Intellectual Property Center of Chinese Academy of Social Sciences
At the turn of 21 century, IPR strategies were drafted in several
countries. For instance, in 2002, Japan government issued an Outline of
IPR Strategy, and in the same year, US Patent Office issued an Outline
of 21 Century Strategy. Both of the strategies stressed on the strong
protection of IPR for the rights holders. This gives stimulation for
some of the Chinese IPR officials and experts. Opinions or suggestions
could be found in the media for making China¡¯s IPR strategy and drafting
an IPR Basic Law. No doubt it is the right time to draft a comprehensive
IPR strategy when China joined WTO in 2001.
The nature of IPR law system lays on the encouraging new creations
and increasing welfare of the society. But it is an unbalanced game
which is more in favor of the developed and rich countries. For a
purpose of entering WTO, China amended her IPR laws and established a
set of enforcement organs and kept on training and educating people for
the awareness of IPR protection. Several promises were made while
foreign critics and complains still exist. As a developing country,
people keep on asking what China could do and make the advantages from
this IPR law system?
Compared with the aim a ¡°nation founded on intellectual property¡± in
Japan, facing many critics and complains on piracy in China, most
opinions stress on a complete IPR law system, an effective enforcement
of the laws and more well-educated people in IPR field. Yes, they are
right, but they are not the key factors in drafting China¡¯s IPR Strategy
at the moment. A policy maker should know: Chinese creators should take
the first place in IPR laws, it is they should benefit from the laws;
IPR laws should give good protection for Chinese enterprises. A good
model should be found. It gives a believe that IPR law system has a good
function in the development of an enterprise; At the international
stage, China should expresses her concern on the protection of
traditional knowledge which is a rich resources not only for China but
also a beneficiation for the whole world.
I.Chinese creators should take the first place in China¡¯s IPR law
system
Chinese people found the interests in a book and a trade-mark long
ago. IPR laws were introduced in China for the first time around in
1900. Since 1949, IPR as a private right was resisted until 1979. It was
in the Chinese-Foreign Joint Venture Law, which was passed and
implemented in July 1979, that intellectual property was introduced for
the first time in the law. Hereafter, the Trademark Law (1982), the
Patent Law (March 1984) and the Copyright Law (1990) were passed, and
the country saw a comprehensive protection of intellectual property only
since then.
Some experts and observers noticed that IPR law system is a result
of realizing a certain political object, or under some kinds of foreign
pressures. Take a look of the articles in the laws, it is hard to deny
the shame. For instance, there are too many articles of statuary usage
or limitations for authors in China¡¯s copyright law. This seriously
discourages the enthusiasm of the Chinese authors, and has a bad
influence enforcement of the law. So, for a Chinese policy maker, he/she
should know the Chinese creators should take the first place in drafting
China¡¯s IPR strategy. Especially after joined WTO, her political object
has been achieved, under no pressure, all the draft and amendment of the
IPR laws should set the Chinese creators in the first place and give
them real, proper and full protection.
II.Try to find a good model that Chinese enterprises could develop
itself with their own intellectual property rights under present IPR law
system.
In China, people always say a good model could yield great good
effect. In the past ten or twenty years, the Chinese government has been
asking to fight against piracy. The central government and local
authorities did adopt several measures or even take use of mass moment
fighting against piracy. But things seem no change. Recently a speak man
from National Copyright Administration expressed that China would root
out piracy within 5 years. It is easy to say like this, but it is hard
to imagine things would be so optimistic. If we could give another new
thinking that IPR law could help and give much energy for a Chinese
enterprise to develop itself based on its own intellectual property
right. If we could find a good example like this? If only punishment is
enough? How could we let people believe IPR law system be good for the
development of an enterprise? If no such believe, how could we imagine
that all Chinese enterprises could do their things following the rules
of IPR law system?
Early this year at an international conference in Singapore on the
protection of famous trademarks I expressed the idea that the right
holders, especially the famous foreign trademark right holders should
give some kinds of support to China local enterprises and/or companies
to use their own trademarks and set up their own business reputations.
Here I stress again, in drafting China¡¯s IPR strategy, one must take it
in mind that IPR law system could be a real good for a Chinese
enterprise. A good model should be found to proof it.
III.China should expresses her concern on the protection of
traditional knowledge which is a rich resources not only for China but
also a beneficiation for the whole world
The genetic resources, traditional knowledge and folklore are basis
of survival and development for a nationality, a country and even for
the whole human being. It is believed that protection of TK is not only
significant for maintaining cultural diversity and excellent culture
distribution, but also an irreplaceable factor in economy promotion and
sustainable development. China is one of the developing countries with
long history and rich natural and cultural resources. For thousands of
years, the Chinese people have been accumulating rich TK in their
production, practice and daily life. It is well known that traditional
Chinese medicine, Peking opera, Chinese calligraphy and painting are
three famous quintessence of the country, which represent the soul of
the TK accumulated for over thousands of years. To effectively preserve
and protect such TK is very important for promoting national economy and
culture flourish.
In China, there are really several rules concerning the protection
of TK, but there lacks specific regulations for enforcing the rules. The
exist rules are falling behind the international trend to protect TK.
The present international IPR system, especially the patent system has
some conflicts towards TK in several aspects. Some of the big companies
in the developed countries keep most of the related key patents and
stretch their power to the developing countries. They make big profit
while refuse to compensate the contributors of the plant genetic
resources. China, as a country full of plant genetic resources, should
take good measures to protect them. If not, the plant genetic resources
could be loss or missing, and the present un-justice could cause more
limitations or obstacles for China¡¯s agriculture industry.
IV.Final remarks
For encouraging a balanced enforcement of IPR laws and thawing
herself into the development of international economy and politics,
China should find her own way of IPR law system, focus on her great
creators, find a good model of IPR protection and pay more attention to
the protection of traditional knowledge. |