Outline of the new Implementary Regulations under the Copyright Law

The newly amended Implementary Regulations under the Copyright Law have entered into force on September 15, 2002.

The amended Regulations strengthen the enforceability of the revised Copyright Law and perform the relating promises the Chinese government made in the negotiation in joining the WTO. On the other hand, the new Regulations make some specific provisions on some issues as follows:

1. According to the new Regulations, every copyright owner whose country is a party of WTO, whether domestic or overseas, will enjoy coequality in copyright protection.

The old Regulations provided that foreign-related copyright administrative cases should be accepted by the National Copyright Bureau only. The new Regulations cancel such limitation and provide that local copyright administrative authorities also have the power to handle foreign-related copyright cases.

2. According to the new Regulations, there are two strict conditions for the legitimate use of other's published work without the copyright owner's authorization: first, such use shall not interfere the normal use of the work; second, such use shall not damage any legitimate interests of the copyright owner to the work. These two conditions are in line with the main principles of WTO.

3. According to the new Regulations, a work created by a citizen in completing his tasks assigned to him by a legal person or other organization shall be deemed to be a work created in the course of employment. "Tasks" refer to duties and responsibilities the citizen should take in the legal person or organization. This is the key point in determining whether a work should be deemed as a work created in the course of employment.

4. Regarding copyright infringement, the Regulations provides specific standards for administrative punishment: anyone who commits an act of copyright infringement and damages the public interests, shall be subjected by the copyright administrative authorities to a fine of 3 times of his illegal income or a certain amount not exceeding 100,000 RMB Yuan in the case that the amount of the illegal income can not be calculated.

This provision strengthens the maneuverability of copyright administrative measure. The copyright officials are granted the right to decide on discretion the amount of a fine basing on the subjective fault of the infringer, the time and area of such infringement, under the amount limit of the provision.

5. According to the new Regulations, acrobatics, architectures and models may also enjoy copyright protection, which is given to the artistic factors in these works. The new Regulations provides that the work of acrobatic art refers to works expressed in the forms of body motions and skills, such as acrobatics, magic and circus, so on and so forth. Only the artistic factors in these works enjoy copyright protection. The difficulty in motions and skills expressed in the acrobatics has no copyright. The art of architecture refers to works expressed in the form of building or construction, having aesthetic signification. The work of model refers to 3D works made according to certain proportion, shape and structure of an object, for the use of display, experiment or observation.

6. The new Regulations emphasizes that the copyright shall occur on the date when a work is created. Anyone who uses others works, should pay remuneration to the copyright owner within 2 months after using the work.

The new Regulations also provides that anyone who uses other's works, should indicate the name of author and the name of work excepting that the parties have other agreement or such indication is not available due to the speciality of certain manner of using work. The standard of remuneration will be jointly promulgated and issued by the National Copyright Bureau and the Price Administration of the State Council.