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Regulation on the Implementation of the Copyright Law of the People’s Republic of China 2002-08-02

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

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 enter 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.