The Administrative Punishment Rules for Copyright Infringement were recently updated and will take effect June 15, 2009. Rogier Creemers, Ph.D. Researcher at Maastricht University (the Netherlands) who already obtained a Master's degree in Sinology from the University of Leuven (Belgium), sent me an email with these rules translated by him into English.
In addition Mr Creemers gives some highlights of the rules:
"- the regulations now include guidelines and a legal basis on how to deal with on-line piracy;
- the "grave circumstances" threshold present in Article 31 have been drastically lowered, and no distinction is made anymore between individual acts and work unit acts;
- the 2003 version predominantly attacted "infringing duplications" (fuzhipin). This has been changed in these rules (except in Art. 19), and replaced by "infringing products" which are defined as infringing duplications and works passed off as signed by another person (Art. 41)."
The National Copyright Administration of the People’s Republic of China decrees
The “Copyright Administrative Punishment Implementation Rules”, were passed in the 1st department meeting of the National Copyright Administration on 21 April 2009, and will take effect on 15 June 2009.
Translatation: Rogier Creemers
National Copyright Administration Director: Liu Binjie
7 May 2009
Article 1: In order to standardise the administrative punishment actions of the administrative management entities for copyright, protect the lawful rights of citizens, legal persons and other groups, according to the "Administrative Punishment Law of the People's Republic of China" (hereinafter abbreviated as "Administrative Punishment Law", the "Copyright Law of the People's Republic of China" (hereinafter abbreviated as "Copyright Law" and other relevant laws, administrative regulations, these rules are established.
Article 2: The National Copyright Agency as well as the relevant entities within local governments enjoying copyright enforcement rights (hereinafter abbreviated as copyright administrative management entities), in the statutory scope of their official powers, implement punishment actions against unlawful acts as listed in these rules. If other laws or regulations provide otherwise, those provisions shall be followed.
Article 3: Unlawful acts as named in these rules refers to:
(1) Infringing acts as listed in Article 47 of the Copyright Law, which at the same time damage public interest;
(2) Infringing acts as listed un Article 24 of the "Regulations on Computer Software Protection", which at the same time damage public interest; (3)Infringing acts as listed under Article 18 of the "Regulations on the Protection of Information Network Dissemination Rights" if they damage the public interest at the same time; infringing acts as listed under Articles 19 and 25; (4)Acts requiring administrative punishment under the provisions of Articles 41 and 44 of the "Regulations on Collective Management of Copyright;
(5) Unlawful copyright acts, which should receive administrative punishment under the provisions of other laws, regulations and rules.
Article 4: Concerning unlawful acts as listed in these rules, the copyright management administrative entities may, in accordance with the law, order cessation of the infringing activity, and mete out the following administrative punishments:
(1) warnings; (2) fines; (3) confiscation of illicit profits; (4) confiscation of infringing products; (5) confiscation of equipment for installing and stockpiling infringing products; (6) confiscating of materials, tools and equipment mainly used in producing infringing products; (7) other administrative punishments under the provisions of laws, administrative rules and regulations.
Chapter 2: Jurisdiction and application
Article 5: The unlawful acts as listed in these rules will be investigated and prosecuted by the copyright administrative management entities of the locality of the infringing act, the locality of the manifestation of the result of infringement, the locality of the storage of infringing products or the locality of lawful sealing or detaining. Except if other laws or regulations provide otherwise.
Investigation and prosecution of unlawful acts of infringements of dissemination rights over information networks will be the responsibility of the copyright administrative management entity of the location of the infringer, the location of the network service machines and other equipment effecting the infringing activity or the location of registry of the website.
Article 6: The National Copyright Agency may investigate and prosecute unlawful acts of significant influence in the entire country, as well as other unlawful acts it considers it should investigate and prosecute. Local copyright administrative management entities are responsible for investigation and prosecution of unlawful acts occurring in the area under their jurisdiction.
Article 7: When two or more local copyright administrative management entities have jurisdiction over the same unlawful act, the copyright administrative management unit who was first in filing the case is responsible for investigation and prosecution of the unlawful act.
If disputes between local copyright administrative management entities occur because of jurisdiction, or if jurisdiction is not specified, a compromise solution will be worked out by both parties in the dispute; if a compromise solution cannot be reached, their common copyright administrative management entity of one level higher will be petitioned to assign jurisdiction, their common copyright administrative management entity of one level higher may also directly assign jurisdiction.
Higher level copyright administrative management entities may, if this is necessary, deal with cases of significant influence in the jurisdiction of lower level copyright administrative management entities, they may also hand over cases in their jurisdiction to lower level copyright administrative management entities to deal with; if lower level copyright administrative management entities believe that the case details of cases in their jurisdiction are significant or complex, and need to be dealt with by higher level copyright administrative management entities, they may petition the copyright administrative entity of one level higher to deal with the case.
Article 8: Unlawful acts found out, investigated and prosecuted by copyright administrative management entities, if suspected to constitute a crime under the provisions of the criminal laws of our country, should be transferred by that copyright administrative management entity to the judiciary in accordance with the "Regulations on Administrative Enforcement Bodies' Transfer of Suspected Criminal Cases".
Article 9: The period of effectiveness of administrative punishments issued by copyright administrative management entities is two years, calculation starting from the date of occurrence of the unlawful act. If the unlawful act is of successive or continuous nature, calculation will start from the ending of the unlawful act. If infringing products are still being distributed, or dissemination on a website still continues, it shall be considered as still continuing unlawful acts.
If unlawful acts are not found out within two years, they will no more be punished administratively. Except when other laws provide otherwise.
Chapter 3: Punishment procedure
Article 10: Apart from circumstances in which the Administrative Punishment Law provides the use of the simplified procedure, administrative copyright punishment shall use the normal procedure provided in the Administrative Punishment Law.
Article 11: The copyright administrative management entity using the normal procedure to investigate and prosecute unlawful acts, should register the case.
Towards unlawful acts as outlined in these rules, copyright administrative management entities may by themselves decide to file a case for investigation and prosecution, or can decide to file a case for investigation and prosecution based on materials transferred from relevant entities, they may also decide to file a case for investigation and prosecution based on the written request or report of persons of which the rights were infringed, persons concerned, or other insiders.
Article 12: The requesting person applying for the filing of a case for investigation and prosecution on the basis of unlawful acts as listed in these rules, should submit a letter of application, proof or rights, infringed goods (or products) as well as other evidence.
The letter of application should illustrate the name and surname (or organization name) and address of the party as well as the main facts and reasons for application for filing a case for investigation and prosecution.
If the requesting person entrusts a procurator to apply, the procurator should show a trust deed.
Article 13: The copyright administrative management entities should within 15 days of receiving all written request materials decide whether or not to accept and hear a case and inform the requesting person. If acceptance and hearing would not be granted, reasons should be informed in written form.
Article 14: At the time of filing of a case, a case file examination and approval form should be filled out, at the same time the relevant materials, including written request or report materials; the relevant materials of a case transferred by a higher level copyright administrative management entity or a relevant entity, the inspection reports of law enforcement officers etc. should be enclosed, and examined and approved by the responsible person of this entity, two or more case-handling staff are to be appointed to carry out investigation and processing.
If case-handling staff is concerned with the cases, they should withdraw themselves, if they do not withdraw, the parties may request their withdrawal. Withdrawal of case-handling staff must be examined and approved by the responsible person of this entity. The withdrawal of a responsible person should be examined and approved by the People's Government of this level.
Article 15: When law enforcement officers in the process of enforcement find out that unlawful acts are in the process of being committed, and if the circumstances are so critical that there is not time to file a case, they may take the following measures:
(1) Cease or correct the unlawful acts
(2) Put infringing products and materials, tools, equipment etc. used mainly for unlawful acts in advance registered storage
(3) Gather and collect other relevant evidence.
Law enforcement officers should promptly report relevant circumstances and materials to the copyright administrative management entity in charge, and conduct case filing formalities within seven days of discovery of the circumstances.
Art. 16: After the filing of the case, the case-handling staff should promptly carry out investigations, and demand the person with statutory burden of proof to put his proof within the time limit appointed by the copyright administrative management entities.
The case-handling staff, when collecting evidence, may adopt the following means to collect and gather relevant evidence:
(1) Consulting, duplication of document records, account books and other written materials relevant to the suspected unlawful acts;
(2) Collect samples of evidence of suspected infringing products;
(3) Put suspected infringing products,equipment for installing and stockpiling infringing products; suspected infringing websites and web pages, suspected infringing website service machines and materials, tools and equipment mainly used in unlawful acts in advance registered storage.
Art. 17: The case-handling staff should, during enforcement, show to the party or relevant persons their administrative enforcement credentials issued by the National Copyright Administration or local People's Government.
Art. 18: Evidence collected during the handling of the case include:
(1) documented evidence;
(2) material evidence;
(3) witness testimonies;
(4) audiovisual material;
(5) statements of the parties;
(6) authenticated conclusions
(7) records of spot inspections and checks
Article 19: Copyright-related manuscripts, master copies, lawful publications, work registry certificates, copyright contract registry certificates, proof provided by authentication organs, contracts of acquisition of rights, as well as infringing reproductions obtained by way of ordering, buying on the spot etc., by the parties or their entrusted persons and acquired objects, invoices etc, may act as evidence.
Art. 20: When the case-handling staff sample and collect evidence, and put relevant evidence in advance registered storage, they should have the party present. Concerning relevant goods, they should issue on the spot a double duplicate of a manufacturing statement, which should, after it is signed or stamped by the case-handling staff and the party, given respectively by the party and the case-handling staff to the local copyright administrative management entity for preservation. If the party is not present or refuses to sign or stamp, this circumstances shall be noted by two or more case-handling staff.
Article 21: When putting relevant evidence in advance registered storage, case-handling staff should obtain permission from the responsible person of this entity, and should hand over to the party an evidence advanced storage notice. The party or relevant person may not transfer or destroy relevant evidence during the period of evidence storage.
Evidence in advance registered storage, should be sealed with advanced registered storage strips of the copyright administrative management entity, and preserved on the spot by the party. If evidence in advance registered storage really needs to be moved to another location, it may be moved to a suitable location for storage. If the circumstances are so critical that there is no time to perform the formalities provided in these rules, the case-handling staff may adopt advance measures, and afterwards promptly complete formalities.
Art. 22 (Steps after advanced registered storage) Concerning evidence in advanced registered storage, one of the listed decisions should be made within 7 days of handing over the evidence advanced registered storage notice:
(1) If authentication is needed, it should be delivered for authentication;
(2) If unlawful facts are established, and if confiscation should happen, the confiscation procedure should occur according to law;
(3) If transfer to a relevant entity is necessary, the case together with the evidence will be transferred to the relevant entity;
(4) If unlawful facts are not established, or if confiscation should not happen according to the law, measures should be taken to release registered storage;
(5) Other related statutory measures.
Art. 23 (Entrusted investigation) When, during the process of case investigation, the copyright administrative management entities entrust other copyright administrative management entities to perform investigations on their behalf, they should issue a trust deed. The copyright administrative management entity that is entrusted should give vigorous assistance.
Art. 24 (Expert appraisal) For questions of a technical nature arising during the investigation and prosecution, the copyright administrative management entity may entrust special agencies or engage expert personnel to carry out appraisal.
Art. 25 (Investigation report) After the final stage of the investigation, the case-handling staff should submit a case investigation report, explaining whether the relevant activities violate the law or not, and putting forward suggestions for process, and relevant facts, grounds and basis, as well as including the complete evidence materials.
Art. 26 (Notification of the parties) When the copyright administrative management entity has drafted an administrative punishment decision, the person in charge of that entity should sign an issue an administrative punishment advance notice, informing the parties on the facts, grounds and basis of the drafted administrative punishment decision, as well as informing the parties on their rights of declaration, right of defence and other rights.
The administrative punishment advance notice should be delivered directly to the parties by the copyright administrative management entity, the parties should sign or stamp the delivery form. If parties refuse to sign for receipt, the situation should be noted clearly by the delivery personnel, the documents to be delivered should be left at the domicile receiving the delivery personnel, and the person in charge of the relevant entity should be informed. The copyright administrative management entity may also adopt postal delivery methods to inform the parties. If there is no way to find the parties, they may notify by public proclamation.
Article 27: If the parties wish to make a statement or a pleading, they should raise their statement or pleading, as well as the relevant facts, reasons and evidence before the copyright administrative management entity within seven days after notification of the defendant, or within 30 days of the day of issuance of the announcement. If the parties did not exercise their right statement or pleading within this period, they will be regarded as having renounced the right.
If the direct delivery method is used for notification, the day of receipt and signing of the party is used as the day of notification of the defendant, if the postal delivery method is used for notification, the day of receipt as indicated on the receipt slip is used as the day of notification of the defendant.
Article 28: The case-handling staff should fully listen to the statements and pleadings of the parties, carry out a review of the facts, reasons and evidence raised by the parties, and submit a review report.
The copyright administrative management entity may not increase punishment because of pleading by the parties.
Article 29: The responsible person of the copyright administrative management entity should carry out an examination of the case investigation report and the review report and respectively make the following processing decisions on the basis of the investigation results:
(1) if an unlawful act that should be punished administratively truly exists, administrative punishment should be meted out according to the level of the fault of the infringer, the duration of the infringement, the size of the scope of infringement, the consequence of the damage and other circumstances;
(2) if the unlawful act is trivial, administrative punishment may not be meted out;
(3) if unlawful facts are not established, no administrative punishment will be meted out;
(4) if the unlawful acts are suspected to constitute a crime, it will be transferred to the judiciary.
Relatively heavy administrative punishment will be meted out against unlawful acts of which the circumstances are complicated or which are significant, this will be decided by collective discussion of the responsible persons of the copyright administrative management entity.
Article 30: When the copyright administrative management entity decides to impose a fine, the amount of the fine will be fixed according to the provisions of Article 36 of the "Implementing Regulations of the Copyright Law of the People's Republic of China", Article 24 of the "Regulations for the Protection of Computer Software" and Articles 18 and 19 of the "Regulations on the Protection of Information Network Dissemination Rights".
Article 31: If the circumstances of the unlawful act are grave, the copyright administrative management entity may confiscate the materials, tools and equipment etc., used mainly in producing the infringing products.
"Grave circumstances" as named in the aforementioned clause, refers to:
(1) if the illicit income amount (viz. amount of profit) is more than 2.500 yuan; (2) if the illicit business amount of is more than 15.000 yuan;
(3) if the number of infringing products of an individual is greater than 250 volumes (discs or boxes);
(4) if one has already been found liable for copyright infringement, and again infringes copyright;
(5) if other significant influence or grave consequences result.
Article 32: If another administrative department has already fined the same one unlawful act of the party, the copyright administrative management entity may not fine it again, but may still mete out other sorts of punishment according to the provisions of Article 4 of these Rules, according to the specific circumstances.
Article 33: Before the copyright administrative management entity decides to impose relatively large fines or other administrative punishments requiring a hearing according to the provisions of laws or administrative regulations, it should notify the parties of the rights for requiring for a hearing.
"Relatively large fines" as named in the aforementioned clause, reference to a fine for an individual of more than 20.000 yuan, and a fine for a work unit of more than 100.000 yuan. If local rules and regulations have different criteria for a hearing, it will be conducted according to local rules and regulations.
Article 34: If the parties wish a hearing, the copyright administrative management entity should organize a hearing according to the procedures of the provisions of Article 42 of the Administrative Punishment Law. The parties do not bear the cost of organizing a hearing.
Article 35: If the copyright administrative management entity decides to mete out punishment, it should formulate an administrative punishment resolution.
If the copyright administrative management entity decides not to mete out punishment for a trivial unlawful act, it should formulate an administrative non-punishment resolution, explain the facts, reasons and basis for not meting out punishment, and serve it on the parties; if an unlawful act is not established, it should formulate an investigation result notice, and serve it on the parties.
If the copyright administrative management entity decides to transfer a case to the judiciary for processing, it should formulate a notice of transfer for a suspected criminal case, and send it timely to the judicial department having jurisdiction, together with the relevant material and evidence.
Article 36: The administrative punishment resolution should be handed over to the parties on the spot after proclamation by the copyright administrative management entity. If parties are not present, it should be sent to the parties within seven days.
Article 37: If parties refuse to accept the administrative punishment of the National Copyright Administration, an application for administrative redress may be made to the National Copyright Administration; if the parties refuse to accept the administrative punishment of a local copyright administrative management entity, an application for administrative redress may be made to the People's Government of that level of the copyright administrative management entity of one level higher.
If the parties refuse to accept the administrative punishment or the administrative redress decision, administrative action may be raised, according to the law.
Chapter 4: Execution procedures
Article 38: After the parties receive the administrative punishment resolutions, they should fulfil their obligations within the time limits of the administrative punishment resolution.
If the party’s request administrative redress, or an administrative action is raised, the administrative punishment must be fulfilled without delay. Except if laws provide otherwise.
Article 39: Confiscated infringing products should be destroyed, or should be disposed of in other suitable manners after approval of the infringed party.
When destroying infringing products, the copyright administrative management entity should appoint more than two law enforcement officers to supervise the destruction process, examine the destruction results and record the destruction.
Concerning the confiscated materials, tools and equipment etc. mainly used in producing infringing products, the copyright administrative management entity should organize a public auction according to the law or dispose of them according to the relevant national provisions.
Chapter 5: supplementary articles
Article 41: infringing products as named in these rules include infringing reproductions and works posing as signed by other persons.
Article 42: The copyright administrative management entities should set up a copyright administrative punishment statistics system according to the national regulations on statistics, and should submit yearly copyright administrative punishment statistics to the copyright administrative management entity of one level higher
Article 43: After the administrative punishment decision or reconsideration resolution is completely carried out, the copyright administrative management entity should file the case materials timely.
Materials to be put on file include: the administrative punishment resolution, the case file examination and approval form, the case investigation report, the review report, the reconsideration resolution, the records of hearings, the hearing reports, evidence material, property disposition documents as well as other relevant materials.
Article 44: The relevant legal documents touched upon in these Rules, should be made according to the relevant document forms of the National Copyright Administration.
Article 45: These Rules will take effect from 15 June 2009. The "Copyright Administrative Punishment Implementation Rules ", promulgated by the National Copyright Administration will be abolished at the same time, if these Rules should contradict with other relevant regulations promulgated before the implementation of these Rules, these Rules should be carried out.