Intellectual property in the People's Republic of China

This article is about intellectual property in mainland China.

Intellectual property rights (IPRs) have been acknowledged and protected in the People's Republic of China since 1979. The People's Republic of China has acceded to the major international conventions on protection of IPRs. Domestically, protection of intellectual property law has also been established by government legislation, administrative regulations, and decrees in the areas of trademark, copyright and patent. This has led to the creation of a comprehensive legal framework to protect both local and foreign intellectual property. Despite this, copyright violations are common in the PRC,[1] and intellectual property violations are committed by prominent members of the automotive and electronics industries.

Contents

International conventions

In 1980, the PRC became a member of the World Intellectual Property Organization (WIPO).

It has patterned its IPR laws on the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The PRC acceded to the Paris Convention for the Protection of Industrial Property on 14 November 1984 and became an official member on 19 March 1985. The PRC also acceded to the Madrid Agreement for the International Registration of Trademarks in June 1989.

In January 1992, the PRC entered into a Memorandum of Understanding with the United States government to provide copyright protection for all American "works" and for other foreign works. Several bilateral negotiations have been conducted between the two governments. At some points, trade sanctions were threatened by the two governments over IPRs issues. At the conclusion of negotiations in 1995, the Sino-US Agreement on Intellectual Property Rights was signed. In June 1996, the two governments entered into another agreement protecting American intellectual property in the PRC.

Generally, once the PRC has acceded to an international treaty, the People's Courts can quote the provisions of the treaty directly in deciding an intellectual property infringement case, without reference to a Chinese domestic law by which the treaty provision is incorporated.

National legal framework

The legal framework for protecting intellectual property in the PRC is built on three national laws passed by the National People's Congress: the Patent Law, the Trademark Law and the Copyright Law. A great number of regulations, rules, measures and policies have been made by the NPC Standing Committee, the State Council and various ministries, bureaux and commissions. The circulars, opinions and notices of the Supreme People's Court also form part of the legal framework.

Trademark law

The Trademark Law of the People's Republic of China (中华人民共和国商标法) sets out general guidelines on administration of trademarks, protection of trademark owners' exclusive rights and maintenance of quality of products or services bearing the registered trademarks, "with a view to protecting consumer interests and to promoting the development of the socialist commodity economy."

Adhering to Article 4 of the Paris Convention, the Chinese government passed the Provisional Regulations Governing Application for Priority Registration of Trademarks in China to grant the right of priority to trademark applications submitted in PRC by the nationals of the Paris Convention member countries.

Copyright law

Copyright law is mainly governed by the Copyright Law of the PRC (中华人民共和国著作权法) and the Implementing Rules for the Copyright Law of the PRC (著作权法实施条例), the Copyright Law of the PRC adopted and promulgated in 1990 and the "Implementing Rules" adopted in 1991 and revised in 2002. In most cases the copyright term is the life of the author plus 50 years, but for cinematographic and photographic works and works created by a company or organization the term is 50 years after first publication.

To implement the Berne Convention and the Universal Copyright Convention, as well as bilateral copyright treaties signed between the PRC and other foreign countries, the PRC government passed the Regulations on Implementation of International Copyright Treaties (1992). These have given foreign copyright holders protection for their rights and interests in the PRC.

Before the PRC acceded to the Berne Convention, computer software was not treated as a kind of literary work under the Copyright Law. In May 1991, the State Council passed the Computer Software Protection Rules. Based upon these rules, the Measures for Computer Software Copyright Registration were formulated by the then Ministry of Engineering Electronics Industries. These regulations provide a set of rules covering the definitions of various terms and the registration, examination and approval of computer software programmes in the PRC. At the moment both the Berne Convention and these two domestic computer regulations are co-effective. However, in the event of any inconsistencies, the Berne Convention prevails.

The Berne Convention does not require copyright registration, and thus protection in the PRC technically doesn't require registration. However, registering copyrights for literary works can avoid, or at least simplify, ownership disputes. Copyright registration cost is 300 RMB. On the downside, the copyright registration process requires the registrant to disclose detailed information, including software source code, which companies might be reluctant to share.

Patent law

The PRC passed the Patent Law of the PRC (中华人民共和国专利法) to encourage invention-creation and to promote the development of science and technology.[citation needed] The subsequent Implementing Regulations of the Patent Law of the PRC added clarification. Compared with other intellectual property implementation rules, these regulations provide a more comprehensive piece of legislation in comprising 96 provisions. China is a part of the Patent Cooperation Treaty (PCT), and through the PCT a single patent application can be made for multiple countries, including China. Patents must be registered to receive legal protection. This must be done through an authorized Chinese patent agency, appointed by the State Intellectual Property Office.

Other legislation

Apart from major legislation on trademarks, copyright and patents, a few other laws and regulations have been passed to deal with intellectual property related issues. In 1986, the General Principles of Civil Law was adopted to protect the lawful civil rights and interests of citizens and legal persons, and to correctly regulate civil relations. Articles 94-97 of the General Principles of Civil Law deal with intellectual property rights of Chinese citizens and legal persons.

In the 1990s many more pieces of legislation were passed to perfect the intellectual property protection system. These include the Regulations on Customs Protection of Intellectual Property Rights (1995) and the Law Against Unfair Competition of the PRC (1993). The latter prohibited the passing off of registered trademarks, infringing trade secrets, the illegal use of well-known goods or names of other people, as well as other misleading and deceptive conduct. The Advertising Law of the PRC was passed in 1994 to prohibit the unfair, misleading and deceptive conduct involving patent advertising or other advertising activities in general.

Implementation

To enforce IPR protection, an administrative system has been established within the government. After the reshuffle of the State Council in March 1998, the Patent Office became part of the State Intellectual Property Office. The Trademarks Office is still under the authority of the State Administration for Industry and Commerce. The Copyright Office falls within the State Administration for Press and Publication. A similar system exists at various levels of local government. Commonly, enforcement of IPRs will be carried out by local IPRs personnel, assisted by police from the local Public Security Bureau.

To handle cases of infringement of IPRs more efficiently, special intellectual property courts have been established in some cities and provinces. At the level of the Higher People's Court in Beijing, Shanghai, Guangdong, Fujian and Hainan, intellectual property courts have been separated from the economic division. Beijing, Shanghai and Tianjin have also established intellectual property courts within the Intermediate People's Court. In 1992, the Supreme People's Court established an intellectual property division.

Customs protection is another positive mechanism in law enforcement with regard to IPRs. The Regulations on Customs Protection of Intellectual Property Rights (中华人民共和国知识产权海关保护条例), promulgated in June 1995, strengthened border control to stop counterfeited goods from coming into, or leaving, the PRC.

Despite this regulation existing as a legislative capacity, the ability to enforce these laws varies according to the differing interpretations that exist amongst the local governmental authorities in China. Despite the growing number of raids on hubs for traders of counterfeited goods and the rise in the number of lawsuits brought against companies that use counterfeited technology, codes, or logos, the level of government response does not quite match the degree to which counterfeiting is happening in China. [2] The rate at which the legal implementation has proceeded more closely matches the desires of IP protection from Chinese businesses and other bastions of capital. [3]

Difficulties

The enforcement of protection of intellectual property rights is particularly difficult in the PRC. Without adequate education with regard to IPRs, there is little awareness that infringement is a crime. For example, though the first intellectual property law was drafted in 1982, the first IPR training centre wasn't established until 1996.

Sometimes local protectionism may dilute the strength of central legislation or the power of law enforcement. For example, local governments might not want to genuinely support the work of anti-piracy supervisors. It may create obstacles during IPRs investigation and assist local counterfeiters by letting them hide their production lines in safer places. When counterfeiters have good connections with local governmental or law enforcement officials, they may find an umbrella for their counterfeiting activity. [4]

Chinese government-sponsored search-engine Baidu provides links to third-party websites that offer online counterfeit products as well as access to counterfeit hardware and merchandise. The Chinese government dominates 70% of its country's search engine revenue and has been called on by US officials to limit the activity of online counterfeiting groups. [5] [6]

Case law

The first major dispute on violation of intellectual property rights was filed in April 1992 by Wang Yongmin, the inventor of Wubi, against Dongnan Corporation.[1]

According to Zheng Chengsi, the first major copyright case involving a foreign party was Walt Disney Productions vs. Beijing Publisher and Co.

In 2010, US law firm Gipson Hoffman & Pancione filed a suit against the Chinese government on allegations of distributing the pirated cyber-filtering software of the US company Solid Oak. [7]

US Priority Watchlist

In 2007, the Office of the United States Trade Representative placed China on its "priority watch list" for intellectual property rights violations, along with eleven other nations.[8] In addition, the US brought a World Trade Organization case against China, in which it was ruled that China must change its operating standards to comply with WTO laws, but brought about no change in the threshold for arresting domestic violators of international copyright law.[9]

See also

Further reading

References

  1. ^ a b USTR 2009 Special 301 Report, 30 April 2009.
  2. ^ Papageorgiou, Elliot (26 April 2011). "China's anti-piracy measures 'inconsistent', lawyer argues". BBC. http://www.bbc.co.uk/news/13185241. Retrieved 4/26/2011. 
  3. ^ "WTO China Piracy Ruling: It Ain't Worth A Thing....". China Law Blog. http://www.chinalawblog.com/2009/01/wto_china_piracy_ruling_it_ain.html. Retrieved 4/25/2011. 
  4. ^ Priest, Eric (2006). "The Future of Music and Film Piracy in China". Berkeley Technology Law Journal. 795 21: 796–870. http://www.btlj.org/data/articles/21_02_03.pdf. Retrieved 4/24/2011. 
  5. ^ "China Baidu search engine profits more than treble". BBC News. 31 January 2011. http://www.bbc.co.uk/news/business-12331266. Retrieved 2011-04-25. 
  6. ^ "US says China's Baidu is notorious pirated goods market". BBC News. 1 March 2011. http://www.bbc.co.uk/news/business-12605067. Retrieved 2011-04-25. 
  7. ^ "U.S. law firm behind China piracy suit targeted in attacks". CNET. 2010-01-13. http://news.cnet.com/8301-27080_3-10434551-245.html. 
  8. ^ "China, Russia Top U.S. Piracy List". Reuters. 2007-04-30. http://www.reuters.com/article/idUSN3041927620070430. 
  9. ^ "China, U.S. trade barbs over WTO piracy case". Reuters. 2009-03-20. http://www.reuters.com/article/2009/03/20/us-china-usa-wto-idUSTRE52J3T920090320. 

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