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Copyright Laws and Regulations |
INTERNATIONAL COPYRIGHT
The Berne Convention on Literary and
Artistic Works
[Note: Those portions of the Berne Convention having
to do with administrative matters in
Articles 21 - 36, as well as an Appendix relating to developing countries, have
been deleted.]
BERNE CONVENTION FOR THE PROTECTION OF LITERARY
AND ARTISTIC WORKS OF SEPTEMBER 9, 1886,
COMPLETED AT PARIS ON MAY 4, 1896,
REVISED AT BERLIN ON NOVEMBER 13, 1908,
COMPLETED AT BERNE ON MARCH 20, 1914, AND
REVISED AT ROME ON JUNE 2, 1928,
AT BRUSSELS ON JUNE 26, 1948,
AT STOCKHOLM ON JULY 14, 1967, AND
AT PARIS ON JULY 24, 1971;
and amended on October 2, 1979
The
countries of the Union, being equally animated by the desire to protect, in as
effective and uniform a manner as possible, the rights of authors in their
literary and artistic works,
Recognizing
the importance of the work of the Revision Conference held at Stockholm in
1967,
Have
resolved to revise the Act adopted by the Stockholm Conference, while
maintaining without change Articles 1 to 20 and 22 to 26 of that Act.
Consequently,
the undersigned Plenipotentiaries, having presented their full powers,
recognized as in good and due form, have agreed as follows:
Article 1
The
countries to which this Convention applies constitute a Union for the
protection of the rights of authors in their literary and artistic works.
Article 2
(1) The
expression "literary and artistic works" shall include every
production in the literary, scientific and artistic domain, whatever may be the
mode or form of its expression, such as books, pamphlets and other writings;
lectures, addresses, sermons and other works of the same nature; dramatic or
dramatico-musical works; choreographic works and entertainments in dumb show;
musical compositions with or without words; cinematographic works to which are
assimilated works expressed by a process analogous to cinematography; works of
drawing, painting, architecture, sculpture, engraving and lithography;
photographic works to which are assimilated works expressed by a process
analogous to photography; works of applied art; illustrations, maps, plans,
sketches and three-dimensional works relative to geography, topography,
architecture or science.
(2) It
shall, however, be a matter for legislation in the countries of the Union to
prescribe that works in general or any specified categories of works shall not
be protected unless they have been fixed in some material form.
(3)
Translations, adaptations, arrangements of music and other alterations of a
literary or artistic work shall be protected as original works without
prejudice to the copyright in the original work.
(4) It
shall be a matter for legislation in the countries of the Union to determine
the protection to be granted to official texts of a legislative, administrative
and legal nature, and to official translations of such texts.
(5)
Collections of literary or artistic works such as encyclopaedias and
anthologies which, by reason of the selection and arrangement of their
contents, constitute intellectual creations shall be protected as such, without
prejudice to the copyright in each of the works forming part of such
collections.
(6) The
works mentioned in this article shall enjoy protection in all countries of the
Union. This protection shall operate for the benefit of the author and his
successors in title.
(7)
Subject to the provisions of Article 7(4) of this Convention, it shall be a
matter for legislation in the countries of the Union to determine the extent of
the application of their laws to works of applied art and industrial designs
and models, as well as the conditions under which such works, designs and
models shall be protected. Works protected in the country of origin solely as
designs and models shall be entitled in another country of the Union only to
such special protection as is granted in that country to designs and models;
however, if no such special protection is granted in that country, such works
shall be protected as artistic works.
(8) The
protection of this Convention shall not apply to news of the day or to
miscellaneous facts having the character of mere items of press information.
Article
2bis
(1) It
shall be a matter for legislation in the countries of the Union to exclude,
wholly or in part, from the protection provided by the preceding Article
political speeches and speeches delivered in the course of legal proceedings.
(2) It
shall also be a matter for legislation in the countries of the Union to
determine the conditions under which lectures, addresses and other works of the
same nature which are delivered in public may be reproduced by the press,
broadcast, communicated to the public by wire and made the subject of public
communication as envisaged in Article 11bis (1) of this Convention, when such
use is justified by the informatory purpose.
(3)
Nevertheless, the author shall enjoy the exclusive right of making a collection
of his works mentioned in the preceding paragraphs.
Article 3
(1) The
protection of this Convention shall apply to:
(a) authors who are nationals of one of the countries of the Union, for their
works, whether published or not;
(b) authors who are not nationals of one of the countries of the Union, for
their works first published in one of those countries, or simultaneously in a
country outside the Union and in a country of the Union.
(2)
Authors who are not nationals of one of the countries of the Union but who have
their habitual residence in one of them shall, for the purposes of this
Convention, be assimilated to nationals of that country.
(3) The
expression "published works" means works published with the consent
of their authors, whatever may be the means of manufacture of the copies,
provided that the availability of such copies has been such as to satisfy the
reasonable requirements of the public, having regard to the nature of the work.
The performance of a dramatic, dramatico-musical, cinematographic or musical
work, the public recitation of a literary work, the communication by wire or
the broadcasting of literary or artistic works, the exhibition of a work of art
and the construction of a work of architecture shall not constitute
publication.
(4) A work
shall be considered as having been published simultaneously in several
countries if it has been published in two or more countries within thirty days
of its first publication.
Article 4
The
protection of this Convention shall apply, even if the conditions of Article 3
are not fulfilled, to:
(a) authors of cinematographic works the maker of which has his headquarters or
habitual residence in one of the countries of the Union;
(b) authors of works of architecture, erected in a country of the Union or of
other artistic works incorporated in a building or other structure located in a
country of the Union.
Article 5
(1)
Authors shall enjoy, in respect of works for which they are protected under
this Convention, in countries of the Union other than the country of origin,
the rights which their respective laws do now or may hereafter grant to their
nationals, as well as the rights specially granted by this Convention.
(2) The
enjoyment and the exercise of these rights shall not be subject to any
formality; such enjoyment and such exercise shall be independent of the
existence of protection in the country of origin of the work. Consequently,
apart from the provisions of this Convention, the extent of protection, as well
as the means of redress afforded to the author to protect his rights, shall be
governed exclusively by the laws of the country where protection is claimed.
(3)
Protection in the country of origin is governed by domestic law. However, when
the author is not a national of the country of origin of the work for which he
is protected under this Convention, he shall enjoy in that country the same
rights as national authors.
(4) The
country of origin shall be considered to be (a) in the case of works first
published in a country of the Union, that country; in the case of works
published simultaneously in several countries of the Union which grant
different terms of protection, the country whose legislation grants the
shortest term of protection;
(b) in the case of works published simultaneously in a country outside the
Union and in a country of the Union, the latter country;
(c) in the case of unpublished works or of works first published in a country
outside the Union, without simultaneous publication in a country of the Union,
the country of the Union of which the author is a national, provided that:
(i) when these are cinematographic works the maker of which has his
headquarters or his habitual residence in a country of the Union, the country
of origin shall be that country, and
(ii) when these are works of architecture erected in a country of the Union or
other artistic works incorporated in a building or other structure located in a
country of the Union, the country of origin shall be that country.
Article 6
(1) Where
any country outside the Union fails to protect in an adequate manner the works
of authors who are nationals of one of the countries of the Union, the latter
country may restrict the protection given to the works of authors who are, at
the date of the first publication thereof, nationals of the other country and
are not habitually resident in one of the countries of the Union. If the
country of first publication avails itself of this right, the other countries
of the Union shall not be required to grant to works thus subjected to special
treatment a wider protection than that granted to them in the country of first
publication.
(2) No
restrictions introduced by virtue of the preceding paragraph shall affect the
rights which an author may have acquired in respect of a work published in a
country of the Union before such restrictions were put into force.
(3) The
countries of the Union which restrict the grant of copyright in accordance with
this Article shall give notice thereof to the Director General of the World
Intellectual Property Organization (hereinafter designated as "the
Director General") by a written declaration specifying the countries in
regard to which protection is restricted, and the restrictions to which rights
of authors who are nationals of those countries are subjected. The Director
General shall immediately communicate this declaration to all the countries of
the Union.
Article
6bis
(1)
Independently of the author's economic rights, and even after the transfer of
the said rights, the author shall have the right to claim authorship of the
work and to object to any distortion, mutilation or other modification of, or
other derogatory action in relation to, the said work, which would be
prejudicial to his honor or reputation.
(2) The
rights granted to the author in accordance with the preceding paragraph shall,
after his death, be maintained, at least until the expiry of the economic
rights, and shall be exercisable by the persons or institutions authorized by
the legislation of the country where protection is claimed. However, those
countries whose legislation, at the moment of their ratification of or
accession to this Act, does not provide for the protection after the death of
the author of all the rights set out in the preceding paragraph may provide
that some of these rights may, after his death, cease to be maintained.
(3) The
means of redress for safeguarding the rights granted by this Article shall be
governed by the legislation of the country where protection is claimed.
Article 7
(1) The
term of protection granted by this Convention shall be the life of the author
and fifty years after his death.
(2)
However, in the case of cinematographic works, the countries of the Union may
provide that the term of protection shall expire fifty years after the work has
been made available to the public with the consent of the author, or, failing
such an event within fifty years from the making of such a work, fifty years
after the making.
(3) In the
case of anonymous or pseudonymous works, the term of protection granted by this
Convention shall expire fifty years after the work has been lawfully made
available to the public. However, when the pseudonym adopted by the author
leaves no doubt as to his identity, the term of protection shall be that
provided in paragraph (1). If the author of an anonymous or pseudonymous work
discloses his identity during the above-mentioned period, the term of
protection applicable shall be that provided in paragraph (1). The countries of
the Union shall not be required to protect anonymous or pseudonymous works in
respect of which it is reasonable to presume that their author has been dead
for fifty years.
(4) It
shall be a matter for legislation in the countries of the Union to determine
the term of protection of photographic works and that of works of applied art
in so far as they are protected as artistic works; however, this term shall
last at least until the end of a period of twenty-five years from the making of
such a work.
(5) The
term of protection subsequent to the death of the author and the terms provided
by paragraphs (2), (3) and (4), shall run from the date of death or of the
event referred to in those paragraphs, but such terms shall always be deemed to
begin on the 1st of January of the year following the death or such event.
(6) The
countries of the Union may grant a term of protection in excess of those
provided by the preceding paragraphs.
(7) Those
countries of the Union bound by the Rome Act of this Convention, which grant, in
their national legislation in force at the time of signature of the present
Act, shorter terms of protection than those provided for in the preceding
paragraphs, shall have the right to maintain such terms when ratifying or
acceding to the present Act.
(8) In any
case, the term shall be governed by the legislation of the country where
protection is claimed; however, unless the legislation of that country
otherwise provides, the term shall not exceed the term fixed in the country of
origin of the work.
Article
7bis
The
provisions of the preceding Article shall also apply in the case of a work of
joint authorship, provided that the terms measured from the death of the author
shall be calculated from the death of the last surviving author.
Article 8
Authors of
literary and artistic works protected by this Convention shall enjoy the
exclusive right of making and of authorizing the translation of their works
throughout the term of protection of their rights in the original works.
Article 9
(1)
Authors of literary and artistic works protected by this Convention shall have
the exclusive right of authorizing the reproduction of these works, in any
manner or form.
(2) It
shall be a matter for legislation in the countries of the Union to permit the
reproduction of such works in certain special cases, provided that such
reproduction does not conflict with a normal exploitation of the work and does
not unreasonably prejudice the legitimate interests of the author.
(3) Any
sound or visual recording shall be considered as a reproduction for the
purposes of this Convention.
Article 10
(1) It
shall be permissible to make quotations from a work which has already been
lawfully made available to the public, provided that their making is compatible
with fair practice, and their extent does not exceed that justified by the
purpose, including quotations from newspaper articles and periodicals in the
form of press summaries.
(2) It
shall be a matter for legislation in the countries of the Union, and for special
agreements existing or to be concluded between them, to permit the utilization,
to the extent justified by the purpose, of literary or artistic works by way of
illustration in publications, broadcasts or sound or visual recordings for
teaching, provided such utilization is compatible with fair practice.
(3) Where
use is made of works in accordance with the preceding paragraphs of this
Article, mention shall be made of the source, and of the name of the author, if
it appears thereon.
Article 10bis
(1) It
shall be a matter for legislation in the countries of the Union to permit the
reproduction by the press, the broadcasting or the communication to the public
by wire, of articles published in newspapers or periodicals on current
economic, political or religious topics, and of broadcast works of the same
character, in cases in which the reproduction, broadcasting or such
communication thereof is not expressly reserved. Nevertheless, the source must
always be clearly indicated; the legal consequences of a breach of this
obligation shall be determined by the legislation of the country where
protection is claimed.
(2) It
shall also be a matter for legislation in the countries of the Union to
determine the conditions under which, for the purpose of reporting current
events by means of photography, cinematography, broadcasting or communication
to the public by wire, literary or artistic works seen or heard in the course
of the event may, to the extent justified by the informatory purpose, be
reproduced and made available to the public.
Article 11
(1)
Authors of dramatic, dramatico-musical and musical works shall enjoy the
exclusive right of authorizing:
(i) the public performance of their works, including such public performance by
any means or process;
(ii) any communication to the public of the performance of their works.
(2)
Authors of dramatic or dramatico-musical works shall enjoy, during the full
term of their rights in the original works, the same rights with respect to
translations thereof.
Article
11bis
(1)
Authors of literary and artistic works shall enjoy the exclusive right of
authorizing:
(i) the broadcasting of their works or the communication thereof to the public
by any other means of wireless diffusion of signs, sounds or images;
(ii) any communication to the public by wire or by rebroadcasting of the
broadcast of the work, when this communication is made by an organization other
than the original one;
(iii) the public communication by loudspeaker or any other analogous instrument
transmitting, by signs, sounds or images, the broadcast of the work.
(2) It
shall be a matter for legislation in the countries of the Union to determine
the conditions under which the rights mentioned in the preceding paragraph may
be exercised, but these conditions shall apply only in the countries where they
have been prescribed. They shall not in any circumstances be prejudicial to the
moral rights of the author, nor to his right to obtain equitable remuneration
which, in the absence of agreement, shall be fixed by competent authority.
(3) In the
absence of any contrary stipulation, permission granted in accordance with
paragraph (1) of this Article shall not imply permission to record, by means of
instruments recording sounds or images, the work broadcast. It shall, however,
be a matter for legislation in the countries of the Union to determine the
regulations for ephemeral recordings made by a broadcasting organization by
means of its own facilities and used for its own broadcasts. The preservation
of these recordings in official archives may, on the ground of their
exceptional documentary character, be authorized by such legislation.
Article
11ter
(1)
Authors of literary works shall enjoy the exclusive right of authorizing:
(i) the public recitation of their works, including such public recitation by
any means or process;
(ii) any communication to the public of the recitation of their works.
(2)
Authors of literary works shall enjoy, during the full term of their rights in
the original works, the same rights with respect to translations thereof.
Article 12
Authors of
literary or artistic works shall enjoy the exclusive right of authorizing
adaptations, arrangements and other alterations of their works.
Article 13
(1) Each
country of the Union may impose for itself reservations and conditions on the
exclusive right granted to the author of a musical work and to the author of
any words, the recording of which together with the musical work has already
been authorized by the latter, to authorize the sound recording of that musical
work, together with such words, if any; but all such reservations and
conditions shall apply only in the countries which have imposed them and shall
not, in any circumstances, be prejudicial to the rights of these authors to
obtain equitable remuneration which, in the absence of agreement, shall be
fixed by competent authority.
(2)
Recordings of musical works made in a country of the Union in accordance with
Article 13 (3) of the Convention signed at Rome on June 2, 1928, and at
Brussels on June 26, 1948, may be reproduced in that country without the
permission of the author of the musical work until a date two years after that
country becomes bound by this Act.
(3)
Recordings made in accordance with paragraphs (1) and (2) of this Article and
imported without permission from the parties concerned into a country where
they are treated as infringing recordings shall be liable to seizure.
Article 14
(1)
Authors of literary or artistic works shall have the exclusive right of
authorizing:
(i) the cinematographic adaptation and reproduction of these works, and the
distribution of the works thus adapted or reproduced;
(ii) the public performance and communication to the public by wire of the
works thus adapted or reproduced.
(2) The
adaptation into any other artistic form of a cinematographic production derived
from literary or artistic works shall, without prejudice to the authorization
of the author of the cinematographic production, remain subject to the
authorization of the authors of the original works.
(3) The
provisions of Article 13 (1) shall not apply.
Article
14bis
(1)
Without prejudice to the copyright in any work which may have been adapted or
reproduced, a cinematographic work shall be protected as an original work. The
owner of copyright in a cinematographic work shall enjoy the same rights as the
author of an original work, including the rights referred to in the preceding
Article.
(2) (a)
Ownership of copyright in a cinematographic work shall be a matter for
legislation in the country where protection is claimed.
(b) However, in the countries of the Union which, by legislation include among
the owners of copyright in a cinematographic work authors who have brought
contributions to the making of the work, such authors, if they have undertaken
to bring such contributions, may not, in the absence of any contrary or special
stipulation, object to the reproduction, distribution, public performance,
communication to the public by wire, broadcasting or any other communication to
the public, or to the subtitling or dubbing of texts, of the work.
(c) The question whether or not the form of the undertaking referred to above
should, for the application of the preceding subparagraph (b), be in a written
agreement or a written act of the same effect shall be a matter for the
legislation of the country where the maker of the cinematographic work has his
headquarters or habitual residence. However, it shall be a matter for the
legislation of the country of the Union where protection is claimed to provide
that the said undertaking shall be in a written agreement or a written act of
the same effect. The countries whose legislation so provides shall notify the
Director General by means of a written declaration, which will be immediately
communicated by him to all the other countries of the Union.
(d) By "contrary or special stipulation" is meant any restrictive
condition which is relevant to the aforesaid undertaking.
(3) Unless
the national legislation provides to the contrary, the provisions of paragraph
(2) (b) above shall not be applicable to authors of scenarios, dialogues and
musical works created for the making of the cinematographic work, nor to the
principal director thereof. However, those countries of the Union whose
legislation does not contain rules providing for the application of the said
paragraph (2) (b) to such director shall notify the Director General by means
of a written declaration, which will be immediately communicated by him to all
the other countries of the Union.
Article
14ter
(1) The
author, or after his death the persons or institutions authorized by national
legislation, shall, with respect to original works of art and original
manuscripts of writers and composers, enjoy the inalienable right to an
interest in any sale of the work subsequent to the first transfer by the author
of the work.
(2) The
protection provided by the preceding paragraph may be claimed in a country of
the Union only if legislation in the country to which the author belongs so
permits, and to the extent permitted by the country where this protection is
claimed.
(3) The
procedure for collection and the amounts shall be matters for determination by
national legislation.
Article 15
(1) In
order that the author of a literary or artistic work protected by this
Convention shall, in the absence of proof to the contrary, be regarded as such,
and consequently be entitled to institute infringement proceedings in the
countries of the Union, it shall be sufficient for his name to appear on the
work in the usual manner. This paragraph shall be applicable even if this name
is a pseudonym, where the pseudonym adopted by the author leaves no doubt as to
his identity.
(2) The
person or body corporate whose name appears on a cinematographic work in the
usual manner shall, in the absence of proof to the contrary, be presumed to be
the maker of the said work.
(3) In the
case of anonymous and pseudonymous works, other than those referred to in
paragraph (1) above, the publisher whose name appears on the work shall, in the
absence of proof to the contrary, be deemed to represent the author, and in
this capacity be shall be entitled to protect and enforce the author's rights.
The provisions of this paragraph shall cease to apply when the author reveals
his identity and establishes his claim to authorship of the work.
(4) (a) In
the case of unpublished works where the identity of the author is unknown, but
where there is every ground to presume that he is a national of a country of
the Union, it shall be a matter for legislation in that country to designate
the competent authority who shall represent the author and shall be entitled to
protect and enforce his rights in the countries of the Union.
(b) Countries of the Union which make such designation under the terms of this
provision shall notify the Director General by means of a written declaration
giving full information concerning the authority thus designated. The Director
General shall at once communicate this declaration to all other countries of
the Union.
Article 16
(1)
Infringing copies of a work shall be liable to seizure in any country of the
Union where the work enjoys legal protection.
(2) The
provisions of the preceding paragraph shall also apply to reproductions coming
from a country where the work is not protected, or has ceased to be protected.
(3) The
seizure shall take place in accordance with the legislation of each country.
Article 17
The
provisions of this Convention cannot in any way affect the right of the
Government of each country of the Union to permit, to control, or to prohibit
by legislation or regulation, the circulation, presentation, or exhibition of
any work or production in regard to which the competent authority may find it
necessary to exercise that right.
Article 18
(1) This
Convention shall apply to all works which, at the moment of its coming into
force, have not yet fallen into the public domain in the country of origin
through the expiry of the term of protection.
(2) If,
however, through the expiry of the term of protection which was previously
granted, a work has fallen into the public domain of the country where
protection is claimed, that work shall not be protected anew.
(3) The
application of this principle shall be subject to any provisions contained in
special conventions to that effect existing or to be concluded between
countries of the Union. In the absence of such provisions, the respective
countries shall determine, each in so far as it is concerned, the conditions of
application of this principle.
(4) The
preceding provisions shall also apply in the case of new accessions to the
Union and to cases in which protection is extended by the application of
Article 7 or by the abandonment of reservations.
Article 19
The
provisions of this Convention shall not preclude the making of a claim to the
benefit of any greater protection which may be granted by legislation in a
country of the Union.
Article 20
The
Governments of the countries of the Union reserve the right to enter into
special agreements among themselves, in so far as such agreements grant to
authors more extensive rights than those granted by the Convention, or contain
other provisions not contrary to this Convention. The provisions of existing
agreements which satisfy these conditions shall remain applicable.
-
Universal Copyright Convention
Universal
Copyright Convention as revised at Paris on 24 July 1971
The
Contracting States.
Moved
by the desire to ensure in all countries copyright protection of literary,
scientific and artistic works,
Convinced
that a system of copyright protection appropriate to all nations of the world
and expressed in a universal convention, additional to, and without impairing
international systems already in force, will ensure respect for the rights of
the individual and encourage the development of literature, the sciences and
the arts,
Persuaded
that such a universal copyright system will facilitate a wider dissemination of
works of the human mind and increase international understanding,
Have
resolved to revise the Universal Copyright Convention as signed at Geneva on 6
September 1952 (hereinafter called “the 1952 Convention”), and consequently,
Have
agreed as follows:
ARTICLE
I
Each
Contracting State undertakes to provide for the adequate and effective
protection of the rights of authors and other copyright proprietors in
literary, scientific and artistic works, including writings, musical, dramatic
and cinematographic works, and paintings, engravings and sculpture.
ARTICLE
II
1.
Published works of nationals of any Contracting State and works first published
in that State shall enjoy in each other Contracting State the same protection as
that other State accords to works of its nationals first published in its own
territory, as well as the protection specially granted by this Convention.
2.
Unpublished works of nationals of each Contracting State shall enjoy in each
other Contracting State the same protection as that other State accords to
unpublished works of its own nationals, as well as the protection specially
granted by this Convention.
3.
For the purpose of this Convention any Contracting State may, by domestic
legislation, assimilate to its own nationals any person domiciled in that
State.
ARTICLE
III
1.
Any Contracting State which, under its domestic law, requires as a condition of
copyright, compliance with formalities such as deposit, registration, notice,
notarial certificates, payment of fees or manufacture or publication in that
Contracting State, shall regard these requirements as satisfied with respect to
all works protected in accordance with this Convention and first published
outside its territory and the author of which is not one of its nationals, if
from the time of the first publication all the copies of the work published
with the authority of the author or other copyright proprietor bear the symbol
ã accompanied by the name of the copyright proprietor and the year of first
publication placed in such manner and location as to give reasonable notice of
claim of copyright.
2.
The provisions of paragraph 1 shall not preclude any Contracting State from
requiring formalities or other conditions for the acquisition and enjoyment of
copyright in respect of works first published in its territory or works of its
nationals wherever published.
3.
The provisions of paragraph 1 shall not preclude any Contracting State from
providing that a person seeking judicial relief must, in bringing the action,
comply with procedural requirements, such as that the complainant must appear
through domestic counsel or that the complainant must deposit with the court or
an administrative office, or both, a copy of the work involved in the litigation;
provided that failure to comply with such requirements shall not affect the
validity of the copyright, nor shall any such requirement be imposed upon a
national of another Contracting State if such requirement is not imposed on
nationals of the State in which protection is claimed.
4.
In each Contracting State there shall be legal means of protecting without
formalities the unpublished works of nationals of other Contracting States.
5.
If a Contracting State grants protection for more than one term of copyright
and the first term is for a period longer than one of the minimum periods
prescribed in Article IV, such State shall not be required to comply with the
provisions of paragraph I1of this Article in respect of the second or any
subsequent term of copyright.
ARTICLE
IV
1.
The duration of protection of a work shall be governed, in accordance with the
provisions of Article II and this Article, by the law of the Contracting State
in which protection is claimed.
2.
(a) The term of protection for works protected under this Convention shall not
be less than the life of the author and twenty-five years after his death.
However, any Contracting State which, on the effective date of this Convention
in that State, has limited this term for certain classes of works to a period
computed from the first publication of the work, shall be entitled to maintain
these exceptions and to extend them to other classes of works. For all these
classes the term of protection shall not be less than twenty-five years from
the date of first publication.
(b) Any
Contracting State which, upon the effective date of this Convention in that
State, does not compute the term of protection upon the basis of the life of
the author, shall be entitled to compute the term of protection from the date
of the first publication of the work or from its registration prior to
publication, as the case may be, provided the term of protection shall not be
less than twenty-five years from the date of first publication or from its
registration prior to publication, as the case¡¡ may be..
(c) If the
legislation of a Contracting State grants two or more successive terms of
protection, the duration of the first term shall not be less than one of the
minimum periods specified in sub-paragraphs (a) and (b).
3.
The provisions of paragraph 2 shall not apply to photographic works or to works
of applied art; provided, however, that the term of protection in those
Contracting States which protect photographic works, or works of applied art in
so far as they are protected as artistic work, shall not be less than ten years
for each of said classes of works.
4.
(a) No Contracting State shall be obliged to grant protection to a work for a
period longer than that fixed for the class of works to which the work in question
belongs, in the case of unpublished works by the law of the Contracting State
of which the author is a national, and in the case of published works by the
law of the Contracting State in which the work has been first published.
(b)For the
purposes of the application of sub-paragraph (a), if the law of any Contracting
State grants two or more successive terms of protection, the period of
protection of that State shall be considered to be the aggregate of those
terms. However, if a specified work is not protected by such State during the
second or any subsequent term for any reason, the other Contracting States
shall not be obliged to protect it during the second or any subsequent term.
5.For
the purposes of the application of paragraph 4, the work of a national of a
Contracting State, first published in a non-Contracting State, shall be treated
as though first published in the Contracting State of which the author is a
national.
6.For
the purposes of the application of paragraph 4, in case of simultaneous
publication in two or more Contracting States, the work shall be treated as
though first published in the State which affords the shortest term; any work
published in two or more Contracting States within thirty days of its first
publication shall be considered as having been published simultaneously in said
Contracting States.
ARTICLE
IVbis
1.
The rights referred to in Article I shall include the basic rights ensuring the
author's economic interests, including the exclusive right to authorize reproduction
by any means, public performance and broadcasting. The provisions of this
Article shall extend to works protected under this Convention either in their
original form or in any form recognizably derived from the original.
2.
However, any Contracting State may, by its domestic legislation, make
exceptions that do not conflict with the spirit and provisions of this
Convention, to the rights mentioned in paragraph 1 of this Article. Any
State whose legislation so provides, shall nevertheless accord a reasonable
degree of effective protection to each of the rights to which exception has
been made.
ARTICLE
V
1.
The rights referred to in Article I shall include the exclusive right of the
author to make, publish and authorize the making and publication of
translations of works protected under this Convention.
2.
However, any Contracting State may, by its domestic legislation, restrict the
right of translation of writings, but only subject to the following provisions:
(a)
If, after the expiration of a period of seven years from the date of the first
publication of a writing, a translation of such writing has not been published
in a language in general use in the Contracting State, by the owner of the
right of translation or with his authorization, any national of such
Contracting State may obtain a non-exclusive licence from the competent
authority thereof to translate the work into that language and publish the work
so translated.
(b) Such
national shall in accordance with the procedure of the State concerned,
establish either that he has requested, and been denied, authorization by the
proprietor of the right to make and publish the translation, or that, after due
diligence on his part, he was unable to find the owner of the right. A licence
may also be granted on the same conditions if all previous editions of a
translation in a language in general use in the Contracting State are out of
print.
(c) If the
owner of the right of translation cannot be found, then the applicant for a
licence shall send copies of his application to the publisher whose name
appears on the work and, if the nationality of the owner of the right of
translation is known, to the diplomatic or consular representative of the State
of which such owner is a national, or to the organization which may have been
designated by the government of that State. The licence shall not be granted
before the expiration of a period of two months from the date of the dispatch
of the copies of the application.
(d) Due
provision shall be made by domestic legislation to ensure to the owner of the
right of translation a compensation which is just and conforms to international
standards, to ensure payment and transmittal of such compensation, and to
ensure a correct translation of the work.
(e) The
original title and the name of the author of the work shall be printed on all
copies of the published translation. The licence shall be valid only for
publication of the translation in the territory of the Contracting State where
it has been applied for.¡¡ Copies so published may be imported and sold in
another Contracting State if a language in general use in such other State is
the same language as that into which the work has been so translated, and if
the domestic law in such other State makes provision for such licences and does
not prohibit such importation and sale.¡¡ Where the foregoing conditions do not
exist, the importation and sale of such copies in a Contracting State shall be
governed by its domestic law and its agreements. The licence shall not be transferred
by the licensee.
(f) The
licence shall not be granted when the author has withdrawn from circulation all
copies of the work.
ARTICLE
Vbis
1.Any
Contracting State regarded as a developing country in conformity with the
established practice of the General Assembly of the United Nations may, by a
notification deposited with the Director-General of the United Nations
Educational, Scientific and Cultural Organization (hereinafter called “the
Director-General”) at the time of its ratification, acceptance or accession or
thereafter, avail itself of any or all of the exceptions provided for in
Articles Vter and Vquater.
2.Any
such notification shall be effective for ten years from the date of coming into
force of this Convention, or for such part of that ten-year period as remains
at the date of deposit of the notification, and may be renewed in whole or in
part for further periods of ten years each if, not more than fifteen or less
than three months before the expiration of the relevant ten-year period, the
Contracting State deposits a further notification with the Director-General.
Initial notifications may also be made during these further periods of ten
years in accordance with the provisions of this Article.
3.Notwithstanding
the provisions of paragraph 2, a Contracting State that has ceased to be
regarded as a developing country as referred to in paragraph I shall no longer
be entitled to renew its notification made under the provisions of paragraph 1
or 2, and whether or not it formally withdraws the notification such State
shall be precluded from availing itself of the exceptions provided for in
Articles Vter and Vquater at the end of the current ten-year
period, or at the end of three years after it has ceased to be regarded as a
developing country, whichever period expires later.
4.Any
copies of a work already made under the exceptions provided for in Articles Vter
and Vquater may continue to be distributed after the expiration of the
period for which notifications under this Article were effective until their
stock is exhausted.
5.Any
Contracting State that has deposited a notification in accordance with Article
XIII with respect to the application of this Convention to a particular country
or territory, the situation of which can be regarded as analogous to that of
the States referred to in paragraph 1 of this Article, may also deposit
notifications and renew them in accordance with the provisions of this Article
with respect to any such country or territory.¡¡ During the effective period of
such notifications, the provisions of Articles Vter and Vquater
may be applied with respect to such country or territory. The sending of copies
from the country or territory to the Contracting State shall be considered as
export within the meaning of Articles Vter and Vquater.
ARTICLE
Vter
1.(a)Any
Contracting State to which Article Vbis (1) applies may substitute for
the period of seven years provided for in Article V (2) a period of three years
or any longer period prescribed by its legislation. However, in the case of a
translation into a language not in general use in one or more developed
countries that are party to this Convention or only the 1952 Convention, the
period shall be one year instead of three.
(b)A
Contracting State to which Article Vbis (1) applies may, with the
unanimous agreement of the developed countries party to this Convention or only
the 1952 Convention and in which the same language is in general use,
substitute, in the case of translation into that language, for the period of
three years provided for in sub-paragraph (a) another period as determined by
such agreement but not shorter than one year. However, this sub-paragraph shall
not apply where the language in question is English, French or Spanish.
Notification of any such agreement shall be made to the Director-General.
(c)The
licence may only be granted if the applicant, in accordance with the procedure
of the State concerned, establishes either that he has requested, and been
denied, authorization by the owner of the right of translation, or that, after
due diligence on his part, he was unable to find the owner of the right. At the
same time as he makes his request he shall inform either the International
Copyright Information Centre established by the United Nations Educational, Scientific
and Cultural Organization or any national or regional information centre which
may have been designated in a notification to that effect deposited with the
Director-General by the government of the State in which the publisher is
believed to have his principal place of business.
(d)If the
owner of the right of translation cannot be found, the applicant for a licence
shall send, by registered airmail, copies of his application to the publisher
whose name appears on the work and to any national or regional information
centre as mentioned in sub-paragraph (c). If no such centre is notified he
shall also send a copy to the international copyright information centre
established by the United Nations Educational, Scientific and Cultural
Organization.
2.(a)
Licences obtainable after three years shall not be granted under this Article
until a further period of six months has elapsed and licences obtainable after
one year until a further period of nine months has elapsed. The further period
shall begin either from the date of the request for permission to translate
mentioned in paragraph 1(c) or, if the identity or address of the owner of the
right of translation is not known, from the date of dispatch of the copies of
the application for a licence mentioned in paragraph 1 (d).
(b)Licences
shall not be granted if a translation has been published by the owner of the
right of translation or with his authorization during the said period of six or
nine months.
3.Any
licence under this Article shall be granted only for the purpose of teaching,
scholarship or research.
4.(a)Any
licence granted under this Article shall not extend to the export of copies and
shall be valid only for publication in the territory of the Contracting State
where it has been applied for.
(b)Any
copy published in accordance with a licence granted under this Article shall
bear a notice in the appropriate language stating that the copy is available
for distribution only in the Contracting State granting the licence. If the
writing bears the notice specified in Article III (1) the copies shall bear the
same notice.
(c)The
prohibition of export provided for in sub-paragraph (a) shall not apply where a
governmental or other public entity of a State which has granted a licence
under this Article to translate a work into a language other than English,
French or Spanish sends copies of a translation prepared under such licence to
another country if:
(i)the
recipients are individuals who are nationals of the Contracting State granting
the licence, or organizations grouping such individuals;
(ii)the
copies are to be used only for the purpose of teaching, scholarship or
research;
(iii)the
sending of the copies and their subsequent distribution to recipients is
without the object of commercial purpose; and
(iv)the
country to which the copies have been sent has agreed with the Contracting
State to allow the receipt, distribution or both and the Director-General has
been notified of such agreement by any one of the governments which have
concluded it.
5.Due
provision shall be made at the national level to ensure:
(a)that
the licence provides for just compensation that is consistent with standards of
royalties normally operating in the case of licences freely negotiated between
persons in the two countries concerned; and
(b)payment
and transmittal of the compensation; however, should national currency
regulations intervene, the competent authority shall make all efforts, by the
use of international machinery, to ensure transmittal in internationally
convertible currency or its equivalent.
6.Any
licence granted by a Contracting State under this Article shall terminate if a
translation of the work in the same language with substantially the same
content as the edition in respect of which the licence was granted is published
in the said State by the owner of the right of translation or with his
authorization, at a price reasonably related to that normally charged in the
same State for comparable works. Any copies already made before the licence is
terminated may continue to be distributed until their stock is exhausted.
7.For
works which are composed mainly of illustrations a licence to translate the
text and to reproduce the illustrations may be granted only if the conditions
of Article Vquater are also fulfilled.
8.(a)
A licence to translate a work protected under this Convention, published in
printed or analogous forms of reproduction, may also be granted to a
broadcasting organization having its headquarters in a Contracting State to
which Article Vbis (1) applies, upon an application made in that State
by the said organization under the following conditions:
(i)the
translation is made from a copy made and acquired in accordance with the laws
of the Contracting State;
(ii)the
translation is for use only in broadcasts intended exclusively for teaching or
for the dissemination of the results of specialized technical or scientific
research to experts in a particular profession;
(iii)the
translation is used exclusively for the purposes set out in condition (ii),
through broadcasts lawfully made which are intended for recipients on the
territory of the Contracting State, including broadcasts made through the
medium of sound or visual recordings lawfully and exclusively made for the
purpose of such broadcasts;
(iv)sound
or visual recordings of the translation may be exchanged only between
broadcasting organizations having their headquarters in the Contracting State
granting the licence; and
(v)all
uses made of the translation are without any commercial purpose.
(b)Provided
all of the criteria and conditions set out in sub-paragraph (a) are met, a
licence may also be granted to a broadcasting organization to translate any
text incorporated in air audio-visual fixation which was itself prepared and
published for the sole purpose of being used in connexion with systematic
instructional activities.
(c)Subject
to sub-paragraphs (a) and (b), the other provisions of this Article shall apply
to the grant and exercise of the licence.
9.Subject
to the provisions of this Article, the licence granted under this Article shall
be governed by the provisions of Article V, and shall continue to be governed
by the provisions of Article V and of this Article, even after the seven-year
period provided for in Article V has expired. However, after the said period
has expired, the licensee shall be free to request that the said licence be
replaced by a new licence governed exclusively by the provisions of Article V.
ARTICLE
Vquater
1.Any
Contracting State to which Article Vbis (1) applies may adopt the
following provisions:
(a)If,
after the expiration of (i) the relevant period specified in sub-paragraph (c)
commencing from the date of first publication of a particular edition of a
literary, scientific or artistic work referred to in paragraph 3, or (ii) any
longer period determined by national legislation of the State, copies of such
edition have not been distributed in that State to the general public or in
connexion with systematic instructional activities at a price reasonably
related to that normally charged in the State for comparable works, by the
owner of the right of reproduction or with his authorization, any national of
such State may obtain a non-exclusive licence from the competent authority to
publish such edition at that or a lower price for use in connexion with
systematic instructional activities. The licence may only be granted if such
national, in accordance with the procedure of the State concerned, establishes
either that he has requested, and been denied, authorization by the proprietor
of the right to publish such work, or that, after due diligence on his part, he
was unable to find the owner of the right. At the same time as he makes his
request he shall inform either the international copyright information centre
established by the United Nations Educational, Scientific and Cultural
Organization or any national or regional information centre referred to in
sub-paragraph (d).
(b)A
licence may also be granted on the same conditions if, for a period of six
months, no authorized copies of the edition in question have been on sale in
the State concerned to the general public or in connexion with systematic
instructional activities at a price reasonably related to that normally charged
in the State for comparable works.
(c)The
period referred to in subparagraph (a) shall be five years except that:
(i)for
works of the natural and physical sciences, including mathematics, and of
technology, the period shall be three years;
(ii)for
works of fiction, poetry, drama and music, and for art books, the period shall
be seven years.
(d)If the
owner of the right of reproduction cannot be found, the applicant for a licence
shall send, by registered air mail, copies of his application to the publisher
whose name appears on the work and to any national or regional information
centre identified as such in a notification deposited with the Director-General
by the State in which the publisher is believed to have his principal place of
business. In the absence of any such notification, he shall also send a copy to
the international copyright information centre established by the United
Nations Educational, Scientific and Cultural Organization. The licence shall
not be granted before the expiration of a period of three months from the date
of dispatch of the copies of the application.
(e)Licences
obtainable after three years shall not be granted under this Article:
(i)until a
period of six months has elapsed from the date of the request for permission
referred to in sub-paragraph (a) or, if the identity or address of the owner of
the right of reproduction is unknown, from the date of the dispatch of the
copies of the application for a licence referred to in sub-paragraph (d);
(ii)if any
such distribution of copies of the edition as is mentioned in sub-paragraph (a)
has taken place during that period.
(f)The
name of the author and the title of the particular edition of the work shall be
printed on all copies of the published reproduction. The licence shall not
extend to the export of copies and shall be valid only for publication in the
territory of the Contracting State where it has been applied for. The licence
shall not be transferable by the licensee.
(g)Due
provision shall be made by domestic legislation to ensure an accurate
reproduction of the particular edition in question.
(h)A
licence to reproduce and publish a translation of a work shall not be granted
under this Article in the following cases:
(i)where
the translation was not published by, the owner of the right of translation or
with authorization;
(ii)where
the translation is not in a language in general use in the State with power to
grant the licence.
2.The
exceptions provided for in paragraph 1 are subject to the following additional
provisions:
(a)Any
copy published in accordance with a licence granted under this Article shall
bear a notice in the appropriate language stating that the copy is available
for distribution only in the Contracting State to which the said licence
applies. If the edition bears the notice specified in Article III (1), the
copies shall bear the same notice.
(b)Due
provision shall be made at the national level to ensure:
(i)that
the licence provides for just compensation that is consistent with standards of
royalties normally operating in the case of licences freely negotiated between
persons in the two countries concerned; and
(ii)payment
and transmittal of the compensation; however, should national currency
regulations intervene, the competent authority shall make all efforts, by the
use of international machinery, to ensure transmittal in internationally
convertible currency or its equivalent.
(c)Whenever
copies of an edition of a work are distributed in the Contracting State to the
general public or in connexion with systematic instructional activities, by the
owner of the right of reproduction or with his authorization, at a price
reasonably related to that normally charged in the State for comparable works,
any licence granted under this Article shall terminate if such edition is in
the same language and is substantially the same in content as the edition
published under the licence.Any copies already made before the licence is
terminated may continue to be distributed until their stock is exhausted.
(d)No
licence shall be granted where the author has withdrawn from circulation all
copies of the edition in question.
3.(a)Subject
to sub-paragraph (b), the literary, scientific or artistic works to which this
Article applies shall be limited to works published in printed or analogous
forms of reproduction.
(b)The
provisions of this Article shall also apply to reproduction in audio-visual
form of lawfully made audio-visual fixations including any protected works
incorporated therein and to the translation of any incorporated text into a
language in general use in the State with power to grant the licence; always
provided that the audio-visual fixations in question were prepared and
published for the sole purpose of being used in connexion with systematic
instructional activities.
ARTICLE
VI
“Publication”,
as used in this Convention, means the reproduction in tangible form and the
general distribution to the public of copies of a work from which it can be
read or otherwise visually perceived.
ARTICLE
VII
This
Convention shall not apply to works or rights in works which, at the effective
date of this Convention in a Contracting State where protection is claimed, are
permanently in the public domain in the said Contracting State.
ARTICLE
VIII
1.This
Convention, which shall bear the date of 24 July 1971, shall be deposited with
the Director-General and shall remain open for signature by all States party to
the 1952 Convention for a period of 120 days after the date of this Convention.
It shall be subject to ratification or acceptance by the signatory States.
2.Any
State which has not signed this Convention may accede thereto.
3.Ratification,
acceptance or accession shall be effected by the deposit of an instrument to
that effect with the Director-General.
ARTICLE
IX
1.This
Convention shall come into force three months after the deposit of twelve
instruments of ratification, acceptance or accession.
2.Subsequently,
this Convention shall come into force in respect of each State three months
after that State has deposited its instrument of ratification, acceptance or
accession.
3.Accession
to this Convention by a State not party to the 1952 Convention shall also
constitute accession to that Convention; however, if its instrument of
accession is deposited before this Convention conies into force, such State may
make its accession to the 1952 Convention conditional upon the coming into
force of this Convention.After the coming into force of this Convention, no
State may accede solely to the 1952 Convention.
4.Relations
between States party to this Convention and States that are party only to the
1952 Convention, shall be governed by the 1952 Convention. However, any State
party only to the 1952 Convention may, by a notification deposited with the
Director-General, declare that it will admit the application of the 1971
Convention to works of its nationals or works first published in its territory
by all States party to this Convention.
ARTICLE
X
1.Each
Contracting State undertakes to adopt, in accordance with its Constitution,
such measures as are necessary to ensure the application of this Convention.
2.It
is understood that at the date this Convention comes into force in respect of
any State, that State must be in a position under its domestic law to give
effect to the terms of this Convention.
ARTICLE
XI
1.An
Intergovernmental Committee is hereby established with the following duties:
(a)to
study the problems concerning the application and operation of the Universal
Copyright Convention;
(b)to make
preparation for periodic revisions of this Convention;
(c)to
study any other problems concerning the international protection of copyright,
in cooperation with the various interested international organizations, such as
the United Nations Educational, Scientific and Cultural Organization, the
International Union for the Protection of Literary and Artistic Works and the
Organization of American States;
(d)to
inform States party to the Universal Copyright Convention as to its activities.
2.The
Committee shall consist of the representatives of eighteen States party to this
Convention or only to the 1952 Convention.
3.The
Committee shall be selected with due consideration to a fair balance of
national interests on the basis of geographical location, population, languages
and stage of development.
4.The
Director-General of the United Nations Educational, Scientific and Cultural
Organization, the Director-General of the World Intellectual Property
Organization and the Secretary-General of the Organization of American States,
or their representatives, may attend meetings of the Committee in an advisory
capacity.
ARTICLE
XII
The
Intergovernmental Committee shall convene a conference for revision whenever it
deems necessary, or at the request of at least ten States party to this
Convention.
ARTICLE
XIII
1.Any
Contracting State may, at the time of deposit of its instrument of
ratification, acceptance or accession, or at any time thereafter, declare by
notification addressed to the Director-General that this Convention shall apply
to all or any of the countries or territories for the international relations
of which it is responsible and this Convention shall thereupon apply to the
countries or territories named in such notification after the expiration of the
term of three months provided for in Article IX. In the absence of such
notification, this Convention shall not apply to any such country or territory.
2.However,
nothing in this Article shall be understood as implying the recognition or
tacit acceptance by a Contracting State of the factual situation concerning a
country or territory to which this Convention is made applicable by another
Contracting State in accordance with the provisions of this Article.
ARTICLE
XIV
1.Any
Contracting State may denounce this Convention in its own name or on behalf of
all or any of the countries or territories with respect to which a notification
has been given under Article XIII. The denunciation shall be made by
notification addressed to the Director-General. Such denunciation shall also
constitute denunciation of the 1952 Convention.
2.Such
denunciation shall operate only in respect of the State or of the country or
territory on whose behalf it was made and shall not take effect until twelve
months after the date of receipt of the notification.
ARTICLE
XV
A
dispute between two or more Contracting States concerning the interpretation or
application of this Convention, not settled by negotiation, shall, unless the
States concerned agree on some other method of settlement, be brought before
the International Court of Justice for determination by it.
ARTICLE
XVI
1.This
Convention shall be established in English, French and Spanish.The three texts
shall be signed and shall be equally authoritative.
2.Official
texts of this Convention shall be established by the Director-General, after
consultation with the governments concerned, in Arabic, German, Italian and
Portuguese.
3.Any
Contracting State or group of Contracting States shall be entitled to have
established by the Director-General other texts in the language of its choice
by arrangement with the Director-General.
4.
All such texts shall be annexed to the signed texts of this Convention.
ARTICLE
XVII
1.This
Convention shall not in any way affect the provisions of the Berne Convention
for the Protection of Literary and Artistic Works or membership in the Union
created by that Convention.
2.In
application of the foregoing paragraph, a declaration has been annexed to the
present Article. This declaration is an integral part of this Convention for
the States bound by the Berne Convention on 1 January 1951, or which have or
may become bound to it at a later date. The signature of this Convention by
such States shall also constitute signature of the said declaration, and
ratification, acceptance or accession by such States shall include the
declaration, as well as this Convention.
ARTICLE
XVIII
This
Convention shall not abrogate multilateral or bilateral copyright conventions
or arrangements that are or may be in effect exclusively between two or more
American Republics.In the event of any difference either between the provisions
of such existing conventions or arrangements and the provisions of this
Convention, or between the provisions of this Convention and those of any new
convention or arrangement which may be formulated between two or more American Republics
after this Convention comes into force, the convention or arrangement most
recently formulated shall prevail between the parties thereto. Rights in works
acquired in any Contracting State under existing conventions or arrangements
before the date this Convention comes into force in such State shall not be
affected.
ARTICLE
XIX
This
Convention shall not abrogate multilateral or bilateral conventions or
arrangements in effect between two or more Contracting States. In the event of
any difference between the provisions of such existing conventions or
arrangements and the provisions of this Convention, the provisions of this
Convention shall prevail. Rights in works acquired in any Contracting State
under existing conventions or arrangements before the date on which this
Convention comes into force in such State shall not be affected. Nothing in
this Article shall affect the provisions of Articles XVII and XVIII.
ARTICLE
XX
Reservations
to this Convention shall not be permitted.
ARTICLE
XXI
1.The
Director-General shall send duly certified copies of this Convention to the
States interested and to the Secretary-General of the United Nations for
registration by him.
2.He
shall also inform all interested States of the ratifications, acceptances and
accessions which have been deposited, the date on which this Convention comes
into force, the notifications under this Convention and denunciations under
Article XIV.
APPENDIX
DECLARATION RELATING TO ARTICLE XVII
The
States which are members of the International Union for the Protection of
Literary and Artistic Works (hereinafter called “the Berne Union”) and which
are signatories to this Convention,
Desiring
to reinforce their mutual relations on the basis of the said Union and to avoid
any conflict which might result from the coexistence of the Berne Convention
and the Universal Copyright Convention,
Recognizing
the temporary need of some States to adjust their level of copyright protection
in accordance with their stage of cultural, social and economic development,
Have,
by common agreement, accepted the terms of the following declaration:
(a)Except
as provided by paragraph (b), works which, according to the Berne Convention,
have as their country of origin a country which has withdrawn from the Berne
Union after 1 January 1951, shall not be protected by the Universal
Copyright Convention in the countries of the Berne Union;
(b)Where a
Contracting State is regarded as a developing country in conformity with the
established practice of the General Assembly of the United Nations, and has
deposited with the Director-General of the United Nations Educational,
Scientific and Cultural Organization, at the time of its withdrawal from the
Berne Union, a notification to the effect that it regards itself as a developing
country, the provisions of paragraph (a) shall not be applicable as long as
such State may avail itself of the exceptions provided for by this Convention
in accordance with Article Vbis;
(c)The
Universal Copyright Convention shall not be applicable to the relationships
among countries of the Berne Union in so far as it relates to the protection of
works having as their country of origin, within the meaning of the Berne
Convention, a country of the Berne Union.
RESOLUTION
CONCERNING ARTICLE XI
The
Conference for Revision of the Universal Copyright Convention,
Having
considered the problems relating to the intergovernmental Committee provided
for in Article XI of this Convention, to which this resolution is annexed,
Resolves
that:
1.At
its inception, the Committee shall include representatives of the twelve States
members of the Intergovernmental Committee established under Article XI of the
1952 Convention and the resolution annexed to it, and, in addition,
representatives of the following States: Algeria, Australia, Japan, Mexico,
Senegal and Yugoslavia.
2.Any
States that are not party to the 1952 Convention and have not acceded to this
Convention before the first ordinary session of the Committee following the
entry into force of this Convention shall be replaced by other States to be
selected by the Committee at its first ordinary session in conformity with the
provisions of Article XI (2) and (3).
3.As
soon as this Convention comes into force the Committee as provided for in
paragraph 1 shall be deemed to be constituted in accordance with Article XI of
this Convention.
4.A
session of the Committee shall take place within one year after the coming into
force of this Convention; thereafter the Committee shall meet in ordinary
session at intervals of not more than two years.
5.The
Committee shall elect its Chairman and two Vice-Chairmen.It shall establish its
Rules of Procedure having regard to the following principles:
(a)The
normal duration of the term of office of the members represented on the
Committee shall be six years with one-third retiring every two years, it being
however understood that, of the original terms of office, one-third shall
expire at the end of the Committee's second ordinary session which will follow
the entry into force of this Convention, a further third at the end of its
third ordinary session, and the remaining third at the end of its fourth
ordinary session.
(b)The
rules governing the procedure whereby the Committee shall fill vacancies, the
order in which terms of membership expire, eligibility for re-election, and
election procedures, shall be based upon a balancing of the needs for
continuity of membership and rotation of representation, as well as the
considerations set out in Article XI (3).
Expresses
the wish that the United Nations Educational, Scientific and Cultural
Organization provide its Secretariat.
In
faith whereof the undersigned, having deposited their respective full powers,
have signed this Convention.
Done
at Paris, this twenty-fourth day of July 1971, in a single copy.
PROTOCOL
1
Annexed to
the Universal Copyright Convention as revised at Paris on 24 July 1971
concerning the application of that Convention to works of Stateless persons and
refugees
The States
party hereto, being also party to the Universal Copyright Convention as revised
at Paris on 24 July 1971 (hereinafter called “the 1971 Convention”),
Have
accepted the following provisions:
1.Stateless
persons and refugees who have their habitual residence in a State party to this
Protocol shall, for the purposes of the 1971 Convention, be assimilated to the
nationals of that State.
2.(a)This
Protocol shall be signed and shall be subject to ratification or acceptance, or
may be acceded to, as if the provisions of Article VIII of the 1971 Convention
applied hereto.
(b)This
Protocol shall enter into force in respect of each State, on the date of
deposit of the instrument of ratification, acceptance or accession of the State
concerned or on the date of entry into force of the 1971 Convention with respect
to such State, whichever is the later.
(c)On the
entry into force of this Protocol in respect of a State not party to
Protocol 1 annexed to the 1952 Convention, the latter Protocol shall be
deemed to enter into force in respect of such State.
In faith
whereof the undersigned, being duly authorized thereto, have signed this
Protocol.
Done
at Paris this twenty-fourth day of July 1971, in the English, French and
Spanish languages, the three texts being equally authoritative, in a single
copy which shall be deposited with the Director-General of the United Nations
Educational, Scientific and Cultural Organization. The Director-General shall
send certified copies to the signatory States, and to the Secretary-General of
the United Nations for registration.
PROT0COL
2
Annexed to
the Universal Copyright Convention as revised at Paris on 24 July 1971
concerning the application of that Convention to the works of certain
international organizations
The States
party hereto, being also party to the Universal Copyright Convention as revised
at Paris on 24 July 1971 (hereinafter called “the 1971 Convention”), have
accepted the following provisions:
1.(a)The
protection provided for in Article II (1) of the 1971 Convention shall apply to
works published for the first time by the United Nations, by the Specialized
Agencies in relationship therewith, or by the Organization of American States.
(b)Similarly,
Article II (2) of the 1971 Convention shall apply to the said organization or
agencies.
2.(a)This
Protocol shall be signed and shall be subject to ratification or acceptance, or
may be acceded to, as if the provisions of Article VIII of the 1971 Convention
applied hereto.
(b)This
Protocol shall enter into force for each State on the date of deposit of the
instrument of ratification, acceptance or accession of the State concerned or
on the date of entry into force of the 1971 Convention with respect to such
State, whichever is the later.
In
faith whereof the undersigned, being duly authorized thereto, have signed this
Protocol.
Done at
Paris, this twenty-fourth day of July 1971, in the English, French and Spanish
languages, the three texts being equally authoritative, in a single copy which
shall be deposited with the Director-General of the United Nations Educational,
Scientific and Cultural Organization. The Director-General shall send certified
copies to the signatory States, and to the Secretary-General of the United
Nations for registration.
-
Regulations for the Protection of Computer Software
Regulations
for the Protection of Computer Software (last modified April 30, 1998)
Regulations for
the Protection of Computer Software (Promulgated on June 4, 1991)
Table of Contents:
Chapter I General Provisions
Chapter II Computer Software Copyrights
Chapter III Computer Software
Registration Administration
Chapter IV Legal Responsibilities
Chapter V Supplementary Articles
Chapter I General Provisions
Article1.
In order to protect the rights and interests of creators of computer software,
to adjust the relationships of interest during the development, dissemination
and use of computer software, to encourage the development and circulation of
computer software, and to promote the developme- nt of computer applications
these regulations are enacted in accordance with the provisions of the
Copyright Law of the PRC.
Article2.
For the purposes of these regulations computer software (hereinafter referred
to as software) refers to computer programs and related documentation.
Article3.
Meanings of the following words used in these regulations are:
(1)
Computer programs: refers to coded instructional sequences-or those symbol ic
instructional sequences or numeric language sequences which can be automatically
converted into coded instructional sequences-which are for the purpose of
obtaining a certain result and which are operated on information processing
equipment such as computers.
Computer
programs include source code programs and object code programs. The source code
text of a piece of software and its object code text should be seen as one
work.
(2)
Documentation: refers to written materials and diagrams, using natural language
or formal language, which are used to describe the contents, organization,
design, functions and specifications, development circumstances, testing
results and method of use of the program, for example:
program design explanations, flow charts, user manuals, etc.
(3)
Software developers: refers to those legal persons or units which are not legal
persons (here inafter referred to as units) who actually organize, undertake
the work of development, and provide working conditions to complete the
development of software and who take responsibility for the software as well;
citizens who rely on their own conditions to complete software and who take
responsibility for the software.
(4)
Software copyright owners: refers to those units and citizens who, in
accordance with these regulations, enjoy the copyright of a computer software.
(5) Reproduction:
refers to the act of transferring software into a material form.
Article4. The
provision of protection to computer software, as referred to in these
regulations, refers to (the fact that) that computer software copyright holders
or transferees enjoy all the rights of copyright stipulated in these
regulations.
Article5.
Software which enjoys protection under these regulations must be independently
developed by the developer and must already be in material form.
Article6. Chinese
citizens and units enjoy the copyright under these regulations for software
they have developed, regardless of whether it has been published and regardless
of where it has been published.
Foreigner's
software first published in China enjoys the copyright under these regulations.
Software
published outside of China by foreigners enjoys copyright in China and
protection under these regulations according to a bilateral agreement signed
between the country to which it belongs and China or according to international
convention to which they are both parties.
Article7.
The protection provided to software under these regulations cannot be expanded
to encompass the ideas, concepts, discoveries, principles, algorithms,
processing methods and operations used in the development of computer software.
Article8.
The State Council's designated software registration agency administers the
registration of software throughout the entire country.
Chapter II Computer Software Copyrights
Article9.
Software copyright holders enjoy the following rights:
(1) Right
of publication, is the right to decide whether the software should b e released
to the public;
(2)
Developer's right of authorship, is the right to indicate the developer's
identity and to place his name on the software;
(3) The
right of use, is the right to use the software by copying, demonstrating,
distributing, altering, translating, annotating, etc., under the precondition
of not harming the public interest.
(4) The
right of licensing use and receiving remuneration, is the right to license
others, under provision 3 of this article, to use the entire software or a part
of it, and the right to get remuneration for this.
(5) The
right of transfer, is the right to transfer to others the right of use and
right of licensing under provisions 3 and 4 of this article.
Article10.
The copyright of a software belongs to its developer, where this regulations
have specific stipulations those should be followed.
Article11.
Where software is developed jointly by 2 or more units, citizens, except as provided
for in a separate agreement, the copyright of the software shall be jointly
enjoyed by the developers.
Exercise
of the copyright co-developers shall be carried out in accordance with any
written agreement reached prior to creation of the software. If there is no
written agreement, and if the jointly developed software can be used in
separate parts, the co-developers can separately enjoy the copyright on the
parts they developed, but during the exploitation of the copyright this may not
be extended to the copyright of the jointly developed work in its entirety. If
the jointly developed software cannot be used in separate parts, the
co-developers may exploit the copyright by consensus. If consensus can not be
reached, and in the absence of any unusual reasons, neither party can prevent
the other from implementing its exclusive rights, with the exception of the
right of transfer to a third party. How ever, any benefits earned shall be
fairly distributed among the co-authors.
Article12.
The copyright of software which is commissioned to be developed by another
person, shall be governed by any written agreement signed between the person
who commissioned the work and the person who undertook the commission; if there
is no written agreement or if it is not clearly stipulated in the agreement,
the copyright shall be enjoyed by the person undertaking the commission.
Article13.
The copyright of software which is developed pursuant to tasks assigned by a
legal person's superior organization or government department shall be based on
stipulations contained in the project task document or contract; if not clearly
stipulated in the project task document or contract, the copyright belongs to
the organization to which the task was assigned.
With
regard to software which possesses major significance for national or public
security interests and is developed by organizations within this system or
organizations under their jurisdiction, responsible departments of the State
Council or the People's Governments of provinces, autonomous regions, or
centrally administered cities have the right to permit designated organizations
to use the software. The organization using such software will pay a fee
according to relevant national regulations.
Article14.
If software developed by a citizen while working in an organization is the
product of work executed for the organization, is developed in accordance with
the clearly stipulated development goals for work in the organization, or is
the predictable or natural result of activities involved in the organization's
work, then the software's copyright belongs to the organization.
If
software developed by a citizen is not the result of work executed for the
organization, has no direct relationship to the content of the work at the
organization in which the developer is engaged, and does not use the
organization's material technical conditions, the software's copyright belongs
to the developer himself.
Article15.
The term of protection of software copyright is 25 years, ending on the 31st of
December of the twenty- fifth year after the first publication of the software.
Prior to the fulfillment of the term of protection, the software copyright
holder may apply to the software registration administration organization to
extend the protection by 25 years, although the period of protection may not
exceed 50 years at the longest.
There is
no limit on the period of protection of the software developer's right of
authorship.
Article16.
During term of copyright protection of a given piece of software, the software
copyright holder's heir may, in accordance with relevant provisions in the
"PRC Inheritance Law", inherit the rights in Items 3 and 4 of Article
9 of these regulations.
The act of
inheritance may not change the term of protection of the rights of the
software.
Article17.
During the term of copyright protection of a given piece of
software, after a change has occurred in the organization which holds the
software's copyright, the succeeding organization legally will enjoy all the
rights to the software.
The
occurrence of succession will not change the term of protection of the
software's rights.
Article18.
During the software copyright's term of protection, the software copyright
holder or his transferee may authorize others to implement the right of use
Article 9, Item 3, of these regulations. Software copyright holders or their
transferees may receive a fee while they are authorizing others to implement
the right of use.
Authorization
to implement a software copyright should be agreed and executed according to
China's laws and regulations in the form of a written contract. The authorized
person should implement the right of use within the form, conditions, scope,
and period of the contract.
The period
of effectiveness an authorizing contract may not exceed 10 years. When the
period is complete, the contract may be extended.
The act of
authorization cited described above does not alter ownership of software
copyright.
Article19.
During the software copyright period of protection, those who enjoy the rights
of use and license under Article 9, Items 3 and 4, may transfer the rights use
and license to other people.
Authorization
to transfer copyright should be carried out in accordance with laws and
regulations of China under a signed and executed written contract.
The act of
transfer does not alter ownership of software copyright.
Article20.
When the term of validity of a software copyright expires, all rights to the
software cease, except for the developer's right of authorship.
In the
event that any circumstances fit either of the following situations, all rights
to a given piece of software, except the right of authorship, will enter the
public domain prior to the end of the ter m of protection:
(1) The
organization holding the software copyright terminates (dissolves) and there is
no legal successor;
(2) The
citizen holding the software copyright dies without a legal heir.
Article21.
Those organizations or citizens who legally own reproductions of software have
the right, without obtaining consent of the proprietary owner, to:
(1) To
install and use in a computer according to the needs of use;
(2) For
the purpose of maintaining files, make a backup copy. However these ba ck-up
copies may not be provided to other persons by any means.
Once the
owners lose the rights legally to own this software, these reference copies
must be completely destroyed;
(3) In
order to carry out necessary revisions for the purpose of using said software
in the real computer environment or improving its performance. However, except
in cases where there is additional agreement, (the owner) may not provide to
any third party the revised document, without the agreement of the software
copyright holder or his legal transferee.
Article22.
For the non-commercial purposes of work conducted in classroom education,
scientific research, the execution of legal duties by state organs, etc., a
small number of software reproductions may be made, without obtaining the
consent of the software copyright owner or his legal transferee, and without giving
compensation. However, when used, the name of the software and its developer
must be stated, and none of the rights enjoyed by the copyright owners or their
transferees under the terms of these regulations shall be violated. After the
use of these copies if ended, they should be appropriately managed, taken back,
or destroyed.
They must
not be used for other purposes or given to other persons.
Chapter III Computer Software Registration
Administration
Article23.
Software published after these regulations are promulgated
may make application for registration at the copyright registration
administration organization. After approval of registration, the Software
Registration Administration Organization will issue documents of proof of
registration and make public notice (of the registration).
Article24.
Registration of software copyrights with the software registration
administration organization in accordance with these regulations is the
prerequisite for administrative treatment of rights disputes or of lawsuits.
Documents
of proof of registration issued by the Software Registration Administration
Organization are the initial documents certifying that a software copyright is
in effect or is in the process of applying for registration.
Article25.
When applying for registration computer software copyright holders must
provide:
(1) A
software copyright registration form filled out in accordance with the
regulations;
(2)
Software identifying material in keeping with the rules.
Software
copyright holders must pay a registration fee according to the rules.
Specific
software registration administration methods and fee standards will b e
announced by the Software Registration Administration Organization.
Article26.
Software copyright may be cancelled in either of the following situations:
(1)
According to final judicial judgement;
(2) When
primary information provided during the registration application is
acknowledged not to be authentic.
Article27.
For any computer software which has already been registered, when activities
relating to transfer of software rights occur, the receiver should put on
record with the National Software Registration Administration Organization
within 3 months of the signing of the contract of transfer, otherwise
infringement activities by third parties cannot be contested.
Article28.
When a Chinese national software copyright owner licenses or transfers to a
foreigner rights to software developed within China's territory, he shall first
make a request for approval to the relevant responsible organs of the State
Council and also make a report to the Software Registration Administration
Organization.
Article29.
Other than to carry out registration administration responsibilities, employees
who work in software registration and persons who have previously worked in
this position, may not, during the period of protection of a software
copyright, utilize or reveal to any other person the file material or other
relevant information provided at the time of the application for registration.
Chapter IV
Legal Responsibilities
Article30.
Except for the situations described in Articles 21 and 22, in the event of the
following infringing activities, according to conditions cessation of the
infringement, elimination of the effects, public apology, compensation for
losses and other civil responsibilities should be undertaken; moreover, state
software copyright executive administration departments may adopt executive
punishments such as confiscating unearned illegal income, fines, etc.:
(1)
Publishing software works without the consent of the software copyright ow ner;
(2) Taking
software developed by others and publishing it in one's own name;
(3) Taking
software developed in cooperation with another person and publishin g it as a
work completed by oneself alone, without the permission of the cooperating
developer;
(4)
Signing one's name to software developed by another person or altering the
signature on software developed by another;
(5)
Revising, translating, or annotating software without the permission of the
software copyright owner or his legal transferee;
(6)
Copying software, in whole or in part, without the permission of the software
copyright owner or his legal transferee;
(7)
Disseminating or revealing software. to the public without the permission of
the software copyright owner or his legal transferee;
(8)
Effecting the licensing or transfer of software to a third party without the
permission of the sof tware copyright owner or his legal transferee.
Article31.
Resulting similarities between software developed and
software already in existence does not constitute a violation of the copyright
of existing software in the following situations:
(1)
Because it is necessary for the execution of national policies, laws, and rules
and regulations;
(2) Because
it is necessary for the setting of technical standards;
(3)
Because of the limited categories of forms of expression.
Article32.
If a software owner is unaware that or has no reasonable basis to believe that
the software infringes on a software product right, the responsibility for the
violation shall be borne by the rights violator who provided the software.
However, when failure to destroy the infringed software will not adequately
protect the rights and interests of the software copyright owner, the owner has
a duty to destroy the infringing software, so that losses may be forced back
onto the provider of the infringing software.
The
provider of infringing software cited in the previous provision is a person who
knows the sof tware is an infringement and supplies it to others.
Article33.
A concerned party who does not carry out his duty or who carries it out not in
accordance with prescribed conditions shall bear civil responsibilities
according to the General Procedures of the Civil Law.
Article34.
Software copyright disputes may be mediated. If mediation fails to produce an
agreement, or if it produces agreement which one party fails to honor, a
lawsuit may be brought before a People's Court. A concerned party who is
unwilling to enter mediation may also bring a lawsuit before a People's Court.
Article35.
A software copyright contract dispute may be mediated. It may also be applied
for mediation by the state software copyright arbitration organization, on the
basis of an arbitration provision in the contract or a written arbitration
agreement concluded after the contract.
Concerned
parties will carry out an arbitration ruling. If one party fails to carry out
the arbitration ruling, the other may bring a lawsuit before a People's Court.
If the
People's Court receiving the application discovers that the arbitration ruling
is illegal, it has the power not to execute the ruling.
If the
People's Court does not carry out the ruling, concerns parties may bring a
lawsuit before the People's Court.
If
concerned parties have not inserted an arbitration clause into the contract,
and there is no written arbitration agreement after the event, they may bring a
lawsuit directly before the People's Court.
Article36.
If a concerned party is dissatisfied with the remedial decisions of the
national copyright executive administrative department, he may bring suit
before the People's Court within 3 months from receipt of notice.
When this
period has expired and no lawsuit has been brought, the national copyright
executive administrative department may apply to the People's Court to force
action.
Article37.
Software registration administration organizations will assess administrative
punishment against employees of software registration administration
organizations who have violated Article 29 of these regulations. If the
circumstances are severe, constituting a crime, judicial organs are responsible
for investigating the crime.
Chapter V
Supplementary Articles
Article38.
Infringement actions which take place prior to these regulations taking effect
should be dealt with in accordance with regulations in effect at the time of
the infringing activity.
Article39.
These regulations will be interpreted by the State Council's department for
software registration administration and software copyright administration
departments.
Article40.
These provisions take effect from October 1, 1991.
-
PRC, Copyright Law (Revised)
PRC,
Copyright Law (Revised)
(Promulgated
on, and effective as of, 27 October 2001.)
PART ONE:
GENERAL PROVISIONS
Article
1: This Law is formulated in accordance with the
Constitution in order to protect the copyrights, neighbouring rights and
interests of authors of literary, artistic and scientific works, to encourage
the creation and propagation of works that are beneficial to the development of
socialist spiritual and material civilization, and to promote the development
of a flourishing socialist scientific and cultural environment.
Article
2: Works of citizens and of legal persons and other
organizations shall enjoy copyright under this Law, whether published or not.
Where a
foreigner or stateless person, in accordance with an agreement between his home
country or his country of habitual residence and China, or an international
treaty acceded to by both his home country or country of habitual residence and
China, enjoys copyright in a work that he has published outside China, such
copyright shall enjoy protection hereunder.
Works of
foreigners or stateless persons that are first published in the People's
Republic of China shall enjoy copyright hereunder.
Where the
work of an author whose country has not entered into an agreement with China or
has not acceded to an international treaty to which China has acceded, or the
work of a stateless person, is first published in a country that is a signatory
to an international treaty that China has acceded to, or is simultaneously
published in a signatory country and a non-signatory country, such work shall
enjoy protection hereunder.
Article
3: For the purposes of this Law, the term
"works" shall include literary, artistic, natural science, social
science and engineering technology works, etc., that are created in any of the
following forms:
1. written
works;
2.oral
works;
3.musical
works, operatic and dramatic works, works of quyi, choreographic works
and acrobatic works;
4.works of
fine art and architectural works;
5.photographic
works;
6.cinematographic
works and works created by a process analogous to cinematography;
7.graphics
works such as drawings of engineering designs, drawings of product designs,
maps, schematic drawings, etc. and three-dimensional model works;
8.computer
software;
9.other
works as stipulated in laws and administrative regulations.
Article
4: Works that may not be published or disseminated
under law shall not be protected under this Law.
The
exercise by a copyright owner of his copyright may not violate the Constitution
or any other law and may not harm the public interest.
Article
5: This Law shall not apply to:
1.laws;
regulations; resolutions, decisions and orders of government organs; other
documents of a legislative, administrative or judicial nature; and their
official translations;
2.news of
current events; and
3.calendars,
numerical tables in common use, forms in common use and formulas.
Article
6: Measures for the protection of copyright in folk
literary and artistic works shall be formulated separately by the State
Council.
Article
7: The copyright administration department of the State
Council [the National Copyright Administration] shall be in charge of the
nationwide administration of copyright. The copyright administration
departments of the people's governments of each province, autonomous region and
municipality directly under the central government shall be responsible for the
administration of copyright in their respective administrative districts.
Article
8: Copyright owners and owners of neighbouring rights
may authorize an organization for the collective administration of copyright to
exercise copyrights or neighbouring rights. After receiving authorization, an
organization for the collective administration of copyright may assert rights,
in its own name, for a copyright owner or an owner of neighbouring rights and
act as a party in litigation or arbitration involving copyrights or
neighbouring rights.
An
organization for the collective administration of copyright is a non-profit
organization. The State Council shall separately formulate provisions concerning
the method of establishment and the rights and obligations of such
organization, the collection and distribution of copyright royalties by such
organization and the supervision and administration of such organization, etc.
PART TWO:
COPYRIGHT
Section
One: Copyright Owners and Their Rights
Article
9: The term "copyright owner" shall include:
1.authors;
and
2.other
citizens, and other legal persons and other organizations, that enjoy copyright
under this Law.
Article
10: The term "copyright" shall include the
following moral rights1 and economic rights:2
1.the
right of publication, i.e., the right to decide whether or not to make a work
available to the public;
2.the
right of attribution, i.e., the right to affix one's name to a work in order to
indicate the author's identity;
3.the
right of revision, i.e., the right to revise or authorize others to revise
one's work;
4.the
right of integrity, i.e., the right to protect one's work against
misrepresentation and distortion;
5.the
right of reproduction, i.e. the right to make one or more copies of one's work
through such means as printing, photocopying, making a rubbing, making a sound
recording, making a video recording, duplicating a recording, reproducing by
photographic or cinematographic means, etc.;
6.the
right of distribution, i.e. the right to provide originals or reproductions of
one's work to the public by means of sale or gift;
7. the
right of rental, i.e. the right to permit others to temporarily use one's
cinematographic work, work created by a process analogous to cinematography or
computer software for consideration, unless the computer software itself is not
the essential object of the rental;
8. the
right of exhibition, i.e. the right to publicly display the original or a
reproduction of one's work of fine art or photographic work;
9. the
right of performance, i.e. the right to publicly perform one's work and to
publicly broadcast by any means a performance of one's work;
10.the
right of projection, i.e. the right to publicly show one's work of fine art,
photographic work, cinematographic work or work created by a process analogous
to cinematography by means of such technical equipment as a movie projector,
slide projector, etc.;
11.the
right of broadcast, i.e. the right to publicly broadcast or communicate one's
work by means of wireless transmission, to communicate one's broadcast work to
the public by wire transmission or rebroadcasting and to communicate one's
broadcast work to the public through a loudspeaker or any other analogous
instrument transmitting symbols, sounds or images;
12.the
right of communication via an information network, i.e. the right to make one's
work available to the public by wire or by wireless means, enabling members of
the public to access the work at a time and from a place individually chosen by
them;
13.the
right of cinematization, i.e. the right to fix a work in a medium by a
cinematographic process or a process analogous to cinematography;
14.the
right of adaptation, i.e. the right to change one's work thereby creating an
original, new work;
15.the
right of translation, i.e., the right to convert one's work from one language
to another language;
16.the
right of compilation, i.e., the right to cause one's work or extracts of one's
work to become a new work through selection or arrangement and assembly; and
17.other
rights to which a copyright owner is entitled.
A
copyright owner may permit others to exercise the rights specified in Items (5)
to (17) of the preceding paragraph and to receive remuneration for granting
such permission pursuant to an agreement between the parties or the relevant
provisions hereof.
A
copyright owner may assign all or part of the rights specified in Items (5) to
(17) of the first paragraph of this Article and receive remuneration for such
assignment pursuant to an agreement between the parties or the relevant
provisions hereof.
Section
Two: Ownership of Copyright
Article
11: Unless this Law provides otherwise, copyright shall
vest in the author.
The
citizen who creates a work shall be the author thereof.
Where the
creation of a work is sponsored by a legal person or other organization and
represents the will of such legal person or other organization, and
responsibility for the work is borne by the legal person or other organization,
the legal person or other organization shall be deemed the author thereof.
Absent
evidence to the contrary, the citizen or legal person or other organization
that puts his or its name on a work shall be the author thereof.
Article
12: Copyright in a work created through adaptation,
translation, annotation or arrangement of a pre-existing work shall vest in the
adaptator, translator, annotator or arranger, provided that his exercise of
such right does not prejudice the copyright in the original work.
Article
13: Copyright in a work jointly created by two or more
authors shall be owned jointly by the co-authors. Persons who have not
participated in the creation of such work cannot become co-authors.
Where a
joint work can be used by dividing it, each co-author may hold separate
copyright in the part that he created, provided that his exercise of such right
does not prejudice the copyright in the joint work as a whole.
Article
14: Compilations of several works, or of extracts from
works, or of data or other materials that do not constitute a work are works of
compilation provided that they show originality in terms of the selection or
arrangement of their contents. Copyright in such works shall vest in the
editor, provided that the editor's exercise of such right does not prejudice
copyright in the original works.
Article
15: Copyright in a cinematographic work or a work
created by a process analogous to cinematography shall vest in the producer.
However, such authors as the screenwriter, director, cinematographer, lyricist,
composer, etc. shall have the right of attribution and the right to receive
remuneration pursuant to the contract entered into with the producer.
The
authors of those works forming part of a cinematographic work or work created
by a process analogous to cinematography that can be used separately, such as
the screenplay and/or the music, shall have the right to exercise their
copyrights independently.
Article
16: A work created by a citizen in order to accomplish a
task assigned to him by a legal person or other organization shall be an
occupational work.3 Subject to the provisions of the second
paragraph hereof, the copyright in such work shall vest in the author, provided
that the legal person or other organization shall have the right of priority in
using such work within its scope of business. Until two years after the
completion of the work, the author may not authorize third parties to use such
a work in the same way as that in which it is used by the work unit without the
consent of such work unit.
With
respect to any of the following occupational works, the right of attribution
shall vest in the author and the other copyright rights shall vest in the legal
person or other organization, and such legal person or other organization may
reward the author:
1.drawings
of engineering designs, drawings of product designs, maps, computer software,
etc. created mainly by using the material and technical resources of a legal
person or other organization and the responsibility for which is borne by such
legal person or other organization;
2.occupational
works the copyright in which vests in a legal person or other organization
pursuant to the provisions of a law, administrative regulation or contract.
Article
17: The ownership of the copyright in a commissioned
work shall be agreed upon in the contract between the commissioner and the
commissioned party. If the contract does not expressly provide for ownership or
if no contract has been concluded, copyright shall vest in the commissioned
party.
Article
18: The transfer of ownership of the original copy of a
work of fine art [or a comparable work4] shall not be deemed to be a
transfer of the copyright in the work, except that the right to exhibit the
original of such work shall vest in the owner of the original copy.
Article
19: Where copyright in a work vests in a citizen, his
rights stipulated in Items (5) to (17) of the first paragraph of Article 10
hereof shall, after such citizen's death, pass in accordance with the Inheritance
Law for the period of protection provided for in this Law.
Where
copyright in a work is vested in a legal person or other organization, its
rights stipulated in Items (5) to (17) of the first paragraph of Article 10
hereof shall, after such legal person or other organization is changed or
terminated, vest in the legal person or other organization that inherited the
former's rights and obligations or, if no legal person or other organization
inherited such rights and obligations, in the state, for the period of
protection provided for in this Law.
Section
Three: Duration of Protection
Article
20: The duration of an author's rights of attribution,
revision and integrity shall be perpetual.
Article
21: A citizen's right of publication and the rights stipulated
in Items (5) to (17) of the first paragraph of Article 10 hereof in respect of
a work shall be protected for a period consisting of the author's lifetime and
50 years after the author's death, and ending on 31 December of the 50th year
after the author's death. In the case of a joint work, such period shall end on
31 December of the 50th year after the death of the last surviving author.
The right
of publication and the rights stipulated in Items (5) to (17) of the first
paragraph of Article 10 hereof in respect of a work of a legal person or other
organization, or an occupational work the copyright (except for the right of
attribution) in which is vested in a legal person or other organization, shall
be protected for a period of 50 years, ending on 31 December of the 50th year
after the first publication of the work, except that if such work is not
published within 50 years after completion of its creation, it shall no longer
be protected under this Law.
The right
of publication and the rights stipulated in Items (5) to (17) of the first
paragraph of Article 10 hereof in respect of a cinematographic work, a work
created by a process analogous to cinematography or a photographic work shall
be protected for a period of 50 years, ending on 31 December of the 50th year
after the first publication of the work, except that if such work is not
published within 50 years after the completion of its creation, it shall no
longer be protected under this Law.
Section
Four: Limitation of Rights
Article
22: In the following cases, a work may be used without
permission from, and without payment of remuneration to, the copyright owner.
However, the name of the author and the title of the work shall be indicated
and the other rights enjoyed by the copyright owner by virtue of this Law shall
not be prejudiced:
1.use of a
published work where such use is for the purpose of individual study, research
or enjoyment;
2.appropriate
quotation from a published work, where such quotation is used to introduce or
comment on such work or to explain a certain issue;
3.unavoidable
showing or quotation by such media as newspapers, periodicals, radio stations,
television stations, etc. of a published work, where such showing or quotation
is for the purpose of reporting current events;
4.printing
or broadcast by such media as newspapers, periodicals, radio stations and
television stations of an article on a current political, economic or religious
topic already published by such medium as another newspaper, periodical, radio
station or television station, except where the author has declared that
printing or broadcast of such article is not permitted;
5.printing
or broadcasting by such media as newspapers, periodicals, radio stations and
television stations of a speech delivered at a public gathering, except where
the author has declared that printing or broadcast thereof is not permitted;
6.translation,
or reproduction in a small number of copies, of a published work, where such
translation or reproductions are made for the purpose of classroom teaching or
scientific research and are to be used by teachers or scientific researchers,
provided that such translation or reproductions are not published and
distributed;
7.use, to
a reasonable extent, by a State entity of a published work, where such use is
for the purpose of carrying out official duties;
8.reproduction
by a library, archive, memorial hall, museum, art gallery, etc., of a work in
its collection, where reproduction is for the purpose of exhibiting or
preserving an edition of such work;
9.gratuitous
performance of a published work, where no charge is collected from the public
nor remuneration paid to the performers for the performance;
10.copying,
painting, photographing or videotaping of a work of art placed or exhibited in
an outdoor public place;
11.translation
of a work already published by a Chinese citizen or legal person or other
organization and created in the Han language [Chinese] into a work in the
language of a domestic minority ethnic group, and publication and distribution
within China of such translation; and
12.transformation
of a published work into braille and publication of the work as transformed.
The
limitations on rights stipulated in the preceding paragraph shall apply to
publishers, performers, producers of sound and/or video recordings, radio
stations and television stations.
Article
23: For purposes of the compilation and publication of
textbooks under the nine year system of compulsory education and state
educational plans, the textbooks may, unless the author has declared that use
is not permitted, contain compilations of extracts of published works, or
compilations of published short written works, musical works, single works of
fine art, and/or photographic works without the permission of the copyright
owner, provided that remuneration is paid in accordance with provisions, and
that the name of the author and the title of the work are indicated and the
other rights enjoyed by the copyright owner hereunder are not infringed.
The
limitations on rights stipulated in the preceding paragraph shall apply to
publishers, performers, producers of sound and/or video recordings, radio
stations and television stations.
PART
THREE: COPYRIGHT LICENSING AND COPYRIGHT ASSIGNMENT CONTRACTS
Article
24: Anyone who wishes to use the work of another shall
conclude a licensing contract with the copyright owner, except where this Law
provides that no licence need be obtained.
A
licensing contract shall include the following main terms:
1.the
right(s) being licensed;
2.whether
the licence is exclusive or non-exclusive;
3.the
geographic scope and term of the licence;
4.the
amount and method of remuneration;
5.liability
for breach of contract; and
6.other
matters that the parties consider necessary to be agreed upon.
Article
25: Assignment of any of the rights stipulated in Items
(5) to (17) of the first paragraph of Article 10 hereof shall require the
conclusion of a written contract thereon.
A rights
assignment contract shall include the following main terms:
1.the
title of the work;
2.the
right(s) being assigned and the geographic scope thereof;
3.the
assignment price;
4.the date
and method of payment of the assignment price;
5.liability
for breach of contract; and
6.other
matters that the parties consider necessary to be agreed upon.
Article
26: Without the consent of the copyright owner, the
other party may not exercise any right that the copyright owner has not
explicitly licensed or assigned in the licensing or assignment contract.
Article
27: The rate for remuneration for the use of a work may
be agreed upon by the parties or remuneration may be paid in accordance with
the rate for remuneration established by the copyright administration
department of the State Council [the National Copyright Administration] in
conjunction with other relevant departments. If the agreement between the
parties is unclear, remuneration shall be paid in accordance with the rate for
remuneration established by the copyright administration department of the
State Council [the National Copyright Administration] in conjunction with other
relevant departments.
Article
28: Publishers, performers, producers of sound and/or
video recordings, radio stations, television stations, etc., who use the works
of others pursuant to the relevant provisions hereof may not infringe upon an
author's right to attribution, revision or integrity or the right to receive
remuneration.
PART FOUR:
PUBLICATION, PERFORMANCE, SOUND AND VIDEO RECORDING AND BROADCAST
Section
One: Publication of Books, Newspapers and Periodicals
Article
29: A book publisher who publishes a book shall enter into a
publication contract with the copyright owner and pay remuneration.
Article
30: The contractual exclusive right enjoyed by the book
publisher to publish the work delivered to it by the copyright owner for
publication shall be protected by law and the work may not be published by
other parties.
Article
31: The copyright owner shall deliver the work within the time
limit specified in the contract. The book publisher shall publish the book in
accordance with the quality requirements and time limit specified in the
contract.
The book
publisher shall undertake civil liability in accordance with Article 53 hereof
if it fails to publish the book within the time limit specified in the
contract.
If the
work is to be reprinted or republished after it has been published, the
copyright owner shall be notified and remuneration shall be paid. If the
publisher refuses to reprint or republish the book when it has become out of
stock, the copyright owner shall have the right to terminate the contract.
Article
32: If a copyright owner offers a manuscript to a newspaper or
periodical and does not receive notification of its decision to publish within
15 or 30 days, respectively, after the date of offering the manuscript, he may
offer the same manuscript to another newspaper or periodical, unless the two
parties have agreed otherwise.
A work
that has been printed by a newspaper or periodical may be reprinted, abstracted
or printed as reference material, by another newspaper or periodical, unless
the copyright owner has declared that reprinting or excerpting is not
permitted; however, the copyright owner shall be remunerated in accordance with
provisions.
Article
33: A publisher may revise and/or abridge a work with the
permission of the copyright owner.
Newspapers
and periodicals may revise and/or abridge a work for reasons of style, but must
obtain the author's permission to revise the contents.
Article
34: When publishing a work created through adaptation,
translation, annotation, arrangement or compilation of a pre-existing work, the
permission of the owners of the copyright in the adapted, translated,
annotated, arranged or compiled work and in the original works shall be obtained
and remuneration paid.
Article
35: A publisher shall have the right to permit or forbid others
to use the layout of a book or periodical published by it.
The period
for protection of the rights specified in the preceding paragraph shall be 10
years, ending on 31 December of the 10th year after the first publication of
the book or periodical using the said layout.
Section
Two: Performance
Article
36: A performer (a performing individual or work unit)
who wishes to use for a performance another's work shall obtain permission from
the copyright owner and pay remuneration. When a performance organizer
organizes a performance, the organizer shall obtain permission from the
copyright owner and pay remuneration.
When a
work created through adaptation, translation, annotation or collation of a
pre-existing work is to be performed, the permission of the owners of the
copyright in the adapted, translated, annotated or collated work and in the
original work shall be obtained and remuneration paid.
Article
37: A performer shall have the following rights in his
performance:
1.to
indicate the identity of the performer;
2.to
protect the form of his performance from distortion;
3.to
authorize others to make a live broadcast of and publicly transmit his live performance,
and to receive remuneration therefor;
4.to
authorize others to make sound or video recordings, and to receive remuneration
therefor;
5.to
permit others to reproduce and/or distribute a sound or video recording of his
performance, and to receive remuneration therefor; and
6.to
permit others to communicate his performance to the public via an information
network and to receive remuneration therefor.
If a
licensee uses a work in accordance with any of Items (3) through (6) of the
preceding paragraph, he shall also obtain permission from the copyright owner
and pay remuneration.
Article
38: The period for protection of the rights specified in
items (1) and (2) of the first paragraph of Article 37 shall be without limit.
The period
for protection of the rights specified in Items (3) to (6) of the first
paragraph of Article 37 shall be 50 years, ending on 31 December of the 50th
year after the occurrence of such performance.
Section
Three: Sound and Video Recordings
Article
39: A producer of sound or video recordings that wishes
to use another's work to produce a sound or video recording shall obtain
permission from the copyright owner and pay remuneration.
When a
producer of sound or video recordings uses a work resulting from adaptation,
translation, annotation or arrangement of a pre-existing work, it shall obtain
permission from the owners of the copyright in the adapted, translated,
annotated or arranged work and in the original work and pay remuneration.
When a
producer of sound recordings produces a sound recording of a work of music that
has previously been lawfully recorded as a sound recording it need not obtain
permission from the copyright owner but shall pay remuneration in accordance
with provisions, unless the copyright owner has declared that use is not
permitted.
Article
40: A producer of sound or video recordings that wishes
to produce a sound or video recording shall conclude a contract with the
performer and pay remuneration.
Article
41: A producer of sound or video recordings shall have
the right to license others to reproduce, distribute or rent out a sound or
video recording produced by it or communicate the same to the public via an
information network and the right to receive remuneration therefor. Such rights
shall be protected for a period of 50 years, ending on 31 December of the 50th
year after the completion of the first production of such recording.
If a
licensee reproduces or distributes a sound or video recording or communicates
the same to the public via an information network, it shall also obtain
permission from the copyright owner and the performer and pay remuneration.
Section
Four: Broadcast by a Radio or Television Station
Article
42: A radio or television station that wishes to
broadcast another's unpublished work shall obtain permission from the copyright
owner and pay remuneration.
A radio or
television station that wishes to broadcast another's published work need not
obtain permission from the copyright owner, but it shall pay remuneration.
Article
43: A radio or television station that wishes to
broadcast a published sound recording need not obtain permission from the
copyright owner but it shall pay remuneration, unless the parties have agreed
otherwise. Specific measures therefor shall be formulated by the State Council.
Article
44: A radio or television station shall have the right
to prohibit the following acts when undertaken without its permission:
1.rebroadcast
of its radio or television broadcasts;
2.recording
onto a sound or video medium of its radio or television broadcasts and the
reproduction of such sound or video medium.
The rights
set forth in the preceding paragraph shall be protected for a period of 50
years, ending on 31 December of the 50th year after the first transmission of
such radio or television broadcast.
Article
45: A television station that wishes to broadcast
another's cinematographic work, work created by a process analogous to
cinematography or video recording shall obtain permission from the producer
thereof and pay remuneration. When broadcasting another's video recording, the
permission of the copyright owner shall also be obtained and remuneration paid.
PART FIVE:
LEGAL LIABILITY AND ENFORCEMENT MEASURES
Article
46: Anyone who commits any of the following infringing
acts shall undertake civil liability by ceasing the infringement, eliminating
the effects, apologizing, paying damages, etc., depending on the circumstances:
1.publication
of a work without permission from the owner of the copyright therein;
2.publication
of a joint work without permission from the other co-authors as a work created
solely by oneself;
3.affixing
one's name to another's work in pursuit of fame and profit where one has not
participated in the creation of such work;
4.distortion
and mutilation of a work;
5.plagiarizing
of another's work;
6.unless
this Law provides otherwise, use of a work in ways such as exhibiting,
cinematizing or treating by a process analogous to cinematizing, or use of a
work through adapting, translating, annotating, etc., without permission from
the copyright owner;
7.use of
another's work without paying remuneration when remuneration should be paid;
8.unless
this Law provides otherwise, rental of a cinematographic work, work created by
a process analogous to cinematography, computer software or sound or video
recording without the permission of the owner of the copyright or neighbouring
rights therein;
9.use,
without the permission of the publisher, of the layout of a book or periodical
published by it;
10.live
broadcast of a performer's performance, or public transmission of his live
performance or recording of his performance without his permission; or
11.other
infringements of copyright or neighbouring rights.
Article
47: Anyone who commits any of the following infringing
acts shall undertake civil liability by ceasing the infringement, eliminating
the effects, apologizing, paying damages, etc., depending on the circumstances;
if his act also prejudices the public interest, he may be subjected by a copyright
administration department to an order to cease the infringing act, confiscation
of unlawful income, confiscation and destruction of the infringing
reproductions and the imposition of a fine; if the circumstances are serious,
the copyright administration department may also confiscate the materials,
tools, equipment, etc. mainly used in the manufacture of the infringing
reproductions; if a criminal offence is constituted, his criminal liability
shall be pursued in accordance with the law:
1.reproducing,
distributing, performing, projecting, broadcasting or compiling a work or
communicating the same to the public via an information network, without
permission from the owner of the copyright therein, unless this Law provides
otherwise;
2.publishing
a book in which another person has the exclusive right of publication;
3.reproducing
and/or distributing a sound or video recording of a performance or
communicating the same to the public via an information network without
permission from the performer, unless this Law provides otherwise;
4.reproducing
and/or distributing a sound or video recording or communicating the same to the
public via an information network without permission from the producer thereof,
unless this Law provides otherwise;
5.broadcasting
or reproducing a radio or television broadcast without permission, unless this
Law provides otherwise;
6.deliberately
circumventing or cracking the technical measures taken by a copyright owner or
owner of neighbouring rights to protect his copyright or neighbouring rights in
a work, sound recording, video recording, etc. without the permission of such
copyright owner or owner of neighbouring rights, unless otherwise provided in
laws or administrative regulations;
7.deliberately
removing or modifying the electronic rights control information contained in a
work, sound recording, video recording, etc. without the permission of the
copyright owner or the owner of neighbouring rights, unless otherwise provided
in laws or administrative regulations; or
8.producing
or selling a work on which another's signature is passed off.
Article
48: When copyright or neighbouring rights are infringed
upon, the infringer shall pay damages based on the actual losses of the right
holder. If the actual losses are difficult to calculate, the damages paid may
be based on the illegal income earned by the infringer. The measure of damages
shall also include the reasonable expenses incurred by the right holder in
halting the infringing act.
If neither
the actual losses of the right holder nor the illegal income earned by the
infringer can be determined, the people's court shall, depending on the
circumstances of the infringing act, render a judgment awarding damages not
exceeding Rmb 500,000.
Article
49: If a copyright owner or an owner of neighbouring
rights has evidence showing that another person is carrying out or about to
carry out an act of infringement upon his rights and that failure to
immediately halt such act would cause damage to his lawful rights and interests
that would be difficult to remedy, he may, prior to instituting an action,
apply to a people's court for an injunction against the act and an order of
preservation of property.
A people's
court's handling of applications referred to in the preceding paragraph shall
be governed by Articles 93 to 96 and Article 99 of the PRC, Civil Procedure
Law.
Article
50: A copyright owner or an owner of neighbouring rights
may, with the object of halting infringing conduct, apply to a people's court
for the preservation of evidence prior to the institution of proceedings, if
such evidence might be destroyed, lost or difficult to obtain later.
The
people's court must render a ruling within 48 hours of acceptance of the
application. The implementation of preservation measures shall commence
promptly upon the rendering of a ruling adopting such measures.
The
people's court may order the applicant to provide security. If the applicant
fails to provide security, his application shall be rejected.
If the
applicant fails to institute proceedings within 15 days after the people's
court takes preservation measures, the people's court shall terminate such
preservation measures.
Article
51: When hearing a case, a people's court may confiscate
the illegal income, the infringing reproductions and property used in the
commission of illegal activities of the party that has infringed upon copyright
or neighbouring rights.
Article
52: If a publisher or producer of reproductions is
unable to produce evidence that his publication or production was lawfully
authorized, or if a distributor of reproductions or a person renting out
reproductions of cinematographic works, works created by a process analogous to
cinematography, computer software, sound recordings or video recordings is
unable to produce evidence of the lawful origin of the reproductions that he
distributes or rents out, he shall bear legal liability.
Article
53: A party that fails to perform its contractual
obligations or whose performance of its contractual obligations does not
conform to the agreed conditions shall undertake civil liability in accordance
with such relevant laws and regulations as the PRC, Civil Law General
Principles, the PRC, Contract Law, etc.
Article
54: A copyright dispute may be the subject of mediation.
Alternatively, it may be submitted for arbitration to an arbitration
institution pursuant to a written arbitration agreement reached between the
parties or the arbitration clause of the copyright contract.
If the
parties have neither reached a written arbitration agreement nor included an
arbitration clause in their copyright contract, proceedings may be instituted
directly in a people's court.
Article
55: A party that objects to an administrative penalty
may institute proceedings in a people's court within three months from the date
of receipt of the written decision on the penalty. If a party has neither
instituted proceedings nor performed in accordance with the decision by the
expiry of the time limit, the copyright administration department may request
the people's court to enforce the decision.
PART SIX:
SUPPLEMENTARY PROVISIONS
Article
56: The term "author's right"5 as
used in this Law means "copyright".
Article
57: The term "publication" as used in Article
2 hereof means the reproduction and distribution of works.
Article
58: Measures for the protection of computer software and
the right of communication via an information network shall be formulated
separately by the State Council.
Article
59: The rights of copyright owners, publishers,
performers, producers of sound or video recordings, radio stations and
television stations as provided for in this Law shall be protected under this
Law, provided that as at the date on which this Law becomes effective, the
periods of protection of such rights as specified in this Law have not expired.
Any
infringement or breach of contract committed prior to the implementation of
this Law shall be handled in accordance with the relevant provisions and
policies in effect at the time such tort or breach of contract was committed.
Article
60: This Law shall be implemented as of 1 June 1991.
Translator's
notes:
1.The
translation of the previous version prepared by the National Copyright
Administration (NCA) renders the term moral rights 
as
"personality rights".
2.The NCA
translation of the previous version defines economic rights
as "property rights".
3.The NCA
translation of the previous version defines "occupational work" 
as
a "work created during the course of employment".
4.The
original Chinese uses the term 
,
meaning "etcetera".
5.The term
"author's right" 
has
been translated as "copyright" throughout the text.
-
- Implementation of International Copyright Treaties Provisions
Implementation
of International Copyright Treaties Provisions
Effective:
30 September 1992
Interpreting
authority: State Copyright Bureau
Applicability:
The Provisions apply to the protection of the copyright in foreign works.
Main
contents:The Provisions consist of 22 Articles.
Article 3
stipulates that the term international copyright treaties as used in the
Provisions will refer to the Berne Convention for the Protection of Literary
and Artistic Works and bilateral copyright agreements signed between China and
foreign countries.
Article 4
stipulates that foreign works as used in these Provisions will include:
- works where the author, one of the authors,
other copyright holders or one of the other copyright holders is a
national or frequent resident of a country that is party to an
international copyright treaty (a "treaty country");
- works where the author is not a national or a
frequent resident of a treaty country but where the works were published
for the first time or simultaneously in such treaty country; and
- works the creation of which was commissioned by
foreign investment enterprises and for which the contract provides that
such enterprise is the owner or one of the owners of the copyright.
Article 6
stipulates that the period of protection for foreign works of applied art will
be 25 years from the completion of the work. This does not apply to works
of fine art used in industrial products.
Article 7
stipulates that foreign computer programs will be treated as literary works for
purposes of protection and do not need to be registered. The term of
protection for computer programs will be 50 years from the end of the year when
the programs are first published.
Article 15
stipulates that the copyright holders of foreign works hae the right to
prohibit the import of reproductions of their works that infringe upon their
copyright or reproductions from countries where their products are not given
protection.
-
- PRC Copyright Law
Implementing Regulations
PRC
Copyright Law Implementing Regulations
(Promulgated
by the State Council on 2 August 2002 and effective as of 15 September 2002.)
Article
1: These Regulations are formulated in accordance with
the PRC, Copyright Law (the Copyright Law).
Article
2: For the purposes of the Copyright Law, the term
"works" means unique intellectual achievements in the fields of
literature, art and science that can be reproduced in a tangible form.
Article
3: For the purposes of the Copyright Law, the term
"creation" means intellectual activity that directly produces
literary, artistic or scientific works.
Conducting
organizational work, giving advice or comments, providing material conditions
or otherwise rendering support in respect of the creation of works by others
shall not be regarded as creation.
Article
4: For the purposes of the Copyright Law and these
Regulations, the following works shall have the meanings set forth below:
1.
"written works" means works expressed in written form, such as
novels, poems, prose, treatises, etc.;
2."oral
works" means extemporaneous works expressed in oral form, such as
speeches, lectures, court arguments, etc.;
3."musical
works" means works with or without lyrics that can be sung or played, such
as songs, symphonies, etc.;
4."theatrical
works" means works for stage performance such as dramas, operas, local
operas, etc.;
5."works
of quyi" means works mainly performed through storytelling and
ballad singing, such as comic dialogues, quick-patter, versified stories sung
to the accompaniment of a small drum and other instruments, storytelling, etc.;
6."choreographic
works" means works that express thoughts and feelings through continuous
movement, postures, facial expressions, etc.;
7."acrobatic
works" means works expressed through bodily movements and techniques, such
as acrobatics, conjuring, circus performances, etc.;
8."works
of fine art" means two- or three-dimensional aesthetic works of visual art
made up of line, colour or other means, such as paintings, calligraphy,
sculptures, etc.;
9."works
of architecture" means aesthetic works expressed in the form of buildings
or structures;
10."photographic
works" means artistic works that are images of objects recorded on
light-sensitive material or other media by means of instruments;
11."cinematographic
works and works created by a process analogous to cinematography" means
works filmed on a certain medium and consisting of a series of frames, with or
without accompanying sound, which are projected or otherwise communicated by
means of appropriate equipment;
12."graphic
works" means drawings of engineering designs and drawings of product
designs that are made for construction work or engineering purposes, and to
maps, schematic drawings, etc. that reflect geographical phenomena or
illustrate the principles or structures of things;
13."model
works" means three-dimensional works made to a certain scale on the basis
of the shape and structure of objects, for purposes of display, testing or
observation, etc.
Article
5: For the purposes of the Copyright Law and these
Regulations, the following terms shall have the meanings set forth below:
1. "news
of current events" means pure factual information reported by such media
as newspapers, periodicals, radio stations, television stations, etc.;
2. "sound
recording" means any recording of the sound of a performance or other
sound;
3. "video
recording" means any recording of continuous, related images or pictures
with or without accompanying sound other than a cinematographic work or a work
created by a process analogous to cinematography;
4. "producer
of a sound recording" means a person that first produces a sound
recording;
5. "producer
of a video recording" means a person that first produces a video
recording;
6. "performer"
means an actor or actress, an organization of performing artists or another
person that performs a literary or artistic work.
Article
6: Copyright arises on the date on which creation of
the work is completed.
Article
7: Copyright in works of foreigners or stateless
persons that are first published in the People's Republic of China, as
mentioned in the third paragraph of Article 2 of the Copyright Law, is
protected from the date of first publication.
Article
8: A work of a foreigner or stateless person that is
published in China within 30 days after it is first published outside China
shall be deemed to have been simultaneously published in China.
Article
9: Where a joint work cannot be used by dividing it, the
copyright therein shall be owned jointly by the co-authors and be exercised
after they have reached a consensus thereon through consultations. If the
co-authors fail to reach a consensus and there is no proper cause for such
failure, no party may prevent any of the other parties from exercising any
right other than the right of assignment; however, the gains derived shall be
reasonably distributed among all the co-authors.
Article
10: If a copyright owner permits another person to film
his work into a cinematographic work or a work created by a process analogous
to cinematography, he shall be deemed to have agreed to the making of necessary
modifications to his work; however, such modifications may not distort or
mutilate the original work.
Article
11: For the purposes of the provisions concerning
occupational works in the first paragraph of Article 16 of the Copyright Law,
the term "task" means a duty to be performed in such legal person or
other organization by the citizen.
For the
purposes of the provisions concerning occupational works in the second
paragraph of Article 16 of the Copyright Law, the term "material and
technical resources" means funds, equipment or materials provided
exclusively by the legal person or other organization for the citizen's
completion of the creation.
Article
12: If the author of an occupational work, with the
permission of his work unit, permits a third party to use the work in the same
way as does the work unit within two years after completion of the work, the remuneration
so derived shall be shared by the author and the work unit according to the
ratio agreed upon.
The
two-year time limit following completion of the work shall commence on the date
on which the author delivers the work to his work unit.
Article
13: The copyright, other than the right of attribution,
in a work by an author whose identity is unknown shall be exercised by the
owner of the original copy of the work. Once the author's identity has been
ascertained, the copyright shall be exercised by the author or his successor.
Article
14: If a co-author dies without a successor to or legatee
of the rights specified in Items (5) to (17) of the first paragraph of Article
10 of the Copyright Law that were held by him in connection with the joint
work, such rights shall vest in the other co-authors.
Article
15: After the death of an author, the attribution,
revision and integrity rights in his work shall be protected by his successor
or legatee.
If there
is neither a successor to nor a legatee of copyright, the attribution, revision
and integrity rights shall be protected by the copyright administration
departments.
Article
16: The use of works in which the State holds copyright
shall be administered by the copyright administration department of the State
Council.
Article
17: If the author of an unpublished work did not
expressly indicate before his death that the work should not be published, the
right of publication of the work may be exercised by his successor or legatee
for 50 years following the author's death. If there is neither a successor nor
a legatee, the right of publication shall be exercised by the owner of the
original copy of the work.
Article
18: The period of protection of the rights specified in
Items (5) to (17) of the first paragraph of Article 10 of the Copyright Law in
respect of a work by an author whose identity is unknown shall end on 31
December of the 50th year after the first publication of the work. After the
identity of the author has been ascertained, Article 21 of the Copyright Law
shall apply.
Article
19: When using another's work, the name of the author and
the title of the work shall be indicated, unless the parties have agreed
otherwise or the characteristics of the manner of use of the work make it
impossible to indicate the same.
Article
20: For the purposes of the Copyright Law, the term
"published work" means a work that has been made available to the
public by the copyright owner himself or by a person whom he has permitted to
do so.
Article
21: The use of a published work without permission from
the copyright owner, pursuant to the relevant provisions of the Copyright Law,
may not prejudice the normal use of the work and may not unreasonably prejudice
the lawful rights and interests of the copyright owner.
Article
22: The rates for remuneration for the use of works
pursuant to Article 23, the second paragraph of Article 32 and the third
paragraph of Article 39 of the Copyright Law shall be stipulated and published
by the copyright administration department of the State Council in conjunction
with the department in charge of pricing of the State Council.
Article
23: Anyone who wishes to use the work of another shall
conclude a licensing contract with the copyright owner. If the licence is
exclusive, such contract shall be made in writing, except in the case of works
carried by newspapers or periodicals.
Article
24: The particulars of an exclusive licence as provided
for in Article 24 of the Copyright Law shall be stipulated in the contract. If
such particulars are not stipulated, or not stipulated clearly, in the
contract, the licensee shall be deemed to have the right to exclude all others,
including the copyright owner, from using the work in the same manner. Unless
stipulated otherwise in the contract, sublicenses shall be subject to the
permission of the copyright owner.
Article
25: Exclusive licensing contracts or assignment contracts
concluded with copyright owners may be recorded with the copyright
administration departments.
Article
26: For the purposes of the Copyright Law and these
Regulations, the term "neighbouring rights" means the rights of
publishers in the layouts of the books and periodicals published by them, the
rights of performers in their performances, the rights of producers of sound
recordings and producers of video recordings in the sound recordings and video
recordings produced by them, and the rights of radio and television stations in
the radio and television programmes broadcast by them.
Article
27: The exercise by publishers, performers, producers of
sound recordings, producers of video recordings, radio stations and television
stations of their rights may not prejudice the rights of the owners of the
copyright in the works used or those of the owners of the copyright in the
original works.
Article
28: If a book publishing contract provides that the book
publisher has the exclusive right of publication but the particulars of such
right are not specified, the book publisher shall be deemed to have the
exclusive right to publish the original edition or revised editions of the book
in the same language within the territory stipulated in the contract during the
term of the contract.
Article
29: For the purposes of Article 31 of the Copyright Law,
a book shall be deemed to be out of stock when two orders sent to the book
publisher by the copyright owner are not filled within six months.
Article
30: Where a copyright owner wishes to declare by virtue
of the second paragraph of Article 32 of the Copyright Law that his work may
not be reprinted or excerpted, he shall attach such a declaration to the work
at the time of its publication in a newspaper or periodical.
Article
31: Where a copyright owner wishes to declare by virtue
of the third paragraph of Article 39 of the Copyright Law that no sound
recordings may be produced of his work, he shall make such a declaration at the
time when a lawful sound recording is produced of the work.
Article
32: Where use is made of another's work pursuant to
Article 23, the second paragraph of Article 32 or the third paragraph of
Article 39 of the Copyright Law, remuneration shall be paid to the copyright
owner within two months of the date on which the work commences to be used.
Article
33: Performances rendered inside China by foreigners and
stateless persons shall be protected under the Copyright Law.
The
rights, based on international treaties to which China has acceded, that
foreigners and stateless persons enjoy in their performances shall be protected
under the Copyright Law.
Article
34: Sound recordings produced and/or distributed in China
by foreigners and stateless persons shall be protected under the Copyright Law.
The
rights, based on international treaties to which China has acceded, that
foreigners and stateless persons enjoy in the sound recordings produced and/or
distributed by them shall be protected under the Copyright Law.
Article
35: The rights, based on international treaties to which
China has acceded, that foreign radio stations and television stations enjoy in
the radio and television programmes broadcast by them shall be protected under
the Copyright Law.
Article
36: If an infringing act as mentioned in Article 47 of
the Copyright Law is committed and such act also prejudices the public
interest, the copyright administration department may impose a fine of not more
than three times the amount of the illegal turnover or, if the amount of the
illegal turnover is difficult to calculate, a fine of not more than Rmb
100,000.
Article
37: Infringing acts as mentioned in Article 47 of the
Copyright Law that also prejudice the public interest shall be investigated and
dealt with by the copyright administration department of the local people's
government.
Infringing
acts that have a serious impact nationwide may be investigated and dealt with
by the copyright administration department of the State Council.
Article
38: These Regulations shall be implemented as of 15
September 2002. The PRC, Copyright Law Implementing Regulations approved
by the State Council on 24 May 1991 and issued by the National Copyright
Administration on 30 May 1991 shall be repealed on the same date.
Supreme
People's Court, Several Issues Concerning the Laws Applicable to the Trial
of Copyright Disputes Involving Computer Networks Interpretations (Revised)
(Revised
according to the <Amending the <<Supreme People's Court, Several
Issues Concerning the Laws Applicable to the Trial of Copyright Disputes
Involving Computer Networks Interpretations>> Decision> on 23 December
2003; promulgated on 2 January 2004 and effective as of 7 January 2004.)
Pursuant
to the provisions of such laws as the Civil Law General Principles, the
Copyright Law and the Civil Procedure Law, the following interpretation of
several issues concerning the laws applicable to the trial of copyright
disputes involving computer networks is rendered in order to correctly hear
such cases:
Article
1: Copyright infringement cases involving networks
shall fall within the jurisdiction of the people's court of the place where the
infringement occurred or where the defendant has his domicile. The place where
the infringement occurred shall include the place where such equipment as the
network server and computer terminal involved in the alleged infringement is
located. If the places where the infringement occurred and where the defendant
has his domicile are difficult to determine, the place where such equipment as
the computer terminal on which the plaintiff discovered the infringing content
is located may be deemed to be the place where the infringement occurred.
Article
2: Works protected by the Copyright Law include digital
versions of the various types of works specified in Article 3 of the Copyright
Law. The people's courts shall afford protection to results of intellectual
creation that, in a network environment, are impossible to classify under the
works enumerated in Article 3 of the Copyright Law but that are unique in the
field of literature, art or science and that can be reproduced in a tangible
form.
Article
3: No infringement is constituted if a work that has
been previously published in a newspaper or periodical or transmitted on a
network is republished or excerpted on a network, and remuneration is paid and
the source is indicated in accordance with relevant provisions, unless the
copyright owner has declared, or the newspaper, periodical or network service provider
has declared, at the behest of the copyright owner that such work may not be
republished or excerpted. However, if the website's republication or excerpting
of such work exceeds the scope within which works may be republished by
newspapers or periodicals, such act shall be deemed an infringement.
Article
4: If, by way of its network, a network service
provider participates in, incites, or assists in, copyright infringement by a
third party, the people's court shall pursue the joint liability for infringement
of the network service provider and the other perpetrator(s) or the person that
directly committed the infringement, pursuant to Article 130 of the Civil Law
General Principles.
Article
5: If a network service provider that provides content
services is well aware that a network subscriber has used its network to
infringe upon a third party's copyright, or the copyright owner has submitted a
substantiated warning but the network service provider fails to take such
measures as removing the infringing content so as to eliminate the consequences
of the infringement, the people's court shall pursue the joint liability for
infringement of the network service provider and the network subscriber
pursuant to Article 130 of the Civil Law General Principles.
Article
6: If a network service provider that provides content
services refuses, without just cause, the request of a copyright owner to
provide information on an infringer's registration with its network so as to
pursue such infringer's liability for infringement, the people's court shall
pursue the network service provider's attendant liability for infringement
pursuant to Article 106 of the Civil Law General Principles.
Article
7: If a network service provider uploads, transmits or
provides methods, equipment or materials that are specifically used to
circumvent or crack the technical protective measures for copyright of others
and he is well aware of it, the people's court shall, on the basis of the
claims of the parties and the details of the case, pursue the civil liability
for infringement of the network service provider in accordance with Item (6) of
Article 47 of the Copyright Law.
Article
8: If a copyright owner discovers infringing
information and issues a warning to the network service provider or requests
information on the infringer's registration with the network but fails to
provide proof of his own identity, proof of his copyright ownership or proof of
the infringement, he shall be deemed not to have issued a warning or not to
have made a request for the said registration information.
If the
network service provider still fails to take measures after the copyright owner
has provided the aforementioned proof, the copyright owner may, prior to
instituting an action, apply to the people's court for a ruling to cease the
relevant acts, and to preserve the property and the evidence in accordance with
Articles 49 and 50 of the Copyright Law. He may also, at the time he institutes
an action, apply to the people's court for a provisional ruling to cease the
infringement and interference and eliminate the effects. The people's court
shall grant such application.
Article
9: If a network service provider takes such measures as
removing allegedly infringing content after being issued a substantiated
warning by the copyright owner and the alleged infringer claims liability for
breach of contract against the network service provider, the people's court
shall reject such claim.
If the copyright owner's allegation of infringement is false, and the alleged infringer claims damages for the losses incurred due to the measures taken by the network service provider, the people's court shall order the party that issued the warning to assume the liability for damages.