Order No. 468 of the State Council, PRC
The regulation on Protection of the Right to Network Dissemination of Information, adopted at the 135th executive session of the State Council on May 10, 2006, is herein promulgated, and shall enter into force on July 1, 2006.
Premier Wen Jiabao
May 18, 2006
Regulation on Protection of the Right to Network Dissemination of Information
Article 1 This regulation is formulated, in accordance with the “Copyright Law of the People’s Republic of China” (hereinafter referred to as the Copyright Law) for the purpose of protecting the right to network dissemination of information for copyright owners, performers, and producers of audio-visual recordings (hereinafter referred to as the owners), and of encouraging the creation and dissemination of works which contribute to the construction of a socialist spiritual and material civilization.
Article 2 The owners’ right to network dissemination of information is protected by the Copyright Law and this regulation. Except where otherwise provided for in laws or administrative regulations, any organization or person providing to the public the works, performances, or audio-visual recordings of others through information networks shall obtain the permission from, and pay remuneration, to the owners.
Article 3 Provision of works, performances, and audio-visual recordings that are prohibited by law shall not be protected by this regulation.
The owner, in exercising the right to network dissemination of information, shall not violate the Constitution, laws, or administrative regulations, or infringe upon the interests of the public.
Article 4 For the purpose of protecting the right to network dissemination of information, the owner can take technical measures.
No organization or person shall intentionally avoid or destroy the technical measures, shall intentionally manufacture, import, or provide the public with devices or components mainly used to avoid or destroy the technical measures, and shall intentionally provide technical services to others to avoid or destroy the technical measures, unless it is provided for by any law or administrative regulation that the technical measures may be avoided.
Article 5 Without the permission of the owner, no organization or person shall perform the following acts:
1. Intentionally deleting or altering the electronic information on the management right of the works, performances, or audio-visual recordings as provided to the public through the information network. However, this does not apply to that which cannot avoid being deleted or altered due to technical reasons;
2. Providing the public through the information network with works, performances, or audio-visual recordings while knowing or should have known that the works, performances, or audio-visual recordings have been deleted or altered without the permission of the owner.
Article 6 Anyone who provides others’ works through the information network shall not have to obtain permission from, or pay remuneration to, the copyright owner under the following circumstances:
1. When an appropriate quotation from a published work is provided to the public for the purposes of introducing or commenting on any work or for elaborating on any issue;
2. When it is inevitable that a published work must be cited to the public for the purpose of reporting a new event;
3. When a small quantity of a published work is provided for teaching or scientific research purposes to those engaged in teaching or scientific research;
4. When a state organ uses a published work within a reasonable scope for the purpose of fulfilling its official duties;
5. When a Chinese citizen, legal entity, or other organization translates a work written in Chinese into a minority language so as to provide it to the minorities within the country;
6. When a published written work, without the purpose of seeking a profit, is provided to the blind in a manner that they can perceive it;
7. When any published article on current political or economic events is provided through the information network; and
8. When a speech delivered at a public assembly is provided to the public.
Article 7 A library, archive, memorial hall, museum, art gallery, etc. can provide relevant digital works that have been legally published and preserved by the institution to their service objects and can legally reproduce a work in digital form for the purpose of displaying or preserving a copy of an edition, without the permission from, or paying remuneration to, the copyright owner, but shall not directly or indirectly obtain any economic benefits, except when stipulated by the owner.
Work reproduced in digital form for the purpose of displaying or preserving as prescribed in the former clause shall be a work that has been destroyed or close to destroyed, lost, or stolen, or whose storage mode is outdated, and cannot be bought on the market or can only be bought at an obviously higher price than that appearing on the label.
Article 8 Anyone who makes classroom software for the purpose of implementing the nine-year compulsory education or state education planning may, without the permission of the copyright owner, use published fragments of works or short written works, musical works, or a single works of fine art and photographic works, to provide to registered students in long-distance educational institutions that have made or legally obtained the classroom software and for which remuneration has been paid to the copyright owner.
Article 9 Before providing to the public in the rural areas free of charge published works by Chinese citizens, legal entities, or other organizations related to assisting the poor on planting and breeding, disease prevention and treatment, and disaster prevention and mitigation, and works meeting the fundamental cultural demands of the poor, the network service provider shall announce the works to be provided, the names of the authors, and the standards of remuneration. Within 30 days of the announcement, if the owners do not agree to provide the works, the network service provider shall not provide the works; after 30 days, the network service provider may provide works whose copyright owners have not responded, and shall pay remuneration to the copyright owners according to the announced standards. If after a network service provider has provided a copyright owner’s work, the owner does not agree, the network service provider shall immediately delete the copyright owner’s work, and shall pay remuneration for the work during the period it was provided based on the announced standards.
A network service provider who provides works in accordance with the provisions in the former clause shall not directly or indirectly obtain any economic benefits.
Article 10 Anyone who provides a copyright owner’s work to the public through the information network without the permission of the copyright owner as based on this regulation, shall also obey the following provisions:
1. Except for the circumstances in items 1 through 6 of Article 6 and Article 7 of this regulation, any work for which the owner has refused permission in advance shall not be offered;
2. The title of the work and the name of the author shall be specified;
3. Remuneration shall be paid as prescribed in this regulation;
4. Technical measures will be taken to prevent others beyond the service objects prescribed in Articles 7, 8, and 9 of this regulation from obtaining a copyright owner’s work, and to prevent the acts of reproduction as prescribed in Article 7 of this regulation from causing essential infringement of the copyright owner’s interests;
5. None of the other legal rights of the copyright owner shall be infringed upon.
Article 11 Anyone who provides others’ performances or audio-visual recordings through the information network shall obey the provisions of Article 7 through 10 in this regulation.
Article 12 Under the following circumstances, technical measures can be avoided, but technical devices or components used to avoid technical measures shall not be provided to others, and the other rights legally enjoyed by the owners shall not be infringed on:
1. When providing a small quantity of copies of a published work for use by teachers or scientific researchers for classroom teaching or scientific research through the information network, and the works, performances, or audio-visual recordings can only be obtained through the information network;
2. When published written works are provided not for profit to the blind in a manner they can perceive them through the network and the said works can only be obtained through the information network;
3. A government organ is fulfilling its official duties according to administrative and juridical procedures;
4. Any testing of the computer system or the safety capability of the network is carried out through the information network.
Article 13 The copyright administrative department can require that the network service provider provide the contact information, web address, etc. of any service objects suspected of infringement for the purpose of searching and punishing acts of infringement of the right to network dissemination of information.
Article 14 As for a network service provider that provides information storage space or provides searching and linking services, if the owner believes that a work, performance, or audio-visual recording involved in its services has infringed upon his or her own right to network dissemination of information, or has deleted or altered his or her own electronic information management right, he or she can submit a written notification to the network service provider and require that the network service provider delete the work, performance, or audio-visual recording or disconnect the link with the work, performance, or audio-visual recording. The notification shall include the following contents:
1. The name, contact information, and address of the owner;
2. The title and web address of the infringed work, performance, or audio-visual recording that must be deleted or the web addresses of the link that must be disconnected;
3. Preliminary materials to prove the infringement.
The owner shall be responsible for the authenticity of this notification.
Article 15 The network service provider, after receiving notification from the owner, shall immediately delete or disconnect the link to the work, performance, or audio-visual recording suspected of infringing on an other’s right, and meanwhile shall transfer the notification to the service object of the work, performance, or audio-visual recording; if the network address of the service object is not clear and the notification cannot be transferred, the network service provider shall publicize the content of the notification through the information network.
Article 16 After receiving the notification transferred by the network service provider, if the service object feels the provided work, performance, or audio-visual recording has not infringed on an other’s right, he or she can submit a written notification to the network service provider requesting that the deleted work, performance, or audio-visual recording be recovered or reconnected to the discontinued link. The written notification shall include the following contents:
1. The name, contact information and address of the service object;
2. The title and web address of the work, performance, or audio-visual recording to be resumed;
3. Preliminary materials to prove that there has been no infringement.
The service object shall be responsible for the authenticity of this written notification.
Article 17 After receiving written notification from the service object, the network service provider shall immediately resume the deleted work, performance, or audio-visual recording, or reconnect the disconnected link to the work, performance, or audio-visual recording, and transfer the written notification from the service object to the owner. The owner shall not request that the network service provider delete the work, performance, or audio-visual recording, or disconnect the link to the work, performance, or audio-visual recording.
Article 18 Anyone who violates the provisions of this regulation and commits any of the following acts of infringement shall, depending on the circumstances, bear civil liability for such remedies as ceasing the infringements, eliminating the effects of the acts, making a public apology or paying compensation for damages; when he or she at the same time damages the public interest, the copyright administrative departments shall order that he or she cease the act of infringement, shall confiscate the illegal earnings, and impose on him or her a fine of less than 100,000 RMB; if the case is serious, the copyright administrative department may also confiscate such equipment as computers that is mainly used to provide network services; when his or her act has constituted a crime, he or she shall be investigated for criminal liability in accordance with the law:
1. Providing others’ works, performances, or audio-visual recordings to the public through the information network without permission;
2. Intentionally avoiding or destroying technical measures;
3. Intentionally deleting or altering electronic information on the management right of works, performances, or audio-visual recordings provided to the public through the information network, or providing the public with the works, performances, or audio-visual recordings through the information network while knowing or supposed to have known the above information;
4. Providing the public in rural areas through the information network with works, performances, or audio-visual recordings for the purpose of assisting the poor out of the prescribed scope, or having not paid remuneration according to the established standards, or having not immediately deleted the works, performances, or audio-visual recordings when the owner has refused permission;
5. When providing others’ works, performances, or audio-visual recordings through the information network, and not having noted the title of the work, performance, or audio-visual recording or the name of the author, the performer, or the producer of the audio-visual recording, or having not paid remuneration, or having not taken technical measures to prevent others beyond the service objects from obtaining others’ works, performances, or audio-visual recordings, or not preventing acts of reproduction by the service objects from causing essential infringement of the owner’s interests according to this regulation.
Article 19 The copyright administrative department shall issue a warning to anyone who violates the provisions of this regulation and commits any of the following acts of infringement, and shall confiscate the illegal earnings and the devices or components mainly used to avoid or destroy the technical measures; if the case is serious, the copyright administrative department may also confiscate such equipment as computers that is mainly used to provide the network service, and impose a fine of less than 100,000 RMB; when his or her act has constituted a crime, he or she shall be investigated for criminal liability in accordance with the law:
1. Intentionally manufacturing, importing, or providing to others devices or components mainly used to avoid or destroy technical measures, or intentionally providing technical services to others for avoiding or destroying the technical measures;
2. Providing others’ works, performances, or audio-visual recordings through the information network and obtaining economic benefits;
3. Failing to provide the title of the work, performance, or audio-visual recording, or the name of the author and the standards of remuneration, before providing the rural areas through the information network with the works, performances, or audio-visual recordings for the purpose of assisting the poor.
Article 20 Under the following circumstances, a network service provider that provides automatic access services according to the instructions of the service object, or provides automatic transmission services of the works, performances, or audio-visual recordings to its service objects, shall not be liable for compensation:
1. Having not selected or altered the transmitted work, performance, or audio-visual recording;
2. Having provided the work, performance, or audio-visual recording to the designated service objects, and having prevented others beyond the designated service objects from obtaining access.
Article 21 Under the following circumstances, a network service provider that automatically stores works, performances, or audio-visual recordings obtained from other network service providers for the purpose of enhancing network transmission efficiency, and automatically provides them to the service objects according to the technical arrangements, shall not assume liability for compensation:
1. Having not altered the automatically stored works, performances, or audio-visual recordings;
2. Having not affected the original network service provider of the works, performances, or audio-visual recordings in managing the relevant works;
3. When the original network provider alters, deletes, or shields the works, performances, or audio-visual recordings, automatically altering, deleting, or shielding them according to the technical arrangement.
Article 22 Under the following circumstances, a network service provider that provides information storage space to a service object or provides works, performances, or audio-visual recordings to the public through the information network, shall not be liable for compensation:
1. Having clearly mentioned that the information storage space is provided to the service object, and also having publicized the name, contact information, and web address of the network service provider;
2. Having not altered the work, performance, or audio-visual recording provided to the service object;
3. Having not known and having no justified reason to know that the works, performances, or audio-visual recordings provided by the service object have infringed upon an other’s right;
4. Having not directly obtained economic benefits from the service object’s provision of the work, performance, or audio-visual recording;
5. After receiving the notification from the owner, having deleted the work, performance, or audio-visual regarded as infringing on the right of the owner according to the provisions of this regulation.
Article 23 A network service provider that provides searching or linking services to a service object, and has disconnected the link to a work, performance, or audio-visual recording infringing on an other’s right after receiving notification from the owner, shall not be liable for compensation; however, if it knew or should have known that the linked work, performance, or audio-visual recording has infringed upon an other’s right, it shall bear liability for joint infringement.
Article 24 If the notification of the owner results that the network service provider has wrongly deleted the work, performance, or audio-visual recording, or wrongly disconnected the link to the work, performance, or audio-visual recording, causing a loss to the service object, the owner shall be liable for compensation.
Article 25 The copyright administrative department shall issue a warning to a network service provider that refuses to provide or delays without reason in providing the materials such as the name, contact information, and web address of any service object suspected of committing an act of infringement; if the case is serious, the copyright administrative department shall confiscate such equipment as computers that is mainly used to provide the network service.
Article 26 The definitions of the terms in this regulation are as follows:
Right to network dissemination of information refers to the right to provide the public with the works, performances, or audio-visual recordings by wired or wireless means, so that the public may have access to these works, performances, and audio-visual recordings at a time and place chosen by the owner.
Technical measures refers to the effective technologies, devices, or components used to prevent or limit others from browsing or enjoying works, performances, or audio-visual recordings without permission from the owner, or in providing the works, performances, or audio-visual recordings to the public through the network without the owner’s permission.
Electronic information on management right refers to the information that demonstrates the work and its author, performance and its performer, audio-visual recording and its producer, the information on the right of the owner of the works, performances, or audio-visual recordings, and the conditions for use as well as the numbers or codes used to represent the above information.
Article 27 This regulation shall enter into force on July 1, 2006.
