| V. Status Regarding China¡¯s Enforcement of IPR |
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Tuesday,April 12,2005
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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.
Table 3: the Enforcement Statistics of Relevant IPR Enforcement Organs of China in 2001
Table 4: the Enforcement Statistics of Relevant IPR Enforcement Organs of China in 2002
Table 5: the Enforcement Statistics of Relevant IPR Enforcement Organs of China in 2003
£¨Source:Department of Treaty and Law of MOFCOM£© | |
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