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

　　When obtaining evidences， the case-handling personnel may adopt the following means for collection and taking 5the relevant evidences：

　　（I） reading and copying the documents and archives， books and accounts and other written materials relating to the suspected misbehaviors；

　　（II） Sampling in taking evidence from the suspected infringing duplicates；

　　（III） Registering the suspected infringing duplicates for preservation in advance.

　　Article 17 （Presentation of enforcement permits）During enforcement， the case-handling personnel shall present the enforcement permits to the parties concerned and the relevant personnel prepared and distributed according to the National Copyright Administration or other local people's government.

　　Article 18 （Categories of evidences）The evidences collected during handling of the case include：

　　（I） written evidence；

　　（II） material evidence；

　　（III） witness and attestation；

　　（IV） audio-video materials；

　　（V） statement of the parties concerned；

　　（VI） conclusion of identification；

　　（VII） Records of inspection and investigation.

　　Article 19 （Evidences provide by the parties concerned）The evidence may cover the manuscripts relating to copyrights provided by the parties concerned， the originals thereof， legal publications， copyright registration， certification issued by the notary public， the contract for obtaining of the rights， as well as articles in kind and invoices for purchase of the infringing duplicates by ordering or spot transactions by the parties concerned or by agency.

　　Article 20 （Preparation of list）In case of sampling in taking evidences and registering for preservation of the relevant evidence in advance by the case-handling personnel， the parties concerned shall be present. For the relevant articles， a list should be prepared in two copies， which shall be submitted for preservation by the local competent administration of copyrights of the case-handling personnel and the parties concerned respectively after signature and stamping by them. In case the parties concerned a

re not present or refuse to sign or stamp on the evidence， no less than two case-handling personnel present shall indicate the actual circumstances.

　　Article 21 （Registration preservation in advance）In registering the relevant evidences for preservation in advance， the case-handling personnel shall obtain the approval of the responsible person of their department and send to the parties concerned the notice on registering the evidence for preservation in advance. During the preservation of the evidence， the parties concerned or the relevant personnel shall not move or destroy the relevant evidence.

　　For registering the evidence for preservation in advance， a sealing tape of the competent administration of copyrights for such purpose should be sealed. In case the evidence registered for preservation in advance are required to move to other places， it may be moved to the proper place for preservation. In emergency when it is not sufficient for handling with the relevant formalities， the case-handling personnel may teak measures in advance and make up for such formalities.

　　Article 22 （Consequential measures of registration preservation in advance）For the evidence registered for preservation in advance， decisions should be made on the following treatment within 7 days upon delivery of the notice on registration of the evidence for preservation in advance：

　　（I） Submitting the evidence for identification if required；

　　（II） In case the facts are established for misbehaviors requiring for confiscation， the confiscation should be executed by statutory procedures；

　　（III） The case shall be moved to the relevant department together with the evidence if required to move to the relevant department for treatment；

　　（IV） In case the facts are not established for misbehaviors or the confiscation is not required by force of law， the registration for preservation measures shall be discharged；

　　（V） Other statutory measures.

　　Article 23 （Entrusted investigation） In case of entrusting other competent administration of copyrights for investigation during investigation and treatment of the cases， the competent administration of copyrights shall issue the power of attorney. The entrusted competent administration of copyrights shall take initiatives to offer assistance.

　　Article 24 （Expert identification） In terms of the professional issues during the investigation and treatment of the case， the competent administration of copyrights may entrust the special institution or engage the professionals to carry out identification.

　　Article 25 （Investigation report）Upon the end of the investigation， the case-handling personnel shall submit the report on the investigation of the case， state whether or not the relevant acts are in violation of law， put forth the opinions on treatment and the facts， reasons and basis， attach all the evidential materials.

　　Article 26 （Notification to the parties concerned）In case the competent administration of copyrights plans to make a decision on administrative punishment， the responsible persons of the department in charge shall issue pre-notice on administrative punishment and notify the parties concerned of the facts， reasons and basis based on which the decision is projected on administrative punishment and of their rights for statement， pleadings and other rights.

　　The pre-notice on the administrative punishment shall be served to the parties concerned by the competent administration of copyrights and the parties concerned shall sign and stamp on the receipt thereof. In case the parties concerned refuse to receive the notification， the service personnel may indicate the actual situation and report to the responsible person of the department in charge. The competent administration of copyrights may also adopt the mail for service of the notice to the parties concerned. In case the parties concerned may not b

e found， the notification may adopt the means of public announcement.

　　Article 27 （Deadline for the statements and pleadings of the parties concerned）In case the parties concerned requires for statement or pleadings， the opinions of the statements or pleadings and the relevant facts， reasons and evidences thereof should be put forth to the competent administration of copyrights within 7 days upon the notification or within 30 days upon the public announcement. In case the parties concerned have not exercise their rights for statement and pleadings， it shall bee deemed as a waver thereof.

　　In case of the notification by direct service， the date when the parties concerned sign for receipt of the notice shall be the date of the notification， and in case of service by mail， the date indicated on the receipt shall be the sate of the notification.

　　Article 28 （Review）The case-handling personnel shall fully listen to the opinions of the statement and pleadings of the parties concerned， and review on the facts， reasons and evidences put forth by the parties concerned， with report of review submitted.

　　The competent administration of copyrights shall not impose higher punishment because of the pleadings of the parties concerned.

　　Article 29 （Treatment decision）The responsible persons of the competent administration of copyrights shall examine and check the report on the investigation of the case and the review report， and make the following decisions on treatment according to the review results：

　　（I） In case the misbehaviors actually requires for administrative punishment， the punishment may be accorded according to the tort degree of the wrongdoers， the period of the infringement， the scope of the infringement and the consequential results of harms；

　　（II） in case of minor misbehaviors， there can be no administrative punishment；

　　（III） In case the facts based on which the misbehaviors are alleged ado not hold water， there will be no administrative punishment；

　　（IV） In case the misbehaviors constitute suspected cries， the case will be moved to the judicial department for treatment.

　　In case of complex or material misbehaviors to be accorded with pretty heavy administrative punishment，the decisions on such punishment should be made by the responsible persons of the competent administration of copyrights through collective discussion.

　　Article 30 （Fines）When the competent administration of copyright made decisions on fines， the amount of the fines should be determined according to the provisions of Article 36 of the Implementation Rules of the Copyright Law of the PRC and Article 24 of the Regulations on Protection of Computer Software.

　　Article 31 （Punishment for serious circumstances） In case of serious misbehaviors， the competent administration of copyrights may confiscate the materials， tools and devices mainly used for making the infringing duplicates.

　　The serious circumstances herein refer：

　　（I） Illegal incomes of an individual reaching RMB5，000 and those of a unit reaching RMB30，000；

　　（II） The amount of illegal operations by an individual reaching RMB30，000 and those by a unit reaching RMB100，000；

　　（III） The infringing duplicates under the operation by an individual reaching two thousand copies （boxes） and those by a unit reaching five thousand copies；

　　（IV） Repeated infringement of copyrights after prosecution of criminal responsibilities for infringement of copyrights；

　　（V） Causing other serious consequences or results.

　　Article 32 （One subj

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