New Chinese IP laws would enhance efficacy of judicial protection
Zhang Can


Editor's note: Zhang Can is an assistant judge at the Beijing Intellectual Property Court. The article reflects the author's opinions and not necessarily the views of CGTN.

The amends to the patent law and the copyright law came into effect on Tuesday. Patent and copyright are deemed as the most essential intellectual property (IP) rights, with the former concerning technological innovation and the latter cultural prosperity. Correspondingly, patent law and copyright law are at the center position of a nation's IP law system. The revision of these two laws therefore has garnered much public attention and become a hot topic in the IP field. 

Patent law has been revised three times since its first enactment in 1984, and its last revision was in 2008. While the copyright law seems to have a more stable history, having been only amended twice since its promulgation in 1991. The socio-economic development of technological advancements, new business models, industry formats and case types are constantly emerging, posting great challenges to certain rules and regimes in the two laws. The call to amend them to keep pace with sic-tech progress and realistic development is growing.

On the other hand, the domestic IP ecosystem is quite different nowadays. With the socialist market economy having entered a new era, the authority has attached much importance on the utilization and protection of IP, especially patents and copyrights, so as to implement the new development concept, build a new development pattern and achieve high quality development – meaning public IP awareness has increased tremendously.

According to the statistics, China's fillings under the Patent Cooperation Treaty (PCT) surpassed those of the U.S. for the first time in 2019. The WIPO's Global Innovation Index (GII) 2020 pointed out that China has broken into the GII top 15 last year and established itself as an innovation leader. All these require our patent law and copyright law to raise its protection level and capability.

The revision of the two laws, in general, is smooth and steady, without fundamental or ground-shaking change. This is not surprising, for China's IP legal framework has long been complete and advanced, in compliance with the TRIPS requirements. However, there is no lack of highlights that are worth mentioning in this amendment. For instance, the revised patent law introduced open license regime for the first time, aiming to promote the transformation of patent achievements and enhance market transparency.

Although the Chinese patent law is not the first to include the open license clause, it has also made a significant contribution to the technology transfer in the international community as the rules prescribed in the Chinese law are different from those of Britain and Germany in some aspects, and it's a kind of progress, innovation and sharing of Chinese wisdom.

Shortly after the promulgation of the new laws, there has been a number of relevant interpretations and analyses. The public should have been quite familiar with the main content of the two laws and the clauses that have been amended. Since the two laws will be put into use on this day and given its importance to the whole IP system, it is necessary to review those new provisions in the two laws from a judicial point of view and evaluate their potential impact on judicial practices.



Firstly, the new laws have substantially expanded the scope of protection. In patent law, a portion of a product's design can be protected now. As the industry develops, the design of products has become increasingly sophisticated and product design in its entirety has become more and more difficult to innovate.

Innovative designer's demand for protection of a portion of a product's design has been increasing. In order to answer this call, Article 2.4 of the new patent law grants protection to a portion of design. The change in the definition of works in the copyright law make it possible to recognize those not included in the listed types of works under the old copyright law as works, such as musical fountains and light shows. Therefore, it is wise for the new copyright law to adopt an open approach toward the judicial identification of works. It will promote the protection of some new forms of cultural expression.

Secondly, it used to be complicated to determine who is the real rights holder in cases related to either a service invention-creation or a cooperative work. In judicial practice, the person who completed the invention and the entity employing the person have disputed fiercely over whether the disputed invention is made in the execution of tasks assigned by the employer or in a spark of the employee's inspiration.

It is also true in the case of cooperative works, for it is always ambiguous that who made substantial contribution to the eventual completion of the disputed work. Nevertheless, the new laws have remarkably improved the flexibility of the rules with respect to the exploitation of a service invention-creation and a cooperative work. The new rules provide the rights holder with more party autonomy, thus is conducive to the exploitation and application of intellectual property.

Thirdly, the right of broadcasting prescribed in the previous copyright law has long been controversial, as the old law firmly confines the right to broadcasting or disseminating works by wireless means. A big problem arises if an infringer broadcasts copyrighted work via the internet, the rights holders cannot quote his or her right of broadcasting over the work to stop the infringing conduct and claim damages.

In judicial practice, the court cannot easily break through the laterally interpretation of a legal clause, as webcast is obviously a wired means of broadcasting which does not infringe upon a right holder's right of broadcasting. The new copyright law managed to plug this loophole by stipulating that the right of broadcasting is the right to publicly broadcast or disseminate works by wired or wireless means, later on, any form of webcasting not permitted by the right holders would fit into the protection scope of the right holder's right of broadcasting.

Last but not least, the compensation clauses in the two laws has attracted much public attention. Punitive compensation has been introduced into both of the patent law and the copyright law to curb intentional and repeated infringement. 

The upper limit of statutory compensation has been raised by five times and 10 times respectively, from 1 million yuan (about $156,654) to 5 million yuan in the patent law, and from 500,000 yuan to 5 million yuan in the copyright law, demonstrating the authority's determination to strengthen the protection of IP rights. 

It's worth mentioning that all present effective Chinese IP laws, including the patent law, the trademark law, the copyright law and the anti-unfair competition law have incorporated the punitive compensation regime and the upper limit of statutory compensation has been unified as 5 million yuan.

What's more, the Supreme People's Court issued a judicial interpretation on the application of punitive compensation in IP cases not long ago. It is predictable that the punitive compensation clause would be applied more frequently over the next period of time in cases that concern malicious patent or copyright infringement. The overall protection intensity would be enhanced.

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