IV Copyright Protection

China's legal system for copyright protection was gradually established in the 1990s, with the implementation of the "Copyright Law" as a hallmark in this process. In recent years, China has made revisions to the "Copyright Law." It has also promulgated a number of regulations with legal effect, such as "Regulations on the Protection of Computer Software," "Regulations for the Implementation of the Copyright Law," "Procedures for the Implementation of Administrative Sanctions Concerning Copyright" and "Regulations on the Collective Management of Copyright." The promulgation and implementation of these legal documents have laid a solid legal foundation for copyright protection.

At present, China has formed a three-level copyright administrative management system: The State Copyright Bureau, copyright bureaux at the provincial level and the prefectural (city) level. Governments of various provinces, autonomous regions and municipalities directly under central government have constantly consolidated their copyright administrative management departments and made improvements to the system of copyright administrative management and law enforcement.

In recent years, China's copyright administrative management departments at all levels have strengthened their administrative enforcement of the copyright law. They have increased co-operation with other government departments, such as the departments of public security, industry and commerce, customs, press and publications, and cultural departments. As a result, a mechanism of law enforcement, whereby different departments are co-ordinated in combating copyright infringement and piracy has gradually taken shape. The copyright administrative management departments have always maintained the pressure on copyright infringement and piracy. They have launched several campaigns to crack down on pirated discs, textbooks, reference books, software, illegal duplication and selling of audio-video products, selling of smuggled audio-video products and Internet infringement practices. Positive achievements have been made. According to incomplete statistics, from 1995 to 2004, copyright administrative management departments at all levels confiscated 350 million pirated copies, accepted 51,368 cases of infringement and resolved 49,983 of them. In 2004, they accepted 9,691 cases of infringement, resolved 9,497 of them and imposed administrative sanctions on the infringers in 7,986 cases. These included the investigation and punishment of two Chinese enterprises that had infringed upon the copyright of the Microsoft Corporation of the United States and other major cases.

While establishing and improving its copyright legal system and strengthening its copyright administrative management, China also attaches great importance to the establishment of a copyright public service system. At present, China has established a copyright public management and service system consisting of copyright collective management organs, copyright agencies, copyright protection associations, professional associations and organizations of copyright holders. In 1988, the Copyright Agency of China was established. In 1990, the Copyright Research Society of China was established and its name was changed to the Copyright Society of China in 2002. In 1993 the China Copyright Society of Works of Music was established. And in 1998, the Copyright Protection Centre of China was established. At present, writers' associations, such as China Federation of Literary and Art Circles, China Writers' Association and China Film Association as well as professional associations of book publishers, producers of audio-video products and software developers have established their own copyright protection organizations. Copyright societies have been established in more than 20 provinces, autonomous regions and municipalities directly under the central government as well as some major cities. Preparatory work is under way to establish China's collective copyright management organizations of books and audio-video products.

V. Intellectual Property Rights Protection for Audio and Video Products

Persistent piracy of audio and video products in spite of repeated bans is a problem of international significance. The Chinese Government attaches great importance to IPR protection for audio and video products, treats crackdown on piracy of audio and video products as an important task in IPR protection and has made continuous efforts to carry it out. In recent years, China has gradually established a whole set of systems for the management of audio and video products, which mainly includes an IPR protection system, audio and video business licence system, exclusive publication right system, duplication authorization system, SID code system, censorship system for imported audio and video products, the system of rewards for informants, the system of uniform anti-counterfeit labels for audio and video products, the system of registration and filing of audio and video products in storehouses and the system of inspection of, reporting on and keeping the public informed of illegal audio and video products.

In August 1994, the government promulgated the "Regulations on the Administration of Audio and Video Products" and amended it in December 2001. In accordance with the relevant laws and regulations, including the "General Principles of the Civil Law," "Copyright Law," "Criminal Law" and "Regulations on the Administration of Audio and Video Products," the Press and Publication General Administration, Ministry of Culture, General Administration of Customs and Ministry of Commerce respectively and jointly issued a series of administrative regulations, such as the "Regulations on the Administration of Publication of Audio and Video Products," "Measures for the Administration of Wholesale, Retail and Renting of Audio and Video Products," "Measures for the Administration of Import of Audio and Video Products" and "Measures for the Administration of China-Foreign Cooperative Distribution Enterprises of Audio-video Products," providing both legal and administrative groundwork for the business and protection of audio and video products.

In light of the rapidly developing audio-video market, the government has, step by step, readjusted its administration of the audio-video industry. The "Regulations on the Administration of Audio and Video Products" provides for the division of functions in the administration of the industry. In 1998, the State Council further sorted out the administrative system on the principle of "streamlining, efficiency and unification," clearly assigning the administration of audio-video products' production, publication and duplication to the Press and Publication General Administration; and that of wholesale, retail, renting, showing and import of audio-video products to the Ministry of Culture. Following the suit of the central government, the local governments have also readjusted their administrative systems in this regard. So far, China has initially established market management networks at the central, provincial, prefectural and county levels. In most areas, investigation squads have been set up to keep watch on cultural markets, including the market for audio and video products. They sincerely perform the duties of supervision and administration of the audio-video market.

Since the 1990s, the publication market supervision authorities and cultural administration authorities have co-operated closely with other relevant departments in making sustained efforts to enforce order in the audio-video market. As a result, the audio-video market has been gradually improved, the number of pirated audio-video products clearly reduced and the circulation of authorized copies greatly increased. According to incomplete statistics, from 1994 to 2004, nine CD duplicating enterprises had their duplication business licences revoked and 200 illegal CD production lines were discovered. In August 2004, under the unified arrangement of the special IPR protection campaign, the Ministry of Culture drew up an overall plan for an intensive crackdown on infringements in the audio-video industry, in accordance with which it guided and co-ordinated with key cities and areas in strengthening law enforcement and discovering and closing down a large number of underground storehouses and distribution networks of illegal audio-video products. In 2004, cultural market inspecting and management authorities throughout the country inspected audio-video businesses on 555,368 occasions, confiscating 154 million illegal copies of audio-video works. On January 12, 2005, the Ministry of Culture and the Office of the National Working Group on Intellectual Property Rights Protection launched a nationwide campaign to destroy illegal audio-video products, during which over 63.35 million copies of such products were destroyed.

VI. Protection of New Varieties of Agricultural and Forestry Plants

Proceeding from the actual conditions of China and on the basis of earnestly summing up and borrowing from international experience, the Chinese Government has set up and carried out a series of systems and measures for the protection of new varieties of plants, thus fully guaranteeing the legitimate rights and interests of the investment bodies involved. On October 1, 1997, the government began implementing the "Regulations on the Protection of New Varieties of Plants," greatly expanding the scope of IPR protection in China.

To supplement the implementation of the "Regulations on the Protection of New Varieties of Plants," the Chinese Government has in succession promulgated and implemented such regulations as the "Rules for the Implementation of the Regulations on the Protection of New Varieties of Plants (Agriculture)," "Rules for the Implementation of the Regulations on the Protection of New Varieties of Plants (Forestry)," "Regulations on Agency of New Agricultural Plant Variety Rights," "Regulations on Handling Cases of Infringement of New Agricultural Plant Variety Rights," and "Regulations of the Ministry of Agriculture on the Work of the Re-examination Board for New Varieties of Plants," providing legal guarantees for the rapid development of new varieties of plants.

In recent years, the government has set up the Office of Protection of New Varieties of Plants and the Re-examination Board for New Varieties of Plants at the Ministry of Agriculture and State Forestry Administration, respectively, forming an institutional protection system combining examination and approval agencies, law-enforcement organizations, intermediary service organizations and other rights protection organizations. Meanwhile, a technological support system has been established, which includes the Centre for the Preservation of Breeding Materials of New Varieties of Agricultural Plants, Centre for the Testing of New Varieties of Plants and its 14 sub-centres, and the Centre for the Testing of New Varieties of Forest Plants and its five sub-centres and two molecule determination laboratories. To ensure scientific and authoritative examination of plant variety rights and drawing on the international standards for testing new varieties of plants, the relevant authorities have, based on the actual conditions of China, formulated guides for testing 57 new varieties of plants, including corn, rice, poplar and peony, of which 18 have been promulgated and implemented as national or industrial standards.

The government has issued and implemented five lists of protected new varieties of agricultural plants and four lists of protected new varieties of forest plants, which cover 119 genera and species, including 41 agricultural plants and 78 forest plants. The numbers are far higher than the minimum numbers required by the "International Convention for the Protection of New Varieties of Plants."

By the end of 2004, the Ministry of Agriculture had handled 2,046 applications for plant variety rights. The number of applications handled in 1999 was 115 and by 2004 it had reached 735, indicating an average annual increase of 44.9 per cent. Among all the applications, there were 1,875 for field crops, 87 for vegetables, 52 for fruit trees and 32 for decorative plants. A total of 2,174 applications were from scientific, technological and educational institutions and 772 from enterprises and individuals, which included 32 from foreign enterprises and individuals. After examination, 503 applications were granted the variety rights.

By the end of 2004, the State Forestry Administration had handled 305 applications for variety rights, including 64 from France, Germany, the Netherlands, Belgium and the United States and granted 72 new plant variety rights. These plants included the Chinese rose, peony, Christmas flower, azalea, poplar, Chinese chestnut, apricot, eucalyptus and walnut. Of them, 253 applications were for decorative arbors, accounting for 82.95 per cent of the total. The applications were mainly from Chinese research institutions, foreign individuals engaged in breeding and Chinese universities, which accounted for 50.2 per cent, 14.4 per cent and 11.1 per cent respectively of the total.

Since 2001, the government began experimental law enforcement on the protection of new varieties of plants in 12 selected provinces and municipalities and then gradually spread the work across the country. By the end of 2004, 17 provinces, autonomous regions and municipalities directly under the central government had handled 863 cases of infringement of new agricultural plant variety rights and faking new agricultural plant varieties.

VII. Customs Protection of Intellectual Property Rights

In September 1994, China began to carry out border protection of IPR. At present, Chinese customs houses have established a complete system of IPR-related law enforcement measures, which includes such links as examination of customs declaration bills and certificates, inspection of imported and exported goods, detention and investigation of right-infringing goods, punishment of illegal importers and exporters and disposal of right-infringing goods.

In October 1995, China promulgated and implemented its first ever "Regulations on the Protection of Intellectual Property Rights by the Customs," and began to establish its system of IPR customs protection in accordance with the WTO rules. In 2000, the NPC Standing Committee amended the "Customs Law of the People's Republic of China," defining the functions of IPR customs protection from a legal perspective. In December 2003, the Chinese Government promulgated the revised "Regulations on the Protection of Intellectual Property Rights by the Customs," which strengthened the customs houses' power in investigating and dealing with right-infringing goods, reduced the burden on the proprietors of intellectual properties in seeking customs protection and defined the functions of the customs houses, the judicial and other administrative organizations. Later, the General Administration of Customs formulated the "Measures for Implementation" of the revised regulations, which clearly provided for such issues mentioned in the revised regulations as keeping business secrets, filing of international registered trademarks, collecting and returning of security deposits and the payment of relevant fees by the proprietors. In September 2004, the Chinese Government promulgated the "Regulations on Implementation of Administrative Penalties," which clearly provided administrative penalties for infringements on IPR in importation and exportation. The "Interpretations on Several Issues in Practical Application of Laws in Criminal Cases of Infringement on Intellectual Property Rights" was promulgated by the Supreme People's Court and the Supreme People's Procuratorate in December 2004, which further clearly stipulated the legal responsibilities of agencies importing or exporting right-infringing goods. By then, a legal system for IPR customs protection geared to the needs of economic and social development had been basically established.

China has established and improved its law enforcement mechanism for IPR customs protection. Firstly, it has established a central filing system for IPR customs protection. As long as the IPR proprietors have filed their IPR with the General Administration of Customs, the port customs have the power to detain imported or exported goods that infringe the filed IPR. By the end of 2004, the General Administration of Customs had confirmed 6,257 files of IPR for customs protection. Secondly, a model combining active protection with passive protection is implemented in law enforcement. Besides detaining import or export goods suspected of IPR infringement, customs can also investigate and deal with illegal import and export of right-infringing goods within the scope of their powers and duties. Thirdly, law enforcement organizations have been founded and improved and the building of IPR law enforcement teams enhanced. By the end of 2004, all customs houses directly under the General Administration of Customs had set up relevant departments for the management of IPR protection and 11 of them had set up special organizations for IPR protection. Some customs houses with adequate conditions had stationed liaison officers on site. A system of IPR law enforcement has taken shape on three levels, namely, the General Administration of Customs, customs houses directly under it, and grass-roots customs posts.

To curb right infringements and piracy in import and export links, the port customs all over China focus law enforcement on import and export of fake and pirated products. From 1996 to 2004, the Chinese customs ferreted out 4,361 cases of right infringement in import and export, which involved 630 million yuan (US$76 million). Since 2000, the number of cases discovered by the customs has increased by 30 per cent annually. Customs have effectively cracked down on the illegal import and export of right-infringing goods, preserving order at ports and safeguarding the interests of proprietors.

In offering IPR border protection, Chinese customs attach great importance to liaison and co-operation with proprietors and relevant organizations and associations of proprietors and have enhanced their communication and co-ordination with IPR authorities and their co-operation and exchanges with foreign border law enforcement authorities. So far, Chinese customs have signed memorandums of co-operation on IPR protection with such proprietors' organizations as the Motion Picture Association of America and have co-operated with them successfully. Chinese customs have co-operated on many occasions in law enforcement with IPR-related administrative and criminal law enforcement authorities, such as IPR management authorities and public security organs, effectively cracking down on illegal and criminal IPR infringement. Chinese customs have signed agreements of mutual assistance in administrative law enforcement with the customs of the European Union countries, the United States and other countries, which contain the provisions on IPR customs protection. Chinese customs have also actively conducted information exchange and law enforcement co-operation regarding IPR protection with the customs services of other countries.

VIII. Public Security Organs Act on Criminal Infringement of Intellectual Property Rights

In recent years, the Chinese public security organs have adopted a series of measures to crack down on all kinds of criminal IPR infringement, continuously enhanced their law enforcement standards and abilities, and safeguarded the sound development of the socialist market economy.

In 1998, to step up the fight against criminal IPR infringement, and in accordance with the provisions of the "Criminal Procedure Law," the Ministry of Public Security established a specialized department to organize, guide and co-ordinate the fight against criminal IPR infringement, and supervise the handling of serious cases. Local public security organs at all levels, from the top downward, have set up specialized investigation teams for receiving, filing and investigating such criminal cases. From 2000 to 2004, Chinese public security organs cracked 5,305 cases of criminal infringement on IPR, which involved nearly 2.2 billion yuan (US$266 million), and arrested 7,100 suspects. Among them, there were 4,269 cases concerning infringement on the exclusive rights of trademark ownership, which involved 1.18 billion yuan (US$143 million), and 5,564 suspects were arrested. A number of suspects were found guilty of the production and sale of fake or inferior products and illegal business operation, and sentenced accordingly.

Since November 2004, the Ministry of Public Security has launched a one-year national campaign against criminal infringement on the exclusive rights of trademark ownership, cracking some cases of criminal IPR infringement that were of widespread and baneful repercussions and involved large amounts of money. These cases included: Production of fake Gillette razor blades cracked by the public security organs of Zhejiang Province, production of fake Adidas and Nike sports shoes cracked by the public security organs of Fujian Province, production of fake Cisco (USA) electronic products cracked by the public security organs of Guangdong Province, and production of fake brand-name liquors, including Wuliangye, cracked by the public security organs of Sichuan Province.

As more and more foreign companies are investing, selling their products and building enterprises and R&D centres in China, the Chinese public security organs have gradually established a system of regular communication and co-ordination with IPR proprietors, earnestly listening to their opinions and suggestions. Since December 2002, together with relevant associations of enterprises with foreign investment, the Ministry of Public Security has held three forums on the "Protection of Intellectual Property Rights" and published forum declarations, improving communication and co-ordination in this field.

In view of increasing transnational and cross-border criminal cases of IPR infringement, the Chinese public security organs attach great importance to international law enforcement co-operation in the fight against IPR infringement, and have conducted co-operation with the law enforcement organizations of various countries in assisting in investigation and collection of evidence, exchange of information and judicial assistance. In July 2004, working together with the Immigration and Customs Enforcement of the Department of Homeland Security of the United States, Chinese public security organs successfully cracked a serious case of suspected sale of pirated DVDs in Shanghai, arrested seven suspects headed by an American citizen, raided three places where pirated DVDs were hidden, and confiscated over 210,000 pirated DVDs.

IX. Judicial Protection of Intellectual Property Rights

In recent years, the Chinese procuratorial organs have conscientiously exercised their duty of examination of arrests and prosecutions in cases of criminal IPR infringement, as well as legal supervision over relevant criminal lawsuits in accordance with law and handled a large number of cases of suspected criminal IPR infringement. From 2000 to 2004, the procuratorial organs at all levels approved the arrests of 2,533 people suspected of criminal IPR infringement, and instituted prosecutions against 2,566 suspects. In 2004, the arrests of 602 people suspected of criminal IPR infringement were approved, and prosecutions against 638 suspects were instituted. In the same year, procuratorial organs around China launched a special drive to supervise cases involving production of fake products and IPR infringement. During which they urged relevant administrative law enforcement organs to transfer suspected criminal cases to public security organs according to law, supervised the filing of cases that should have been filed by public security organs according to law, made sure that suspected criminal cases entered judicial proceedings in time, and investigated some criminal cases of conniving and covering up production and sale of fake products and of IPR infringement involving government functionaries abusing their powers.

For many years, the Chinese people's courts at all levels have continuously strengthened work in IPR-related civil and criminal trials under the principle of "justice and efficiency." Through handling a large number of IPR-related cases, they have protected the legitimate rights and interests of Chinese and foreign IPR proprietors equally, punished acts of IPR infringement and severely cracked down on criminal IPR infringements, making unremitting efforts to realize social fairness and justice.

Since the handling of the first case of a technological contract dispute in 1981, Chinese courts have continuously expanded the range of IPR-related trials to include cases concerning copyright, trademarks, patents, unfair competition, computer software, new varieties of plants and integrated circuit layout designs, thus establishing the status of court trials in the handling of IPR-related cases. From 1998 to 2004, courts throughout the country concluded 38,228 IPR-related civil cases of first instance and 2,057 criminal cases of first instance involving IPR infringement in accordance with Section Seven, Chapter III of the "Specific Provisions" of the "Criminal Law," handing down sentences to 2,375 criminals. Among these cases, in 2004, 8,332 civil IPR-related cases of first instance and 385 criminal cases of first instance involving IPR infringement in accordance with Section Seven, Chapter III of the "Specific Provisions" of the "Criminal Law" were concluded, and 528 criminals were punished. In the same year, the Chinese courts also concluded 932 criminal cases of production and sale of fake or inferior goods, punishing 1,453 criminals involved, and concluded 1,434 criminal cases of illegal business operation, punishing 2,103 criminals. A considerable proportion of the above two types of cases also involved criminal IPR infringement.

To correctly apply laws and make law enforcement standards coherent, and based on its experience in handling IPR-related cases, the Supreme People's Court of China has formulated a series of relevant judicial interpretations in accordance with the law, and improved a series of important IPR-related law application principles, which have played an important role in the timely settlement of new problems emerging from the handling of IPR-related cases and in guiding the correct handling of IPR-related cases by the people's courts at all levels. For example, the "Several Provisions on Law Application for Stopping Patent Infringement before Litigation" promulgated by the Supreme People's Court in June 2001 provided judicial measures for stopping right infringements and effectively preventing more losses on the part of proprietors. The "Interpretation of Several Issues Regarding Specific Law Application in Handling Cases of Illegal Publications" promulgated by the Supreme People's Court in December 1998 defined the standards of condemnation and penalty for criminal offences of copyright infringement. The "Interpretation of Several Issues Regarding Specific Law Application in Handling Criminal Cases of Intellectual Property Rights Infringement" jointly promulgated by the Supreme People's Court and the Supreme People's Procuratorate in December 2004 properly reduced the culpability standards for the crimes of IPR infringement strictly in accordance with the provisions of the "Criminal Law" and in light of China's actual conditions and judicial reality, increased the applicability of the relevant provisions of the "Criminal Law," and provided a concrete applicable legal basis for handling criminal cases of IPR infringement, and was thus of great significance for effectively cracking down on crimes of IPR infringement.

The Chinese courts put special emphasis on the professional training of IPR judges. After many years of judicial practice and systematic training, a contingent has been formed of highly competent IPR judges who speak foreign languages, and have an intimate knowledge of the law, rich judicial experience and expertise in science and technology. Relatively complete IPR-related judicial departments have been gradually established, providing a strong personnel and organizational guarantee for effective IPR-related judicial work.

The Chinese courts have continuously enhanced international exchanges and co-operation in the field of IPR-related judicature, learning and borrowing from the useful experience and successful practices of foreign countries. The Supreme People's Court actively conducts friendly co-operation with the World Intellectual Property Organization and European Union, and has hosted several seminars and training courses on IPR, the results of which have been encouraging. These seminars and training courses have effectively promoted the enhancement of China's IPR judicial protection, and continuously pushed the level of its IPR-related judicial work to a new high.

Conclusion

Practice over the past two decades and more has shown that the Chinese Government has made concerted efforts to protect IPR. China has achieved a noticeably great improvement in IPR protection, which took developed countries several decades and even over a century to attain. However, the Chinese Government is clearly aware that, in a large developing country with a population of 1.3 billion, relatively backward economy and low level of science and technology, a complete IPR protection system cannot be established overnight. China has a long way to go in this regard, and faces a tough task when it comes to IPR protection.

At present, there are still IPR infringements in certain areas and fields in China, some of which are very serious. The awareness of the importance of IPR in Chinese society as a whole needs to be further enhanced. Meanwhile, China's IPR protection work is facing new challenges in the course of economic globalization and the rapid development of science and technology worldwide. In accordance with the requirements of the concept of scientific development, the Chinese Government will adopt more effective policies and measures in the process of building a xiaokang society one that is comprehensively better-off and developing a harmonious society, while at the same time exerting efforts to raise its IPR protection work to a new level.

For many years China has received active support and assistance from the international community in the establishment of its IPR protection system. In the future, the Chinese Government will continue to earnestly execute its international obligations in this regard, enhance its co-operation with various countries and international organizations with a more active, open attitude, and join together with them in promoting the establishment of a sound system and environment favourable for IPR protection.