| A
letter to Canadian Embassy in Beijing[1] |
|
Li, Mingde |
Ms. Claire Huot
Counselor, Culture
Canadian Embassy in Beijing
Dear Ms. Claire Huot,
As a SACS scholar of 2002, I visited Canada from May 6 to June 10,
2002. The cities I visited include Montreal, Ottawa-Hull, and Vancouver.
My research topic for this program is ¡°the New Development of the
Intellectual Property Law in Canada¡±. During my visiting, I learnt a
great deal about my research topic, especially about the patentability
of biotechnological invention, the copyright protection in the Internet,
the protection of industrial design, and the three dimensional
trademark. Besides, after I came back to Beijing, I have reported some
of my academic achievements to a conference. Now I am going to report
you what I did and what I got in light of the cities above.
Montreal
Montreal is the first city I visited in Canada. In University of
Quebec at Montreal, all of the SACS scholars of 2002 participated an
orientation program. This program was really a start point for most
scholars to begin their research works. For example, we listened to a
report ¡°Canada¡¯s Foreign Policy¡± by Pierre Giquere, former Canadian
Ambassador, and learnt a great deal about Canada¡¯s foreign policy.
Another example is that we got a lot of information about the Canadian
studies concerning the Internet. In light of the information, I
tentatively visited some websites relating to Canadian study.
Frankly speaking, the orientation program was not a great help for
my research work. Any way, it was in Montreal that I confirmed my
further visiting plan of Ottawa-Hull and Vancouver.
Ottawa-Hull
From May 13 to 14, I visited Ottawa-Hull region and had three
meetings with the people from Intellectual Property Policy Directorate,
Industrial Canada, Canadian Intellectual Property Office, Industrial
Canada, and Information and Technology Trade Policy Division, Department
of Foreign Affairs and International Trade.
In the morning of May 13, I had a meeting with Christina Sampogna,
senior project leader of patents and biotechnology, patent policy
directorate, Sanjay Venugopal, patent policy directorate, Malaka Hendela,
and Bruce Richardson, corporate governance branch, Intellectual Property
Policy Directorate, Industrial Canada.
During the meeting, Christina Sampogna and Sanjay Venugopal first
introduced me the general structure of Canada Patent Law, and the new
trend of the protection of biological invention. In this respect, there
is a case concerning biotechnological invention pending in the Supreme
Court of Canada. Then Malaka Hendela introduced me the current situation
of the copyright protection concerning the Internet in Canada and the
pending amendments of Canada copyright act. In December 1996, two new
treaties World Intellectual Property Organization Copyright Treaty (WCT)
and World Intellectual Property Organization Performance and Phonograms
(WPPT) were adopted. Although WCT and WPPT are very important in the
copyright protection in the Internet, Canada was neither an original
signature of the treaties (Canada signed the treaties in 1997) and nor
ratified the treaties yet. According to Malaka Hendela, now Canada is
studying the possibility of ratification of the treaties and the
amendment of Canada Copyright Law.
During the meeting, I discussed the new round WTO negotiation with
Bruce Richardson. According to WTO Doha Ministerial Declaration,
November 2001, the only topic for new round negotiation concerning
intellectual property is geographical indication. In this respect, the
members agree to negotiate the establishment of the multilateral system
of notification and registration of geographical indication for wines
and spirits. On the multilateral system of notification and
registration, however, the view of EU is different from the view of the
U. S. and Canada. For example, EU wants a binding system while the U.S.
and Canada want an informal not binding system. According to Bruce
Richardson, a binding system is burdensome for WTO members. Because
there are many venues to protect geographical indication, the binding
system in the international level is not the only choice. For example,
in the U.S. and Canada, geographical indication is protected by
trademark law as certificate mark. As for me, China, as a new member of
WTO, should play an important role in the new round negotiation,
including the negotiation concerning the geographical indication.
However, only after we learnt well the view of EU and that of the U.S.
and Canada and the reasoning behind the views, we can make up our view
in light of China¡¯s interests. In this respect, I can say that I have
realized the view of the U.S. and Canada and the reasoning behind the
view by the discussion with Bruce Richardson.
In the Morning of May 14, I had a meeting with Diane Brazeau,
project officer, international affairs, Lisa Power, assistant director,
trade mark branch, Heather Coulter-Bowen, Chief, industrial design
examination division, and Gisele Tasse-Goodman, chief, copyright
program, from Canadian Intellectual Property Office, Hull. In this
meeting, we discussed in detail about the design protection and the
three dimensional trademarks. Industrial design is a special subject
matter in intellectual property system. It can be protected either by
patent law or by copyright law, or by both or by special law. After a
given design acquired distinctiveness in the market, that is it can
indicate the source of the goods or service, it can be further protected
by trademark law and unfair competition law. So the first question we
discussed is how to protect design. Of cause, Canada has a special law
to protect industrial design. This is different from China, which
protects design by patent law and copyright law. As for me, protecting
design by a special law is a better choice. The second question we
discussed is three-dimensional trademark. Because China just amended its
trademark law and began to protect three-dimensional trademark a few
months ago, we spent most of our time to discuss how to protect three
dimensional trademark, what is a three dimensional trademark, and the
relationship between three dimensional trademark and industrial design.
Thanks to the fruitful discussion and the materials related, I clarified
my thoughts on industrial design and three-dimensional trademark and
dissolved some of clouds hanging in my mind in this respect.
In the afternoon of May 14, I had a meeting with Catherine Dickson,
director, information and technology trade policy division, Department
of Foreign Affairs and International Trade. Ms. Catherine Dickson is a
professional diplomat who participated many international negotiation
concerning trade, and new technology. During the meeting, we discussed
China¡¯s membership of WTO, the problems China faces after it entered the
WTO. We also discussed the prospect of the new WTO negotiation,
especially the negotiation concerning geographical indication. Because
WTO Doha Ministerial Declaration instructed TRIPS council to study the
Relationship between TRIPS agreement (The Agreement on Trade Related
Aspects of Intellectual Property Rights) and public health, TRIPS
agreement and the Convention on Biological Diversity, the protection of
traditional knowledge and folklore, we also discussed the possibility of
negotiation on these issues in the frame of WTO.
Vancouver
I arrived in Vancouver on May 15 and did research work in University
of British Columbia for more than three weeks. There are four important
things that are worth of mention here.
First, it is in UBC that I carefully digested the materials I got
from Intellectual Property Policy Directorate, Canadian Intellectual
Property Office, and Department of Foreign Affairs and International
Trade. Using those materials as clues, I further visited the websites of
Canadian Intellectual Property Office, Intellectual Property Policy
Directorate, and Department of Foreign Affairs and International Trade.
From those websites, I read and downloaded many materials concerning the
new development of the intellectual property law in Canada.
Second, I got Civil Code of Quebec from the Internet. China is under
its way to enact its civil code. Professor Zheng Chengsi, the director
of Intellectual Property Center, China Academy of Social Sciences, a
member of Legal Committee, Standing Committee of National Peoples
Congress, is a main drafter of China Civil Code. Specifically, he is in
charge of the intellectual property part of the Civil Code. Before I
left for Canada, Prof. Zheng asked me to get a copy of Civil Code of
Quebec. According to him, Civil Code of Quebec is a model in this
respect and worth of China to learn as an example. While I did research
work in library, I found a useful home page for legal information.
Through the home page of Canadian Legal Information Institute (www.canlii.org),
I did find Civil Code of Quebec and many legal texts, cases, papers, and
documents concerning Canadian legal system. I must say that this home
page is really a useful guideline for my further study of Canadian legal
system. I have shared the information about the websites with some
scholars.
Third, I took fully advantage of the Law Library of UBC and
discussed the new trend of intellectual property protection with some
professors in Faculty of Law, UBC, such as Prof. Pittman Potter. The Law
Library of UBC possesses plenty of the books and periodicals concerning
intellectual property law. During three weeks, I skipped all of the
books and periodicals in intellectual property law. While I met some
important chapters or articles, I made copies on the basis of fair use
allowed by copyright law. (This is very important for me because I am
majored in intellectual property law.)
Fourth, I participated the 2002 Joint Meetings of U.S. Law and
Society Association and the Canadian Law and Society Association. The
meetings were held in Vancouver form May 30 to June 1. Invited by one of
my friends, I delivered two speeches in two sessions ¡°Chinese Law in
Context 1¡± and ¡°Chinese Law in Context 2¡±. In the first session, as one
of three panelists, I spend half an hour on ¡° TRIPS Agreement and
Intellectual Property Protection in China¡±. In order to become a member
of WTO, China amended its patent law, copyright law, and trademark law
in recent two years, and enacted a regulation on protection of
integrated circuits. So I introduced in my speech the most important
amendments in china¡¯s intellectual property law and answered several
questions from the audience. In the second session, I talked on the
drafting of China Civil Code, such as the basic structure of the code,
the intellectual property part in the code, the main content of the
intellectual property part, and the relationship between the civil code
and the patent law, trademark law, copyright law, and unfair competition
law. The title of my speech is ¡°China Civil Code and Intellectual
Property Rights¡±. After my speech, I answered the questions and
discussed several aspects on the code with the audience.
In the 2002 joint meetings above, I also participated some
interesting sessions, such as ¡°Law and Culture in Contemporary China¡±,
¡°Legal Culture and Social Change in Asia¡±, ¡°Technology, Globalization,
and the Reach of Law¡±, ¡°New Visual Technologies and Law: Empirical and
Theoretical Perspectives¡±, ¡°Law Making in Trade Tribunals: WTO, NAFTA¡±,
¡°Communication Technology, Cyber Human Rights, and the Domain Name¡±, and
¡°Legal Culture and the Rule of Law in East Asia¡±. I must say that during
those sessions I was shocked by strong academic information,
methodological information, and other information. Of course I myself
also participated the Q&A positively, even discussed several questions I
am interested with some of the panelists. By this way, I made some new
friends.
Beijing
I came back to Beijing on June 11. Before I left for Canada, I was a
co-organizer of a conference ¡°Gene Resources, Traditional Knowledge, and
the Expression of Folklore and Their Protection¡±. The conference was
held from June 13 to 14. And there are about 60 participants who are
from universities, research institutes, government agencies, and news
agencies. In this conference, I delivered a speech on the relationship
between TRIPS agreement and public health and the protection of
geographical indication. The important point is that some of the ideas
in my speech are from my experience in Canada. For example, in the 2002
joint meetings of the U.S. Law and Society Association and the Canadian
Law and Society Association, I learnt some new views about TRIPS
agreement and public health. And it was in the discussion with the
people from Intellectual Property Policy Directorate, Industrial Canada,
I realized the differences between EU and the U.S. and Canada on the
protection of geographical indication. On the basis of my restudy, I
reported those views and ideas to Chinese audiences in the conference in
Beijing. Although my speech is an implement to the conference, it did
arouse the interests of the audiences and they asked me to provide them
a paper. Now I am drafting the paper.
In addition to the activities above, I am going to draft another
paper on the protection of the three dimensional trademark. Again this
shall be written on the basis of the materials I got from Canadian
Intellectual Property Office.
Dear Ms. Claire Huot, I have reported you my main experience in
Canada and some of its aftermath in Beijing. I do hope this letter will
serve as my report of SACS scholar and meet your requirements for the
report.
Sincerely your,
Li, Mingde
Institute of Law
China Academy of Social Sciences
[1]This is the report written by Prof. Li, Mingde as required by
Canadian Embassy. As a scholar of Special Award for Canadian Studies
(SACS), Prof. Li spent five weeks in Canada form May 6 to June 10, 2002 |
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