| New Progress in China's Protection of Intellectual Property Rights in 2005 | |
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| Sep 18, 2007 01:21 | #11   |
 | 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. |
| Sep 18, 2007 01:22 | #12 |
| 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. |
| Sep 18, 2007 01:23 | #13 |
| 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. |
| Sep 18, 2007 01:25 | #14 |
| 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. |
| Sep 18, 2007 01:26 | #15 |
| 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. |
| Sep 18, 2007 01:27 | #16 |
| 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." |
| Sep 18, 2007 01:28 | #17 |
| 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. |
| Sep 18, 2007 01:29 | #18 |
| 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. |
| Sep 18, 2007 01:29 | #19 |
| 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. |
| Sep 18, 2007 01:31 | #20 |
| 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. |
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