(This is becomming the a new internet copyrights law of China)
Regulations on the Protection of the Right of Communication through
Information Network(draft)
September 8, 2005
Article 1
These Regulations are formulated, in accordance with the Copyright Law of
the People's Republic of China (hereinafter referred to as the Copyright
Law), for the purposes of protecting the right of communication through
information network of copyright owners and copyright-related right owners
(hereinafter referred to as right owners) and encouraging the communication
to the public of highly rated works, performances, and sound and video
recordings.
Article 2
For the purpose of these Regulations, (1) "information network" means an
information system that is capable of making available to the public of
works, performances, or sound and video recordings by wire or wireless means
in such a way that members of the public may access these works,
performances, or sound and video recordings from a place and at a time
individually chosen by them;
(2) "technological measures" means effective devices or methods used by
right owners or exclusive licensees for preventing or restricting
unauthorized or unlawful access to, or communication to the public of, their
works, performances, or sound and video recordings through information
network;
(3) "electronic rights management information" means texts, numbers or codes
that identify works, performances, or sound and video recordings as well as
their right owners or exclusive licensees, or that specify the terms and
conditions of use of the works, performances, or sound and video recordings,
when any of these items of information appears in connection with the
communication to the public through information network of works,
performances, or sound and video recordings.
Article 3
The right of communication through information network enjoyed by right
owners in their works, performances, or sound and video recordings consists
of both the right to communicate by themselves, and the right to authorize
other persons to communicate, their works, performances, or sound and video
recordings to the public through information network.
Anyone who uploads other persons' works, performances, or sound and video
recordings to a network server for public access, reproduction or use in
other means shall obtain authorization from, and pay remuneration to, the
right owners, except where otherwise provided for in laws or regulations.
Article 4
In the following cases, a work may be used without authorization from, and
without payment of remuneration to, the copyright owner, provided that the
name of the author as well as the title and source of the work are
indicated, depending on the circumstances, and that the other rights enjoyed
by the copyright owner are not prejudiced:
(1) re-pasting another person's remarks at a BBS to another BBS, except
where the copyright owner declares that re-pasting is not permitted;
(2) unavoidable representation or quotation of another person's published
work on information network for the purpose of reporting current events;
(3) communication to the public through information network of an article on
current political, economic or religious topics published by other media,
except where the copyright owner declares that communication in other means
is not permitted;
(4) communication to the public through information network of a speech
delivered at a public gathering, except where the copyright owner declares
that communication in other means is not permitted;
(5) provision by a public library of a published work in its collection with
its own network reading system for public reading within its premises,
provided that the network reading system does not provide copy service and
is able to effectively prevent further communication through information
network of the work provided for network reading;
(6) reproduction of another person's webpage for the purpose of providing
searching service, provided that the technological measures adopted by the
right owner or exclusive licensee are not circumvented, and that no copy
function is furnished;
(7) translation of a published work of a Chinese citizen, legal entity or
any other organization from Han language into any of minority nationality
languages, as well as communication of the translation to the public through
information network;
(8) use of software for non-profit purposes in the course of repairing
computers or other devices as well as systems or networks, or demonstrating
their functions.
The first paragraph shall also be applicable to the limitations on rights of
performers and producers of sound and video recordings.
Article 5
Except where the copyright owner declares in advance that the use of his
work is not permitted, a distance education institution which meets all of
the following conditions, in providing network distance education for
implementing the nine-year compulsory education and the national educational
planning, may use passages of a work, a short written work or musical work,
or a single work of fine art or photographic work which has been published
to produce textbook software for network distance education, without
permission from the copyright owner, provided that the name of the author as
well as the title and source of the work are indicated, that remuneration is
paid according to regulations, and that the other rights enjoyed by the
copyright owner according to law are not prejudiced:
(1) the textbook software is only provided to students registered with the
said distance education institution;
(2) the distance education system is able to effectively prevent further
communication through information network of the work used in the textbook
software;
The first paragraph shall also be applicable to the limitations on the right
of communication through information network of performers and producers of
sound and video recordings.
Article 6
Except where the copyright owner declares in advance that the use of his
work is not permitted, a public library which meets all of the following
conditions may provide a published work in its collection with its own
network reading system for public reading to registered readers outside its
premises, without permission from the copyright owner, provided that the
name of the author as well as the title and source of the work are
indicated, that remuneration is paid according to regulations, and that the
other rights enjoyed by the copyright owner according to law are not
prejudiced:
(1) the work provided for network reading has been lawfully published for
more than three years;
(2) the network reading system does not provide copy service;
(3) the network reading system is able to precisely record the times the
work has been read and to effectively prevent further communication through
information network of the work provided for network reading.
Article 7
Except where the copyright owner declares in advance that reproduction or
excerpting is not permitted, a written work, work of fine art or
photographic work, after being published in a newspaper or periodical or on
information network, may be reproduced or used as excerpts or data in
another newspaper or periodical or on information network, provided that the
name of the author as well as the title and source of the work are
indicated, that remuneration is paid according to regulations, and that the
other rights enjoyed by the copyright owner according to law are not
prejudiced.
Article 8
No one shall circumvent technological measures adopted by right owners or
exclusive licensees without their permission to weaken or disable the effect
of their technological measures, except where otherwise provided for in
these Regulations.
Article 9
In any of the following cases, those who circumvent technological measures
without permission of the right owner or exclusive licensee shall not bear
legal liabilities:
(1) for the use permitted by law of works, performances, or sound and video
recordings communicated through information network;
(2) for the research concerning encryption on information network for
non-commercial purposes;
(3) for technical testing to identify or rectify security defects of
information network for non-commercial purposes;
(4) for the research concerning browser filtering technologies for
non-commercial purposes;
(5) for investigation of illegal or criminal activities on information
network.
Article 10
Right owners or exclusive licensees, in adopting technological measures,
shall not disrupt or harm other persons' computers or other devices or
systems, nor shall they threat network security or information security.
With regard to the technological measures that may still affect normal
access to or use of works, performances, or sound and video recordings after
their lawful circumvention, the right owners or exclusive licensees shall
specify their uses and features in an explicit form.
Article 11
No one shall remove or alter electronic rights management information of
works, performances, or sound and video recordings without permission of the
right owners or exclusive licensees, except where otherwise provided for in
these Regulations.
The following acts shall not be performed without permission of the right
owners or exclusive licensees:
(1) communicating to the public through information network false electronic
rights management information;
(2) communicating to the public through information network works,
performances, or sound and video recordings whose electronic rights
management information has been removed or altered without permission of the
right owners or exclusive licensees.
Article 12
Where it is impossible for a radio station or television station to avoid
removing or altering the electronic rights management information in
broadcasting works, performances, or sound and video recording by way of
analogue signals, due to technical or financial difficulties, the said radio
station or television station shall not bear legal liabilities.
Article 13
Anyone who illegally uploads other persons' works, performances, or sound
and video recordings to a network server for public access, reproduction or
use in other means, or who commits any other illegal act prohibited by these
Regulations, shall bear civil liability, depending on the circumstances.
Where public interests are impaired, the copyright administrative department
may order the person to discontinue the infringing or illegal act,
confiscate his unlawful gains and impose a fine. If the circumstances are
serious, the copyright administration department may also confiscate the
instrument mainly used for the infringing or illegal activities. Where the
act constitutes a crime, criminal liability shall be investigated according
to law.
Article 14
Anyone who provides the service for storing network content only through
automatic technological process shall not bear compensatory liability for
storing infringing or illegal network content if one of the following
conditions is met:
(1) the service provider does not know that the network content which he
stores is infringing or illegal;
(2) the service provider takes down the network content within five days
from the time he knows or he ought to know that the specific network content
which he stores is infringing or illegal.
The first paragraph shall also be applicable to searching service providers
of network content.
Article 15
A right owner, when finding infringing or illegal network content, may send
a notification that meets all of the following conditions to the storage
service provider or searching service provider of such content, asking for
its take-down:
(1) the notification is in a written or printed form, or sent in an email;
(2) the notification indicates the name and address of the right owner or
exclusive licensee;
(3) the notification requests a take-down of the infringing or illegal
network content and specifies its URL address;
(4) the notification is signed by, or affixed with a seal of, the right
owner.
In the absence of proof to the contrary, it shall be presumed that the
storage service provider or searching service provider ought to know that
the content he stores is infringing or illegal once receiving from the right
owner a notification that meets all of the conditions specified in the first
paragraph.
Article 16
A storage service provider, who takes down specific network content after
receiving the notification provided for in the first paragraph of Article
15, shall not be held liable for breach of contract if one of the following
conditions is met:
(1) the service provider notifies the content provider in three days after
taking down the specific network content;
(2) the service provider recovers the specific network content that has been
taken down in seven days after knowing of the withdrawal of the notification
by the right owner or of a ruling by the people's court that the specific
network content is not infringing or illegal.
Article 17
The right owner or exclusive licensee may, for the purpose of litigation or
application for provisional measures, apply to the people's court for
requesting the network service provider to offer necessary network
registration information. The network service provider who refuses to offer
such information without reasonable ground shall bear corresponding legal
liabilities.
Article 18
When finding an infringing or illegal act that impairs public interest, the
right owner or exclusive licensee may apply to the copyright administrative
department for investigation and administrative sanction.
In order to investigate and handle infringing or illegal cases that impair
public interest, the copyright administrative department may request the
network service provider to offer necessary network registration
information. The network service provider who refuses to offer such
information without reasonable ground shall bear corresponding legal
liabilities.
Article 19
Anyone who suffers a loss because of a wrong take-down of specific network
content according to the notification from the right owner may request the
right owner to bear the compensatory liability.
Article 20
The right owner or exclusive licensee who violates the provisions in Article
10 of these Regulations shall bear corresponding legal liabilities.
Article 21
These Regulations shall be effective on 2006.
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