193. The representative of China, briefing the Council on China's implementation of the TRIPS Agreement and the relevant commitments since the last review, said that the Chinese Government had always attached much importance to the protection of intellectual property rights and would fulfil its international commitments in a serious and positive manner. Since the introduction of opening up and reform polices in the late 1970s, China had established an advanced legislation framework, an administrative network and enforcement mechanism, which were sophisticatedly structured and were consistent with international rules. Moreover, China had participated in and ratified major international treaties and conventions on IPR protection. This remarkable process, which had taken developed economies over 100 years, had been completed by China in around two decades. She said that the Chinese Government was fully aware that resolute and effective enforcement was the essential link for the legislation to exert its protective functions.
194. With respect to law enforcement, she said that China's IPR protection featured both administrative and judicial channels which operated in a complementary way simultaneously. China had investigated and dealt with infringement cases, combated offences and protected interests of right holders through administrative enforcement, criminal proceedings as well as closer cooperation between administrative departments, public security authorities and people's procuratorates.
195. To further step up IPR protection, China's Government had set up, at a national level, an IPR protection working group consisting of all judicial and administrative enforcement authorities involved in IPR protection. This working group was mandated to coordinate national IPR protection work and supervise the handling of major violation cases. The State Council had also laid out a year long special campaign across the country for strengthening IPR protection commencing from September this year.
196. Recognizing the legitimate concerns and interests in IPR protection of foreign companies and entities operating in China, the Chinese Government had institutionalized a coordinating mechanism for regular communication and exchange with foreign enterprises and trade associations. This mechanism had recently been expanded to include representatives of foreign commercial chambers in China to better attune to comments and opinions from representatives of a broader range of interests in a timely manner. These concerned foreign parties had played a positive role in cooperating with enforcing authorities by reporting infringing acts and making suggestions and also by jointly promoting the protection of IPR. These policies and measures were in line with the specific situation of China and had achieved concrete results.
197. During a special IPR protection campaign in the first half of this year, which mobilized several authorities concerned, industrial and commercial authorities had investigated and dealt with 4,036 trademark infringement cases with a total fine of nearly 30 million RMB. 12,000 copyright enforcement personnel had inspected over 8,000 software and audiovisual product dealers and had confiscated over 1.5 million pirated discs. In this respect, she referred to the Xiushui market in the city of Beijing, as an example. This market had been a place renowned for fake goods, especially clothes, and had almost became a sign of Beijing. In the transitional review of last year, some Members had raised questions concerning this particular market. Nevertheless, if one went to that market now, one would find that things had changed dramatically. On 20 July 2004, the Beijing Administration of Industry and Commerce had published a decree banning all clothes and accessory markets from selling commodities bearing 25 trademarks such as Prada, Burberry etc. Vendors continuing to sell such commodities would be investigated as suspected trademark infringers. Vendors with repeated offences would be evicted from the market and vendors suspected of criminal activities would be transferred to the judicial authorities for investigation. This measure indicated China's strong commitment to combating IPR offences and a serious regard to Members' concerns and at the same time served as a testimony to enhanced competence and accumulated experience.
198. China's IPR protection was getting more systematic in terms of organization, more extensive in terms of territory, more regular in terms of time and more institutionalized in terns of enforcement. She pointed out that IPR protection was not a passive response to fulfil China's accession commitments, but that it responded to an increasing need to build a sound trade and investment environment, promote scientific and technical innovation and to speed up economical development of China. She said that China's Government spared no effort in establishing a strong and effective IPR protection system, which was in the interest of both China and other Members. However, the Chinese Government hoped that Members could understand that, given that China had started building its IPR protection only 20 years ago, it still had a long way to go before it could have a highly advanced protection system. Lastly, she said, Members should view the IPR situation of China from a developmental perspective and should continue to provide support and assistance for China's painstaking efforts to improve IPR protection.
199. She said that China had prepared two documents for this meeting, namely: "White Paper on Intellectual Property Rights Protection in China in 2003" and "Status of China's Intellectual Property Rights Protection" which had been made available as informal room documents. She expressed her hope that these documents could put together the big picture for Members and help them better understand the measures and achievements of China on IPR protection. Although the communication from the European Communities had reached the Chinese delegation only three working days before the review, as a cooperative gesture, China had provided answers to the European Communities' questions.
200. In answering the specific questions from Members, the representative of China first took up the general issues. With regard to on-line application and information disclosure, he said that the office of the national working group on intellectual property protection was set up in the Ministry of Commerce, namely MOFCOM. Its website at ipr.mofcom.gov.cn provided a great deal of information on IPR protection in China.
201. He said that the e-filing of patent applications was in a trial operation phase. Patent examination deadlines and public information such as published patent applications, patent rights and the register on layout-designs were available on the website of the State Intellectual Property Office ("SIPO") at www.sipo.gov.cn.
202. The Trademark Office had already realized on-line trademark publication and had publicized all the opposition decisions on the website of the State Administration for Industry and Commerce ("SAIC"). At present, China was making efforts to speed up the automation process of trademark registration. In China, the acquisition of patent and trademark rights was subject to a registration procedure, while the copyright subsisted when a work was created, without prior examination by a governmental agency. Accordingly there was no plan concerning on-line applications for or examination deadlines on copyright protection. He said that the on-line application and search system for registration of IPR protection of the General Administration of Customs of China ("GCA"), had come into use in September 2004. Anyone could browse information on all registered IPRs in the GCA website at www.customs.gov.cn/ipr/ipr2001c/default.asp. The detailed information of a registered IPR contained the name of the registered holder, name of the product, type and the content of the right etc., by the registration system. The right holder could submit his application for a registration on-line, find out the process of verification for IPR in the GCA and managing or maintaining its registration information.
203. According to China's Copyright Law, works by a foreigner may be protected under an agreement concluded between China and the country or Member to which he belonged or under an international treaty, to which both Members were parties, even if they had not obtained marketing approval. For instance, in 2004, the National Copyright Administration of the People's Republic of China ("NCAC"), at the right owners' request, had undertaken special measures to confiscate pirated audio-visual products of the US film "Shrek 2", which had not yet gained access to China's market at that time. The relevant Articles stipulating punishment were Articles 5, 10, 21 and 25 in the Law on Unfair Competition.
204. Regarding changes in polices or restrictions on representation of intellectual property rights, he said that there had been no change in the rules on the qualification of patent agents. Pursuant to the regulations on patent representations issued by the State Council in 1991, law firms seeking to practise patent representation were required to have at least three attorneys at law with patent agent qualifications and approved by SIPO. China had not so far established any special requirement in respect of copyright representation. The representative also suggested that the legal consultant firms should be asked for help regarding useful information for foreign right holders to lodge complaints directly to Chinese officials.
205. Regarding legislation and the judicial interpretation, he said that the enactment of a systematic and universal civil code had always been an important legislative task for China. In the ninth National People's Congress ("NPC"), a draft civil code had been filed and reviewed while in the tenth NPC the enactment of a civil code had been deemed an extremely important task. However, the universality and complexity of issues concerning civil codes made it difficult to tell the exact time for promulgation. Moreover, as China's economy and society developed, some detailed articles of the draft civil code would need further rectification and modification. More research ought to be done to find out how and what to do with the modification.
206. As to judicial interpretation regarding IP that were currently planned for enactment or revision, the Supreme People's Court and the Supreme People's Procuratorate had discussed the "Judicial Interpretation and Application of the Laws dealing with Criminal Offences of IPR" (hereinafter the "Interpretation"), which would be promulgated soon. In drafting the Criminal Interpretation to IPR, the Supreme Court and the Supreme Procuratorate had solicited the comments and questions from the standing committee of the NPC, public securities court, procuratorates, administrative bodies for enforcement and the academy. Moreover, comments and the recommendations from enterprises, chambers and associations of the US, EU and Japan had been duly considered. After the comments and questions had been summarized, the Interpretation would carry out clearer and more definite standards for verdicts and lower the threshold for criminal acquisition. When the new Interpretation took effect, the provisions of the relevant judicial documents that were inconsistent with the new Interpretation would automatically be nullified.
207. The Anti-Monopoly Law was on the legislative agenda of the tenth NPC. Since the organization of the State Council in 2003, the Ministry of Commerce was responsible for checking monopolies. Therefore, it had the mission of drafting Anti-Monopoly Law, which had been the mission of the former state economy and the trade committee.
208. Based on the legislative research and sufficient discussion, MOFCOM had completed the draft of the Anti-Monopoly Law and had submitted it to the State Council in March 2004. The draft contained articles regulating monopoly agreements, abuse of dominant market status, large scale concentration of enterprises, authority and legal duties. Due to China's situation, the draft also included the articles regulating administrative monopolies and abuse of intellectual property. After the deliberation of the State Council's legislative affairs office, the draft of Anti-Monopoly Law would be submitted to the State Council. If the State Council approved, the draft would be submitted to the standing committee of the NPC for further deliberations.
209. Regarding the amendment of the Law to Counter Unfair Competition, since 1998 SAIC had already done a lot of research about the amendment of the law to counter unfair competition and was now starting to draft the amendment.
210. The regulations on the protection of the right of communication through information network, mentioned in Article 58 of China's Copyright Law, had been brought into the 2005 legislative agenda of the State Council. Currently, this task was carried out in an orderly way.
211. He said that China consistently attached great importance to public participation in legislation. Article 5 of the Law on Legislation, which had come into effect on 1 January 2000, stipulated that legislation should embody people's will, develop socialist democracy and protect the people's right to participate in legislation through various ways.
212. On 22 March 2004, the State Council had published the guidelines for implementation of the promotion of legitimate administrative activities, among which paragraph 16 had stipulated that "the present way of legislation by the government should be changed and the government should extend public participation into governmental legislation. Legislators, juristic enforcers and law professionals should communicate with each other and thus a professional consultation and a reasoning system should be established. In drafting laws, regulations, rules and documents as a basis for administrative management, the government should solicit comments through various channels, such as hearing, documentation, symposium, discussion or publishing the draft. The will of the majority was to be respected and people's own good should be embodied. After drafts of laws, regulations, rules and documents as a basis for administrative management are passed, they should be published in a governmental gazette, popular newspapers and governmental websites. Citizens, cooperations and the corporate body should have easy access to the governmental gazette".