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Measures
for Implementation of the Administrative Punishment for Copyright
Infringement
Decree of the National Copyright Administration of the PRC No. 3
July 24, 2003
Measures for Implementation of the Administrative Punishment for
Copyright Infringement
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 for copyright infringement 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 appealing 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.
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 are
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 be 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 subject matter without double punishment)For the
same misbehaviors by the parties concerned for which other
administrative authorities have imposed fines, the competent
administration of copyrights will no longer impose fines, but may
still impose other categories of administrative punishment as
specified by Article 4 of the Measures in consideration of the
actual circumstances.
Article 33 (Hearing criteria)Before deciding on imposing big amount
of fines or other administrative punishment requiring for hearing
according to the provisions of laws or administrative regulations,
the competent administration of copyrights shall notify the parties
concerned of the rights for requiring for a hearing.
The big amount of fine herein refers to fines no less than RMB20,000
for individuals and fines no less than RMB100,000 for unit, provided
the local regulations and stipulations shall apply if otherwise
specified.
Article 34 (Hearing)In case the parties concerned require for a
hearing, the competent administration of copyrights shall arrange
the hearing according to the provision of Article 42 of the
Administrative Punishment Law, for which the parties concerned shall
not undertake any expenses for arrangement of such hearing.
Article 35 (Legal documents)In case the competent administration of
copyrights decides on imposition of administrative punishment, a
resolution should be prepared on such administrative punishment.
In case the competent administration of copyrights decides on no
imposition of administrative punishment for minor misbehaviors, a
notice should be prepared on not imposing administrative punishment,
indicating the facts, reasons and basis for not imposing
administrative punishment, which should be served to the parties
concerned£»in case the facts based on which the misbehaviors are
alleged, a notice on the results of the investigation should be
prepared, which should be served to the parties concerned.
For transferring the case to the judicial department for
investigation and treatment, the competent administration of
copyrights shall prepare a documents relating to transfer of the
case of suspected crimes, which should be timely transferred to the
judicial department of jurisdiction together with the relevant
materials and evidences.
Article 36 (Service)The resolution on administrative punishment
should be delivered to the parties concerned directly after
announcement by the competent administration of copyrights. In case
the parties concerned are not present, the resolution should be
served to the parties concerned within 7 days.
Article 37 (Application for administrative reconsideration and
petition for administrative proceedings) If objecting to the
administrative punishment by the National Copyright Administration,
the parties concerned may petitions for the National Copyright
Administration to carry out administrative reconsideration; if
objecting to the administrative punishment by the local competent
administration of copyrights, the parties concerned may apply for
administrative reconsideration with the people''s government of the
same level or the superior competent administration of copyrights.
If objecting to the administrative punishment or the decisions from
the administrative reconsideration, the parties concerned may bring
forth administrative proceedings by force of law.
Chapter IV Enforcement Procedures
Article 38 (Performance of the findings of punishment)The parties
concerned shall perform the administrative punishment within the
time schedule specified by the decision on the administrative
punishment upon receipt of such decision.
In case the parties concerned petition for administrative
reconsideration or administrative proceedings, the enforcement of
the administrative punishment shall not stop unless otherwise
stipulated by law.
Article 39 (Disposal of confiscated articles) The confiscated
infringing duplicates shall be destroyed or be properly disposed
with consent of the infringed.
When destroying the infringing duplicates, the competent
administration of copyrights shall assign no less than two
enforcement personnel for supervision over the destruction process,
verify the results of the destruction and prepare the destruction
records.
In terms of the confiscated materials, tools and devices mainly used
for making the infringing duplicates, the competent administration
of copyrights shall proceed by auction according to law or according
to the relevant state provisions.
Article 40
(Substitution performance) The decisions made by the
superior competent administration of copyrights on imposing
administrative punishment may be performed by the subordinate
competent administration of copyrights entrusted. The entrusted
subordinate competent administration of copyrights for substitution
performance shall report the results of the substitution performance
to the superior the competent administration of copyrights.
Chapter V Supplementary Provisions
Article 41
(Statistics of administrative punishment) The competent
administration of copyrights shall establish the statistic system of
administrative punishment for copyright infringement according to the
state statistic law and submit to the superior the competent
administration of copyrights the statistic report on the administrative
punishment of copyrights once a year.
Article 42
(Filing of docket and archive) Upon the completion of the enforcement of
the decisions of the administrative punishment or administrative
reconsideration, the competent administration of copyrights shall timely
docket the case material on archive.
The materials to be filed on archive mainly include: decisions of
administrative punishment, examination and approval of filing of the
case, report on investigation of the case, review report, decision on
the reconsideration, written records of the hearing, report on hearing,
evidential materials, documents for treatment and disposal of property
and articles, and other relevant materials.
Article 43
(Preparation of legal documents) The relevant legal documents involved
in the Measures shall be prepared by reference with the document formats
determined by the National Copyright Administration.
Article 44
(Implementation) The Measures shall come into force as of September 1,
2003. The Measures for Implementation of the Administrative Punishment
for Copyright Infringement promulgated on January 28, 1997 will be
repealed simultaneity, and in case of any discrepancy between any other
provisions promulgated prior to the Measures and the Measures, the
Measures shall prevail. |
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