Announcement on the "Several Provisions on Administrative Adjudication of Copyright Infringement Disputes in Pudong New Area (Draft)" for public comment

In order to effectively resolve disputes in the field of copyright and establish and improve a diversified dispute resolution mechanism in the field of copyright infringement, the "Several Provisions on Administrative Adjudication of Copyright Infringement Disputes in Pudong New Area (Draft)" are formulated in accordance with the Implementation Plan for the Pilot Comprehensive Reform of Pudong New Area (2023-2027), the Decision of the Standing Committee of the Shanghai Municipal People's Congress on Strengthening the Legal Guarantee for High-level Reform and Opening-up in Pudong New Area, and relevant provisions, and in light of the actual situation of Pudong New Area , is now open to solicit public opinions, welcome people from all walks of life to put forward valuable opinions and suggestions.

1. Time for soliciting comments: April 29, 2024 to May 28, 2024.

2. Contact information: In order to facilitate the collection and statistics of opinions, please send feedback by letter or email.

1. Please mail your written comments to the Intellectual Property Office of Pudong New Area, and the mailing address is: Room 605, Building 1, Lane 1080, Yunshan Road, Pudong New Area.

2. Please send your comments to the e-mail address: [email protected].

Thank you for your participation and support!

Pudong New Area Intellectual Property Office

April 29, 2024

Explanation on the drafting of the "Several Provisions on Administrative Adjudication of Copyright Infringement Disputes in Pudong New Area (Draft)".

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In order to implement the requirements of the pilot comprehensive reform of Pudong New Area and establish and improve the administrative adjudication system for copyright infringement disputes in Pudong New Area, the District Intellectual Property Office took the lead in drafting the Several Provisions on Administrative Adjudication of Copyright Infringement Disputes in Pudong New Area (Draft) (hereinafter referred to as the "Several Provisions (Draft)"). The relevant situation is explained as follows:

1. Drafting background

The Party Central Committee attaches great importance to the orderly advancement of administrative adjudication work. Administrative adjudication has the characteristics of high efficiency, low cost, strong professionalism and simple procedures, which is conducive to promoting the rapid resolution of contradictions and disputes, and plays the role of a "diversion valve" for resolving civil disputes. The Party Central Committee and the State Council's "Implementation Outline for the Establishment of a Rule of Law Government (2021-2025)" puts forward the requirements for steadily advancing the pilot reform of administrative adjudication and researching and advancing the construction of a legal system for administrative adjudication. In January 2024, the Office of the CPC Central Committee and the Office of the State Council of the People's Republic of China (CPC) clearly stated in the Implementation Plan for the Pilot Comprehensive Reform of Pudong New Area (2023-2027) that the pilot reform task of deploying an administrative adjudication system for copyright infringement disputes in Pudong New Area was clearly proposed. This pilot reform is of great significance for actively preventing and resolving copyright infringement disputes, establishing and improving a diversified dispute resolution mechanism, and optimizing the business environment in our region. At present, there are no laws, regulations or clear provisions in the field of administrative adjudication of copyright infringement disputes, and the formulation of relevant management measures is an urgent need to implement the requirements of the Party Central Committee, which is conducive to providing legal guarantees for the promotion of administrative adjudication of copyright infringement disputes.

2. Drafting process

In July 2023, the District Intellectual Property Office launched the project research, and widely solicited the opinions of relevant departments and units and experts by holding expert demonstration meetings, symposiums of relevant departments and conducting on-site visits. At the beginning of 2024, our bureau will form a first draft and solicit opinions from relevant departments and units. On the basis of absorbing the opinions of all parties, the current "Several Provisions (Draft)" has been formed after repeated revisions and improvements.

Third, the main content

There are 15 articles in the Draft, which mainly include the following aspects:

(1) Clarify the scope of application and overall requirements

At the same time, in order to guide the parties involved in copyright infringement disputes to choose the path of administrative adjudication to resolve disputes, the Provisions (Draft) make two provisions: first, to establish legality, The principle of voluntariness, that is, the administrative adjudication procedure is voluntarily chosen by both parties, and is not a compulsory dispute resolution procedure, and the parties can also resolve the dispute directly through litigation to the court; (Articles 2 and 3)

(2) Clarify the requirements for acceptance of administrative rulings and the materials that need to be submitted

Clarifying the conditions for accepting administrative adjudication of copyright infringement disputes and the materials that need to be submitted by the parties at the "source" is conducive to ensuring the smooth initiation and development of administrative adjudication. To this end, the "Several Provisions (Draft)" makes two provisions: first, the conditions for acceptance are clarified, including that the two parties have agreed to apply it through consultation, there are clear claims and specific factual reasons, the infringement involves the rights of reproduction, distribution, performance, screening, broadcasting, compilation and information network dissemination of the relevant statutory works, the relevant works have been registered, the place where the infringement is committed and the actual place of operation of both parties are within the jurisdiction of Pudong New Area, and the people's court has not filed a case on the relevant dispute. The second is to refine the application materials, including the request and identity certificate jointly signed by both parties, the work registration certificate, the letter of commitment, and the evidence materials related to infringement. (Articles 4 and 5)

(3) Standardize the case-handling procedures of the competent departments

Provisions on case-handling procedures are conducive to standardizing the administrative acts of the competent departments and protecting the legitimate rights and interests of all parties to the dispute. In this regard, the "Several Provisions (Draft)" makes seven provisions: First, the procedures for filing cases, including the time limit for case filing, the composition of the collegial panel, and the procedures for extending the time limit under special circumstances. The second is the circumstance of recusal, where case-handling personnel have an interest in the parties, their representatives, or the case, or other such circumstances, they shall recuse themselves. The third is the situation of suspending the handling of the case, with special emphasis on "the case handling shall be resumed after the reason for the suspension disappears". Fourth, the circumstances of the withdrawal of the case, emphasizing that "one party applies to withdraw the processing request, and the case can only be withdrawn after the review and approval of the district copyright department". Fifth, the burden of proof and factual investigation, on the basis of "whoever asserts the claim shall present the evidence", it is clarified that the competent department may conduct investigation and inspection in accordance with the law, and the technical investigation opinion issued by the technical investigator can be used as a reference for determining the facts, as well as the circumstances in which an appraisal agency is entrusted to conduct an appraisal. Sixth, the connection between administrative adjudication and mediation, that is, in the process of handling the case, a mediation organization may be entrusted to mediate the dispute, and if the mediation fails, an administrative ruling shall be made in a timely manner. Seventh, the time limit for the trial of the case, that is, the competent department shall conclude the case within three months from the date on which the case is filed, and it may be extended upon approval due to special circumstances. (Articles 6-12)

(4) Clarify the authority to organize mediation and the scope and effectiveness of the award

The premise of administrative adjudication of copyright infringement disputes is to "distinguish between right and wrong", but the ultimate goal is still to resolve disputes. In this regard, the "Several Provisions (Draft)" makes four provisions: First, if the competent authority finds that the infringement is established, it shall order the infringement to be stopped immediately. Second, if a party is dissatisfied with the ruling, it may file a lawsuit with the court; if the party fails to file a lawsuit after the expiration of the time limit and does not stop the infringing act, the competent department may apply to the people's court for compulsory enforcement. Third, the scope of the administrative ruling is limited to the determination of infringement, but if the parties apply, the competent authority may mediate the amount of compensation. Fourth, it is clarified that administrative rulings do not affect the conduct of administrative punishment procedures. (Articles 13 and 14)

Fourth, the main innovations

(1) The scope of acceptance and jurisdiction of the case is framed

The current Copyright Law adopts an open model for the types of works. From the perspective of ensuring the smooth progress of administrative adjudication of copyright infringement disputes, the Draft Provisions limit the scope of works that can be accepted to be cased, and only include the types of statutory works such as written works and oral works as provided for in Article 3, Paragraphs 1 to 8 of the Copyright Law, and exclude "other intellectual achievements that meet the characteristics of the work".

Considering that disputes involving adaptation, translation and other derivative rights are relatively complex and cannot be intuitively determined, and if such disputes are included in the scope of the case, it is not conducive to the efficient resolution of disputes by administrative adjudication, the Draft Provisions limit the rights involved in infringement to the "rights of reproduction, distribution, performance, screening, broadcasting, compilation and information network dissemination" of the relevant works.

At the same time, in order to better protect the rights of relevant copyright owners in Pudong New Area and avoid the disorderly growth of the number of cases, the Several Provisions (Draft) define the jurisdictional connection point as "the place where the infringement is committed and the actual place of operation of both parties are within the jurisdiction of Pudong New Area".

(2) Special restrictions are made on the conditions for the commencement of proceedings

The Draft Provisions balance the relationship between the autonomy of will of private law and the intervention of public power, and provide a requirement of "mutual agreement between the two parties" on the conditions for the initiation of administrative adjudication proceedings. This provision not only implements the clear requirements set forth in the Implementation Plan for the Comprehensive Reform of Pudong New Area (2023-2027) issued by the Office of the Central Committee and the Office of the State Council, but also ensures that the intervention of administrative organs in private rights disputes is fully legitimate. At the same time, this condition is also conducive to appropriately controlling the number of cases accepted and ensuring the smooth progress of the pilot work.

(3) Pay attention to the connection with other dispute resolution mechanisms

The Draft Provisions clarify the boundaries and connections between administrative adjudication procedures and other dispute resolution channels such as litigation and mediation. First, if a party files a lawsuit against a relevant dispute with the court, the administrative ruling that has already been accepted shall be suspended, and if the court has already filed a case on the relevant dispute, the relevant administrative ruling case shall be revoked. Second, in the course of handling administrative adjudication cases, mediation organizations such as people's mediation, commercial mediation, and industry mediation may be entrusted to conduct mediation. Third, the competent authority may mediate the amount of compensation for copyright infringement. Fourth, if the parties are dissatisfied with the administrative ruling, they may seek judicial relief. At the same time, it also clarifies the independence of administrative adjudication and administrative punishment, so as to prevent the occurrence of "substitution of punishment by adjudication" for infringement involving public interests.

Administrative adjudication of copyright infringement disputes in Pudong New Area

Several Provisions (Draft)

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Article 1 (Purpose and Basis)

These Provisions are formulated on the basis of the "Implementation Plan for the Comprehensive Reform Pilot of the Pudong New Area (2023-2027)", the "Decision of the Standing Committee of the Shanghai Municipal People's Congress on Strengthening the Legal Safeguards for High-level Reform and Opening-up in the Pudong New Area" and other relevant provisions, and in light of the actual conditions of the Pudong New Area, so as to effectively resolve disputes in the field of copyright and establish and improve diversified dispute resolution mechanisms in the field of copyright infringement.

Article 2 (Scope of Application)

These Provisions apply to the work of the Pudong New Area copyright department in handling administrative rulings on copyright infringement disputes.

Article 3 (General Requirements)

Administrative adjudication of copyright infringement disputes follows the principles of legality and voluntariness.

In the event of a copyright infringement dispute, a request may be made to the district copyright department for an administrative ruling, or a lawsuit may be filed directly with the people's court.

There is no fee for administrative adjudication of copyright infringement disputes.

Article 4 (Conditions for Requesting Adjudication)

Where an administrative adjudication of a copyright infringement dispute is requested, the following conditions shall be met:

(1) The administrative adjudication procedures are applied upon the unanimous consent of both parties;

(2) There are clear matters of the request, specific facts, and reasons;

(3) The infringement involves the rights of reproduction, distribution, performance, screening, broadcasting, compilation and information network dissemination of works provided for in Article 3, Paragraphs 1 to 8 of the Copyright Law of the People's Republic of China, and the relevant works have been registered;

(4) The place where the infringement was committed and the actual place of operation of both parties are within the jurisdiction of Pudong New Area;

(5) The people's court has not filed a case on the relevant copyright infringement dispute.

Article 5 (Submission of Materials)

Where an administrative ruling on a copyright infringement dispute is requested, the following materials shall be submitted:

(1) A letter of request signed by both parties;

(2) Proof of the identity of both parties;

(3) Certificate of registration of works;

(4) A letter of commitment to comply with the relevant provisions of the administrative ruling;

(5) Evidentiary materials related to infringement.

Article 6: (Case Filing and Review)

Where the request complies with the provisions of Article 4 of these Provisions, the district copyright department shall make a decision to file the case within 5 working days of receiving the request and relevant materials, and notify the requester; Where the case is particularly complicated or there are other special circumstances, upon approval, the time limit for filing the case may be extended by 5 working days.

Where a decision is made to file a case, the district copyright department shall designate 3 or more odd-numbered case-handling personnel to form a collegial group to handle the case.

Article 7 (Avoidance of Information)

In any of the following circumstances, case-handling personnel shall recuse themselves:

(1) They are a party to the case, or a close relative of a party or their representative;

(2) They have an interest in the case;

(3) Having other relationships with the parties to the case and their representatives that might impact the fair handling of the case.

Parties have the right to apply for the recusal of case-handling personnel. Where a party applies for recusal, the reasons shall be explained.

The recusal of case-handling personnel is to be decided by the district copyright department.

Article 8 (Suspension of Adjudication)

In any of the following circumstances, the parties may apply to suspend the handling of the case, and the district copyright department may also decide to suspend the handling of the case:

(1) One party initiates a lawsuit, but the people's court has not yet filed the case;

(2) Where one of the parties dies and it is necessary to wait for the heirs to indicate whether they will participate in the disposition;

(3) One party has lost capacity for civil conduct and has not yet designated a legally-designated representative;

(4) Where a legal person or other organization that is a party is terminated, and the successor of rights and obligations has not yet been determined;

(5) One party is unable to participate in the handling due to reasons of force majeure;

(6) The case must be based on the outcome of another case, and the other case has not yet been concluded;

(7) Other situations where it is necessary to suspend handling.

After the reason for the suspension disappears, the case handling shall be resumed.

Article 9 (Withdrawal of Case)

In any of the following circumstances, the district copyright department shall withdraw the case:

(1) After filing a case, it is discovered that the requirements for acceptance are not met;

(2) Where either party dies or is deregistered, and there is no heir or successor of rights and obligations, or the heir or successor of rights and obligations waives the request for handling;

(3) The parties settle or reach a mediation agreement;

(4) Where one party applies to withdraw the request for handling, and the competent department for copyright in the district has reviewed and approved it;

(5) Other situations where the case shall be withdrawn.

Article 10 (Burden of Proof and Investigation of Facts)

It is the responsibility of the parties to provide evidence within the prescribed time limit for their own claims. As needed to ascertain the facts of the case, the district copyright department may also conduct a technical investigation or inspection in accordance with law.

Where it is necessary to further ascertain the technical facts of the case, the district copyright department may appoint a technical investigator for the administrative protection of intellectual property rights to participate in the handling of the case and submit technical investigation opinions. Relevant technical investigation opinions may be used as a reference for the collegial panel to determine the facts.

Where the case involves special matters that require an appraisal, the parties may entrust an appraisal body to conduct the appraisal on their own, or may apply to the district copyright department to entrust an appraisal body to conduct an appraisal. The cost of the appraisal shall be borne by the parties.

Article 11 (Connection between Administrative Adjudication and Mediation)

On the premise of the consent of both parties, the district copyright department may entrust people's mediation, commercial mediation, industry mediation and other mediation organizations to mediate copyright infringement disputes;

Article 12 (Time Limit for Trial)

An administrative ruling shall be made within three months from the date on which the case is filed.

Where an administrative ruling cannot be made within the prescribed time limit due to the complexity of the case or other reasons, it may be extended by one month upon approval of the responsible person in charge of the district copyright department. Where the circumstances of the case are particularly complicated or there are other special circumstances, and an administrative ruling cannot be made after an extension, and an extension is approved, a reasonable period for extension shall be determined at the same time.

The time for mediation and appraisal is not included in the time limit for case trial.

Article 13 (Enforcement of Awards, Relief and Mediation of Compensation Amounts)

If the district copyright department finds that the infringement is established, it shall order the infringement to be stopped immediately. If the parties are not satisfied, they may file a lawsuit with the people's court within 15 days of receiving the notice. Except in the circumstances provided for by law, the enforcement of administrative rulings is not suspended during the litigation period. Where the infringer does not prosecute and does not stop the infringement at the expiration of the time limit, the district copyright department may apply to the people's court for compulsory enforcement.

At the request of the parties, the district copyright department may mediate the amount of compensation for copyright infringement. If mediation fails, the parties may file a lawsuit with the people's court in accordance with law.

Article 14: (Administrative Punishment is Not Excluded)

After an administrative ruling on a copyright infringement dispute is made, if the district copyright department finds that the infringement has harmed the public interest at the same time, it may take administrative penalties and other measures in accordance with the relevant provisions of the Copyright Law of the People's Republic of China.

Article 15 (Effective Date)

These Provisions shall come into force on xx-xx-xx and shall be valid until xx-xx-xx.

Source: Pudong New Area Intellectual Property Office

Comprehensive editor of the rule of law in Pudong