China is a country with a long history of civilization. The Chinese nation contains great creativity, and the splendid culture she created has had a profound impact on the process of human civilization. For thousands of years, many outstanding scientists, inventors, writers and artists in China have made great contributions to the development of human civilization with their brilliant intellectual labor achievements.
with the development of human civilization and commodity economy, the intellectual property protection system was born, and it has increasingly become a powerful legal measure for all countries to protect the rights and interests of owners of intellectual achievements, promote the development of science and technology and social economy, and conduct international competition. Due to various historical reasons, on the whole, the construction of intellectual property system in China started late. However, after the implementation of reform and opening up, in order to develop social productive forces faster, promote all-round social progress, meet the needs of the development of socialist market economy, and promote the integration with the world economy, China has accelerated the pace of intellectual property protection system construction. In the short period of more than ten years from the end of 197s to the present, China has done a lot of fruitful work, gone through the legislative journey that some developed countries usually need decades or even hundreds of years to complete, established a relatively complete legal system for intellectual property protection, and made remarkable achievements in intellectual property legislation and enforcement.
At present, the protection of intellectual property rights has become an issue of universal concern in international political, economic, scientific and technological and cultural exchanges. The international bilateral and multilateral negotiations on this issue, especially the conclusion of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement) of the General Agreement on Tariffs and Trade, have promoted the protection standard of intellectual property rights worldwide to a new level.
today, when the international community attaches great importance to intellectual property protection, what is China's position on intellectual property protection? What is the current situation of intellectual property legislation and law enforcement in China? What measures has China taken to undertake its international obligations of intellectual property protection? It is necessary to make a basic introduction.
I. China's basic position and attitude on intellectual property protection
The China government believes that the intellectual property protection system is of great significance and role in promoting scientific and technological progress, cultural prosperity and economic development. It is not only an important system to ensure the normal operation of the socialist market economy, but also one of the basic environments and conditions for international scientific, technological, economic and cultural exchanges and cooperation. China regards the protection of intellectual property rights as an important part of the reform and opening-up policy and the construction of socialist legal system. Since the late 197s, it has started to formulate relevant laws and regulations, and at the same time actively participated in the activities of relevant international organizations to strengthen exchanges and cooperation with other countries in the field of intellectual property rights. Therefore, the construction of China's intellectual property protection system has shown a high starting point of facing the world and the international protection level at the initial stage. Driven by the reform and opening up, the speed of intellectual property legislation in China is unprecedented.
on March 3, 198, the government of China submitted its instrument of accession to the World Intellectual Property Organization. China has been a member of the World Intellectual Property Organization since June 3rd, 198.
on August 23rd, 1982, the 24th session of the 5th the NPC Standing Committee passed the Trademark Law of the People's Republic of China, which came into effect on March 1st, 1983. This is an important sign that China has begun to systematically establish a modern intellectual property legal system.
on March 12th, 1984, the fourth session of the 6th the NPC Standing Committee passed the Patent Law of the People's Republic of China, which came into effect on April 1st, 1985.
on December 19th, 1984, the government of China submitted the instrument of accession to the Paris Convention for the Protection of Industrial Property to the World Intellectual Property Organization. China has been a member of the Paris Convention since March 19th, 1985.
On April 12th, 1986, the Fourth Session of the Sixth National People's Congress adopted the General Principles of the People's Republic of China and the Civil Law, which came into effect on January 1st, 1987. As a whole, intellectual property rights were first defined in the basic civil law of China, and were recognized as the civil rights of citizens and legal persons. The law also makes it clear for the first time that citizens and legal persons enjoy copyright.
the government of China actively promotes the establishment of an environment for international protection of integrated circuits. In 1989, the World Intellectual Property Organization adopted the Treaty on the Protection of Intellectual Property of Integrated Circuits at the diplomatic conference held in Washington, D.C., and China was one of the first signatories of the treaty.
On July 4th, 1989, the government of China submitted the instrument of accession to the madrid agreement concerning the international registration of marks Agreement to the World Intellectual Property Organization. China has been a member of the Madrid Agreement since October 4th, 1989.
On September 7th, 199, the 15th meeting of the 7th the NPC Standing Committee passed the Copyright Law of the People's Republic of China, which came into effect on June 1st, 1991.
On July 1th and 3th, 1992, the government of China submitted the instruments of accession to the Berne Convention for the Protection of Literary and Artistic Works and the universal copyright convention to the World Intellectual Property Organization and the United Nations Educational, Scientific and Cultural Organization respectively. China has been a member of Berne Convention and universal copyright convention since October 15th and 3th, 1992 respectively.
On January 4th, 1993, the government of China submitted the instrument of accession to the Convention for the Protection of Producers of Phonograms from Unauthorized Reproduction of Phonograms (hereinafter referred to as Phonograms Convention) to the World Intellectual Property Organization. Since April 3th, 1993, China has been a member of the phonograms convention.
On September 2, 1993, the Third Session of the Eighth the NPC Standing Committee passed the Law of the People's Republic of China on Combating Unfair Competition, which came into effect on December 1, 1993.
On September 15th, 1993, the government of China submitted its accession to the Patent Cooperation Treaty to the World Intellectual Property Organization. Since January 1, 1994, China has become a member of the Patent Cooperation Treaty, and the China Patent Office has become an accepting bureau, an international search unit and an international preliminary examination unit of the Patent Cooperation Treaty.
The above historical facts are only a partial record of China's intellectual property legislation and its participation in relevant international organizations, which is enough to prove China's position and attitude of attaching great importance to intellectual property protection.
the basic framework of China's intellectual property legal system was mainly completed in the 198s. Great changes have taken place in international economic relations and environment since the 199s. In November 199, in the multilateral trade negotiations of the General Agreement on Tariffs and Trade (Uruguay Round), the draft Agreement on Trade-related Aspects of Intellectual Property Rights was reached, which marked the formation of a new international standard for the protection of intellectual property rights. The Government of China actively participated in this negotiation process and made great efforts to promote the conclusion of this agreement. For the need of opening wider to the outside world, China has actively fulfilled its international obligations to protect intellectual property rights, made efforts to bring the level of intellectual property protection closer to the new international standards, and adopted many major measures to further improve the current level of intellectual property protection in China.
China government's sincere stance of abiding by relevant international conventions and bilateral agreements on the protection of intellectual property rights and its ability to fully undertake international obligations have been widely praised and supported by international public opinion. Dr. arpad Bogsch, Director-General of the World Intellectual Property Organization, recalled the 2-year history of cooperation between the organization and China, and pointed out, "In the history of intellectual property, the speed at which China has completed all this is unique.
China adheres to the legal principle of "there are laws to follow, laws must be followed, law enforcement must be strict, and offenders must be prosecuted". In order to better implement this principle, while perfecting the legal system, enforcing the law seriously and resolutely cracking down on violations, China has vigorously carried out legal publicity and education on intellectual property protection and accelerated the training of professionals in the intellectual property field in view of the fact that the intellectual property system was established in China for a short time and citizens' intellectual property awareness is relatively weak. In China, the promulgation of every intellectual property law has been widely publicized by radio stations, television stations, newspapers and other news media, and a large number of pamphlets and related video educational films have been published. At the same time, relevant government departments at all levels have rapidly popularized intellectual property legal knowledge among the general public by holding lectures and training courses on legal knowledge. For example, after the revision of China's patent law, millions of people across the country received training, with 6, people receiving training in Hunan Province alone. In China, in recent years, the phenomenon of using legal weapons to solve intellectual property disputes has increased, which shows from one side that the legal awareness of intellectual property rights in the whole society has been enhanced and intellectual property knowledge has been popularized. In order to speed up the training of talents in intellectual property, the China Municipal Government has also cooperated closely with relevant international organizations to organize relevant personnel to study abroad and participate in various training courses and seminars. More than 3 training courses and seminars have been held in cooperation with the World Intellectual Property Organization alone, and more than 3, people have been trained. At present, more than 7 colleges and universities in China have carried out teaching research on intellectual property rights. For example, in 1986, China Renmin University set up the Intellectual Property Teaching and Research Center to recruit non-law graduates to study for a second degree in intellectual property; On the basis of teaching research, Peking University established the Intellectual Property Institute in 1993. China has gradually formed an education system for training professionals in the field of intellectual property, including second degree, master's degree and doctoral degree. Groups of professionals in intellectual property are constantly being delivered to the society.
Second, China has a high-level legal system for protecting intellectual property rights
With the pace of reform and opening up, China has made great progress in intellectual property protection. China has formulated and improved various intellectual property laws and regulations according to the national conditions and international development trends, and has formed a socialist legal system for intellectual property protection with China characteristics. The scope and level of protection of intellectual property rights in China are gradually in line with international practices, and a high level of legal protection has been implemented for intellectual property rights.
The Trademark Law of the People's Republic of China, which came into effect in March, 1983, and its detailed rules for implementation, are completely consistent with the internationally accepted principles in the application, examination and registration of trademarks. In order to meet the needs of the reform and opening up and the development of the economic situation, more effectively crack down on counterfeit trademarks, stop trademark infringement, and effectively protect the exclusive right to register trademarks, China revised the Trademark Law and its implementing rules in 1993, respectively, expanding the scope of trademark protection, and adding provisions on the registration and management of service trademarks in addition to commodity trademarks. In the formal examination, the correction procedure is added, and the examination opinions system is established in the substantive examination, which is convenient for trademark registration applicants, which is all in line with the requirements of the Agreement on Trade-related Intellectual Property Rights reached by the General Agreement on Tariffs and Trade. The State Administration for Industry and Commerce has also issued a series of regulations, such as the Provisions on the Administration of Trademark Printing and the Measures for the Administration of the Filing of Trademark License Contracts. In February, 1993, the NPC Standing Committee made the Supplementary Provisions on Punishing the Crime of Counterfeiting Registered Trademarks, which further strengthened the punishment of the crime of counterfeiting registered trademarks and the punishment of trademark infringement. These laws, regulations and rules provide a guarantee for fully and effectively protecting the exclusive right to use registered trademarks at home and abroad.
The Patent Law of the People's Republic of China and its implementing rules, which came into effect in April p>1985, extended the scope of intellectual property protection in China to the protection of invention and creation patents. In order to make the level of patent protection in China closer to international standards, the NPC Standing Committee passed the amendment of the patent law on September 4, 1992, which made important changes to the patent law. The newly revised patent law, proceeding from the need of opening wider to the outside world and being conducive to the development of science, technology and economy, first, expands the scope of patent protection, and grants patents to inventions in all technical fields, no matter whether they are products or methods, that is, patents are granted to drugs and chemical products, foods, beverages and condiments without exception; The second is to extend the protection period of invention patents from 15 years to 2 years from the date of application, and to extend the protection period of utility model patents and design patents from 5 years to 1 years from the date of application; Third, the protection of patent rights has been further strengthened. In addition to the protection of patented methods extending to products directly obtained by patented methods, it is also clearly stipulated that imported patented products must obtain the consent of the patentee, which makes the protection of the rights and interests of the patentee more adequate; Fourth, the conditions for compulsory licensing of patents have been redefined. This makes the protection of patent rights in China reach a new level. In this way, China's patent law is basically in line with the Agreement on Trade-related Intellectual Property Rights reached by the General Agreement on Tariffs and Trade.
The Copyright Law of the People's Republic of China and its implementing regulations clearly protect the copyright of authors of literary, artistic and scientific works and their related rights and interests. According to this law, China not only protects written works, oral works, music, drama, folk art, dance works, fine arts and photography works, film, television and video works, engineering design, product design drawings and their descriptions, maps, schematic diagrams and other graphic works, but also brings computer software into the scope of copyright protection. China is one of the few countries in the world that explicitly regards computer software as the object of copyright protection. The State Council also promulgated the Regulations on the Protection of Computer Software, which stipulated the specific implementation measures for the protection of computer software. As a supporting regulation of the copyright law, it came into effect in October 1991. On September 25th, 1992, the State Council promulgated the Provisions on the Implementation of International Copyright Treaties, which made specific provisions on the protection of the rights of foreign copyright owners in accordance with international treaties.
In addition, the Law of the People's Republic of China on Technology Contract and the Law of the People's Republic of China on Science and Technology Progress formulated by the NPC Standing Committee, as well as a series of administrative regulations for the protection of intellectual property rights formulated by the State Council, have further improved the legal system of intellectual property rights in China, which is closer to and coordinated with the international protection level on the whole.
China has complete legal measures to protect intellectual property rights. China's intellectual property laws stipulate the legal responsibilities for acts violating the law, including civil liability, administrative punishment and criminal liability.
China's patent law stipulates that the patentee or interested party may request the patent management authority to handle the patent infringement, or directly bring a lawsuit to the people's court. When dealing with it, the patent administration authorities have the right to order the infringer to stop the infringement and compensate for the losses. Where a non-patented product or a non-patented method is passed off as a patented product or a patented method, the patent administration authority shall order it to stop passing off, publicly correct it, and impose a fine. If the circumstances of counterfeiting another person's patent are serious, the person directly responsible shall be investigated for criminal responsibility according to the relevant provisions of the Criminal Law, that is, the person directly responsible may be sentenced to fixed-term imprisonment of not more than three years, criminal detention or a fine.
China's trademark laws and regulations stipulate that the administrative department for industry and commerce can take the initiative to check and deal with the infringement of the exclusive right to use a trademark according to its functions and powers or the consumer's report; The infringed party may request the administrative department for industry and commerce at or above the county level where the infringer is located or where the infringement is committed. The relevant administrative departments for industry and commerce include