Order of the State Council of the People’s Republic of China (No.339)

The Regulations on the Protection of Computer Software is hereby promulgated and shall come into force on January 1, 2002

Prime Minister Zhu Rongji
December 20, 2001

 
Chapter 1 General Provisions

Article 1 In order to protect the rights and interests of the copyright owner of computer software, to regulate the interest relationships arising in the development, dissemination and use of computer software, to encourage the development and application of computer software and to promote the development of software industry and informationization of national economy, these Regulations are enacted in accordance with the Copyright Law of the People’s Republic of China.

Article 2 “Computer software” (hereinafter referred to as software) referred to in these Regulations means computer programs and the relevant documentation thereof.

Article 3 Meanings of the following terms used in these Regulations are:

1) Computer program: refers to the coded instructional sequences -- or those symbolic instructional sequences or numeric language sequences which can be automatically converted into coded instructional sequences -- which are for the purpose of obtaining a certain result and which are operated on information processing equipment such as computers.  The source code program of a piece of computer software and its object code program should be regarded as one work.
2) Documentation: refers to written materials and diagrams which are used to describe the contents, organization, design, functions and specifications, development circumstances, testing results and method of use of the program, for example: program design explanations, flow charts, user manuals, etc.
3) Software developers: refer to those legal persons or other organizations that actually organize the development, directly undertake the development, and take the responsibility for the software completed; or the natural persons who rely on their own conditions to complete the software and who take the responsibility for the software.
4) Software copyright owners: refer to those natural persons, legal persons or other organizations, in accordance with these Regulations, enjoying the copyright of computer software.

Article 4 Software that enjoys protection under these regulations must be independently developed by the developer and must already be in material form.

Article 5 Chinese citizens, legal persons or other organizations shall enjoy the copyright under these regulations for the software they have developed, regardless of whether it has been published.
Software of foreigners or stateless persons first published in China shall enjoy the copyright under these regulations.

Software of foreigners or stateless persons shall enjoy copyright in China and protection under these regulations according to a bilateral agreement signed between China and the country to which the developer belongs or in which the developer habitually resides, or according to an international treaty to which China is a party.

Article 6 The protection provided to software copyright under these regulations cannot be expanded to encompass the ideas, processing courses, operation methods or mathematical concepts, etc. used in the development of computer software.

Article 7 The software copyright owners may make registration at the software registration organs accredited by the administrative department of copyright under the State Council. The certificates of registration issued by the software registration organs shall be the preliminary certification of the registered matters.

One shall pay fees when making software registration. The charging standard for software registration shall be provided for by the administrative department of copyright under the State Council together with the department in charge of price under the State Council.

Chapter 2 Software Copyright

Article 8 Software copyright owners shall enjoy the following rights:

(1) Right of publication, is the right to decide whether the software should be released to the public;
(2) Right of authorship, is the right to indicate the developer's identity and to place his name on the software;
(3) Right of revision, is the right to supplement or abridge the software or to change the order of the instructions or language statements;
4) Right of duplication: is the right to make a copy or copies of the software;
5) Right of publishing: is the right to provide the original or the copies of the software to the public by selling or donation;
6) Right of lease: is the right to license others to use the software temporarily for remuneration, except that the software is not the main object of lease;
7) Right of dissemination on information networks: is the right to provide the software to the public by wire or wireless means, thus the public may acquire the software at the time and place chosen by themselves;
8) Right of translation: is the right to transform the original software from one natural language to another natural language;
9) Other rights that shall be enjoyed by the software copyright owners.

Software copyright owners may license others to exercise their software copyright and shall have the right to get remuneration.

Software copyright owners may transfer the whole of or a part of their software copyright and shall have the right to get remuneration.

Article 9 The copyright of a piece of software belongs to its developer, except as otherwise prescribed by these Regulations.

If there is no adverse proof, the natural person, legal person or other organization that places its name on the software shall be the developer.

Article 10 Where the software is developed jointly by 2 or more natural persons, legal persons, or other organizations, the ownership of the copyright of the software shall be agreed upon in a written contract signed by the co-developers.

If there is no written contract or if the matter is not clearly stipulated in the contract, and the jointly developed software can be used in separate parts, the co-developers can separately enjoy the copyright on the parts they developed, but during the exploitation of the copyright this may not be extended to the copyright of the jointly developed work in its entirety.

Where the jointly developed software cannot be used in separate parts, the co-developers shall enjoy the copyright of it jointly and exploit the copyright by consensus. If consensus cannot be reached, and in the absence of any unusual reasons, no party may prevent the other parties from implementing the exclusive rights, with the exception of the right of transfer to a third party. However, any benefits earned shall be fairly distributed among the co-developers.

Article 11 The copyright of software which is commissioned to be developed by another person, shall be governed by any written contract signed between the person who commissioned the work and the person who undertook the commission; if there is no written contract or if the matter is not clearly stipulated in the contract, the copyright shall be enjoyed by the person undertaking the commission.

Article 12 The ownership and exploitation of the copyright of software which is developed pursuant to tasks assigned by state organs shall be based on the stipulations contained in the project task document or contract; if the matter is not clearly stipulated in the project task document or contract, the copyright shall be enjoyed by the legal person or other organization that accepted the task.

Article 13 If the software developed by a natural person while working for a legal person or other organization is under any of the following circumstances, the copyright of that software shall be enjoyed by the said legal person or other organization, which may reward the natural person who developed the software:

1) Software developed in accordance with the clearly stipulated development goals for his post;
2) The software developed is the predictable or natural result of the activities involved in his post;
3) The development of the software mainly use the material and technological conditions of the legal person or other organization such as funds, special equipment, undisclosed special information, etc. and the legal person or other organization takes responsibility for that software.

Article 14 The software copyright shall come into being on the day of the completion of development.
For the software copyright of a natural person, the term of protection is the life time of the natural person and 50 years after his death, ending on the 31st of December of the fiftieth year after the death of the natural person; where the software is jointly developed, the term shall end on the 31st of December of the fiftieth year after the death of the last natural person.

For the software copyright of a legal person or other organization, the term of protection is 50 years, ending on the 31st of December of the fiftieth year after the first publication of the software, however, these Regulations will no longer protect the software if it hasn’t been published within 50 years since the completion of development.

Article 15 Where the software copyright belongs to a natural person, and after the natural person dies, the software copyright owner's heir may, during the term of software copyright protection and in accordance with the relevant provisions of the Inheritance Law of the People's Republic of China, inherit the rights provided for in Article 8 of these Regulations, excluding the right of authorship.

Where the software copyright belongs to a legal person or other organization, and after the legal person or other organization is altered or terminated, the copyright shall be enjoyed by the legal person or other organization succeeding its rights and obligations during the term of protection prescribed by these Regulations; if there is no legal person or other organization succeeding its rights and obligations, the copyright shall be enjoyed by the State.

Article 16 The owners of legal software copies shall enjoy the following rights:

1) To install that software in a computer or other equipment with information processing capacity according to the needs of use;
(2) To make a backup copy for the purpose of preventing the copies from damage. However these back-up copies may not be provided to other persons by any means, and when the owners lose the ownership of those legal copies, they shall see to it that they destroy these back-up copies;
3) In order to carry out the necessary revisions for the purpose of using the said software in the real computer environment or improving its functions and performance; however, except as otherwise stipulated in the contract, the revised software may not be provided to any third party without the approval of the software copyright owner.

Article 17 Those that use the software by installing, demonstrating, transmitting or storing it for the purpose of learning and studying the design ideas and theories contained in the software may do so without the approval of the software copyright owner and without paying remuneration to the owner.

Chapter 3 Licensing and Transfer of Software Copyright

Article 18 A contract of licensing shall be made to license others to exploit the software copyright.

The licensee may not exploit the rights not clearly licensed by the owner of software copyright in the contract of licensing.

Article 19 The parties shall make a written contract in case of licensing of exclusive exploitation of software copyright..

Where there is no written contract or the licensing was not clearly stipulated in the contract as exclusive licensing, the rights licensed to be exploited shall be deemed as non-exclusive rights.

Article 20 The parties shall make a written contract in case of transfer of software copyright.

Article 21 Those making the licensing contract to license others to exclusively exploit the software copyright or making the contract of software copyright transfer may register with the software registration organs accredited by the administrative department of copyright under the State Council.

Article 22 Chinese citizens, legal persons or other organizations that license or transfer software copyright to foreigners shall observe the relevant provisions of the Regulations of the People’s Republic of China on the Administration of Technology Import and Export.

Chapter 4 Legal Responsibilities

Article 23 Except as otherwise prescribed by the Copyright Law of the People’s Republic of China or these Regulations, anyone who has committed any of the following infringing acts shall, according to the circumstances, bear the civil responsibilities of stopping the infringement, eliminating the effects, making apologies and compensating for losses, etc.

1) Publishing or registering the software without the approval of the software copyright owner;
2) Publishing or registering the software developed by others in one's own name;
3) Publishing or registering the software developed in cooperation with another person as a work completed by oneself alone, without the approval of the cooperating developer;
4) Signing one's name to the software developed by another person or altering the signature on the software developed by another person;
5) Revising or translating the software without the approval of the software copyright owner;
6) Other acts infringing upon the software copyright.

Article 24 Except as otherwise prescribed by the Copyright Law of the People’s Republic of China, these Regulations or other laws and administrative regulations, anyone who has committed any of the following infringing acts without the approval of the software copyright owner shall, according to the circumstances, bear the civil responsibilities of stopping the infringement, eliminating the effects, making apologies, compensating for losses, etc; for anyone who damages the public interests at the same time, the administrative department of copyright shall order the offender to stop the infringing acts, confiscate the illegal gains, confiscate and destroy the infringing copies, and may impose a fine on him at the same time; if the circumstances are serious, the administrative department of copyright may also confiscate the materials, tools, equipment, etc. that are mainly used in the making of the infringing copies; if there is any violation of criminal laws, the criminal responsibilities shall be investigated for according to the provisions of the Criminal Law on the crime of infringing upon copyright law and the crime of selling infringing copies:

1) Copying or partially copying the software of the copyright owner;
2) Releasing, leasing or disseminating through information networks the software of the copyright owner;
3) Intentionally avoiding or breaching the technical measures adopted by the copyright owner to protect his software copyright;
4) Intentionally deleting or altering the electronic information of software right management;
5) Transferring or licensing others to exploit the software copyright of the copyright owner.
Anyone who has committed the act prescribed in item 1) or item 2) of the preceding paragraph may be concurrently imposed on a fine of 100 Yuan per piece or a fine of not more than 5 times the value of the software; anyone who has committed the act prescribed in item 3), item 4), or item 5) of the preceding paragraph may be concurrently imposed on a fine of not more than 50,000 Yuan.

Article 25 The amount of compensation for infringement of software copyright shall be determined according to the provisions of Article 48 of the Copyright Law of the People’s Republic of China.

Article 26 Where the software copyright owner has the evidence to prove that another person is committing or is going to commit the acts infringing upon his rights, and if the acts are not stopped in time, his legal rights and interests will suffer incurable damages, the owner may, according to the provisions of Article 49 of the Copyright Law of the People’s Republic of China, apply to the people’s court for taking measures to order the stop of the relevant acts and to preserve the property before bringing a lawsuit.

Article 27 For the purpose of preventing the infringing acts and under the circumstances that the evidence may be lost or hard to acquire afterwards, the software copyright owner may, according to the provisions of Article 50 of the Copyright Law of the People’s Republic of China, apply to the people’s court for preserving the evidence before bringing a lawsuit.

Article 28 If the publisher, manufacturer of the software copies can’t prove that the publication or manufacturing has been legally authorized, or the releaser or leaser of software copies can’t prove that the copies released or leased have legal sources, they shall bear legal responsibilities.

Article 29 If the software developed by the software developer is similar to the software already in existence because the available forms of expression is limited, this is not infringement upon the copyright of the software already in existence.

Article 30 If the holder of software copies doesn’t know and there is no rational reason for it to know that the software is an infringing copy, the holder shall bear no responsibilities for compensation; however, it shall stop using and destroy that infringing copy. If the stop of use and destroying of that infringing copy cause heavy losses to the copy user, the copy user may continue to use the copy after paying reasonable fees to the software copyright owner.

Article 31 Software copyright disputes may be mediated.

Software copyright contract disputes may be applied to an arbitration organ for arbitration according to the arbitration clause in the contract or the written arbitration agreement reached after the contract.
If parties concerned have not inserted an arbitration clause into the contract, and there is no written arbitration agreement reached after the event, they may bring a lawsuit directly at the People's Court.

Chapter 5 Supplementary Provisions

Article 32 The infringing acts committed prior to the taking effect of these Regulations shall be dealt with in accordance with the relevant provisions of the State at the time of the infringing act.

Article 33 These Regulations shall take effect on January 1, 2002. And the Regulations on the Protection of Computer Software promulgated by the State Council on June 4, 1991 shall be abolished simultaneously.