计算机软件保护条例 Protection of Computer Software Regulations

国务院令第339号
(Promulgated by the State Council on 20 December 2001 and effective as of 1 January 2002.)
颁布日期：20011220 　实施日期：20020101 　颁布单位：国务院

　　PART ONE　GENERAL PROVISIONS

　　Article 1　These Regulations are formulated in accordance with the PRC, Copyright Law to protect the rights and interests of copyright owners of computer software, to regulate the interests of parties arising in the course of development, dissemination and use of computer software, to encourage the development and application of computer software, and to promote the development of software and information technology of the national economy.

　　Article 2　For the purposes of these Regulations, the term "computer software" (Software) shall mean computer programs and their relevant files.

　　Article 3　For the purposes of these Regulations, the following terms shall have the meanings set forth below:

　　1. "Computer program" shall mean a coded command sequence, or a symbolic command sequence or symbolic statement sequence automatically convertible to a coded command sequence that can be executed by a device capable of processing information, such as a computer and other such devices, where the purpose of such sequence is to achieve a certain result. The source program and the target program of the same computer program shall be the same work;

　　2. "Files" shall mean written information and diagrams used to describe the contents, composition, design, function specifications development details, test results and method of use of a program, such as program design explanations, flow charts and user's manuals;

　　3. "Software developer" shall mean a legal person or other organization that actually organizes, directly carries out the development work and bears responsibility for the completed Software, or a natural person who completes the development of Software independently on the strength of his own facilities and bears responsibility for such Software; and

　　4. "Software copyright owner" shall mean a natural person, legal person or other organization that owns the copyright in Software in accordance with these Regulations.

　　Article 4　Software must have been developed independently by a developer and fixed on physical media in order to be protected under these Regulations.

　　Article 5　Software developed by Chinese citizens, legal persons or other organizations shall enjoy the copyright in their Software under these Regulations regardless of whether the Software is published.

　　Software developed by foreigners or stateless persons first published in China shall enjoy copyright in the Software under these Regulations.

　　Where a foreigner or stateless person, in accordance with an agreement between his home country or his country of habitual residence and China, or an international treaty acceded to by China, enjoys copyright in the Software, such copyright shall enjoy protection hereunder.

　　Article 6　The protection provided by these Regulations over the copyright in Software shall not extend to the idea, process, operating method or mathematical concepts employed in the development of the Software.

　　Article 7　A Software copyright owner may register the copyright with the Software registration authority recognized by the copyright administration department of the State Council. The registration certificate issued by the Software registration authority shall be the prima facie evidence for the registered item.

　　A fee shall be paid for registration of Software. The charging standard for Software registration shall be stipulated by the copyright administration department of the State Council in conjunction with the State Council department in charge of pricing.

　　PART TWO　SOFTWARE COPYRIGHT

　　Article 8　Software copyright owners enjoy the following rights:

　　1. the right of publication, i.e. the right

to decide whether to make the Software available to the public;

　　2. the right of attribution, i.e. the right to indicate the developer's identity and to affix one's name to Software;

　　3. the right of revision, i.e. the right to make additions and supplements to, or abridge the Software, or change the order of commands and statements;

　　4. the right of reproduction, i.e. the right to make one or more copies of the Software;

　　5. the right of distribution, i.e. the right to provide originals or reproductions of Software to the public by means of sale or gift;

　　6. the right of rental, i.e. the right to permit others to temporarily use Software for consideration, unless the Software itself is not the essential object of the rental;

　　7. the right of communication via an information network, i.e. the right to make Software available to the public by wire or by wireless means, enabling members of the public to access the Software at a time and from a place individually chosen by them;

　　8. the right of translation, i.e. the right to convert an original Software from one natural language to another natural language; and

　　9. other rights to which the Software copyright owner is entitled.

　　A Software copyright owner may permit others to exercise his Software copyright, and has the right to receive remuneration.

　　A Software copyright owner may assign all or part of his Software copyright, and has the right to receive remuneration.

　　Article 9　Unless these Regulations provide otherwise, the copyright in Software shall vest in the Software developer.

　　Absent evidence to the contrary, the natural person, legal person or other organization that puts his or its name on Software shall be the developer thereof.

　　Article 10　Where Software is jointly developed by two or more natural persons, legal persons or other organizations, the ownership of the copyright shall be agreed upon in a written contract signed by the co-developers. If there is no written contract or the contract does not expressly provide for ownership, the jointly developed Software may be used by dividing it, and each co-developer may hold separate copyright in the part that he developed provided that his exercise of such right does not extend to the copyright in the jointly developed Software as a whole. Where the jointly developed Software is not divisible into separate usable parts, the copyright shall be owned jointly by each co-developer after having reached a consensus. Where the co-developers fail to reach a consensus and there is no proper reason, no party may prevent any of the other parties from exercising any right other than the right of assignment, provided that the gains obtained shall be reasonably distributed among all the co-developers.

　　Article 11　The ownership of the copyright in Software the development of which is commissioned by another party shall be agreed upon in a written contract signed by the commissioner and the commissioned party. If there is no such written contract or the contract does not expressly provide for ownership, copyright shall be vested in the commissioned party.

　　Article 12　The ownership of copyright in Software that is developed pursuant to an assignment given by a State authority shall be provided for in a project assignment letter or in a contract. Where the project assignment letter or the contract does not expressly provide for ownership, copyright in the Software shall be vested in the legal person or other organization that accepted the assignment.

　　Article 13　Where the Software developed by a natural person during his employment period at a legal person or other organization is in any of the following circumstances, the copyright in that Software shall be vested in the legal person or other organization, and such legal person or other organization may reward the natural person that develops

the Software:

　　1. where such Software is developed to achieve an expressly designated development objective of his job;

　　2. where the Software developed is a foreseeable or natural result of the activities performed in his duties; or

　　3. where the Software is developed mainly by using the material and technical resources such as the capital, specific equipment or special information not yet disclosed of a legal person or other organization, and the responsibility for the Software is borne by the legal person or other organization.

　　Article 14　Copyright in Software shall arise on the date on which the development of the Software is completed.

　　A natural person's copyright in Software shall be protected for a period consisting of the natural person's lifetime and 50 years after his death, and ending on 31 December of the 50th year after the natural person's death. Where the Software is jointly developed, such period shall end on 31 December of the 50th year after the death of the last surviving natural person.

　　The copyright in Software of a legal person or other organization shall be protected for a period of 50 years, ending on 31 December of the 50th year after the first publication of the Software, except that if such Software is not published within 50 years from the date of completion of its development, it shall no longer be protected under these Regulations.

　　Article 15　Where copyright in Software vests in a natural person, the successor to the Software copyright may, after the death of the natural person, succeed to the rights stipulated in Article 8 hereof except the right of attribution in accordance with the relevant provisions of the PRC, Inheritance Law within the period of protection of the Software copyright.

　　Where c

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