The State Council Information Office published
on April 21, 2005, a white paper titled New Progress in China's Protection of
Intellectual Property Rights. The nine-chapter report discusses the policies
adopted and actions taken by the government to protect IPR during the past
decade. The last white paper on this topic was published in 1994.
New Progress in China's Protection of Intellectual Property
Rights
Foreword
I. Basic Situation of the Protection of Intellectual Property
Rights
II. Patent Protection
III. Trademark Protection
IV. Copyright
Protection
V. Intellectual Property Rights Protection for Audio and Video
Products
VI. Protection of New Varieties of Agricultural and Forestry
Plants
VII. Customs Protection of Intellectual Property Rights
VIII.
Public Security Organs Act on Criminal Infringement on Intellectual Property
Rights
IX. Judicial Protection of Intellectual Property Rights
Conclusion
Foreword
The intellectual property system is a basic legal system that promotes
mankind's economic development, social progress, scientific and technological
innovation, and cultural prosperity. As science and technology is developing
rapidly worldwide and the pace of economic globalization is accelerating, the
status of the intellectual property system in economic and social life has
reached a historical high. The protection of intellectual property rights (IPR)
has drawn wide attention of the international community.
China is a country with a long history of civilization. Over the past several
thousand years, vast numbers of outstanding Chinese scientists, inventors, men
of letters and artists have made enormous contributions to mankind's development
and progress with their splendid intellectual achievements. The Chinese
government and people are keenly aware of the value of inventions, creations,
and science and technology.
The IPR protection system was established at a comparatively late date in
China, but has developed rapidly. Major progress has been made in IPR protection
since the late 1970s, when China initiated the reform and opening-up policies.
An IPR system has been gradually established, and is promoting healthy economic
development and overall social progress.
In order to help the international community have a better understanding of
the real situation regarding China's IPR protection and make a proper judgment,
we hereby give a brief introduction to and explanation of related issues.
I. Basic Situation of the Protection of Intellectual Property
Rights
China has always adopted a responsible attitude to actively promoting IPR
protection. While adhering to the international rules on IPR protection, China
has decided on a level of IPR protection appropriate for its own national
situation, and made great efforts to balance the interests among intellectual
property creators, users and the general public, so as to create a benign circle
for the creation and use of intellectual property.
Major progress has been made on IPR protection in China over the past years
thanks to concerted efforts made by people from all walks of life.
- A relatively complete system of laws and regulations that covers a wide
range of subjects and is in line with generally accepted international rules has
been established and keeps improving. Since the 1980s, the state has promulgated
and put into effect a number of laws and regulations covering the major contents
in IPR protection. These include the "Patent Law of the People's Republic of
China," "Trademark Law of the People's Republic of China," "Copyright Law of the
People's Republic of China," "Regulations on the Protection of Computer
Software," "Regulations on the Protection of Layout Designs of Integrated
Circuits," "Regulations on the Collective Management of Copyright," "Regulations
on the Management of Audio-Video Products," "Regulations on the Protection of
New Varieties of Plants," "Regulations on the Protection of Intellectual
Property Rights by the Customs," "Regulations on the Protection of Special
Signs," and "Regulations on the Protection of Olympic Logos." China has also
promulgated a series of relevant rules for the implementation of these laws and
regulations, and their legal interpretation. As a result, the system of laws and
regulations on IPR protection in China has been continuously improved. In 2001,
around the time when China was admitted into the WTO, in order to provide
effective legal protection to IPR, the country made comprehensive revisions to
the laws and regulations regarding IPR protection and their legal
interpretation. While more emphasis is given to promoting the progress of
science and technology and innovation with regard to legislative intent, content
of rights, standards of protection and means of legal remedy, the revisions
brought the laws and regulations into conformity with the WTO's "Agreement on
Trade-related Aspects of Intellectual Property Rights" and other international
rules on IPR protection.
- A coordinated and efficient work system and a law enforcement mechanism
have been established and improved. In its practice of IPR protection, a two-way
parallel protection mode, namely, administrative and judicial protection, has
emerged in China. Several departments in China are assigned with the duty to
protect IPR. They include primarily the State Intellectual Property Office,
State Administration for Industry and Commerce, Press and Publication General
Administration, State Copyright Bureau, Ministry of Culture, Ministry of
Agriculture, State Forestry Administration, Ministry of Public Security, General
Administration of Customs, Supreme People's Court and Supreme People's
Procuratorate. For many years these departments have done effective work in
their respective fields. To further strengthen IPR protection, in 2004 China
established the State IPR Protection Work Team headed by a vice-premier of the
State Council, responsible for planning and coordinating the work regarding IPR
protection throughout the country. Its office, located in the Ministry of
Commerce, handles the routine work of the team.
In recent years, the state has increased work contacts between administrative
law enforcement organs and public security organs and people's procuratorates
with respect to IPR protection. In October 2000, the relevant departments
jointly issued the "Notice on Strengthening Cooperation and Coordination in the
Work of Investigating and Dealing with Criminal Cases that Infringe Intellectual
Property Rights," which contains clear provisions on relevant issues. In July
2001, the State Council promulgated the "Regulations on the Transfer of
Suspected Criminal Cases by Administrative Law Enforcement Organs," which
includes clear provisions on how the administrative law enforcement organs
should transfer suspected criminal cases to public security organs in a timely
fashion. In March 2004, the relevant departments jointly issued the "Opinions on
Increasing Work Contacts between Administrative Law Enforcement Organs and
Public Security Organs and People's Procuratorates." A work mechanism involving
the coordination of administrative law enforcement and criminal law enforcement
has been established, creating a joint power to deal with IPR infringements.
This ensures that suspected criminal cases enter the judicial process promptly.
In recent years, the judicial organs have adjudicated a large number of IPR
infringement cases according to law. In civil cases, the infringed parties have
received timely compensation for their financial losses, and IPR-related crimes
have been effectively combated.
- Administrative law enforcement has been strengthened in IPR protection. As
gradual improvements are made in the legal system on IPR protection, China has
shifted its focus from legislation to law enforcement. Administrative law
enforcement has been enhanced through the combination of routine management and
supervision with special crackdown campaigns. In August 2004, the Chinese
government decided to launch a special one-year campaign to protect IPR across
the country from September 2004 to August 2005. It was decided at the national
TV and telephone conference on rectification and standardization of the market
economic order convened by the State Council on March 31, 2005 that the campaign
was extended to the end of 2005. With unified planning, the relevant departments
have investigated and dealt with major IPR infringement cases, focusing on major
fields in the protection of trademark rights, copyrights and patent rights, on
major links in the import and export of goods, all types of exhibitions and
wholesale markets of commodities, and on key places where producers and sellers
of counterfeit goods were known to be concentrated. Their quick action and
strict law enforcement efforts have dealt a blow on IPR offenders, achieving
positive results.
- Efforts are being made to heighten the awareness of the general public
about IPR. The Chinese government attaches great importance to publicity
concerning IPR. Beginning in 2004, the state designated the week from April 20
to 26 every year as the "week for publicizing the importance of IPR protection."
By making wide use of newspapers, magazines, television, radio and the Internet,
and through holding seminars and knowledge contests, and making public interest
advertisements, the government carries out publicity and education among the
general public regarding IPR protection. The aim is to create a social
atmosphere in which labor, knowledge, talent and creation are respected, and
heighten the awareness of the general public regarding IPR.
- Actively fulfilling the international obligations to protect IPR. China has
taken an active approach to joining major international conventions and
agreements on IPR protection. Following its accession to the World Intellectual
Property Organization in 1980, China joined in succession more than ten
international conventions, treaties, agreements and protocols, such as the
"Paris Convention for the Protection of Industrial Property," "Patent
Cooperation Treaty," "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 Designs,"
"Madrid Agreement Concerning the International Registration of Marks," "Nice
Agreement Concerning the International Classification of Goods and Services for
the Purpose of the Registration of Marks," "Protocol Relating to the Madrid
Agreement Concerning the International Registration of Marks," "Agreement on
Trade-related Aspects of Intellectual Property Rights," "International
Convention for the Protection of New Varieties of Plants," "Berne Convention for
the Protection of Literary and Artistic Works," "Universal Copyright
Convention," and "Convention for the Protection of Producers of Phonograms
Against Unauthorized Duplication."
While strictly executing its international obligations
in IPR protection, China has devoted great efforts to adjusting and improving
international rules regarding IPR protection in order to let all countries of
the world share the fruits and benefits brought about by the progress of science
and technology. In recent years, China has held talks, and engaged in exchanges
and cooperation with other countries, international organizations and
foreign-invested enterprises in the field of IPR. At the suggestion of the
United States, starting in 2003, China and the US have held a round-table
conference on IPR every year, and reached agreement on many IPR-related issues
at the two round-table conferences. In 2004, China and Europe held their first
round of talks on IPR in Beijing. Initial agreement was reached between the two
sides on matters of cooperation related to IPR. Relevant Chinese departments
have established good cooperative relations with corresponding departments in
several countries, and international organizations such as World Intellectual
Property Organization and International Union for the Protection of New
Varieties of Plants. In September 2003, a mechanism was established for regular
contact and coordination between relevant Chinese departments and
foreign-invested enterprises. Under the mechanism, a meeting is held every three
months to solicit comments and suggestions from the foreign-invested enterprises
on issues related to IPR protection.
