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Copyright Implementation Measures For Administrative Punishment

Original Language Title: 著作权行政处罚实施办法

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Copyright implementation measures for administrative punishment

    (May 7, 2009 the 6th release from the national copyright administration as of June 15, 2009) Chapter I General provisions

    First to standardize the copyright Administrative Department's administrative penalty practices, protect the legitimate rights and interests of citizens, legal persons and other organizations, in accordance with the People's Republic of China on administrative punishment law (hereinafter referred to as the administrative punishment law), the People's Republic of China copyright law (hereinafter referred to as the copyright law) and other related laws, administrative regulations, and these measures are formulated. Second NCAC administrative law enforcement power and the local people's Governments shall enjoy the copyright authorities (hereinafter referred to as the Copyright Administration Department), within the scope of their statutory functions and the illegal imposition of administrative penalty as listed herein.

    Otherwise provided by laws and regulations, from its provisions.

    Third offence mentioned in these measures refers to:

    (A) the infringement of the copyright law listed in article 47th, and damage to the public interest;

    (B) the computer software protection regulations listed in article 24th of tort and damage public interests;

    (C) the regulations on the protection of the right to network dissemination of information listed in article 18th violations, and infringe upon the public interests of the 19th, 25th violations outlined in articles;

    (D) the collective administration of Copyright Ordinance 41st, 44th, shall be given administrative punishments provided for in article;

    (V) other relevant copyright laws, regulations, and violations of the regulations shall be given administrative punishment.

    The violations listed fourth on the way, copyright administrative departments according to law shall be ordered to stop the infringing act, and the following administrative penalties:

    (A) a warning;

    (B) a fine;

    (C) confiscation of illegal income;

    (D) confiscation of infringing products;

    (E) confiscation of storage of infringing products and equipment;

    (F) the confiscation of mainly for the production of infringing products, materials, tools, equipment, etc;

    (VII) other administrative penalties stipulated in laws, rules and regulations.

    Chapter IV jurisdiction and application Fifth violations listed herein, tortious conduct, infringement occurs, the infringing products stored or sealed seizure of copyright Administrative Department is responsible for the investigation.

    Except as otherwise provided in laws and administrative regulations.

    Infringement on right of communication through information network by the infringer's domicile network devices such as servers, implementing tort location or infringing registration of the Copyright Administration Department is responsible for the investigation. Sixth National Copyright Administration may investigate and punish offences have major impact on the country, and that should be determined by the investigation of other offences.

    Local Copyright Administration Department is responsible for investigating offences that occur under their jurisdiction.

    Article seventh two local copyright administration departments at or above the same offence has jurisdiction, by filing copyright administrative departments responsible for investigating the offence.

    Local Copyright Administration Department of a jurisdictional dispute or unclear jurisdiction, by the parties to the dispute settled through consultation, on the approval of the common jurisdiction of the level specified by the Copyright Administration Department; the common level of jurisdiction of the competent administration of copyrights can also be specified directly.

    Superior competent administration of copyrights, if necessary, can handle lower-level copyright administrative authorities jurisdiction in cases that have major impact, but also can take jurisdiction of the case to subordinate competent administration of copyrights; subordinate competent administration of copyrights case within its jurisdiction are considered significant, complex and need to be dealt with by superior competent administration of copyrights, copyright administrative departments can be reported to the previous level.

    Eighth copyright administrative departments found to investigate violations, according to China's criminal law constitute a crime, should be determined by the Copyright Administration Department under the State Council regulations on administrative law enforcement organs transfer suspected criminal cases to transfer the case to the Justice Department. Nineth copyright administrative departments administrative penalties to violations of limitation of two years from the date on which the violation occurred. Continuous or continuing status for offences, from the date on which the Act ended.

    Infringing products are still in circulation or communication to the public, and illegal to continue. Offence is not discovered within two years, are no longer given administrative punishment.

    Except as otherwise provided by law.

    Chapter III procedures

    Article tenth of summary procedure in administrative punishment law provides for exceptions, copyright administration punishment prescribed by the law on administrative punishment procedures.

    11th copyright administrative departments to apply the general procedures to investigate violations, should be filed.

    The violations as listed herein, copyright administrative departments can decide on case investigation or removal of material filed under the relevant departments investigate, can also be the infringer and the interested person or complaints or reports of other insiders decide case investigation.

    12th complainant application on file to investigate the violations listed in these measures shall submit the application, proof of entitlement, the infringed work (or products), as well as other evidence.

    The application shall state the names of the parties (or name), address, and apply for an investigation in accordance with the main facts and reasons.

    Agent for application of the complainant, should produce power of attorney by the agent. 13th competent administration of copyrights shall receive all complaints within 15th materials, decide whether to receive and inform the complainant.

    Inadmissible, shall inform in writing the reason.

    Article 14th when the filing shall be made out by filing form, along with related materials, including complaints or to report copyright material, superior administrative department assigned or transferred to the materials of the case, the relevant departments of law enforcement personnel, such as inspection reports, approved by the Department Manager that specifies two or more investigators to investigate. Investigators interested in the case, and should voluntarily withdraw; there, the parties may apply for his withdrawal. Investigators withdraw, and approved by the Department head.

    Withdrawal of the charge, approved by the people's Governments at the corresponding level.

    15th in the course of law enforcement personnel in law enforcement, found that violations are being implemented, an emergency too late to file, you can take the following measures:

    (A) to stop or correct violations;

    (B) for allegedly infringing products, installation and storage of allegedly infringing products equipment and mainly used for illegal materials, tools, equipment, and antecedent register in accordance with law;

    (C) collect or obtain other relevant evidence.

    Law enforcement officers shall promptly transmit the relevant information and materials the Copyright Administration Department and was found within 7th day of the filing formalities.

    After placing 16th article, investigators should be investigated in a timely manner, and requirements specified by the Copyright Administration Department of the legal burden of proof within the time limit.

    Investigators obtain evidence can take the following means to collect or obtain relevant evidence:

    (A) read and copy documents relating to the alleged violations archives, books and other written materials;

    (B) sampling the allegedly infringing products and evidence gathering;

    (C) for allegedly infringing products, install the device that stores the allegedly infringing products, the allegedly infringing website page, allegedly infringing Web site servers, and are mainly used for illegal materials, tools, equipment, and antecedent register in accordance with law.

    17th investigators in law enforcement should be to the party or the person concerned to show the National Copyright Council and local people's Governments issued by administrative law-enforcement documents.

    Article 18th case gathered evidence including:

    (A) documentary evidence;

    (B) physical evidence;

    (C) the testimony of witnesses;

    (D) audio-visual material;

    (E) the statement of the parties;

    (F) expert conclusions;

    (G) the inspection, the transcripts.

    Article 19th party concerning copyright papers, original works, legal publications, registration certificates, copyright contract registration certificate, issued by the certification body of proof, access to rights of contract, as well as the parties themselves or entrust others to order, live trading infringing copies made in kind, such as purchase invoices and so on, can be used as evidence. Article 20th investigators samples of evidence, advanced registration and preservation of relevant evidence, a party should present. Two copies of the list of related articles should be made on the spot, after being signed and sealed by the parties and by investigators, respectively by the parties and save the copyright administrative department where the investigators.

    Parties absent or refuses to sign or seal, indicate the situation more than two people on the spot. Article 21st investigators proceed with the registration of the relevant evidence, shall be subject to the approval of the Department head, and deliver evidence to the parties notice of advance registration saves.

    During the party or person concerned in the evidence may not transfer or destruction of relevant evidence. Advanced registration and preservation of evidence, and antecedent register should seal the Copyright Administration Department seal, preserved by the parties. Advanced registration and preservation of evidence needed to move to elsewhere, can be moved to the appropriate place to save.

    Urgent time to handle the formalities provided for in this article, investigators can initially take measures promptly after completing the formalities.

    22nd for advanced registration and preservation of evidence, shall deliver the evidence registered for keeping in the notice within the 7th makes the following decision:

    (A) the need to identify, to the identification;

    (B) the illegal facts are established shall be confiscated, in accordance with legal procedures shall be confiscated;

    (C) should be transferred to the relevant departments, together with the evidence in a case transferred to the relevant Department;

    (Iv) the illegal facts are not established, or shall not be confiscated according to law, registration and preservation measures lifted;

    (V) other relevant statutory measures. Article 23rd copyright administrative departments in the process of investigating the case, commissioned the copyright administration departments to carry out the investigation, to be issued by the power of attorney.

    The entrusted copyright administrative departments should actively assist.
24th to investigate and deal with cases of professional issues, copyright administrative authorities can entrust a specialized agency or hire professionals for identification.

    25th following the end of investigations, investigators should submit an investigation report, indicating whether the acts were illegal, and put forward opinions and the facts, grounds, and basis, together with all evidence material.

    26th the Copyright Administration Department intends to make a decision of administrative penalty shall be issued by the head of this prior notice of administrative penalty, inform the parties intended the facts, reasons and basis for administrative penalty decision, and shall inform the Parties shall have the right to be heard, the right to defence and other rights. Prior notice of administrative penalty should be served directly by the Copyright Administration Department, the Parties shall sign the delivery receipt, stamped. The parties refused to sign, and indicate the situation by service personnel, instrument served on the addressee's home, and reports the Department Manager. Copyright administrative departments can also inform the party mailing method.

    When the parties could not be found, in the form of announcement. 27th requirement statements, representations of the parties, shall, within were told 7th, or from the date of announcement in the 30th, make representations to the competent administration of copyrights, and defence, as well as, relevant facts, reasons, and evidence.

    Parties during which failure to exercise the right to be heard, the right to defence, as a waiver of rights.

    Taken directly to inform the parties told the date of receipt date; mailing informed, date is stated on the receipt was told dates.

    28th investigators should be fully listened to statements of the parties, defence, review the facts, reasons and evidence submitted by the parties, review and submit reports.

    Competent administration of copyrights shall not be a party to plead aggravated punishment.

    Article 29th copyright administrative departments will be expected to case reports and review reports are to be examined, and based on the review results to the following decisions:

    (A) is considered to be violations of should be administrative sanctions, according to the degree of fault of the tortfeasor, tortious duration, size and the harmful consequences of infringement and other circumstances, to administrative penalties;

    (B) the offence minor and correct, causes no harmful consequences, no administrative penalty;

    (C) illegal facts are not established, no administrative penalty;

    (D) an unlawful act constitutes a crime, transferred to the judicial Department.

    Complicated or serious illegal acts of administrative penalties, decided collectively by the Copyright Administration Department head.

    Article 30th copyright administrative departments when making a decision, the amount of the fine shall be in accordance with the People's Republic of China implementing regulations of the copyright law 36th, the computer software protection regulations of article 24th of provisions and the regulation on the protection of the right to network dissemination of information article 18th, 19th, with provisions.

    31st an illegal act if the circumstances are serious, copyright administrative authorities may confiscate mainly for the production of infringing products, materials, tools, equipment, etc.

    Have any of the following circumstances, are referred to in the preceding paragraph "serious":

    (A) the amount of illegal gains (the profit amount) of more than 2,500 Yuan;

    (B) illegal operation amount in more than 15,000 yuan;

    (C) engaged in infringing products in 250 copies (or) above;

    (D) had been held liable for copyright violations and infringement of copyright;

    (E) causing significant impact or other serious consequences.

    Articles 32nd to the parties the same offence, other administrative bodies has a fine, competent administration of copyrights shall not be fined, but it still can be, as the case may be the way other types of administrative punishments provided for in article fourth.

    Article 33rd copyright administrative departments to make greater amount of fine or the laws and administrative regulations should be hearing other administrative punishment decision, it shall inform the parties have the right to request hearings. Referred to in the preceding paragraph "larger fines" refers to individuals sentenced to more than 20,000 yuan, and it shall be a fine of 100,000 Yuan or more in fines.

    Local regulations and rules on the hearing as otherwise provided at the request, in accordance with local regulations and rules. Article 34th to request a hearing, copyright administrative departments shall, in accordance with the law on administrative punishment procedures laid down in article 42nd hearing.

    Parties do not bear the cost of hearing.

    Article 35th of copyright administrative departments administrative penalties, it shall make a written decision of administrative penalty.

    Copyright Administration Department considered violations minor, no administrative penalty decision, notice of no administrative penalty shall be made, explain the facts, grounds, and basis of no administrative penalty, and served on the party; the illegal facts are not established, shall draw up a notice of findings, and served on the party.

    Copyright Administration Department to decide cases transferred to judicial departments, should make a written transfer suspected criminal cases, and together with the relevant information and evidence, to transfer jurisdiction over the Justice Department in a timely manner. Article 36th administrative punishment decision letter should be determined by the Copyright Administration Department proclaims the spot after party.

    Without the presence of the parties, shall be served in the 7th.

    37th party not satisfied with the national copyright administration of administrative punishments, may apply to the national copyright administration of administrative reconsideration; the party not satisfied with the local copyright administrative departments administrative penalties, can contribute to the sector's local government administration of copyrights may apply for administrative reconsideration or its previous level.

    On an administrative punishment or administrative review decision, you can file an administrative lawsuit in accordance with law.

    The fourth chapter program

    Article 38th after receiving the written decision of administrative penalty, shall within the period specified in the written decision of administrative penalty shall be fulfilled. Party may apply for administrative reconsideration or bring an administrative lawsuit, the administrative penalty does not stop execution.

    Except as otherwise provided by law.

    39th confiscation of the infringing product should be destroyed, or other appropriate treatment infringed the consent to.

    When the destruction of the infringing products, administration of copyrights shall assign two or more law enforcement officials supervised the destruction process, verifying the destruction of results, and destruction of records.

    Mainly used for the production of infringing products confiscated materials, tools, equipment, auction or the copyright Administrative Department shall, in accordance with relevant State regulations. 40th at a higher level copyright administrative departments administrative punishment decision may be entrusted subordinate competent administration of copyrights on behalf of the Executive.

    Carry out subordinate competent administration of copyrights, the superior competent administration of copyrights shall report the results.

    The fifth chapter by-laws

    41st herein alleged infringing products, including pirated and counterfeit signature works.

    42nd administration of copyrights shall, according to the national statistical legislation to establish statistics system in administrative punishment of copyright, year up-level copyright administrative departments administrative penalties for copyright report.

    Article 43rd after execution or reconsideration decision decision of administrative penalty, administration of copyrights shall timely filing case materials.

    Archives material include: administrative punishment decision letter, filing form, investigation reports, review reports, the reconsideration decision, hearing, hearing reports, evidence, financial documents, and other related materials.

    44th article this approach relates to the relevant legal instruments, the national copyright administration to determine the format of the instrument. 45th these measures shall come into force on June 15, 2009. Released on September 1, 2003, the national copyright administration of the measures for the implementation of administrative punishments for copyright at the same time repealed, released before the implementation of this approach by other relevant provisions inconsistent with this approach, in accordance with these rules.