Fairness, Morality and Ordre Public in Intellectual Property
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Fairness, Morality and Ordre Public in Intellectual Property

Edited by Daniel J. Gervais

This incisive book explores the ways in which the major notions of fairness, morality and ordre public can be used both to justify and to limit intellectual property rights. Written by an international team of experts in the field, it provides varied and sometimes divergent perspectives on how these notions are applied to different rights and in different contexts.
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Chapter 14: A study on the application of the General Clause of the Anti-Unfair Competition Law in China in the age of the internet

Qian Tao and Haotian Geng


Ever since China’s Anti-Unfair Competition Law (AUCL) came into force in 1993, the development of China’s legislation against anti-unfair competition has been almost stagnant. As the specific provisions designed in the pre-Internet era were ill-equipped to regulate increasing internet unfair competition, judges have had to only rely on the application of the General Clause of the AUCL to a larger extent or even to escape to the General Clause. The principles of fairness and morality were widely used to examine the tension between competition order and competition freedom, which was caused by the innovation of information technology and the business model. However, the extended application of the General Clause without referring to the specific provisions was considered by many scholars to be an abuse of the General Clause. The recent amendment of the AUCL came into force on January 1, 2018 and it includes a specific provision especially for regulating online unfair activities. Thus Article 12 is also called the Internet Clause. In this chapter, the authors will explain how the General Clause has been applied to internet cases and how judges balance the interests in specific cases in the shortage of precedent and theoretical support. Then, the authors will analyze how the future will be in terms of the application of the General Clause after the amendment of the AUCL in 2018, which includes a specific provision regulating unfair practices in the internet.

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