotation or arrangement and the owner of the copyright in the preexisting work.

A producer of sound recordings who exploits, for making a sound recording, a musical work of which a lawful sound recording has been made, may do without permission from the copyright owner, but shall, in accordance with regulations, pay remuneration to the copyright owner; no such work may be exploited where the copyright owner declares that exploitation is not permitted.

Article 40 When making a sound recording or video recording of a performance, the producer shall conclude a contract with, and pay remuneration to, the performer.

Article 41 The producer of a sound recording or video recording shall enjoy the right to authorize others’ reproducing, distributing or renting the sound recording or video recording or making it available to the public through information network and to receive remuneration therefrom. The term of protection for such right shall be fifty years, expiring on December 31 of the fiftieth year after the first completion of the recording.

Anyone who is authorized reproducing or distributing a sound recording or video recording or making it available to the public through information network shall, in addition, obtain permission from, and pay remuneration to, both the copyright owner and the performer.

Section 4 Broadcasting by a Radio Station or Television Station

Article 42 A radio station or television station that broadcasts an unpublished work created by another person shall obtain permission from, and pay remuneration to, the copyright owner.

A radio station or television station that broadcasts a published work created by another person may do without permission from, but shall pay remuneration to, the copyright owner.

Article 43 A radio station or television station that broadcasts a published sound recording may do without permission from, but shall pay remuneration to, the copyright owner, unless the parties have agreed otherwise. Specific measures in this regard shall be formulated by the State Council.

Article 44 A radio station or television station shall have the right to prohibit the following acts performed without its permission:

(1) broadcasting its programs; and

(2) making a sound recording or video recording of its programs and reproducing such recording.

The term of protection for the right specified in the preceding paragraph shall be fifty years, expiring on December 31 of the fiftieth year after the first broadcasting of a program.

Article 45 A television station that intends to broadcast a cinematographic work or a work created by a process analogous to cinematography, or a video recording produced by another person, shall obtain permission from, and pay remuneration to, the producer; in the case of a video recording, the television station shall, in addition, obtain permission from, and pay remuneration to, the copyright owner.

Chapter V Legal Liabilities and Enforcement Measures

Article 46 Anyone who commits any of the following acts of infringement shall, depending on the circumstances, bear civil liabilities such as ceasing the infringement, eliminating the bad effects of the act, making an apology or paying compensation for damages:

(1) publishing a work without permission of the copyright owner;

(2) publishing a work of joint authorship as a work created solely by oneself, without permission of the other co-authors;

(3) having one’s name mentioned in another person’s work in the creation of which one has taken no part, in order to seek personal fame and gain;

(4) distorting or mutilating a work created by another person;

(5) plagiarizing a work created by another person;

(6) exploiting a work for exhibition or film-making or in a manner analogous to film-making, or for adaptation, translation, annotation, or for other purposes, without permission of the copyright owner, except where otherwise provided for in this Law;

(7) exploiting a work created by another person without paying remuneration as one should;

(8) renting a cinematographic work or a work created by a process analogous to cinematography, computer software, or products of sound recording or video recording, without permission of the copyright owner or the owner of the rights related to the copyright, except where otherwise provided for in this Law;

(9) exploiting the typographical design of a published book or periodical, without permission of the publisher;

(10) live broadcasting, communicating to the public, or recording a performance, without permission of the performer; or

(11) committing other acts infringing upon the copyright and the rights related to the copyright.

Article 47 Anyone who commits any of the following acts of infringement shall, depending on the circumstances, bear civil liabilities such as ceasing the infringement, eliminating the bad effects of the act, making an apology or paying compensation for damages; where public rights and interests are impaired, the administrative department for copyright may order the person to discontinue the infringement, confiscate his unlawful gains, confiscate or destroy the copies produced through infringement, and may also impose a fine; where the circumstances are serious, the said department may, in addition, confiscate the material, tools and instruments mainly used to produce copies through infringement; and where a crime is constituted, criminal liabilities shall be investigated in accordance with law:

(1) reproducing, distributing, performing, presenting, broadcasting, compiling a work or making it available to the public through in
formation network, without permission of the copyright owner, except where otherwise provided for in this Law;

(2) publishing a book the exclusive right of publication in which is enjoyed by another person;

(3) reproducing or distributing a sound recording or video recording of a performance, or making a performance available to the public through information network, without permission of the performer, except where otherwise provided for in this Law;

(4) reproducing or distributing a product of sound recording or video recording or making it available to the public through information network, without permission of the producer, except where otherwise provided for in this Law;

(5) rebroadcasting a radio or television program or reproducing such a program without permission, except where otherwise provided for in this Law;

(6) intentionally circumventing or sabotaging the technological measures adopted by a copyright owner or an owner of the rights related to the copyright to protect the copyright or the rights related to the copyright in the work or the products sound recording or video recording, without permission of the owner, except where otherwise provided for in laws or administrative regulations;

(7) intentionally removing or altering any electronic rights management information attached to a copy of a work, a product of sound recording or video recording, etc. without permission of the copyright owner or the owner of the rights related to the copyright, except where otherwise provided for in this Law; or

(8) producing or selling a work the authorship of which is counterfeited.

Article 48 Anyone who infringes upon the copyright or a right related to the copyright shall pay compensation for the actual losses suffered by the right owner, or where the actual losses are difficult to calculate, pay compensation to the amount of the unlawful gains of the infringer. The compensation shall include the reasonable expenses that the right owner has paid for putting a stop to the infringement.

Where the actual losses of the right owner or the unlawful gains of the infringer cannot be determined, the People’s Court shall, in light of the circumstances of the infringement, decide on a compensation amounting to not more than 500,000 RMB yuan.

Article 49 Where a copyright owner or an owner of a right related to the copyright who can present evidence to prove that another person is committing, or is about to commit, an infringement upon his right, which, unless prevented promptly, is likely to cause irreparable harm to his legitimate rights and interests, he may, before taking legal proceedings, apply to a People’s Court for measures to order discontinuation of the infringement and to preserve property.

When dealing with the application specified in the preceding paragraph, the People’s Court shall apply the provisions in Article 93 through Article 96 and Article 99 of the Civil Procedure Law of the People’s Republic of China.

Article 50 In order to prevent infringement, a copyright owner or an owner of a right related to the copyright may, before taking legal proceedings, apply to a People’s Court for preserving evidence, where the evidence is likely to be missing or is difficult to obtain later.

After accepting the application, the People’s Court shall make a ruling within 48 hours. Where it rules to adopt preservation measures, it shall have the measures enforced immediately.

The People’s Court may order the applicant to provide a guarantee, and shall reject the application where the applicant fails to do so.

Where the applicant fails to take legal proceedings within 15 days from the date the People’s Court adopts the preservation measure, the People’s Court shall terminate the measure.

Article 51 When trying a case where the copyright or a right related to it is infringed upon, the People’s Court may rule to confiscate the unlawful gains, the products of infringement and money and things of value used for illegal activities.

Article 52 A publisher or a producer of reproductions who fails to prove that he is legally authorized publishing or producing of the reproductions, or a distributor of reproductions or a renter of reproductions of a cinematographic work or a work created by a process analogous to cinematography, computer software, sound recording or video recording who fails to prove the legal source of the reproductions that he distributes or rents, shall bear legal liabilities.

Article 53 Any party who fails to perform his contractual obligations, or performs them at variance with the agreed conditions in the contract, shall bear civil liabilities in accordance with the relevant provisions of the General Principles of the Civil Law of the People’s Republic of China, the Contract Law of the People’s Republic of China and other related laws.

Article 54 Any dispute over copyright may be settled through mediation, it may also be submitted to an arbitration body for arbitration under a written arbitration agreement between the parties or under the arbitration clause in the copyright contract.

Any party may take legal proceedings directly in a People’s Court where there is neither a written arbitration agreement between the parties nor an arbitration clause in the contract.

Article 55 Any party that is not satisfied with an administrative penalty, may taking legal proceedings in a People’s Court within three months from the date he receives the written decision on the penalty. Where the party neither takes legal proceedings nor implements the decision at the expiration of the time limit, the administrative department for copyright may apply to the People’s Court for enforcement.

Chapter VI Supplementary Provisions

Article 56 The term zhuzuoquan (copyright) as used in this Law means banquan commonly used in the country.

Article 57 The term publish as used in Article 2 of this Law means reproducing and distributing of a work.

Article 58 Measures for the protection of computer software and of the right of communication through information network shall be formulated separately by the State Council.

Article 59 The rights of copyright owners, publishers, performers, producers of sound recordings and video recordings, radio stations and television stations, as provided for in this Law, shall, if the term of their protection specified in this Law has not yet expired on the date this Law goes into effect, be protected in accordance with this Law.

Any act of tort or breach of contract committed prior to the date this Law goes into effect shall be dealt with in accordance with the relevant regulations or policies in force at the time when such act was committed.

Article 60 This Law shall go into effect on June 1, 1991.
============================================

Regulation on the Implementation of the Copyright Law of the People’s Republic of China
 
Promulgation date: 08-02-2002
Effective date: 09-15-2002
Department: STATE COUNCIL OF CHINA
Subject: COPYRIGHT

——————————————————————————–
order of the State Council of the People’s Republic of China (No. 359)

The Regulation on the Implementation of the Copyright Law of the People’s Republic of China is hereby promulgated for implementation as of September 15, 2002.

中国《著作权法》和《著作权法实施条例》英文版。随时要用,懒得找数据库,干脆Copy出来。

Copyright Law of People’s Republic of China

http://www.npc.gov.cn/englishnpc/Law/2007-12/12/content_1383888.htm

(Adopted at the 15th Meeting of the Standing Committee of the Seventh National People’s Congress on September 7, 1990 and promulgated by order No.31 of the President of the People’s Republic of China on September 7, 1990; amended according to the Decision on Amending the Copyright Law of the People’s Republic of China at the 24th Meeting of the Standing Committee of the Ninth National People’s Congress on October 27, 2001)

Contents

Chapter I General Provisions

Chapter II Copyright

Section 1 Copyright Owners and Their Rights

Section 2 Ownership of Copyright

Section 3 Term of Protection for the Rights

Section 4 Limitations on Rights

Chapter III Copyright Licensing and Transfer Contracts

Chapter IV Publication, Performance, Sound Recording, Video Recording and Broadcasting

Section 1 Publication of Books, Newspapers and Periodicals

Section 2 Performance

Section 3 Sound Recording and Video Recording

Section 4 Broadcasting by a Radio Station or Television Station

Chapter V Legal Liabilities and Enforcement Measures

Chapter VI Supplementary Provisions

Chapter I General Provisions

Article 1 This law is enacted, in accordance with the Constitution, for the purpose of protecting the copyright of authors in their literary, artistic and scientific works and the rights and interests related to copyright, encouraging the creation and dissemination of works conducive to the building of a socialist society that is advanced ethically and materially, and promoting the progress and flourishing of socialist culture and sciences.

Article 2 Chinese citizens, legal entities or other organizations shall, in accordance with this Law, enjoy the copyright in their works, whether published or not.

The copyright enjoyed by foreigners or stateless persons in any of their works under an agreement concluded between China and the country to which they belong or in which they have their habitual residences, or under an international treaty to which both countries are parties, shall be protected by this Law.

Foreigners and stateless persons whose works are first published in the territory of China shall enjoy the copyright in accordance with this Law.

Any work of an author of a country that has not concluded any agreement with China or that is not a party to any international treaty to which China is a party and any work of a stateless person, which is first published in a member country of an international treaty to which China is a party, or simultaneously published in a member country of the treaty and in a non-member country, shall be protected by this Law.

Article 3 For purposes of this law, the term "works" includes, among other things, works of literature, art, natural sciences, social sciences, engineering and technology, which are created in any of the following forms:

(1) written works;

(2) oral works;

(3) musical, dramatic, quyi, choreographic and acrobatic works;

(4) works of the fine arts and architecture;

(5) photographic works;

(6) cinematographic works and works created by a process analogous to cinematography;

(7) graphic works such as drawings of engineering designs and product designs, maps and sketches, and model works;

(8) computer software; and

(9) other works as provided for in laws and administrative regulations.

Article 4 Works the publication and dissemination of which are prohibited by law shall not be protected by this Law.

In exercising their copyright, no copyright owners may violate the Constitution or laws, nor may they impair public interests.

Article 5 This Law shall not be applicable to:

(1) laws and regulations, resolutions, decisions and orders of State organs, other documents of a legislative, administrative or judicial nature and their official translations;

(2) news on current affairs; and

(3) calendars, numerical tables and forms of general use, and formulas.

Article 6 Measures for the protection of copyright in works of folk literature and art shall be formulated separately by the State Council.

Article 7 The administrative department for copyright under the State Council shall be responsible for the administration of copyright nationwide. The administrative departments for copyright under the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government shall be responsible for the administration of copyright in their respective administrative regions.

Article 8 Copyright owners or owners of the rights related to the copyright may authorize collective copyright administration organizations to exercise their copyright or rights related to the copyright. Upon authorization, a collective copyright administration organization may exercise the copyright or the rights related to the copyright in its own name for the copyright owner or the owner of the rights related to the copyright and participate as a party in legal or arbitration proceedings concerning the copyright or the rights related to the copyright.

Collective copyright administration organizations are non-profit organizations, and regulations concerning the way of their establishment, their rights and obligations, their collection and distribution of copyright licensing fees, and their supervision and administration shall be formulated separately by the State Council.

Chapter II Copyright

Section 1 Copyright Owners and Their Rights

Article 9 Copyright owners include:

(1) authors; and

(2) other citizens, legal entities and other organizations enjoying the copyright in accordance with this Law.

Article 10 Copyright includes the following personal rights and property rights:

(1) the right of publication, that is, the right to decide whether to make a work available to the public;

(2) the right of authorship, that is, the right to claim authorship in respect of, and to have the author’s name mentioned in connection with, a work;

(3) the right of revision, that is, the right to revise or authorize others to revise a work;

(4) the
right of integrity, that is, the right to protect a work against distortion and mutilation;

(5) the right of reproduction, that is, the right to produce one or more copies of a work by printing, photocopying, lithographing, making a sound recording or video recording, duplicating a recording, or duplicating a photographic work, or by other means;

(6) the right of distribution, that is, the right to provide the original copy or reproductions of a work to the public by selling or donating;

(7) the right of rental, that is, the right to authorize others to use temporarily a cinematographic work or a work created by a process analogous to cinematography, or computer software, except where the software itself is not the essential object of the rental;

(8) the right of exhibition, that is, the right to publicly display the original copy or reproductions of a work of the fine arts or of a photographic work;

(9) the right of performance, that is, the right to publicly perform a work, and to publicly communicate the performance of a work by any means or process;

(10) the right of presentation, that is, the right to publicly present a work of the fine arts, a photographic work, a cinematographic work, a work created by a process analogous to cinematography, or other works, by projector, slide projector or any other technology or instrument;

(11) the right of broadcasting, that is, the right to broadcast a work or disseminate it to the public by any wireless means, to communicate the broadcast of a work to the public by wire or by rebroadcasting, and to publicly communicate the broadcast of a work by loudspeaker or any other analogous instrument transmitting signs, sounds or images;

(12) the right of communication through information network, that is, the right to make a work available to the public by wire or by wireless means, so that people may have access to the work from a place and at a time individually chosen by them;

(13) the right of cinematography, that is, the right to fix an adaptation of a work in a medium by cinematography or a process analogous to cinematography;

(14) the right of adaptation, that is, the right to change a work into a new one with originality;

(15) the right of translation, that is, the right to change the language in which the work is written into another language;

(16) the right of compilation, that is, the right to compile by selection or arrangement preexisting works or passages therefrom into a new work; and

(17) other rights to be enjoyed by copyright owners.

Copyright owners may authorize others’ exercising of the rights provided for in Subparagraph (5) through Subparagraph (17) of the preceding paragraph and receive remuneration in accordance with the terms of contracts or the relevant provisions in this Law.

Copyright owners may transfer, wholly or in part, the rights provided for in Subparagraph (5) through Subparagraph (17) of the first paragraph in this Article and receive fees in accordance with the terms of contracts or the relevant provisions in this Law.

Section 2 Ownership of Copyright

Article 11 Except where otherwise provided for in this Law, the copyright in a work shall belong to its author.

The author of a work is the citizen who creates the work.

Where a work is created under the auspices and according to the intention of a legal entity or other organization, which bears responsibility for the work, the said legal entity or organization shall be deemed to be the author of the work.

The citizen, legal entity or other organization whose name is mentioned in connection with a work shall, in the absence of proof to the contrary, be deemed to be the author of the work.

Article 12 Where a work is created by adaptation, translation, annotation or arrangement of a preexisting work, the copyright in the work thus created shall be enjoyed by the adapter, translator, annotator or arranger, provided that the exercise of such copyright does not prejudice the copyright in the preexisting work..

Article 13 Where a work is created jointly by two or more authors, the copyright in the work shall be enjoyed jointly by the co-authors. No co-authorship may be claimed by anyone who has not participated in the creation of the work.

Where a work of joint authorship can be separated into parts and exploited separately, each co-author may be entitled to independent copyright in the part that he creates, provided that the exercise of such copyright does not prejudice the copyright in the joint work as a whole.

Article 14 A collection of preexisting works or passages therefrom, or of data or other material which does not constitute a work, if manifesting the originality of a work by reason of the selection or arrangement of its contents, is a compilation. The copyright in such compilation shall be enjoyed by the compiler, provided that the exercise of such copyright does not prejudice the copyright in the preexisting works.

Article 15 The copyright in a cinematographic work or in a work created by a process analogous to cinematography shall be enjoyed by the producer of the work, while its scriptwriter, director, cameraman, lyricist, composer and other authors shall enjoy the right of authorship therein and shall be entitled to receive remuneration in accordance with the terms of the contracts concluded between them and the producer.

The authors of the script, the musical works and the other works which are included in a cinematographic work or in a work created by a process analogous to cinematography and which can be exploited separately shall be entitled to exercise their copyright independently.

Article 16 A work created by a citizen in the fulfillment of tasks assigned to him by a legal entity or other organization is a work created in the course of employment. Subject to the provisions of the second paragraph of this Article, the copyright in such work shall be enjoyed by the author; however, the legal entity or other organization shall have priority to exploit the work within the scope of its professional activities. Within two years after the completion of the work, the author may not, without the consent of the legal entity or other organization, authorize the exploitation of the work by a third party in the same manner as the legal entity or other organization exploits the work.

In any of the following cases, the author of a work created in the course of employment shall enjoy the right of authorship, while the legal entity or other organization shall enjoy the other rights included in the copyright and may reward the author:

(1) drawings of engineering designs and product designs, maps, computer software and other works which are created in the course of employment mainly with the material and technical resources of the legal entity or other organization and for which the legal entity or other organization bears responsibility;

(2) works created in the course of employment the copyright in which is, in accordance with laws, administrative regulations or contracts, enjoyed by the legal entity or other organization.

Article 17 The ownership of t
he copyright in a commissioned work shall be agreed upon in a contract between the commissioning and the commissioned parties. In the absence of such a contract or of an explicit agreement in such a contract, the copyright in the work shall belong to the commissioned party.

Article 18 The transfer of ownership of the original copy of a work of the fine arts or other works shall not be deemed to include the transfer of the copyright in such work or works; however, the right to exhibit the original copy of the work of the fine arts shall be enjoyed by the owner of the original copy.

Article 19 Where the copyright in a work belongs to a citizen, the rights as provided for in Subparagraph (5) through Subparagraph (17) of the first paragraph in Article 10 of this Law in respect of the work shall, after his death and during the term of protection provided for in this Law, be transferred in accordance with the provisions of the Law of Succession.

Where the copyright in a work belongs to a legal entity or other organization, the rights provided for in Subparagraph (5) through Subparagraph (17) of the first paragraph in Article 10 of this Law shall, after the change or the termination of the status of the legal entity or other organization and during the term of protection provided for in this Law, be enjoyed by the succeeding legal entity or other organization which takes over the former’s rights and obligations, or, in the absence of such succeeding entity or organization, by the State.

Section 3 Term of Protection for the Rights

Article 20 No time limit shall be set on the term of protection for an author’s rights of authorship and revision and his right to protect the integrity of his work.

Article 21 In respect of a work of a citizen, the term of protection for the right of publication and the rights as provided for in Subparagraph (5) through Subparagraph (17) of the first paragraph in Article 10 of this Law shall be the lifetime of the author and fifty years after his death, expiring on December 31 of the fiftieth year after his death. In the case of a work of joint authorship, the term shall expire on December 31 of the fiftieth year after the death of the last surviving author.

In respect of a work of a legal entity or other organization or a work which is created in the course of employment and the copyright (except the right of authorship) in which is enjoyed by a legal entity or other organization, the term of protection for the right of publication and the rights as provided for in Subparagraph (5) through Subparagraph (17) of the first paragraph in Article 10 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such work; however, such work shall no longer be protected under this Law if it is not published within fifty years after the completion of its creation.

In respect of a cinematographic work, a work created by a process analogous to cinematography or a photographic work, the term of protection for the right of publication and the rights as provided for in Subparagraph (5) through Subparagraph (17) of the first paragraph in Article 10 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such work; however, such work shall no longer be protected under this Law if it is not published within fifty years after the completion of its creation.

Section 4 Limitations on Rights

Article 22 In the following cases, a work may be used without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work are mentioned and the other rights enjoyed by the copyright owner in accordance with this Law are not prejudiced:

(1) use of another person’s published work for purposes of the user’s own personal study, research or appreciation;

(2) appropriate quotation from another person’s published work in one’s own work for the purpose of introducing or commenting a certain work, or explaining a certain point;

(3) unavoidable inclusion or quotation of a published work in the media, such as in a newspaper, periodical and radio and television program, for the purpose of reporting current events;

(4) publishing or rebroadcasting by the media, such as a newspaper, periodical, radio station and television station, of an article published by another newspaper or periodical, or broadcast by another radio station or television station, etc. on current political, economic or religious topics, except where the author declares that such publishing or rebroadcasting is not permitted;

(5) publishing or broadcasting by the media, such as a newspaper, periodical, radio station and television station of a speech delivered at a public gathering, except where the author declares that such publishing or broadcasting is not permitted;

(6) translation, or reproduction in a small quantity of copies of a published work by teachers or scientific researchers for use in classroom teaching or scientific research, provided that the translation or the reproductions are not published for distribution;

(7) use of a published work by a State organ to a justifiable extent for the purpose of fulfilling its official duties;

(8) reproduction of a work in its collections by a library, archive, memorial hall, museum, art gallery, etc. for the purpose of display, or preservation of a copy, of the work;

(9) gratuitous live performance of a published work, for which no fees are charged to the public, nor payments are made to the performers;

(10) copying, drawing, photographing or video-recording of a work of art put up or displayed in an outdoor public place;

(11) translation of a published work of a Chinese citizen, legal entity or other organization from Han language into minority nationality languages for publication and distribution in the country; and

(12) transliteration of a published work into braille for publication.

The provisions of the preceding paragraph shall be applicable also to the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations.

Article 23 Except where the author declares in advance that use of his work is not permitted, passages from a work, a short written work, musical work, a single work of the fine arts or photographic work which has been published may, without permission from the copyright owner, be compiled in textbooks for the purpose of compiling and publishing textbooks for the nine-year compulsory education and for national education planning, provided that remuneration is paid, the name of the author and the title of the work are mentioned, and the other rights enjoyed by the copyright owner in accordance with this Law are not prejudiced.

The provisions of the preceding paragraph shall be applicable also to the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations.

Chapter III Copyright Licensing and Transfer Contracts

Article 24 Anyone who exploits another person’s work shall conclude a copyright licensing contract with the copyright owner, except where no permission need be obtained under this Law
.

A licensing contract shall include the following main points:

(1) the category of the right to exploit the work covered by the license;

(2) the exclusive or non-exclusive nature of the right to exploit the work covered by the license;

(3) the territory and the term covered by the license;

(4) the rates of remuneration and the means of payment;

(5) the liabilities in the case of breach of the contract; and

(6) other matters which the parties consider it necessary to agree upon.

Article 25 Anyone who transfers any of the rights provided for in Subparagraph (5) through Subparagraph (17) of the first paragraph in Article 10 of this Law shall conclude a written contract.

A copyright transfer contract shall include the following main points:

(1) the title of the work;

(2) the category of the right to be transferred and the territory covered by the transfer;

(3) the rates of the transfer fee;

(4) the date and the means of payment of the transfer fee;

(5) the liabilities in the case of breach of the contract; and

(6) other matters that the parties consider it necessary to agree upon.

Article 26 The other party may not, without permission from the copyright owner, exercise any right that is not explicitly licensed or transferred by the copyright owner in the contract.

Article 27 The rates of remuneration for the exploitation of a work may be agreed upon by the parties and may also be paid in accordance with the rates fixed by the administrative department for copyright under the State Council in conjunction with the other departments concerned. In the absence of an explicit agreement in the contract, the remuneration shall be paid in accordance with the rates fixed by the said department under the State Council in conjunction with the other departments concerned.

Article 28 No publishers, performers, producers of sound recordings and video recordings, radio stations, television stations, etc. that exploit another person’s work in accordance with the relevant provisions of this Law may infringe upon the authors’ rights of authorship, revision or protection of the integrity of the works, or their right to remuneration.

Chapter IV Publication, Performance, Sound Recording, Video Recording and Broadcasting

Section 1 Publication of Books, Newspapers and Periodicals

Article 29 A book publisher who intends to publish a book shall conclude a publishing contract with, and pay remuneration to, the copyright owner.

Article 30 The exclusive right enjoyed by the book publisher in accordance with the agreement in the contract to publish a work that the copyright owner delivered to him for publishing shall be protected by law, and the work may not be published by others.

Article 31 The copyright owner shall deliver the work within the term specified in the contract. The book publisher shall publish the work in compliance with the quality requirements and within the term as specified in the contract.

The book publisher who fails to publish the work within the term specified in the contract shall bear civil liabilities provided for in Article 53 of this Law.

When the book publisher reprints or republishes the work, it shall notify the copyright owner of the matter and pay remuneration to him. If the publisher refuses to reprint or republish the work when the stock of the book is exhausted, the copyright owner shall have the right to terminate the contract.

Article 32 Where a copyright owner has submitted the manuscript of his work to a newspaper or periodical publisher for publication and has not received, within 15 days from the newspaper or within 30 days from the periodical publisher, counted from the date of submission of the manuscript, any notification of the said newspaper’s or publisher’s decision to publish the work, the copyright owner may submit the manuscript of the same work to another newspaper or periodical publisher for publishing, unless the parties have agreed otherwise.

Except where the copyright owner declares that no reprinting or excerpting of his work is permitted, a newspaper or periodical publisher may, after the work is published by another newspaper or periodical publisher, reprint the work or print an abstract of it or print it as reference material, provided that remuneration is paid to the copyright owner in accordance with relevant regulations.

Article 33 A book publisher may, with the permission of the author, revise or abridge the work.

A newspaper or periodical publisher may make editorial modifications and abridgments in the language of a work. Any revision in the contents of the work shall be subject to permission by the author.

Article 34 When publishing a work created by adaptation, translation, annotation, arrangement or compilation of a preexisting work, the publisher shall obtain permission from, and pay remuneration to, both the owner of the copyright in the work created by adaptation, translation, annotation, arrangement or compilation and the owner of the copyright in the preexisting work.

Article 35 A publisher shall have the right to permit another person to exploit, or prohibit such person from exploiting, the typographical design of the book or the periodical which he publishes.

The term of protection for the right specified in the preceding paragraph shall be ten years, expiring on December 31 of the tenth year after the first publication of the book or the periodical in which the typographical design is used.

Section 2 Performance

Article 36 A performer (an individual performer or a performing group) who exploits, for a performance, a work created by another person shall obtain permission from, and pay remuneration to, the copyright owner. Where a performance is organized by a person, the organizer shall obtain permission from, and pay remuneration to, the copyright owner.

Anyone who exploits, for a performance, a work created by adaptation, translation, annotation or arrangement of a preexisting work shall obtain permission from, and pay remuneration to, both the owner of the copyright in the work created by adaptation, translation, annotation or arrangement and the owner of the copyright in the preexisting work.

Article 37 A performer shall, in respect of his performance, enjoy the following rights:

(1) to claim performership;

(2) to protect the image inherent in his performance from distortion;

(3) to authorize others’ live broadcasting or communicating to the public of his performance, and receive remuneration therefrom;

(4) to authorize others’ making of sound recordings and video recordings of his performance, and receive remuneration therefrom;

(5) to authorize others’ reproduction and distribution of the sound recordings and video recordings of his performance, and receive remuneration therefrom
; and

(6) to authorize others’ making of his performance available to the public through information network, and receive remuneration therefrom.

A person who is authorized exploitation of a work in the manner provided for in Subparagraph (3) through Subparagraph (6) of the preceding paragraph shall, in addition, obtain permission from, and pay remuneration to, the copyright owner.

Article 38 No time limit shall be set on the term of protection for the rights provided for in Subparagraphs (1) and (2) of the first paragraph in Article 37 of this Law.

The term of protection for the rights provided for in Subparagraph (3) through Subparagraph (6) of the first paragraph in Article 37 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the performance takes place.

Section 3 Sound Recording and Video Recording

Article 39 A producer of sound recordings or video recordings who exploits, for making a sound recording or video recording, a work created by another person shall obtain permission from, and pay remuneration to, the copyright owner.

A producer of sound recordings or video recordings who exploits a work created by adaptation, translation, annotation or arrangement of a preexisting work shall obtain permission from, and pay remuneration to, both the owner of the copyright in the work created by adaptation, translation, annotation or arrangement and the owner of the copyright in the preexisting work.

A producer of sound recordings who exploits, for making a sound recording, a musical work of which a lawful sound recording has been made, may do without permission from the copyright owner, but shall, in accordance with regulations, pay remuneration to the copyright owner; no such work may be exploited where the copyright owner declares that exploitation is not permitted.

Article 40 When making a sound recording or video recording of a performance, the producer shall conclude a contract with, and pay remuneration to, the performer.

Article 41 The producer of a sound recording or video recording shall enjoy the right to authorize others’ reproducing, distributing or renting the sound recording or video recording or making it available to the public through information network and to receive remuneration therefrom. The term of protection for such right shall be fifty years, expiring on December 31 of the fiftieth year after the first completion of the recording.

Anyone who is authorized reproducing or distributing a sound recording or video recording or making it available to the public through information network shall, in addition, obtain permission from, and pay remuneration to, both the copyright owner and the performer.

Section 4 Broadcasting by a Radio Station or Television Station

Article 42 A radio station or television station that broadcasts an unpublished work created by another person shall obtain permission from, and pay remuneration to, the copyright owner.

A radio station or television station that broadcasts a published work created by another person may do without permission from, but shall pay remuneration to, the copyright owner.

Article 43 A radio station or television station that broadcasts a published sound recording may do without permission from, but shall pay remuneration to, the copyright owner, unless the parties have agreed otherwise. Specific measures in this regard shall be formulated by the State Council.

Article 44 A radio station or television station shall have the right to prohibit the following acts performed without its permission:

(1) broadcasting its programs; and

(2) making a sound recording or video recording of its programs and reproducing such recording.

The term of protection for the right specified in the preceding paragraph shall be fifty years, expiring on December 31 of the fiftieth year after the first broadcasting of a program.

Article 45 A television station that intends to broadcast a cinematographic work or a work created by a process analogous to cinematography, or a video recording produced by another person, shall obtain permission from, and pay remuneration to, the producer; in the case of a video recording, the television station shall, in addition, obtain permission from, and pay remuneration to, the copyright owner.

Chapter V Legal Liabilities and Enforcement Measures

Article 46 Anyone who commits any of the following acts of infringement shall, depending on the circumstances, bear civil liabilities such as ceasing the infringement, eliminating the bad effects of the act, making an apology or paying compensation for damages:

(1) publishing a work without permission of the copyright owner;

(2) publishing a work of joint authorship as a work created solely by oneself, without permission of the other co-authors;

(3) having one’s name mentioned in another person’s work in the creation of which one has taken no part, in order to seek personal fame and gain;

(4) distorting or mutilating a work created by another person;

(5) plagiarizing a work created by another person;

(6) exploiting a work for exhibition or film-making or in a manner analogous to film-making, or for adaptation, translation, annotation, or for other purposes, without permission of the copyright owner, except where otherwise provided for in this Law;

(7) exploiting a work created by another person without paying remuneration as one should;

(8) renting a cinematographic work or a work created by a process analogous to cinematography, computer software, or products of sound recording or video recording, without permission of the copyright owner or the owner of the rights related to the copyright, except where otherwise provided for in this Law;

(9) exploiting the typographical design of a published book or periodical, without permission of the publisher;

(10) live broadcasting, communicating to the public, or recording a performance, without permission of the performer; or

(11) committing other acts infringing upon the copyright and the rights related to the copyright.

Article 47 Anyone who commits any of the following acts of infringement shall, depending on the circumstances, bear civil liabilities such as ceasing the infringement, eliminating the bad effects of the act, making an apology or paying compensation for damages; where public rights and interests are impaired, the administrative department for copyright may order the person to discontinue the infringement, confiscate his unlawful gains, confiscate or destroy the copies produced through infringement, and may also impose a fine; where the circumstances are serious, the said department may, in addition, confiscate the material, tools and instruments mainly used to produce copies through infringement; and where a crime is constituted, criminal liabilities shall be investigated in accordance with law:

(1) reproducing, distributing, performing, presenting, broadcasting, compiling a work or making it available to the public through in
formation network, without permission of the copyright owner, except where otherwise provided for in this Law;

(2) publishing a book the exclusive right of publication in which is enjoyed by another person;

(3) reproducing or distributing a sound recording or video recording of a performance, or making a performance available to the public through information network, without permission of the performer, except where otherwise provided for in this Law;

(4) reproducing or distributing a product of sound recording or video recording or making it available to the public through information network, without permission of the producer, except where otherwise provided for in this Law;

(5) rebroadcasting a radio or television program or reproducing such a program without permission, except where otherwise provided for in this Law;

(6) intentionally circumventing or sabotaging the technological measures adopted by a copyright owner or an owner of the rights related to the copyright to protect the copyright or the rights related to the copyright in the work or the products sound recording or video recording, without permission of the owner, except where otherwise provided for in laws or administrative regulations;

(7) intentionally removing or altering any electronic rights management information attached to a copy of a work, a product of sound recording or video recording, etc. without permission of the copyright owner or the owner of the rights related to the copyright, except where otherwise provided for in this Law; or

(8) producing or selling a work the authorship of which is counterfeited.

Article 48 Anyone who infringes upon the copyright or a right related to the copyright shall pay compensation for the actual losses suffered by the right owner, or where the actual losses are difficult to calculate, pay compensation to the amount of the unlawful gains of the infringer. The compensation shall include the reasonable expenses that the right owner has paid for putting a stop to the infringement.

Where the actual losses of the right owner or the unlawful gains of the infringer cannot be determined, the People’s Court shall, in light of the circumstances of the infringement, decide on a compensation amounting to not more than 500,000 RMB yuan.

Article 49 Where a copyright owner or an owner of a right related to the copyright who can present evidence to prove that another person is committing, or is about to commit, an infringement upon his right, which, unless prevented promptly, is likely to cause irreparable harm to his legitimate rights and interests, he may, before taking legal proceedings, apply to a People’s Court for measures to order discontinuation of the infringement and to preserve property.

When dealing with the application specified in the preceding paragraph, the People’s Court shall apply the provisions in Article 93 through Article 96 and Article 99 of the Civil Procedure Law of the People’s Republic of China.

Article 50 In order to prevent infringement, a copyright owner or an owner of a right related to the copyright may, before taking legal proceedings, apply to a People’s Court for preserving evidence, where the evidence is likely to be missing or is difficult to obtain later.

After accepting the application, the People’s Court shall make a ruling within 48 hours. Where it rules to adopt preservation measures, it shall have the measures enforced immediately.

The People’s Court may order the applicant to provide a guarantee, and shall reject the application where the applicant fails to do so.

Where the applicant fails to take legal proceedings within 15 days from the date the People’s Court adopts the preservation measure, the People’s Court shall terminate the measure.

Article 51 When trying a case where the copyright or a right related to it is infringed upon, the People’s Court may rule to confiscate the unlawful gains, the products of infringement and money and things of value used for illegal activities.

Article 52 A publisher or a producer of reproductions who fails to prove that he is legally authorized publishing or producing of the reproductions, or a distributor of reproductions or a renter of reproductions of a cinematographic work or a work created by a process analogous to cinematography, computer software, sound recording or video recording who fails to prove the legal source of the reproductions that he distributes or rents, shall bear legal liabilities.

Article 53 Any party who fails to perform his contractual obligations, or performs them at variance with the agreed conditions in the contract, shall bear civil liabilities in accordance with the relevant provisions of the General Principles of the Civil Law of the People’s Republic of China, the Contract Law of the People’s Republic of China and other related laws.

Article 54 Any dispute over copyright may be settled through mediation, it may also be submitted to an arbitration body for arbitration under a written arbitration agreement between the parties or under the arbitration clause in the copyright contract.

Any party may take legal proceedings directly in a People’s Court where there is neither a written arbitration agreement between the parties nor an arbitration clause in the contract.

Article 55 Any party that is not satisfied with an administrative penalty, may taking legal proceedings in a People’s Court within three months from the date he receives the written decision on the penalty. Where the party neither takes legal proceedings nor implements the decision at the expiration of the time limit, the administrative department for copyright may apply to the People’s Court for enforcement.

Chapter VI Supplementary Provisions

Article 56 The term zhuzuoquan (copyright) as used in this Law means banquan commonly used in the country.

Article 57 The term publish as used in Article 2 of this Law means reproducing and distributing of a work.

Article 58 Measures for the protection of computer software and of the right of communication through information network shall be formulated separately by the State Council.

Article 59 The rights of copyright owners, publishers, performers, producers of sound recordings and video recordings, radio stations and television stations, as provided for in this Law, shall, if the term of their protection specified in this Law has not yet expired on the date this Law goes into effect, be protected in accordance with this Law.

Any act of tort or breach of contract committed prior to the date this Law goes into effect shall be dealt with in accordance with the relevant regulations or policies in force at the time when such act was committed.

Article 60 This Law shall go into effect on June 1, 1991.
============================================

Regulation on the Implementation of the Copyright Law of the People’s Republic of China
 
Promulgation date: 08-02-2002
Effective date: 09-15-2002
Department: STATE COUNCIL OF CHINA
Subject: COPYRIGHT

——————————————————————————–
order of the State Council of the People’s Republic of China (No. 359)

The Regulation on the Implementation of the Copyright Law of the People’s Republic of China is hereby promulgated for implementation as of September 15, 2002.

Zhu Rongji, Premier of the State Council
August 2, 2002

Regulation on the Implementation of the Copyright Law of the People’s Republic of China

Article 1 The present Regulation has been enacted on the basis of the Copyright Law of the People’s Republic of China (hereafter “the Copyright Law”).

Article 2. The term "works" used in the Copyright Law refers to original intellectual creations in the literary, artistic and scientific domain, in so far as they are capable of being reproduced in a certain tangible form.

Article 3. The term "creation" mentioned in the Copyright Law refers to intellectual activities from which literary, artistic and scientific works are directly resulted.
The making of arrangement and the provision of consultation, material means or supporting service, done for others in their creating activities, shall not be deemed as acts of creating.

Article 4 Definitions of the following works mentioned in the Copyright Law and the present Regulation are:
(1) Written works are works expressed in writing, such as novels, poems, pieces of prose and treatises;
(2) oral works are works, such as impromptu speeches, lectures and court debates, which are created in spoken language;
(3) Musical works are works, with or without accompanying words, which can be sung or performed, such as songs and symphonies;
(4) Dramatic works are works, such as dramas, operas and local art forms, which are created for stage performance;
(5) Qu Yi works are works created mainly for performance in a way involving recitation, singing, or both, such as xiangsheng (cross talk), kuaishu (clapper talk), dagu (story singing with the accompaniment of a small drum) and pingshu (story telling);
(6) Choreographic works are works which express ideas and emotions by means of successive body movements, gestures and facial movements;
(7) Acrobatic works are works which are expressed through shapes and acts of body and other skills, such as acrobatics, magic, circus, etc.
(8) Works of fine art are two- or three-dimensional works created in lines, colors or other medium which, when being viewed, impart esthetic effects, such as paintings, works of calligraphy, sculptures, etc.;
(9) Architectural works are works that are represented by buildings or forms of buildings and that, when viewed, could impart esthetic effects;
(10) Photographic works are the kind of artistic works created by recording the images of objective objects on light-sensitive materials or other media with the aid of devices;
(11) Cinematographic works and works created by methods similar to producing movies refer to those that are created by shooting on some medium and that consist of a series of frames of images, with or without accompanying sound, and can be screened with the aid of devices or transmitted by other means;
(12) Works of drawing include engineering designs and product designs created for the purpose of constructions and productions and atlases or sketch maps that show geographic phenomena or demonstrate the elements or structures of things;
(13) Model works are three-dimensional works that are created in certain proportions according to the shapes and structures of objects for the purpose of demonstration, experiment or observation, etc.

Article 5 Definitions of the following terms as mentioned in the Copyright Law and the present Regulation are:
(1) News of current events refers to the mere report of facts or happenings conveyed by mass media including newspapers, periodicals and radios and television stations, etc.;
(2) Sound recordings are the recordings of any sounds performed or other sounds;
(3) Video recordings are recordings of a series of related images or pictures, with or without accompanying sounds, other than cinematographic works and works that are created by ways similar to shooting movies;
(4) Producer of sound recordings refers to the original producer of the sound recordings;
(5) Producer of video recordings refers to the original producer of the video recordings;
(6) Performer refers to actors or acting entities or other persons who perform literary and artistic works.

Article 6 Copyright originates as of the day when the creation of a work is completed.

Article 7 The works of foreigners or stateless persons that are published for the first time without the territory of China as mentioned in Article 2, Paragraph 3 of the Copyright Law shall be subject to protection on the day when they are published for the first time.

Article 8 Where any of the works of any foreigner or stateless person is published within the territory of China within 30 days after being published for the first time without the territory of China, it shall be deemed as being published within the territory of China simultaneously.

Article 9 The copyright to co-authored works that cannot be used piecemeal shall be shared by the co-authors and exercised through negotiations. Where an agreement fails and there is no good reason, no co-author may stop any other co-author from exercising his rights other than assignment, but the gains acquired shall be shared by the co-authors in a reasonable way.

Article 10 Where the copyright owner has authorized the making of cinematographic works or works created in ways similar to shooting movies on the basis of his or her work, it shall be implied that he or she has granted permission to make necessary alterations to his or her work, in so far as such alteration does not distort or mutilate the original work.

Article 11 The term “work assignment” as used in Article 16, Paragraph 1 of the Copyright Law concerning assignment works refers to the duties that a citizen should fulfill for the legal person or organization.
The term “material and technical conditions” as mentioned in Article 16, Paragraph 2 of the Copyright Law concerning assignment works refers to the funds, equipments or materials specially provided by the legal person or organization for the citizen to complete the creation of the work.

Article 12 The remunerations that the author obtains from a third party by permit him to use his assignment work in similar ways as the entity uses it within two years after the work is completed and upon the consent of the entity where he works shall be shared by the entity according to the proportion as agreed upon by the author and the entity.
The aforementioned 2 years’ period after the creation of the work shall be calculated from the date on which the work concerned is submitted to the entity.

Article 13 In the case of a work of unknown authorship, the copyright thereof shall be exercised by the holder of the original copy of the work except the right of authorship. After the authorship has been ascertained, the copyright shall be exercised by the author or the heirs thereof.

Article 14 Where any of the coauthors dies and the copyright thereof as mentioned in Article 10, Paragraph 1, Items 5 through 17 of the Copyright Law which there is no one to inherit or to be bequeathed, it shall be enjoyed by other coauthors.

Article 15 The right of authorship, the right of revision and the right of keeping the integrity of the work shall, after the author dies, be protected by the inheritor or bequeathed.
In the absence of inheritors or bequeathed, right of authorship, right of revision and right of keeping the integrity of the work shall be protected by the copyright administrative authority.

Article 16 The copyright enjoyed by the State shall be enforced by the copyright administrative authority on behalf of the State.

Article 17 In the case of posthumous works, the right of publication may be exercised by the inheritor or the bequeathed within 50 years after the author’s death if the author has not explicitly expressed that the work shall not be published. In the absence of any inheritor of bequeathed, the said right may be exercised by the lawful holder of the original work.

Article 18 In the case of a work of unknown authorship, the term of protection of the rights as provided in Article 10, Paragraph 1, Items 5 through 17 of the Copyright Law, shall be 50 years ending on December 31 of the fiftieth year after the first publication of the work. The provisions of Article 21 of the Copyright Law shall be applicable after authorship of the work has been ascertained.

Article 19 When using other author’s work, the name of the author and the title of the work shall be specified unless it has been otherwise agreed upon by the parties concerned or it cannot be specified due to the peculiarity of the way of use.

Article 20 The term “published work” as mentioned in the Copyright Law refers to a work which has been made known to the public by the holder of copyright or by permission.

Article 21 According to the relevant provisions of the Copyright Law, the use of any published work for which it is permitted not to obtain the permission of the holder of copyright shall not affect the normal use of the work, and shall not unreasonably impair the lawful rights of the holder of copyright.

Article 22 The rate of royalties for the use of work in ways as provided in Articles 23, 32 (2), and 39 (3) of the Copyright Law shall be formulated and promulgated by the administrative authority of copyright under the State Council in collaboration with the administrative authority of price affairs under the State Council.

Article 23 For the use of other author’s work, agreements for permitted use of work shall be concluded with the holder of copyright. Where the permitted use right is an exclusive one, the agreement shall be in writing, however, with the exception of the works published in newspapers and magazines.

Article 24 The exclusive use as provided in Article 24 of the Copyright Law shall be subject to the stipulations of agreements. If it is not stipulated or not clearly stipulated in any agreement, it shall be deemed that the party permitted shall have the right to exclude any one including the holder of copyright to use the work in the same ways as he does. Unless it is otherwise stipulated in the contract, the party permitted must obtain the permission of the holder of copyright before permitting any third party to exercise the same right.

Article 25 The contracts concluded with the holder of copyright for the exclusive use or transfer of the work may be submitted to the administrative authority of copyright for archivist purposes.

Article 26 The term “copyright-related rights” as mentioned in the Copyright Law and the present Regulation mean the right enjoyed by publishers as to the format design of the books and magazines published thereby, the right enjoyed by performers as to their performances, the right enjoyed by producers of audio and video recordings as to their products of audio-video recordings, and the rights enjoyed by radio and television stations as to the programs in their broadcasts.

Article 27 The publishers, performers, producers of audio-video recordings, broadcasting and televisions stations shall not, in their exercise of rights, infringe upon the rights of the holder of copyright to the works used and the original work.

Article 28 Where it is stipulated in the contract for publishing books that the publisher has the right to publication but such right is not specified in detail, it shall be deemed that the publisher has the exclusive right to publish the original or revised versions of the book in the same languages within the valid term of the contract and within the geographic areas as stipulated in the contract.

Article 29 Where two orders of the copyright holder sends to the publisher have not been performed within 6 months, it shall be deemed as the sellout as mentioned in Article 31 of the Copyright Law.

Article 30 Where the holder of copyright announces that his work may not be reprinted or compiled in extracts according to Article 32, Paragraph 2 of the Copyright Law, he shall make the announcement in the newspaper or magazine when the work is published.

Article 31 Where the holder of copyright announces that no audio recordings may be made to his work as pursuant to Article 39, Paragraph 3 of the Copyright Law, he shall make the announcement when the work is lawfully made into a product of audio recordings.

Article 32 According to the provisions of Articles 23, 32 (b), 39 (c) of the Copyright Law, for any use of the work of any other person, payment of royalty shall be made to the holder of copyright within 2 months after the work is used.

Article 33 Performances of foreigners and stateless persons within the People’s Republic of China shall be subject to the protection of the Copyright Law.
The right which a foreigner or stateless person enjoys in his performances according to the international treaties to which China has acceded to shall be subject to the protection of the Copyright Law.

Article 34 The audio recordings produced or published by a foreigner or stateless person within the territory of the People’s Republic of China shall be subject to the Copyright Law.
The rights that a foreigner or stateless person enjoys in the audio recordings he produces or publishes according to the international treaties to which China has acceded to shall be subject to the Copyright Law.

Article 35 The rights that a foreign radio broadcasting station or television station enjoys in any of its programs according to the international treaties to which China has acceded to shall be subject to the protection of the Copyright Law.

Article 36 For any of the tortious acts as mentioned in Article 47 of the Copyright Law which at the same time injures the social public good, a fine of up to three times the illegal proceeds shall be imposed upon the tort-feasor by the administrative authority of copyright. If it is not easy to calculate the illegal proceeds, a fine of up to 100,000 yuan may be imposed upon the tort-feasor.

Article 37 Any tortious act as mentioned in Article 47 of the Copyright Law that injures the social public good at the same time shall be investigated and punished by the administrative authority of copyright under the local people’s government.
The administrative department of copyright under the State Council may investigate and punish a tortious act of national influence.

Article 38 The present Regulation shall come into force as of September 15, 2002. The Regulation for the Implementation of the Copyright Law of the People’s Republic of China which was ratified by the State Council on May 24, 1991 and promulgated by the State Copyright Administration on May 30, 1991 shall be concurrently be repealed.
 

垃圾广告骚扰郑老师

  今天写东西参考到郑成思老师的书,想起他过早地走了,不免又有点难过,随手翻了一下我blog上有关他去世的日志,点进悼念留言中,却发现里面从第215页开始到第296页,充斥着垃圾广告。。。。唉,这个垃圾广告,不能靠技术手段(道高一尺,魔高一丈),只能靠法律制裁——很简单,根据现在的广告法,这些广告全都没有广告许可证,只要是商业广告,就应该行政处罚。再联想起采用Opt-In原则的中国反SPAM立法,难道又是了一个“高标准、难要求”的摆设?工商局招不招人?给我台上网的电脑和官袍,我帮你们挣罚款……

 

  今天写东西参考到郑成思老师的书,想起他过早地走了,不免又有点难过,随手翻了一下我blog上有关他去世的日志,点进悼念留言中,却发现里面从第215页开始到第296页,充斥着垃圾广告。。。。唉,这个垃圾广告,不能靠技术手段(道高一尺,魔高一丈),只能靠法律制裁——很简单,根据现在的广告法,这些广告全都没有广告许可证,只要是商业广告,就应该行政处罚。再联想起采用Opt-In原则的中国反SPAM立法,难道又是了一个“高标准、难要求”的摆设?工商局招不招人?给我台上网的电脑和官袍,我帮你们挣罚款……

 

Case: No fault even mis-lading goods

 Case Name:

New National Assurance Company Limited Vs. Shanghai RIJIN-TOP Express International Forwarding Co., Ltd.
 
Citation:
Shanghai Maritime Court of PRC (SMC), Civil Judgment (2004) TMC (Chu) No. 492
Judges: Xin Hai (C. J.), Qian Xu, Sun Ying-wei
Date: 21 April 2005
 
Rules:
If the shipper did not notified the carrier the special features of the goods, the carrier should not be liable to the damages even there was an inappropriate lading by the carrier and/or his employees for no fault were found in the case.
 

Case Name:
New National Assurance Company Limited Vs. Shanghai RIJIN-TOP Express International Forwarding Co., Ltd.
 
Citation:
Shanghai Maritime Court of PRC (SMC), Civil Judgment (2004) TMC (Chu) No. 492
Judges: Xin Hai (C. J.), Qian Xu, Sun Ying-wei
Date: 21 April 2005
 
Parties:
Plaintiff: New National Assurance Company Limited
Domicile: 5th Floor, 25Field Street, Durban 4001, South Africa
Legal person: Dawn Bachan, Legal Advisor
Agent: Wang Wei-zhong, JinMao Law Firm
Defendant: Shanghai RIJIN-TOP Express International Forwarding Co., Ltd.
Domicile: Hu Qing Ping Rd. 4502,
Legal Person: Qian Wei-xiang, Board Chairman
Agent: Yang Xiao-jun, Guang Da Law Firm
 
Summary of Facts:
On 15 September 2003, the defendant issued a Bill of Lading (B/L) numbered as DNB030909. Shipper: Auto Best Co. Ltd.; Consignee and Notify Party: Danny’s Automotive Company; Cargo: Spare Tools and Accessories; No. of Pieces: 1,183 (Container GATU8063730); Port of Lading: Ning Bo, China; Destination: Johannesburg; Shipment: KOTA WAJAR 087; Freight to Collect.
 
According to a Marine Cargo Transportation Insurance Contract (No. 2199080) between the plaintiff and a company named as Prologistics. Claimed by the plaintiff, as the agent of Danny’s Automotive Company, the Prologistics appeared as an insured party in the Contract. The plaintiff initiated the suit based on his subrogation rights, which valued as totally USD 67,874.76.
 
On 21 October 2003, the GATU8063730 was confirmed being totally lost in a fire in Sea Elegance (ship name). The report by Maritime Security Bureau of South Africa testified that a container with 20 tons of Calcium Hypochlorite (hereinafter CH) was not declared and labeled as dangerous cargo in Singapore, which made it did not be laded appropriately and eventually exploded. The CH container was loaded in the bottom floor of larboard, beside the H.O. container. In the same cabin, there are containers of plastics, rubber and paper based cargos, and the next cabin is engine room. In International Maritime Dangerous Goods Code (IMDG), CH is listed as the dangerous goods (No. 1748, level 5.1). According to the regulations issued by UN Maritime organization on IMDG, this kind of dangerous shipping unit shall be laded on the deck cabin, avoiding sunniness and heat sources; packages should be stacked reasonably allowing enough ventilation. The International Salvage Union and International Group of P&I suggested that the CH can only be laded on the deck; the chemical cargos shall be packed by drums that each contains no more than 45 kilogram; if the air temperature average out 35 Celsius, the shipper should take measures to restrain temperature of the container of No. 1748 cargos in IMDG, or each container should not contain those goods over 14 tons. The investigation has appeared that in a circumstance of temperature over 35 Celsius, the CH will turns unstable and is quite possible to build a fire or an explosion. Experts made a consensus that the explosion and fire in Sea Elegance was caused by the unstable CH in the circumstance of an over 35 Celsius air temperature.
 
Decision:
Reject the plaintiff’s request. The judge cited article 51 and article 269 of Maritime Code of the People’s Republic of China, as well as article 54 of the Civil Procedure Code of the People’s Republic of China.
 
Issues:
On what ground the shipper shall be exempted the obligation of damages?
 
Reasoning:
The accident is caused by the negligence of the CH’s consignor. He did not declare and label the container as the dangerous goods, which caused the ineligible lading and eventually resulted in fire and explosion. The consignors/shippers should be more aware of the features of the goods than carrier. They are obligated to remind carrier paying attention to the characters of the cargos and relative measures in preventing and dealing with possible accidents. If a shipper did not fulfill this obligation, he would be found responsible to the damages. In this case, the carrier laded the cargos unwittingly, so he and his employees have no negligence on the cause of the fire accident.
 
Even the lost of the goods were because of the inappropriate lading by the employees of the carrier, the plaintiff would not be obligated to the damages for there is a special rule in the legislations. According to the law [Article 51, Maritime Code of the People’s Republic of China, noted by translator], unless caused by the actual fault of the carrier, the carrier will not be liable for the loss of or damage to the goods occurred during the period of carrier’s responsibility arising or resulting from a fire. The evidences provided by the plaintiff did not testified the existence of the actual fault of the carrier himself, so carrier should be exempted to the responsibility to the damages of the fire accident. The plaintiff did not justify his request of the damages from the inappropriate lading.
 
Rules:
If the shipper did not notified the carrier the special features of the goods, the carrier should not be liable to the damages even there was an inappropriate lading by the carrier and/or his employees for no fault were found in the case.

Not LOG, But Publication: A Feature of Cn Blawgs

Title: Not BLOGs, But Publications: A Feature of Chinese Blawgsphere
Ver.:  1.1
Date: 20060624
By: Donnie H. DONG (http://blawgdog.com)
Licence: CC: by-nc-sa
For China Blawg Review Vol. 1 (Click here to JOIN US)

The number of Chinese blawgs  (NOT China Blawgs in English, BUT Blawgs in Chinese) is increasing in a geometrical rate. It is an impossible mission to surf all the blogs, so no one dare to say that he/she has grasped all the exactly features of Chinese blawgs, me neither. However, if you are a bilingual reader (Even not so fluent in Chinese or English, like me), and you are interested in the blawgsphere for a certain period (say, two months), I believe you may at least discover SOME characteristics of Chinese Blawgs, me either.

What I find in Chinese blawgs is: A good many of them are actually not "blogs" but  online academic magazines. The following list can be an empirical example, which is a part of the list of today’s "hot posts" in the index page of Law Blog (http://www.fyfz.cn), a well-known site providing blawg service. The topics are oringinally in Chinese, so I translated them roughly.

One Must Regard the People’s Indignation Seriously 
The Translation of Surya Prakash Sinha’s Jurisprudence (Part 83)
Deng Zheng Lai: Preface for Silhouettes of Chinese Lawyers in 100 Years (Author: Chen X. H.)
My Opinion on the Legislation of Lawyer’s Fee
A bit Coolness in this Hot Summer
A Discussion with Prof. Lin: On the Legislation of…
Beijing, What Makes You So Luxurious
Feelings during Supervising the theses
A Facet for Constructing in the Regime of Administrative Aidance
Some Ideas in Reading
The Distance to the Humanism in Our Legal Education
The Ideology of Entertainment
Constitution-Government-Market: A New Analytic Approach of Consti-Economic
Patents Will Never Be Unlawful Registered
The Rule of Law is the Base of the Democracy
A Benificial Attempt in the Study of Civil Law
The Issues on Gender and Minorites among the U.S. Legal Professionals
……

Most of the above topics are as serious as articles in law journals, and after clicking the links, one will find that the contents of the posts are mostly in very formal formats and with very academic tones. In my view, these posts are NOT LOGs, BUT PUBLICATIONs.

One may get further evidences of this feature easily. Academic theses with dozens of footnotes appeared frequently in Chinese blawgs. Some sites have been turned to be a collection of academic works: "blawggers" classified their "logs" with names of famous researchers, then uploaded bunches of those researchers’ academic achievements.

At the same time, some features of classical blogs are missing. While copy other’s articles entirely onto their sites, few Chinese blawggers employ copyright licences like those of Creative Commons (that means these blawgs reserved all their own right). The typical logs that embedded links navigating readers to further related web pages are rare. Chinese blawggers are not used to "log" what happens every day but keep uploading their (or others’) formal publications.

The owners of most popular Chinese blawgs are mainly researchers. Some famous law professors have their own blawgs, such as Deng Zheng-Lai, He Wei-fang, Lin Lai-fan, Xie Hui, etc. Among them, prof. Xie Hui and Prof. Lin Lai-fan’s blawg follow the suit of classical blogs: they post diaries, sentiments, scribbles and even poetries on their blawg site. But their style are not standing on the mainstream.

In another log, I will discuss why many Chinese blawgs represent themselves not logs but publications. Here gose the influences of this characteristic. To readers are looking for research materials, libraries are better than caffs. A researcher may find many useful references from Chinese blawgs and some times he even need not follow the links – blawggers copy the articles entirely! To readers are interested in Chinese lawyer’s life, however, they may feel disapointed. There are not so many practical cases as well as practice experiences be shared in Chinese blawgsphere. Solicitors, barristers and attoneys are still standing in the corners of the blawg club.

Title: Not BLOGs, But Publications: A Feature of Chinese Blawgsphere
Ver.:  1.1
Date: 20060624
By: Donnie H. DONG (http://blawgdog.com)
Licence: CC: by-nc-sa
For China Blawg Review Vol. 1 (Click here to JOIN US)

The number of Chinese blawgs  (NOT China Blawgs in English, BUT Blawgs in Chinese) is increasing in a geometrical rate. It is an impossible mission to surf all the blogs, so no one dare to say that he/she has grasped all the exactly features of Chinese blawgs, me neither. However, if you are a bilingual reader (Even not so fluent in Chinese or English, like me), and you are interested in the blawgsphere for a certain period (say, two months), I believe you may at least discover SOME characteristics of Chinese Blawgs, me either.

What I find in Chinese blawgs is: A good many of them are actually not "blogs" but  online academic magazines. The following list can be an empirical example, which is a part of the list of today’s "hot posts" in the index page of Law Blog (http://www.fyfz.cn), a well-known site providing blawg service. The topics are oringinally in Chinese, so I translated them roughly.

One Must Regard the People’s Indignation Seriously 
The Translation of Surya Prakash Sinha’s Jurisprudence (Part 83)
Deng Zheng Lai: Preface for Silhouettes of Chinese Lawyers in 100 Years (Author: Chen X. H.)
My Opinion on the Legislation of Lawyer’s Fee
A bit Coolness in this Hot Summer
A Discussion with Prof. Lin: On the Legislation of…
Beijing, What Makes You So Luxurious
Feelings during Supervising the theses
A Facet for Constructing in the Regime of Administrative Aidance
Some Ideas in Reading
The Distance to the Humanism in Our Legal Education
The Ideology of Entertainment
Constitution-Government-Market: A New Analytic Approach of Consti-Economic
Patents Will Never Be Unlawful Registered
The Rule of Law is the Base of the Democracy
A Benificial Attempt in the Study of Civil Law
The Issues on Gender and Minorites among the U.S. Legal Professionals
……

Most of the above topics are as serious as articles in law journals, and after clicking the links, one will find that the contents of the posts are mostly in very formal formats and with very academic tones. In my view, these posts are NOT LOGs, BUT PUBLICATIONs.

One may get further evidences of this feature easily. Academic theses with dozens of footnotes appeared frequently in Chinese blawgs. Some sites have been turned to be a collection of academic works: "blawggers" classified their "logs" with names of famous researchers, then uploaded bunches of those researchers’ academic achievements.

At the same time, some features of classical blogs are missing. While copy other’s articles entirely onto their sites, few Chinese blawggers employ copyright licences like those of Creative Commons (that means these blawgs reserved all their own right). The typical logs that embedded links navigating readers to further related web pages are rare. Chinese blawggers are not used to "log" what happens every day but keep uploading their (or others’) formal publications.

The owners of most popular Chinese blawgs are mainly researchers. Some famous law professors have their own blawgs, such as Deng Zheng-Lai, He Wei-fang, Lin Lai-fan, Xie Hui, etc. Among them, prof. Xie Hui and Prof. Lin Lai-fan’s blawg follow the suit of classical blogs: they post diaries, sentiments, scribbles and even poetries on their blawg site. But their style are not standing on the mainstream.

In another log, I will discuss why many Chinese blawgs represent themselves not logs but publications. Here gose the influences of this characteristic. To readers are looking for research materials, libraries are better than caffs. A researcher may find many useful references from Chinese blawgs and some times he even need not follow the links – blawggers copy the articles entirely! To readers are interested in Chinese lawyer’s life, however, they may feel disapointed. There are not so many practical cases as well as practice experiences be shared in Chinese blawgsphere. Solicitors, barristers and attoneys are still standing in the corners of the blawg club.