First, the defects of China's intellectual property legislation
The Agreement on Intellectual Property Rights mainly stipulates the protection of copyright and related rights (including computer programs and data compilation), trademarks, geographical indications, industrial designs, patents, layout-designs of integrated circuits and undisclosed information. Coordinate with the provisions of international conventions on intellectual property protection such as Paris Convention, Berne Convention, Rome Convention and Washington Convention. The agreement mainly stipulates the minimum protection level of all kinds of intellectual property rights and the requirements for intellectual property protection measures and intensity.
Compared with the requirements of the Agreement on Intellectual Property Rights, the gap in China's intellectual property legislation is mainly manifested in the following two aspects: (1) The object of protection is not comprehensive. The protection objects of relevant legislation in China are copyright and related rights, trademarks, patents (including inventions, utility models and designs), computer programs and data compilation, and undisclosed information (i.e. trade secrets), but layout design and geographical indications of integrated circuits are not protected. (2) The relief 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 the judicial authorities to take interim measures. (3) The protection can't meet the requirements. For example, the civil compensation provided by the copyright infringer to the obligee is often insufficient to make up for the loss of the obligee.
Second, to meet the needs of WTO, improve intellectual property legislation.
In order to meet the needs of China's accession to the WTO, China has newly formulated the Regulations on the Protection of the Layout Design of Semiconductor Integrated Circuits, which protects the layout design of semiconductor integrated circuits and revised relevant laws and regulations. According to the relevant provisions of the Agreement on Intellectual Property Rights, the main amendments are: (1) Copyright Law: the rental right of computer software and film works is protected as an independent property right, and the compilation works such as databases are protected, redefining the principle and situation of "fair use". In order to prevent any delay from causing irreparable damage or loss of evidence to the obligee, the judicial organ can take temporary measures, which increases the civil liability of the infringer.
(2) Regulations on the Protection of Computer Software: The rights of software copyright owners are refined and the contents of various rights are clarified. The protection period of software copyright is changed to 50 years for natural persons and 50 years for legal persons or other organizations after their death, which narrows the scope of "fair use" of works and increases the crackdown on the production and sale of pirated software.
(3) Trademark Law: The constituent elements of a trademark are changed from the original words, graphics and their combinations to include words, graphics, letters, numbers, three-dimensional signs, color combinations and their combinations; Among the prohibited elements, official marks and inspection marks have been added; Clearly stipulate the protection of well-known trademarks; It is stipulated that the parties may bring a lawsuit to the court against the reexamination decision of the Trademark Review and Adjudication Board; It increases the compensation liability of trademark infringers, strengthens the judicial protection of trademarks, and stipulates that judicial authorities can take temporary measures to prevent any delay from causing irreparable damage or loss of evidence to obligees; Strengthen the protection of geographical indications, certification trademarks and collective trademarks held by groups, associations or other organizations.
(4) Patent Law: the right of product patentees to prohibit others from promising to sell their patented products has been added; It increases the compensation liability of patent infringers, strengthens the judicial protection of patents, and stipulates that judicial authorities can take temporary measures to prevent any delay from causing irreparable damage or loss of evidence to obligees; It is stipulated that the parties may bring a lawsuit to the court against the reexamination decision made by the Patent Review Board on the patent for invention, utility model and design.
In addition, the implementing regulations or detailed rules of the Copyright Law, the Trademark Law and the Patent Law will be revised accordingly; The provisions of the Regulations on Customs Protection of Intellectual Property Rights are consistent with the provisions of Section 4 of the Intellectual Property Agreement on border measures to protect intellectual property rights, and the Regulations on the Protection of New Plant Varieties are consistent with the requirements of Article 27 of the Intellectual Property Agreement on the protection of new plant varieties. These two administrative regulations do not need to be amended this time.
Iii. Clean up relevant local regulations to meet the needs of China's entry into WTO
Intellectual property legislation should be formulated by the state, because intellectual property protection is strictly regional and generally covers all the territory of a country. Therefore, the substantive standards of intellectual property protection, such as the protection period, the standards of patent application maintenance fee and annual fee, should be uniformly stipulated by the state.
However, in the past, many places in China formulated the trademark entity protection system applicable to their respective jurisdictions, such as "famous trademarks" at the provincial level and "well-known trademarks" at the prefecture (city) level. They often stipulate that only those who have obtained local (city) well-known trademarks can apply for famous trademarks in this province; Only those who have obtained famous trademarks in this province can apply for national well-known trademarks. Moreover, only products of enterprises with local production bases can apply for local well-known trademarks and famous trademarks. This regulation restricts the right of enterprises to apply for national well-known trademarks, which is not conducive to China enterprises to obtain "well-known trademarks", and thus is not conducive to the future entry of China products into the international market and the automatic protection of other WTO members. In fact, these provisions set substantive standards for intellectual property rights, with administrative jurisdictions in various places as the scope of protection. Therefore, in this clean-up of local laws and regulations, the General Office of the Central Committee and the General Office of the State Council (hereinafter referred to as the "two offices") requested local governments to abolish such laws and regulations.
In order to facilitate patent application, some places have formulated some regulations on patent application procedures and related fees. In this clean-up of local laws and regulations, the "two offices" require local governments to amend or abolish the provisions that are in conflict with relevant state laws and regulations in accordance with the principle of legal unity, and treat the intellectual property rights holders of different members equally in accordance with the principle of most-favored-nation treatment and the principle of WTO national treatment, and treat the intellectual property rights holders of other members and their own countries equally.
In order to facilitate the settlement of intellectual property disputes and better protect intellectual property rights, some localities have formulated some administrative dispute settlement procedures and fees, for example, the procedures for patentees to apply to administrative organs to take measures against their patent infringement, the mediation procedures for intellectual property disputes and related fees. These regulations also require cleaning up according to the requirements of the principle of legal unity, the principle of most-favored-nation treatment and the principle of national treatment. If the amendment is amended, what should be abolished will be abolished.
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First, the impact of China's accession to the World Trade Organization on intellectual property protection in China.
1999165438+1October 15 The Chinese and American governments signed a bilateral agreement on China's accession to the World Trade Organization, which indicates that the pace of China's accession to the WTO is accelerating. It can be said that China has come to the door of the World Trade Organization after more than ten years of arduous and long journey.
After joining the WTO, China will fully fulfill its rights and obligations in the field of intellectual property, which will have a far-reaching impact on the development of intellectual property work in China. Within the jurisdiction of the World Trade Organization agreement, the agreement on trade-related intellectual property rights, together with trade in goods and services, constitutes one of the main contents binding all contracting parties. According to the requirements of the agreement, we must improve the relevant intellectual property laws. China's patent law has been revised in 1992, and the scope and level of protection have basically met the requirements of the agreement.
When there is an intellectual property dispute between China and other contracting parties, we have the right and obligation to apply the unified dispute settlement mechanism of the WTO. On the one hand, this dispute settlement mechanism helps to reduce or to some extent curb the unscrupulous unilateral retaliation used by a few developed countries in the past, so that when we may have an intellectual property dispute with developed countries, we can resolve the dispute through multilateral negotiations within the framework of the agreement; On the other hand, it also puts forward higher requirements for intellectual property protection in China. If we can't effectively protect the legitimate rights of the intellectual property rights holders, we may be terminated with preferential treatment, until we are retaliated by cross-disciplinary and cross-departmental retaliation. Strengthening the protection of intellectual property rights, especially effectively combating and punishing counterfeiting and piracy, has become an obligation that China must fulfill after its accession to the WTO, which is of course an inevitable requirement for China to establish and improve its socialist market economic system.
The main task we are facing is to quickly improve the ability and level of state-owned enterprises and institutions to master and use intellectual property rights to meet the requirements of the international intellectual property protection situation after China's accession to the WTO. After joining the World Trade Organization, we should fully fulfill our obligations, especially in the case of reducing tariffs and opening up the domestic market in accordance with the requirements of the WTO. If our enterprises want to survive and develop, they must work hard on technological progress and innovation. Technological innovation and progress, under the condition of market economy, must rely more on and use the intellectual property system to stimulate and protect. If our enterprises can better master and use intellectual property rights to participate in market competition, they can win more initiative. However, compared with developed countries, there is still a considerable gap in the level of intellectual property protection in China, especially the level of patent protection, and a large number of patents in enterprises and institutions are still blank. Tens of thousands of large enterprises in China can't catch up with a Japanese and American company in a year, and the number of patents applied abroad is even less. According to statistics, China has only applied for more than 2,000 patents abroad for more than ten years, while Japanese companies such as Sony and Hitachi have applied for 4,000 and 5,000 patents abroad a year, which is a big gap.
GATT, the predecessor of WTO, is the only multilateral document to manage trade so far, which is known as "traffic rules" and has become the basis for solving international trade disputes. GATT 1948 1 came into effect on 10, and the Uruguay Round negotiations, which began in the 1980s, put intellectual property issues on the agenda. 1986 15 in September, the ministerial meeting of the contracting parties of GATT was held in Punta del Este, Uruguay, and 108 countries and regions participated in the negotiations successively. At the meeting, there was a heated debate on whether to include intellectual property issues in the Uruguay Round negotiations. It was not until the day before the closing of the meeting that, on the basis of a package of compromises, all parties reluctantly agreed to include intellectual property negotiations in the declaration of the ministerial meeting and in the Uruguay Round negotiations. After more than five years of Uruguay Round negotiations on trade-related intellectual property rights, the Draft Agreement on Trade-related Intellectual Property Rights (including trade in counterfeit goods) was finally reached at199118. The agreement consists of seven parts, including general principles and basic principles, 72 articles on the effectiveness, scope and use standards of intellectual property rights, the implementation of intellectual property rights, the acquisition and maintenance of intellectual property rights and related procedures, the prevention and settlement of disputes, the arrangement of transition period, and the organization. The content of the agreement covers all fields of intellectual property rights, which not only exceeds the provisions of international treaties on intellectual property protection at that time in many aspects, but also introduces the basic principles and some specific provisions of GATT on trade in tangible goods into the field of intellectual property rights, and strengthens the implementation measures and dispute settlement mechanism. At the same time, it also specifies in detail the implementation procedures of legal protection of intellectual property rights, including administrative, civil and criminal procedures. It also stipulates that in the future, the domestic laws of all contracting parties should be close 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 cross-retaliate against the infringer according to the rules of cross-retaliation in GATT dispute settlement procedure.
Intellectual property, as an intangible property right, is the right that intellectual workers enjoy according to law. In today's international economy and trade, the fields involved in intellectual property protection are gradually broadened and the weight is gradually increased. In the future international trade competition, intellectual property rights will be the focus of competition.
The first is the influence on national culture. The spread of foreign cultural products through the Internet and other new media has had a certain impact on China culture. How to adhere to the dominant position of mainstream culture in an open environment and diversified trends and carry forward the excellent cultural traditions of the Chinese nation? We still need to be tested in meeting the cultural needs of the public.
The second is intellectual property protection. This is not only an issue that affects international relations, but also a hot spot of our concern. With the promotion of cultural innovation and the goal of building an innovative country, China really needs to vigorously protect intellectual property rights and protect our national innovation ability. If the infringement of intellectual property rights continues to interfere with the publishing market, it will not only bring chaos to the market order, but also bring unfair competition, bad culture and damage the country's innovation ability.
Of course, the intellectual property protection system in China has been established for a short time, and it will take some time to consolidate and improve. It is unreasonable for some western countries to ask too much of China in this respect. Our determination to crack down on infringement and piracy is unshakable, which is obvious to all the international community. No country in the world has made such great efforts to protect copyright as China, and even Americans appreciate our attitude. However, it takes time and process to solve these problems completely, and it needs more understanding and support from the international community. Don't use this thing to put pressure on China easily and become an excuse to affect our foreign trade and cultural exchanges. This is not good for China and foreign countries. I believe we can solve these two problems.