Intellectual property in the People's Republic of China
Encyclopedia
Intellectual property rights (IPRs) have been acknowledged and protected in the People's Republic of China
since 1979. The People's Republic of China
has acceded to the major international conventions on protection of IPRs. Domestically, protection of intellectual property law has also been established by government legislation, administrative regulations, and decrees in the areas of trademark
, copyright
and patent
. This has led to the creation of a comprehensive legal framework to protect both local and foreign intellectual property. Despite this, copyright violations are common in the PRC, and intellectual property violations are committed by prominent members of the automotive
and electronics industries.
became a member of the World Intellectual Property Organization
(WIPO).
It has patterned its IPR laws on the Berne Convention for the Protection of Literary and Artistic Works
and the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS).
The PRC acceded to the Paris Convention for the Protection of Industrial Property
on 14 November 1984 and became an official member on 19 March 1985. The PRC also acceded to the Madrid Agreement for the International Registration of Trademarks
in June 1989.
In January 1992, the PRC entered into a Memorandum of Understanding
with the United States government to provide copyright protection for all American "works" and for other foreign works. Several bilateral negotiations have been conducted between the two governments. At some points, trade sanctions were threatened by the two governments over IPRs issues. At the conclusion of negotiations in 1995, the Sino-US Agreement on Intellectual Property Rights was signed. In June 1996, the two governments entered into another agreement protecting American intellectual property in the PRC.
Generally, once the PRC has acceded to an international treaty, the People's Courts can quote the provisions of the treaty directly in deciding an intellectual property infringement case, without reference to a Chinese domestic law by which the treaty provision is incorporated.
: the Patent Law, the Trademark Law and the Copyright Law. A great number of regulations, rules, measures and policies have been made by the NPC Standing Committee, the State Council
and various ministries, bureaux and commissions. The circulars, opinions and notices of the Supreme People's Court also form part of the legal framework.
Adhering to Article 4 of the Paris Convention, the Chinese government passed the Provisional Regulations Governing Application for Priority Registration of Trademarks in China to grant the right of priority to trademark applications submitted in PRC by the nationals of the Paris Convention member countries.
To implement the Berne Convention and the Universal Copyright Convention
, as well as bilateral copyright treaties signed between the PRC and other foreign countries, the PRC government passed the Regulations on Implementation of International Copyright Treaties (1992). These have given foreign copyright holders protection for their rights and interests in the PRC.
Before the PRC acceded to the Berne Convention, computer software was not treated as a kind of literary work under the Copyright Law. In May 1991, the State Council passed the Computer Software Protection Rules. Based upon these rules, the Measures for Computer Software Copyright Registration were formulated by the then Ministry of Engineering Electronics Industries. These regulations provide a set of rules covering the definitions of various terms and the registration, examination and approval of computer software programmes in the PRC. At the moment both the Berne Convention and these two domestic computer regulations are co-effective. However, in the event of any inconsistencies, the Berne Convention prevails.
The Berne Convention does not require copyright registration
, and thus protection in the PRC technically doesn't require registration. However, registering copyrights for literary works can avoid, or at least simplify, ownership disputes. Copyright registration cost is 300 RMB. On the downside, the copyright registration process requires the registrant to disclose detailed information, including software source code, which companies might be reluctant to share.
In the 1990s many more pieces of legislation were passed to perfect the intellectual property protection system. These include the Regulations on Customs Protection of Intellectual Property Rights (1995) and the Law Against Unfair Competition of the PRC (1993). The latter prohibited the passing off of registered trademarks, infringing trade secrets, the illegal use of well-known goods or names of other people, as well as other misleading and deceptive conduct. The Advertising Law of the PRC was passed in 1994 to prohibit the unfair, misleading and deceptive conduct involving patent advertising or other advertising activities in general.
. The Trademarks Office is still under the authority of the State Administration for Industry and Commerce. The Copyright Office falls within the State Administration for Press and Publication. A similar system exists at various levels of local government. Commonly, enforcement of IPRs will be carried out by local IPRs personnel, assisted by police from the local Public Security Bureau.
To handle cases of infringement of IPRs more efficiently, special intellectual property courts have been established in some cities and provinces. At the level of the Higher People's Court in Beijing, Shanghai, Guangdong, Fujian and Hainan, intellectual property courts have been separated from the economic division. Beijing, Shanghai and Tianjin have also established intellectual property courts within the Intermediate People's Court. In 1992, the Supreme People's Court established an intellectual property division.
Customs protection is another positive mechanism in law enforcement with regard to IPRs. The Regulations on Customs Protection of Intellectual Property Rights (中华人民共和国知识产权海关保护条例), promulgated in June 1995, strengthened border control to stop counterfeited goods from coming into, or leaving, the PRC.
Despite this regulation existing as a legislative capacity, the ability to enforce these laws varies according to the differing interpretations that exist amongst the local governmental authorities in China. Despite the growing number of raids on hubs for traders of counterfeited goods and the rise in the number of lawsuits brought against companies that use counterfeited technology, codes, or logos, the level of government response does not quite match the degree to which counterfeiting is happening in China. The rate at which the legal implementation has proceeded more closely matches the desires of IP protection from Chinese businesses and other bastions of capital.
Sometimes local protectionism may dilute the strength of central legislation or the power of law enforcement. For example, local governments might not want to genuinely support the work of anti-piracy supervisors. It may create obstacles during IPRs investigation and assist local counterfeiters by letting them hide their production lines in safer places. When counterfeiters have good connections with local governmental or law enforcement officials, they may find an umbrella for their counterfeiting activity.
Chinese government-sponsored search-engine Baidu
provides links to third-party websites that offer online counterfeit products as well as access to counterfeit hardware and merchandise. The Chinese government dominates 70% of its country's search engine revenue and has been called on by US officials to limit the activity of online counterfeiting groups.
, the inventor of Wubi
, against Dongnan Corporation.
According to Zheng Chengsi
, the first major copyright case involving a foreign party was Walt Disney Productions vs. Beijing Publisher and Co.
In 2010, US law firm Gipson Hoffman & Pancione filed a suit against the Chinese government on allegations of distributing the pirated cyber-filtering software of the US company Solid Oak.
placed China on its "priority watch list" for intellectual property
rights violations, along with eleven other nations. In addition, the US brought a World Trade Organization
case against China, in which it was ruled that China must change its operating standards to comply with WTO laws, but brought about no change in the threshold for arresting domestic violators of international copyright law.
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
since 1979. The People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
has acceded to the major international conventions on protection of IPRs. Domestically, protection of intellectual property law has also been established by government legislation, administrative regulations, and decrees in the areas of trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
, copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
and patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
. This has led to the creation of a comprehensive legal framework to protect both local and foreign intellectual property. Despite this, copyright violations are common in the PRC, and intellectual property violations are committed by prominent members of the automotive
Automobile industry in China
Automotive industry in the People's Republic of China has become the largest automotive market in the world since late 2008. China's automobile industry has been in rapid development since the early 1990s...
and electronics industries.
International conventions
In 1980, the PRCPeople's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
became a member of the World Intellectual Property Organization
World Intellectual Property Organization
The World Intellectual Property Organization is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative activity, to promote the protection of intellectual property throughout the world"....
(WIPO).
It has patterned its IPR laws on the Berne Convention for the Protection of Literary and Artistic Works
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
and the Agreement on Trade-Related Aspects of Intellectual Property Rights
Agreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...
(TRIPS).
The PRC acceded to the Paris Convention for the Protection of Industrial Property
Paris Convention for the Protection of Industrial Property
The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on March 20, 1883, was one of the first intellectual property treaties. It established a Union for the protection of industrial property...
on 14 November 1984 and became an official member on 19 March 1985. The PRC also acceded to the Madrid Agreement for the International Registration of Trademarks
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
in June 1989.
In January 1992, the PRC entered into a Memorandum of Understanding
Memorandum of understanding
A memorandum of understanding is a document describing a bilateral or multilateral agreement between parties. It expresses a convergence of will between the parties, indicating an intended common line of action. It is often used in cases where parties either do not imply a legal commitment or in...
with the United States government to provide copyright protection for all American "works" and for other foreign works. Several bilateral negotiations have been conducted between the two governments. At some points, trade sanctions were threatened by the two governments over IPRs issues. At the conclusion of negotiations in 1995, the Sino-US Agreement on Intellectual Property Rights was signed. In June 1996, the two governments entered into another agreement protecting American intellectual property in the PRC.
Generally, once the PRC has acceded to an international treaty, the People's Courts can quote the provisions of the treaty directly in deciding an intellectual property infringement case, without reference to a Chinese domestic law by which the treaty provision is incorporated.
National legal framework
The legal framework for protecting intellectual property in the PRC is built on three national laws passed by the National People's CongressNational People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
: the Patent Law, the Trademark Law and the Copyright Law. A great number of regulations, rules, measures and policies have been made by the NPC Standing Committee, the State Council
State Council of the People's Republic of China
The State Council of the People's Republic of China , which is largely synonymous with the Central People's Government after 1954, is the chief administrative authority of the People's Republic of China. It is chaired by the Premier and includes the heads of each governmental department and agency...
and various ministries, bureaux and commissions. The circulars, opinions and notices of the Supreme People's Court also form part of the legal framework.
Trademark law
The Trademark Law of the People's Republic of China (中华人民共和国商标法) sets out general guidelines on administration of trademarks, protection of trademark owners' exclusive rights and maintenance of quality of products or services bearing the registered trademarks, "with a view to protecting consumer interests and to promoting the development of the socialist commodity economy."Adhering to Article 4 of the Paris Convention, the Chinese government passed the Provisional Regulations Governing Application for Priority Registration of Trademarks in China to grant the right of priority to trademark applications submitted in PRC by the nationals of the Paris Convention member countries.
Copyright law
Copyright law is mainly governed by the Copyright Law of the PRC (中华人民共和国著作权法) and the Implementing Rules for the Copyright Law of the PRC (著作权法实施条例), the Copyright Law of the PRC adopted and promulgated in 1990 and the "Implementing Rules" adopted in 1991 and revised in 2002. In most cases the copyright term is the life of the author plus 50 years, but for cinematographic and photographic works and works created by a company or organization the term is 50 years after first publication.To implement the Berne Convention and the Universal Copyright Convention
Universal Copyright Convention
The Universal Copyright Convention , adopted at Geneva in 1952, is one of the two principal international conventions protecting copyright; the other is the Berne Convention....
, as well as bilateral copyright treaties signed between the PRC and other foreign countries, the PRC government passed the Regulations on Implementation of International Copyright Treaties (1992). These have given foreign copyright holders protection for their rights and interests in the PRC.
Before the PRC acceded to the Berne Convention, computer software was not treated as a kind of literary work under the Copyright Law. In May 1991, the State Council passed the Computer Software Protection Rules. Based upon these rules, the Measures for Computer Software Copyright Registration were formulated by the then Ministry of Engineering Electronics Industries. These regulations provide a set of rules covering the definitions of various terms and the registration, examination and approval of computer software programmes in the PRC. At the moment both the Berne Convention and these two domestic computer regulations are co-effective. However, in the event of any inconsistencies, the Berne Convention prevails.
The Berne Convention does not require copyright registration
Copyright registration
The purpose of copyright registration is to place on record a verifiable account of the date and content of the work in question, so that in the event of a legal claim, or case of infringement or plagiarism, the copyright owner can produce a copy of the work from an official government...
, and thus protection in the PRC technically doesn't require registration. However, registering copyrights for literary works can avoid, or at least simplify, ownership disputes. Copyright registration cost is 300 RMB. On the downside, the copyright registration process requires the registrant to disclose detailed information, including software source code, which companies might be reluctant to share.
Patent law
The PRC passed the Patent Law of the PRC (中华人民共和国专利法) to encourage invention-creation and to promote the development of science and technology. The subsequent Implementing Regulations of the Patent Law of the PRC added clarification. Compared with other intellectual property implementation rules, these regulations provide a more comprehensive piece of legislation in comprising 96 provisions. China is a part of the Patent Cooperation Treaty (PCT), and through the PCT a single patent application can be made for multiple countries, including China. Patents must be registered to receive legal protection. This must be done through an authorized Chinese patent agency, appointed by the State Intellectual Property Office.Other legislation
Apart from major legislation on trademarks, copyright and patents, a few other laws and regulations have been passed to deal with intellectual property related issues. In 1986, the General Principles of Civil Law was adopted to protect the lawful civil rights and interests of citizens and legal persons, and to correctly regulate civil relations. Articles 94-97 of the General Principles of Civil Law deal with intellectual property rights of Chinese citizens and legal persons.In the 1990s many more pieces of legislation were passed to perfect the intellectual property protection system. These include the Regulations on Customs Protection of Intellectual Property Rights (1995) and the Law Against Unfair Competition of the PRC (1993). The latter prohibited the passing off of registered trademarks, infringing trade secrets, the illegal use of well-known goods or names of other people, as well as other misleading and deceptive conduct. The Advertising Law of the PRC was passed in 1994 to prohibit the unfair, misleading and deceptive conduct involving patent advertising or other advertising activities in general.
Implementation
To enforce IPR protection, an administrative system has been established within the government. After the reshuffle of the State Council in March 1998, the Patent Office became part of the State Intellectual Property OfficeState Intellectual Property Office
The State Intellectual Property Office of the People's Republic of China , also known as the Chinese Patent Office, is the patent office of the People's Republic of China . It was founded on 1980, as the Patent Office of the People's Republic of China, the predecessor of SIPO...
. The Trademarks Office is still under the authority of the State Administration for Industry and Commerce. The Copyright Office falls within the State Administration for Press and Publication. A similar system exists at various levels of local government. Commonly, enforcement of IPRs will be carried out by local IPRs personnel, assisted by police from the local Public Security Bureau.
To handle cases of infringement of IPRs more efficiently, special intellectual property courts have been established in some cities and provinces. At the level of the Higher People's Court in Beijing, Shanghai, Guangdong, Fujian and Hainan, intellectual property courts have been separated from the economic division. Beijing, Shanghai and Tianjin have also established intellectual property courts within the Intermediate People's Court. In 1992, the Supreme People's Court established an intellectual property division.
Customs protection is another positive mechanism in law enforcement with regard to IPRs. The Regulations on Customs Protection of Intellectual Property Rights (中华人民共和国知识产权海关保护条例), promulgated in June 1995, strengthened border control to stop counterfeited goods from coming into, or leaving, the PRC.
Despite this regulation existing as a legislative capacity, the ability to enforce these laws varies according to the differing interpretations that exist amongst the local governmental authorities in China. Despite the growing number of raids on hubs for traders of counterfeited goods and the rise in the number of lawsuits brought against companies that use counterfeited technology, codes, or logos, the level of government response does not quite match the degree to which counterfeiting is happening in China. The rate at which the legal implementation has proceeded more closely matches the desires of IP protection from Chinese businesses and other bastions of capital.
Difficulties
The enforcement of protection of intellectual property rights is particularly difficult in the PRC. Without adequate education with regard to IPRs, there is little awareness that infringement is a crime. For example, though the first intellectual property law was drafted in 1982, the first IPR training centre wasn't established until 1996.Sometimes local protectionism may dilute the strength of central legislation or the power of law enforcement. For example, local governments might not want to genuinely support the work of anti-piracy supervisors. It may create obstacles during IPRs investigation and assist local counterfeiters by letting them hide their production lines in safer places. When counterfeiters have good connections with local governmental or law enforcement officials, they may find an umbrella for their counterfeiting activity.
Chinese government-sponsored search-engine Baidu
Baidu
Baidu, Inc. , simply known as Baidu and incorporated on January 18, 2000, is a Chinese web services company headquartered in the Baidu Campus in Haidian District, Beijing, People's Republic of China....
provides links to third-party websites that offer online counterfeit products as well as access to counterfeit hardware and merchandise. The Chinese government dominates 70% of its country's search engine revenue and has been called on by US officials to limit the activity of online counterfeiting groups.
Case law
The first major dispute on violation of intellectual property rights was filed in April 1992 by Wang YongminWang Yongmin
Wang Yongmin is a Chinese programmer, who developed Wubi, a very fast input method for entering Chinese characters using a standard Latin keyboard...
, the inventor of Wubi
Wubi method
The Wubizixing input method , often abbreviated to simply Wubi or Wubi Xing, is a Chinese character input method primarily for inputting simplified Chinese and Traditional Chinese text on a computer...
, against Dongnan Corporation.
According to Zheng Chengsi
Zheng Chengsi
Zheng Chengsi was a Chinese expert on intellectual property, the Director of Intellectual Property Center of Chinese Academy of Social Sciences.-Biography:...
, the first major copyright case involving a foreign party was Walt Disney Productions vs. Beijing Publisher and Co.
In 2010, US law firm Gipson Hoffman & Pancione filed a suit against the Chinese government on allegations of distributing the pirated cyber-filtering software of the US company Solid Oak.
US Priority Watchlist
In 2007, the Office of the United States Trade RepresentativeOffice of the United States Trade Representative
The Office of the United States Trade Representative is the United States government agency responsible for developing and recommending United States trade policy to the president of the United States, conducting trade negotiations at bilateral and multilateral levels, and coordinating trade...
placed China on its "priority watch list" for intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
rights violations, along with eleven other nations. In addition, the US brought a World Trade Organization
World Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...
case against China, in which it was ruled that China must change its operating standards to comply with WTO laws, but brought about no change in the threshold for arresting domestic violators of international copyright law.
See also
- List of statutes of the People's Republic of China
- Music copyright infringement in the People's Republic of ChinaMusic copyright infringement in the People's Republic of ChinaMusic copyright infringement in the People's Republic of China is widely regarded as one of the highest in the world. Some reports from the International Federation of the Phonographic Industry say about 95 percent or higher of music sales in China are unauthorized, most coming from downloads of...
- First Sino-American Forum of Intellectual Property Rights
Further reading
- Suttmeier, Richard P. and Xiangkui Yao, China's IP Transition: Rethinking Intellectual Property Rights in a Rising China (NBR Special Report, July 2011)
External links
- China IPR SME Helpdesk
- The China-Britain Business Council Intellectual Property Rights Guidelines
- Copyright Law of the PRC
- State Intellectual Property Office
- Trademark Office State Administration for Industry and Commerce
- National Copyright Administration
- State Administration for Industry and Commerce
- Protecting Your Intellectual Property Rights (IPR) in China
- Beijing International Copyright Network
- IP Dragon, about IP in China, since 2005, by PhD Cand.