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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II JURISDICTION AND APPLICATION CHAPTER III PUNISHMENT PROCEDURE CHAPTER IV EXECUTION PROCEDURE CHAPTER V SUPPLEMENTARY ARTICLES CHAPTER I GENERAL PROVISIONS Article 1. (Legislative Purpose) With a view to regulating the administrative punishment acts of the copyright administrative departments and protecting the lawful rights and interests of the citizens, legal persons and other organizations, the present rules are formulated in accordance with the Law of the People's Republic of China on Administrative Punishment (hereinafter referred to the Administrative Punishment Law), the Law of the People's Republic of China on Copyright and other laws and administrative regulations. Article 2. (Enforcement Body) The State Copyright Bureau and the relevant departments of the local people's governments that have the administrative power to enforce copyrights (hereinafter referred to the local copyright administrative departments) shall, within the statutory limits of their functions and powers, practice administrative punishment against the illegal acts listed by the present rules. In case of inconformity with the provisions of the laws and regulations, the latter shall prevail. Article 3. (Illegal Acts) The illegal acts mentioned in the present rules refer to: (1) the tortious acts listed in Article 47 of the Copyright Law which harm the public interests at the same time; (2) the tortious acts listed in Article 24 of the Regulation on the Protection of Computer Software which harm the public interests at the same time; and (3) the copyright illegal acts provided by other laws, regulations and administrative rules to receive administrative punishment. Article 4. (Type of Punishment) For the illegal acts listed by the present rules, the copyright administrative departments may mete out the following types of administrative punishment in accordance with the law: (1) order suspension of the tortious acts; (2) confiscate the illegal gains; (3) confiscate the infringing copies; (4) administer fines; (5) confiscate the materials, tools, equipment, etc. used for producing the infringing copies; (6) other administrative punishment provided by the laws, regulations and administrative rules. CHAPTER II JURISDICTION AND APPLICATION Article 5. (Jurisdiction by Region) Unless otherwise provided by the laws and regulations, the illegal acts listed by the present rules shall be subject to the investigation and punishment by the copyright administrative department at the place where the tortious acts are conducted, the place where the tortious results happen, the place of storage for the infringing copies, or the place of sealing-up and seizure in accordance with the law. Article 6. (Jurisdiction by Level) The State Copyright Bureau may investigate and punish the illegal acts exerting nationwide impact and other illegal acts deemed to be under its jurisdiction. The local copyright administrative departments shall take charge of the illegal acts within their respective jurisdictions. Article 7. (Jurisdiction Dispute and Designated Jurisdiction) In case that two or more local copyright administrative departments have jurisdiction over the same illegal act, the copyright administrative department being the first to establish the case shall take charge of the investigation and punishment of this illegal act. When any jurisdictional dispute arises between local copyright administrative departments or the jurisdiction is unspecified, the disputed parties shall negotiate for solution; if the negotiation fails, they shall make a report to the common copyright administrative department at higher level requesting for jurisdiction designation, or the common copyright administrative department at higher level may directly designate the jurisdiction. If necessary, the copyright administrative department at higher level may handle the case of considerable impact that is under the jurisdiction of the copyright administrative department at lower level, or hand over the case under its jurisdiction to the copyright administrative department at the lower level. The copyright administrative department at lower level may, when considering the case under its jurisdiction serious and complicated enough to be handled by the copyright administrative department at a higher level, make a report requesting for the involvement of the latter. Article 8. (Transfer) Upon discovering the investigated and punished illegal acts suspected to constitute crimes in accordance with the provisions of the criminal law, the copyright administrative departments shall transfer the case to the judicial organ for punishment in light of the Provisions of the State Council for Transferring the Suspected Criminal Cases by Administrative Law Enforcement Organs. Article 9. (Time of Effect) The statute of limitations for the copyright administrative departments to give administrative punishment for illegal acts is two years, starting from the day when the illegal acts occur. If the illegal acts continue or are in a continuous state, the time of effect shall be calculated from the day when the acts cease. If the infringing copies continue to be distributed, they shall be regarded as the continuation of the illegal acts. If the illegal acts are not discovered within two years, the administrative punishment shall no longer be given unless otherwise provided by the law. CHAPTER III PUNISHMENT PROCEDURE Article 10. (General Procedure) Except for the circumstances of applying the streamlined procedures pursuant to the Administrative Punishment Law, the copyright administrative punishment shall follow the general procedures prescribed by the Administrative Punishment Law. Article 11. (Case Establishment) The copyright administrative departments should establish the cases when applying the general procedure to the investigation and punishment of illegal acts. For the illegal acts listed in the present rules, the copyright administrative departments may self-determine to establish the cases for investigation and punishment, or decide to establish the cases for investigation and punishment based on the documents transmitted by the relevant departments or the complaints or accusations made by the tort victims, interested parties or other informed persons. Article 12. (Complaint) When applying for case establishment against the illegal acts listed in the present rules, the complainant shall submit an application letter, rights and interests certification, works (or produce) infringed upon and other evidences. The application letter should specify the name and place of the party, and the major facts and reasons for applying for investigation and punishment. In the case of an application filed by an agent authorized by the complainant, the agent shall present a power of attorney. Article 13. (Acceptance) The copyright administrative department shall make a decision on whether to accept the application or not, and inform the complainant of the decision within 15 days after the receipt of all complaint documents. In case of non-acceptance, reasons shall be given in written form. Article 14. (Undertaking) During the case establishment, the case establishment approval form should be filled in, attached by the complaint or accusation documents, the document for case handover by the copyright administrative department at the higher level or case transfer by the relevant departments, the inspection report of the law enforcement personnel, etc. The case establishment shall be approved by the person in charge of the department who will designate not less than two case-handling persons for investigation and disposal. Those case-handling persons having an interests relation in the case shall withdraw its presence voluntarily from the case; in case of no voluntary withdrawal, the concerned party may apply for their withdrawal. The withdrawal of the case-handling persons shall be subject to the approval of the person in charge of the department, and the withdrawal of the person-in-charge approved by the people's government at the same level. Article 15. (Emergency Measures) During the process of law enforcement, if any ongoing illegal act is found and the situation allows no time for case establishment, the law enforcement personnel may take the following actions: (1) stop or correct the illegal acts; (2) register and keep on a preliminary basis the infringing copies and the materials, tools, equipments, etc. used mainly for the illegal acts, in accordance with the law; and (3) collect and obtain other relevant evidence. The law enforcement personnel shall report the relevant facts and documents in a timely manner to the copyright administrative department to which they belong and go through the formalities of case establishment. Article 16. (Evidence Acquisition) After the establishment of a case, the case-handling personnel shall conduct investigation in good time and instruct the person with the burden of proof to provide evidence within the time limit designated by the copyright administrative department. During evidence acquisition, the case-handling personnel may collect and obtain the evidence by employing the following methods: (1) consulting and copying the files, account books or other written documents related to the suspected illegal acts; (2) sampling the suspected infringing copies for evidence; and (3) registering and keeping the suspected infringing copies on a preliminary basis. Article 17. (Presentation of Law Enforcement Certificate) The case-handling personnel shall present to the party or the relevant persons the administrative law enforcement certificate issued by the State Copyright Bureau or the local people's government during their law enforcement. Article 18. (Type of Evidence) Evidence collected during the case handling shall include: (1) documentary evidences; (2) material evidences; (3) testimony of witnesses; (4) audio-visual materials; (5) statement of the parties; (6) expert conclusions; and (7) records of inspections and inquests. Article 19. (Evidence Provision by the Party) The copyright-related manuscripts, originals, lawful publications, copyright registration certificates, certifications issued by the accreditation institution and contracts for gaining rights and interests provided by the party, as well as the materials, invoices, etc. obtained by the party or other authorized persons from purchase of infringing copies through orders or spot trading may be used as evidence. Article 20. (List Making) When the case-handling personnel obtain evidences on the random basis, have them registered in advance and keep the relevant evidences on a preliminary basis, there should be the presence of the parties concerned. For the relevant articles, the list should be made in duplication and held respectively by the parties concerned and the copyright administrative department to which the case-handling personnel belong after being signed and sealed by the parties concerned and the case-handling personnel. In case any of the parties refuses to sign and seal, or is absent, this situation shall be noted down by no less than two case-handling persons. Article 21. (Procedure of Preliminary Registration and Keeping) Registering and keeping the relevant evidence on a preliminary basis by the case-handling personnel shall be subject to the approval of the person in charge of the department, with the preliminary evidence registration and keeping notice being issued to the parties concerned. During the storage period of the evidence, the party or the relevant persons may not transfer or destroy any of the evidences concerned. The preliminary registration and keeping seal should be annexed to the evidences registered on a preliminary basis by the copyright administrative department and kept by the party on the spot. Where it is necessary, the evidences registered and kept on a preliminary basis may be transferred to other appropriate places. Under emergent situations and there allows no time for going through the formalities provided for in this article, the case-handling personnel may take actions at the first instance and go through the formalities at a later timely date. Article 22. (Subsequent Measures to the Registration and Keeping on a Preliminary Basis) For the evidences registered and kept on a preliminary basis, the following decisions on its handling shall be made within seven days after the delivery of the preliminary evidence registration and keeping notice: (1) If authentication is needed, transmit the evidence for authentication; (2) If the illegal facts are established and confiscation is prescribed, conduct the confiscation pursuant to the legal procedures; (3) If the case should be transferred to the relevant department for handling, transfer it with the evidence to the relevant department for handling; (4) If the illegal facts are not established or confiscation should not be imposed in accordance with the law, cancel the measures on registration and keeping; and (5) Other statutory measures. Article 23. (Investigation Entrustment) If a copyright administrative department entrusts another copyright administrative department to conduct investigation during the process of case investigation and punishment, the former shall issue a power of attorney. The entrusted copyright administrative department should actively offer assistance.กกกก Article 24. (Professional Authentication) For professional issues involved in the case investigation and punishment, the copyright administrative departments may entrust the professional agencies or hire professionals to conduct authentications. Article 25. (Investigation Report) After the investigation concludes, the case-handling personnel shall submit a case investigation report, which states whether the acts concerned are illegal, proposes suggestions for handling and provides relevant facts, reasons and basis, and with all evidence and documents attached. Article 26. (Notifying the Parties Concerned) In case of proposing administrative punishment by the copyright administrative department, the person in charge of the department shall issue an advance notice on administrative punishment to inform the parties concerned of the facts, reasons and basis for proposing the administrative punishment and remind the parties of the rights of statement and argument, and other rights to be enjoyed. The advance notice on administrative punishment shall be delivered directly to the parties by the copyright administrative department. Upon receiving the notice, the parties shall sign and seal on the return receipt of delivery; should any party refuse to sign, the delivery personnel shall note down the situation and report it to the department in charge of the department. The copyright administrative department may send the notice by post as an option to inform the party. If the party cannot be found, the notice may be sent by way of public announcement. Article 27. (Time Limit for Statement and Argument of the Party) When requesting to make statement or argument, the party shall, within seven days after being informed or thirty days after the promulgation of the announcement, put forward its statement and argument opinion, and the corresponding facts, reasons and basis. In case of not exercising the rights of statement and argument within the prescribed time limit, the party is deemed to have waived his rights. If the party is informed by means of direct delivery, the date of signature by the party shall be the date of notification; if it is informed by post, the informed date shall be the date of receiving the mail indicated in the return receipt. Article 28. (Verification) The case-handling personnel shall fully consult the statement and argument opinion of the party, verify the facts, reasons and evidence offered by the party and submit the verification report. The copyright administrative department shall not impose heavier punishment due to the argument by the party. Article 29. (Handling Decision) The person in charge of copyright administrative department shall examine the case investigation report and the verification report, and make the following decisions respectively after examination: (1) For the illegal acts within the scope of acts for administrative punishment, an administrative punishment shall be given in light of the seriousness of the tortfeasor's fault, the tort duration, the range of the tort and the subsequences; (2) For minor tortious acts, the administrative punishment may be exempted; (3) If the illegal facts are not established, no administrative punishment may be given; (4) If it is suspected that the illegal acts have constituted any crime, the case should be transferred to the judicial organ for handling. Harsh administrative punishment against the illegal acts with complicated circumstances or of a grave nature shall be subject to collective discussion and decision by the leaders of the copyright administrative department. Article 30. (Fines) In case of imposing fines decided by the copyright administrative department, the amount of fines shall be determined in accordance with the provisions of Article 36 of the Rules for the Implementation of the Copyright Law of the People's Republic of China and Article 24 of the Regulations on the Protection of Computer Software. Article 31. (Punishment against Serious Illegal Acts) In case any illegal act is serious in nature, the copyright administrative departments may confiscate the materials, tools, equipment, etc. mainly used for making infringing copies. The term "serious" in the preceding paragraph means: (1) the amount of illegal gains (the amount of profit) by the person exceeds 5,000 yuan, or that by the organization exceeds 30,000 yuan; (2) the amount arising from illegal operations by individuals exceeds 30,000 yuan, or that by organizations exceeds 100,000 yuan; (3) the number of infringing copies operated by the person exceeds 2,000, or that by the organization exceeds 5,000; (4) committing copyright infringement again after being investigated for legal responsibilities due to copyright infringement; (5) causing other grave impact or serious consequences. Article 32. (No Double Punishment) For the same illegal act of the party already fined by other administrative department, the copyright administrative department shall no longer impose fines, but may still give other types of punishment provided for in Article 4 of the present rules based on the specific circumstances. Article 33. (Standard for Holding Hearings) When making the decision on fines of a considerable amount or other administrative punishment decisions required for holding hearings by the laws or administrative regulations, the copyright administrative department shall inform the party of the right to request for hearings. The term "fines of a considerable amount" means the fines of not less than 20,000 yuan for an individual person and not less than 100,000 yuan for an organization. If the hearing requirements are otherwise provided by the local regulations and administrative rules, the latter shall prevail. Article 34. (Hearing) If any party requests for holding a hearing, the copyright administrative department shall organize one in accordance with the procedures provided for in Article 42 of the Administrative Punishment Law. The party does not bear the cost of hearing organization. Article 35. (Legal Documentation) Upon the decision of giving administrative punishment, the copyright administrative department shall make a letter of decision on administrative punishment. For minor illegal acts to which the copyright administrative department decides not to give administrative punishment, a letter of decision on exemption for administrative punishment shall be made to state the facts, reasons and basis for not giving administrative punishment and delivered to the party; if the illegal facts are not established, the notice on investigation result shall be made and delivered to the party. For the cases decided by the copyright administrative department to be handed over to the judicial organ for handling, the letter of handover of suspected crime case shall be made and delivered to the eligible judicial organ in a timely manner with the relevant documents and evidence. Article 36. (Service) The letter of decision on administrative punishment shall be serviced to the party on the scene after proclamation by the copyright administrative department. If the party is not on the scene, the letter shall be delivered to the party within seven days. Article 37. (Applying for Administrative Reconsideration and Bringing Administrative Lawsuit) If any of the parties concerned does not agree to the administrative punishment by the State Copyright Bureau, he or it may apply to the State Copyright Bureau for administrative reconsideration; if he or it does not agree to the administrative punishment by the local copyright administrative department, he or it may apply to the people's government at the level of the department or the copyright administrative department at the next higher level for administrative reconsideration. Where the party does not agree to the administrative punishment or the decision on administrative reconsideration, it may bring an administrative lawsuit in accordance with the law. CHAPTER IV EXECUTION PROCEDURE Article 38. (Execution of Punishment Decision) After receiving the decision on administrative punishment, the party shall execute it within the time limit prescribed in the decision. If the party applies for administrative reconsideration or brings a lawsuit, the performance of the administrative punishment shall not be suspended unless it is otherwise provided for by law. Article 39. (Disposal of Confiscated Objects) The infringing copies confiscated shall be destroyed or disposed of by other appropriate means upon the consent of the tort victim. When destroying the infringing copies, the copyright administrative department shall designate not less than two law enforcement persons to supervise the destroying process, verify the destroying result and make the destroying records. For the confiscated materials, tools, equipment, etc. used mainly for producing infringing copies, the copyright administrative department shall hold public auction in accordance with the law or arrange the disposal by referring to the relevant provisions of the state. Article 40. (Execution Entrustment) The copyright administrative department at the higher level may entrust the copyright administrative department at the lower level to execute the administrative punishment decision made by the former. The latter shall report the execution result to the former. CHAPTER V SUPPLEMENTARY ARTICLES Article 41. (Administrative Punishment Statistics) The copyright administrative departments shall establish a copyright administrative punishment statistics system in accordance with the state laws and regulations on statistics, and submit a report on the copyright administrative punishment statistics to the higher copyright administrative department on a yearly basis. Article 42. (Filing) After completing the implementation of the administrative punishment decision or the reexamination decision, the copyright administrative departments shall keep on file the case materials in a timely manner. Materials for filling mainly include: the decision on administrative punishment, the approval form for case establishment, the case investigation report, the verification report, the decision on reexamination, the hearing notes, the hearing report, the evidence documents, the financial instruments, and other relevant materials. Article 43. (Legal Document Producing) The relevant legal documents mentioned by the present rules shall be produced by referring to the relevant document forms established by the State Copyright Bureau. Article 44. (Implementation) The present rules shall come into force as of September 1, 2003. The Rules for the Implementation of Copyright Administrative Punishment promulgated on January 28, 1997 shall be abrogated at the same time. In case of discrepancy between the present Rules and other relevant provisions promulgated before the implementation of the present rules, the present Rules shall prevail. |
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