How to Make Administrative Complaints against Knockoff Software in China?

By Luo Yanjie

According to China “copyright law”, commercial using pirated software is a typical act of infringement. We generally recommend the right owner taking civil action against pirates. But in many cases, administrative complaints against them will be more efficient because it is hard to get “evidences”. Today, we would like to introduce how to start a copyright infringement complaint inChina.

I. Legal basis of administrative complaints to pirates users

The current “copyright law” article 47 provides:“Any of the following acts of infringement shall, depending on its circumstances, be demanded for civil responsibility such as cease of the infringement, elimination of effects, public apology or compensation for loss; if the act causes a damage to the public interests simultaneously, the copyright administration department may order the person committing the act to stop the act of infringement, confiscate his illegal gains, confiscate and destroy the infringing copies and impose a fine thereon; if the circumstances are serious, the copyright administration department may also confiscate the key materials, tools and equipment mainly used for making infringing copies; and if the act constitutes a crime, criminal responsibility shall be demanded according to law”. This is the law basis for China Administration of copyright administrative punishment. In addition, the” Regulations for the protection of computer software” article 24 also make similar provisions in the light of computer software tort ( similar with ” copyright law”, repeat no longer here ). And” Decree of the National Copyright Administration of the PRC ” also provides the jurisdiction of an administrative copyright complaint case belongs to the State Copyright Bureau and the local copyright bureau, and make detailed provisions of legal procedure.

II The Issue of “Damage to the Public Interests”

Copyright is a private right, right owners should go to court to defend their rights under normal circumstances, namely through the civil litigation. The law mentioned above also has the corresponding content. On how to identify “damage the public interests”, in the “reply of how to understand the application of damaging public interest issues in investigating copyright infringement cases”, the State Copyright Bureau says: harm economic order behavior can be identified as harmful to the public interests.

For commercial using of pirated software behavior, because it is one kind of tort in ” copyright law” article 47 ( unauthorized copying )”. According to “Opinions about “damage the public interests” in Copyright law article 47″ by the State Copyright Bureau, any tort listed in article 47 may damage public interests”, administration have the right to take administrative strike against commercial using pirated softwares.

III, Administrative complaint Procedure

Right owner need to go through acceptance, investigation, arbitration procedures when making Administrative complaints. The right people should prepare the following materials:

1、 Application for investigation, which shall specify the complainant, the respondent’s name and address, date of complaint, the major facts and reasons;

2、the complainant’s identity

3、The preliminary evidence of right, such as copyright registration, copyright license contract;

4、the preliminary evidence of infringement：Although it is difficult to get evidences of a company’s internal using the pirated software, but the right owner still need to pay attention to collect evidence, such as the public products of complainant which using owner’s software, attorney letter, telephone recording.

After complaint, the copyright administrative department will review the complaint, and notify the right owner if accept. After acceptence, the administration will investigate the infringement, and make decisions al follows based on the results of the investigation:

1、Giving an administrative punishment to infringer;

2、Not Giving an administrative punishment to not serious infringement behavior;

3、Not Giving an administrative punishment when the infringement facts are not established;

4、 Transferring to judicial organs when the infringement constitute a crime,.

If the complainants aren’t satisfied with the decisions made by copyright administrative departments, they may apply for administrative reconsideration or bring an administrative lawsuit.

For complaints of commercial using the pirated software, although it is unable to get assumption directly, it can fix fact through the procedure. It can help the right owner to get assumption in civil litigation

Lawyer Contacts

You Yunting

86-21-52134918

youyunting@debund.com, yytbest@gmail.com

For further information, please contact the lawyer as listed above or through the methods in our CONTACTS.

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