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Regulations on Copyright Collective Administration (2005.3.1)


Regulations on Copyright Collective Administration (2005.3.1)

Decree of the State Council of the People’s Republic China 

No.429 

Regulations on Copyright Collective Administration, adopted at the 74th Executive Meeting of the State Council on December 22, 2004, are hereby Promulgated and shall be effective as of March 1, 2005. 

Premier, Wen Jiabao 

December 28, 2004  

Chapter I General Provisions

Article 1 These Regulations have been instituted pursuant to the Copyright Law of the People's Republic of China (hereinafter referred to as the "Copyright Law") with a view to regulating activities of collective administration of copyright and facilitating copyright owners and owners of copyright-related rights (hereinafter referred to as "owners") to exercise their rights, and users to use works.

 

Article 2 For the purpose of these Regulations, "collective administration of copyright" means the collective exercise of relevant rights of owners by an organisation for collective administration of copyright in its own name, with the owners' authorization, through the following activities:

(1) to conclude licensing contracts concerning copyright or copyright-related rights (hereinafter referred to as "licensing contracts") with users;

(2) to collect royalties from users;

(3) to distribute royalties among the owners; and

(4) to participate as a party in legal or arbitration proceedings concerning copyright or copyright-related rights.

 

Article 3 For the purpose of these Regulations, "organisation for collective administration of copyright" means a mass organisation which is established for the benefit of owners and which, with the owners' authorization, collectively administers their copyright or copyright-related rights.   

An organisation for collective administration of copyright shall be registered as such and pursue its activities in accordance with the provisions of the administrative regulations on the registration of mass organisations and of these Regulations.

 

Article 4 Rights provided for in the Copyright Law, which are difficult for owners to exercise effectively on their own, such as those of performance, presentation, broadcasting, rental, communication through information network, and reproduction, may be collectively administered by an organisation for collective administration of copyright.

 

Article 5 The administrative department for copyright under the State Council shall be in charge of the nationwide work of collective administration of copyright.

 

Article 6 No organisation or person shall pursue activities of collective administration of copyright except the organisation for collective administration of copyrights established in accordance with the provisions of these Regulations.

 

Chapter II Establishment of Organisations for Collective Administration of Copyright

Article 7 Chinese citizens, legal entities or other organisations that enjoy copyright or copyright-related rights according to law may initiate the establishment of an organisation for collective administration of copyright.

For an organisation for collective administration of copyright to be established, all of the following conditions shall be met:

(1) the number of the owners who initiate the establishment of such organisation is not less than fifty;

(2) the operation scope of such organisation will not overlap or coincide with that of any other organisation for collective administration of copyright which has been registered according to law;

(3) such organisation will be able to operate in the interests of relevant owners nationwide;

(4) the statute, the rates for collecting royalties, and the methods for distributing royalties among the owners (hereinafter referred to as the "methods for distributing royalties " ) of such organisation have been prepared.

 

Article 8 An organisation for collective administration of copyright shall ensure that its statute contains all of the following information:

(1) its name and domicile;

(2) the objectives of its establishment;

(3) its operating scope;

(4) its institutions and functions and powers;

(5) the minimum number of attendance at its general assembly;

(6) the responsibilities of its executive council, as well as the qualifications for, and the procedures for appointing and removing, persons in charge of the board;

(7) the methods for retaining and spending the administrative fees;

(8) the conditions and procedures for joining, and withdrawing from, that organisation;

(9) the procedures for amending its statute;

(10) the conditions and procedures for terminating the organisation, and for disposing of its assets after termination.

 

Article 9 An applicant for establishment of an organisation for collective administration of copyright shall submit to the administrative department for copyright under the State Council material with which it can be proved that the conditions provided for in Article 7 of these Regulations are met. The administrative department for copyright under the State Council shall, within sixty days from the date of receipt of such material, decide whether to approve the application or not. In the case of approval, a permit for collective administration of copyright shall be issued to the applicant; otherwise the reasons for disapproval shall be given.

 

Article 10 The applicant shall, within thirty days from the date of issue of the permit by the administrative department for copyright under the State Council, go through the procedures for registration at the administrative department for civil affairs under the State Council in accordance with the administrative regulations on the registration of mass organisations.

 

Article 11 An organisation for collective administration of copyright registered according to law shall, within thirty days from the date on which the administrative department for civil affairs under the State Council has issued a registration certificate to it, send a copy of the certificate to the administrative department for copyright under the State Council for recordation. The latter department shall publish the copy of the certificate sent for the recordation, the rates of royalties, and the methods for distributing royalties of that organisation.

 

Article 12 In order to establish a branch, an organisation for collective administration of copyright shall have the approval of the administrative department for copyright under the State Council, and go through the procedures for registration at the administrative department for civil affairs under the State Council in accordance with the administrative regulations on the registration of mass organisations. Where its branch has been registered according to law, that organisation shall send a copy of the registration certificate of that branch to the administrative department for copyright under the State Council for recordation and publication.

 

Article 13 An organisation for collective administration of copyright shall, when drawing up the rates of royalties, take account of:

(1) the time, manner and territory of using works, sound or video recordings, etc.;

(2) the categories of the rights; and

(3) the degree of difficulty of activities to conclude licensing contracts and to collect royalties.

 

Article 14 An organisation for collective administration of copyright shall draw up the methods for distributing royalties according to the specific use of owners' works, sound or video recordings, etc.

 

Article 15 An organisation for collective administration of copyright which has amended its statute shall submit the amendment draft to the administrative department for copyright under the State Council for approval. Such draft shall, after having been separately examined by the administrative department for civil affairs under the State Council according to law, be published by the former department.

 

Article 16 An organisation for collective administration of copyright whose registration has been revoked according to law shall not continue to pursue activities of collective administration of copyright from the date of revocation.

 

Chapter III Structure of Organisations for Collective Administration of Copyright

Article 17 The general assembly of an organisation for collective administration of copyright (hereinafter the "general assembly") is the body of power of that organisation.

The general assembly shall, in accordance with the provisions of these Regulations, be convened by the executive council, which shall announce the time and place of the assembly, as well as the agenda 60 days before the assembly meets. Members to attend the assembly shall enter their names 30 days before it is convened. In the case in which the number of members entering their names is less than the minimum number of attendance prescribed in the statute, the executive council shall announce the entry for the meeting, and other members may still enter their names five days before the assembly is convened, which shall be held by all of the members who have entered their names.

The general assembly shall exercise the following functions and powers:

(1) to draw up and to amend the statute;

(2) to draw up and to amend the rates of royalties to be collected;

(3) to draw up and to amend the methods for distributing royalties;

(4) to elect and to remove directors;

(5) to review and approve work reports and finance reports of the executive council;

(6) to lay down the internal administration system;

(7) to determine schemes for distributing royalties and the proportion at which to retain administrative fees by the organisation;

(8) to decide on other major matters.

The general assembly shall be convened each year, but a temporary general assembly may be convened on the motion of the executive council or of ten percent of the members. The general assembly come to a resolution only if the resolution is voted for by more than half of the members present at the assembly.

 

Article 18 An organisation for collective administration of copyright shall establish its executive council, which is responsible for, and implements decisions of, the general assembly. The number of the members of the board shall not be less than nine.

The executive council shall be elected for a term of four years, and re-elected at the expiry of the said term. The council may, under special conditions, be re-elected on a date earlier or later than the expiry of the said term, but not later than one year.

 

Chapter IV Activities of Collective Administrations of Copyright

Article 19 An owner may conclude in writing a contract for collective administration of copyright with an organisation for collective administration of copyright, authorising the latter to administer copyright or copyright-related rights which he enjoys under law. The organisation, upon request, shall, and may not refuse to, conclude a contract for collective administration of copyright with the owner, provided that he meets the conditions for joining the organisation prescribed in the statute.

An owner, having concluded a contract for collective administration of copyright with an organisation for collective administration of copyright and gone through the relevant procedures prescribed in the statute, becomes a member of that organisation.

 

Article 20 An owner, once having concluded a contract for collective administration of copyright with an organisation for collective administration of copyright, shall not, during the term agreed upon in the contract, exercise, or authorize another person to exercise, the rights stipulated in the contract to be exercised by that organisation.

 

Article 21 An owner may, pursuant to the procedures prescribed in the statute, withdraw as a member from an organisation for collective administration of copyright, and thus terminate the contract for collective administration of copyright. However, any licensing contract which, at that time, has been concluded between that organisation and another person shall remain valid until it expires, and the owner shall, during the term of validity of the contract, have the right to receive the relevant royalties and to consult the related administrative material.

 

Article 22 A foreigner or stateless person may, through an overseas organisation of the same kind which has concluded an agreement for reciprocal representation with an organisation for collective administration of copyright in China, authorize the latter organisation to administer copyright or copyright-related rights that he enjoys in the territory of China under law.   

As used in the preceding paragraph, the "agreement for reciprocal representation" means an agreement in which an organisation for collective administration of copyright in China and an overseas organisation of the same kind mutually authorize the other party to pursue activities of collective administration of copyright in the country or region to which the other party belongs.

Copies of agreements for reciprocal representation concluded between an organisation for collective administration of copyright in China and overseas organisations of the same kind shall be filed with the administrative department for copyright under the State Council for recordation and publication.

 

Article 23 An organisation for collective administration of copyright shall, when authorizing another person to use works, sound or video recordings, etc. which it administers, conclude a licensing contract with the user in writing.

An organisation for collective administration of copyright shall not conclude exclusive licensing contracts with users.

An organisation for collective administration of copyright shall not refuse any user's request to conclude a licensing contract with it on reasonable terms.

The term of a licensing contract shall not exceed two years; the licensing contract may be renewed when it expires.

 

Article 24 An organisation for collective administration of copyright shall develop a rights information consulting system for owners' and users' consultation. Such system shall contain the categories of the rights administered by that organisation, the titles of the works, sound or video recordings, etc., the names of the owners, and the period of the authorized administration.

An organisation for collective administration of copyright shall reply to owners and users when they approach it for information concerning rights which it administers.

 

Article 25 An organisation for collective administration of copyright shall, pursuant to the rates of royalties published by the administrative department for copyright under the State Council, agree with a user upon the exact amount of royalties, except those to be paid under Article 23, the second paragraph of Article 33, the third paragraph of Article 40, the second paragraph of Article 43, and Article 44 of the Copyright Law.

 

Article 26 If two or more organisations for collective administration of copyrights collect royalties from the same user for use in the same manner, they may, consult between themselves, and decide that one of them would collect all the royalties together. The royalties collected in such a way shall be divided between those organisations through consultation.

 

Article 27 A user shall, when paying royalties to an organisation for collective administration of copyright, supply information concerning the specific use to that organisation, such as the titles of the works, sound or video recordings, etc. which he has used, the names of the owners, and the manner, amount and time of the use, except otherwise stipulated in the licensing contracts.    

Where such information supplied by the user involves his trade secrets, the organisation for collective administration of copyright shall be obliged to keep them confidential.

 

Article 28 An organisation for collective administration of copyright may retain, from the royalties which it has collected, a certain proportion as the administrative fees to be used to maintain its regular administrative activities.

The proportion that an organisation for collective administration of copyright may retain as administrative fees shall gradually decrease with the increase of the amount of the royalties collected.    

 

Article 29 The royalties collected by an organisation for collective administration of copyright shall, after the retainment of administrative fees, be completely distributed among the owners, and may not be used for other purposes.

In respect of the distribution of royalties, an organisation for collective administration of copyright shall keep a record of the distribution, which shall contain such information as the total royalties collected, the amount of the administrative fees, the names of the owners, the titles and specific use of the works, sound or video recordings, etc., and the exact amount of royalties respectively paid to each owner, and the records shall be kept for more than 10 years.

 

Chapter V Supervision over Organisations for Collective Administration of Copyright

Article 30 An organisation for collective administration of copyright shall establish a finance and accounting system, and an assets management system according to law, and shall keep accounting books in accordance with the relevant provisions.

 

Article 31 The assets use and the finance management of an organisation for collective administration of copyright shall be supervised by the administrative department for copyright and the administrative department for civil affairs under the State Council.

An organisation for collective administration of copyright shall, at the end of each accounting year, prepare the finance and accounting report, appoint a public accountant firm to conduct an audit according to law, and publish the audit result.

 

Article 32 An organisation for collective administration of copyright shall keep a record of the following information for owners' and users' consultation:

(1) the specific licensed use of works;

(2) the specific collection and distribution of royalties; and

(3) the specific retainment and spending of administrative fees.

An owner shall have the right to consult, or to copy, finance reports, work reports and other administrative documents of the organisation for collective administration of copyright; that organisation shall facilite the owner to do so.

 

Article 33 An owner may make an accusation to the administrative department for copyright under the State Council if he believes that an organisation for collective administration of copyright involves itself in one of the following circumstances:

(1)  where it refuses his request to join that organisation although he meets the joining conditions prescribed in its statute or his request to withdraw as a member from that organisation pursuant to the procedures prescribed in its statute;

(2) where it fails to collect or distribute royalties, or fails to retain or spend administrative fees in accordance with the relevant provisions; or

(3) where it refuses his request to consult the records or other administrative documents provided for in Article 32 of these Regulations.

 

Article 34 A user may make an accusation to the administrative department for copyright under the State Council if he believes that an organisation for collective administration of copyright involves itself in one of the following circumstances:

(1) where refuses to conclude a licensing contract with him in violation of Article 23 of these Regulations; and

(2) where it fails to agree with him upon the exact amount of royalties pursuant to the published rates of; or

(3) where it refuses his requests to consult the records provided for in Article 32 of these Regulations.

 

Article 35 Citizens, legal entities and other organisations, other than owners and users, may inform the administrative department for copyright under the State Council if they believe that an organisation for collective administration of copyright commits an act in violation of any provision of these Regulations.

 

Article 36 The administrative department for copyright under the State Council shall, within sixty days after having received an accusation or information, investigate about the accused or informed matter and deal with it according to law.

 

Article 37 The administrative department for copyright under the State Council may supervise organisation for collective administration of copyrights in the following manners, and shall keep a record of its supervising activities:

(1) by examining whether activities of those organisations conform to the provisions of these Regulations and of their statutes;

(2) by checking accounting books, annual budge and finance reports, and other relevant administrative documents of those organisations;

(3) by sending representative, as an observer, to attend major meetings, such as the general assembly and meeting of the board of director, of those organisations.

 

Article 38  Copyright collective administration organisations shall, according to law, subject themselves to the supervision by the administrative department for civil affairs under the State Council and other relevant departments.

 

Chapter VI Legal Liabilities

Article 39 If an organisation for collective administration of copyright involves itself in one of the following circumstances, it shall be ordered by the administrative department for copyright under the State Council to make rectification within a specified time limit:

(1) where fails in violation of Article 22 of these Regulations to send a copy of the agreement for reciprocal representation it has concluded with an overseas organisation of the same kind to the administrative department for copyright under the State Council for the record;

(2) where fails in violation of Article 24 of these Regulations to develop a rights information consulting system; or

(3) where it fails to agree with a user on the exact amount of royalties pursuant to the published rates of royalties.

An organisation for collective administration of copyright which administers owners' rights beyond its proper scope of administration shall be ordered by the administrative department for copyright under the State Council to make rectification within a specified time limit, and licensing contracts concluded in such a case between that organisation and users shall not be valid. To the extent that damage has been caused to the owners or users, that organisation shall also bear civil liabilities according to law.

 

Article 40 If an organisation for collective administration of copyright involves itself in one of the following circumstances, it shall be ordered by the administrative department for copyright under the State Council to make rectification within a specified time limit. Where that organisation exceeds the time limit for the making rectification, its general assembly or its executive council shall be ordered to remove or dismiss, pursuant to the competence as provided in these Regulations, the persons in direct charge:

(1) where refuses, in violation of Article 19 or 21 of these Regulations to conclude a contract for collective administration of copyright with an owner, or refuse a member's request to withdraw from that organisation;

(2) where refuses, in violation of Article 23 of these Regulations to conclude a licensing contract with a user;

(3) where it retains administrative fees in such a way as to violate Article 28;

(4) where it distributes royalties in such a way as to violate Article 29; or

(5) where it refuses to provide its accounting books, annual budge and finance reports, or other administrative documents, or provides false documents.

 

Article 41 If, without justification, an organisation for collective administration of copyright has not carried out, or has discontinued, activities of collective administration of copyright for more than six months after the administrative department for civil affairs under the State Council has issued to it the registration certificate, its permit for collective administration of copyright and its registration shall be respectively suspended and revoked by the administrative department for copyright and by the administrative department for civil affairs under the State Council .

 

Article 42 If an organisation for collective administration of copyright operates for profit purposes, it shall be banned, and its illegal gains shall be confiscated, according to law, by the administrative department for industry and commerce. Where a crime is constituted, criminal liabilities shall be imposed pursuant to law.

 

Article 43 If a user violates Article 27 of these Regulations, by refusing to supply the relevant use information where he can do so, or practising fraud when supplying such information, he shall be ordered by the administrative department for copyright under the State Council to make rectification, and the relevant organisation for collective administration of copyright may suspend the licensing contract concluded with him.

 

Article 44 If, without permission, an organisation for collective administration of copyrights or their branches are established, or activities of collective administration of copyright are pursued, they shall be banned, and the illegal gains shall be confiscated, by the administrative department for copyright or the administrative department for civil affairs under the State Council according to their respective functions. Criminal liabilities shall be imposed according to law if a crime is constituted.

 

Article 45 If any State functionary working on the examination and approval of organisations for collective administration of copyrights or on supervision over their activities neglects his duty, abuses his power, or engages in malpractice for personal gain, which constitute a crime, he shall be prosecuted for criminal liabilities. If his act does not constitute a crime, he shall be subject to disciplinary sanction according to law.

 

Chapter VII Supplementary Provisions

Article 46 Any organisation for collective administration of copyright established before these Regulations enter into force shall, within three months from the date on which these Regulations enter into force, submit its statute, rates of royalties, methods for distributing royalties, and other relevant material to the administrative department for copyright under the State Council for examination, and send copies of the agreements for reciprocal representation which it has concluded with overseas organisations of the same kind to that department for recordation.

 

Article 47 A user who has used others' works under Article 23, the second paragraph of Article 33, or the third paragraph of Article 40 of the Copyright Law, but has been unable to pay royalties to pay the owners according to Article 32 of the Implementing Regulations of the Copyright Law shall deliver the royalties, together with the postage, and the information concerning the specific use, to an organisation for collective administration of copyright which administers the relevant right so that such royalties can be transmitted to the owners by that organisation.

An organisation for collective administration of copyright which has a duty to transmit royalties shall develop a use information consulting system for the owners and users to consult.

An organisation for collective administration of copyright which has a duty to transmit royalties may retain, in the proportion determined by its general assembly, the administrative fees to be reduced by half, but not any other fees, from the royalties collected in accordance with the first paragraph of this Article.

 

Article 48 These Regulations shall enter into force on 1 March 2005.

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