(By Albert Chen) In January 2013, China’s State Council revised several administrative regulations regarding computers and intellectual property rights, specifically the Computer Software Protection Regulations, the Regulation on Protection of the Right to Network Dissemination of Information, the Implementing Regulations of the Copyright Law, and the Regulation on the Protection of New Varieties of Plants. These revisions mainly focus on the punishments for violation of regulations, and they came into effect on March 1, 2013.

The following are the main contents of the revision to these regulations:

I. Computer Software Protection Regulations

The main revision of this regulation can be found in Paragraph 2 of Article 24. The revised article states “infringers who commit the acts under subparagraph 1 or 2 of the preceding paragraph may additionally receive a fine of RMB 100 yuan per copy or a fine greater than one time but not exceeding five times the value of the copies. Infringers who commit the act under subparagraph 3, 4, or 5 of the preceding paragraph may additionally receive a fine not exceeding RMB 200,000 yuan.” The original clause of the previous regulation stated that “infringers who commit the acts under subparagraph 1 or 2 of the preceding paragraph may additionally receive a fine of RMB 100 yuan per copy or a fine not exceeding five times the value of the goods. Infringers who commit the acts under subparagraph 3, 4, or 5 of the preceding paragraph may additionally receive a fine not exceeding RMB 50,000 yuan.”

Compared to the original regulation, the new article has increased the amount of the fine, specifically: 1) For “copying or partially copying the copyright holder’s software;” “publishing, leasing, or broadcasting on networks of the copyright holder’s software to the public;” and related situations, the fine imposed by the administration has been given a minimum of at least the value of the illegal gains in addition to the original regulation of “no more than five times” regulation. 2) For “intentionally avoiding or destroying technical measures taken by the copyright holder to protect its software copyrights,” “intentionally deleting or changing the authority to manage the electronic information,” and “transferring or licensing the exercise of the copyright holder’s copyright to others” or other behaviors, the relevant fines have increased from RMB 50, 000 yuan to RMB 200, 000 yuan.

We update the regulation as follows:

Computer Software Protection Regulation

II. The Implementing Regulations of the Copyright Law

The newly revised Implementing Rules of the Copyright Law has also increased the fine amounts for infringement under Article 48 of the Copyright Law. The revised fines appear in Article 36, which reads:

“As to the infringing acts mentioned in Article 48 of the Law, which harm public interests, when the illegal gains exceed RMB 50, 000 yuan, the administrative copyright department may issue a fine of no less than one time but no more than five times the illegal gains. When there are no illegal gains or the amount is less than RMB 50,000 yuan, the administrative copyright departments may, based on the degree of infringement, issue a fine of no more than RMB 250,000 yuan.”

In the original regulation, the punishment was only no more than three times illegal gains, and there was no minimum fine amount. At the same time, when there are no illegal gains or the gains are below RMB 50,000 yuan, the fines have been amended from no more than RMB 100,000 yuan to no more than RMB 250,000 yuan.

We update the regulation as follows:

Implementing Regulations of The Copyright Law

III. The Regulation on Protection of the Right to Network Dissemination of Information

The revision of the Regulation on Protection of the Right to Network Dissemination of Information mainly involves Article 18 and Article 19. According to the decision made by the State Council to amend the regulation, the original clauses that “impose fine of no more than RMB 100,000 yuan” have all been revised to read “when the illegal gains exceed RMB 50,000 yuan, the administrative departments may impose a fine of no less than one time but no more than five times the illegal gains. When there are no illegal gains or where the amount is less than RMB 50,000 yuan, the administrative copyright departments may, based on the infringement, fine no more than RMB 250,000 yuan.”

We update the regulation as follows:

The Regulation on Protection of the Right to Network Dissemination of Information

IV. Regulation on the Protection of New Varieties of Plants

Just like the Regulation on Protection of the Right to Network Dissemination of Information, the Regulation on the Protection of New Varieties of Plants has also added penalties for situations where there are no illegal gains. The revision mainly concerns Article 39, Paragraph 3 and Article 40. According to the previous regulation, the fine amount was five times of the value of the product. In the new regulation, when the value of the product cannot be determined, the administrative authorities may, based on the severity of the circumstances, impose a penalty of no more than RMB 250,000 yuan. The detailed revisions are as follows:

Paragraph 3 of Article 39:

“When the administrative departments of agriculture and forestry of the people’s governments above provincial level handle the different cases within their authority, they may, for the purposes of safeguarding the public interests, order the infringer to stop the infringing act and confiscate the unlawful earnings and new plant production materials. When the value of the products exceeds RMB 50,000 yuan, the administration departments may impose a fine of no less than one time but no more than five times the amount of illegal gains. When the value of the product cannot be determined or the amount is less than RMB 50,000 yuan, the administrative copyright departments may, based on the severity of the circumstances, impose a fine of no more than RMB 250,000 yuan.”

Article 40:

“When a protected variety is counterfeited, the administrative departments of agriculture and forestry of the people’s governments above county level shall order the party concerned to stop the counterfeiting act, confiscate the unlawful earnings and the propagating materials, and impose a fine at least one time but not exceeding five times of the unlawful earnings. When value of the products exceeds RMB 50,000 yuan, the administration departments may impose a fine of no less than one time but no more than five times the product value. When the product value cannot be determined or the amount is less than RMB 50,000 yuan, the administrative copyright departments may, based on the severity of the situation, impose a fine of no more than RMB 250,000 yuan. If the situation is serious and constitutes a crime, criminal liability is investigated according to law.”

We update the regulation as follows:

REGULATIONS OF THE PEOPLES REPUBLIC OF CHINA ON THE PROTECTION OF NEW VARIETIES OF PLANTS

In conclusion, the above revisions concerning the intellectual property on the internet and in new plant varieties do not involve many articles and mainly focus on penalties. These revisions show, however, that the administrative organs represented by the State Council are taking a stricter attitude towards infringement of intellectual property.

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