Haworth & Lexon Law Newsletter
No.09, 2002 (Total:No.13) September 20th, 2002
Edited by Haworth & Lexon
★The New Measures on Administration of Domain Names in China will enter into force on Sept.30, 2002
★The Introduction of the Implementing Regulations for the Copyright Law
★ Latest Laws and Regulations
1 Provisions of the Supreme People's Court on Certain Questions Concerning the Hearing and Handling of International Trade Administrative Cases
1 Detailed Rules for the Implementation of the Law of the People's Republic of China to Administer the Levying and Collection of Taxes
1 Measures on Protection of Traditional Industrial Arts in Beijing
The New Measures on Administration of Domain Names in China will enter into force
The Ministry of Information Industry (MII) issued Measures of the People's Republic of China on Administration of Internet Network Domain Names which will take effect on Sept.30, 2002. This is an active measure taken by the government in order to promote the domain name administration system in line with the new development trend of international domain name registration administration and the situation that a lot of domestic users are registering domain name under general top level domain (gTLDs) like .com, .net, .org, etc.
Since ".CN" was registered in the International Internet Network Domain Name Server in 1990, China's domain name administration model has varied from professional self-administration, private consulting administration to government dominant administration. The issuance and enforcement of Temporary Measures of the People's Republic of China on Administration of Internet Network Domain Name Registration in May, 1997 set up China's domain name registration system and administration system. The Measures combined domain name administration with service and put a lot of limits on the domain name registration. It relieved the conflict between domain name and other priority rights, although under gTLDs the examination is not strict in actual operation, but resulted in that lots of domestic network companies registered domain name. The loss of domain name registration will result in the threat of nation safety, the waste of international communications resources, the loss of foreign exchange and the damage of agglomeration and nation status. In addition, in order to promote fair competition, ICANN re-modified the international domain name registration system in 1999 and set up the system of registration administrative agency and registration service agent. The proportion of the domestic network companies' registration under gTLDs and other country-code TLDs (ccTLDs) like .cc, .tv, etc. with the foreign agents goes up rapidly. Meanwhile, because of the rapid development of Chinese domain name and the stipulation of international multi-language classification technology standard, it is necessary to bring the non-CN domain name registration service into the administration range.
The new Measures will apply to all the domestic registered domain names, not only the ".CN" domain name. It stipulates the model of separation of the registration administration and service. The domain name administration agency will select the domain name registration service agency in accordance with non-discrimination, and will put the domain name registration service agency on records in order to strengthen the administration.
The new Measures only lay some principle regulations on the domain name registration. The domain name system will be publicized by the Ministry of Information Industry (MII) in the form of bulletin and the relevant regulations will be laid down by domain name registration administration agency (CNNIC). The articles of only permitting domestic legal person registration, only permitting registration for domain name under third level, the name limits and the non-negotiable limits stipulated in the former temporary measures will not be found again in the new Measures. The MII and CNNIC will issue some relevant detailed rules concerning the following matters: 乴ifting up the limits on domain names and opening up the domain name resources; ?opening up the domain names under second level in the proper form, opening up individual domain names and empoldering the domain name resources; ?simplifying the procedure of domain name registration and putting registration online in practice to improve the work efficiency; "lowering the registration fee .
The article of domain name disputes settlement has been added in the new Measures and the private disputes settlement system has been come up with referred to the international practice. When applying for a domain name, the applicant will make a contract with the domain name registration service agency. It will be stipulated in the contract that if the domain name dispute occurs, the applicant (the domain name owner) will accept the jurisdiction of domain name disputes settlement system over him.
The Introduction of the Implementing Regulations for the Copyright Law
The Implementing Regulations for the Copyright Law of the People's Republic of China were promulgated by the State Council on August 2, 2002 and will come into force on September 15, 2002. The Implementing Regulations supplement and clarify the Copyright Law in the following:
I. The Implementing Regulations provide definitions for numerous terms used in the Copyright Law.
Article 2, 3, 4 and 5 of The Implementing Regulations provide clear definitions for "works", " creation", "different kinds of works" and "news of current events" respectively. For example, article 2 points out that the term "works" used in the Copyright Law refers to original intellectual creations in the literary, artistic and scientific domain, in so far as they are capable of being reproduced in a certain tangible form, that is to emphasize the work should be capable of being reproduced in a certain tangible form. Again, article 5 states that "News of current events refers to the mere report of facts or happenings conveyed by such media as newspapers, periodicals and radio and television stations". However, this article doesn't clarify whether the mere report of facts conveyed by Internet should be referred as news of current events. Article 11, 26 and 29 of Implementing Regulations define the terms of "tasks", "the material and technical resources", "rights related to copyright" and "being out of print" respectively.
II. Implementing Regulations further clarify the rules for exercising copyright.
Article 9 of Implementing Regulations states that, the benefit from using of joint authorship work should be assigned to every co-author, though he/she may not agree to use in such way.
Article 13, 14 and 15 provide the rules for exercising copyright if the author is unknown, the co-author died and the author died.
It is also further clarifies the rules for protecting the work of foreigner and stateless person and rules that if their work is firstly published in China or published in China within 30 days after published abroad, their work shall be protected from the first date of publishing.
It is worth pointing out that, in regarding to copyright licensing contract, the old regulation provide that if there is no indication on the exclusive rights, the licensee only get the non-exclusive rights. However, in the article 24 of the new implementing regulations, "if there is no agreement or no clear indication on the exclusive rights, the licensee is regarded to have the right to exclude any person including the author to use the work by the same method", that is to say the licensee get the exclusive rights.
III. Supplement the methods for protection of copyright.
The regulations provide two principles in regarding to copyright fair use: A. shall not harm the normal exploitation of the works concerned and B. shall not unreasonably prejudice the legitimate interests of the copyright owners.
To use works of other persons by virtue of Copyright Law, pursuant to the new regulations, the user is required to pay remuneration to the copyright owner within 2 months after using the work. The regulations also point out the remuneration standard should be stipulated and publicized jointly by the authority of copyright and price.
Under the circumstance that the infringing act also be harm to public interest, the regulations states that the copyright administrative authority "may impose a fine three time of unlawful income; if the unlawful income is hard to calculate, may impose a fine under RMB 100,000."
Meanwhile, the implementing regulation also clarify that the copyright administrative authority of State Council shall investigate and redress the infringements against copyright that are of nationwide influence. So the general infringements against copyright where a foreign party is involved shall be under the authority of local copyright administrative department instead of the copyright administrative authority of State Council.
Latest Laws and Regulations
Provisions of the Supreme People's Court on Certain Questions Concerning the Hearing and Handling of International Trade Administrative Cases was issued on Aug.27, 2002 and will take effect on Oct.1 this year. According to the Regulations, if an individual, a legal person or any other organization considers that his or its lawful rights and interests have been violated by a specific administrative act relating to international trade of an administrative organ or its personnel, it shall have the right to bring a suit before a people's court in accordance with Administrative Procedure Law and other relevant regulations and rules. The administrative cases of the international trade in goods, the administrative cases of the international trade in service, the administrative cases of the trade-related intellectual property rights and other international trade administrative cases are defined as international trade administrative cases. The Regulations also state that the intermediate courts have jurisdiction as courts of first instance over the international trade administrative cases. If the relevant party acts before the Regulations come into force while the administrative authorities make the decision after the Regulations took effect, the party can also begin an administrative suit in accordance with the new Regulations. In addition, the international trade administrative cases related to Hongkong, Macao and Taiwan can also be dealt with in accordance with the Regulations.
The State Council issued Detailed Rules for the Implementation of the Law of the People's Republic of China to Administer the Levying and Collection of Taxes which will come into force on Oct.15, 2002. The stipulations in the new Detailed Rules are more all-round, especially in tax administration and the prevention of taxpayers' tax evasion in which there are some more severe legal liability stipulated. In order to strengthen the taxation authority's supervision over the taxpayers, the new Rules stipulated strict taxation registration system. The Rules not only stipulate the time limit on taxation registration, but also state that the taxpayer must present a tax registration certificate when carrying out the following matters: 乷pening an account; ?applying for tax reduction, exemption or refunds; ?applying for an extension of the tax declaration or the tax payment; "purchasing invoices; ?shy;obtaining a certificate for tax revenue administration of outside operations; ?applying for shutout or other tax related matters. As far as the administration of accounting books and vouchers are concerned, the use of tax control device is stipulated. The new Rules have also stipulated more effective methods in order to avoid affiliated enterprises' illegal tax evasion and state that taxation authority can adjust the amount of taxable income in accordance with some relevant regulations.
The Beijing Municipal Government issued Measures on Protection of Traditional Industrial Arts in Beijing which has come into force on Sept.10, 2002. According to the Measures, the authentication system will be carried out on traditional industrial arts category, traditional industrial arts workmanship, traditional industrial arts curiosa, industrial arts master and folk industrial arts master. The application documents that should be presented are also stipulated, and the industrial arts deliberation committee has been set up in accordance with the Measures. The municipal economic superintendence section will issue the certificate to the traditional industrial arts category, traditional industrial arts workmanship, traditional industrial arts curiosa, industrial arts master and folk industrial arts master that have been authenticated and they will also be publicized. In addition, the Measures state that Beijing will set up a fund for the protection and development of traditional industrial arts, and will give honor and reward to the individuals and the units who make outstanding contributions to the protection and development of traditional industrial arts.