(On July 24, 2003 National Copyright Council makes 3rd, announced) first chapter General first article (legislation purpose) for specification copyright administration sector of administrative punishment behavior, protection citizens, and corporate and other organization of lawful rights and interests of, according to People's Republic of China administrative punishment method (following said "administrative punishment method"), and People's Republic of China copyright method (following said "copyright method") and other about legal, and administrative regulations, developed this approach. Article (law enforcement) national copyright administration and local copyright administrative enforcement powers of the people's Government departments concerned (hereinafter "local 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.
Article (illegal) offences mentioned in these measures refers to: (a) violations of the copyright law listed in article 47th, while public interest; (b) the regulations on protection of computer software infringement enumerated in article 24th of, and damage to the public interest, and (iii) other laws and regulations, regulations should be given administrative punishment of copyrights violations.
Fourth article (punishment type) on this approach listed of violations, copyright administration sector can law give following type of administrative punishment: (a) ordered stop infringement behavior; (ii) confiscated illegal proceeds; (three) confiscated infringement copies; (four) fine; (five) confiscated main for making infringement copies of material, and tool, and equipment,; (six) legal, and regulations, and regulations provides of other administrative punishment. Chapter IV jurisdiction and application fifth (territorial jurisdiction) violations cited in these measures, implemented by the tort, infringement occurs, infringing storage or sealed seizure of copyright Administrative Department is responsible for the investigation.
Except as otherwise provided in laws and administrative regulations. The sixth section (level) the NCA 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.
Seventh (jurisdictional disputes and specifies jurisdiction) two or more local copyright administration departments for the same illegal act 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 and submitted to the common level specified by the Copyright Administration Department jurisdiction, their collective Copyright Administration Department at a higher level can also specify jurisdiction 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 (transfer) Copyright administrative departments found that the investigation of offences, 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 (limitation) 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 copies still in circulation, 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 (General procedures) except as provided in the administrative punishment law of summary proceedings in the case, and copyright administration punishment prescribed by the law on administrative punishment procedures.
11th (file) Copyright administrative departments 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 (complaints) a 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 (accept) the competent administration of copyrights shall, on the date of receipt of all materials in the 15th, decide whether to receive and inform the complainant.
Inadmissible, shall inform in writing the reason.
14th (contractor) should be completed when filing filing form, accompanied by a complaint or reporting material, superior competent administration of copyrights assigned or authorities transferred the case materials, inspection reports for law enforcement personnel and other relevant materials, specified by the Office-bearers of the approval of the Department head and 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 (emergency) law enforcement officers in the course of 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, and (ii) infringing copies and is mainly used for illegal materials, tools, equipment, and antecedent register in accordance with law, and (iii) collect or obtain other relevant evidence.
Law enforcement officers shall promptly transmit the relevant information and materials the Copyright Administration Department, and the filing formalities.
16th (evidence) after filing, 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 evidence: (a) read and copy documents relating to the alleged violations archives, books and other written materials, (ii) on suspicion of infringing samples of evidence, (iii) for allegedly infringing antecedent register.
17th (produce their documents) 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.
18th (evidence) when handling evidence collected included: (a) the documentary evidence and (ii) evidence, (iii) the testimony of a witness, (iv) audio-visual materials; (e) the parties ' statements; (vi) expert conclusions; (VII) check, transcripts.
19th (parties to provide evidence) papers relating to copyright provided by the parties, the original, legitimate publications, copyright registration certificate, issued by the certification body of proof, the right 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. 20th (make lists) 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.
Is out or refuse to sign or seal, the two or more investigators indicate the situation on the spot. 21st (Advanced registration and preservation programs) 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 article (first registration save follow-up measures) on first registration save of evidence, should in delivered evidence first registration save notice Hou 7th within made following processing decided: (a) need identification of, sent identification; (ii) illegal facts established, should be confiscated of, in accordance with statutory program be confiscated; (three) should transferred about sector processing of, will case together with evidence transferred about sector processing; (four) illegal facts not established, or law not should be confiscated of, lifted registration save measures;
(V) other relevant statutory measures. 23rd (commissioned) 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 (expertise) to investigate and deal with cases of professional issues, copyright administrative authorities can entrust a specialized agency or hire professionals for identification.
25th (report) 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 informed party) 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, 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 (the party statement, argued the term) 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 and the corresponding 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 (review) 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.
29th article (processing decided) copyright administration sector head should on case survey report and the review report for review, and according to review results respectively made following processing decided: (a) does is should be administrative punishment of violations of, according to infringement people of fault degree, and infringement time length, and infringement range size and the damage consequences, plot, be administrative punishment; (ii) violations minor of, can not administrative punishment; (three) illegal facts not established of, not administrative punishment;
(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.
30th (penalty) 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 the 36th and 24th article of the regulations on protection of computer software shall be determined.
31st (aggravated penalties) violations if the circumstances are serious, copyright administrative authorities may confiscate is mainly used for making infringing copies of materials, tools, equipment, etc.
Qian paragraph by said "plot serious", is refers to: (a) personal illegal proceeds amounts (that profit amounts) in 5,000 yuan above, units illegal proceeds amounts in 30,000 yuan above of; (ii) personal illegal business amounts in 30,000 yuan above, units illegal business amounts in 100,000 yuan above of; (three) personal business infringement copies 2000 book (Zhang or box) above, units business infringement copies 5,000 book (Zhang or box) above of; (four) for violations copyright had was held legal responsibility, and violations copyright of;
(E) causing significant impact or other serious consequences.
32nd (a punishment no longer) the same offence on the parties, other administrative bodies has a fine, competent administration of copyrights shall not be fined, but still can be, as the case may be the way other types of administrative punishments provided for in article fourth.
33rd (the hearing standards) 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. 34th (hearing) request a hearing of the parties, copyright administrative departments shall, in accordance with the provisions of the law on administrative punishment 42nd article procedural hearing.
Parties do not bear the cost of hearing.
35th (legal instruments) Copyright administrative departments administrative penalties, it shall make a written decision of administrative penalty.
Copyright administrative authorities decided not to administrative penalties, violations are minor, shall draw up a notice of no administrative penalty, 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 (served) administrative punishment decision letter should be determined by the Copyright Administration Department proclaims the spot after parties.
Without the presence of the parties, shall be served in the 7th.
37th (apply for administrative reconsideration or bring an administrative action) 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.
38th chapter fourth implementation procedures (implementation of decision) when the parties upon receipt of 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 (dispose of the confiscated material) confiscation of infringing copies shall be destroyed, or infringed by other appropriate means with the consent process.
When the destruction of the infringing copies, copyright administrative departments shall assign two or more law enforcement officials supervised the destruction process, verifying the destruction of results, and destruction of records.
Is mainly used for making infringing copies of the confiscated materials, tools, equipment, auction or the copyright Administrative Department shall, in accordance with relevant State regulations. 40th (replacements) superior 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 supplementary articles article 41st (administrative penalty statistics) the competent administration of copyrights shall, according to the national statistical legislation to establish statistics system in administrative punishment of copyright, up one level copyright administrative departments once a year copyright administrative punishments and statistical reports.
42nd (filing) administrative penalty decision after execution or reconsideration decision, 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.
43rd (instrument making) this approach relates to the relevant legal instruments, the national copyright administration to determine the format of the instrument. 44th (implementing) these measures shall take effect on September 1, 2003.
Released on January 28, 1997, 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.
