Since the reform and opening up, our country has attached great importance to the protection of intellectual property rights through legislation, and has particularly emphasized the integration of the intellectual property legal system with international standards. It has participated in a series of international conventions for the protection of intellectual property rights, and has also paid attention to drawing on international standards in domestic legislation. Common practice. However, compared with the requirements of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as the Agreement on Intellectual Property Rights), there are still some gaps. Accession to the WTO has put forward new requirements for the construction of my country's intellectual property legal system.
1. Shortcomings of my country’s intellectual property legislation
The “Intellectual Property Agreement” mainly stipulates the protection of copyrights and related rights (including computer programs and data compilations), trademarks, and geographical indications. , industrial designs, patents, integrated circuit layout designs, undisclosed information, etc., which are related to the relevant international conventions for the protection of intellectual property rights such as the Paris Convention, the Berne Convention, the Rome Convention, and the Washington Convention. The provisions of these conventions are consistent and complementary to those of these conventions. The agreement mainly stipulates the minimum level of protection for various types of intellectual property rights and requirements for measures and intensity of protection of intellectual property rights.
Compared with the requirements of the Intellectual Property Agreement, the gap in my country’s intellectual property legislation is mainly reflected in the following two aspects: (1) The objects of protection are not comprehensive. The protection objects of my country's relevant legislation are copyrights and related rights, trademarks, patents (including inventions, utility models and designs), computer programs and data compilations, and undisclosed information (that is, trade secrets), but integrated circuit layout designs are not protected. , geographical indication. (2) Remedial measures are incomplete. For example, the Trademark Law and the Patent Law stipulate that the reexamination decisions made by the Trademark Review and Adjudication Board and the Patent Review and Adjudication Board are final; there is no provision for judicial authorities to take interim measures. (3) The protection intensity does not meet the requirements. For example, the civil compensation provided by copyright infringers to the rights holders is often insufficient to compensate the rights holders for their losses.
2. Improvement of intellectual property legislation to meet the needs of China's accession to the WTO
In order to meet the needs of China's accession to the WTO, my country has newly formulated the "Regulations on the Protection of Layout Designs of Semiconductor Integrated Circuits", which regulates semiconductor integrated circuits. The circuit layout design has been protected, and relevant laws and regulations have been revised. The modifications made in accordance with the relevant provisions of the Intellectual Property Agreement mainly include: (1) Copyright Law: Protect the right to rent computer software and film works as an independent property right, stipulate protection for compilation works such as databases, and provide for "fair use" The principles and circumstances of the infringement are redefined, stipulating that in order to prevent any delay from causing irreparable damage to the right holder or the loss of evidence, the judicial authorities can take temporary measures, and increase the civil liability of the infringer and increase the administrative penalty. intensity.
(2) "Computer Software Protection Regulations": The rights of software copyright holders are refined, the content of each right is defined, and the protection period of software copyright is changed to the lifetime of a natural person and 50 years after his death, 50 years for legal persons or other organizations, and has narrowed the scope of "fair use" of works and intensified the crackdown on the production and sale of pirated software.
(3) Trademark Law: Change the constituent elements of a trademark from the original words, graphics and their combinations to include words, graphics, letters, numbers, three-dimensional logos and color combinations, and combinations of these elements; Among the elements prohibited from use, official marks and inspection marks are added; well-known trademarks are clearly stipulated to be protected; parties can sue in court against the review decision made by the Trademark Review and Adjudication Board; the liability for compensation of trademark infringers is increased, and The judicial protection of trademarks is strengthened, and it is stipulated that judicial authorities can take temporary measures to prevent any delay from causing irreparable damage to the right holder or the loss of evidence; it also adds the protection of geographical indications, certification marks and trademarks held by groups, associations or other organizations. Protection of collective marks.
(4) Patent Law: Added provisions that the patentee of a product has the right to prohibit others from promising to sell its patented products; increased the liability of patent infringers, strengthened judicial protection of patents, and It stipulates that judicial authorities may take provisional measures in order to prevent any delay from causing irreparable damage to the right holder or the loss of evidence; stipulates that for review decisions made by the Patent Review and Adjudication Board on issues related to inventions, utility models, and design patents, the parties may submit to the court Prosecution.
In addition, the implementation regulations or implementation details of the Copyright Law, Trademark Law, and Patent Law will also be revised accordingly; the provisions of the "Regulations on the Customs Protection of Intellectual Property Rights" are related to Section 4 of the "Intellectual Property Agreement" The provisions on border measures to protect intellectual property rights are consistent. The Regulations on the Protection of New Varieties of Plants is consistent with the requirements for the protection of new plant varieties in Article 27 of the Intellectual Property Agreement. These two administrative regulations do not need to be revised this time.
3. Relevant local regulations that need to be cleared up to adapt to WTO accession
Legislation related to intellectual property rights should be formulated by the state, because intellectual property protection is strictly territorial and is generally based on a country’s The entire territory is protected. Therefore, the substantive standards related to intellectual property protection, such as the protection period, patent application maintenance fees and annual fees, etc., should be uniformly stipulated by the state.
However, in the past, many places in my country have formulated entity protection systems for trademarks applicable within their respective jurisdictions, such as "famous trademarks" at the provincial level, "well-known trademarks" at the prefecture (city) level, etc. They often stipulate that only those who have obtained local (city) well-known trademarks can apply for the province's famous trademarks; only those who have obtained the province's famous trademarks can apply for the national well-known trademarks. Moreover, only the products of enterprises with local production bases can apply for local well-known trademarks and famous trademarks. Such regulations restrict the right of enterprises to apply for national well-known trademarks, which is not conducive to Chinese companies obtaining "well-known trademarks", which is not conducive to Chinese products entering the international market in the future and obtaining automatic protection from other WTO members. These regulations actually set up substantive standards for intellectual property rights, and are based on local administrative jurisdictions as the scope of protection. Therefore, in this clean-up of local regulations, the General Office of the Central Committee and the General Office of the State Council (hereinafter referred to as the “two offices”) require local governments to abolish such regulations.
In order to facilitate the application for patents, some places have formulated some regulations on patent application procedures and related fees. In this clean-up of local regulations, the "Two Offices" require local governments to modify or abolish regulations that conflict with relevant national laws and regulations in accordance with the principle of legal unification, and require that different policies be treated in accordance with the WTO's most-favored-nation treatment principle and national treatment principle. Members’ intellectual property rights holders are treated equally, and other members’ intellectual property rights holders are treated equally as domestic intellectual property rights holders.
In order to facilitate the resolution of intellectual property disputes and better protect intellectual property rights, some places have formulated some administrative dispute resolution procedures and fee regulations. For example, it stipulates that patentees apply to administrative agencies for infringement Its patented acts take measures to mediate disputes related to intellectual property rights and the fees related thereto. These regulations also require that they be sorted out in accordance with the principles of legal unification, the principle of most-favored-nation treatment and the principle of national treatment, and that the amendments that should be revised and the abolition of those should be abolished.
0 Answers: zyc885 - General Soldier Level 12-19 13:32
I will comment gt; gt; Related content Experts in animation can help 55555555 urgently lt;lt;Thesis on the research on the reform and development of WTO and my country's intellectual property system...The paper on the impact of China's accession to the WTO on the status of enterprises in my country is urgently needed! Thank you. What does the 11th Five-Year Plan mean during the 11th Five-Year Plan? Compared with the 15th Five-Year Plan, what changes have been made in policies
More about how to correctly understand Taiwan’s return based on the knowledge learned in eighth grade? Question gt; gt;
View the same topic question: Correct understanding of intellectual property protection after joining the WTO
Other answers*** 1 item
1. Joining the world trade The impact of the organization on my country's intellectual property protection work
On November 15, 1999, the Chinese and American governments signed a bilateral agreement on China's accession to the World Trade Organization, which heralded my country's accession to the World Trade Organization. The pace is accelerating. It can be said that after more than ten years of arduous journey, our country has arrived at the gate of the World Trade Organization.
After China joins the WTO, it must fully fulfill its rights and obligations in the field of intellectual property, which will have a profound impact on the development of my country's intellectual property work. Within the jurisdiction of the World Trade Organization agreement, the Agreement on Trade-Related Aspects of Intellectual Property Rights, together with trade in goods and trade in services, constitute one of the main contents binding all contracting parties. According to the requirements of the agreement, we must improve relevant intellectual property laws. After my country's patent law was revised in 1992, it has basically complied with the requirements of the agreement in terms of scope and level of protection.
Our rights and obligations are that when our country has a dispute over intellectual property rights with other contracting parties, the unified dispute settlement mechanism of the WTO can be applied. On the one hand, this dispute settlement mechanism helps to reduce or to a certain extent curb the unscrupulous unilateral retaliation frequently used by a handful of developed countries in the past, allowing us to resolve intellectual property disputes that may arise with developed countries. Disputes are resolved through multilateral negotiations within the framework of the agreement; on the other hand, it also puts forward higher requirements for my country's intellectual property protection. If we fail to provide effective protection for the legitimate rights of intellectual property rights holders of relevant contracting parties, we may be terminated from concessions and other preferential treatment, or suffer cross-retaliation and cross-sector retaliation. Strengthening the protection of intellectual property rights, especially effectively and forcefully cracking down on and sanctioning counterfeiting and piracy, has become an obligation that our country must fulfill after joining the WTO. This is of course also an important step for our country to establish and improve the socialist market economic system. Necessary requirement.
The major task we face is to rapidly improve the ability and level of our country's enterprises and institutions to master and use intellectual property rights to adapt to the requirements of the international intellectual property protection situation after joining the WTO. After joining the World Trade Organization, we must fully fulfill all our obligations. Especially under the circumstances of reducing tariffs and opening up the domestic market in accordance with WTO requirements, if our enterprises want to survive and develop, they must make progress in technological progress and technological advancement. Work hard on innovation. Technological innovation and progress, under the conditions of market economy, must rely more on and use the intellectual property system to encourage and protect. If our companies can better grasp and use intellectual property rights to participate in market competition, they can win more initiative. However, the current level of intellectual property protection in my country, especially the level of patent protection, lags far behind that of developed countries. Patents are still blank in a large number of enterprises and institutions. The invention patent applications filed by tens of thousands of large-scale enterprises in my country in one year cannot keep up with the applications filed by a company in Japan and the United States, and the number of patent applications filed abroad is even miniscule. According to statistics, our country has only applied for more than 2,000 patents abroad in the past ten years, while Japanese companies such as Sony and Hitachi have applied for four to five thousand patents abroad a year. It is conceivable that the gap is huge.
The General Agreement on Tariffs and Trade, the predecessor of the WTO, is the only multilateral document governing trade so far. It is known as the "rules of the road" and has become the basis for resolving international trade disputes. The General Agreement on Tariffs and Trade came into effect in January 1948, and the Uruguay Round negotiations that began in the 1980s put intellectual property issues on the agenda. On September 15, 1986, a ministerial meeting of the parties to the General Agreement was held in Punta del Este, Uruguay. 108 countries and regions participated in the negotiations. At the meeting, a fierce debate began on whether to include intellectual property issues in the Uruguay Round negotiations. controversy. It was not until the day before the closing of the conference that, on the basis of a package of compromises, all parties reluctantly agreed to include intellectual property negotiations in the ministerial conference declaration and include them in the Uruguay Round negotiations. The Uruguay Round of trade-related intellectual property rights negotiations lasted more than five years, and finally on December 18, 1991, a preliminary agreement was reached on the Agreement on Trade-Related Aspects of Intellectual Property Rights (Including Trade in Counterfeit Goods) (Draft). This agreement*** has 7 parts, including general provisions and basic principles, regarding the validity, scope and use standards of intellectual property rights, implementation of intellectual property rights, acquisition, maintenance and related procedures of intellectual property rights, prevention and settlement of disputes, and transitional stage Arrangements, organizational structure, etc. *** 72 items. The content of this agreement involves various fields of intellectual property. It not only exceeds the provisions of international treaties on the level of intellectual property protection at that time in many aspects, but also introduces the basic principles and some specific provisions of the General Agreement on Tariffs and Trade on tangible goods trade into the field of intellectual property. Enforcement measures and dispute settlement mechanisms have been strengthened. At the same time, it also stipulates in detail the implementation procedures for legal protection of intellectual property rights, including administrative, civil, and criminal procedures. It also stipulates that in the future, the domestic laws of each contracting party should move closer to the agreement. If any contracting party fails to provide effective protection for foreign intellectual property rights in accordance with the agreement, the injured party may follow the cross-retaliation rules in the GATT dispute settlement procedure. Cross-retaliation against the infringing party.
As an intangible property right, intellectual property rights are a right that intellectual workers enjoy in accordance with the law on their achievements. In today's international economy and trade, the areas involved in intellectual property protection are gradually broadening and their importance is gradually increasing. In future international trade competition, intellectual property rights will be the focus of competition.
First, the impact on national culture. Foreign cultural products spread through new communication carriers such as the Internet, which have some impact on Chinese culture. How to maintain the dominant position of mainstream culture and carry forward the excellent cultural traditions of the Chinese nation in an open environment and in the trend of diversity? We still have to go through a test in meeting the cultural needs of the public.
The second is intellectual property protection. This is not only an issue affecting international relations, but also a hot spot of our concern. With the advancement of cultural innovation and the goal of building an innovative country, our country does need to vigorously protect intellectual property rights and protect our national innovation ability. If infringement of intellectual property rights is allowed to continue to interfere with the publishing market, it will not only bring chaos to the market order, but also unfair competition, bad culture, and harm to the nation's innovation capabilities.
Of course, China’s intellectual property protection system has only been established for a short period of time, and it will take some time to consolidate and improve it. It is unreasonable for some Western countries to be too demanding on China in this regard. Our determination to crack down on infringement and piracy is unwavering, and our efforts are very strong. The international community has seen it. No country in the world has put so much effort into "fighting against pornography and illegal activities" to protect copyrights like China. Even the Americans appreciate it very much. our attitude. However, it will take time and process to completely resolve these problems, and it will require more understanding and support from the international community. We should not use this thing to put pressure on China at every turn and become an excuse to affect our foreign trade and cultural exchanges. Doing so will not be beneficial to China or foreign countries. I believe we can solve these two problems.