The Chinese government has
always attached great importance to the protection of Intellectual
Property Rights (IPR) and considered it as part of the reform and
opening policies as well as the buildup of the socialist legal
system. The Chinese government is of the view that the system of
IPR protection is of great significance to the promotion of
technological advancement, cultural flourish and economic
development. It is not only an important system that ensures the
normal operation of socialist market economy, but also serves as a
necessary condition for the exchange and cooperation of science,
technology, economy and culture among different countries. In the
two decades since 1980s, the Chinese government has done a
tremendous amount of work relating to the protection of IPR and
has made great progress in lawmaking, enforcement as well as
international exchange and cooperation in this regard.
Particularly in the past several years, the Chinese government,
abiding by the principle of tackling both surface problems and
root cause with the emphasis on the latter, has taken a series of
measures against fakes, inferior products and pirates, in order to
improve the overall level of IPR, and its great efforts have
yielded notable achievements.
¦©. Status Regarding Legislation in
Terms of IPR in China
In the early period of the reform
and opening up to the outside world in the 1980s, China began its
legislation regarding the protection of intellectual property
(IP). In order to meet the requirements of economic development
and scientific advancement and to satisfy the objective needs in
developing the national economy, China has used for reference the
relevant international conventions, treaties and the strong points
of other countries¡¯ legislation in this aspect, gradually
established and improved its legal system in terms of the
protection of IPR. Our present legal system in this regard mainly
comprises the following three parts: laws, administrative
regulations and department rules. These laws mainly include:
Trademark Law of the People¡¯s Republic of China, Patent Law of the
People¡¯s Republic of China, Copyright Law of the People¡¯s Republic
of China, and so on. Special administrative regulations include:
Implementing Regulations on Trademark Law of the People¡¯s Republic
of China, Implementing Regulations on Patent Law of the People¡¯s
Republic of China, Implementing Regulations on Copyright Law of
the People¡¯s Republic of China, Regulations of the People's
Republic of China on the Customs Protection of Intellectual
Property, Regulations on Computer Software Protection, Regulations
for the Protection of Layout-Design of Integrated Circuits,
Regulations on the Protection of New Varieties of Plants, and so
on. Special department rules include: Provisions for
Identification and Protection of Well-known Trademarks, Procedures
for the Registration and Administration of Collective Marks and
Certification Marks, Measures on Compulsory Licensing of Patents,
and so on (for details about the promulgation and amendment of
some of those main specific laws, administrative regulations, and
department rules on intellectual property, please refer to Table 1
below). In addition, some of China¡¯s civil laws, criminal laws,
foreign trade laws and judicial interpretations issued by the
Supreme People¡¯s Court or the Supreme People¡¯s Procuratorate also
include special regulations about IPR protection. In conclusion,
China has established a relatively sound legal system concerning
IPR, which has won universal acknowledgment from the other
countries across the world as well as the international
organizations.
During the process of building up
its legal system in terms of IPR, China has made amendments
regarding some concerned laws, regulations and rules with a view
to satisfying the requirements arising from reality. For example,
when making preparations for joining WTO, the Chinese government
made necessary amendments and improvement regarding its legal
system about IPR according to the requirements of Agreement on the
Trade-Related Aspects of Intellectual Property Rights (TRIPS) of
WTO, in order to fulfill its commitment for joining the
Organization. The amended laws, regulations and rules provide a
wider protection scope and stronger protection for the owner of
IPR and they put more emphasis on judicial reviews. These
amendments have greatly improved Chinese legal system in terms of
IPR, thus ensuring its consistency with the TRIPS. For instance,
the amended Trademark Law of the People¡¯s Republic of China and
its implementing regulations have extended their protection scope
so that more objects can be protected as trademarks. They contain
special provisions for the protection of geographical indications
and well-known trademarks, add regulations concerning the right of
priority, and judicial reviews over administrative determinations
on trademarks, and also strengthen the investigation and
punishment against infringement. The amended Patent Law of the
People¡¯s Republic of China and its implementing regulations have
enlarged the scope of objects enjoying patent protection to
medicine, food and substances obtained chemically. They prolong
the protection term of patents, perfect requirements for the award
of compulsory patent license and strengthen judicial reviews over
administrative determinations on patent for a design and utility
model. The amended Copyright Law of the People¡¯s Republic of China
and its implementing regulations have extended the types of rights
to be protected. They clarify the rights of performers and
producers, add the provisional measures as property attachment and
preservation of evidence, and provisions about statutory damages,
and increase administrative punishment against infringements
harming the public interests. These three amended laws also
include temporary injunctions prohibiting an action by a party
before a lawsuit and provide stronger protection for the owner of
IPR. All these amendments have greatly improved Chinese legal
system regarding IPR protection.
Moreover, China has never stopped
its work on new laws and regulations for IPR protection. For
example, Interpretations
by the Supreme People¡¯s Court and the
Supreme People¡¯s Procuratorate on Several Issues of
Concrete Application of Laws in Handling Criminal Cases of
Infringing Intellectual Property went into effect on Dec. 22,
2004, while the Regulations for the Collective Administration of
Copyright have become effective on Mar. 1, 2005. In addition,
Regulations on the Right of Communication through Information
Network are also under discussion at the present time. It is
believed that with the promulgation of these new laws and
regulations, China¡¯s legal system regarding IPR will be further
improved and perfected, and China¡¯s legislation in this regard
will gain continuous development.
II. China¡¯s Accession to International Conventions for the
Protection of IPR and Its Participation in International
Negotiation about IPR
1. China¡¯s Accession to International Conventions for the
Protection of IPR
While improving its legal system, China, since the 1980s, has
acceded one after the other to the major international conventions
and agreements for the protection of IPR. Since 1980 when China
first acceded to the Convention Establishing the World
Intellectual Property Organization, it has acceded successively to
the Paris Convention for the Protection of Industrial Property,
Treaty on Intellectual Property in Respects of Integrated
Circuits, Madrid Agreement Concerning the International
Registration of Marks, Bern Convention for the Protection of
Literary and Artistic Works, Universal Copyright Convention,
Convention for the Protection of Producers of Phonograms against
Unauthorized Duplication of their Phonograms, Patent Cooperation
Treaty, Nice Agreement Concerning the International Classification
of Goods and Service for the Purposes of the Registration of
Marks, Budapest Treaty on the International Recognition of the
Deposit of Microorganisms for the Purposes of Patent Procedure,
Locarno Agreement Establishing an International Classification for
Industrial Design, Strasbourg Agreement Concerning the
International Patent Classification, International Convention for
the Protection of New Varieties of Plants and WTO¡¯S
Agreement on Trade-Related Aspects of IPR
(See Table 2 for information about China¡¯s accession to
international conventions for the protection of IPR).
During the process of its
accession to these international conventions, treaties and
agreements, China has always been active in taking part in such
activities as prescribed by them, and it has won worldwide
recognition for its sincere attitude of adhering to these
conventions, treaties and agreements as well as its ability to
undertake these international responsibilities.
Furthermore, China is also
considering acceding to other international treaties. An example
is that it has set about to draft and amend relevant laws in order
to accede to the WIPO Copyright Treaty (WCT) and the WIPO
Performances and Phonograms Treaty (WPPT).
2. China¡¯s Participation in Reforms
on International IPR System and in International Negotiations
about IPR Issues
Paying close attention to the
development of the situation concerning IPR worldwide, China has
actively organized its relevant departments to participate in
reforms on IPR system and international negotiations about IPR
issues, initiated by international organizations such as WTO, WIPO,
UPOV, APEC, ASEM, etc. For example, China actively took part in
the negotiations about such subjects as public health,
geographical indications, genetic resources, traditional knowledge
and other IPR issues, which were considered to be important parts
of the new round Doha negotiation of WTO and which were presided
over by TRIPS Council. China organized its relevant departments to
attend many conferences held by WIPO, at which Chinese delegation
made important speeches on the progress China had made in its IP
system as well as on such hot IP issues in the world as
international patent system, genetic resources, traditional
knowledge, folklore and so on. These speeches fully showed China¡¯s
principles and attitude. China also attends conferences organized
by UPOV, APEC or ASEM, at which Chinese delegates actively
propaganda the progress Chinese government had made in IP
protection, and had beneficial exchange with their counterparts
from the rest of the world.
III. China¡¯s Exchanges and Cooperation with Relevant International
Organizations, Other Countries and Regions Regarding IPR
1. China¡¯s Exchanges and Cooperation with Relevant International
Organizations Regarding IPR
China has, in an all-round way and by various means, stepped
up its exchanges and cooperation in the field of IPR with relevant
international organizations such as WIPO, UPOV and APEC. Here are
some examples for the last few years. The National Copyright
Administration of China (NCAC) cooperated with WIPO to organize
"Asia-Pacific Symposium on the Impact of the WCT and WPPT on the
Copyright Industry" in Guangzhou from Mar. 27 to 29, 2001. From
June 10-16, 2001, State Intellectual Property Office (SIPO)
cooperated with WIPO to jointly organize Intellectual Property
Enforcement Training Seminar in Beijing and Shanghai, and over 250
participants were at the seminar. From July 23-26, 2001, Asia
Technology Coordination Meeting for Protection of Plant Varieties
was held in Beijing, which was sponsored by UPOV and organized by
the Ministry of Agriculture, State Administration for Forestry,
and SIPO. From May 21 to 25, 2002, SIPO together with State
Administration for Industry and Commerce (SAIC) and NCAC,
cooperated with WIPO, sponsored in Beijing the China-Africa Forum
on IP, the Forum on Innovative Power and Invention. During the
period of the forums, China and WIPO signed the framework
agreement of cooperation. From 20 to 28 November, the NCAC and the
WIPO jointly held the Symposium on the "Right of Disseminating to
Public" mentioned in WCT and WPPT of WIPO.
And
in April 2004, the Ministry of Commerce and APEC jointly convened
in Beijing the APEC 18th Conference of Intellectual
Property Experts Group as well as the Symposium on Patent
Protection and Access to medicine. These events have not only
offered opportunities for countries to exchange experiences and
opinions, but also are of great significance for the improvement
of intellectual property protection in China as well as the other
countries.
2. China¡¯s Exchanges and Cooperation
with Other Countries or Regions Regarding IPR
China has also conducted active
exchanges and cooperation with other countries or regions
regarding IPR. Let¡¯s take the United States as an example. China
and the US signed the Memorandum of Understanding between the
Government of the People¡¯s Republic of China and the Government of
the United States of America on the Protection of Intellectual
Property in 1992 and established in 2000 a framework for regular
consultation mechanism on IP. On the basis of annual consultation,
a roundtable discussion on the same issue, jointly sponsored by
the two sides, took place in 2003. And in 2004, the Intellectual
Property Protection Working Group of Joint Commission of Commerce
and Trade (JCCT) of China and US was set up. Another example is
the EU. China and EU signed the Minutes of Discussion on
Intellectual Property Protection on Jun. 30, 1992. On Oct. 30,
2003, the two sides signed an agreement on establishing China-EU
Dialogue on Intellectual Property which was viewed as a new
platform for China and EU to conduct exchanges regarding IPR, and
the first session of dialogue between the two sides was
successfully carried out from Oct. 21 to 22, 2004. The EU-China IP
Cooperation Program started in 1996 and lasted for six years. In
addition, activities related to the China-EU Mixed Committee on
Trade and Economic Cooperation at Minister-Level also include
discussions about IP issues. The trademark organs of China and
France regularly hold the China-France Trademark Mixed-workgroup
Meetings and on Sep. 24, 1998, China and France signed Cooperation
Agreement on Intellectual Property between the Government of the
People¡¯s Republic of China and the French Government. China has
also established bilateral or triangular dialogues and cooperation
mechanisms on IP with Japan and South Korea. And since 2001, the
Third Trilateral Policy Dialogue Meetings among the Commissioners
of the SIPO, the Japan Patent Office (JPO) and the Korea
Intellectual Property Office (KIPO) were held annually. The
copyright administrations of China and Japan meet regularly, and
in 2003, the Chinese National Copyright Administration and
Japanese Ministry of Culture signed the Cooperative Agreement on
Copyright and Neighboring Rights. In 1996 the Trademark Bureau of
Chinese State Administration for Industry and Commerce and JPO
created a mechanism that leaders from both sides should meet
irregularly, and currently, the said Chinese organ and South
Korean offices are negotiating to foster a close business
cooperation relationship between the two sides. Moreover, the
joint meetings of bilateral economy and trade between China and
Japan as well as between China and South Korea also concern the
subject of IPR, so do the Director General Consultation Meeting
among China, Japan and South Korea. The Chinese government has
also conducted fruitful exchanges and cooperation on IPR
protection with other countries or regions like Brazil, Mexico and
so on.
Furthermore, under these
frameworks of dialogues and cooperation, China has, in conjunction
with other countries, held many seminars over the issue of IPR.
For example, from September 4-6, NCAC and European Union
Intellectual Property Office (EPO) co-organized the training
seminar on the copyright collective management in Beijing. During
the late Aug. 2003, the NCAC and Japanese Ministry of Culture
jointly convened the First Sino-Japan Copyright Seminar in
Beijing. From 23 to 24 October 2003, under the framework of the EU-China
IP Cooperation Program, the SIPO and the EPO co-organized the
Symposium on Partnership in the Protection of Intellectual
Property between China and Europe- Past, Present and Future in
Beijing. And in Oct. 2004, the Chinese Ministry of Commerce,
Delegation of EU in China and Japanese Embassy in China jointly
convened the IPR Seminar of China, EU and Japan. Through these
effective communications and dialogues, China and other countries
or regions have deepened their understanding of each other,
benefited from each other¡¯s strengths and jointly contributed to
the improvement of the protection of IPR.
IV. Situation about Publicity Activities for Improving the Public
Awareness of IPR Protection in China
To crack down on fakes, inferiors
and piracies and protect IPR, the Chinese government adopts a
series of publicity measures, which mainly include: intensify
legal publicity activities ( especially for new laws and
regulations) via news coverage, television and broadcastings, and
symposiums, and make legal education concerning intellectual
property as part of national legal publicity work simultaneously,
strengthen the supervision of public opinion, expose some
influential typical cases through news media and constantly bring
to light the top 10 cases damaging market economy for many years,
which has produced an awful and preventive effect upon future
criminal activities and malpractice. All these have enhanced IP
protection awareness of the public and laid a good foundation for
comprehensive legal enforcement and protection of IPR. For
instance, In April 2001, SIPO cooperated with the SAIC, NCAC to
organize series of activities and events for the World
Intellectual Property Day entitled "Today Creates the Future". All
across the country, there were activities for the dissemination of
intellectual property to create an environment for the respect of
the knowledge and protection of the IPR for a common beautiful
future.
In particular, the National
Office of Rectification and Standardization of Market Economic
Order, National Anti-Pornography and Anti-Illegal Publications
Office, SIPO, Ministry of Public Security, Customs General
Administration, SAIC, General Administration for Quality
Supervision, Inspection and Quarantine, General Administration for
News and Publications, and NCAC, in accordance with the national
work plan 2004 for the rectification and standardization of market
economic order, organized a joint event named Publicity Week of
Intellectual Property Protection to match the World Intellectual
Property Day on April 26. The Publicity Week, with the theme of
Respecting Intellectual Property and Maintaining Market Order, was
carried out nationwide from Apr.19 to 26, 2004. The said Week
aimed to popularize general knowledge about IP protection,
publicize the significance of reasonable and efficient IP
protection, the vital role intellectual property system can play
in the implementation of the strategy of making the country
prosperous by means of science, education and talents and in the
promotion of scientific and technological innovation, cultural
prosperity and economic development, and publicize China¡¯s work
and results concerning IPR protection. In addition, a batch of
typical cases infringing on IPR and their punishments were
disclosed during the Week. The Week included the following
activities: news conference for the Protection Status regarding
China¡¯s IPR attended by both Chinese and foreign reporters,
Symposium on China¡¯s IPR and Economic Development, Dialogue about
IPR Topic by University Students, Award-given Ceremony for the
Second Female Inventors Competition, a series of publicity
programs with the theme of IPR in China and commonwealth
advertisements in this regard were provided by China Central
Television, the articles-soliciting activity with the subject of
Respecting IPR and Maintaining Market Order on such media as China
IPR Newspaper, Copyright Knowledge Competition on media such as
CCTV, China News and Publication Newspaper and Sohu Website,
broadcast of a special award-given program of Golden Wisdom Prize
for invention and creation among common people nationwide jointly
made by CCTV and some local TV stations and shown on CCTV,
publicity activities such as small exhibitions, street
consultations, and lectures throughout the country, broadcast of a
soiree with the theme of Crack Down on Piracies and Protect IPR on
CCTV. To guarantee the smooth implementation of the said Week, the
National Rectification and Standardization Office, Department of
Publicity of the Central Committee of the Chinese Communist Party,
and Information Office of the State Council were authorized by the
Chinese government to be responsible for the organization and
coordination of the activity. To this end, a special organizing
committee for the Publicity Week of Intellectual Property
Protection was formed and a work-coordinating group set up at
State Intellectual Property Office, and a notice about
preparations for the Week was issued to the local departments
concerned nationwide. The notice required all the provinces,
municipalities and regions to fully realize the significance of
the Week, and made clear the specific requirements for its
preparations, implementation and follow-up activities. On account
of the wide range and large scale, the Week achieved its desired
result. The Chinese government hopes to crack down infringements
on IPR and increase public awareness of protection in this regard
through such regular activities.
V. Status Regarding China¡¯s Enforcement of IPR
1. Enforcement Channels of IPR in China
There are two parallel approaches adopted in the enforcement
of IPR protection in China, namely, administrative and judicial
measures. In case of the infringement, the right holder may either
file a lawsuit or apply to competent authorities for
administrative measures.
Protecting IPR through administrative means is an important
feature of the enforcement of IPR protection in China. According
to the Patent Law, the relevant authorities under the State
Council or local governments can establish a patent administration
organ. To effectively implement the Copyright Law, the National
Copyright Administration is set up at China¡¯s central level and
local administrations in this regard can also be found in various
provinces, municipalities and autonomous regions, and even in
relatively big cities. Pursuant to the provisions of the Trademark
Law, trademark is managed with the principles of registration at
central level and administration by local organs. Trademark
management organs are included in the administrations for industry
and commerce at various levels from state, province, city
(prefecture) to county. In addition, China General Administration
of Customs set up a Border Protection Division for IP protection
in June 1995 and all the local customs administrations also
designated the teams and contact persons responsible for IPR
protection within their own areas. Therefore, the right holder can
protect his or her rights through the above administrative
approaches in addition to judiciary means. As for acts infringing
IPR, the right holder can complain to the competent administrative
authorities and the above authorities can also investigate and
handle cases in light of their duties. During this process, they
can seal up, sequester infringed goods and take such remedies as
order of stopping infringement and fines. On account of its rapid
crackdown on infringement and low cost, administrative measures
are very popular with right holders.
As far as the judiciary aspect is concerned, special judicial
tribunals for IP cases have been established at courts at all
levels in China. During the process of litigation, a court can
take such temporary measures as
preservation of evidence or property. In case of torts, the
people¡¯s court, in accordance with the law, can not only order a
tort-feasor to undertake such civil liabilities as infringement
cessation, negative influence elimination, apology, and loss
compensation, but also give him or her such punishments as illegal
income confiscation, fines, and detention. In the event of an
intellectual property crime, an intellectual property wrongdoer
will be given a penal punishment in accordance with the law. As
prescribed by the Criminal Law of the People¡¯s Republic of China,
a criminal in this regard can be sentenced to a seven¨Cyear
imprisonment as maximum penalty.
2. New Achievements Regarding IPR Enforcement in China
In recent years, the Chinese government has devoted huge
manpower and material resources to IPR enforcement in severely
cracking down on counterfeiting and pirating, and attained
remarkable results. (See Tables 3, 4 and 5)
From 1996 to Oct. 2003, China seized 163 illegal CD production
lines. In Aug. 2003, 42 million smuggled and pirated CDs were
destroyed once during the Campaign for the Destruction of Smuggled
and Pirate CDs carried out by the Customs General Administration
and the State Administration for News and Publications.
It is worth noting that the Chinese governments at all levels
have fully realized the promoting role which IPR protection can
play in China¡¯s economic development, basically removed
protectionism for their local enterprises involved in counterfeit
and infringement, and positively taken cross-region actions to
crack down on counterfeiting and pirating. Enforcement networks of
trademark have been established in Circular Huaihai Economic Zone
in China, one city and three provinces of East China, and three
provinces of Northeast China. These networks play a certain role
in the cross-region coordination and cooperation of administrative
enforcement. In the meantime, relevant enforcement authorities
also pay attention to strengthen their mutual coordination and
cooperation. For example, a corresponding joint conference system
has been instituted between China¡¯s judiciary and administrative
organs of intellectual property, and a positive, efficient
cooperation has been obtained.
Practice proves that illegal acts infringing IPR have been
successfully abated, the lawful rights and interests of right
holders and consumers have been protected, the market economy
environment improved, and the market economic order of fair
competition maintained via the enforcement of various authorities.
3. Interpretations
by the Supreme People¡¯s Court and the
Supreme People¡¯s Procuratorate on Several Issues of
Concrete Application of Laws in Handling Criminal Cases of
Infringing Intellectual Property
In accordance with the pertinent
provisions of the Criminal Law of the People¡¯s Republic of China,
the Supreme People¡¯s Court and the Supreme People¡¯s Procuratorate,
out of practical need for punishing IPR infringement crime,
promulgated the Interpretations on Several Issues of Concrete
Application of Laws in Handling Criminal Cases of Infringing
Intellectual Property (hereinafter referred to as Interpretations)
on Dec. 8, 2004 to further strengthen criminal judicature
protection of intellectual property, effectively crack down on
intellectual property infringement crime, maintain market economic
order, and constantly improve legal protection level of
intellectual property in China. The Interpretations went into
effect on Dec. 22, 2004.
The Interpretations give detailed
and definite stipulations regarding the standard for concrete
application of criminal responsibility for intellectual property
crimes, lower the threshold of penal punishment for intellectual
property, expand the range of penal protection in intellectual
property, determine terminologies concerned, thus resolve
difficult issues of law application by local enforcement, and
enhance the maneuverability of relevant articles in the Criminal
Law.
During the process of drafting,
the judiciary organs extensively solicited opinions of pertinent
domestic businesses and authorities in charge and listened to
those of industry associations and departments such as the China
Association of Enterprises with Foreign Investment, EU Commission,
Commercial Software Union, China Commercial Software Union, U.S.
Film Association, China American Chamber of Commerce, and U.S.
Information Industry Organization through many channels and means
for many times. In a word, the drafting of the Interpretations was
a process during which views were widely sought. In particular,
sufficient attention was given to the opinions of the relevant
countries and multinationals, which had never occurred previously
in such drafting process.
As a judiciary measure, the promulgation of the
Interpretations is to meet the demand to develop socialist market
economy and improve the legal system of intellectual property, and
to practically keep China¡¯s serious commitments to the
international community and set a good international image. It
will be beneficial to the enhancement of domestic enforcement
level of intellectual property and that of trial in this regard,
to the intensification of crackdown on IPR infringement crimes,
and to the improvement of the penal protection of intellectual
property.
4. Use of Legitimate Software in
Government by Chinese Government
To better fulfill its
international commitments and promote the IPR protection for
software in China, the State Council issued a document in 2000,
requiring governmental organs and state-owned enterprises to use
legitimate software .To comprehensively carry out the order of the
State Council, the NCAC, former State Planning Committee, Ministry
of Finance, and Ministry of Information Industry issued a joint
document in 2001, requiring governmental organs and state-owned
enterprises to use legitimate software and establish a regular
inspection system. To this end, the Chinese Government has
conducted a check among various ministries and departments of the
State Council. It had completed the work for using legitimate
software before May 2002. At present, the Government is
concentrating on promoting governments at local levels to strictly
implement relevant provisions of the State Council and has made a
significant progress in this aspect.
5. National Working Group on IP
Protection, the Mechanism of Regular Communication and
Coordination with Foreign Investment Enterprises and Nationwide
Special Campaign for IPR Protection
1). National Working Group on IP
Protection
To strengthen the organization
and leadership of IPR protection, the State Council adjusted and
reinforced the National Working Group on IP Protection in August
2004. Vice Premier Wu Yi of the State Council has been appointed
as head of the Group, and the 12 authorities comprising the group
include the Office of Legislative Affairs of the State Council,
the Ministry of Public Security, the Ministry of Commerce, the
State Administration for Industry and Commerce, the National
Copyright Administration, the State Food and Drug Administration,
the General Customs Administration, the Ministry of Information
Industry, the State Intellectual Property Office, the General
Administration of Quality Supervision, Inspection and Quarantine,
the Supreme People¡¯s Court and the Supreme People¡¯s Procuratorate.
It is responsible for the unified planning and coordination of
national intellectual property protection, and supervision of
handling important cases.
Since 2001 when it was set up,
the National Office of Rectification and Standardization of Market
Economic Order has launched many concentrated campaigns to punish
acts of harming market economic order such as infringement and
piracy. For instance in 2001, the administrative enforcement
authorities such as those for industry and commerce, quality
supervision, inspection and quarantine, health, agriculture, and
drug administration, under the direction and coordination of the
Office, sent enforcement personnel 8.9-million persons/times in
total, destroyed over 500,000 dens for counterfeiting and inferior
products, investigated and handled more than 1.2 million cases
with their value amounting to 16.4 billion RMB.
2). the Mechanism of Regular
Communication and Coordination with Foreign Invested Enterprises
In 2003, the Chinese Government
constituted the Mechanism of Regular Communication and
Coordination with Foreign Invested Enterprises to further improve
the foreign investment environment, reinforce crackdown on
infringement, fakes and inferior products, and protect
intellectual property. With the National Office for Rectification
and Standardization of Market Economic Order taking the lead, the
mechanism includes the Ministry of Public Security, Ministry of
Commerce, Customs General Administration, State Administration for
Industry and Commerce, General Administration for Quality
Inspection, State Administration for News and Publications,
Supervision Bureau for Food and Medicine, State Intellectual
Property Office, Supreme People¡¯s Court, Supreme People¡¯s
Procuratorate, and China Association of Enterprises with Foreign
Investment. It is mainly responsible
for regular communication with foreign investment enterprises and
for getting information about problems and suggestions in terms of
cracking down on the counterfeit goods, IPR protection, improving
foreign investment environment, and maintaining a unified, open,
fair, competitive and orderly market, and organizing and
coordinating departments concerned to study them. Through the
mechanism, the enforcement authorities intensify their cooperation
in infringement crackdown with foreign investment enterprises and
have attained remarkable results.
3). Nationwide Special Campaign for IPR Protection
In order to achieve more concrete results, the State Council
decides to launch a nationwide special campaign led by the working
group from September 2004 to August 2005. The campaign will focus
on the key subjects, key links and key regions. This campaign
fully reveals China¡¯s position and determination to protect
intellectual property. On Aug. 19 and 27, 2004, the State Council
successively convened a conference of the Working Group for IP
Protection and a video and telecommunication conference for
nationwide special campaign for IPR protection, at which Vice
Premier Wu Yi gave a speech, making directive and arrangements for
the campaign.
Led by the Working Group on
Intellectual Property Protection, this campaign will be
implemented by local governments and departments under the working
pattern featuring uniform leadership by central government,
responsibility held by local governments, guidance and
coordination by relevant departments, and joint action by all
parties involved. During the campaign, key areas, linkages and
regions will be priority so as to promote protection work in all
fields and regions. The so-called ¡°key areas¡± refer to the
protection of trademark right, copyright and patent. The ¡°key
linkages¡± refer to the import and export, exhibitions, wholesale
markets, OEM, printing and duplication business, etc. The ¡°key
regions¡± refer to the regions where the counterfeiting and piracy
are rampant. Besides, the major counterfeiting and piracy cases
with serious consequences will be smashed in a forceful manner.
The campaign gives its top priority to pirate CDs and trademark
infringements. Especially focusing on prosperous business
districts, foreign-visitor-oriented hotels, and traffic centers,
the campaign continues to severely crack down on illegal CD
production lines and peddlers selling pirated CDs, to supervise
governments at all levels in using legitimate software so that
supervision can be conducted on an institutionalized and regular
basis and problems will be rectified in time, to especially
regulate large commodity markets in Beijing, Shanghai, Tianjin,
coastal areas of Southeast China, and the rest of the country with
a view to severely striking trademark infringements. The working
group listed 15 regions as the key areas in the campaign,
including Beijing, Shanghai, Tianjin, Hebei, Inner Mongolia,
Liaoning, Jiangsu, Zhejiang, Anhui, Fujian, Henan, Hunan,
Guangdong, Shanxi and etc. Local authorities carried out forceful
measures to ensure the effectiveness of the actions and to prevent
the infringements from reappearing. All the administrative bodies
as well as local governments assumed more specific
responsibilities, and formed a unified cooperation mechanism for
IPR protection. Moreover, cross-regional enforcement was
implemented to strengthen the protection and fight against local
protectionism.
To guarantee the success of the
special campaign, the Working Group on IP Protection and the
relevant departments have organized six supervision groups to
especially oversee and direct the implementation of the above
operation in regions concerned.
VI. Conclusive Remarks
The Chinese government has always
attached great importance to IPR protection, not only to the
protection of foreign Intellectual Property, but also to that of
our own Intellectual Property. So far, the whole nation has
realized that the IPR protection is not only the requirement to
keep China¡¯s commitments to the World Trade Organization, but also
the necessity to broaden its opening to the outside world, improve
investment environment, and introduce overseas investment and
advanced technologies. In the meantime, the IPR protection is also
an intrinsic need to speed up our own economic construction and
social development.
Anyhow, it is worth pointing out
that the establishment and perfection of IPR system and the
increased protection awareness of IPR for any country are bound to
be a process of gradual development. The protection level of IPR
in one country closely links with that of its economic development
and technological progress. At present, some problems still exist
in China¡¯s IPR protection, but they have attracted our special
attention and are continually resolved one after another. The
Chinese government¡¯s determination and attitude regarding IPR
protection have been consistent, the legal rights and interests of
right holders from the rest of the world will be protected in
China and all infringement and counterfeiting acts will be
punished in accordance with the laws. Furthermore, IPR protection
is a worldwide issue, demanding full cooperation from all sides.
The Chinese government hopes that some countries should remove
their suspicions about China¡¯s IPR protection, have a better
understanding of Chinese laws, regulations, and enforcement
regarding IPR protection, and with cooperative attitude to jointly
promote technological progress. |