福建省政府


福建省人民政府关于颁布《福建省海防管理工作若干规定》的通知
福建省政府



各地区行政公署，各市、县（区）人民政府，省直各单位：
现将《福建省海防管理工作若干规定》颁发给你们，请遵照执行。

福建省海防管理工作若干规定
第一条 为加强海防管理，保障改革开放和经济建设的顺利进行，根据国家有关法律、法规，结合本省实际情况，制定本规定。
第二条 海防管理要以党的基本路线、方针和政策为指针，以国家法律、法规为依据，以有利于促进改革开放、发展经济；有利于维护社会稳定和祥和；有利于促进海峡两岸的正常交流，加速和平统一祖国；有利于建设社会主义精神文明为原则。
第三条 海防管理工作应按照“谁主管、谁负责”的原则，各司其职，密切协作，实行综合治理，管建结合。
第四条 本省沿海地区县（市、区）以上设海防管理委员会，乡（镇、街道）设海防管理领导小组，村设海防管理工作小组。县级海防管理委员会负责本行政区域内的海防管理工作。
第五条 海防管理的基本任务：
（一）贯彻执行国家法律、法规和对台的“和平统一、一国两制”的方针，协调各方面力量，积极推进海防的政治、经济建设和海防设施建设；
（二）及时研究、制定海防管理新措施，方便对台、对外往来，促进沿海地区经济繁荣与发展；
（三）开展海防管理宣传、教育，增强全民海防管理新观念；
（四）发挥各职能部门的作用，保卫国家主权和领土完整，维护我国海洋权益；

（五）掌握沿海情况，应付各种突发事件，维护沿海地区的稳定和祥和；做好以船只为重点的沿海管理，打击各种危及海上安全的违法犯罪活动；
（六）海防工作应创造一个社会稳定、经济繁荣、环境优美、气氛祥和、贸易交通便捷、军警民密切合作的海上新秩序。
第六条 各级海防管理委员会的工作职责
（一）贯彻国家海防管理的法律、法规和方针、政策，执行上级海防管理工作的决定和指示；
（二）研究、制定海防综合管理的具体措施，办理海防管理事务；
（三）组织协调有关部门在海防管理工作中出现的问题；
（四）督促检查海防管理工作的落实；
（五）调查、分析、研究海防管理工作情况，适时向上级和本级政府提出报告和建议。
第七条 海上缉私应依照国家法律、法规的规定，由海关和公安边防部门负责实施；打击海上抢劫犯罪和偷渡外逃活动以公安边防部门为主，其他部门协助；对个体船舶，港澳台船舶、难民船舶管理，由公安边防部门会同有关部门进行管理。
第八条 公安（边防）部门职责
（一）负责对港口、船舶、特种行业、公共场所的治安和户籍管理；
（二）对台轮实施检查、监管；加强对外国人及港、澳、台人员出入境的管理，做好劳务输台管理工作；
（三）开展反偷（私）渡、反走（贩）私工作；
（四）开展海防管理情报调研，掌握海防管理情况；
（五）打击危及海防安全的各种违法犯罪行为。
第九条 公民在海防管理中的义务
（一）增强海防意识，自觉维护国家主权和海洋权益，维护海防的安全与稳定；
（二）遵守海防管理规定，依法从事海上生产作业；
（三）发现危及海防安全的行为，应及时向当地有关部门或海防管理部门报告；
（四）服从管理，协助海防管理人员执行公务。
第十条 各地（市）、县（区）、各部门应加强联系，互相协作，对涉及海防管理的有关问题，应及时向上级主管机关报告，同时向同级海防管理委员会报告。
第十一条 在海防管理工作中做出显著成绩的单位和个人，当地人民政府和有关主管部门，应给予表彰和奖励。
第十二条 对违反海防管理有关规定的行为，由执法部门按照有关法律、法规依法处理。执法部门的罚没全数上缴财政，不准“明脱暗勾”。
第十三条 负有海防管理工作责任的单位主管和工作人员，执法违法，勾结护私，玩忽职守，造成事故，致使国家利益遭受损失的应给予行政处分；构成犯罪的，应依法追究刑事责任。



1992年9月6日
Stratic Advice on Intellectual Property Investment in Asia

苏冉


IssueⅠ: Legal framework of protection on software copyright in P.R.C and Singapore
A) P.R.C
In conjunction with China’s astonishing economic growth over the past two decades, especially after the entrance to WTO, China has steadily improved its legal framework on Software Copyright by checking and clearing large-scale regulations both in domestic and international activities.
Frankly speaking, China joined in three vital international treaties relate to copyright: the Berne Convention , TRIPs and Universal Copyright Convention. Moreover, China and US signed MOU especially for software in January 1992. All these Conventions are regarded as a milestone to reflect China’s dramatic promotion and strong determination to build a satisfactory environment for foreign software investors.
Similarly to US, P.R.C has chosen to protect software under copyright law rather than trademark, patent, or contract law. One year after Copyright Law Amendment in 2001, Chinese Council corrected its software-specific “Computer Software Protection Rules” , to deal with new problems prevailing in software protection nowadays. Under the Rule, software is defined as two particular types: computer program and their relevant documentation. Furthermore, since MOU came into force, computer software is protected as a literary work. Third, according to the conditional nation treatment here, foreigners are required to comply with “connecting factor”, to sum up, either first publication or nationality/residence of the author in China or in any of these countries ,between the work and China or a country who is a member of the WTO, or the Berne Convention. So, despite your software products first being published in US, you can still enjoy the original copyright and the legal protection on in China.
Except from the above rules, other laws also have supportive stipulation on the protection of software copyrights as follows:
(a)The General Principle of Civil Law, the country’s current basic civil law, has authorized the author’s copyright in general;
(b)The Criminal Code has a section of articles referring to piracy offences, with “Dual Punishment Principle” in front of copyright encroachment;
(c)The newly amended Foreign Trade Law (adopted in Feb).

B) Singapore
The general legal framework of software copyright protection in Singapore is almost the same as P.R.C, but with some characteristics of its own. Actually, different from P.R.C based on Civil law background, laws and litigations in Singapore are principally modeled on the English system under Common law system till nowadays. Pursuant to certain legal revolutions, modern copyright legislation contains the same international conventions as P.R.C: the Berne Conventions, Universal Copyright Convention, and TRIPs. But, Singapore signed ASEAN Framework on Intellectual Property Cooperation and the WIPO Copyright Treaty as a member of ASEAN. Turning to its domestic laws, the latest Copyright Act 1999(revised edition) is the principle one, with some other relevant regulations for enforcement. And it also definites software program into literary work under protection. In addition, Singapore owes large resources of case laws so as to make its legal conditions more particular than that in P.R.C.
The amended Act is first purposed to address issues arising from the use of copyright materials in a digital environment, especially provide legal certainty for the use of copyright in cyberspace. For instance, the extension of concept “reproduction” .Second, the Act plays another role in enhancing performer’s rights, offering two new defenses to allegations of copyright infringement. Therefore, merely surfing the Web doesn’t constitute software copyright infringement, if it’s necessary to browse. Even , Singapore passed the Electronic Transactions Act 1998 to give statutory protection of Network Service Providers. At these points, Singapore seemingly forwards a step further than P.R.C, declining its attention on encouraging the growth of a knowledge-based economy and promoting E-commerce and creative innovations. Last but the most significant point, Singapore and the United State signed a bilateral free trade agreement (FTA) on May 6th 2003, and entered it into force from January 1st 2004. Virtually, this is the first FTA between US and an Asia country .So it’s doubtlessly the greatest advantage for Singapore to attract US investors, apart from other Asian countries. They would encourage the entrepreneurship, investment, job creation and growth in our own technology, science and creative industries as well as set the stage for Singapore’s emergence as a global IP hub.

Issue Ⅱ: Implementation on Software Copyright Law in P.R.C and Singapore
Sufficient and effective enforcement is more useful and practical than recorded documents, with no exception to P.R.C and Singapore.
(ⅰ)Role of Government
A)P.R.C
Learned from Annual Report on the Protection of Intellectual Property Right in China during the past 5 years by the head officer Jingchuan Wang in TableⅠ , you can see copyright administration at various levels make remarkable progress in encouraging innovation, promoting industrial development, regulating market order, and even improving the opening-up policy.
As a matter of fact, the People’s Courts, the People’s Prosecution Department, National Copyright Administration Centre and Public Security compose the backbone of the implementation of copyright law in China with civil remedies, criminal sensations and administrative punishments, such as fine. And border enforcement assistance to copyright owners by the Customs and Excise Department is also available.
TableⅠ:
The Administration on Software Copyright In P.R.C
Year Registration Prosecute Cases Resolved Cases Resolved Cases Rate Seized Pirates(M) Top 1 Region of Piracy
1999 1,041 1,616 1,515 93.75% 20.14 Shenzhen
2000 3,300 2,457 1,980 95.30% 32.60 Guangdong
2001 4,620 2,683 2,327 97.52% 61.75 Guangdong
2002 4,860 2,740 2,604 99.02% 67.90 Guangdong
2003 5,020 6,120 5,793 97.64% 73.28 Beijing
Statistics from NCAC (National Copyright Administration Centre
Fortunately, China has begun to regard software as an industry with strategic significance while formulating effective policies in areas including anti-piracy and anti-monopoly. To adapt to the legal framework, China has shifted its attention upon educating software users and strengthening the law. “Government departments are being asked to show a good example in using copyrighted software only and make software budget each year”. For example, Beijing, Shanghai, Guangdong buy over 3,000 software products every year through public bidding. What’s more, the National Software Government Procurement Regulation will probably act in the near future. Eventually, Chinese government is trying to treat all software companies equal in P.R.C, no matter domestic or foreign countries.
Nevertheless, given China’s vast geography and population, it would be an awesome task for the central government to manage pirating activities throughout the entire country. On the other hand, due to lack of resources, the lack of judicial expertise, the unpredictability of trial outcomes, and large costs, litigation in Chinese courts remains a risky and expensive response to Chinese copyright violations. Another administrative difficulty arises from the increasing decentralization of the Chinese government. Much of China's copyright enforcement takes place at the provincial and local levels; the national government lacks the resources and control to effectively monitor nationwide pirating activity and to impose national enforcement policies.

B) Singapore
Switching to Singapore, the Intellectual Property Office of Singapore (IPOS) is its senior administration department, and it leads Singapore to the success in copyright infrastructure. Singapore has announced a number of meaningful standards through requirements for tough penalties to combat piracy and counterfeiting, including, in civil cases, procedures for seizure and destruction of pirated and counterfeit products, and a requirement to provide for statutory and actual damages to remedy such practices. There has been a rule in Singapore that government could only allowed to use copyrighted software since 1996. In order to obtain efficiency, Singapore maintain civil remedies and criminal penalties for circumvention of technology protection measures, and it also has in place implementation allowing for border seizures of infringing articles by customs officials. For example, the copyright infringement is punished with a maximum fine of S$100,000 or five years’ imprisonment or both. So, in comparison to P.R.C, the least time for imprisonment is shorter .But due to the judge’s free power under common law system, the court is increasingly harsh in their sentencing in respect of infringement of copyright. In other words, criminal obligation will become heavier with more limitation in Singapore.
In the contrast with Chinese administrative punishments, Singapore has a large scope of interlocutory remedies to fill in the blank area between civil remedies and criminal sensations, and they are three main types:
(a) the interlocutory injunction---It is an injunction obtained before the trail often with the main objective of maintaining the Stats quo between the parties pending the outcome of the trail. The interlocutory injunction may be in a mandatory or prohibitory form.
(b) the Anton Piller Order---It’s developed from Anton Piller KG v.Mfg Processes Ltd as a safeguard system of evidence for avoiding the defendant to destroy and hide the evidence of copyright infringement, if the plaintiff shows an extremely strong prima facie that his right are being interfered with, or the damage, potential or actual are very serious to the plaintiff, or even there must be clear evidence to proof the defendants faults.
(c) the Norwich Pharmacal Order.---The further expansion of Anton Piller Order to raise over the privilege against self-incrimination from Rank Film Distributors Ltd v. Video Information Centre Virtually . However, case law in Singapore has now established that where the privilege against self-incrimination exists, an undertaking from the plaintiff/ applicant not to use the information obtained in criminal proceedings is not an adequate safeguard for the defendant’s privilege against self-crimination. Singapore courts have also held that they don’t have the power to order that the information be inadmissible in any subsequent criminal prosecution.
Relying on common law foundation, people in Singapore prefer to a lawsuit rather than mediation while more mediation in P.R.C, once in the face of a dispute. Consequently, it would like to be more time and energy consuming somehow, for it costs at least one year of a civil procedure in the High Court of Singapore.
Last but not least, along with legsilation changes, Singapore Administration departments are also mounting a public campaign targeting both consumers and businesses to increase their awareness on the benefits and other implications of the new laws. There’s broad-based public awareness initiatives like the HIP Alliance’s year-long anti-piracy campaign? “The Real thing is the Right thing”, and brain Wave, Singapore’s first reality television show on IP.
(ⅱ)Role of Anti- Piracy Organizations
Both P.R.C and Singapore joined in Business Software Alliance (BSA) ,and WIPO several years ago and established domestic anti-piracy alliances at their own respective locality. The alliances played an active part in combating piracy and protecting the interests of right holders. They always declare laws, promulgate routine reports of current protection on TV, newspapers, and Website and show different points between pirate and authorized products. In the contrast with P.R.C, Singapore has other special disputes resolution organs under its common law system, including the small claims tribunals, E-commerce disputes centre. What’s more, Singapore collaborates with other ASAEN countries to harmonize IP rights with international and regional organizations such as the Office of Harmonization of the Internal Market (OHIM), the European Union, the French National Office of Industrial Property, and IP Australia.
(ⅲ)Introduction of Judgments in Precedent Cases
A) P.R.C
In a landmark verdict on April 16, 1996 against Beijing JuRen Computer, the Beijing No.1 Intermediate Court delivered judgment in favor of the Business Software Alliance (BSA) upholding the plaintiffs' intellectual property rights and ordering the defendant to (a) publicly apologize to the plaintiff; (b) pay over RMB600,000 (US$70,000) in damages, including court costs and accounting costs; (c) pay additional fines directly to the court. The court also ordered the defendant to undertake not to infringe intellectual property rights in the future, and the law enforcement officials to confiscate all computers and software seized during the raid on the defendant's premises. In another case, the same court rendered a judgment against Beijing Giant Computer Co. for software copyright infringement. These were the first cases decided in favor of a US plaintiff in a Chinese court.