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

opyright in Software vests in a legal person or other organization, the copyright shall, after such legal person or other organization is changed or terminated, vest in the legal person or other organization that inherited the former's rights and obligations or, if no legal person or other organization inherited such rights and obligations, in the State, for the period of protection provided for in these Regulations.

　　Article 16　The owner of the legal reproductions of Software shall enjoy the following rights:

　　1. install the Software into a computer and other instruments that possess the capacity for information processing as required for use;

　　2. make back-up reproductions to prevent damage to the reproductions. Such back-up reproductions may not be made available to others by any means, and shall be responsible for destroying the back-up reproductions when the owner loses the ownership of the legal reproductions; and

　　3. make necessary modifications to the Software in order to use it in the actual computer application environment or to improve its functions and performance. Unless agreed otherwise in a contract, the modified Software may not be provided to any third party without the permission of the Software copyright owner.

　　Article 17　Where Software is used in the forms such as installing, displaying, transmitting or saving the Software to learn and study the design concepts and principles, permission from, and payment of remuneration to, the Software copyright owner is not required.

　　PART THREE　LICENSING AND ASSIGNMENT OF SOFTWARE COPYRIGHTS

　　Article 18　To license others to exercise Software copyrights, a licensing contract shall be concluded.

　　A licensee may not exercise any right that the Software copyright owner has not explicitly licensed in the licensing contract.

　　Article 19　To license others to exclusive exercise of Software copyright, the party shall conclude a written contract.

　　Where there is no written contract or where the licence is not expressly agreed in the contract to be exclusive, the exercise of the right licensed

shall be regarded as non-exclusive.

　　Article 20　Assignment of Software copyright shall require the conclusion of a written contract.

　　Article 21　Licensing contracts that license others to exclusive exercise of Software copyright or contracts of assignment of Software copyright may be registered with the Software registration authority recognized by the copyright administration department of the State Council.

　　Article 22　Chinese citizens, legal persons or other organizations that license or assign Software copyright to foreigners shall comply with the relevant provisions of the PRC, Administration of Technology Import and Export Regulations.

　　PART FOUR　LEGAL LIABILITY

　　Article 23　Unless stipulated otherwise in the PRC, Copyright Law and these Regulations, anyone who commits any of the following infringing acts shall undertake civil liability by ceasing the infringement, eliminating the effects, apologizing, paying damages, etc., depending on the circumstances:

　　1. publication or registration of Software without permission from the owner of the copyright therein;

　　2. publication or registration of another's Software as one's own Software;

　　3. publication or registration of a jointly developed Software without permission from the other co-developers as Software completed solely by oneself;

　　4. affixing one's name to another's Software or altering the name affixed to another's Software;

　　5. revising or translating Software without permission from the Software copyright owner; or

　　6. other infringements of Software copyright.

　　Article 24　Unless stipulated otherwise in the PRC, Copyright Law, these Regulations or other laws and administrative regulations, anyone who commits any of the following infringing acts without permission by the Software copyright owner shall undertake civil liability by ceasing the infringement, eliminating the effects, apologizing, paying damages, etc., depending on the circumstances; if his act also prejudices the public interest, he may be subjected by a copyright administration department to an order to cease the infringing act, confiscation of unlawful income, confiscation and destruction of the infringing reproductions and the imposition of a fine; if the circumstances are serious, the copyright administration department may also confiscate the materials, tools, equipment, etc. mainly used in the manufacture of the infringing reproductions; if the act violates the criminal law, his criminal liability shall be pursued in accordance with the relevant provisions of the criminal law on the crime of infringing copyright or selling infringing reproductions:

　　1. reproduce or reproduce part of the Software of the copyright owner;

　　2. distribute, rent or communicate the Software of the copyright owner via an information network to the public;

　　3. evade or damage intentionally the technical measures taken by the copyright owner to protect his Software copyright;

　　4. delete or amend intentionally the electronic information of administration of the Software rights; or

　　5. assign or license others to exercise the Software copyright of the copyright owner.

　　In the case of an act specified in Item (1) or (2) in the preceding paragraph, a fine of Rmb 100 per item or a fine of not more than five times of the amount of the goods may be imposed. In the case of an act specified in Item (3), (4) or (5) in the preceding paragraph, a fine of not more than Rmb 50,000 may be imposed.

　　Article 25　The measure of damages for infringement of Software copyright shall be determined in accordance with Article 48 of the PRC, Copyright Law.

　　Article 26　If a Software copyright owner has evidence showing that another person is carrying out or about to carry out an act of infringement upon his rights and that failure to immediately halt such act would cause da

mage to his lawful rights and interests that would be difficult to remedy, he may, in accordance with Article 49 of the PRC, Copyright Law, apply to a people's court for an injunction against the act and an order of preservation of property prior to the institution of proceedings.

　　Article 27　A Software copyright owner may, with the object of halting infringing conduct, apply to a people's court for the preservation of evidence prior to the institution of proceedings in accordance with Article 50 of PRC, Copyright Law, if such evidence might be destroyed, lost or difficult to obtain later.

　　Article 28　If a publisher or producer of Software reproductions is unable to produce evidence that his publication or production was lawfully authorized, or if a distributor of Software reproductions or a person renting out Software reproductions is unable to produce evidence of the lawful origin of the reproductions that he distributes or rents out, he shall bear legal liability.

　　Article 29　Where Software developed by a Software developer is similar to an existing Software due to a limited selection of forms of expression that may be used, it shall not constitute an infringement of the copyright of the already existing Software.

　　Article 30　If the holder of a Software reproduction does not know or there are no reasonable grounds for him to know that the Software is an infringing reproduction, he shall not be liable for compensation, but he should cease the use and destroy the infringing reproduction. If the cease of use and destruction of the infringing reproduction will result in major losses to the user of the reproduction, he may continue to use after paying the Software copyright owner a reasonable fee.

　　Article 31　A dispute over infringement of Software copyright may be the subject of mediation.

　　A dispute over a Software copyright contract may be submitted to an arbitration institution for arbitration pursuant to the arbitration clause of the contract or a written arbitration agreement subsequently concluded.

　　If the parties have neither included an arbitration clause in their contract nor subsequently concluded a written arbitration agreement, proceedings may be instituted directly in a people's court.

　　PART FIVE　SUPPLEMENTARY PROVISIONS

　　Article 32　Infringing acts that occur before these Regulations come into effect shall be handled in accordance with the relevant provisions of the State at the time of occurrence of the infringing acts.

　　Article 33　These Regulations shall be effective as of 1 January 2002. The Computer Software Protection Regulations promulgated by the State Council on 4 June 1991 shall be repealed simultaneously

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