This article explores what it means for the Chinese intellectual property system to hit 35. It begins by briefly recapturing the system's three phases of development. It discusses the system's evolution from its birth all the way to the present. The article then explores three different meanings of a middle-aged Chinese intellectual property system – one for intellectual property reform, one for China, and one for the TRIPS Agreement and the global intellectual property community.
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In China, to enact or amend an intellectual property law, such as the Copyright Law, the Patent Law, the Trademark Law or the Unfair Competition Law is a complicated process, involving a number of competent administrations, the State Council, and the Standing Committee of the National People's Congress. Generally speaking, there are three steps to enacting or amending an intellectual property law. First, a competent administration, such as the National Copyright Administration (in charge of the Copyright Law), the State Intellectual Property Office (in charge of the Patent Law), or the State Administration of Industry and Commerce (in charge of the Trademark Law and the Unfair Competition Law), shall draft a law or amendment on the basis of their views. Secondly, the State Council shall develop its law or amendment on the basis of the drafting submitted by a competent agency and the suggestions or opinions of other administrative agencies. Thirdly, the Standing Committee of the National People's Congress shall review the drafted law or amendment by the State Council three times, making some necessary changes on the basis of its views, and then pass the law or amendment. Although the consensuses will be gathered by these three steps, it is time-consuming to pass or amend a law, taking about eight to ten years.
China is widely regarded as a norm taker of the global intellectual property regime dominated by industrialized nations. It is however likely that China will become a norm holder due to China's increasing strengths in high technology and innovation as well as its expanding outbound investment into foreign high-tech sectors. Globalization and the global intellectual property regime that serves it are defined by neoliberal capitalism. Chinese enterprises equipped with improved market experience will soon find these neoliberal, corporate interest-maximizing game rules very attractive. As a consequence, they may become a new norm holder of the current intellectual property regime, and perhaps a more predatory one.
Dong Huijuan and Lin Xiuqin
The Chinese Trademark Law, revised for the third time in 2013, was devised to achieve new goals and to move towards the stronger protection of right-holders. There are some changes or trends in the legislative and judicial practice worthy of attention, for instance placing greater emphasis on trademark use (including factual use), different interpretations of such use, changes in the recognition and protection of ‘well-known trademarks’, the ‘prior use’ defence, and so on. These alterations might cause new debates or discussion on some essential problems in trademark law. On the whole, Chinese Trademark Law has been amended towards ‘internationalization’ and market orientation.
Zhang Liguo and Nari Lee
This article examines the establishment of specialized intellectual property (IP) courts in China in 2014. It explores these courts in the context of the IP strategy driven by the national administration, with the aim of highlighting their Chinese characteristics. The article notes that the motivation for establishing these courts was to improve judicial protection of IP rights, a goal aligning with the major target set in the National Intellectual Property Strategy. The establishment of these IP courts was pushed forward by the highest authority to overcome procedural and political obstacles. It was conceived as a pilot scheme for carrying out judicial reform. As such, it is expected that the new measures adopted in these IP courts could later be extended to all other courts in China. One real and compelling reason for establishing specialized IP courts is the rapidly growing volume of IP disputes, which demands coherent and efficient rulings from courts with technologically competent judges. Although this move has yet to provide forum concentration at the appellate level, the specialized IP courts in China have integrated judicial resources and harmonized the interpretation of IP law. In the interim, they have given a clear signal that IP rights are private rights to be adjudicated by courts and implied that IP governance in China has become more market-oriented.
The evolution of criminal liability for copyright infringement in China has been more the result of external pressure from developed countries led by the United States, than an initiation pushed by domestic efforts to protect intellectual property. Empirical research of criminal copyright infringement in China has found the actual implementation of the relevant laws unsatisfactory. China should strengthen the enforcement of its criminal copyright infringement laws, and intensify its fight against online criminal piracy as well as criminal offences committed by entities. The addition of ‘the actual loss suffered by the rights holder’ to the criteria for conviction and sentencing, the reduction of the application of probation to copyright infringement crimes and an increase in the amount of criminal fines, are embodiments of such efforts.
Edited by Peter K Yu
Anastasia Karatzia and Menelaos Markakis
This article examines the transformation of the role of the European Commission and the European Central Bank (ECB) in the context of the Economic and Monetary Union (EMU), from institutions acting within the EU institutional framework, to actors taking on new tasks in the realm of international law as part of the structure of the European Stability Mechanism (ESM). It expounds the legal framework applying to the two institutions in the ESM by analysing the currently applicable legislation as well as recent case law of the Court of Justice of the European Union (CJEU) (Ledra and Mallis). It argues that the applicable legal framework remains underdeveloped and unclear, especially with regard to the obligations incumbent on the ECB in the ESM, which have not yet been examined by the EU courts. Exploring the main challenges resulting from the ambiguity of the tasks and obligations conferred on the two EU institutions in the ESM, the article argues that all EU law applies in principle to the activities of the EU institutions in the ESM. It then shifts the focus to political and legal accountability, the emphasis being on direct and indirect actions before the CJEU, including the vexed issue of liability of the EU institutions for damages caused by their actions in the ESM. The article concludes with a forward-looking assessment in light of the Five Presidents’ Report on Completing the EMU, which stipulates that the governance of the ESM should be integrated within the framework of EU law. The article questions whether a future incorporation of the ESM's governance in EU law could address any of the challenges resulting from the current uncertainty about the role and potential liability of the Commission and the ECB for their actions in the ESM, and makes a number of recommendations as to how the ESM should be incorporated into EU law.
This article, first delivered as the keynote at the ‘Transforming Institutions’ conference, discusses the increasing relevance of relations between different international organisations. It provides a discussion of what sort of forms these relations can take, and of the relevant legal questions that arise, relating to the form of instruments, treaty-making powers and procedures, accountability for joint activities, and related issues. It concludes by providing a preliminary assessment in light of some of the relevant theoretical literature.