REGULATIONS ON THE PROTECTION OF COMPUTER SOFTWARE CAME INTO EFFECT ON JANUARY 1, 2002

The new Regulations on the Protection of Computer Software were promulgated by the State Council on December 20, 2001 and became effective on January 1, 2002. In the Regulations, some major changes are made to have it conformed to the new Copyright Law.

Term of protection extended. The term of protection of the computer software is 50 years automatically instead of 25 years plus extension of another 25 years at the request of the copyright owner.

Protection of foreign computer software further clarified. For the computer software of nationals whose home countries are not members of the international treaties to which China is a member, if first published in a member country, or first published in a member country and a non-member country simultaneously protection shall be granted.

Copyright further specified. In the new Regulations, rental right and the right of disseminating computer software on network are protected for the first time.

Registration no longer compulsory. For Chinese companies and individuals, registration of computer software is now voluntary and is no longer the prerequisite to enforce copyright through administrative authority. The registration certificate is now a prima fiche evidence of what has been registered. Licensing agreements and assignments may also be registered voluntarily.

Copyright transferable and inheritable. The copyright owner may transfer to others part or all of the rights in a piece of computer software. And the copyright except the right of authorship may be inherited by his heir after the death of a copyright owner (natural person)."Fair use" restricted to the least possible.

"Fair use" of copyrighted software is now restricted to the least possible. For example, use of copyrighted software by government agencies in performing official duties is no longer a fair use, and making copies for non-commercial purposes such as classroom teaching and scientific research is not taken as fair use.

Damages now including costs. Damages shall include reasonable costs for stopping the infringement. In case it is difficult to determine the loss suffered by the infringed or the profit earned by the infringer, a court may, according to the actual scenario of the case, determine an amount of up to RMB500,000 as compensation for the damage. Preliminary injunction now available. Preliminary injunction is now available. That is, where a owner of the copyright has evidence to prove that a third party is infringing or about to infringe his rights, and if such act is not timely stopped, is likely to cause irreparable damage, he may, before initiating legal proceedings, request the court to issue an order to stop such act and to preserve the property concerned.