Outline of China’s Post-TRIPS Intellectual Property System

Following the massive overhaul of the intellectual property protection system associated with WTO entry, the post-TRIPS system of protection offered a myriad of choices for rights-holders in China. The system of intellectual property protection has been described as a “triple IP system, comprising legislative guidance, administrative control and judicial enforcement of IP” (Yang and Clarke 2004, p. 14). However, it has also been noted that the lines between the categories may be blurred and “any particular enforcement measure may partake of the characteristics of more than one category” (Clarke 1999, p. 31). Essentially, intellectual property rights-holders had several choices in the method they chose to enforce their rights. Administrative enforcement was often the mechanism chosen, as quick raids of the infringer’s premises could often be accomplished (Chow 2000). There were various bodies responsible for the administrative enforcement of intellectual property. “The Trademark Office under the State Administration for Industry and Commerce (SAIC) is responsible for trademarks, the State Intellectual Property Office (SIPO) oversees patent protection, and the National Copyright Administration handles copyright” (Potter and Oksenberg 1999).

Judicial enforcement was also an option to pursue. Judicial enforcement could take two forms: civil litigation or criminal prosecution. Although it was possible to bring private prosecution of offenders, this method of enforcement was subject to a wealth of problems (Simone 1999). Therefore, civil litigation was more popular. “Any individual or organisation can bring a lawsuit to a people’s court, such as an Intermediate People’s Court. If they do not agree with the judicial verdict of that court, the case can be pursued to a higher court” (Yang and Clarke 2004, p. 20). There are four levels of People’s Courts in China: Supreme, Higher, Intermediate and Basic. Specialised intellectual property courts were established at the intermediate level and above from early 1990s. “China’s specialized Intellectual Property Courts were first established in Beijing at both the Intermediate and Higher People’s Court levels on August 5, 1993” (Kolton 1996, p. 436). Following their introduction, specialised IP courts were rapidly introduced in other areas outside Beijing. Intellectual property disputes were previously heard by civil or economic divisions and the specialised courts were intended to go some way towards countering accusations of poorly trained judicial personnel.

Therefore, there were a host of alternatives available to IP rights-holders in China, but there was still some scepticism about how effective these different channels of enforcement actually were at enforcing intellectual property rights. Respondents’ detailed experiences of the post-TRIPS IP system in China will be discussed in Chap. 6, in order to analyse how effective these different channels of enforcement were in practice and to try to establish why an “enforcement gap” was perceived to exist between the laws on paper and in reality.