Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of Law in the Trial of Civil Cases Involving Copyright Disputes
 
The Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of Law in the Trial of Civil Cases Involving Copyright Disputes was adopted by the 1246th Session of the Trial Committee of the Supreme People's Court on 12 October 2002.  It is hereby promulgated and shall take effect as of 15 October 2002.
 
In order to correctly try civil cases involving copyright disputes, the following interpretation of certain issues concerning application of the law is rendered in accordance with the General Principles of the Civil Law of the People's Republic of China, the Contract Law of the People's Republic of China, the Copyright Law of the People's Republic of China, the Civil Procedure Law of the People's Republic of China and other laws:
 
Article 1    A people's court shall accept the following civil cases that involve copyright disputes:
(1) Cases involving copyright or copyright-related rights and interests on ownership, infringement and contract disputes;
(2) Cases involving an application to stop an infringement of copyright or copyright-related rights and interests prior to filing an action, or for property or evidence preservation prior to filing an action; and
(3) Other cases involving disputes over copyright or copyright-related rights and interests.
 
Article 2    Civil cases involving copyright disputes shall be under the jurisdiction of a people's court at an intermediate level or above.
Each high people's court may, according to the actual situation of its respective jurisdiction, designate a number of basic people's courts to govern first instance civil cases involving copyright disputes.
 
Article 3    Where a copyright administrative department conducts an investigation and punishment on an act of copyright infringement, and a party files an action with a people's court to subject the infringer to civil liability, the people's court shall accept the case.
When trying a case involving a civil dispute over an act of copyright infringement that a copyright administrative department has already handled, a people's court shall thoroughly examine the facts involved in the case.
 
Article 4    Civil actions involving copyright infringement shall be under the jurisdiction of the people's court at the place of infringement, the place where the infringing reproductions are stored, seized, or detained, or the defendant's domicile as stipulated in Articles 46 and 47 of the Copyright Law.
A place where the infringing reproductions are stored, as mentioned in the preceding paragraph, refers to a place where the infringing reproductions are stored or hidden in a large quantity or on a frequent basis; and a place of seizure or detainment refers to a place where customs, copyright, industry and commerce, and other administrative authorities seize or detain the infringing reproductions.
 
Article 5    If a joint action involving more than one place of infringement is filed against more than one defendant, the plaintiff may elect to submit to the jurisdiction of the people's court at one of the locations where one of the defendants committed the infringement. If an action is filed against only one of the defendants, the people's court at the place where that defendant committed infringement shall have jurisdiction over the action.
 
Article 6    Where a legally-established organization for collective copyright management files an action in its own name according to a copyright owner's written authorization, the people's court shall accept the action.
 
Article 7    A manuscript, original copy, lawful publication, copyright registration certificate, a certificate issued by an authentication authority, or a contract under which a right is entitled, etc. provided by a party may be used as evidence insofar as it is copyright-related.
A natural person, legal person, or other organization whose name is affixed to a work or product shall be deemed as the owner of the copyright or the copyright-related rights and interests, unless there is evidence to the contrary.
 
Article 8    Evidence may be a physical item, invoice, etc. that a party concerned or a person under the party's commission obtains from purchasing an infringing reproduction through an order or onsite transaction.
Where a notary, without indicating his or her identity to the alleged infringing party, faithfully issues a notary deed for the evidence obtained through a method specified in the preceding paragraph by the other party and for the process of proof, the notary deed shall be used as evidence, unless there is evidence to the contrary.
 
Article 9    "Made available to the public", specified in Item (1) of Paragraph 1 of Article 10 of the Copyright Law shall mean that a work is made available to non-specific persons by, or subject to the authorization of, the copyright owner, in which case public awareness thereof shall not constitute a condition.
 
Article 10    In determining the term of protection for a work under Paragraph 2 of Article 15 of the Copyright Law, the determination on the term of protection thereof shall apply Paragraph 1 of Article 21 of the Copyright Law, if the copyright owner is a natural person; or otherwise apply Paragraph 2 of Article 21 of the Copyright Law, if the copyright owner is a legal person or other organization.
 
Article 11    A people's court shall handle a dispute arising from the sequence in appearance of the authors' names in or on a work according to the following principles: the sequence in appearance of the authors' names shall be determined by an agreement (if any), or according to the efforts contributed to the creation of the work, the arrangement of the work, the numbers of strokes of the authors' surnames, etc., in the absence of an agreement.
 
Article 12    According to Article 17 of the Copyright Law, where the copyright to a commissioned work is vested in a commissioned party, the commissioned party shall be entitled to the right to use the work within an agreed scope of use. Where the parties fail to agree upon the scope of use for that work, the commissioned party may use the work free of charge to the extent that the use is specifically for creating a work on a commissioned basis.
 
Article 13    With respect to works such as a report or speech written by others, but reviewed, finalized, and publicized by oneself, the copyright in that work shall be vested in the reporter or speaker, except for circumstances set forth under Paragraph 3 of Article 11 of the Copyright Law. The copyright owner may pay appropriate remuneration to the writer.
 
Article 14    With respect to an autobiographical work completed with a particular character's experience as its materials as the parties agreed, copyright ownership shall be determined according to the parties' agreement thereon, if any; or otherwise the copyright shall be vested in that particular character, in the absence of that agreement. Where the writer or arranger has contributed effort to the completion of the work, the copyright owner may pay appropriate remuneration thereto.
 
Article 15    Where different authors create works with the same materials and the expression of the works is completed independently and demonstrates creativity, the authors shall each be entitled to independent copyright.
 
Article 16    Fact-only news disseminated through the mass media falls under the category of news on current events set forth in Item (2) of Article 5 of the Copyright Law. When disseminating or reporting news on current events selected and compiled by others, the source of the news shall be clearly indicated.
 
Article 17    Reprinting, as referred to in Paragraph 2 of Article 32 of the Copyright Law, shall mean a newspaper or periodical's publication of a work that was already published by a different newspaper or periodical. Those who reprint a work without clearly indicating the author of the reprinted work and the original newspaper or periodical as the source of that work shall be subject to civil liability such as eliminating the impact or making an apology.
 
Article 18    Artworks in outdoor public places, as referred to in Item (10) of Article 22 of the Copyright Law, shall mean sculptures, paintings, calligraphy, and other artworks placed or displayed at outdoor venues where social activities take place.

Where a person copies, paints, photographs, or visually records an artwork specified in the preceding paragraph, that person's completed work may be reused in a reasonable manner and to a reasonable extent, and the reuse shall not constitute infringement.

 
Article 19    Publishers or producers shall bear the burden of proof to show that their publishing and producing are legally authorized. Distributors or lessors shall bear the burden of proof to show that their distributed or leased reproductions are legally sourced. Where a proof fails, legal liability shall be borne in accordance with the corresponding provisions of Articles 46 and 47 of the Copyright Law.
 
Article 20    Where a publication infringes another's copyright, the publisher shall bear civil compensation liability according to the publisher's fault, degree of infringement, damage caused thereby, etc.
 
Where a publisher fails to perform the obligation of due care for matters such as the authorization granted to the publisher's act of publishing, the source or authorship of a work contributed to a publication edited by the publisher, or the content of such a publication, the publisher shall bear compensation liability in accordance with the provisions of Article 48 of the Copyright Law.
 
Where a publisher has performed the obligation of due care and the copyright owner does not have any proof showing that the publisher should have known that the publishing thereof involved infringement, the publisher shall bear civil liability, in accordance with the provisions of Paragraph 1 of Article 117 of the General Principles of the Civil Law, to stop the infringement and refund the amount of profit resulting from the infringement.
The publisher shall bear the burden of proof to show that it carried out the obligation of due care.
 
Article 21    With respect to a computer software user's commercial use of computer software, if authorization is omitted or the license scope is exceeded, the user shall bear civil liability in accordance with the provisions of Item (1) of Article 47 of the Copyright Law and Item (1) of Article 24 of the Computer Software Protection Regulations.
 
Article 22    Where a copyright transfer contract is not concluded in a written form, a people's court shall, in accordance with the provisions of Articles 36 and 37 of the Contract Law, examine whether or not the contract constitutes a formed contract.

 
Article 23    Where a publisher loses or damages a work delivered by a copyright owner for publishing, thus rendering the publishing contract impossible to perform, the publisher shall be subject to civil liability in accordance with the provisions of Article 53 of the Copyright Law, Article 117 of the General Principles of the Civil Law, and Article 122 of the Contract Law.
 
Article 24    A right owner's actual losses can be calculated by multiplying the right owner's unit profit sourced from distribution of the reproductions by either the right owner's decreased distribution volume for the reproductions, as a result of the infringement, or the infringing reproductions' sales volume. Where the decreased distribution volume is difficult to determine, the infringing reproductions' sales volume shall serve as the basis for determination.
 
Article 25    Where the right owner's actual losses or the infringer's illegal gains are impossible to determine, a people's court shall determine the compensation amount, either based on the party's request or the court's authority, with the provisions of Paragraph 2 of Article 48 of the Copyright Law applied thereto.
 
When determining the compensation amount, a people's court shall thoroughly take into consideration factors such as the type of the work involved, reasonable fees for use thereof, and the nature and consequences of the infringement.
The parties shall be permitted to reach an agreement on the compensation amount in accordance with Paragraph 1 of this Article.
 
Article 26    Reasonable expenses incurred for preventing infringement, as referred to in Paragraph 1 of Article 48 of the Copyright Law, shall include the reasonable expenses incurred by the right owner or authorized agent in conducting the investigation and evidence collection in respect to the infringement.
 
A people's court may, on the basis of a party's litigation petition and the particulars of the case, count any amount of lawyer's fee in the compensation value if that fee conforms to the provisions of the relevant State authorities.
 
Article 27    With respect to a case where an action is filed against an act of infringement occurring prior to the implementation of the Decision on the Amendment of the Copyright Law, if a people's court renders a judgment after the implementation of the Decision, the provisions of Article 48 of the Copyright Law may be used as a reference therein and applied thereto.
  
Article 28    The statute of limitation for instituting an action on copyright infringement is two years, to be commenced from the date when the copyright owner is or should be aware of the infringement.  If a right owner files an action after the expiration of the two-year period, and the infringement continues to exist at the time when the action is filed, a people's court shall, within the term of protection for the copyright, rule to order the defendant to cease the infringement. Compensation for the infringement shall be calculated starting from two years before the date when the copyright owner filed the action with the people's court.
 
Article 29    With respect to any infringement provided for in Article 47 of the Copyright Law, a people's court may, at the party's request, impose a civil sanction in accordance with the provisions of Article 134 of the General Principles of the Civil Law, in addition to subjecting the infringing party to civil liability. The sum of the fine may be determined by referring to the relevant provisions of the Copyright Law Implementing Regulations of the People's Republic of China.
If a copyright administrative department has already imposed an administrative punishment on an act of infringement, a people's court will not impose a civil sanction against that same act.
 
Article 30    If an act of infringement occurs before 27 October 2001, and a party files an application with a people's court after 27 October 2001 for an order to cease the infringement or for evidence preservation, the provisions of Articles 49 of the Copyright Law shall apply.
 
Where a people's court takes pre-action measures, the provisions of the Interpretation of the Supreme People's Court on the Application of Law on Pre-Litigation Cessation of Infringement of the Exclusive Right to Use a Registered Trademark and on Evidence Preservation shall be used as a reference therein.
 
Article 31    Unless otherwise specified in the Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of Law in the Trial of Civil Cases Involving Copyright Disputes, with respect to a civil case related to a copyright dispute accepted by a people's court after 27 October 2001, the unrevised Copyright Law shall be applicable if it involves civil conduct occurring before that date; or otherwise, the revised Copyright Law shall be applicable if it involves civil conduct occurring after that date, or civil conduct occurring before that date but continuing until after that date.
 
Article 32    Where any previously enacted provision in relevance is inconsistent with this Interpretation, this Interpretation shall prevail.