Administrative Protection of Copyright on the Internet Procedures

(Issued by the National Copyright Administration and the Ministry of Information Industry on April 30 2005 and effective as of May 30 2005.)

Article 1: These Procedures have been formulated pursuant to the PRC Copyright Law and relevant laws and administrative regulations in order to strengthen the administrative protection of the right of dissemination over information networks in the course of internet information service activities (the Right of Dissemination) and regulate administrative law enforcement.

Article 2: These Procedures shall govern the uploading, storage, linking, search and other functions of such contents as works, audio and video products, etc. automatically provided over the internet as instructed by an internet content provider in the course of internet information service activities, without in any way editing, revising or selecting the stored or transmitted content.

The direct provision of internet content in the course of internet information service activities shall be governed by the Copyright Law.

For the purposes of these Procedures, the term 'internet content provider' means an internet user that disseminates relevant content on the internet.

Article 3: The copyright administrative departments at each level shall give administrative protection to the Right of Dissemination in accordance with laws, administrative regulations and these Procedures. The State Council department in charge of information industry and the telecommunications administration authorities of the provinces, autonomous regions and municipalities directly under the central government shall give their cooperation in relevant work in accordance with the law.

Article 4: The imposition of administrative penalties by copyright administrative departments for infringement of the Right of Dissemination shall be governed by the Administrative Penalties in Connection with Copyright Implementing Procedures.

The copyright administrative department of the place where an infringement of the Right of Dissemination occurred shall have jurisdiction. The place where the infringement occurred includes the place where the server and other such equipment used to provide the internet information service activities mentioned in Article 2 hereof is located.

Article 5: If a copyright holder discovers that content disseminated on the internet infringes his or her copyright, the internet information service provider or other organization appointed by it (hereinafter collectively referred to as an Internet Information Service Provider) shall promptly take procedures to remove the relevant content after the copyright holder issues it a notice, and shall preserve the copyright holder's notice for six months.

Article 6: After the Internet Information Service Provider receives the notice from the copyright holder, it shall record the content of the provided information, the date of release and the internet address or domain name. The internet access provider shall record the internet content provider's time of access, user account number, internet address or domain name, principal telephone number, etc.

The records mentioned in the preceding paragraph shall be preserved for 60 days, and shall be provided to the copyright administrative department when it conducts an inquiry.

Article 7: If an Internet Information Service Provider removes relevant content pursuant to a notice from a copyright holder, the internet content provider may issue a counter notice to both the Internet Information Service Provider and the copyright holder explaining that the removed content does not infringe copyright. After the issuance of the counter notice, the Internet Information Service Provider may promptly restore the content that was removed and shall not bear administrative or legal liability for restoring such content.

Article 8: The copyright holder's notice shall contain the following information:

(1) proof of ownership of the copyright that the alleged infringing content infringed;

(2) explicit proof of his or her identity, domicile and method of contact;

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

(4) proof evidencing the infringement of his or her copyright; and

(5) a statement of the truthfulness of the contents of his or her notice.

Article 9: The internet content provider's counter notice shall contain the following information:

(1) explicit proof of his or her identity, domicile and method of contact;

(2) proof of the lawfulness of the content that was removed;

(3) the location of the removed content on the internet; and

(4) a statement of the truthfulness of the contents of his or her counter notice.

Article 10: The notice of the copyright holder and the counter notice of the internet content provider shall be in written form.

If the notice of the copyright holder or the counter notice of the internet content provider do not contain the information specified in Article 8 or Article 9 hereof, it shall be deemed not to have been issued.

Article 11: If an Internet Information Service Provider is aware that an internet content provider has infringed the copyright of another by way of the internet, or although it does not have such knowledge, it fails to take procedures to remove the relevant content after receipt of a notice from the copyright holder and, additionally, damages the public interest, the copyright administrative department may order it to cease the infringement pursuant to Article 47 of the PRC Copyright Law, and impose the following administrative penalties:

(1) confiscation of its illegal income; and

(2) fine of not more than three times its illegal turnover; if the illegal turnover is difficult to calculate, it may impose a fine of not more than Rmb100,000.

Article 12: If there is no evidence indicating that an Internet Information Service Provider was aware that the fact of infringement exists, or if it took procedures to remove the relevant content after receipt of a notice from the copyright holder, it shall not bear administrative or legal liability.

Article 13: When investigating and handling a Right of Dissemination case, the copyright administrative department may require the copyright holder to provide the necessary materials in accordance with Article 12 of the Administrative Penalties in Connection with Copyright Implementing Procedures, the notice he or she issued to the Internet Information Service Provider and proof that the Internet Information Service Provider failed to take procedures to remove the relevant content.

Article 14: If an Internet Information Service Provider is characterized by either of the circumstances specified in Article 11 hereof and is deemed by the copyright administrative department to specialize in engaging in pirating activities, or is characterized by other serious circumstances, the State Council department in charge of information industry or the telecommunications administration authority of the province, autonomous region or municipality directly under the central government shall deal with the matter in accordance with relevant laws and administrative regulations. The internet access provider shall cooperate in effecting the appropriate handling procedures in accordance with the notice of the State Council department in charge of information industry or of the telecommunications administration authority of the province, autonomous region or municipality directly under the central government.

Article 15: If an Internet Information Service Provider fails to perform its obligation specified in Article 6 hereof, the State Council department in charge of information industry or the telecommunications administration authority of the province, autonomous region or municipality directly under the central government shall give it a warning and may impose a fine of not more than Rmb30,000.

Article 16: If a copyright administrative department, in the course of investigating and handling a Right of Dissemination case, discovers that an act of the Internet Information Service Provider may constitute a criminal offence, it shall transfer the case to the judicial department in accordance with the Transfer of Suspected Criminal Offence Cases by Administrative Law Enforcement Authorities Provisions for pursuit of the Internet Information Service Provider's criminal liability in accordance with the law.

Article 17: These Procedures shall govern the administrative protection of the rights of such holders of related rights as performers, producers of audio and video products, etc. that disseminate their performances or audio and video products to the public via the internet.

Article 18: The National Copyright Administration and the Ministry of Information Industry are in charge of interpreting these Procedures.

Article 19: These Procedures shall be effective as of May 30 2005.