Provisions of Shenzhen Municipality on Intellectual Property Protection of Internet Software
From:
Justice Bureau of Shenzhen Municipality
Updated: 2019-08-06 15:08
(Promulgated by Decree No. 204 of Shenzhen Municipal People’s Government on June 30, 2009)
Article 1 For the purpose of strengthening the intellectual property protection of computer software on the circumstance of Internet (hereinafter referred to as software), safeguarding the legal rights and interests of the owners of software intellectual property, promoting the development of the software industry, these provisions are formulated in accordance with relevant laws and regulations, and in light of the actualities of Shenzhen Municipality.
Article 2 These provisions shall apply to the software that is operated on a network server, a computer terminal or other terminal equipment via the Internet in Shenzhen Municipality.
No entity or individual may infringe upon the legal rights and interests of the owners of software intellectual property via the Internet.
Article 3 The administrative department of intellectual property right (copyright) of Shenzhen Municipality shall be the competent authority of intellectual property rights of software on the Internet (hereinafter referred as to the competent authority), and shall be responsible for the organization of these provisions’ implementation.
Departments of public security, culture, industry and commerce and telecommunication administration shall, in accordance with the stipulated duties and responsibilities, make investigation into and petition on the act violating these provisions according to law, with the prohibition that penalties more serious than fines may not be imposed on the same illegal act by the relevant department for two or more times.
Telecommunication service enterprises shall assist the competent authority and other relevant municipal departments in carrying out investigation and petition on the acts violating these provisions according to law.
Article 4 Except the circumstances prescribed in laws or regulations under which exploitation is not required to be permitted, using and disseminating software of others shall be permitted by software copyright owners ahead.
Article 5 When clearly knowing that a software is an infringement software affirmed by judicial authorities or the competent authority, no entity or individual may upload it to the Internet, nor provide facilities including place, equipment, information memory space or instruments, or help others to upload such software.
Article 6 For the purpose of protecting software copyright and relevant rights and interests, obligees may take technical measures to prevent others to contact or use the works without permission.
The term of technical measures mentioned in the preceding paragraph refers to the effective technology, device or component through which the software is provided to the public via information network, or the effective program, device or component that can be used to prevent or restrict others from installing or using software without the obligee’s permission, including:
1. License for installing the software;
2. License for using and registering the software;
3. Communication protocol of Internet software used for testing and verifying the validity of user, or recognizing the version of software;
4. Electronic watermark, digital signature, digital fingerprinting technology, timestamp certificate, digital releasing certificate used for distinguishing works and copyright owners;
5. Other legal forms adopted by the obligee.
License for installing, using or registering software is generally called as the license of software application.
Article 7 Every one of the following actions shall be considered as destroying or evading technical measures:
1. To produce or release the license of software application without permission;
2. To disclose the license of software application without permission;
3. To disturb, destroy or forge the communication protocol of software;
4. To remove or modify the electronic watermark, digital signature, digital fingerprinting technology, timestamp certificate or digital releasing certificate;
5. To evade or destroy the technology or equipment for preventing piracy or preventing copying;
6. Other illegal actions of evading or destroying technical measures.
Anyone who deliberately destroys or evades technical measures to infringe upon the trade secret of a right owner shall be dealt with by the competent authority or the department of industry and commerce according to law.
Article 8 A copyright owner may prescribe whether the license of software application can be transferred or not, and the transferring conditions in the using contract of software. Or without the satisfaction to the transferring conditions prescribed in the contract, the user of license of software application may not transfer or reveal the license of software application to a third party.
If the copyright owner discovers another party transferring the license of software application or releasing relevant information via the Internet without permission, he may require the relevant network service provider to delete the said information by technical measures. The network service provider shall delete the relevant information in time.
Article 9 It is forbidden to produce, release and disseminate any program for stealing or creating the license of software application, or for evading the verification program of the license of software application.
Article 10 Without the permission of the copyright owner, no one may increase, decrease or modify the function or operating effect of the owner’s software for application by illegal ways, such as modifying and forging the operation order, data or data packet of software, nor operate or disseminate the program which is made for the illegal purposes mentioned above to the public via the information network.
Article 11 Without the permission of the copyright owner, no one may destroy the technical protective measures of an Internet game software which is legally published, nor modify its data, set a private server, make recharging cards for the game, operate the Internet game or allow others to operate the game, unless the laws or regulations provide otherwise.
Article 12 Without the permission of the copyright owner, no one may write any plug for an Internet game, nor allow others to operate the game unless the laws or regulations provide otherwise.
Article 13 The competent authority or the law enforcement departments of culture, industry and commerce, public security may, when investigating into and giving petition to relevant cases, require the relevant network service provider to provide information, such as the name/ title, contact information, and the web addresses of the suspected right infringer. The network service provider shall provide the required information in time.
The competent authority or the law enforcement departments of culture, industry and commerce, and public security may, after making a decision to stop the infringement or other violations, notify the relevant network service provider to take technical measures to cut off the links to the relevant works, performance and audio-visual products, or to delete the relevant works, performance and audio-visual products within a prescribed time limit. The network service provider shall cooperate and prevent further infringements from others.
Article 14 The competent authority shall order the violator to make correction within a limited time and impose punishments according to the following rules:
1. The violation to the provisions of Article 5 shall be fined 30,000 yuan.
2. The violation to the provisions of Article 7 shall be fined 50,000 yuan.
3. The violation to the provisions of Paragraph 1 of Article 8 shall be fined 5,000 yuan.
4. The violation to the provisions of Paragraph 2 of Article 8 shall be fined 10,000 yuan.
5. The violation to the provisions of Article 9 shall be fined 50,000 yuan.
6. The violation to the provisions of Article 10, Article 11 or Article 12 shall be fined 100,000 yuan.
If there is any illegal gaining in the violation mentioned in the preceding paragraph, the illegal gaining shall be confiscated simultaneously in accordance with law.
If the violation is serious and is suspected to constitute a crime, the case shall be transferred to the judicial organ according to law.
Article 15 Where there is a violation of these provisions, the copyright owner may conciliate with the infringer, or may apply to the competent authority for mediation.
Article 16 The competent authority shall conduct inspections and supervisions of law enforcement periodically or non-periodically according to law, and is prohibited to inform the unit under inspection ahead under any one of the following circumstances:
1. There is a report or complaint;
2. There is a special activity for rectification;
3. The inspection may have significant impacts on the society.
Article 17 Under any one of the following circumstances，the competent authority shall write the information into the credit files for intellectual property of Shenzhen Municipality:
1. Refusing to stop infringement after being ordered to do so within a time limit by the competent authority;
2. Refusing to accept the investigation, refusing to cooperate in the investigation and evidence collections, or refusing to submit documents or materials which are required by the investigation and evidence collections;
3. Failing to take relevant technical measures in time as required by the notice from the competent authority or other relevant authorities such as the department of public security, industry and commerce, and thereof causing the failure to stop the infringement;
4. Being petitioned by the competent authority because of violating these provisions.
Article 18 Where a staff member of the competent authority or another relevant department fails to fulfill his responsibilities according to these provisions, the authority of appointment and removal or the supervisory organ shall impose administrative liabilities on him according to law. If the violation is suspected to constitute a crime, the case shall be transferred to the judicial organ according to law.
Article 19 If any party is not satisfied with the decision of administrative penalty made by the competent authority or another relevant department, the party may apply for administrative reconsideration or file administrative litigation to the people's court according to law.
Article 20 These provisions shall take effect as of August 1, 2009.