著作权行政处罚实施办法 Decree of the National Copyright Administration of the PRC

国家版权局令第3号

颁布日期：20030724 　实施日期：20030724 　颁布单位：国家版权局

　　No. 3

　　The Measures for Implementation of the Administrative Punishment of Copyrights passed the review of the directorate meeting of the National Copyright Administration on July 16， 2003， which are hereby promulgated and will come into force as of September 1， 2003.

　　Shi Zongyuan， Director of the National Copyright Administration

　　July 24， 2003

　　Measures for Implementation of the Administrative Punishment of Copyright

　　Chapter I General Provisions

　　Article 1 （Objectives of legislation）In order to regulate the acts of the administrative punishment by the competent administration of copyrights and protect the legitimate rights and interests of citizens， legal persons and other organizations， the Measures have been formulated according to the Administrative Punishment Law of the PRC （hereinafter referred to as the Administrative Punishment Law， the Copyright Law of the PRC （hereinafter referred to as the Copyright Law and other relevant laws and administrative regulations.

　　Article 2 （Enforcement subjects）The National Copyright Administration and the relevant department under the local people's government entitled to administrative enforcement of copyrights （hereinafter referred to as the local competent administration of copyrights） shall implement the administrative punishment with the misbehaviors listed in the Measures within their statutory authorities， provided that the laws and regulations shall apply if otherwise stipulated.

　　Article 3 （Violation acts）The misbehaviors herein refer to：

　　（I） The tort acts listed in Article 47 of the Copyright Law， concurrently with damages to the public interests；

　　（II） The tort acts listed in Article 24 of the Regulations on Protection of Computer Software， concurrently with damages to the public interests；

　　（III） Other copyrights misbehaviors requiring administrative punishment in compliance with laws， regulations and stipulations.

　　Article 4 （Categories of punishment）For the misbehaviors listed in the Measures， the competent administration of copyrights may impose the following administrative punishments by force of law：

　　（I） Order to stop the tort acts；

　　（II） Confiscation of the illegal incomes；

　　（III） Confiscation of infringing duplicates；

　　（IV） Fines；

　　（V） Confiscation of the materials， tools and devices mainly used for making the infringing duplicates； and

　　（VI） Other administrative punishment specified by laws， regulations and stipulations.

　　Chapter II Jurisdiction and Application

　　Article 5 （Territorial jurisdiction）The misbehaviors listed in the Measures will be investigated by competent administration of copyrights of the place where the tort acts are implemented， the tort results happen， the infringing duplicates are stored， or the where the forfeiture and detainment are carried out， provided that the administrative regulations shall apply if otherwise stipulated.

　　Article 6 （Jurisdiction at different levels）The National Copyright Administration may investigate on the misbehaviors of material influences around the country， and other behaviors that it deems proper for its investigation. The local competent administration of copyrights shall be responsible for investigate on the misbehaviors occurred in their corresponding jurisdiction.

　　Article 7 （Jurisdiction dispute and designated jurisdiction）In case the competent administration of copyrights of no less than two places are entitled to the jurisdiction over the same misbehaviors， the competent administration of copyrights filing the case first shall be responsible for investigation of the misbehaviors.

　　In case the local competent administration of copyrights is subject to jurisdiction dispute or unclear jurisdiction，

both parties to the disputes shall reach settlement through consultations； and in case the no settlement has been reached through consultations， petition should be made to the common superior competent administration of copyrights for designation of the jurisdiction and their common superior the competent administration of copyrights may also directly designate the jurisdiction.

　　If necessary， the superior competent administration of copyrights may handled with the cases of material influence under the jurisdiction of its subordinate competent administration of copyrights， or transfer the case under its jurisdiction to its subordinate competent administration of copyrights. If believing the case under its jurisdiction is material and complex， which requires for treatment by the superior competent administration of copyrights， the subordinate competent administration of copyrights may petition for treatment by the superior the competent administration of copyrights.

　　Article 8 （Transfer）In case the competent administration of copyrights finds that the misbehaviors under investigation is suspect of a crime according to the provisions of the criminal law of our country， the competent administration of copyrights shall transfer the case for treatment by the judicial department according to the Provisions on Transfer of the Suspected Criminal Cases by the Administrative Enforcement Agencies promulgated by the State Council.

　　Article 9 （Limitation） The limitation for according the administrative punishment by the competent administration of copyrights against misbehaviors is two years from the date of the occurrence of the misbehaviors. In case the misbehavior is continuous or in a sustaining status， such limitations will be calculated from the date of its termination. The infringing duplicate under issuance is deemed as continuance of the misbehaviors.

　　In case of failing to be found， any misbehavior will not be accorded with administrative punishment， unless otherwise stipulated by law.

　　Chapter III Punishment Procedures

　　Article 10 （General procedures）Except for the circumstances requiring for summary procedures as specified by the Administrative Punishment Law， general procedures are applicable to the administrative punishment of copyrights according to the provisions of the Administrative Punishment Law.

　　Article 11 （Filing）When adopting the general procedures for investigation on the misbehaviors， the competent administration of copyrights shall keep filing the case.

　　For the misbehaviors listed in the Measures， the competent administration of copyrights may decide to keep filing for investigation at its own discretion， or decide to keep filing for investigation based on the materials transferred by the relevant departments， or keep filing for investigation according to the complaints or petitions by the infringed， parties of interests or other persons knowing the cases.

　　Article 12 （Complaint）When applying for keeping filing for investigation on the misbehaviors listed in the Measures， the complainant shall submit the application， certification of ownership， the works infringed （or duplicates） and other evidences.

　　The application shall indicate the names of the parties concerned and address， as well as the main facts and reasons based on which the application are made for investigation.

　　In case the complainant authorizes an agent for the application， the agent shall present the power of attorney.

　　Article 13 （Acceptance）Within 15 days upon receipt of the all the complaint materials， the competent administration of copyrights shall determine whether or not accept the case and send a notice the complainant. In case of non-acceptance， a written notice should be given on the reasons thereof.

　　Article 14 （Undertaking）When filing the case， an examination and approval form should be filled in， attached with the app

ealing or petition materials， the materials designated by the superior competent administration of copyrights or the materials for transferring the case by the relevant departments， and the examination reports of the enforcement personnel， and the responsible person of the department concerned shall approve for filing of the case and assign two no less than two handling personnel for investigation and treatment.

　　In case the case are of interests to the case-handling personnel， the personnel shall withdraw automatically， and in case of non-withdrawal， the parties concerned may take challenge for cause，。 The withdrawal of the case-handling personnel will be approved by the responsible persons of the department， and the withdrawal of the responsible person shall be approved by the people's court of the same level.

　　Article 15 （Emergency measures）In case of finding the pending misbehaviors during the enforcement when time is not sufficient for filing of the case， the enforcement personnel may adopt the following measures：

　　（I） Preventing or correcting the misbehaviors；

　　（II） Registering for preserving the infringing duplicates and the materials， tools and equipment mainly used for the misbehaviors in advance；

　　（III） Collecting and taking other relevant evidences.

　　The enforcement personnel shall timely submit the relevant circumstance and materials to the local competent administration of copyrights and handle with the formalities for filing of the case.

　　Article 16 （Obtaining evidences）Upon filing of the case， the case-handling personnel shall timely carry out the investigation and require the statutory person with burden of proof to provide evidences within the time schedule specified by the competent administration of copyrights.

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