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Measures for the Administrative Protection of Internet Copyright 2005

(National Copyright Administration and Ministry of Information Industry, April 30, 2005)

Article 1 These Measures are formulated in accordance with the “Copyright Law of the People’s Republic of China” and other relevant laws and administrative regulations so as to strengthen the administrative protection of the right of communication through information network in Internet information services, and regulate the law enforcement administration acts.

Article 2 These Measures shall apply to the acts of automatically providing such functions as uploading, storing, linking or searching works, audio or video products, or other contents through Internet in Internet information services according to the instruction of an Internet content provider, without editing, amending or selecting any stored or transmitted content.

The direct provision of Internet contents in Internet information services shall be governed by the Copyright Law.

An “Internet content provider” as mentioned in these Measures shall mean an Internet user who publishes relevant contents on Internet.

Article 3 The copyright administration departments at all levels shall, in accordance with the laws, administrative regulations and these Measures, carry out administrative protection of the right of communication through information network in Internet information services. The competent institution in charge of information industry under the State Council and the telecommunications administration institution of each province, autonomous region, or municipality directly under the Central Government shall cooperate in the relevant work in accordance with law.

Article 4 A copyright administration department shall, when imposing administrative penalties upon the tortious act infringing upon the right of communication through information network in Internet information services, apply the “Measures for Imposing Copyright Administrative Penalties”.

A tortious act infringing upon the right of communication through information network in Internet information services shall be under the jurisdiction of the copyright administration department at the place where the tortious act was conducted. The places where the tortious act was conducted may include the place where such equipment as the server providing Internet information services listed in Article 2 of these Measures is located.

Article 5 Where a copyright owner finds any content communicated through Internet infringes upon his/its copyright, and sends a notice to the Internet information service provider or any other institution entrusted thereby (hereinafter uniformly referred to as “Internet information service provider”), the Internet information service provider shall immediately take measures to remove the relevant contents, and preserve the copyright owner’s notice for 6 months.

Article 6 An Internet information service provider shall, after receipt of a copyright owner’s notice, record the contents of the provided information, the publishing time, and the Internet address or domain name. The Internet access service provider shall record the time of access by the Internet content provider, the user’s name, the Internet address or domain name, the telephone number of the calling party, and other information.

The records as mentioned in the preceding paragraph shall be preserved for 60 days, and shall be provided once inquired about by the copyright administration department.

Article 7 Where an Internet information service provider removes relevant contents according to the notice of a copyright owner, the Internet content provider may send a counter-notice to both the Internet information service provider and the copyright owner, stating that the removed contents do not infringe upon the copyright. After the counter-notice is sent, the Internet information service provider may immediately reinstate the removed contents, and need not bear administrative legal liabilities for the reinstatement.

Article 8 A copyright owner’s notice shall include the following contents:
(1) the testimonial on the ownership of the copyright suspected to be infringed upon by the tortious content;
(2) the clear identity testimonial, domicile, and method of contact;
(3) the position of the suspected tortious content on the information network;
(4) the relevant evidence on infringement upon the copyright; and
(5) the statement on authenticity of the content in the notice.

Article 9 An Internet content provider’s counter-notice shall include the following contents:
(1) the clear identity testimonial, domicile, and method of contact;
(2) the testimonial on legality of the removed content;
(3) the position of the removed content on Internet; and
(4) the statement on authenticity of the content in the counter-notice.

Article 10 Both the notice of a copyright owner and the counter-notice of an Internet content provider shall be in writing.

Where the notice of a copyright owner or the counter-notice of an Internet content provider does not contain the contents as prescribed in Article 8 or Article 9 of these Measures, it shall be deemed as having not been sent.

Article 11 Where an Internet information service provider clearly knows an Internet content provider’s tortuous act of infringing upon other’s copyright through Internet, or fails to take measures to remove relevant contents after receipt of the copyright owner’s notice although it does not know it clearly, and meanwhile damages public benefits, the copyright administration department may, in accordance with Article 47 of the “Copyright Law of the People’s Republic of China”, order the infringer to stop the tortious act, and may impose the following administrative penalties:
(1) confiscation of the illegal proceeds; and
(2) imposing a fine of not more than 3 times the illegal business amount; if the illegal business amount is difficult to be calculated, a fine of not more than 100,000 Yuan may be imposed.

Article 12 Where there is no evidence to indicate that an Internet information service provider clearly knows the facts of tort, or the Internet information service provider has taken measures to remove relevant contents after receipt of the copyright owner’s notice, the Internet information service provider shall not bear the administrative legal liabilities.

Article 13 When investigating a case on a tortious act infringing upon the right of communication through information network in Internet information services, a copyright administration department may, in accordance with Article 12 of the “Measures for Imposing Copyright Administrative Penalties”, require the copyright owner to submit the indispensable materials, the notice sent to the Internet information service provider, and the testimonial proving that the Internet information service provider failed to take measures to remove relevant contents.

Article 14 Where an Internet information service provider is under the circumstances prescribed in Article 11 of these Measures, and is legally ascertained by the copyright administration department as specially engaging in piracy activities, or is under any other severe circumstance, the competent institution in charge of information industry under the State Council or the telecommunications administration institution of the province, autonomous region, or municipality directly under the Central Government may punish the Internet information service provider in accordance with relevant laws and administrative regulations. The Internet access service provider shall, in light of the notice sent by the competent institution in charge of information industry under the State Council or the telecommunications administration institution of the province, autonomous region, or municipality directly under the Central Government, cooperate in implementing the corresponding punishment measures.

Article 15 Where an Internet information service provider fails to perform any obligation prescribed in Article 6 of these Measures, it shall be warned by the competent institution in charge of information industry under the State Council or the telecommunications administration institution of the province, autonomous region, or municipality directly under the Central Government, and may be fined no more than 30,000 Yuan in addition.

Article 16 Where, in the process of investigating a case on a tortious act infringing upon the right of communication through information network in Internet information services, a copyright administration department finds that an Internet information service provider’s act is suspected to constitute a crime, it shall transfer the case to the judicial organ in accordance with the “Provisions on Transfer of Cases of Suspected Crimes by Law Enforcement Administration Organs” promulgated by the State Council, so as to subject the Internet information service provider to criminal liabilities in accordance with law.

Article 17 The administrative protection of the rights of performers, producers of audio or video recordings, and other right holders related to copyright who communicate to the public their performance or audio and video products through Internet shall be governed by these Measures.

Article 18 The responsibility to interpret these Measures shall remain with the National Copyright Administration and the Ministry of Information Industry.

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

 

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