Implementing the TRIPS Agreement in the Formal Legislation

In order to comply with the substantial obligations associated with WTO entry, China undertook a massive overhaul of its intellectual property laws beginning in 1999, before official accession in December 2001. During the critical period from 1999 to 2002, many laws and regulations were considerably amended, while others were introduced for the first time. To illustrate this huge legislative effort, a selection of the major laws and regulations passed during this period are outlined below:

• • Copyright Law amended and came into effect 27 October 2001;
• • Implementing Regulations of the Copyright Law came into force on 15 September 2002;
• • Decisions on Safeguarding of Security on the Internet adopted on 28 December 2000;
• • Regulations on Computer Software Protection amended and came into effect 1 January 2002;
• • Regulations on Publications came into effect 1 February 2002;
• • Regulations on Motion Pictures came into effect 1 February 2002;
• • Regulations on Sound and Video Recordings came into effect 1 February 2002;
• • Patent Law amended on 25 August 2000 and came into effect 1 July 2001;
• • Implementing Regulations of the Patent Law came into force on 1 July 2001;
• • Patent Examination Guidelines republished 1 July 2001;
• • Layout-Designs of Integrated Circuits Protection Regulations (IC Regulations) came into force on 1 October 2001;
• • Implementing Rules of the IC Regulations came into force on 1 October 2001;
• • Regulations on Administration of Imports or Exports of Technologies came into force on 1 January 2002;

• • Rules on Registration of Technology Import or Export Contracts came into force on 1 January 2002;
• • Rules on Technologies prohibited or restricted from importation came into force on 1 January 2002;
• • Rules on Technologies prohibited or restricted from exportation came into force on 1 January 2002;
• • Trademark Law amended and came into effect 1 December 2001;
• • Implementing Regulations of the Trademark Law came into force on 15 september 2002;
• • Trademark Examination Guidelines revised 17 October 2002.

In addition to the main period of legislative revision from 1999 to 2002, the process of review and modification in China continued after this time. For example, according to the State Intellectual Property Office (SIPO), in 2003, “a total of 26 regulations and documents, which were not in accordance with the rules of WTO, were revised or cancelled” (SIPO 2003). Amendments were made in the legislation specifically to implement the provisions of the TRIPS Agreement, for example, the provision of rental and broadcast rights for copyright. The TRIPS Agreement provides a right to prohibit rental of computer programs and movies under Article 11; this was implemented by the Copyright Law 2001 revised Article 10, which provided rental rights. The TRIPS Agreement also provides the right to prevent fixation, reproduction or broadcasting for 20 years under Article 14; the amendments to Article 10 of the 2001 Copyright Law included these rights of reproduction, broadcasting and communication.

Other key revisions to implement the TRIPS Agreement included extending the symbols which may be protected as trademarks and codifying the protection for well-known marks. The signs that may be subject to trademark under the TRIPS Agreement include distinguishing names, letters, numerals and colours; this provision was implemented by the revised Trademark Law 2001 Article 8. The TRIPS Agreement also requires protection for well-known marks without registration in the member country. Well-known marks were protected in China prior to the revisions of 1999-2002, but this protection was strengthened and formalised by the inclusion of two new Articles in the revised Trademark Law 2001. Articles 13 and 14 prohibited registration of trademarks which are a reproduction, imitation or translation of a well-known trademark not registered in China and provided criteria for determining whether a trademark is well-known.

The major legislative changes that China undertook in connection with WTO accession were also frequently mentioned by several respondents in the initial group, when asked to comment on recent changes in the intellectual property system that they had observed. It was noticeable that these comments on specific legislative changes were predominantly made by lawyers, whereas respondents from business tended to focus more on changes in enforcement or attitude that they had observed.

For example, when asked to comment on recent changes they had observed in the IP system in China, one legal respondent described:

Revision of the relevant laws and regulations, such as the copyright law, trademark law, patent law and other IP-related laws and regulations.³

The connection between the amendments and China’s WTO entry was made more explicitly by other respondents:

A series of IP laws and regulations have been amended to fulfil China’s commitment to the WTO. IP-related clauses have been added into various laws and regulations accordingly.⁴

Furthermore, the revision of China’s IP laws associated with WTO entry was described as a “milestone”⁵ and finally, a further respondent also linked the substantive amendments to “the requirements of TRIPS.”⁶

Therefore, it is clear from the quantity of amendments carried out, as well as the various respondents’ comments, that the legislative changes that China made to comply with the TRIPS Agreement were substantial.