Actas - Consejo de los ADPIC - Ver detalles de la intervención/declaración

Mr. Tony Miller (Hong Kong, China)
236. It was known that the obligation regarding the removal and alteration of electronic rights' management information ("RMI") stemmed not from the TRIPS Agreement but from the WCT and WPPT. Nevertheless, this problem was being actively taken into account. Currently, the State Council was doing the legislation planning on these matters so that the protection of RMI would be properly dealt with. 237. Regarding the payment of royalties for copyright the NCAC and the State Administration of Radio, Film and Television were working on broadcasting payment measures. At present, the task was in the process of investigation, study and drafting. 238. In respect of retroaction, he said that Article 9 of the Implementing Measures on Copyright Administrative Penalty entirely conformed with the Article 29 of the Law on Administrative Penalty, which prescribed "Where an illegal act is not discovered within two years of its commission, administrative penalty shall no longer be imposed, except as otherwise prescribed by law. The period of time prescribed in the preceding paragraph shall be counted from the date the illegal act is committed; if the act is of continuing or continuous nature, it shall be counted from the date the act is terminated". Therefore, the prescription of administrative penalty was different from that of civil procedure. The latter was counted from the date on which the injured party had known or should have known the infringement of its rights, while the former was counted from the date on which the illegal act had been committed or terminated. 239. Regarding some further copyright questions, he said that China had recently indicated that it would join the 1996 WIPO Internet treaties, the WCT and WPPT, but neither had it indicated joining before 2005, nor had it intended to complete a draft for the Internet-related implementing rules before the end of 2004. According to the Copyright Law of China, the measures on the protection of the right of communication through information network had been brought into its 2005 legislative agenda. He said that currently this task was being carried out in an orderly way. 240. Regarding the protection of sound record producers' rights, he said that the Chinese copyright legislation was totally consistent with the TRIPS Agreement and that China would provide the rules on collecting societies to Members concerned once these were ratified. 241. Turning to the issue of enforcement, he said that the State Council had promulgated a special action plan for the protection of IPRs this year and SAIC had issued its action plan for the campaign of exclusive trademark rights protection in June. All these plans were being made available on the website of the state office of the IPR working group at or on the website of SAIC. One may also refer to the NCAC's Implementing Plan on Special Action for the Protection of IPRs of September 2004, which would be available at 242. Regarding the case numbers of administrative enforcement, according to statistics, in 2003 and in the first half of 2004, the people's courts at various levels throughout China had completed trials of 220 cases of fake registered trademarks, 85 cases of selling commodities with fake registered trademarks, 167 cases of illegal production and sale of registered trademarks, 22 of copyright infringement, 4 cases of selling copyright infringing duplicates and 69 cases of commercial secret infringement. 243. The statistics in 2003 showed that 37,489 law-breaking cases of various kinds had been handled by Administrations for Industry and Commerce ("AICs") at all levels throughout the country, among which there had been 11,001 general trademark offences and 26,488 trademark infringement and counterfeiting cases. Besides, 84,755,000 pieces or sets of illegal representations of trademarks had been seized and/or removed. 15,597 mould plates and other tools directly used for the infringements had been confiscated and 5,754.92 tons of infringing goods had been destroyed. The fine had totalled 242m RMB and 52 persons involved in 45 cases had been transferred to judicial organs for criminal liability. 244. In the first three quarters of 2004, 13,922 law-breaking cases of various kinds had been dealt with, among which there had been 3,407 general trademark offences and 10,515 trademark infringement and counterfeiting cases. In addition, 12,232,900 pieces and sets of illegal representations of trademarks had been seized and/or removed. 16,894 mould plates and other tools directly used for the infringements had been confiscated and 10,952 tons of infringing goods had been destroyed. The total value involved had reached 452m RMB, the fine had amounted to 99m RMB and 16 persons involved in 14 cases had been transferred to judicial organs for criminal liability. In 2003, SIPO at various levels throughout China had accepted 1,527 patent dispute cases among which 1,237 cases had been completed. 245. Further, in the enforcement against producing and selling fake commodities and infringing IPRs, the Supreme People's Procuratorate this year had required a particular supervision by the People's Procuratorate at various levels over criminal cases of this kind. From January to October 2004, the People's Procuratorate at various levels had approved the arrest of 2,118 criminal suspects involved in the production and sale of fake commodities and prosecuted 1,522 of them. There had also been approval of the arrest of 483 criminal suspects and the prosecution of 488 involved in other IPR infringements. 70 more cases had been marked as priority cases by the Supreme People's Procuratorate, either monitored directly by itself or required to be monitored by the High People's Procuratorate at the provincial level. In the first three quarters of 2004, 6,275 unfair competition cases on the infringement of IPR had been investigated into and dealt with by AICs at all levels throughout the country. The total value involved had been 385.61m RMB, among which 6.94m had been confiscated and 35.58m had been the fine. 246. In 2003 the copyright administrative departments at all levels had accepted 23,013 cases and had settled 22,429 of them. 21,032 cases had resulted in penalty. 1,173 cases had led to mediation and 224 had been removed to judicial departments. In the same year, the local copyright administrative department had captured 67.97m of various kinds of pirated products, including 24.75m pirated books, 1.78m pirated periodicals, 26.45m pirated audiovisual products, 6.62m pirated electronic publications, 7.22m pirated software and 1.14m other pirated products. 247. He said that China had always attached great importance to IPR protection and fighting IPR infringement and that China was also prepared to cooperate with other Members, either in the bilateral or the multilateral legal framework. He said that for criminal actions, the foreign affairs bureau of the Supreme People's Court coordinated the contacts with foreign members and the hearing of the IPR-related cases was undertaken by the third civil court of the Supreme People's Court. At present, the National Copyright Administration (NCAC) had established a good relationship of interactive cooperation with BSA, MPA, IFPI, Customs of Hong Kong SAR and MPIA. As China believed that striking piracy was an unshirkable international duty for the governments of all Members, including developed Members, China was ready to continuously consult and cooperate with the relevant departments of other governments in this respect, so as to jointly crack down on piracy. 248. With respect to patents according to Article 57 and 68 of the Patent Law, he said that administrative enforcement was to be carried out by the administration responsible for patent-related work. Therefore, there was no mechanism for coordinated action with foreign governments. 249. On the customs enforcement front, the Chinese Customs authorities and the Customs authorities in Hong Kong, China had established an excellent cooperation relationship, which included joint enforcement action, information exchange, investigation assistance, personnel training etc. The Chinese customs authorities enjoyed good cooperation with the Asean-Pacific Regional Intelligence Liason Offices ("RILOs") of the World Customs Organization ("WCO") in respect of information exchange. In recent years, quite a number of cases had been disclosed with the information provided by the Asean-Pacific RILOs of the WCO. An agreement between China and the EU on customs administrative mutual assistance would also be signed at the end of 2004, which would initiate the cooperation between the Customs authorities of the two sides with respect to IPR protection. 250. According to China's laws, regulations and departmental rules, copyright owners could seek relief at the enforcement department of the place where the infringer had its seat of business or its principal operative office, or where the infringement was committed or the infringing result took place. The People's Procuratorate, at its four levels from supreme down to the local county, internally had all special bodies or relatively fixed personnel to deal with IPR-related criminal cases. He said that, in the Supreme People's Procuratorate, the examination, prosecution and appearing in court of IPR cases was undertaken by the prosecution office. The prosecution office was also responsible for providing coordination, guidance and personnel training for the prosecution offices at various levels of the People's Procuratorate when dealing with cases of this kind. The prosecution office also had an inter-agency meeting mechanism with the investigating authorities dealing with cases of this kind to exchange information, start crime prevention measures and also comment on the evidence establishing work of the investigating authorities. In the People's Procuratorate at all local levels it was also the prosecution offices that were responsible for the examination, prosecution and appearing in court for cases of this kind. They accepted guidance from the higher level, the People's Procuratorate, on application of law and criminal penalty criteria etc. in cases of this kind and also had inter-agency coordinating mechanisms with the investigating authorities at the same level. 251. With regard to the issue of private investigating firms, he said that the Ministry of Public Security of China was taking active steps to consider it. However, there was still no new regulation being issued. 252. Regarding the elimination of localism, he said that in order to fight against and eliminate local protectionism, the State Council had issued, on 21 April 2001, stipulations on the prevention of local blockades in market economy activities. This was a special regulation fighting against local protectionism. On IPR protection specifically, a special action programme on IPR protection had been issued by the State Council on 26 August 2004, in which the elimination of local protectionism was also an important content. 253. Turning to administrative enforcement, he said that the NCAC was the government body responsible for copyright administrative protection in the Internet environment. Data on the administrative enforcement showed that, in the first three quarters of 2004, 20,371 unfair competition cases of various kinds had been investigated and dealt with by AICs at all levels throughout the country. 254. According to the Law on Administrative Procedure, if an administrative punishment decided by the enforcement department was obviously unreasonable, the People's Court could modify it by verdict. According to the Law on Administrative Procedure and Articles 44 and 56 of the Interpretation on Issues Concerning the Implementation of the Law on Administrative Procedure by the Supreme People's Court, the People's Court could make an order or a verdict to reject the lawsuit or the claims of the lawsuit. 255. According to the aforesaid law and interpretation, all the parties of a law suit had an equal right to entrust a lawyer and all the evidence needed to be shown and enquired in the court hearing. Evidence which had not been enquired by the opposing party in a court hearing was never adopted for the grounds of deciding the case, except if the evidence involved confidential information of the country, commercial secrets, individual privacy or was to be kept secret based on definite provisions of laws. He said that the People's Court had to deliver the judicial documents including the verdict, order and decision to the relevant parties of the lawsuit, otherwise these judicial documents would not go into effect. 256. Regarding obligations of administrative agencies to provide written decisions with interpretations for their enforcement decisions, he said that his delegation believed that this question was not relevant to the IPR system and that his delegation was not obliged to answer it here. 257. Regarding the degree of deference extended to administrative case decisions, he said that his delegation believed this question to be about how the court made its judgement upon facts recognized and laws applicable in administrative enforcement. He said that in the administrative lawsuit system of China, the principle of validity review of specific administrative behaviour was applied. In case administrative behaviour needed to be carried out upon case notes pursuant to the relevant law, the court practised the principle of "records exclusivity", that was to say that the court would not introduce or accept evidence beyond the record. In other cases, the court would conduct an overall review on the recognition of the facts and laws applicable in administrative enforcement. Under special circumstances, the court could collect evidence by authority. 258. According to the Law on Administrative Punishment of China, the amount of fines of administrative punishment was prescribed by laws or administrative regulations. Competent authorities of copyright administration on various levels were obliged to conduct their administration legally and were not allowed to lower or raise the amount of the fine. 259. Turning to civil enforcement, he said that pursuant to the Law on Civil Procedure, the period of first instance of civil law cases was six months, while the period of second instance of civil law cases was three months. The period could be extended and the procedure for extension would have to be followed. In practice, most IPR cases could be finished within the trial period, though some complicated cases could take longer time. When circumstances appeared for lawsuits to be suspended according to the law, the court would suspend the lawsuit. The compensation amount was determined by the court on the basis of the principle of complete compensation prescribed in laws and judicial interpretations and of the specific case including the reasonable amount of money paid to stop the infringement. The retaining fee for lawyers, which was consistent with the relevant regulations, could be calculated in the compensation on the basis of the request of the plaintiff and the specific case. If one party had dissensions on the compensation amount, he or she could appeal to a court of a higher level. The court of the second instance would verify all the requests, but in practice, hardly any changes were made to a compensation amount determined by the court of the first instance. 260. The present Patent Law, Trademark Law and Copyright Law and corresponding judicial interpretations all contained regulations concerning judicial injunctions before the lawsuit. The concerned right holder could file to the court. After the court had accepted the application, it would actively and with caution determine whether judicial injunctions would be implemented. Actually, statistics showed that the Chinese courts had awarded injunctive relief to right holders in several hundred cases. Courts that awarded injunctive relief before lawsuits were mainly those situated where the defendant was or where the infringement had occurred. Even if some injunctions had to be enforced in places other than where the court was situated, the concerned court would assist in the enforcement. Meanwhile, China's courts were trying hard to ensure the enforcement of verdicts. 261. Turning to criminal enforcement, he said that in legal terms, it was possible that both civil and criminal IPR cases were heard by courts of the same level, but this was really rare. According to Article 20 of the Law on Criminal Procedure of China, criminal cases by foreigners were heard by the middle level People's Court. Pursuant to Article 23 of the Law on Criminal Lawsuits of China, the upper level People's Court could, if necessary, hear the case which should be heard by a court on a lower level; if the court on the lower level regarded the case as extremely serious, it could request to transfer the case to an upper level People's Court.