Friday, March 09, 2012

Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in Hearing Cases of Civil Disputes over Copyright

Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in Hearing Cases of Civil Disputes over Copyright  October 12, 2002

Fa Shi [2002] No. 31

Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in Hearing Cases of Civil Disputes over Copyright have been adopted at the1246th Session of the Judicial Committee of the Supreme People's Court on October 12, 2002 and are hereby promulgated for implementation as of October 15, 2002.
(Adopted at the 1246th Session of the Judicial Committee of the Supreme People's Court on October 12, 2002 Fa Shi [2002] No. 31

In order to correctly adjudicate civil disputes over copyright, the application of laws to such disputes is hereby interpreted by the Supreme People's Court in accordance with relevant provisions of the General Principals of Civil Law of the People's Republic of China, the Contract Law of the People's Republic of China, the Copyright Law of the People's Republic of China, Civil Procedure Law of the People's Republic of China, as well as other applicable laws, as follows:

Article 1 A people's court will and shall accept the following civil disputes over copyright:
1. Disputes over ownership, infringement and contract related to copyright or copyright-related rights and interests;
2. Applications for pre-litigation injunction to cease infringement on copyright or copyright-related rights and interests, applications for pre-litigation property preservation, and applications for pre-litigation evidences preservation; and
3. Other disputes over copyright or copyright-related rights and interests.

Article 2 Civil disputes over copyright shall be subject to the jurisdiction of a people's court at the intermediate or higher level.
Each higher people's court may designate some grassroot courts to exercise jurisdiction over copyright-related civil disputes in the first instance.

Article 3 If a copyright infringing conduct has been disposed of by a competent copyright administrative authorities, and the infringed party files a lawsuit to pursue the infringing party for appropriate civil liability, then a competent people's court shall accept such lawsuit.
When adjudicating a civil dispute over a copyright-infringing conduct that has already been disposed of by a competent copyright administrative authorities, a people's court shall carry out an investigation into the facts of the reported case in all respects.

Article 4 Civil actions filed in connection with a copyright-infringing conduct shall be subject to the jurisdiction of the people's court at the place where the infringement is committed, or where the infringing copies are being stored or being seized or detained, or where the respondent resides, as stipulated by Articles 46 and,47 of the Copyright Law.
The infringing copies storing place provided in the preceding paragraph means such a place as used to store or shelter infringing copies in a large quantity or for business purposes; and the infringing copies seizure and detention place provided in the preceding paragraph means the place where the customs, the copyright administration authorities, the industry and commerce administration authorities, or any other competent administrative authorities takes lawful seizure or detention of the infringing copies.

Article 5 If it is a joint action against more than one respondent and involving different places of infringement, the plaintiff may, in its sole discretion, select the people's court at the infringement committing place of any one of the respondents; if the plaintiff only sues one respondent, then the people's court at the place where that respondent commits its infringement shall have jurisdiction thereover.

Article 6 If a lawfully established collective copyright management organization files an action in its own name and with a written authorization from the copyrighter, with a competent people's court, such action shall be duly accepted.

Article 7 Manuscripts, originals, lawful publications, copyright registration certificates, certificates issued by a certification institution, contracts by which rights are obtained, as well as other relevant documents, rendered by a party, which involve copyright, may serve as evidence(s) where appropriate.
Any natural person, legal person or non-legal-person organization that affixes its signature to a writing or production will be deemed as the right holder of the accompanying copyright and copyright-related interests, except there are evidences to the contrary.

Article 8 Objects, invoices or other related things that a party obtains in connection with purchase of infringing copies through ordering, on-site transaction or other methods, personally or by entrusting other person(s), may be used as evidences.
Evidences obtained according to facts by a notarial officer who has not represented his/her identity to the party suspected of infringement from the other party in manners provided in the preceding paragraph and the notarial deed issued in the course of taking such evidences shall be used as evidences, unless there are evidences to the contrary.

Article 9 "Made public" provided in Item 1 of Article 10of the Copyright Law means that a copyrighter publishes his/her works voluntarily to a non-specific group of people or that publishing a copywriter's works to a non-specific group of people after obtaining the copywriter's consent, but being known by the public is not a composite condition for that.

Article 10 For works referred to in Item 2 of Article 15 of the Copyright Law, if the copyrighter is a natural person, then the copyright term will be as provided in Item 1 of Article 21 of the Copyright Law; if the copywriter is a legal person or non-legal-person organization, then the copyright term will be as provided in Item 2 of Article 21 of the Copyright Law.

Article 11 For disputes arising due to the order of signatures on a piece of works, a people's court may dispose of them according to the following principals: if there is an agreement, determine the order of signatures according to such agreement; if there is no agreement, the people's court may determine the order of signatures according to one or more of such factors as the amount of work each author has contributed, the works' arrangement, the number of strokes of each author's family name, or other relevant factors.

Article 12 If as provided in Article 17 of the Copyright Law that the copyright of a commissioned works belongs to the commissioned party, then the commissioning party will be entitled to use the works within the agreed-upon scope; if the two parties have not agreed on a use scope, then the commissioning party may use the works free of charge for specified purposes for which it has commissioned the creation.

Article 13 Except for the conditions provided in Item 3 of Article 11 of the Copyright Law, if a piece of report, speech or other similar works is written by a person other than the principal but is reviewed by the principal and published in the name of the principal, then the copyright in connection with such works shall belong to the report or speech maker. The copyrighter may pay a proper amount of compensation to the writer.

Article 14 For autobiographical works the parties agree to write based on a specific person's story, if the parties have agreed on the copyright ownership in respect of such works, then the copyright ownership shall be determined according to such agreement; if there is no agreement in that regard, then the copyright shall belong to that specific person, who may pay the writer or compiler a proper amount of compensation for their any contribution to the works.

Article 15 If different authors produce works in respect of the same theme, and their respective expressions are independent from each other's and are of creative features in their own regard, it shall be recognized that each author has an independent copyright to his/her works.

Article 16 Pure factual information broadcasted through public communication media constitutes a type of current affairs news as provided in Item 2 of Article 5 of the Copyright Law. The source of news shall be indicated when broadcasting or reporting any piece of current affairs news gathered or compiled by others.

Article 17 Reproduction provided in Item 2 of Article 3 of the Copyright Law means that a newspaper or magazine publishes a piece of works that has been previously published by another press. If reproducing a piece of works without indicating the author of the works and the original source press, the reproducer shall be charged with such civil liabilities as eliminate all adverse effects caused thereby, make a public apology and compensate for losses, etc.

Article 18 An artwork located or on display in an outdoor public place provided in Item 10 of Article 22 of the Copyright Law means such artworks as sculptures, paintings, handwritings and others set up or exhibited in an outdoor public gathering place.
A person copying, drawing, photographing or video-recording such artworks as provided in the preceding paragraph may make use of his or her production in a reasonable manner and scope, which will not constitute an infringement upon the aforementioned artworks.

Article 19 A publisher or producer shall bear the burden of proof that it has been lawfully and duly authorized for any publishing or production it makes, and an issuer or lender shall bear the burden of proof that the reproductions it issues or leases are from a lawful source. If they fail to adduce sufficient proofs, they shall bear corresponding legal liabilities as provided in Articles 46, 47 of the Copyright Law.

Article 20 If a publication of one person infringes upon another person's copyright, the publisher shall bear appropriate civil liabilities of compensation according to its fault, the degree of infringement, the damages caused, and other relevant factors.
If the publisher fails to fulfill the obligation of due care in respect of the authorization, the source and signature of manuscript, the content of the publication it edits and other relevant factors for its publishing, the publisher shall bear corresponding liabilities of compensation therefor according to Article 48 of the Copyright Law.
If the publisher has fulfilled the obligation of due care as required, and the copywriter has no evidences to prove that the publisher shall have known its publication has infringed upon his/her copyright, then the publisher shall bear the civil liabilities to cease the infringement and return all proceeds gained from such infringement according to Item 1 of Article 117 of the General Principals of Civil Law.
The publisher shall bear the burden of proof that it has fulfilled the obligation of the said due care.

Article 21 If a computer software user makes unauthorized use of computer software or use computer software beyond the authorized use scope for commercial purpose, such user shall bear corresponding liabilities according to Item 1 of Article 4 of the Copyright Law and Item 1 of Article 24 of the Regulations on the Protection of Computer Software.

Article 22 If a copyright transfer contract is not made in writing, a people's court shall examine whether the contract has been duly set up according to Articles 36 and 37 of the Contract Law.

Article 23 If a piece of works delivered by a copyrighter for publishing is lost or damaged due to the publisher's fault, which results in the publication contract can not be performed, the publisher shall be held for civil liabilities according to Article 53 of the Copyright Law, Article 117 of the General Principals of Civil Law, and Article 122 of the Contract Law.

Article 24 A right holder's actual loss may be computed by multiplying the decrement in the number of reproductions due to infringement or the sales volume of infringing copies with the unit profit the right holder's would gain in producing those copies. In case it is hard to determine the decrement of reproductions, the loss shall be determined according to the market sales of the infringing copies.

Article 25 In case a right holder's actual loss or an infringer's illegal earnings can't be determined, a people's court shall, upon the request of the parties, or ex officio, apply the stipulation of Item 2 of Article 48 of the Copyright Law to determine the amount of compensation.
When determining the amount of compensation, a people's court shall take into consideration the type of the subject works, the reasonable use fee, the nature of the infringement, the consequences caused thereby, and other relevant circumstances.
Any agreement that the parties agree upon the compensation according to the first paragraph of this Article shall be granted and allowed.

Article 26 The reasonable amount of expense paid for deterring infringement provided by Item 1 of Article 48 of the Copyright Law includes the reasonable expenses the right holder or its agent incurs in investigating or producing evidences for the infringement.
A people's court, according to the claim of the parties and the specific case, may add the lawyer's fees which is consistent with the stipulations of relevant state departments into the sum of compensation.

Article 27 For copyright infringement cases instituted before the decision of amendment to the Copyright Law has been put into force, if a people's court adjudges the case after the decision has been put into force, it may refer to the stipulations of Article 48 of the Copyright Law.

Article 28 The prescription of action for copyright infringement is two (2) years, which shall commence from the date when the copyrighter is or shall be aware of the occurrence of the infringement. If an right holder brings an action after that two (2) years period has expired, and the infringement is still in continuation when the action is brought and is within the copyright term, a people's court shall adjudge the respondent to stop the continuing infringement; when computing the amount of damages, and the amount of compensations for infringement shall be calculated for two years taken backward from the date when this action is filed with the people's court.

Article 29 With respect to such infringement as provided in Article 47 of the Copyright Law, in addition to holding the infringer for civil liabilities, a people's court, if so requested by the complaining party, may impose upon the infringer appropriate civil penalties according to the stipulations of Item 3 of Article 134 of the General Principals of Civil Law, the amount of penalty may be determined by referrence to relevant stipulations of the Implementing Regulations of the Copyright Law of the People's Republic of China.
If an administrative sanction has been imposed by a competent administrative authorities uopn an infringement, then a people's court may not impose any civil sanction on the same infringement.

Article 30 For a copyright infringement that occurred before October 27, 2001, if the infringed party makes an application to a people's court after that date, requesting the court to order the infringer to stop the infringement, or to adopt evidences preservation measures, the people's court shall apply the stipulations of Articles 49, 50 of the Copyright Law.
When adopting pre-litigation measures, a people's court shall refer to the stipulations of these Interpretation of the Supreme People's Court on the Application of Law for Stopping the Infringement upon the Right to the Exclusive Use of a Registered Trademark and Preserving Evidence before Initiating Litigation.

Article 31 Except these Interpretations provides otherwise, if a civil copyright dispute that a people's court accepts after October 27, 2001 involves a civil conduct occurring before October 27, 2001, then the people's court shall apply the stipulations of the pre-amendment Copyright Law to that conduct; if the dispute involves a conduct that occurs after that date, the people's court shall apply the stipulations of the amended Copyright Law; if the dispute involves a conduct that occurs before that date and continues after the same date, the people's court shall apply the stipulations of the amended Copyright Law.

Article 32 In case any previous stipulations are inconsistent with these Interpretations, these Interpretations shall prevail and apply.

Friday, February 17, 2012