An Introduction to China� Intellectual Property Protection
China has made protection of intellectual property rights a critical component in its reform and opening-up policy and socialist legal construction. The formulation of laws and regulations in this field goes way back to the late 1970s and China, since then, has actively participated in relevant international conventions and activities sponsored by international organizations, and has intensified its exchanges and cooperation with countries throughout the world in the field of IPR protection. As a result, notwithstanding the initial stage of its development, China� IPR protection system is proceeding from a high starting point with its level of protection aimed at achieving a world dimension and world standards.
Chinese Trademark Law was promulgated in 1982, which is a milestone of the construction of modern IPR protection system in China.
Chinese Patent Law was promulgated in 1984.
The General Principles of Civil Law was promulgated in 1986, in which IPR is ascertained as the civil rights of the natural and legal persons in the basic civil law.
Chinese Copyright Law was promulgated in 1990. The Regulations for the Protection of Computer Software was promulgated in 1991 as the accessory of the copyright law. The Provisions on the Implementation of the International Copyright Treaty was promulgated in 1992, which makes clear the rights of the foreign copyright holders. In 1994, the Decisions on Penalizing the Crimes of Infringing Copyright makes the infringing of copyright a kind of crime.
The amendments to the patent law in 1992 expanded the protection scope of the patent to products of chemicals, and extends the protection time of patent and design to 20 years and 10 years respectively.
In 1993 and 1995, China made amendments to trademark laws, and in which extends the protection scope to service trademark. In 1993, China promulgated the Provisions on Penalizing the Crimes of Counterfeiting Registered Trademarks to strengthen he crackdown of the activities of counterfeiting registered trademarks.
Law on Prevention of Unfair Competition was promulgated in 1993, which makes the activities of infringing IPR an unfair competition method.
In 1995, the Regulations on IPR Border Protection was issued.
The latest provision is the Regulations on Protection of Plant Varieties of 1997.
We can see that a complete set of laws and regulations on IPR protection has been provided in China, which are of world standard.
In order to improve the IPR protection to accord with the international systems, China has been actively participating the IPR international organizations and treaties since 1980.
In 1980, China became the member of World Intellectual Property Organizations.
In 1985, China became the member of Paris Convention for the Protection of Industrial Property.
In 1989, China was one of the first signing countries of Treaty on Intellectual Property in Respect of Integrated Circuit.
In 1989, China became the member of Madrid Agreement Concerning the International Deposit of Industrial Designs.
In 1992, China became the member of Bernie Convention for the Protection of Literary and Artistic Works.
In 1993, China became the member of Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms.
In 1994, China became the member of Patent Cooperation Treaty.
In 1994, China became the member of Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks.
In 1995, China became the member of Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure.
In 1995, China applied for the membership of Protocols of Madrid Agreement Concerning the International Deposit of Industrial Designs, which made the agreement came into effect in 1995.
In 1996, China became the member of Locarno Agreement on Establishing an International Classification for Industrial Designs.
In 1997, China became the member of Strasbourg Agreement Concerning the International Patent Classification.
Besides the above efforts, China attended the Trips negotiations and initialed the final text. From this we can see that China is very serious about the coordination with the IPR international protection and the achievements are outstanding in the world.
The progress made by China in implementing IPR laws and regulations should be attributed to, first and foremost, the comprehensive protection through judicial route and administrative route provider for by the IPR laws. IPR holders may resort to either of the routes to protect their legitimate rights and interests when their intellectual property rights are infringed.
- Judicial channels of IPR protection in China
When the infringement of IPR is found in China, the interested person can bring a lawsuit to the courts. Since 1992, the special IPR courts are set up in the big cities like Beijing and Shanghai on the basis of its specialized collegial panels. According to China� legislation, all IPR infringing activities shall be held responsible for legal liabilities which include civil and criminal liabilities. Where any person passes off the IPR of another person and the circumstances are serious,, the person directly responsible shall be prosecuted, for his criminal liability, by applying relevant provisions of the Criminal Law. If found guilty, the person directly responsible may be sentenced to a fixed-term imprisonment of no more than three years or be subjected to a detention or a fine.
- Administrative channels of IPR protection in China
As far as the settlement of IPR disputes is concerned, the administrative route offers a quicker and less expensive solution.
The administrative channels of IPR protection are provided in patent law, trademark law and copyright law. The authorities, while in the process of investigating and handling the case, are empowered to order the infringer to stop all the acts of infringement and compensate for all the losses. Where any person passes off any unauthorized product or process as authorized product or process, administrative authorities for IPR affairs shall order such person to stop the passing off, correct it publicly and pay a fine.
To intensify the administrative protection, the Sate Council set up an IPR Working Conference in July, 1994. Meanwhile, IPR coordination agencies have also been set up in provinces, autonomous regions and municipalities directly under the central government. In some provinces and cities, joint task forces were organized for IPR protection, In June, 1995, IPR Border Protection Division was established in Customs General Administrations.
The enforcement of IPR protection in China
China has taken substantial, practical and effective actions and has already made notable achievements in its IPR protection.
- Patent protection
The courts and patent administrations made a great contribution to patent protection. According to the recent statistics, in 1996, 950 patent cases had been closed in the courts of the whole country, which accounts for 90% of the 1,055 cases received in the year. The patent administrations had received 546 patent cases and closed 369 which is 68% of the total cases. 121 patent counterfeiting cases had been found by the administrations.
Trademark protection
In 1995, 14,000 cases of infringing trademark were investigated and prosecuted by the industrial and commercial administrations.
- Copyright protection
China has constantly reinforced copyright protection in recent years. With large amount of copyright-infringing cases successfully accepted and handled by more and more courts, the legitimate rights of copyright holders have been effective protected. According to the uncompleted statistics, 10,000,000 pieces or boxes of illegal audio and video products had been seized and destroyed. 4,000 shops selling illegal products and 8,000 shops without licenses were closed. 20 distributing centers of illegal products were closed. Efforts have also been reinforced to investigate and deal with , in a serious manner, factories which illegally reproduce pirated, obscene and pornographic CDs in violation of relevant regulations, Punishment has been imposed on six factories up till now. More than 800 suspects were seized. All the efforts helped to stop the piracy activities in audio-visual areas and the market has obviously changed for the better.
- Border enforcement of IPR protection by the customs
In 1996, 705 cases of IPR infringements were handled by the customs administrations in the whole country, and the value of the goods concerned are 15,000,000RMB. Among the cases, 38 is of trademarks, 8 is of patent and 659 is of copyright, the value of which is 11,400,000, 1,160,000,and 3,240,000 respectively.
IPR training and popularization
Chinese government lays much emphasis on IPR training and popularization. In 1996, 397,900 persons were trained in different kinds of IPR programs. IPR Working Conference of the State Council selected 45 enterprises as the trial enterprises to establish internal IPR management system, in which to protect their own rights and respect the rights of the others. Intensive publicity campaign has also been held in large and medium-sized cities on public holidays or on other important occasions. Localities that have ways and means have set up exhibitions on counterfeited products and prevention measures, telling consumers how to tell a counterfeited products from an authentic one as well as experiences that have been gained. This has proved to be a good beginning.