Accession to the WTO: The Development of Intellectual Property Protection in China
Accession to the WTO: The Development of Intellectual Property Protection in China
王璟
【摘要】Introduction
Intellectual property rights are very important to the economic development and the progress of modern society. China has been aware of this and made its great efforts to enter World Trade Organization (WTO).
The comment attempts to demonstrate that, while certain aspects of Chinese intellectual property protection remain problematic, China’’’’’’’’s intellectual property laws have been amended and modernized essentially to meet the requirements outlined in the Trade-Related Aspects of Intellectual Property [1](TRIPS Agreement), which was adopted by the WTO’’’’’’’’s predecessor, the General Agreement on Tariffs and Trade [2](GATT) during the Uruguay Round tariff negotiation[3].
China has established a basic intellectual property rights legal system. The current system includes laws and regulations on trademark, patent, copyright, trade secrets, and unfair competition - most of which are in conformity with the TRIPS Agreement.
China’s protection of intellectual property rights has faltered in the past, not so much from lack of substantive law but from lack of enforcement. China’’’’’’’’s lack of effective intellectual property rights protection has frustrated its efforts to rejoin the GATT and accede to the WTO. The main reason behind the fact is the United State’s practice of powerpolitics imposing on China. A series of trade tension and trade policies issued by U.S. had been caused a number of bilateral trade agreements between two nations. China, to some extent, had to comply with United States’ requirements to develop their business partnership. Therefore, China has not only established a basic legal system to protect intellectual property rights but has also made substantial efforts to improve judicial enforcement of its intellectual property laws. Two enforcement mechanisms: administrative and judicial mechanisms[4] has been used to protect intellectual property effectively.
This paper attempts to provide the necessary background about China accession to the WTO, and to examine China’’’’’’’’s intellectual property laws in light of the WTO’’’’’’’’s TRIPS Agreement.
Part I examines the development of China’’’’’’’’s domestic intellectual property legislation covering trademarks, patents and copyrights pushed by the United States pressure; the trade agreements between U.S. and China affecting legislation; and the Chinese and U.S. attempts to combat piracy and the effect of these efforts on international trade.
Part II further analyses the background of China’s preparation to enter the WTO and introduces briefly the WTO and the characters of TRIPS Agreement.
Part III will then be examined the recent amendment of three traditional intellectual property laws and its compliance with TRIPS Agreement.
Finally, China’’’’’’’’s conformance with its key obstacle to accession, the legal enforcement of intellectual property laws under Part III of TRIPS, will be examined. Conclusion will be that, China still need to take time to complete its transition and become fully adapted to the international business norms.
【关键词】WTO
【全文】
United State’s pressure on intellectual property in China
Since the 1980s, China had made its great efforts to improve intellectual property protection; the reason was the pressure of economic and police from outside rather than the requirement of intellectual property itself in China.[5] For years, one of the principal sources of trade tension between the United States and China has been the inadequate protection of intellectual property rights in the Chinese legal system.[6]
Pressure from affected United States businesses for action by the United States government has been mounting and has led to two extended sets of negotiations between the United States and China[7]. Each set was initiated by an investigation under the Special § 301[8] provision of United States international trade legislation, which dated from 1988. Section 301[9] reaches beyond the GATT[10], as well as the WTO, to give the President of the United States unilateral power to penalize countries that threaten American economic interests.
Since 1982, China has issued and implemented a series of laws and regulations, such as the Trademark Law, Patent Law, Copyright Law, Technology Contract Law, Anti-Unfair Competition Law, and Regulations on Protection for Computer Software. Although China does not have a long tradition of intellectual property law, it has established a relatively complete legal framework for the protection of intellectual property.
During the last decade of 20th century, the United States repeatedly threatened China with a series of economic sanctions, trade wars, non-renewal of Most Favored Nation status, and opposition to entry into the WTO. Such threats eventually led to compromises by the Chinese government and the signing of intellectual property agreements in 1992, 1995, and 1996.[11]
Since 1991, sets of negotiations between United States and China began and led to a series of memorandums of understanding between the two countries. The first is in January 1992 (MOU92), in which China agreed to amend its legislation to improve substantially its standards of intellectual property protection, particularly in the area of copyright. At the same time, China joined the Berne Convention for the Protection of Literary and Artistic Works dating from 1886, which the United States itself had joined only in 1989. Accordingly, any foreigner’s work must be protected by Chinese Copyright Law if the foreign country is member of the Berne Convention[12]. Some scholar points out that[13] “it is a big challenge for China to control Western cultural influence while protecting foreigner’s copyright”.
In the practice of the Chinese courts, a lot of cases have been decided on the principles of the TRIPS Agreement. In 1995, the Beijing Intermediate Court, in deciding the case of Walt Disney Production v Beijing Publisher and Co., which was the first copyright infringement case involving a U.S. party, directly relied on the Sino-US IPR Agreement, which also constitutes part of the international treaties and which constitutes part of China’s national law[14]. However, United States criticized China’s actual enforcement for Intellectual Property was still inadequate or even non-existent. Complaints regarding to above case about Walt Disney expenditure of more than $15,000 to pursue infringers of its Mickey Mouse character, which resulted in only a single derisory fine of $91. Another famous case is that Microsoft’s infringement suit for $30 million in damages which led to the defendant being fined $260. As a result, the second negotiations based on Special § 301[15]was initiated in 1994 which led to the second memorandum of understanding between the two countries in 1995 (MOU95)[16]. Under the agreement, the Chinese have committed themselves to a detailed set of measures to ensure that the rights of United States right-owners are sufficiently.
