CHINA INTELLECTUAL PROPERTY LAW NEWSLETTER
Vol. 3 , No. 1 - January 17, 2002
TOPICS THIS ISSUE:
- Synopsis of the Amendments to the Copyright Law of China
- China Leads World in Trademark Registrations
- Trademark Law and Provisions Better Protect Well-Known Trademarks
- Government Officials Confident About New Copyright Law
- SIPO And CASS Comment on National IP Situation
Synopsis of the Amendments to the Copyright Law of China
The amendments to the Copyright Law of China were approved and published by the National People's Congress on October 27, 2001. The new law is improved in many ways. To see the Amended Copyright law, please click here.
One of the greatest improvements is that the subject matter protected by copyright is enlarged. Now, according to Articles 3 and 14, matters such as architectural works, model works, acrobatic works and software works are all protected. This is in accordance with the Berne Convention, which requires that all natural and social science, literary, artistic and engineering works are protected by copyright. Future works are also provided for in Item 9 of Article 3 which states that "other works set out by laws and administrative regulations" are also protected.
The rights of copyright owners are also expanded. Whereas the previous law did not deal with the right of rental nor the right of distribution over a public network, Article 10 of the new law includes the Right of lease, Right of broadcast, Right of information network dissemination as new property rights of copyright holders. This amendment now allows for subject matter on the Internet to be protected by copyright. Compared with the same article in the previous law, the new Article 10 is much more clear and specific regarding the personal and property rights of copyright holders.
The new law also requires that radio and TV stations compensate copyright holders for using their works. According to the old law, if the purpose of use was "non-commercial", a radio or TV station was not required to pay any compensation. Now, according to the revised Article 43, although radio and TV stations do not need a license or permission to use a work, they must pay compensation to the copyright holder.
Property rights of a copyright are now assignable. Compared with the previous law, which did not allow for the assignment of any property rights, Article 25 not only legally recognizes assignments concerning the rights of reproduction, distribution, lease, exhibition, performance, show, broadcast, information network dissemination, production, adaptation, translation and compilation, but also determines what details are necessary for a rights assignment contract.
Infringers will bear a much heavier liability according to the new Copyright Law. Now, the Copyright Administrative Authorities have the administrative power to order the stopping of an infringing activity, confiscate illegal profits and any equipment used to carry out the infringing acts, and to punish the infringers by fine. Furthermore, suspected infringers such as publishers, producers or distributors will now bear the liability of infringement if they are unable to prove that the infringing product was bought through lawful means.
Concerning damages, according to Article 48 of the new law, infringers must pay the "actual loss of the rights owner." If the amount of damages is difficult or impossible to determine, there is a maximum of RMB 500,000 in statutory damages available.
The new Copyright Law now gives copyright holders the option of a preliminary injunction and property preservation. Article 49 reads that any copyright owner "who has evidence to establish that another person is committing or will commit an act of infringing his right" may apply to the court for measures such as an "order to stop the relevant act and property preservation."
It is believed that two more revised copyright-related regulations will come out in the near future, The Regulations for the Protection of Computer Software and The amendments to Regulations for Implementation of the Copyright Law.
The new Copyright Law assists China greatly in meeting the requirements set out by the WTO, TRIPS and the Berne Convention. However, it will still take some time before the Copyright Law is balanced by a sophisticated and predictable system of enforcement.
China Leads World in Trademark Registrations
The State Administration for Industry and Commerce (SAIC) recently announced that the number of trademarks registered in China in the first 10 months of this year reached 155,600, the most in any single country.
Last year, China was also the country with the highest number of valid trademark registrations. In a 12-month period, there were almost 160,000 trademarks registered.
Since 1979, when there were only 30,000 valid trademarks registered in China, approximately 1.25 million trademarks have been registered.
(Source: CCTV.com)
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Trademark Law and Provisions Better Protect Well-Known Trademarks
Since the State Administration of Industry and Commerce (SAIC) issued the Provisional Rules on the Certification and Administration of Well-known Trademarks (PRCAWT) issued by the State Administration of Industry and Commerce (SAIC) in 1996, they have acknowledged several well-known trademarks.
The recently amended Trademark Law of the People's Republic of China contains new stipulations that not only deal with the infringement of famous trademarks, but also determines what qualifications must be met in order for a trademark to be recognized as well-known.
Although many points may change when the provisional rules are amended in the near future, the SAIC remains the sole authority able to examine and approve well-known trademarks.
Article 14 of the new Trademark Law provides guidelines for the examiners to follow when considering a well-known trademark. Examiners must consider 1) the public recognition of the trademark; 2) record of the trademark having once been protected as a well-known trademark; 3) time period of successive use of the mark; 4) the extent, time period and scope of the promotional work for the trademark and 5) other elements that should be considered. Among the last category, it has been proven that having a considerable amount of the market share is imperative to attaining well-known status.
Until the recent revisions of the Trademark Law, the best protection of a well-known trademark existed in the provisions, which prohibited the registration of a trademark similar to a well-known trademark, misleading use of the words that make up a well-known trademark.
Now, with the amendments to the Trademark Law, the new Article 13 allows the owner of an unregistered well-known trademark to apply for protection within China, despite not satisfying the previous requirement of registering your trademark within the People's Republic of China. According to the new Law, goods that are not within the same class of goods as a well-known trademark are still protected if confusion could be caused to the public. The recent amendments also took away the five-year limit that trademark owners had to previously follow when revoking a malicious registration.
Government Officials Confident About New Copyright Law
Vice-director of the National Copyright Administration, Shen Rengan, believes the recent revisions of China's Copyright Law "will better protect the interests and rights of domestic and foreign copyright owners and deal with Internet infringement."
Of the total 30,091 IP-related cases that were heard in China before 2000, 3,411 involved copyright infringement. The Music Copyright Society has handled some of the more significant cases, including some concerning international franchises and hotels that failed to pay royalties for playing background music.
Deputy chief judge Jiang Zhipei of the Intellectual Property Trial Chamber of the Supreme Court of China says that the PRC has set up the sound legal foundations needed for the protection of copyrights and other related rights.
In one recent copyright infringement case, The Music Copyright Society of China, which has the power to act against any copyright infringements affecting its members, represented four artists in a lawsuit against a publishing company.
Beijing Tengtu Electronic Publishing Company, which failed to pay royalties to the pop artists Han Hong, Tian Zhen, Zang Tianshuo and Liu Huan after it included some of their songs on a MP3 compact disc was ordered by the Beijing No. 1 Intermediate People's Court and damages of RMB 64, 845 (US$ 7,813) to the four artists.
(Source: China Daily)
SIPO And CASS Comment on National IP Situation
China now has more opportunities than challenges in the IP field, says the Commissioner of the State Intellectual Property Office (SIPO).
Wang Jingchuan remarked that in the past 20 years, due to the introduction of patent, trademark, copyright laws and other IP-related laws, China is now the home of manufacturers such as Haier that use their patented technologies to capture large international market shares.
Li Mingde, professor of the Intellectual Property Center of the Chinese Academy of Social Sciences (CASS), and Of Counsel of Lehman, Lee & Xu, believes that intellectual property is the most valuable property in the 21st century.
From 1994 to 2000, Chinese patent applications increased 14.6 percent annually while foreign applications increased 22.3 percent. Because the high number of foreign patents may push other competitors out of the market, SIPO plans to set up a national strategy that will encourage key industries and high technology.
(Source: Xinhua News Agency)
Lehman Lee & Xu
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