Software copyright in China in Chinese Law means that creator or other oblige enjoys exclusive rights of the software under related copyright law. It is a civil right and has the common features of all the civil rights. Copyright is an exception in intellectual property right because it is owned without individual confirmation. This is usually called as principle of “automatic protection”. The copyright owner enjoys right of publication, right of authorship, right of consent to use, as well as right of being paid.
Contents
Rights
Significance of registration
1. Served as a significant basis of tax reduction and exemption. According to the relative regulations of Ministry of Finance and State Administration of Taxation, “business tax rather than value-added tax will be collected on the computer software that has been registered by national copyright bureau when it is sold and copyright and ownership is transferred.”
2. Served as a basis to provide protection of law According to related decree of the Council, “copyright administrative department should standardize and strengthen system on software copyright registration, encourage software copyright registration, and provide special protection in law to the registered software”. For instance, when copyright piracy happened, certificate of software copyright registration be used as proof without examination; in addition, it serves as a basis in law for national copyright administrative department to against piracy.
3. Served as investment by technology According to related regulation, “computer software can be used as investment by high and new technology, and the assessed price beyond 20% defined by Corporations Law and come to 35%”. Some local government even noticed: “100% software technology can be used as investment”, but must to register the software copyright first.
4. Served as a basis to apply for technological achievement According to related regulation of Ministry of science and technology: “to register technological achievement, one must submit <<registration form of technological achievement>>, as well as: 1. achievement of applying technology: related evaluation certificate (accreditation, acceptance report, entry qualification certificate, and new production certificate) as well as report of development; or 2. certificate of intellectual property right (copyright certificate; registration certificate of software) as well as user’s certificate”. Registration certificate of software refers to certificate of copyright registration and software registration, similar regulations be found in other Ministry.
5. Served as tangible income if corporation goes into bankruptcy Copyright is considered as “invisible asset”, and the invisible asset will not disappear when corporation goes into bankruptcy, the vitality and value of invisible asset is still in existence, and tangible fund be obtain in the process of transference or auction. According to regulation of computer software copyright registration: the time for registration of a software copyright refers to the 30 working days after the receipt date.
General provision
Article 1 For the purpose of carrying out 《Regulation for Computer Software Protection》(hereinafter refer to as 《Regulation》), this regulation is formulated.
Article 2 To promote the advance of the software industry and improve the innovative and competitive capacity in information industry of China, the national copyright administrative department encourages software registration and provides protection of the registered software.
Article 3 This regulation is applicable to registration of software copyright, exclusive license contract, as well as transfer contract.
Article 4 The Applicant of software copyright should be the software copyright owner as well as the natural person, legal person, or other organization that owns copyright through inheritance, endorsement.
Apply for Registration
Article 7 The software for registration must be independently created by the creator, or developed by modifying the original one with permission of the original creator and must have great improvements in function and performance.
Article 8 The registration of jointly created software can be made by one of the software copyright owners with the co-creators’ agreement. Any creator can apply for application without damage co-creators’ benefit, but must list names of the co-creators.
Article 9 Applicant must provide the following to the national copyright protection center: 1. Completed application form; 2. Software identifying materials; 3. Related certifying materials.
Article 10 Software identifying materials include those related to program and document. The program and document must consist of source program as well as the first and last 30 pages of any kind of document. The whole source program and document must be provided if they are less than 60 pages. Except for particular cases, there are no less than 50 lines and 30 lines in every page of program and documents respectively.
Article 11 Applicant must submit following certifying documents: 1. Identity documents of the natural person, legal person, or other organization; 2. Written contract on copyright owner or project assignment paper if there are; 3. Proof of consent to modify original software from the copyright owner should be submitted, if the software is developed from the original one. 4. Proof of inheritance or endorsement certificate should be submitted by inheritor or endorsee.
Article 12 Applicant can select one of the following ways as additional deposit: 1. The first and last 30 pages of the source program, with the confidential parts that should not beyond 50% of the source program, are covered by black stripe. 2. The first 10 pages and any 50 consecutive pages of the source program. 3. The first and last 30 pages of the source program, as well as any 20 consecutive pages of the source program. Document submits as additional deposit, in light of the above provision.
Article 13 Applicant apply to seal source program, documents or samples. Nobody is allowed to remove the seal except Applicant or judicial authority.
Article 14 Party of software copyright transfer contract or consent contract apply to the Chinese copyright protection center for contract registration. The materials must submit are: 1. Completed contract registration form; 2. Hardcopy of contract; 3. Identity document of the Applicant.
Article 15 Applicant request to withdraw the application at any time before it is approved.
Article 16 Registrant of software copyright or contract request to revise or supplement registered items. The materials be submitted include: 1. Completed application form for revise or supplement; 2. Hardcopy of registration certificate; 3. revise- or supplement-related materials.
Article 17 The uniform forms made by Chinese copyright protection center are used when applying for registration, and seal (signature) of the Applicant is needed. The application forms should be filled in Chinese. The Chinese version of all certificates and proof document must be provided if they are foreign language. The documents used to apply for registration must be printed on A4 papers with 297 mm x 210 mm (length x wide).
Article 18 Applicant materials submit directly or post by registered mail, and the name of Applicant, the title of the software, as well as the acceptance or registration number if there is, must be marked.
Material Needed
1. Completed application form of software copyright registration;
2. Materials for identifying software;
3. Related proof documents;
4. The program and document must consist of source program as well as the first and last 30 pages of any kind of document. The whole source program and document must be provided if they are less than 60 pages. Except for particular cases, there are no less than 50 lines and 30 lines in every page of program and documents respectively;
5. Identity of natural person, legal person or other organization;
6. Contract on copyright owner or project assignment paper should be submitted if there are;
7. Proof of consent to modify original software from the copyright owner should be submitted if it is developed on the basis of original software;
8. Proof of inheritance or endorsement provided by inheritor or endorsee.
9. The first and last 30 pages of the source program, with the confidential parts that should not beyond 50% of the source program, are covered by black stripe.
10. The first 10 pages and any 50 consecutive pages of the source program.
11. The first and last 30 pages of the source program, as well as any 20 consecutive pages of the source program.
Review and Approval
Article 19 The application belongs to article 9 and 14 will be proceeded on the day when materials listed in the chapter II are received, and written notice will be sent to Applicant.
Article 20 The Chinese copyright protection center should complete review of accepted application within 60 days after accept day, and make registration, grant certificate, and make public announcement for the application that is in accordance with this 《Regulation》.
Article 21 No registration will be made and will notice the Applicant if one of the following exists: 1. Forms submitted are uncompleted and nonstandard, and no revise is made within the specified time limited; 2. Materials submitted are not software program and document stipulated in the <<Regulation>>; 3. The title of program are not square with obligee’s signature, and no proof document is provided; 4. There is ownership dispute on the software be applied for registration.
Article 22 Applicant must revise and supplement materials within 30 days if it is requested by the Chinese Software Protection Center, otherwise will be considered as withdraw application.
Article 23 The national copyright bureau will revoke registration in light of following circumstances: 1. The final judicial decision; 2. Decision of administrative penalty that are made by copyright administration department.
Article 24 The Chinese Copyright Protection Center revoke registration according to Applicant’s request.
Article 25 Applicant apply for reissue or renew the registration certificate when it is lost or damaged.
Software Registration Announcement
Article 26 Anyone consult software registration announcement as well as documents related to registration that are permitted to open.
Article 27 The contents of software registration announcement includes: 1. Registration of software copyright; 2. Registered items on software copyright contract; 3. Information on invoke of software registration; 4. Other items.
Fees
Article 28 Fees should be paid when apply for software registration or deal with other items include: 1. Registration fee of software copyright; 2. Registration fee of software copyright contract; 3. Fee for revise or supplement registration; 4. Fee for registration certificate; 5. Seal and preservation fees; 6. Fee for additional deposit 7. Fee for inquiries; 8. Fee for applying for invokes registration; 9. Other fees needed. The specific charge standard are set and announced by national copyright bureau, together with Council price department.
Article 29 Fees is non-refundable, if Applicant withdraws application or application is refused by registration organs.
Article 30 Applicant pay the fees listed in article 28 directly, or through post office or bank, to the Chinese Copyright Protection.
Supplementary Provisions
Article 31 The first day is not covered within the terms stipulated by the Chinese Copyright Protection Center. The expiry date is the corresponding day of the last month if the term is counted by year or by month; the expiry date is the last day if no corresponding day in the month. If expiry date is in the legal holiday, the first working day after the holiday is the expiry date.
Article 32 The submission date of all documents to Chinese Copyright Protection Center is the date on postmark. The submission date is the received date if date on postmark is unclear. The received date of documents posted to the Applicant is presumed on the 15th day if they are posted to the capitals of provinces, or on the 21st day if they are posted to the other regions.
Article 33 If the submission term is overdue due to force majeure or other reasonable factors, applicant can apply to delay the submission date within the 30 days after obstacle.
Article 34 This regulation is interpreted, revised and supplemented by the national copyright bureau.
Article 35 This regulation shall come into effect from its promulgation. This document is the 1st decree of the national copyright bureau issued on Feb. 20th, 2002.