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	INTERPRETATION OF THE SUPREME PEOPLE'S COURT CONCERNING THE APPLICATION OF LAWS IN TRIAL OF CIVIL CASES OF COPYRIGHT IN DISPUTES

	(Public Announcement of the Supreme People's Court (No. 31 [2002] of Legal Interpretations), October 12, 2002: adopted by the 1246th Session of the Judicial Committee of the Supreme People's Court on October 12, 2002, which shall come into force as of October 15, 2002)


SUBJECT : LEGAL INTERPRETATION; COPYRIGHT; DISPUTES
ISSUING DEPARTMENT : SUPREME PEOPLE'S COURT OF THE PEOPLE'S REPUBLIC OF CHINA
ISSUE DATE : 10/12/2002
IMPLEMENT DATE : 10/15/2002
LENGTH : 2,493 words
TEXT :

With a view to correctly trial the cases of civil dispute over copyright, some issues concerning the application of laws are hereby interpreted on the basis of the statutory provisions including the General Principles of the 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 and the Civil Procedure Law of the People's Republic of China.

Article 1. The people's courts accept the civil cases of dispute over copyright mentioned below:

(1) The cases of dispute over the possession, infringement and contract of copyright or copyright-related rights and interests;

(2) The cases of plead for stopping the infringement upon copyright or copyright-related rights and interests before the institution of an action or for attachment of property or evidences before the institution of an action;

(3) Other cases of dispute over copyright or copyright-related rights and interests.

Article 2. A civil case of dispute over copyright shall be subject to the jurisdiction of the intermediate people's court or above.

All the higher people's court may, by taking the practical situations of their respective jurisdictions into consideration, designate some of the basic-level people's courts as the first-instance court for trying civil cases of dispute over copyright.

Article 3. As for the acts infringing upon copyright found out by the administrative departments of copyright, if any of the parties concerned lodges an action to look into the civil liabilities of the actor, such case shall be accepted by the people's court.

When trying a civil case of dispute over the infringement of copyright that has already been handled by the administrative department of copyright, the people's court shall examine the case facts in a comprehensive way.

Article 4. A civil action instituted on the ground of infringing upon copyright shall be subject to the jurisdiction of the people's court where the infringing act occurred or where the infringing reproductions were stored or detained and sealed up or where the defendant dwells provided for in Article 46 and 47 of the Copyright Law.

The place where the infringing reproductions were stored mentioned in the preceding paragraph refers to the place where large quantities of infringing reproductions were stored or infringing reproductions were stored or concealed for business purposes. The place of detention and sealing up refers to the place where the infringing reproductions were lawfully sealed up or detained by the administrative departments of customs, copyright, administrations for industry and commerce.

Article 5. For the joint actions instituted by several defendants of the place where different infringing acts are involved, the plaintiff may select the people's court of the place where the infringing act of either of the defendants occurred as the jurisdictional people's court. Where an action is instituted against only one of the defendants, the people's court of the place where the infringing act of the defendant shall have jurisdiction.

Article 6. Where an action is instituted by an organization lawfully established for the collective management of copyright in its own name upon the written authorization of the copyright holder, the people's court shall accept.

Article 7. The manuscripts, original scripts, lawful publications, copyright registration certificates, attestations issued by authentication institutions, contracts for acquiring rights, etc. submitted by the parties concerned may be adopted as evidences.

The natural persons, legal persons or other organizations which appear on a work or production as authors shall be deemed as the holder of copyright or copyright-related rights and interests unless there are evidences that prove the opposite.

Article 8. Where any party concerned purchases infringing reproductions by ordering or on-the-spot dealing by himself or authorizing any other person, the physical objects and invoices, etc. obtained thereby may be adopted as evidences.

The notaries issued by any notary public, without disclosing his own identity to the party that is suspicious of infringement, concerning the evidences obtained by the party concerned in the ways mentioned in the preceding paragraph or concerning the process of obtaining the evidences shall be adopted as evidences unless there are evidences that can prove the opposite.

Article 9. The phrase "making known to the public" mentioned in Article 10, Item 1 of the Copyright Law refers to that a work is made to known to unspecified people by the holder of copyright or with the permission of the copyright holder. However, it shall not be based on the condition that the general public has already known it.

Article 10. In the case of a "work" mentioned in Article 15, Paragraph 2 of the Copyright Law, if the copyright holder is a natural person, the provisions of Article 21, Paragraph 1 of the Copyright Law shall be applicable to the term of protection thereof; while in that the copyright holder is a legal person or any other organization, the provisions of Article 21, Paragraph 2 of the Copyright Law shall be applicable to the term of protection thereof.

Article 11. Where a dispute arises from the sequence of authorship to a work, the people's court shall handle the case according to the following principles. If there is any agreement concerning the sequence of authorship, such agreement shall apply. If there is no agreement, the sequence of authorship may be determined according to how much labor one had paid to the creation of the work or the sequence of the content of the work or the number and sequence of the strokes of the Chinese characters for the surnames of the authors.

Article 12. According to Article 17 of the Copyright Law which provides that the copyright to an entrusted work, the trustor has the right to use the work within the stipulated scope of use. If both parties fail to agree upon the scope of use of the work, the trustor may gratuitously use the work within the scope of the specific purpose for creating the work.

Article 13. Apart from the situation provided in Article 11, Item 3 of the Copyright Law, works such as reports and speeches which are written by other people but are revised, finalized and delivered in one's own name, the copyright shall be held by the person who makes the report or speech. The copyright holder may pay appropriate remunerations to the writers.

Article 14. Where the parties concerned agree to create an autobiographical work on the basis of the experiences of a particular person and if they have come to any agreement concerning the possession of copyright, such agreement shall apply. If they have not come to any agreement, the copyright thereof shall be held by the particular person. If the writer of the work has made efforts to the work, the copyright holder may pay appropriate remunerations to him.

Article 15. With regards to a work created by different authors on the basis of a same topic, the authors shall enjoy independent copyright if the expression of the work is completed independently and is creative.

Article 16. The purely factual news which is disseminated through mass media are the news of current affairs provided in Article 5, Item 2 of the Copyright Law. When disseminating the news of current affairs written by other persons, the source of the news shall be marked.

Article 17. The word "reprint" mentioned in Article 32, Paragraph 2 of the Copyright Law refers to the publishing of works by a newspaper or magazine that have already been published by other newspapers or magazines. Any one who reprints a work without marking the authors or the newspaper or magazine that has first published the work shall assume the civil liabilities of clearing up ill effects and making apologies.

Article 18. The term "artistic work in out-door public places" mentioned in Article 22, Item 10 of the Copyright Law refers to artistic works such as sculptures, painting, calligraphy works, etc. that are located or displayed in out-door places for social public activities.

Any person who copies, paints, takes photographs or video tapes of the artistic works mentioned in the preceding paragraph may further use his products in reasonable ways and scopes without constituting an infringement.

Article 19. Publishers and producers shall bear the burden of proof concerning the lawful authorization of its publication or production. Issuers and leasers shall bear the burden of proof concerning the lawful source of the reproductions issued or leased. Any one who fails to produce evidences shall assume the legal liabilities provided in Articles 46 and 47 of the Copyright Law.

Article 20. In case any publication has infringed upon the copyright of any other person, the publisher shall assume civil liabilities of compensation according to seriousness of fault or infringement or damages caused.

Any publisher who fails to give reasonable care to the authorization of the publication or the source or authorship of the contributions or the content of the publication it has edited shall be responsible for making compensations according to the provisions of Article 48 of the Copyright Law.

If the publisher has given reasonable care and the copyright holder cannot produce evidences to prove that the publisher should have known that the publication thereof has constituted an infringement, it shall, according to the provisions of Article 117, Paragraph 1 of the General Principles of the Civil Law of the People's Republic China, assume the civil liabilities of stopping the infringement and refunding the profits gained from the infringement.

The publisher shall bear the burden of proof to prove that it has given reasonable care.

Article 21. A user of computer software who uses the software without permission or beyond the permitted scope of business use shall assume the civil liabilities provided in Article 47, Item 1 of the Copyright Law, Article 24, Item 1 of the Regulation on the Protection of Computer Software.

Article 22. Where a contract for the transfer of copyright fails to be made in written form, the people's court shall examine and determine whether the contract establishes according to the provisions of Articles 36 and 37 of the Contract Law.

Article 23. Where any publisher who loses the work of delivered by the holder of copyright for publication so that the publication contract cannot be performed, it shall assume the civil liabilities provided in Article 53 of the Copyright Law, Article 117 of the General Principles of the Civil Law and Article 122 of the Contract Law.

Article 24. The actual losses of the copyright holder may be computed according to the arithmetic product of the reduced sales volume of the reproductions incurred by the infringement or the sales volume of the infringing reproductions and the unit profits of the reproductions of the copyright holder. If it is difficult to determine the reduction of the sales volume, it shall be the market sales volume of the infringing reproductions.

Article 25. Where it is impossible to determine the actual losses of the copyright holder or the illegal gains of the infringer, the people's court may determine the amount of compensation upon the request of the parties concerned or by applying the provisions of Article 48, Paragraph 2 of the Copyright Law upon its own power.

When determining the amount of compensation, the people's court shall take into comprehensive consideration of the type of the work, reasonable royalties, nature and consequences of the infringing act.

Where the parties concerned have come into any agreement concerning the amount of compensation according to the provisions of Paragraph 1 of the present Article, such agreement shall apply.

Article 26. The term "reasonable expenses for stopping infringing acts" mentioned in Article 48, Paragraph 1 of the Copyright Law shall include the reasonable expenses of the right holder or the agent entrusted thereby in looking into the infringing acts and obtaining evidences.

The people's courts may, according to the allegations of the parties concerned and the specific situations of the cases concerned, include the lawyer's fees that conform to the provisions of relevant departments of the state into the range of compensations.

Article 27. For the cases instituted on the ground of infringing upon one's copyright that has happened before the Decision (of the Standing Committee of the People's Congress) on Amending the Copyright Law takes effect and the people's court makes the judgment after the Decision has taken effect, the provisions of Article 48 of the Copyright Law may be applied by reference.

Article 28. The statute of limitations for the infringement of copyright is two years, starting from the day when the copyright holder knows or should have known of the infringing act. Where the right holder institutes an action after two years, and if the infringing act still exists when the action is instituted and is within the period of copyright protection, the people's court shall rule that the defendant shall stop the infringing act, and the amount of compensations for damages shall be computed till two years further as of the day when the right holder institutes the action with the people's court.

Article 29. For the infringing acts provided in Article 47 of the Copyright Law, the people's court may, apart from imposing civil liabilities upon the actors upon the pleading of the parties concerned, impose civil sanctions to the actors according to the provisions of Article 134, Paragraph of the General Principles of the Civil Law. The amount of fines to be imposed upon may be determined by referring to the relevant provisions of the Regulation of the People's Republic of China on Implementing the Copyright Law.

In case the administrative department of copyright has already imposed administrative punishments to a same infringing act, the people's court shall not impose any more civil sanctions.

Article 30. For the acts of infringing upon copyright prior to October 27, 2001, if the parties concerned pleads to the people's court for ordering the actors to stop infringing acts or for taking measures of attachment of evidences, the provisions of Articles 49 and 50 of the Copyright Law shall apply.

Where the people's court takes the measures before the institution of an action, it shall handle the case by referring to the provisions of the Interpretations of the Supreme People's Court Concerning the Application of Laws for Stopping Acts of Infringing upon Registered Trademark Rights and for Attachment of Evidences Before An Action Is Instituted.

Article 31. Unless there are other provisions in the present Interpretations, the cases of civil dispute over copyright accepted by the people's courts after October 27, 2001, for the acts that happened prior to October 27, 2001, the provisions of Copyright Law prior to its amendment shall apply, while for the acts that happened subsequent to the said date, the provisions of the amended Copyright Law shall apply. For the civil acts that happened prior to the said but continues after the date, the provisions of the amended Copyright Law shall apply.

Article 32. Where any of the relevant provisions promulgated in the past is inconsistent with the present Interpretations, the present Interpretations shall prevail.