Interpretation by the Supreme People's Court of Several Issues Relating to Application of Law to Trial of Cases of Civil Disputes over Copyright

 


(Adopted at the 1246th Meeting of the Adjudication Committee of the Supreme People's Court on 12 October 2002 and entering into force on 15 October 2002)

The following Interpretation by the Supreme People's Court of Several Issues Relating to Application of Law to Trial of Cases of Civil Disputes over Copyright is hereby made under the General Principles of the Civil Law of the People's Republic of China, the Contract Law of the People's Republic of China, the Copyright Law of the People's Republic of China and the Civil Procedure Law of the People's Republic of China with a view to correctly adjudicating cases of civil dispute over copyright:

Article 1 The people's court shall accept cases of civil dispute over copyright as the following:

(1) cases of dispute over copyright and copyright-related rights, interests, attribution of rights, infringement and contracts;

(2) cases of application for pre-trial cessation of acts infringing copyright or copyright-related rights and interests, cases of application for pre-trial property or evidence preservation; and

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

Article 2 The cases of civil dispute over copyright shall be under the jurisdiction of the people's courts at the intermediate or higher levels.

The higher people's court may, according to the practical situations of jurisdiction, determine that several grassroots people's courts have the jurisdiction over first-instance cases of dispute over copyright.

Article 3 Where an interested party institutes proceedings in the people's court in respect of an act of copyright infringement investigated and handled by the copyright administrative department to impose civil liability on the actor, the people's court shall accept the case.

The people's court, hearing a case of civil dispute arising from an act of copyright infringement handled by the copyright administrative department, shall comprehensively examine the facts of the case.

Article 4 The cases of civil procedure instituted against acts of copyright infringement shall be under the jurisdiction of the people's court of the places where the infringing acts under Articles 46 and 47 of the Copyright Law take place, where infringing reproductions are stored or seized and detained, or where the defendants have their domicile.

The places where infringing reproductions are stored under the preceding paragraph refer to places where infringing reproductions are stored or hidden in large quantities or on regular basis; the places where infringing reproductions are seized and detained refer to places where the Customs, copyright administrative department or administrative authority for industry and commerce has seized and detained infringing reproductions according to law.

Article 5 In respect to joint action against several defendants in different places where the infringing act has taken place, the plaintiff may choose the people's court of the place where one of the defendants has carried out the infringing act to exercise the jurisdiction over the case. In respect of an action against one of the defendants, the people's court of the place where the defendant has carried out the infringing act shall has the jurisdiction.

Article 6 Where an organisation for collective copyright administration set up according to law institutes proceedings in its own name with the authorisation of a copyright owner, the people's court shall accept the case.

Article 7 Copyright-related manuscripts, original, lawful publications, certificate of copyright registration furnished by an interested party, proofs produced by a certifying authority and contract under which a right is acquired may be used as evidence.

Except that there is evidence to the contrary, a natural person, legal entity or other organisation the name of which is indicated on a work or product shall be deemed to be the holder of the copyright or copyright-related rights and interests.

Article 8 A physical object or invoice which an interested party has obtained from buying an infringing reproduction himself or by entrustment of others with order, transaction on site or in any other manner may be used as evidence.

Except that there is evidence to the contrary, evidence actually obtained by a notary official from the other alleged infringing party, without showing his identification thereto in the manner provided for in the preceding paragraph and the notary certification issued in the course of evidence collection shall be used as evidence.

Article 9 "Making available to the public" under Article 10 (1) of the Copyright Law means a copyright owner makes a work available to indefinite people himself or by licensing, with the public knowledge not being a part of the elements thereof.

Article 10 Where the copyright owner of the work mentioned in Article 15, paragraph two, of the Copyright Law is a natural person, Article 21, paragraph one, of the Copyright Law shall apply to the term of protection therefor; where the copyright owner is a legal entity or other organisation, Article 21, paragraph two, of the Copyright Law shall apply to the term of protection therefor.

Article 11 The people's court shall handle a case of dispute arising from the order of the authorship indicated in a joint work in the light of this principle: the authorship shall be in the order as agreed where there is an agreement; the order of the authorship is determined according to the work each done for the creation of the whole work, order of the articles in the work arranged or the number of strokes of the surnames of the authors in the absence of an agreement.

Article 12 Where the copyright of a commissioned work is owned by the commissioned party under Article 17 of the Copyright Law, the commissioning party shall enjoy the right to the work within the agreed scope of use. In the absence of an agreement on the scope of use, the commissioning party may use the work free with the scope of the specific purpose for which the creation of the work is commissioned.

Article13 Except in the circumstance under Article 11, paragraph three, of the Copyright Law, the copyright in works, such as reports or speeches written by others but proofread and finalised by the persons giving the reports or making the speeches themselves and published in the name of the latter shall be owned by the persons giving the reports or making the speeches. The copyright owners may pay to the person who does the writing appropriate remuneration.

Article 14 In respect of an autobiographic work created, by the interested parties entering into an agreement, on the basis of the life experiences of a specific person, where the interested parties have agreement on the attribution of the copyright therein, the agreement shall prevail. Where there is no agreement concluded therebetween, the copyright shall be owned by said specific person. Where the person who does the writing or compiler has worked on the creation of said work, the copyright owners may pay them appropriate remuneration.

Article 15 Where a work, created by different authors on the same subject matter, is created with independent presentation of expression and is original, it shall be determined that each author enjoys an independent copyright of his own.

Article 16 Pure facts or news disseminated by the mass media are news on current affairs under Article 5 (2) of the Copyright Law. In disseminating or broadcasting news on current affairs compiled by others, the source thereof shall be indicated.

Article 17 Reprinting under Article 32, paragraph two, of the Copyright Law refers to act of publishing in a newspaper or periodic of a work published in another newspaper or periodic. One who has not indicated the author of the reprinted work and the newspaper or periodic that first publishes the work shall bear the civil liabilities for eliminating ill effects and/or making an apology.

Article 18 The artistic works located or on display in an outdoor public place under Article 22 (10) of the Copyright Law refer to works of sculpture, painting, calligraphy and other artistic works located or on display in an outdoor public place.

A person copying, painting, photographing or video recording works provided for in the preceding paragraph may reuse the result of his creation in a reasonable manner and scope, and the reuse does not constitute an infringement.

Article 19 Publishers and producers shall be under the burden of proof regarding the legitimate authorisation in respect of their publications and products, and distributers and renters shall be under the burden of proof regarding the legitimate source of the reproductions they distribute or rend. One incapable of meeting the burden of proof shall bear the legal liability under Articles 46 and 47 of the Copyright Law.

Article 20 Where a publication infringes another person's copyright, the publisher shall bear the civil liability for the damages according to its faults, the extent of infringement and the consequence of injury.

A publisher who fails to meet the obligation of giving reasonable attention to the authorisation of the act of publication, source and authorship of manuscript or content of the publication which it has edited shall be liable for damages under Article 48 of the Copyright Law.

Where the publisher has satisfied the obligation of giving reasonable attention, and the copyright owner does not have evidence to prove that the publisher should know the publication involves infringement, as Article 117, paragraph one, of the General Principles of the Civil Law provides, the publisher shall bear the civil liability for ceasing the infringement and returning the benefits it has obtained because of the infringement.

The publisher shall be under the burden of proof as to its satisfaction of the obligation to give reasonable attention.

Article 21 Users of computer software who use, for commercial purposes, computer software without authorisation or in a manner exceeding the scope of authorisation shall bear the civil liability according to the provisions of Article 47 (1) of the Copyright Law or Article 24 (1) of the Regulations for Computer Software Protection.

Article 22 Where the copyright licensing contract is not in writing, the people's court shall review it as to whether it is validly formed according to the provision of Articles 36 and 37 of the Contract Law.

Article 23 Where a publisher has lost or destroyed a work which a copyright owner has given it for publication, rendering the execution of the publication contract impossible, the civil liabilities shall be imposed on the publisher according to the provisions of Article 53 of the Copyright Law, Article 117 of the General Principles of the Civil Law and Article 122 of the Contract Law.

Article 24 The actual injury of a rightholder may be calculated on the basis of the product by multiplication of the number of reduced distribution of the reproductions or the volume of sales of the infringing reproductions because of the infringement by the unit profit of the sale of the reproductions of the right owner. Where it is difficult to determine the reduced distribution of the reproductions the determination shall be made on the basis of the volume of the market sales of the infringing reproductions.

Article 25 Where it is difficult to determine the actual injury suffered by a rightholder or the illicit benefit of an infringer, the people's court shall apply, at the request of the interested party or within its capacity, the provision of Article 48, paragraph two, of the Copyright Law to the determination of the amount of damages.

The people's court, in determining the amount of damages, shall take account of the circumstances, such as the type of the work, fees for fair use, nature of the infringing act or consequences of the infringement, and make a comprehensive determination.

It shall be permissible if interested parties reach an agreement on the amount of damages according to the provision of paragraph one of this Article.

Article 26 The appropriate fees paid for stopping an infringing act under Article 48, paragraph one, of the Copyright Law, shall include the appropriate fees paid by a rightholder or an appointed agent for investigation of, or for collection of evidence concerning, the infringing act.

The people's court may, at the litigant claim of the interested party and according to the specific circumstances of the case, add to the damages the lawyer's fee paid in compliance with the provisions of the relevant State departments.

Article 27 Where the people's court makes its judgement after the entry into force of the Decision on the Amendment of the Copyright Law in respect of a case of proceedings instituted against an infringing act arising before the entry into force thereof, the provision of Article 48 of the Copyright Law may be referred to and apply.

Article 28 The limitations for action against copyright infringement shall be two years counted from the date on which the copyright owner knows or has the ground to know about the infringing act. Where a rightholder institutes proceedings after the expiration of the two years and if the infringing act continues when the action is being brought, the people's court shall make a ruling that the defendant cease the infringing act within the term of protection for the copyright. The amount of damages for injury caused by the infringement shall be calculated from two years before the date on which the rightholder institutes proceedings in the people's court.

Article 29 In respect of the infringing act under Article 47 of the Copyright Law, the people's court may, at the request of the interested party, impose civil sanction according to the provision of Article 134, paragraph three, of the General Principles of the Civil Law, in addition to imposing the civil liabilities, on the actor. The amount of fine may be determined according to the relevant provisions of the Implementing Regulations of the Copyright Law of the People's Republic of China.

Where the copyright administrative department has imposed administrative penalty on an infringing act, the people's court shall not impose the civil sanction on the same act any more.

Article 30 Where an interested party applies, after 27 October 2001, to the people's court for ordering the cessation of an act of copyright infringement arising before 27 October 2001, or for taking the measures for evidence preservation in respect of the act, Articles 49 and 50 of the Copyright Law shall apply.

The people's court shall adopt the pre-trial measures in the light of the Interpretation by the Supreme People's Court of Issues Relating to Application of Law to Pre-trial Cessation of Infringement of Exclusive Right to Use Registered Trademark and for Evidence Preservation.

Article 31 Except that this Interpretation otherwise provides, where cases of civil disputes over copyright accepted by the people's court after 27 October 2001 relate to civil acts arising before 27 October 2001, the former Copyright Law shall apply; where such cases relate to civil acts arising after said date, the revised Copyright Law shall apply; and in respect of civil acts arising before and continuing after said date, the revised Copyright Law shall apply.

Article 32 Where any former relevant provisions are not consistent with this Interpretation, this Interpretation shall prevail.