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Measures for the Administrative Protection of Internet Copyright (2005.5.30)

 

Promulgated by the National Copyright Administration and the Ministry of Information Industry on 30 April 2005

 

Article 1 With a view to enhancing the administrative protection of the right of communication through information network in the activities of the Internet information service and to regulating administrative enforcement, these Measures are hereby formulated in accordance with the Copyright Law of the People's Republic of China, and other relevant laws and administrative regulations.

 

Article 2 The Measures shall apply to the acts to provide the functions of uploading, storing, linking or searching such contents, as works, sound-recording products and video-recording products automatically provided on the Internet at directives of the Internet content providers and without editing, revising or selecting stored or transmitted contents in the activities of the Internet information service.

The Copyright Law applies to acts of direct Internet content provision in the activities of the Internet information service.

For the purpose of the Measures, "the Internet content provider" shall refer to the online subscribers publishing relevant contents on the Internet.

 

Article 3 The Copyright Administrative Departments at the various levels shall accord the administrative protection of the right of communication through information network in the Internet information service activities pursuant to the law, the administrative regulations and the Measures. The competent Information Industry Department under the State Council and the telecommunication administrative authorities of the Provinces, the Autonomous Regions and the Municipalities Directly under the Central Government shall work cooperatively according to law.

 

Article 4 The Copyright Administrative Departments apply the Copyright Administrative Penalty Imposition Measures to imposition of administrative penalty on acts of infringement of the right of communication through information network in the Internet information service activities.

An act of infringement of the right of communication through information network in the Internet information service activities is under the jurisdiction of the Copyright Administrative Department of the place where the infringing act takes place. The places where the infringing acts take place include the places where equipment, such as servers, is provided for the activities of the Internet information service as mentioned in Article 2.

 

Article 5 After a copyright owner who discovers that any content transmitted on the Internet infringes his copyright notifies the Internet information service provider or its appointed agency (hereinafter referred to as the "Internet information service provider"), the Internet information service provider shall immediately take measures to remove or delete the relevant content, and keep the copyright owner's notification accessible online for six months.

 

Article 6 Upon receiving a copyright owner's notification, the Internet information service provider shall keep a record of the information content provided and it publishing time, Internet address or domain name thereof. The Internet access service provider shall keep a record of the information, such as the Internet content provider's access time, users' account number, Internet address or domain name, and the calling telephone number.

The records mentioned in the proceeding paragraph shall be kept for sixty days, and made available for the Copyright Administrative Departments to inspect.

 

Article 7 Where an Internet information service provider removes or deletes the relevant content according to the copyright owner's notification, the Internet content provider may send to the Internet information service provider and the copyright owner a counter-notification, explaining that the removed or deleted content does not infringe the copyright. After sending the counter-notification, the Internet information service provider may immediately restore the removed or deleted content without bearing the legal administrative liability.

 

Article 8 The copyright owner's notification shall contain:

(i) proof of the ownership of the copyright the alleged infringing content infringes;

(ii) explicit proof of identification, address, and mode of contact;

(iii) location of the alleged infringing content on the information network;

(iv) relevant evidence of the copyright infringement; and

(v) statement on the authenticity of the content of the notification.

 

Article 9 The counter-notification of the Internet content provider shall contain:

(i) explicit proof of identification, address, and mode of contact;

(ii) proof of the legality of the removed or deleted content;

(iii) location of removed or deleted content on the Internet; and

(iv) statement on the authenticity of the content of the counter-notification.

 

Article 10 The copyright owner's notification and the Internet content provider's counter-notification shall be in writing.

The copyright owner's notification and the Internet content provider's counter-notification that do not contain the contents provided for in Articles 8 and 9 of the Measures shall be deemed not to have been sent.

 

Article 11 Where an Internet information service provider clearly knows that an Internet content provider carries on an act to infringe another person's copyright through the Internet or although the Internet information service provider does not clearly know about such an act, he/it fails, upon receipt of a copyright's notification, to take measures to remove or delete the relevant content, which, meanwhile, causes prejudice to the public interests, the Copyright Administrative Department may order the infringing act to be ceased, and impose the following administrative penalties under Article 45 of the Copyright Law of the People's Republic of China:

(i) confisicating the illegal benefits; and

(ii) imposing a fine less than three times the illegal business turnover; where it is difficult to calculate the illegal business turnover, a fine less than RMB 100,000 yuan may be imposed.

 

Article 12 Where there is no evidence showing that an Internet information service provider clearly knows about the existence of the facts of an infringement or where the Internet information service provider takes measures to remove or delete the relevant content upon receipt of the copyright owner's notification, the Internet information service provider shall not bear the legal administrative liabilities.

 

Article 13 When handling and investigating a case of infringement of the right of communication through information network in the Internet information service activities, the Copyright Administrative Department may, pursuant to Article 12 of the Copyright Administrative Penalty Imposition Measures, require a copyright owner to submit the necessary material and proof of its notification sent to the Internet information service provider, and proof showing the Internet information service provider's failure to take measures to remove or delete the relevant content.

 

Article 14 Where an Internet information service provider falls within the circumstances provided for in Article 11 of the Measures and where the Copyright Administrative Department determines according to law that it is dedicated to pirate activity or falls within other serious circumstances, the competent Information Industry Department under the State Council or the telecommunication administrative authorities of a Province, Autonomous Region or the Municipality Directly under the Central Government handles the matter pursuant to the provisions of the pertinent laws and the administrative regulations; the Internet access service provider shall cooperate, and take the corresponding measures to handle the matter in accordance with the notice from the competent Information Industry Department under the State Council or the telecommunication administrative authorities of the Province, Autonomous Region or the Municipality directly under the Central Government.

 

Article 15 Any Internet information service provider failing to perform the obligation provided for in Article 6 of the Measures shall be warned, and may be imposed a fine of RMB 30,000 yuan by the competent Information Industry Department under the State Council or the telecommunication administrative authorities of a Province, Autonomous Region or Municipality directly under the Central Government.

 

Article 16 When it finds that an Internet information service provider's act is suspected of constituting a criminal offense in the course of its handling and investigating a case of infringement of the right of communication through information network in the Internet information service activities, the Copyright Administrative Department shall transfer, pursuant to the State Council's Provisions on Administrative Enforcement Authorities' Transferring Cases of Suspected Criminal Offenses, to the judicial authorities for prosecution for criminal liability according to law.

 

Article 17 The Measures apply to the administrative protection of the rights of the holders of copyright-related rights, such as the performers, sound-recording producers and video-recording producers, to communicate through the Internet to the public their performances, sound-recording products and video-recording products.

 

Article 18 The National Copyright Administration and the Ministry of Information Industry shall be responsible for the interpretation of the Measures.

 

Article 19 The Measures shall come into force on 30 May 2005.

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