Copyright Administrative Complaints Guide
Release Time：
2006-06-01
In accordance with the relevant provisions of the Law of the People's Republic of China on Administrative Penalties, the Copyright Law of the People's Republic of China and the Measures for the Implementation of Administrative Penalties for Copyright, the National Copyright Administration has compiled the Guide on Administrative Complaints against Copyright (hereinafter referred to as the Guide). The purpose is to guide copyright owners and copyright-related right holders (hereinafter referred to as "right holders") how to complain to administrative authorities about infringements, so as to better protect the rights and interests of right holders.
1. On judicial protection and administrative protection
China's copyright protection system provides judicial and administrative protection to rights holders.
According to the judicial protection system, after the right holder initiates a civil lawsuit, the judicial organ will investigate the civil liability of the infringer according to law; When the infringement is suspected to constitute a crime, the judicial organ will investigate the criminal responsibility of the infringer according to law after the public prosecutor or the right holder initiates a criminal lawsuit. The civil Procedure Law of the People's Republic of China or the Criminal Procedure Law of the People's Republic of China shall be applicable to the litigation procedures provided for in the Civil Procedure Law of the People's Republic of China.
According to the administrative protection system, in the case of infringement that damages the public interest, the administrative organ shall investigate the administrative responsibility of the infringer according to the Law after a complaint by the right holder or a report by an insider, or after an investigation by the administrative organ on its own.
2. On the administrative authorities that accept complaints
The organ accepting administrative complaints about copyright shall be the copyright administrative department at all levels. After discovering an infringing act, the right holder may, according to the circumstances, file a complaint with the copyright administration department in the place where the infringing act was committed or the result of the infringement occurred (including the place where the infringing copy is stored, the place where it is sealed up and detained according to law, the place where the infringing website server is located, and the place where the host of the infringing website is domiciled or the main place of business). In some cases, the copyright administration can legally refer the complaint to another copyright administration.
3. Regarding the Complainant
The complainant shall be a Chinese citizen, legal person or other organization enjoying copyright or copyright-related rights under the Copyright Law of the People's Republic of China, or a foreigner or stateless person, or a user enjoying the exclusive right of use according to law, or an interested person. The insider may report the infringement to the copyright administration department.
4. Scope of complaint
The infringing acts involved in the complaint shall be those listed in Article 47 of the Copyright Law of the People's Republic of China or Article 24 of the Regulations on the Protection of Computer Software, which also damage the public interest.
Even if the right holder does not know whether the infringing act harms the public interest, he may file a complaint with the copyright administration department, which shall examine and make a judgment.
5. Limitation of complaints
Complaints should be filed with the copyright administration within two years from the date of the infringement. The copyright administration department shall no longer accept complaints made two years after the date of the infringement. For a continuous or continuing infringement, the two-year period shall be calculated from the date of termination of the infringement.
6. Complaint materials
When lodging a complaint with the copyright administration department, the complainant shall submit the following materials: (1) An application for investigation, which shall state the names (or names) and addresses of the complainant and the respondent, the date of the complaint, and the main facts and reasons on which the application for investigation is based; (b) the complainant's identity certificate (if the complainant entrusts an agent to make a complaint, it shall submit both the power of attorney and the agent's identity certificate); (3) prima facie evidence of the attribution of the rights, such as the original manuscript of the work, the work published under the name of the complainant, the registration certificate of the work, the contract for obtaining the rights, or the certificate issued by the certification body; (4) Evidence of infringement, including infringing copies, accounts, contracts, processing and production of documents related to the infringement, notarial certificates proving the infringement, relevant photographs, etc.
The complaint materials may be submitted directly to the copyright administration department or by mail.
If the text of the complaint submitted by the complainant is in a foreign language, it shall be accompanied by a corresponding Chinese translation.
7. Processing results
After the complainant complains, the copyright administration department will review the complaint materials and notify the complainant whether to accept the complaint. In the case that the complainant is not accepted, the copyright administration department shall explain the reasons in the notice.
After accepting the complaint, the copyright administration department will investigate the suspected infringement and make one of the following decisions based on the investigation results: (1) impose administrative punishment on the infringer; (2) If the infringement is minor, administrative penalties may not be imposed; (3) If the infringement facts are not established, no administrative penalty shall be imposed; (4) If it is suspected of constituting a crime, it shall be transferred to a judicial organ for handling.
The administrative penalties that the copyright administration department may impose on the infringer include: (1) ordering the infringer to stop the infringing act; (2) confiscation of illegal gains; (3) Confiscation or destruction of infringing copies; (4) a fine; (5) If the circumstances are serious, the materials, tools and equipment mainly used for making infringing copies shall be confiscated; (6) other administrative penalties prescribed by laws and regulations.
If the complainant is not satisfied with the decision of the copyright administration department, he may apply for administrative reconsideration or bring an administrative lawsuit in accordance with law. To apply for administrative reconsideration or bring an administrative lawsuit, the relevant procedures stipulated in the Law of the People's Republic of China on Administrative Reconsideration or the Administrative Procedure Law of the People's Republic of China shall be applied accordingly.
8. Other administrative protection
If the right holder discovers that the infringing copy will be imported or exported from the Chinese Customs, he may request the Customs to take corresponding protective measures in accordance with the Regulations of the People's Republic of China on the Customs Protection of Intellectual Property Rights.
Source: National Copyright Administration
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