Measures for the Enforcement of Copyright Administrative Penalty (2003)

 


(Reviewed and Adopted at the Administrative Meeting of the National Copyright Administration on 16 July 2003 and Entering into Force on 1 September 2003)

Chapter One General Provisions

Article 1 (objective) With a view to regulating the penalty administrative action of the copyright administrative departments, protecting the legitimate rights and interests of the citizens, legal persons and other organisations, these Measures are hereby promulgated under the Administrative Penalty Law of the People's Republic of China (hereinafter referred to as the Administrative Penalty Law), the Copyright Law of the People's Republic of China (hereinafter referred to as the Copyright Law) and other relevant laws and administrative regulations.

Article 2 (subject of enforcement) The National Copyright Administration and the relevant departments of the local governments that enjoy the administrative power to enforce the copyright (hereinafter referred to as the local copyright administrative departments) shall impose, ex officio, administrative penalty on law-breaking acts as enumerated in these Measures. Where the laws and regulations otherwise provide, these provisions of these laws and regulations shall govern.

Article 3 (law-breaking acts) The law-breaking acts mentioned in these Measures shall refer to:

(i) the infringing acts enumerated in Article 47 of the Copyright Law, with injury caused to the public interests;

(ii) the infringing acts enumerated in Article 24 of the Regulations for Computer Software Protection, with injury caused to the public interests; and

(iii) other copyright-related law-breaking acts subject to administrative penalty under the laws and regulations.

Article 4 (modes of penalty) The copyright administrative departments may impose, under the law, the following administrative penalty on the law-breaking acts enumerated in these Measures:

(i) ordering to cease infringing acts;

(ii) confiscating illicit benefits;

(iii) confiscating infringing reproductions;

(iv) imposing fine;

(v) confiscating material, instruments and equipment used mainly for making infringing reproductions; and

(vi) imposing other administrative penalty provided for in the laws and regulations.

Chapter Two Jurisdiction and Application

Article 5 (regional jurisdiction) The law-breaking acts enumerated in theses Measures shall be investigated and handled by the copyright administrative departments of the places where the infringing acts are executed, infringement consequences arise, infringing reproductions are kept or sealed up/detained according to law unless otherwise provided for in the laws and regulations.

Article 6 (levels of jurisdiction) The National Copyright Administration may investigate and handle law-breaking acts of great national importance and those that it holds should be investigated and handled thereby. The local copyright administrative departments are responsible for investigating and handling law-breaking acts taking place within the region of their jurisdiction.

Article 7 (jurisdiction dispute and designated jurisdiction) When two or more local copyright administrative departments have the jurisdiction over the same law-breaking act, the local copyright administrative department that puts it on file first shall be responsible for the investigation and handling of law-breaking act.

When local copyright administrative departments run into dispute over jurisdiction or the jurisdiction is unclear, the matter shall be resolved by the disputing parties through consultation; where the consultation is not successful, the matter shall be reported to their common copyright administrative department of higher level for designation of the jurisdiction. The higher-level copyright administrative department may also directly designate the jurisdiction.

A copyright administrative department of higher level may handle, if necessary, cases of great importance under the jurisdiction of a copyright administrative department of lower level, or leave cases under its jurisdiction to the handling of a copyright administrative departments of lower level. If a copyright administrative department of lower level holds that a case under its jurisdiction is one of great importance or complexion and should be handled by a copyright administrative department of higher level, it may report it to the copyright administrative department of higher level for handling.

Article 8 (transfer) If the copyright administrative department finds that an law-breaking act being investigated and handled constitutes a crime under the Chinese Criminal Law, the copyright administrative department shall transfer the case to the judicial authority for handling under the Provisions of the State Council for Administrative Enforcement Authority to Transfer Suspected Criminal Cases.

Article 9 (limitation) The limitation for the copyright administrative department to impose administrative penalty on an law-breaking act is two years counted from the date on which the law-breaking act takes place. Where an law-breaking act continues or is in a state of continuation, the limitation is counted from the date on which the act ends. On- going publication of infringing reproduction shall be deemed continuation of the law-breaking act.

Unless otherwise provided for in the law, an law-breaking act that is not discovered within the two years shall not be imposed any administrative penalty.

Chapter Three Sanction Procedure

Article 10 (general procedure) Besides that the administrative penalty provisions apply to the circumstances of summary procedure, the general procedure under the Administrative Penalty Law shall apply to the copyright administrative penalty.

Article 11 (putting on file) The copyright administrative department that applies the general procedure in its investigation and handling of law-breaking acts shall put them on file.

The copyright administrative department may decide at its own discretion to put the infringing acts listed in theses Measures on file for investigation and handling or decides to put them on file for investigation and handling on the basis of material transferred thereto by the relevant departments, or may do so according to the complaints lodged or reports made by infringees, interested parties or those who know about the cases.

Article 12 (filing complaints) A complainant applying for putting on file an law-breaking act of those listed in theses Measures for investigation and handling shall file an application, certificate of the right involved, works (or reproduction) infringed and other evidence.

The application should indicate the name and address of the interested party and the main facts and grounds on which the application for investigation and handling is based. Where a complainant appoints an agency to file the application therefor, the agency should show the power of attorney.

Article 13 (accepting a case) The copyright administrative department shall decide whether to accept a case and notify the complainant within fifteen days from the date of receipt of all the materials associated therewith. If it does not accept a case, it shall explain the reason in writing.

Article 14 (undertaking the handling) When a case is put on file, the case-filing form shall be filled out, with such documents attached as those of complaint or report, material handed down by the copyright administrative department of higher level to be dealt with or transferred by the relevant department and inspection report by enforcement officials. The leading person of the copyright administrative department shall approve the filing, and assign two or more officials for the investigation and handling.

A case-handling official who has his interest in the case shall ask for avoidance to stay out of the case. If he does not do so, an interested party may challenge him. A case-handling official's staying out shall be approved by the leading person of the copyright administrative department, and that of a leading person shall be approved by the People's Government of the same level.

Article 15 (measures for emergency) Where a case-handling official, in the cause of enforcement, finds an law-breaking act being executed and the urgent circumstance makes it impossible to put the case on file, the following measures may be taken:

(i) ceasing or rectifying the law-breaking act;

(ii) recording or keeping infringing reproduction and materials, instruments, equipment mainly used for the law-breaking act; and

(iii) collecting and transferring other relevant evidence.

The law enforcement officials shall promptly report the relevant circumstance and file the materials to the copyright administrative department of the place and go through the formalities for putting the case on file.

Article 16 (obtaining evidence) Once a case is put on file, those handling the case shall make investigation in time and require those under statutory burden of proof to adduce evidence within the time limit fixed by the copyright administrative department.

In collecting evidence, those handling the case may use the following means to collect and transfer relevant evidence:

(i) reading and copying documents, files, account books and other written materials relevant to a suspected law-breaking act;

(ii) sampling evidence of suspected infringing reproductions; and

(iii) preliminarily recording and keeping of suspected infringing reproductions.

Article 17 (showing enforcement certificate) In their enforcement, those handling a case shall show to interested parties and those concerned the administrative enforcement certificate prepared and issued by the National Copyright Administration or local people's government.

Article 18 (variety of evidence) Evidence collected when a case is being handled includes:

(i) documentary evidence;

(ii) material evidence;

(iii) testimony of witnesses;

(iv) audio-visual material;

(v) statements of the parties;

(vi) expert conclusions; and

(vii) records of inspection.

Article 19 (interested party provides evidence) Copyright-related manuscripts, original, legitimate publications, copyright registration certificates, certificates from certifying body and right-acquiring contracts furnished by an interested party and material in kind and invoice obtained in his or its purchase of infringing reproductions ordered or bought on site by himself/itself or by entrustment of others can serve as evidence.

Article 20 (preparing a list) Sampling of evidence and preliminary recording/keeping of relevant evidence by those handling the case shall be done in the presence of the interested parties concerned. Articles involved shall be enlisted on site in duplicate, and the list shall be signed/sealed by those handling the case and the interested parties to be filed to and kept respectively by the copyright administrative departments of the places where the interested parties and those handling the case are. Where an interested party is absent or refuses to sign/seal, two or more those handling the case on site shall note down the circumstance.

Article 21 (preliminary recording and keeping procedure) The making preliminary record and keeping relevant evidence by those handling the case shall be approved by the leading person of their department and hand to the interested party by handed the notification to this effect. The interested party or those concerned shall not transfer or destroy the relevant evidence while the evidence is kept.

Preliminarily recorded and kept evidence shall be sealed up with the strip of paper used for sealing by the copyright administrative department to be kept by the interested party on site. If it is indeed necessary to move preliminarily recorded and kept evidence, the evidence may be moved to and kept in a proper place. If it is too urgent to go through the formalities provided for in this Article, those handling the case may take the measure first and go through the formalities afterward.

Article 22 (follow-up measures of preliminary recording and keeping) In respect of evidence preliminarily recorded and kept, following decision on the handling shall be made within seven days after the delivery of the notification of preliminary recording and keeping of the evidence:

(i) to send it for appraisal if the evidence is required to be appraised;

(ii) to confiscate it according to the statutory procedure if law-breaking facts are established and the evidence should be confiscated;

(iii) to transfer it together with the case to be handled by the relevant department if the case and evidence should be transferred to the relevant department;

(iv) to lift the recording and keeping measure if law-breaking facts are not established and the evidence should not be confiscated according to law;

(v) any other relevant statutory measures.

Article 23 (entrusting with investigation) If one copyright administrative department entrusts another copyright administrative department to make investigation for it in the course of its investigation and handling of a case, it shall produce the power of attorney/entrustment. The entrusted copyright administrative department shall actively assist in the matter.

Article 24 (professional appraisal) Concerning profession matters in a case, the copyright administrative department may entrust a specialised organisation or invite professionals to make appraisal.

Article 25 (investigation report) When the investigation is over, those handling a case shall submit a case investigation report, explaining whether an involved act is unlawful, making recommendations, presenting relevant facts, reasons and bases and attaching all evidence.

Article 26 (informing interested parties) The copyright administrative department going to decide on administrative penalty shall issue advance notification of administrative penalty as signed by the leading person thereof, informing the interested party of the facts, reasons and bases on which the decision on administrative penalty will be made and tell him or it that he or it has the right of making observations and making argumentation and other rights under the law.

The advance notification of administrative penalty shall be directly delivered to the interested party by the copyright administrative department and the interested party shall sign or seal the receipt on delivery. If an interested party refuses to receive and sign it, the delivering person shall state the circumstance and report to the leading person of the department. The copyright administrative department may also inform the interested party by post. When an interested party is nowhere to be found, the notification is served by public notice.

Article 27 (the time limit for an interested party to make observations and/or argumentation) An interested party who request to make observations and/or argumentation shall make observations and defence and present relevant facts, reasons and evidence to the copyright administrative department within seven days after being informed or within thirty days after the public notice. An interested party's failure to making observations and/or argumentation shall be deemed waiver of the rights.

If notification is served by direct delivery, the date of an interested party's receipt thereof shall be the date of his or its being informed; if notification is served by post, the date of post indicated on the receipt shall be the date of his or its being informed.

Article 28 (verification) Those handling a case shall sufficiently attend to observations and argumentation made by an interested party, and verify his or its facts, reasons and evidence, and submit a verification report.

The copyright administrative department shall not impose heavier penalty on an interested party on account that he or it has made a defence.

Article 29 (making decision) The leading persons of the copyright administrative department shall examine the case investigation report and the verification report and respectively make a decision as to the following on the basis of the examination result:

(i) administrative penalty shall be imposed on sanctionable law-breaking infringing act according to the fault of the infringer, duration, scope consequence and injury of infringement;

(ii) administrative penalty may not be imposed on minor law-breaking acts;

(iii) administrative penalty shall not be imposed if law-breaking facts are not established; and

(iv) law-breaking acts suspected of constituting crimes shall be transferred to the judicial authority for handling.

Decision on imposing relatively heavy administrative penalty on law-breaking acts of complicated circumstances and great importance shall be made by leading persons of the copyright administrative department upon collective review.

Article 30 (fine) When deciding on imposition of fine, the copyright administrative departments shall determine the amount of fine pursuant to the provisions of Rule 36 of the Implementing Regulations of the Copyright Law of the People's Republic of China and Article 24 of the Regulations for Computer Software Protection.

Article 31 (penalty on act of serious circumstances) If the circumstances of an law-breaking act are serious, the copyright administrative department may confiscate the materials, instruments and equipment used mainly for making infringing reproductions.

The "serious circumstances" as mentioned in the preceding paragraph refer to:

(i) the amount of illicit benefit of an individual is RMB 5,000 yuan or more; the amount of illicit benefit of an entity is RMB 30,000 yuan or more;

(ii) the amount of illicit business turnover of an individual is RMB 30,000 yuan or more; the amount of illicit business turnover of an entity is RMB 100,000 yuan or more;

(iii) 2,000 or more (pieces or packs) of infringing reproductions dealt in by an individual; and 5,000 or more (pieces or packs) of infringing reproductions dealt in by an entity;

(iv) an individual or entitle that was held liable for infringement or copyright infringes copyright again; and

(v) other consequences that are of great influence or seriousness caused.

Article 32 (non bis in idem) If an interested party's law-breaking act has been fined by another administrative authority, the copyright administrative department shall not again impose fine thereon. It, however, may impose other administrative penalty provided for in Article 4 of theses Measures depending on specific circumstances.

Article 33 (standard for hearing) Before the copyright administrative department decides to impose a relatively large amount of fine or if it is provided in the law and administrative regulations that a hearing is required before deciding to impose other administrative penalty, the copyright administrative department shall inform the interested party that he or it has the right to request to hold the hearing.

The "relatively large amount of fine" shall mean a fine on an individual of RMB 20,000 yuan or more; that on an entity of RMB 100,000 yuan. If local rules and regulations otherwise provide for the hearing, the local rules and regulations shall be complied with.

Article 34 (hearing) Where an interested party requests for hearing, the copyright administrative department shall hold it pursuant to the provision of Article 42 of the Administrative Penalty Law and the interested party shall not bear the expenses for holding the same.

Article 35 (legal instruments) If the copyright administrative department decides to impose administrative penalty, it shall prepare the administrative penalty decision.

Where the copyright administrative department decides not to impose administrative penalty and the infringing act is light, a written notification of non-administrative penalty shall be prepared to be delivery to the interested party, specifying the facts, reasons and bases of the non-administrative penalty; where law-breaking facts are not established, a written notification of investigation result shall be prepared to be delivery to the interested party.

In respect of cases the copyright administrative department decides to transfer to the judicial authority, the written transfer of cases of suspected crime shall be prepared to be delivery, together with the relevant material/documents and evidence, to the judicial authority having the jurisdiction in time.

Article 36 (delivery) The administrative penalty decision shall be handed to the interested party by the copyright administrative department on site upon announcement. If an interested party is absent, it shall be delivered thereto within seven days.

Article 37 (applying for administrative reconsideration and instituting administrative proceedings) If an interested party is not satisfied with the administrative penalty by the National Copyright Administration, he or it may apply for administrative reconsideration with the National Copyright Administration; if an interested party is not satisfied with the administrative penalty by a local copyright administrative department, he or it may apply for administrative reconsideration with the people's government of the same level of the copyright administrative department or with the copyright administrative department of a higher level.

If an interested party is not satisfied with the administrative penalty or the administrative reconsideration decision, he or it may institute administrative proceedings according to law.

Chapter Four Enforcement Procedure

Article 38 (performing penalty decision) After receipt of the administrative penalty decision, an interested party shall perform it within the time limit prescribed in the administrative penalty decision.

Where an interested party applies for administrative reconsideration or institutes administrative proceedings, the administrative penalty is not suspended unless otherwise provided for in the law.

Article 39 (disposing of confiscated objects). Confiscated infringing reproductions shall be destroyed or treated in other manner with the consent of infringees.

When destroying infringing reproductions, the copyright administrative department shall send two enforcement officials to supervise the process of destruction, check the result of destruction, and prepare a record of the destruction.

The copyright administrative department shall publicly auction according to law or treat according to relevant State regulations the confiscated materials, instruments and equipment used mainly for making infringing reproductions.

Article 40 (substitution enforcement) The administrative penalty decision made by a copyright administrative department of higher level may be enforced by a copyright administrative department of lower level entrusted thereby. The latter shall report the result of enforcement to the former.

Chapter Five Supplementary Provisions

Article 41 (administrative penalty statistics) The copyright administrative departments shall put in place a system of statistics of copyright administrative penalty under the Statistics Law, and submit copyright administrative penalty statistics reports to the copyright administrative departments of higher level once a year.

Article 42 (filing and documentation) The copyright administrative departments shall file documents and material in time after enforcement of administrative penalty decisions or reconsideration decisions.

The filed and documented materials mainly include, among other things, administrative penalty decisions, forms of filing, examination and approval, case investigation reports, verification reports, reconsideration decisions, hearing records, hearing reports, evidential material, receipts and records of property handled and other relevant materials.

Article 43 (preparing legal instruments) The relevant legal instruments of theses Measures shall be prepared with reference to the forms fixed by the National Copyright Administration.

Article 44 (implementing these Measures) These Measures shall enter into force on 1 September 2003. The Measures for the Enforcement of Copyright Administrative Penalty issued by the National Copyright Administration on 28 January 1997 shall be simultaneously abrogated. If any other relevant regulations issued prior to theses Measures are in conflict with these Measures, theses Measures shall prevail.