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| IPR in China |
By:
Department of Treaty and Law of MOFCOM |
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Ι. Status Regarding Legislation in Terms of IPR in China
Tuesday,April 05,2005
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.
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