Ordinance on the Protection of the Right to Network Dissemination of Information

Promulgated by State Council

 

Article 1 With a view to protecting the right to network dissemination of information of the copyright owners, performers and producers of audio-visual products (hereinafter referred to as the owners) and encouraging the production and spread of the works which are conducive to the development of material civilization and spiritual civilization, he present Ordinance is formulated in accordance with the Copyright Law of the People's Republic of China (hereinafter referred to as the Copyright Law).

 

Article 2 The owners' rights to network dissemination of information shall subject to the protection by the Copyright Law and the present Ordinance. Unless it is otherwise prescribed by any law or administrative regulation, an organization or individual that provides the general public with any other person's works, performance or audio-visual products through the information network shall obtain the owner's permission and pay the relevant remunerations.

 

Article 3 The works, performance or audio-visual products as prohibited from being provided according to law are not protected by the present Ordinance.

 

Any owner that exercises his right to network dissemination of information shall not violate the Constitution, the relevant laws and administrative regulations, and shall not injure any public interest.

 

Article 4 For the purpose of protecting the right to network dissemination of information, an owner may adopt technical measures.

 

No organization or individual may purposely avoid or break the technical measures, purposely manufacture, import or provide the general public with any device or component that is mainly applied to avoiding or breaking the technical measures, or purposely provide such technical services to any other person for the purpose of avoiding or breaking the technical measures, unless it is otherwise provided for by any law or regulation that the relevant technical measures may be avoided.

 

Article 5 No organization or individual may, in the absence of an owner's permission, conduct any of the following acts:

 

(1) Purposely deleting or changing the electronic information on the right administration of works, performance and audio-visual products as provided to the general public through the information network, with an exception of the circumstance under which it is impossible to avoid deleting or changing such information due to technical reasons; or

 

(2) Providing any work, performance or audio-visual product whose electronic information on right administration has been deleted or changed in the absence of the owner's permission to the general public who obviously know or should have known about the deletion or change through the information network.

 

Article 6 Under any of the following circumstances, works may be provided through the information network, and the provider may be exempted from obtaining the owner's permission as well as paying the relevant remunerations thereto:

 

(1) Where an appropriate portion of any published work is quoted in the works one provides to the general public for the purpose of introducing or commenting on any work or elaborating any issue;

 

(2) Where it is inevitable to reproduce or quote any published work in the works he provides to the general public for the purpose of making any new release;

 

(3) Where, in order to support the teaching research or scientific research, a small quantity of published works is provided to some people who engage in teaching or scientific research;

 

(4) Where any state organ provides to the general public any published work within a reasonable range for the purpose of exercising its functions and duties;

 

(5) Where the works as already published by any Chinese citizen, legal person or any other organization in Chinese are translated into any language of any minority ethnic group and are provided to such people within the territory of China;

 

(6) Where any already published work is provided to the blind in a way as particularly perceptible to the blind and not for the purpose of making profits;

 

(7) Where any article on current affairs such as political and economic issues that has been published is provided through the information network; or

 

(8) Where a speech as delivered in a public gathering is provided to the general public.

 

Article 7 A library, archives, memorial, museum and art gallery may, in the absence of the copyright holder's permission, provide the relevant digital works as lawfully published and preserved by the aforesaid institutions as well as the works that shall, according to law, be subject to digital photocopying for display or preservation to their objects of service through the information network within their place and without paying any remuneration. Whereas the aforesaid institutions may not directly or indirectly seek for any economic interest from such activities, unless it is otherwise stipulated by the parties concerned.

 

The works subject to digital photocopying for the purpose of display or conservation as prescribed in the preceding paragraph shall be the works that have been damaged or destroyed or are almost damaged or destroyed, are lost or stolen, whose storage format has been out-of-date, and which cannot be purchased through the market channel or can only be purchased at a price as obviously higher than the standardized one.

 

Article 8 Where the nine-year compulsory education or state education planning is implemented through the information network, the owner's permission may be absent in using fragments of works, short written works or musical works, a single work of fine art, or photographic works to produce courseware; the long-distance education institutions that have produced the courseware or acquired courseware according to law may provide such courseware to the registered students through information networks but shall pay relevant remuneration to the copyright owner.

 

Article 9 In order to alleviate poverty, where any work on planting and breeding, disease prevention and cure, disaster prevention and relief as well as the works that meet the basic cultural demands is published by Chinese citizens, legal persons or other organizations to the general public in the rural areas, a network service provider shall announce in advance the upload of such works to the network as well as the authors and remunerations thereof before they are actually uploaded. Within 30 days as of announcement, where a copyright holder refuses to provide his works, a network service provider shall not provide his works. Where 30 days elapse as of announcement and if the copyright holder has no different opinion, the network service provider may provide his works and pay the corresponding remunerations to the copyright holder in light of the announced rates. After a network service provider provides any work and if the relevant copyright holder disagrees to the upload, the network service provider shall immediately delete the copyright holder's works and pay the relevant remunerations corresponding to the display period of the copyright holder's works in light of the relevant announced rates.

 

As for the works as provided according to the provisions of the preceding paragraph, no economic benefit may be directly or indirectly obtained.

 

Article 10 Where any work is provided to the general public through the information network in the absence of the copyright holder's permission according to the present Ordinance, the following provisions shall be abided by as well:

 

(1) Except for the circumstances as prescribed in sub-paragraphs (1) through (6) of Article 6 of the present Ordinance, the works whose author has in advance announced that his works are prohibited from providing may not be provided;

 

(2) The names of works as well as the names of the authors (titles) shall be specified;

 

(3) Remunerations shall be paid according to the provisions of the present Ordinance;

 

(4) Technical measures shall be adopted so as to prevent any person other than the service objects as prescribed in Article 7, 8 or 9 of the present Ordinance from acquiring any of the copyright holder's works and to prevent any material injury as incurred by the service object's act of photocopying as prescribed in Article 7 of the present Ordinance; and

 

(5) None of the other rights of the copyright holder may be infringed upon.

 

Article 11 The performance or audio-visual products as provided through the information network shall be governed by the provisions of Articles 6 through 10 of the present Ordinance.

 

Article 12 Under any of the following circumstances, the relevant technical measures may be avoided, whereas the techniques, devices or components of the technical measures may not be provided to any other person and the other rights as enjoyed by the owner according to law may not be injured:

 

(1) Where any published work, performance or audio-visual product is provided to a small number of people that engage in teaching or scientific research through the information network for the purpose of teaching or scientific research, whereby the aforesaid published products can only be accessed through the information network;

 

(2) Where any of the written works as already published is provided not the for the purpose of making profits to the blind through the information network in a unique way as particularly perceptible by the blind, and the aforesaid works can only be acquired through the information network;

 

(3) Where the state organ exercises its functions according to the administrative and judicial procedures; or

 

(4) Carrying out any testing on the computer as well as its system or the safety performance of the network through the information network.

 

Article 13 The administrative department of copyrights may, with a view to investigating into the infringements upon the right to network dissemination of information, require the relevant network service provider to provide such materials as the names, contact information, and the web addresses of its service objects as suspected of infringement.

 

Article 14 With respect to a network service provider that provides information memory space, or searching or linking services, in case the relevant owner believes that any of the works, performance or audio-visual products as involved in the services has injured his right to network dissemination of information or that his electronic information on right administration has been deleted or altered, he may file a written notice with the relevant network service provider, requesting it to delete his works, performance and audio-visual products or to cut off the link to the works, performance and audio-visual products concerned, wherein the following contents shall be included:

 

(1) Name, contact information and address of the owner;

 

(2) The names of the infringed works, performance and audio-visual products that are required to be deleted or the names of the web addresses whose link is required to be cut off; and

 

(3) The preliminary certification materials on infringement.

 

The owner shall be responsible for the authenticity of his notice.

 

Article 15 After receiving a notice from the right owner, the network service provider shall immediately delete the relevant works, performance and audio-visual products as suspected of infringement or cut off the link to the relevant works, performance and audio-visual products as suspected of infringement and shall transfer the notice to the service objects that enjoy the relevant works, performance and audio-visual products simultaneously. Where the web address of a service object is not clear and therefore a transfer is impossible, the notice contents shall be simultaneously announced on the information network.

 

Article 16 Where a service object receives a notice as transferred by a network service provider and deems that the works, performance or audio-visual product it provides have not infringed upon any other person's right, it may file a written statement with the network service provider, requesting it to recover the deleted works, performance and audio-visual products or to recover the link to works, performance and audio-visual products, wherein the following contents shall be included:

 

(1) The name (title), contact way and address of the service object;

 

(2) The names of the works, performance, audio-visual products as well as web addresses as requested for recovery; and

 

(3) The preliminary certification materials on non-infringement.

 

The service object shall be responsible for the authenticity of his written statement.

 

Article 17 After receiving a written statement from a service object, the network service provider shall immediately recover the deleted works, performance and audio-visual products or recover the link to the works, performance and audio-visual products and shall transfer the written statement of the service object to the relevant owner simultaneously, who may not request the network service provider to delete the works, performance and audio-visual products or to cut off the relevant link any longer.

 

Article 18 Where anyone violates the present Ordinance by committing any of the following infringement, he shall, in light of the severity of the situation, assume such civil liabilities as stopping the infringement, eliminating the negative impacts, making an apology and compensating for the losses incurred. In case the public security is injured, the administrative department of copyright may order it to stop the infringement, confiscate the illegal proceeds and may impose thereupon a fine of 100, 000 yuan. In the event of any serious circumstances, the administrative department of copyright may confiscate such facilities as computers that are mainly applied to providing network services. Where any crime is constituted, the violator shall be subject to criminal liabilities according to law:

 

(1) Providing without permission any work, performance or audio-visual product to the general public through the information network;

 

(2) Purposely avoiding or damaging the adopted technical measures;

 

(3) Purposely deleting or changing the electronic information on right administration of the works, performance, audio-visual products as provided to the general public through the information network, or providing any work, performance or audio-visual product whose electronic information on right administration has been deleted or changed in the absence of the right owner's permission to the general public who obviously know or should have known about the aforesaid situation through the information network;

 

(4) Overstepping the prescribed scope in providing any work, performance or audio-visual product to the rural areas through the information network for the purpose of alleviating poverty, failing to pay the remunerations according to the announced rates or failing to immediately deleting the relevant works, performance and audio-visual products which the owners disagree to provide; or

 

(5) When providing any other person's work, performance or audio-visual product through the information network, failing to clarify the name of the works, performance or audio-visual products or the names of the relevant authors, performers, or producers of audio-visual, or failing to pay remunerations or failing to adopt the relevant technical measures according to the present Ordinance so as to prevent any person other than the service objects from acquiring the other person's work, performance or audio-visual product or failing to prevent the service objects from conducting the reproduction that may cause any material damage to such other person.

 

Article 19 Where anyone violates the present Ordinance by committing any of the following acts, the administrative department of copyright shall give it a warning, confiscate its illegal proceeds, and confiscate the devices or components that are mainly applied to avoiding or damaging the technical measures. In the event of serious circumstances, such equipments as mainly applied to providing network services may be confiscated and a fine of less than 100, 000 yuan may be imposed thereupon. In case a crime is constituted, the violator shall be subject to criminal liabilities according to law:

 

(1) Purposely producing, importing or providing any other person with any device or component that is mainly applied to avoiding or damaging the adopted technical measures or providing any technical services to help any other person to avoid or damage any adopted technical measure;

 

(2) Providing the works, performance or audio-visual products through the information network so as to acquire economic benefits; or

 

(3) When providing any work, performance or audio-visual product to the rural area through the information network for the purpose of alleviating poverty, failing to publicize the name of the works, performance and audio-visual products, the name of the relevant authors, performers or producers of audio-visual products as well as the rates for remunerations before they are uploaded.

 

Article 20 Where any network service provider provides the service of automatic access pursuant to the instructions of its service objects or provides the service of automatic transmission of works, performance and audio-visual products to its service objects and if the following requirements are satisfied, it is not required to assume the liabilities of compensation:

 

(1) Having not chosen or altered the transmitted works, performance and audio-visual products; or

 

(2) Providing the works, performance and audio-visual products to the designated service objects and preventing any person other than the designated service objects from obtaining the access.

 

Article 21 Where a network service provider obtains the relevant works, performance and audio-visual products from any other network service provider for the purpose of elevating the efficiency of network transmission and automatic storage and provides the aforesaid works to the service objects automatically according to the technical arrangement and in case the following requirements are satisfied, it is not required to assume the liabilities of compensation:

 

(1) Having not altered any of the works, performance or audio-visual products that are automatically stored;

 

(2) Having not affected the original network service provider of the works, performance and audio-visual products in grasping the relevant works, performance and audio-visual products; or

 

(3) When the original network service provider revises, deletes or shields the works, performance and audio-visual products, automatically revising, deleting or shielding according to the technical arrangement.

 

Article 22 Where a network service provider provides information memory space to its service objects, or provides the works, performance and audio-visual products to the general public through the information network and in case the following requirements are satisfied, he is not required to assume the liabilities of compensation:

 

(1) Clearly indicating that the information memory space is provided to the service objects and publicizing the name, contact person and web address of the network service provider;

 

(2) Having not altered the works, performance and audio-visual products that are provided to the service objects;

 

(3) Having no knowledge of and being justifiable reason to know the infringement of the works, performance and audio-visual products;

 

(4) Having not obtained any economic benefit from the provision of the works, performance and audio-visual products to its service objects; and

 

(5) After receiving a notice from the owner, deleting those works, performance and audio-visual products that the owner regards as infringing ones according to the present Ordinance.

 

Article 23 Where a network service provider provides any searching or linking service to its service objects or cuts off the link to any infringing work, performance, or audio-visual product after receiving a notice from the right owner according to the provisions of the present Ordinance, it is not required to assume the liabilities of compensation. However, when anyone is fully aware or should have known that any of the works, performance or audio-visual products it has linked to constitutes any infringement, it shall be subject to the liabilities of joint infringement.

 

Article 24 Where the relevant network service provider, as a result of the right owner's notice, wrongly deletes or cuts off the link to any work, performance or audio-visual product and therefore causes any loss to its service object, the owner shall be subject to the liabilities of compensation.

 

Article 25 Where any network service provider refuses or delays to provide such network materials as the name, contact information and web address of its service objects as suspected of infringement, the administrative department of copyright shall give it a warning. In the event of serious circumstances, equipments such as computers that are mainly applied to providing the network services shall be confiscated.

 

Article 26 The definitions of the terms in the present Ordinance are as follows:

 

The term "right to network dissemination of information" refers to the right to provide the works, performance and audio-visual products to the general public in a wire or wireless manner so that the general public may get access to the works, performance and audio-visual products at the time and place that the relevant owner has chosen.

 

The term "technical measures" refers to the efficient techniques, devices and components that are applied to preventing or restricting the browse or appreciation of the works, performance and audio-visual products in the absence of the relevant owner's permission or in providing the works, performance and audio-visual products to the general public through the information network in the absence of the relevant owner's permission.

 

The term "electronic information on right administration" refers to the information elaborating the works and the author thereof, the performance and the performers thereof, the audio-visual products and the producers thereof, the information on the right owners of the works, performance and audio-visual products as well as the requirements for application and the digits or codes representing the aforesaid information.

 

Article 27 The present Ordinance shall be implemented as of July 1, 2006.