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The
Interpretation of the Supreme People¡¯s Court
Concerning Several Issues on Application of
Law in Hearing Correctly the Civil Copyright Cases
(Adopted on 12 October 2002 at the
1246th Meeting of the Adjudication Committee of the Supreme People's
Court; Promulgated on October 15, 2002)
In order to hear correctly the cases concerning copyright civil
disputes, several issues on application of law are interpreted as
follows according to the provisions of the General Principles 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, the Civil
Procedural Law of the People¡¯s Republic of China and other relevant
laws:
Article 1. The People¡¯s Court accepts
the following cases of civil dispute concerning copyrights: (a) cases of
copyrights and their relevant interests and ownership, infringement, and
contractual disputes; (b) cases
in application for stopping the acts of infringement of the copyrights
and their relevant rights and interests prior to the actions and those
in application for property attachment and conservation of evidence
prior to the action; and (c) other cases concerning the disputes over
copyrights and their relevant rights and interests.
Article 2. The cases of civil dispute
concerning copyrights shall be under the jurisdiction at level not lower
than the Intermediate People¡¯s Court.
Various High People¡¯s Courts may according to the actual circumstances
of their jurisdiction determine several basic-level People¡¯s Court to
rule over the cases of civil dispute concerning copyrights of first
instance.
Article 3. For the acts in infringement of copyrights that are under
investigation by the administrative department of copyrights, when the
party concerned initiates prosecution to the People¡¯s Court for pursuit
of civil liabilities with the infringing party, People¡¯s Court should
accept.
When investigating the cases of civil in infringement of copyrights that
have been handled by the administrative department of copyrights, the
People¡¯s Court should conduct complete investigation on the case fact.
Article 4 The civil proceedings
initiated for acts in infringement of copyrights civil case should be
governed by the local People¡¯s Courts where the infringing acts are
committed, the infringing reproduced products are stored or confiscated
as stipulated by Articles 46 and 47 of
the Copyright Law of the People¡¯s Republic of China or where the
defendant
are located.
The above-mentioned places where the infringing reproduced products are
stored refer to the places where infringing reproduced products are
stored
or hidden in great volume or frequently, and the places where the
infringing reproduced products are confiscated refer to the places where
the Customs, the copyright administration and industrial and commercial
administration confiscate and detain the infringing reproduced products.
Article 5 For common litigation brought forth by multiple defendants
from
different places involving different infringement acts, the plaintiff
can
choose for jurisdiction by the People¡¯s Court of the place where the
infringing act of one defendant take places and for the litigation
initiated to only one defendant, the jurisdiction rests with the
People¡¯s
court where his or her infringing act take places.
Article 6. When the collective management agencies of copyrights set up
by
force of law initiates an action in its own name through written
authorization by the copyright owners, the People¡¯s Court should accept.
Article 7. The work papers concerning copyrights provided by the parties
in question, originals, and legitimate publications, registration
certificate of the copyrights, certificates issued by the authentication
institution and the contracts obtained may be taken as evidence.
The natural persons, legal persons or other organizations that sign on
the
works or products are deemed as the right holders of the copyrights and
their relevant rights and interests unless otherwise proved.
Article 8. When the parties concerned purchase the infringing reproduced
products in the form of purchase order or spot transaction by themselves
or by agency, the physical objects and invoices obtained may be taken as
evidence.
When the notaries public do not show their status to a party concerned
who
are suspect of infringing copyrights, the evidence actually obtained
from
the other party in the above-mentioned form and the notary certificate
issued during obtaining of proofs shall be taken for use as evidence
unless otherwise proved.
Article 9. ¡°To make a work available to the public¡± as specified in
Article 10 (1) of the Copyright Law of the People¡¯s Republic of China
means to make the works available to unspecified people ¡± by the
copyright
owners or through their permission, provided that it has not become to
he
public.
Article 10. For the works specified in Article 15 (2) of the Copyright
Law
of the People¡¯s Republic of China when the copyright owners are natural
persons, the term for their protection shall be as per the provision of
Article 21 (1) of the Copyright Law and when the copyright owners are
legal persons or other organizations, the term for their protection
shall
be as per the provision of Article 21 (2) of the Copyright Law
Article 11. In case of the disputes concerning the priority of
signatures
of the works, the People¡¯s Court shall handle according to the following
principle: determining the signature order as per the covenant, if any;
otherwise, determining the signature order as per work done for the
creation works, work list number of the strokes of the family name of
the
authors, etc.
Article 12. In case the ownership of copyright in a commissioned work
belong to the commissioned party as specified by Article 17 of the
Copyright Law, the commissioning party may be entitled to use the works
within the use scope as covenanted; and if both the commissioning party
and the commissioned party have not covenanted the use scope of the
works,
the commissioning party may use the works within the specific scope of
the
commissioned creation free of charge.
Article 13. Except for the cases as specified by Article 11 (3) of the
Copyright Law, the copyrights of the reports, speeches and other works
drafted by others but reviewed and finalized not by others and not
published in the name of others, the copyright belong to the report
maker
or the speech maker. The copyright owners may pay the drafters proper
remunerations.
Article 14. The copyrights of the autobiographical works completed based
on the theme of the experiences of specific persons as agreed by the
parties concerned follow the covenant, if any has been covenanted by the
parties; otherwise, the copyrights belong such specific persons whose
experiences are utilized, provided that the copyright owners may pay the
drafter or the person who have been labored in arranging for the
completion of the works.
Article 15. For the works created on the same theme by different
authors,
the expressions of which are creative and independently completed, the
authors enjoy independent copyrights of their corresponding works.
Article 16. The purely factual messages transmitted by mass media belong
to news on current affairs as specified by Article 5 (2) of the
Copyright
Law, and when transmitting or reporting the news on current affairs
complied by others, the sources of the compilation should be indicated.
Article 17. The reprints as specified by article 32 (2) of the Copyright
Law refer to the act of printing by newspapers or magazines of the works
already published on other newspapers or magazines. In case the
reprinting
has not indicate the author of the reprinted works or the sources of the
original printing newspapers or magazines, civil responsibilities should
be undertaken, such as eliminating he adverse influence or making
apologies£¬etc.
Article 18. The artistic work located or on display in an outdoor public
place as specified by Article 22 (10) of the Copyright Law refers to
sculptures, paintings, calligraphies and other artistic works that are
displayed or located in an outdoor public place.
For the copy, painting, photographs or video figures of the
above-mentioned artistic works, the results may be used in reasonable
form
and within reasonable scope, which does not constitute any infringement.
Article 19. The publishers and producers shall take the burden of proof
for legitimate authorization of their publications and productions, and
the distributors and lessors shall take the burden of proof for
legitimate
sources of the reproduced products they distribute or lease. Otherwise,
they shall undertake the corresponding legal responsibilities in
Articles
46 and 47 of the Copyright Law.
Article 20. In case the publications infringe upon the copyrights of
others, the publishers shall undertake the civil compensatory
liabilities
in consideration of their faults, degree of infringement, and the
consequential damages.
In case the publishers have not take the duties of reasonable cares for
the authorization of their publishing acts, the sources and signature of
the manuscripts and the content of publications under edition, they
shall
undertake the compensatory liabilities according to the provisions of
Article 48 of the Copyright Law.
In case the publishers have taken the duties of reasonable care and the
copyright owners have not evidence to show that the publishers should
have
known the infringement involved in their publications, the publishers
shall undertake the civil responsibilities for stopping the infringement
and returning the profits obtained through infringement according to the
provision of Article 117 of the General Principles of Civil Law.
The publishers shall take the burden of proof for indicating that they
have taken the duties of reasonable cares.
Article 21. In case the users of computer software make commercial use
of
the computer software without permission or beyond the scope of
permission, civil responsibilities should be undertaken according to the
provisions of Article 47 (1) of the Copyright Law and Article 24 (1) of
the Regulation on Protection of Computer Software.
Article 22. In case the contract on transfer of copyrights does not
adopt
a written form, the People¡¯s Court shall examine and check to see
whether
the contract is established according to the provisions of Articles 36
and
37 of the Contract Law.
Article 23. In case the publishers has lost or destroyed the works
delivered by the copyright owners for publishing, enabling failure of
the
performance of the publishing contract, the publishers should be
accorded
with civil responsibilities according to the provisions of Article 53 of
the Copyright Law, Article 117 of the General Principles of Civil Law
and
Article 122 of the Contract Law.
Article 24. The actual losses of the copyright owners may be calculated
as
the multiplication of the decreased distribution volume of the
reproduced
products due to the infringement or the sale volume of the infringing
reproduced products by the unit profits of the reproduced products of
the
copyright owners. In case the decreased distribution volume is hard to
determine, it may be determined according to the market sale volume of
infringing reproduced products.
Article 25. In case the actual losses of the copyright owners or the
illegitimate revenues of the infringing party cannot be determined, the
People¡¯s Court shall determine the amount of compensations as per the
request of the parties concerned or according to the provisions of
Article
48 (2) of the Copyright Law at their discretion within their powers.
When determining the amount of compensations, the People¡¯s Court shall
comprehensively consider the work type, reasonable usage fee, nature of
infringing acts, results, and other relevant circumstances.
It shall be allowed for the party concerned to reach an agreement on the
amount of compensations according to the provision of this Article.
Article 26. The reasonable expenses paid for stopping the infringing
acts
as specified by Article 48 (1) of the Copyright Law include reasonable
fees occurred from investigating on the infringing acts and obtaining
evidences.
The People¡¯s Court may calculate in the compensations the attorney¡¯s
fees
according to the provisions of the relevant state departments in
consideration of the proceeding claims and specific circumstance of
cases
of the parties concerned.
Article 27. In terms of the cases under pleading for the infringing acts
of copyrights occurred prior to the implementation of the decision on
the
revised copyright law for which the People¡¯s Court provides findings
after
the implementation of the decision on the revised copyright law,
references may taken in applying the provision of Article 48 of the
Copyright Law.
Article 28. The time limit for actions of copyright infringement is two
years, starting from the date when the copyright owners have known or
should have known the infringing acts. If the copyright owners bring the
action beyond two years and if the infringing act still remains when the
action is brought, the People¡¯s Court shall within the term for
protection
of the copyrights offer findings against the defendant for stopping the
infringing acts; and the amount of compensations for infringement shall
be
calculated for two years taken backward from the date when the copyright
owners brought the action with the People¡¯s Court.
Article 29. In case of the infringing acts specified by Article 47 of
the
Copyright Law, the People¡¯s Court may in addition to prosecuting
infringing party with civil responsibilities as per the request by the
parties concerned accord civil punishment according to the provision of
Article 134 of the General Principles of Civil Law, with the amount of
fine to be determined by reference with the relevant provisions of the
Regulations on the Implementation of the Copyright Law of the People¡¯s
Republic of China.
In case the administrative department of copyrights has accorded the
same infringing acts with administrative punishment, the People¡¯s Court
shall not accord civil punishment.
Article 30. For the infringing acts of
copyrights occurred prior to October 27, 2001, the provisions of
Articles 49 and 50 of the Copyright Law shall be applicable when the
parties concerned have after October 27, 2001 applied with the People¡¯s
Court for adopting the order to stop the infringing acts or take
measures for conservation of evidence.
In case of taking the pre-trial measures, the People¡¯s Court shall
proceed by reference with the provisions of the Interpretations of the
Supreme People¡¯s Court on the Applicable Laws Concerning the Pre-trial
Stop of the Acts Infringing the Rights for Exclusive Use of Registered
Trademarks and the Conservation of Evidences.
Article 31. Unless otherwise provided by
the Interpretations, the cases of civil dispute concerning copyrights
accepted by the People¡¯s Court after October 27, 2001, if involving the
civil acts occurred prior to October
27, 2001, shall adopt the provisions of the Copyright Law before the
revision; if involving the civil acts occurred after October 27, 2001,
shall adopt the provisions of the revised Copyright Law; and if
involving the civil acts occurred prior to October 27, 2001 but lasting
after such date, shall adopt the provisions of the revised Copyright
Law.
Article 32. In case of any discrepancy
between previous provisions and the Interpretations, the Interpretations
shall prevail. |
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