Nari Lee and Niklas Bruun
Niklas Bruun and Liguo Zhang
China’s current IPR system has resulted from developments initiated during the 1970s. The process of establishing a Chinese IP regime demonstrates a vivid model of legal transplant. Nonetheless, there is a viewpoint that considers legal transplantation impossible because legal rules cannot be divorced from their culture or political context. This chapter examines how the legal transplant of IP laws has been interacting with the norms building in Chinese society. The central hypothesis is that IP legal transplant and IP norm building in China is not a passive process of accepting western rules, rather it is a dynamic process. The chapter demonstrates the interaction between governmental institutions and authorities, political and academic elites, state-owned and private companies, governments and international organizations and consumers in this process. The interaction among these groups also illustrates the actual evolution of Chinese IP norms. In this process, China is not only a norm taker, but also a norm maker. The rapid transplant of IP laws in China, in such a brief period of time, has led to a divergence between formal IP rules and actual IP norms as followed in practice. This divergence can explain the difficulty of enforcing IPRs in China.
Yajie Zhao and Niklas Bruun
This chapter takes a fresh approach in looking at developments regarding Chinese intellectual property (IP) judicial enforcement mechanisms. It provides insights into the Chinese court system by looking at (1) its present structure and practices, including a deep look at the existing ‘three-in-one’ model and the newly established IP courts in Beijing, Shanghai and Guangzhou; and (2) its on-going reforms, including the impact on the ‘dual-track’ system, as well as the newly implemented ‘elected judiciary’. It then discusses the developments of the Chinese judicial system from a comparative European perspective. The challenges that China is facing are both specific to China and also shared globally in various legal systems. Even though China is very promising and carrying out considerable IP reform, the theoretical ideal is not always attainable in reality and practice. Moreover, a sufficient and functioning judicial system in China is discussed within an even bigger picture, which is not only a question of legal reform.
Jens Schovsbo and Niklas Bruun
Presently Germany primarily protects trade secrets via the Act Against Unfair Competition. The protection offered is rather rudimentary; for example, no statutory definition of ‘a secret’ exists. This chapter first restates the current situation in German law and then analyses the effects on German law of the Directive in the light of the legislative initiatives.
Edited by Niklas Bruun and Marja-Leena Mansala
Niklas Bruun and Marja-Leena Mansala
The regulation of employee IP has developed within the shadow of two dynamic fields of law, namely labour law and intellectual property (IP) law. Both fields of law have undergone significant changes due to economic, technological and social transformations. Employee IP has rarely been the main focus or interest for the legislator. In the introductory article we focus on the foundations of employee IP, we explore the historical roots of the regulation of IP rights in the context of inventions and creations made by employees. We also explore different approaches that have been applied in order to transfer ownership of IP to the employer. We try to develop some criteria for an efficient and fair regulation. We argue that the employee´s right to recognition, attribution or moral rights is important. On the other hand the employer must be able to dispose over the economic use of the protected subject matter, a fragmented structure of rights cannot be efficient. An efficient system for conflict resolution is also important.
Marja-Leena Mansala and Niklas Bruun
Regulation of intellectual property issues is based on international conventions from the 19th century. The basic principles are harmonized but the national legislators have the final word on how the principles are implemented into the national legislation. The transfer of rights is not harmonized and the solutions in different legal systems, civil law - common law, differs. Almost all developed countries have some regulations about employee inventions but the regulations differ. Employee’s right to compensation for patented or patentable invention and the amount of compensation varies from country to country. Other intellectual property rights, especially copyright, is less regulated, and the question of employers’ right is usually solved according to employment regulations or contracts. According to EU legislation the right to computer software and sui generis databases created during the employment is presumed to be transferred to the employer without extra compensations if not otherwise agreed.