New Progress in China's Protection of Intellectual
Property Rights (2005)
Information Office of the State Council of the People's
Republic of China
(April 2005, Beijing)
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.
II. Patent Protection
With the establishment of the China Patent Office in
1980, China's patent work has developed continuously over 25 years. In April 1,
1985, the "Patent Law of the People's Republic of China" went into effect.
Following that, China promulgated several patent-related laws and regulations,
such as the "Rules for the Implementation of the Patent Law," "Regulations on
Patent Commissioning," "Procedures for the Administrative Enforcement of Laws
Concerning Patents," and "Regulations on the Implementation of Customs
Protection of Patent Rights." China has twice made revisions to the "Patent Law"
in the light of the requirements of social and economic development so as to
enable it to improve continuously.
By mainly relying on its own resources, China has
established a relatively complete and independent patent examination system in a
short period of time. On January 1, 1994, China became a member state of the
"Patent Cooperation Treaty." The China Patent Office is China's agency dealing
with cases involving the Patent Cooperation Treaty, performing international
patent searches and preliminary examinations. Meanwhile, China has established a
fairly comprehensive system for patent work. Relevant departments of the State
Council and local governments have established patent administrative organs in
accordance with the provisions of the "Patent Law." China now has more than
5,000 people working in patent agencies, and a service system mainly providing
patent commissioning, patent information, patent technology transfer
intermediary and patent technology evaluation services has taken initial shape.
China's patent work has realized leapfrogging
development. From April 1, 1985 to the end of 2004, the State Intellectual
Property Office handled 2,284,925 patent applications with an average annual
increase of 18.9 percent. Of these, 1,874,358 were domestic applications, and
410,567 came from other countries, accounting for 82 and 18 percent,
respectively. Patent applications in China had exceeded two million by March 17,
2004. It took China 15 years for patent applications to reach one million. But
it took only four years for the number to double. In 2004, the State
Intellectual Property Office handled 353,807 applications, an increase of 14.7
percent over the previous year, which saw 308,487 applications. Of these,
278,943 were domestic applications, accounting for 78.8 percent of the total and
an increase of 11 percent over the previous year, which saw 251,238
applications. Foreign applications numbered 74,864, accounting for 21.2 percent
of the total and an increase of 30.8 percent over the previous year, which saw
57,249 applications. From 1994 to 2004, the State Intellectual Property Office
handled, in total, 7,131 international applications for patent rights, of which
1,592 such applications were handled in 2004. International patent applications
that entered China via the channel of the Patent Cooperation Treaty totaled
157,770. Of these, 32,438 applications were submitted in 2004.
By the end of 2004, the State Intellectual Property
Office had approved 1,255,499 patents. Of these, 1,093,268 were domestic ones,
and 162,231 were from other countries, accounting for 87.1 and 12.9 percent of
the total number of approved patents, respectively. The numbers of invention
patents, utility model patents and exterior design patents that had been
approved were 185,412, 651,224 and 418,863, accounting for 14.8, 51.9 and 33.3
percent respectively. In 2004, the State Intellectual Property Office approved
190,238 patents, an increase of 4.4 percent over the previous year, which had
182,226. It approved 151,328 domestic patents, an increase of 1.2 percent,
compared with 149,588 in the previous year. At the same time, it approved 38,910
foreign patents, an increase of 19.2 percent over the previous year, which saw
32,638.
The "Regulations on the Protection of Layout Design of
Integrated Circuits" went into effect in China on October 1, 2001. By the end of
2004, the State Intellectual Property Office had received 682 applications for
the registration of layout design of integrated circuits. It registered 571 of
them, and issued related public notices as well as certificates to the
applicants. In 2004 alone, the State Intellectual Property Office received 244
applications for the registration of layout design of integrated circuits. It
registered 205 of them, and issued related public notices as well as
certificates to the applicants.
In recent years, patent administration departments at
all levels have strengthened administrative enforcement of the law in this
respect. In particular, they have launched crackdowns on infringements of patent
rights of food and medicines, which are closely connected with people's health
and lives. They have made great efforts to investigate and deal with cases that
infringe upon the patent rights of key technologies and cases that had
widespread repercussions. They have also conscientiously investigated and dealt
with infringements and counterfeits of patent rights of inventions, utility
models and exterior designs. Following the State Council's unified plan, in
August 2004, the State Intellectual Property Office issued the "Work Program on
Strengthening Enforcement of the Laws on Intellectual Property Rights and
Launching a Special Law Enforcement Campaign." All subsidiary departments under
the State Intellectual Property Office were mobilized to participate in the
campaign. By the end of that year, local intellectual property offices had
checked 10,251 industrial venues and examined 2,081,537 commodity items. By the
end of 2004, local patent administration departments across the country had
accepted 12,058 cases involving patent infringement and patent disputes, and
10,411 of the cases, or 86.3 percent, were resolved. In 2004, local patent
administration departments accepted 1,455 cases involving patent disputes, and
1,215 of them were resolved. They also dealt with 3,965 cases of patent
counterfeits, and 358 cases of unauthorized use of others' patents.
III. Trademark Protection
Great progress has been made in China's trademark
protection work since November 1, 1979, when China resumed the unified
registration of trademarks. The "Trademark Law" went into effect on March 1,
1983. The Chinese government promulgated the "Rules for the Implementation of
the Trademark Law" in March 1983 to help with the implementation of the law, and
in 1988 revised it for the first time. In February 1993, the Standing Committee
of the National People's Congress (NPC) made the first revision to the
"Trademark Law" to include service trademarks in the work of trademark
protection, strengthen efforts to crack down on trademark infringement and
counterfeiting, and improve the trademark registration procedures. In July 1993,
the Chinese government made revisions to the "Rules for the Implementation of
the Trademark Law" for the second time to bring collective trademarks and
certification trademarks into the scope of legal protection of trademarks, and
added to it provisions on the protection of "trademarks well known to the
public."
In October 2001, the NPC Standing Committee made
revisions to the "Trademark Law" for the second time to include
three-dimensional trademarks and color combination trademarks in the scope of
trademark protection and offer greater protection to well-known trademarks. The
revised "Trademark Law" also stipulates that the trademark system shall be used
to protect geographical marks, judicial examination shall be added for the
certification process of trademark rights, and greater efforts shall be made to
crack down on trademark infringement and counterfeiting, thus bringing the
relevant provisions of China's "Trademark Law" in line with the principles of
WTO's "Agreement on Trade-related Aspects of Intellectual Property Rights." In
August 2002, the Chinese government again revised the "Rules for the
Implementation of the Trademark Law" and renamed it "Regulations for the
Implementation of the Trademark Law."
In accordance with the provisions of the "Trademark
Law" and the "Regulations for the Implementation of the Trademark Law," the
State Administration for Industry and Commerce formulated or revised several
administrative rules and regulations, including the "Trademark Assessment
Rules," "Provisions on the Recognition and Protection of well-known Trademarks,"
"Procedures for the Management and Registration of Collective Trademarks and
Certification Trademarks," "Procedures for the Implementation of Madrid
Agreement for the International Registration of Trademarks," and "Procedures for
the Administration of the Printing of Trademarks."
As improvements are made in the legal system
concerning trademarks and as the general public's awareness about trademarks is
heightened, applications for trademark registration in China have soared in
recent years. In 1980, applications for trademark registration were only a
little more than 20,000. The number reached 132,000 in 1993. In the five years
from 2000 to 2004, applications for trademark registration quickly exceeded the
key marks of 200,000, 300,000, 400,000 and 500,000, and came to 1,906,000
finally. It means an additional 256,000 applications were submitted in these
five years over the total submitted during the 20 years from 1980 to 1999. It
accounts for 53.6 percent of the total number of applications submitted from
1980 to 2004. In 2004, 588,000 applications were filed for trademark
registration, 136,000 more than the previous year and an increase of 30 percent.
The number of applications in 2004 was 2.17 times that in 2001, when China
joined the WTO. By the end of 2004, China had had 2,240,000 registered
trademarks.
As the investment environment in China is constantly
improved, especially after China joined the WTO, both the number of applications
for trademark registration from foreigners and the number of registered foreign
trademarks have kept increasing. In 1982, there were 1,565 foreign applications
for trademark registration in China. The number exceeded 20,000 in 1993 and
exceeded 60,000 in 2004. Before 1979, only 20 countries and regions had 5,130
trademarks registered in China. By the end of 2004, 129 countries and regions
had had 403,000 trademarks registered in China. This represents almost an
80-fold increase over that in 1979, accounting for 18 percent of the total
number of registered trademarks in China.
China has actively fulfilled its obligations to
protect internationally well-known trademarks since it joined the "Paris
Convention for the Protection of Industrial Property." In handling cases
involving objections and disputes over ownership of trademarks as well as
trademark management, the State Administration for Industry and Commerce has
certified more than 400 well-known trademarks, effectively protecting according
to law the legitimate rights and interests of owners of foreign and Chinese
well-known trademarks. In 2004 alone, it certified and offered protection to 153
well-known trademarks, of which 28 were brand-names of foreign enterprises.
Meanwhile, administrative organs of industry and commerce at all levels regard
the protection of well-known trademarks as their priority and have made greater
efforts to protect them. They have severely cracked down on all kinds of illegal
acts that have infringed upon the rights and interests of well-known trademarks.
For years, administrative organs of industry and
commerce at all levels across China have fully exploited their advantages in
trademark administrative law enforcement - complete networks, simple procedures
and high efficiency. Focusing on the protection of the right to exclusive use of
registered trademarks, and dutifully carrying out their responsibilities, they
have investigated and dealt with a large number of trademark infringement and
counterfeiting cases, effectively protecting the right to exclusive use of
registered trademarks of both foreign and domestic trademark owners, and
safeguarding the legitimate rights and interests of consumers. From 2001 to
2004, administrative organs of industry and commerce at all levels across China
dealt with 169,600 cases that violated the trademark laws and regulations. Of
these, 113,000 cases involved trademark infringement and counterfeiting (12,000
cases involved foreign trademarks), and 56,600 cases were other types of
violations of trademark laws and regulations. They confiscated and destroyed 529
million pieces (sets) of counterfeiting trademark logos, and transferred 286
cases involving 300 people to judicial organs to pursue their criminal
responsibilities. In 2004, in accordance with the unified plan and arrangement
of the State Council on IPR protection and that of the State Administration for
Industry and Commerce on the protection of the right to exclusive use of
registered trademarks, administrative organs of industry and commerce at all
levels across China launched three special campaigns that focused on the
protection of well-known and foreign-related trademarks, and on dealing with
infringements of trademarks of food and medicine. The campaigns effectively
protected the right to exclusive use of registered trademarks. According to
statistics, in 2004, administrative organs of industry and commerce across China
investigated and dealt with 51,851 law-violation cases involving trademarks. Of
these, 5,494 concerned foreign trademarks, a 2.6-fold increase of that in 2003.
Of the 51,851 cases they investigated, 11,680 were common violations of the
trademark laws and regulations. The rest of the cases, altogether 40,171,
involved trademark infringement or counterfeiting, an increase of 51.66 percent
over 2003. They confiscated and disposed of 38,951,800 pieces (sets) of illegal
trademark logos, confiscated 280,800 tools such as moulds and press plates used
for the infringement, and confiscated and destroyed 5638.53 tons of items that
had been used for the infringement. They transferred to judicial organs 96 cases
involving 82 people to pursue their criminal responsibilities.
IV. Copyright Protection
China's legal system for copyright protection was
gradually established in the 1990s, with the implementation of the "Copyright
Law" as a hallmark in this process. In recent years, China has made revisions to
the "Copyright Law." It has also promulgated a number of regulations with legal
effect, such as "Regulations on the Protection of Computer Software,"
"Regulations for the Implementation of the Copyright Law," "Procedures for the
Implementation of Administrative Sanctions Concerning Copyright," and
"Regulations on the Collective Management of Copyright." The promulgation and
implementation of these legal documents have laid a solid legal foundation for
copyright protection.
At present, China has formed a three-level copyright
administrative management system: the State Copyright Bureau, copyright bureaus
at the provincial level and the prefectural (city) level. Governments of various
provinces, autonomous regions and municipalities directly under the central
government have constantly consolidated their copyright administrative
management departments and made improvements to the system of copyright
administrative management and law enforcement.
In recent years, China's copyright administrative
management departments at all levels have strengthened their administrative
enforcement of the copyright law. They have increased cooperation with other
government departments, such as the departments of public security, industry and
commerce, the customs, press and publications, and cultural departments. As a
result, a mechanism of law enforcement whereby different departments are
coordinated in combating copyright infringement and piracy has gradually taken
shape. The copyright administrative management departments have always
maintained the pressure on copyright infringement and piracy. They have launched
several campaigns to crack down on pirated discs, textbooks, reference books,
software, illegal duplication and selling of audio-video products, selling of
smuggled audio-video products and Internet infringement practices. Positive
achievements have been made. According to incomplete statistics, from 1995 to
2004, copyright administrative management departments at all levels confiscated
350 million pirated copies, accepted 51,368 cases of infringement and resolved
49,983 of them. In 2004, they accepted 9,691 cases of infringement, resolved
9,497 of them and imposed administrative sanctions on the infringers in 7,986
cases. These included the investigation and punishment of two Chinese
enterprises that had infringed upon the copyright of the Microsoft Corporation
of the United States and other major cases.
While establishing and improving its copyright legal
system and strengthening its copyright administrative management, China also
attaches great importance to the establishment of a copyright public service
system. At present, China has established a copyright public management and
service system consisting of copyright collective management organs, copyright
agencies, copyright protection associations, professional associations and
organizations of copyright holders. In 1988, the Copyright Agency of China was
established. In 1990, the Copyright Research Society of China was established
and its name was changed to Copyright Society of China in 2002. In 1993 the
China Copyright Society of Works of Music was established. And in 1998, the
Copyright Protection Center of China was established. At present, writers'
associations, such as China Federation of Literary and Art Circles, China
Writers' Association and China Film Association as well as professional
associations of book publishers, producers of audio-video products and software
developers have established their own copyright protection organizations.
Copyright societies have been established in more than 20 provinces (autonomous
regions, municipalities directly under the central government) and some major
cities. Preparatory work is under way to establish China's collective copyright
management organizations of works of the written language and of audio-video
products.
V. Intellectual Property Rights Protection for Audio and
Video Products
Persistent piracy of audio and video products in spite
of repeated bans is a problem of international significance. The Chinese
government attaches great importance to IPR protection for audio and video
products, treats crackdown on piracy of audio and video products as an important
task in IPR protection and has made continuous efforts to carry it out. In
recent years, China has gradually established a whole set of systems for the
management of audio and video products, which mainly includes an IPR protection
system, audio and video business license system, exclusive publication right
system, duplication authorization system, SID code system, censorship system for
imported audio and video products, the system of awards for informants, the
system of uniform anti-counterfeit labels for audio and video products, the
system of registration and filing of audio and video products in storehouses,
and the system of inspection of, report on and keeping the public informed of
illegal audio and video products.
In August 1994, the government promulgated the
"Regulations on the Administration of Audio and Video Products," and amended it
in December 2001. In accordance with the relevant laws and regulations,
including the "General Principles of the Civil Law," "Copyright Law," "Criminal
Law" and "Regulations on the Administration of Audio and Video Products," the
Press and Publication General Administration, Ministry of Culture, General
Administration of Customs and Ministry of Commerce respectively and jointly
issued a series of administrative regulations, such as the "Regulations on the
Administration of Publication of Audio and Video Products," "Measures for the
Administration of Wholesale, Retail and Renting of Audio and Video Products,"
"Measures for the Administration of Import of Audio and Video Products" and
"Measures for the Administration of China-Foreign Cooperative Distribution
Enterprises of Audio-video Products," providing both legal and administrative
groundwork for the business and protection of audio and video products.
In light of the rapidly developing audio-video market,
the government has step by step readjusted its administration of the audio-video
industry. The "Regulations on the Administration of Audio and Video Products"
provides for the division of functions in the administration of the industry. In
1998, the State Council further sorted out the administrative system on the
principle of "streamlining, efficiency and unification," clearly assigning the
administration of audio-video products' production, publication and duplication
to the Press and Publication General Administration; and that of wholesale,
retail, renting, showing and import of audio-video products to the Ministry of
Culture. Following the suit of the central government, the local governments
have also readjusted their administrative systems in this regard. So far, China
has initially established market management networks at the central, provincial,
prefectural and county levels. In most areas, investigation squads have been set
up to keep watch on cultural markets, including the market for audio and video
products. They sincerely perform the duties of supervision and administration on
the audio-video market.
Since the 1990s, the publication market supervision
authorities and cultural administration authorities have cooperated closely with
other relevant departments in making sustained efforts to enforce order in the
audio-video market. As a result, the order of the audio-video market has been
gradually improved, the number of pirated audio-video products clearly reduced,
and the circulation of original copies greatly increased. According to
incomplete statistics, from 1994 to 2004, nine CD duplicating enterprises had
their duplication business licenses revoked, and 200 illegal CD production lines
were discovered. In August 2004, under the unified arrangement of the special
IPR protection campaign, the Ministry of Culture drew up an overall plan for an
intensive crackdown on infringements in the audio-video industry, in accordance
with which it guided and coordinated with key cities and areas in strengthening
law enforcement, and discovering and closing down a large number of underground
storehouses and distribution networks of illegal audio-video products. In 2004,
cultural market inspecting and management authorities throughout the country
inspected audio-video businesses on 555,368 occasions, confiscating 154 million
copies of audio-video works. On January 12, 2005, the Ministry of Culture and
the Office of the National Working Group on Intellectual Property Rights
Protection launched a nationwide campaign to destroy illegal audio-video
products, during which over 63.35 million copies of such products were
destroyed.
VI. Protection of New Varieties of Agricultural and
Forestry Plants
Proceeding from the actual conditions of China and on
the basis of earnestly summing up and borrowing from international experience,
the Chinese government has set up and carried out a series of systems and
measures for the protection of new varieties of plants, thus fully guaranteeing
the legitimate rights and interests of the investment bodies involved. On
October 1, 1997, the government began implementing the "Regulations on the
Protection of New Varieties of Plants," greatly expanding the scope of IPR
protection in China.
To supplement the implementation of the "Regulations
on the Protection of New Varieties of Plants," the Chinese government has in
succession promulgated and implemented such regulations as the "Rules for the
Implementation of the Regulations on the Protection of New Varieties of Plants
(Agriculture)," "Rules for the Implementation of the Regulations on the
Protection of New Varieties of Plants (Forestry)," "Regulations on Agency of New
Agricultural Plant Variety Rights," "Regulations on Handling Cases of
Infringement of New Agricultural Plant Variety Rights," and "Regulations of the
Ministry of Agriculture on the Work of the Reexamination Board for New Varieties
of Plants," providing legal guarantees for the rapid development of new
varieties of plants.
In recent years, the government has set up the Office
of Protection of New Varieties of Plants and the Reexamination Board for New
Varieties of Plants at the Ministry of Agriculture and State Forestry
Administration, respectively, forming an institutional protection system
combining examination and approval agencies, law-enforcement organizations,
intermediary service organizations and other rights protection organizations.
Meanwhile, a technological support system has been established, which includes
the Center for the Preservation of Breeding Materials of New Varieties of
Agricultural Plants, Center for Testing of New Varieties of Plants and its 14
sub-centers, and the Center for the Testing of New Varieties of Forest Plants
and its five sub-centers and two molecule determination labs. To ensure
scientific and authoritative examination of plant variety rights, and drawing on
the international standards for testing new varieties of plants, the relevant
authorities have, based on the actual conditions of China, formulated guides for
testing 57 new varieties of plants, including corn, rice, poplar and peony, of
which 18 have been promulgated and implemented as national or industrial
standards.
The government has issued and implemented five lists
of protected new varieties of agricultural plants and four lists of protected
new varieties of forest plants, which cover 119 genera and species, including 41
agricultural plants and 78 forest plants. The numbers are far higher than the
minimum numbers required by the "International Convention for the Protection of
New Varieties of Plants."
By the end of 2004, the Ministry of Agriculture had
handled 2,046 applications for plant variety rights. The number of applications
handled in 1999 was 115, and by 2004 it reached 735, indicating an average
annual increase of 44.9 percent. Among all the applications, there were 1,875
for field crops, 87 for vegetables, 52 for fruit trees and 32 for decorative
plants. A total of 2,174 applications were from scientific, technological and
educational institutions, and 772 from enterprises and individuals, which
included 32 from foreign enterprises and individuals. After examination, 503
applications were granted the variety rights.
By the end of 2004, the State Forestry Administration
had handled 305 applications for variety rights, including 64 from France,
Germany, the Netherlands, Belgium and the United States, and granted 72 new
plant variety rights. The involved plants included Chinese rose, peony,
Christmas flower, azalea, poplar, Chinese chestnut, apricot, eucalyptus and
walnut. Of them, 253 applications were for decorative arbors, accounting for
82.95 percent of the total. The applications were mainly from Chinese research
institutions, foreign individuals engaging in breeding and Chinese universities,
which respectively accounted for 50.2 percent, 14.4 percent and 11.1 percent of
the total.
Since 2001, the government began experimental law
enforcement on the protection of new varieties of plants in 12 selected
provinces and municipalities, and then gradually spread the work across the
country. By the end of 2004, 17 provinces (autonomous regions and municipalities
directly under the central government) had handled 863 cases of infringement of
new agricultural plant variety rights and of faking new agricultural plant
varieties.
VII. Customs Protection of Intellectual Property
Rights
In September 1994, China began to carry out border
protection of IPR. At present, the Chinese customs houses have established a
complete system of IPR-related law enforcement measures, which includes such
links as examination of customs declaration bills and certificates, inspection
of imported and exported goods, detention and investigation of right-infringing
goods, punishment of illegal importers and exporters, and disposal of
right-infringing goods.
In October 1995, China promulgated and implemented its
first ever "Regulations on the Protection of Intellectual Property Rights by the
Customs," and began to establish its system of IPR customs protection in
accordance with WTO rules. In 2000, the NPC Standing Committee amended the
"Customs Law of the People's Republic of China," defining the functions of IPR
customs protection from the legal perspective. In December 2003, the Chinese
government promulgated the revised "Regulations on the Protection of
Intellectual Property Rights by the Customs," which strengthened the customs
houses' power in investigating and dealing with right-infringing goods, reduced
the burden on the proprietors of intellectual properties in seeking customs
protection, and defined the functions of the customs houses, the judicial and
other administrative organizations. Later, the General Administration of Customs
formulated the "Measures for Implementation" of the revised regulations, which
clearly provided for such issues mentioned in the revised regulations as keeping
business secrets, filing of international registered trademarks, collecting and
returning of security deposit, and the payment of relevant fees by the
proprietors. In September 2004, the Chinese government promulgated the
"Regulations on Implementation of Administrative Penalties," which clearly
provided administrative penalties for infringements on IPR in importation and
exportation. The "Interpretations on Several Issues in Practical Application of
Laws in Criminal Cases of Infringement on Intellectual Property Rights" was
promulgated by the Supreme People's Court and the Supreme People's Procuratorate
in December 2004, which further clearly stipulated the criminal responsibilities
of agencies importing or exporting right-infringing goods. By then, a legal
system for IPR customs protection geared to the needs of economic and social
development had been basically established.
China has established and improved its law enforcement
mechanism for IPR customs protection. First, it has established a central filing
system for IPR customs protection. As long as the IPR proprietors have filed
their IPR with the General Administration of Customs, the port customs have the
power to detain imported or exported goods that infringe on the filed IPR. By
the end of 2004, the General Administration of Customs had confirmed 6,257 files
of IPR for customs protection. Second, a model combining active protection with
passive protection is implemented in law enforcement. Besides detaining import
or export goods suspected of IPR infringement, the customs can also investigate
and deal with illegal import and export of right-infringing goods within the
scope of their powers and duties. Third, law enforcement organizations have been
founded and improved, and the building of IPR law enforcement teams enhanced. By
the end of 2004, all the customs houses directly under the General
Administration of Customs had set up relevant departments for the management of
IPR protection, and 11 of them had set up special organizations for IPR
protection. Some customs houses with adequate conditions had stationed liaison
officers on site. A system of IPR law enforcement has taken shape on three
levels, namely, the General Administration of Customs, customs houses directly
under it, and grass-roots customs posts.
To curb right infringements and piracy in import and
export links, the port customs all over China focus law enforcement on import
and export of fake and pirated products. From 1996 to 2004, the Chinese customs
ferreted out 4,361 cases of right infringement in import and export, which
involved 630 million yuan. Since 2000, the number of cases discovered by the
customs has increased by 30 percent annually. The customs have effectively
cracked down on the illegal import and export of right-infringing goods,
preserving order at ports, and safeguarding the interests of proprietors.
In offering IPR border protection, the Chinese customs
attach great importance to liaison and cooperation with proprietors and relevant
organizations and associations of proprietors, and have enhanced their
communication and coordination with IPR authorities and their cooperation and
exchanges with foreign border law enforcement authorities. So far, the Chinese
customs have signed memorandums of cooperation on IPR protection with such
proprietors' organizations as the Motion Picture Association of America, and
have cooperated with them successfully. The Chinese customs have cooperated on
many occasions in law enforcement with IPR-related administrative and criminal
law enforcement authorities, such as IPR management authorities and public
security organs, effectively cracking down on illegal and criminal IPR
infringement. The Chinese customs have signed agreements of mutual assistance in
administrative law enforcement with the customs of the European Union countries,
the United States and other countries, which contain the provisions on IPR
customs protection. The Chinese customs have also actively conducted information
exchange and law enforcement cooperation regarding IPR protection with the
customs services of other countries.
VIII. Public Security Organs Act on Criminal
Infringement on Intellectual Property Rights
In recent years, the Chinese public security organs
have adopted a series of measures to crack down on all kinds of criminal IPR
infringement, continuously enhanced their law enforcement standards and
abilities, and safeguarded the sound development of the socialist market
economy.
In 1998, to step up the fight against criminal IPR
infringement, and in accordance with the provisions of the "Criminal Procedure
Law," the Ministry of Public Security established a specialized department to
organize, guide and coordinate the fight against criminal IPR infringement, and
supervise over the handling of serious cases. Local public security organs at
all levels, from the top downward, have set up specialized investigation teams
for receiving, filing and investigating such criminal cases. From 2000 to 2004,
the Chinese public security organs cracked 5,305 cases of criminal infringement
on IPR, which involved nearly 2.2 billion yuan, and arrested 7,100 suspects.
Among them, there were 4,269 cases concerning infringement on the exclusive
rights of trademark ownership, which involved 1.18 billion yuan, and 5,564
suspects were arrested. A number of suspects were found guilty of the production
and sale of fake or inferior products and illegal business operation, and
sentenced accordingly.
Since November 2004, the Ministry of Public Security
has launched a one-year national campaign against criminal infringement on the
exclusive rights of trademark ownership, cracking some cases of criminal IPR
infringement that were of widespread and baneful repercussions and involved
large amounts of money. These cases included: production of fake Gillette razor
blades cracked by the public security organs of Zhejiang Province, production of
fake Adidas and Nike sports shoes cracked by the public security organs of
Fujian Province, production of fake Cisco (USA) electronic products cracked by
the public security organs of Guangdong Province, and production of fake
brand-name liquors, including Wuliangye, cracked by the public security organs
of Sichuan Province.
As more and more foreign companies are investing,
selling their products and building enterprises and R&D centers in China,
the Chinese public security organs have gradually established a system of
regular communication and coordination with IPR proprietors, earnestly listening
to their opinions and suggestions. Since December 2002, together with relevant
associations of enterprises with foreign investment, the Ministry of Public
Security has held three forums on "Protection of Intellectual Property Rights
against Crimes" and published forum declarations, improving communication and
coordination in this field.
In view of increasing transnational and trans-border
criminal cases of IPR infringement, the Chinese public security organs attach
great importance to international law enforcement cooperation in the fight
against IPR infringement, and have conducted cooperation with the law
enforcement organizations of various countries in assistance in investigation
and collection of evidence, exchange of information and judicial assistance. In
July 2004, working together with the Immigration and Customs Enforcement of the
Department of Homeland Security of the United States, the Chinese public
security organs successfully cracked a serious case of suspected sale of pirated
DVDs in Shanghai, arrested seven suspects headed by an American citizen, raided
three places where pirated DVDs were hidden, and confiscated over 210,000
pirated DVDs.
IX. Judicial Protection of Intellectual Property
Rights
In recent years, the Chinese procuratorial organs have
earnestly exercised their duties of examination of arrests and prosecutions in
cases of criminal IPR infringement, as well as legal supervision over relevant
criminal lawsuits in accordance with law, handled a large number of cases of
suspected criminal IPR infringement. From 2000 to 2004, the procuratorial organs
at all levels approved the arrests of 2,533 people suspected of criminal IPR
infringement, and instituted prosecutions against 2,566 suspects. In 2004, the
arrests of 602 people suspected of criminal IPR infringement were approved, and
prosecutions against 638 suspects were instituted. In the same year,
procuratorial organs around China launched a special drive to supervise cases
involving production of fake products and IPR infringement, during which they
urged relevant administrative law enforcement organs to transfer suspected
criminal cases to public security organs according to law, supervised the filing
of cases that should have been filed by the public security organs according to
law, made sure that suspected criminal cases entered judicial proceedings in
time, and investigated some criminal cases of conniving and covering up
production and sale of fake products and of IPR infringement involving
government functionaries abusing their powers.
For many years, the Chinese people's courts at all
levels have continuously strengthened work in IPR-related civil and criminal
trials under the principle of "justice and efficiency." Through handling a large
number of IPR-related cases, they have protected the legitimate rights and
interests of Chinese and foreign IPR proprietors equally, punished acts of IPR
infringement and severely cracked down on criminal IPR infringements, making
unremitting efforts to realize social fairness and justice.
Since the handling of the first case of a
technological contract dispute in 1981, the Chinese courts have continuously
expanded the range of IPR-related trials to include cases concerning copyright,
trademarks, patents, unfair competition, computer software, new varieties of
plants and integrated circuit layout designs, thus establishing the status of
court trials in the handling of IPR-related cases. From 1998 to 2004, courts
throughout the country concluded 38,228 IPR-related civil cases of first
instance and 2,057 criminal cases of first instance involving IPR infringement
in accordance with Section Seven, Chapter III of the "Specific Provisions" of
the "Criminal Law," handing down sentences to 2,375 criminals. Among these
cases, in 2004, 8,332 civil IPR-related cases of first instance and 385 criminal
cases of first instance involving IPR infringement in accordance with Section
Seven, Chapter III of the "Specific Provisions" of the "Criminal Law" were
concluded, and 528 criminals were punished. In the same year, the Chinese courts
also concluded 932 criminal cases of production and sale of fake or inferior
goods, punishing 1,453 criminals involved, and concluded 1,434 criminal cases of
illegal business operation, punishing 2,103 criminals. A considerable proportion
of the above two types of cases also involved criminal IPR infringement.
To correctly apply laws and make law enforcement
standards coherent, and based on its experience in handling IPR-related cases,
the Supreme People's Court of China has formulated a series of relevant judicial
interpretations in accordance with the law, and improved a series of important
IPR-related law application principles, which have played an important role in
the timely settlement of new problems emerging from the handling of IPR-related
cases and in guiding the correct handling of IPR-related cases by the people's
courts at all levels. For example, the "Several Provisions on Law Application
for Stopping Patent Infringement before Litigation" promulgated by the Supreme
People's Court in June 2001 provided judicial measures for stopping right
infringements and effectively preventing more losses on the part of proprietors.
The "Interpretation of Several Issues Regarding Specific Law Application in
Handling Cases of Illegal Publications" promulgated by the Supreme People's
Court in December 1998 defined the standards of condemnation and penalty for
criminal offences of copyright infringement. The "Interpretation of Several
Issues Regarding Specific Law Application in Handling Criminal Cases of
Intellectual Property Rights Infringement" jointly promulgated by the Supreme
People's Court and the Supreme People's Procuratorate in December 2004 properly
reduced the condemnation standards for the crimes of IPR infringement strictly
in accordance with the provisions of the "Criminal Law" and in light of China's
actual conditions and judicial reality, increased the applicability of the
relevant provisions of the "Criminal Law," and provided a concrete applicable
legal basis for handling criminal cases of IPR infringement, and was thus of
great significance for effectively cracking down on crimes of IPR infringement.
The Chinese courts put special emphasis on the
professional training of IPR judges. After many years of judicial practice and
systematic training, a contingent has been formed of highly competent IPR judges
who speak foreign languages, and have an intimate knowledge of the law, rich
judicial experience and expertise in science and technology. Relatively complete
IPR-related judicial departments have been gradually established, providing a
strong personnel and organizational guarantee for effective IPR-related judicial
work.
The Chinese courts have continuously enhanced
international exchanges and cooperation in the field of IPR-related judicature,
learning and borrowing from the useful experience and successful practices of
foreign countries. The Supreme People's Court actively conducts friendly
cooperation with the World Intellectual Property Organization and European
Union, and has hosted several seminars and training courses on IPR, the results
of which have been encouraging. These seminars and training courses have
effectively promoted the enhancement of China's IPR judicial protection, and
continuously pushed the level of its IPR-related judicial work to a new high.
Conclusion
Practice over the past two decades and more has shown
that the Chinese government has made arduous efforts to protect IPR. China has
achieved a noticeably great improvement in IPR protection, which took the
developed countries several decades and even over a century to attain. However,
the Chinese government is clearly aware that, in a large developing country with
a population of 1.3 billion, relatively backward economy and low level of
science and technology, a complete IPR protection system cannot be established
overnight. China has a long way to go in this regard, and is faced with heavy
tasks in IPR protection.
At present, there are still IPR infringements in
certain areas and fields in China, some of which are very serious. The awareness
of the importance of IPR in Chinese society as a whole needs to be further
enhanced. Meanwhile, China's IPR protection work is facing new challenges in the
course of economic globalization and rapid development of science and technology
worldwide. In accordance with the requirements of the concept of scientific
development, the Chinese government will adopt more effective policies and
measures in the process of building a well-off society in an all-round way and
developing a harmonious society, exerting efforts to raise its IPR protection
work to a new level.
For many years China has received active support and
assistance from the international community in the establishment of its IPR
protection system. In the future, the Chinese government will continue to
earnestly execute its international obligations in this regard, enhance its
cooperation with various countries and international organizations with a more
active, open attitude, and join hands with them in promoting the establishment
of a sound system and environment favorable for IPR protection worldwide.
