Prepared by WIPO © 2014
I. General Background Information
A. Legislation System
China's legislation includes laws promulgated by the National People's Congress (NPC) and its Standing Committee, regulations issued by the State Council and its relevant departments, as well as the local regulation of local People's congress, minority autonomous regions, special economic zones and special administrative regions.
This multi-level legislation proceeds according to the following hierarchy:
1) The Constitution of the People's Republic of China, which is the highest and ultimate source of legal norms in PRC;
2) Laws, which are enacted by the National People's Congress and its Standing Committee;
3) Executive regulations, which are issued by the State Council;
4) Local regulations, which are issued by local People's Congress; and
5) Local regulations, rules, measures etc., which are issued by an executive agency or by a local People's Government.
According to the Legislation Law of the PRC, the constitutional law prevails over all others laws and regulations. Laws prevail over executive regulations and other regulations, i.e., executive regulations cannot contravene laws promulgated by the NPC. In turn, local regulations, rules, measures, etc. should not be against the national law and executive regulations. Articles 78 to 84 of the Legislation Law spell out the hierarchy of the various legislation and executive issuances while Articles 85 to 92 establish the mechanisms and bodies authorized to resolve any conflict.
B. Judicial System
The judicial power is exercised by the courts, which exist in four levels:
1) The Supreme People's Court;
2) Higher People's Courts: Provincial level courts;
3) Intermediate People's Courts: Prefecture level courts; and
4) Basic People's Courts: County or district level courts. Tribunals may also be set up in accordance with local conditions.
The highest court in the judicial system is the Supreme People's Court in Beijing, which is directly responsible to the NPC and its Standing Committee.
China has established a system of two instances of trial in the People's courts. This means that after the judgment of a People's court (at any level) is rendered at the first instance, a party may appeal only once to the People's court at the next higher level, which then becomes the court of second and last instance for that case. Any judgment and order rendered by the Supreme People's Courts acting as a court of first instance will become immediately effective.
C. Executive System
The State Council or the Central People's Government of the PRC is the executive body of the highest organ of state power and the highest organ of state administration.
The State Council exercises unified leadership over local state administrative organs at various levels throughout the country. It regulates the specific division of power and function of the state administrative organs at the central level and the provincial autonomous regional and municipal level.
The State Council may establish special administrative regions when necessary. Special administrative regions may exercise social, economic, political and cultural systems different from those on the mainland regions of PRC. Laws passed by the National People's Congress and its Standing Committee may not be enforced in special administrative regions, except those which concern national defense, foreign affairs and involve national unification and territorial integrity and which do not concern the scope of self-government in special administrative regions.
II. Intellectual Property Legal System
A. Government Regulatory Agencies
1. State Intellectual Property Office (SIPO)
At the national level, SIPO is responsible for the examination of foreign and domestic patent applications, registering semiconductor layout-designs under the Patent Law of the People's Republic of China, as well as coordinating domestic foreign-related IPR issues involving copyrights, trademarks and patents. Provincial offices generally handle the administrative enforcement of patent complaints and the promotion of other intellectual property works.
2. State Administration on Industry and Commerce (SAIC)
The Trademark Office under SAIC maintains authority over trademark registration and enforcement of trademark, trade name and special geographic indication protection in accordance with the Trademark Law of the People's Republic of China. The Fair Trade Bureau handles disputes arising under the Law of the People's Republic of China Against Unfair Competition, including trade secret matters. In enforcement efforts, SAIC has the power to investigate cases. When an infringement is determined, SAIC can order a cessation of the sale of infringing items and stop further infringement, as well as order the destruction of infringing marks or products, impose fines, and remove machines used to produce counterfeit goods.
3. National Copyright Administration (NCAC)
NCAC is responsible for copyright administration and enforcement, including of drafting the outline of national copyright strategy and the policy of copyright protection and administration. It is also responsible for nation-wide copyright issues, including investigation of infringement cases, administering foreign-related copyright issues, developing foreign-related arbitration rules and supervising administrative authorities under the Copyright Law of the People's Republic of China. Copyright owners can also voluntarily register with NCA to establish evidence of copyright ownership.
4. China Internet Network Information Center (CNNIC)
CNNIC is a registry of domain names and root zone operator. It operates and administers country code top level domain of .CN and Chinese domain name system in accordance with the China Internet Domain Name Regulations.
5. Ministry of Agriculture (MOA)
MOA is responsible for the protection of the geographical indications of agricultural products and new varieties of plants (agriculture part) in the light of the Measures for the Administration of Geographical Indications of Agricultural Products and the Regulations of the People's Republic of China on Protection of New Varieties of Plants (agriculture part).
6. State Forestry Administration (SFA)
SFA is responsible for new varieties of plants (forestry part) protection in accordance with the Regulations of the People's Republic of China on Protection of New Varieties of Plants (Forestry part).
7. General Administration of Customs (GAC)
GAC is responsible for customs measures of IPR in accordance with the Regulations on Customs Protection of Intellectual Property Rights. When customs' investigation reveals a case of infringement, GAC has the authority to confiscate the goods, and may destroy or remove the infringing goods and impose fines.
8. Administration for Quality Supervision, Inspection and Quarantine (AQSIQ)
AQSIQ is responsible for ensuring Chinese product quality and standards; it also handles infringements of registered trademarks when the infringing products are inferior quality goods. AQSIQ issues administrative regulations regarding protection of geographic indications (Provisions for the Protection of Products of Geographical Indication), which are separately recognized in China.
B. Regulatory Framework
Copyright protection is mainly regulated by the Copyright Law of the People's Republic of China, which was adopted by the Standing Committee of the National People's Congress, promulgated by Order No. 31 of the President on September 7, 1990, and amended on October 27, 2001 and February 26, 2010. It is the basic law for copyright protection, with 61 articles stipulating copyright and its neighboring rights. The latest amendment in 2010 concerned public interest and copyright pledge.
This Law will not be applicable to:
(1) laws and regulations, resolutions, decisions and orders of State organs, other documents of a legislative, administrative or judicial nature and their official translations;
(2) news on current affairs; and
(3) calendars, numerical tables and forms of general use, and formulas.
There are also other implementing rules and measures adopted by the State Council and the NCA; these regulate specific copyright issues. For example, software copyright protection is regulated by the Regulations on Computer Software Protection.
Key international agreements affecting China Copyright Law include:
2. Patents, Utility Models and Industrial Design
Patents, Utility Models and Industrial Design are covered by the Patent Law of the People's Republic of China, which was adopted by the Standing Committee of the NPC and promulgated by the President on March 12, 1984, and amended for three times on September 4, 1992, August 25, 2000, and December 27, 2008. It is the core legislation in the patent legal system. Further details are regulated under the Implementing Rules of the Patent Law of the People's Republic of China and other rules or measures issued by SIPO. In addition, SIPO also publishes the Guidelines on Examination of Patents in PRC for use by patent attorneys, agents, and examiners.
Patent rights will not be granted for any of the following according to the Patent Law of the People's Republic of China:
(1) scientific discoveries;
(2) rules and methods for intellectual activities;
(3) methods for the diagnosis or treatment of diseases;
(4) animal or plant varieties;
(5) substances obtained by means of nuclear transformation; and
(6) designs that are mainly used for marking the pattern, color or the combination of the two, of prints.
The patent right may, in accordance with the provisions of this Law, be granted for the production methods of the products specified in Subparagraph (4) of the preceding paragraph.
Key international agreements affecting China Patent Law include:
The Trademark Law of the People's Republic of China, which was promulgated by the Standing Committee of NPC on August 23, 1982 and amended on February 22, 1993, October 27, 2001 and August 30, 2013, contains 73 articles stipulating the basic protection of trademark, the definition of registered trademark, the right holders, and the content of rights as well as penalty provisions. Next is the Implementing Regulations of the Trademark Law of the People's Republic of China, which was issued by the State Council on August 3, 2002, and amended on April 29, 2014.
Trademark Law of the People's Republic of China provides that "any sign that distinguishes the goods of a natural person, legal person, or other organizations from those of others, including any word, device, letter, number, three-dimensional sign, color combination, sound and combination thereof, may be registered as a trademark."
Key international agreements affecting China Trademark Law include:
4. Geographical Indications
The Provisions for the Protection of Products of Geographical Indication regulates and protects Geographical Indications. In addition, Articles 3, 10 and 16 of the Trademark Law of the People's Republic of China also relate to Geographical Indications.
The products of geographical indication mentioned in these Provisions will refer to products that originate from a particular geographical region with the quality, reputation or other characteristics substantially attributable to the natural and human factors of the region, and denominated with the name of the region upon examination and approval. The products of geographical indication include:
(1) those grown or cultivated in the region; and
(2) those made, wholly or partially, of the raw materials from the region and produced or processed with the particular techniques in the region.
The products in respect of which an application is filed for protection of a geographical indication will meet the requirements of safety, hygiene and environmental protection. Where a product jeopardizes the environment, ecology, or resources, application for the protection thereof will be refused.
The exclusive indication of products of a geographical indication will be registered for use pursuant to these Provisions. Some special marks on geographical indication could be protected as collective marks or certification marks as well.
5. Undisclosed information (Trade Secrets)
"Trade secrets" refers to any technology information or business operation information which is unknown to the public, can bring about economic benefits to the obligee, has practical utility and about which the obligee has adopted secret-keeping measures. Undisclosed information (trade secrets) has been traditionally protected under the Law of the People's Republic of China Against Unfair Competition. The right holders can file a complaint at the local administrative office of SAIC over the county level or appeal to the courts for protection directly. It is also covered by some other specific regulations, such as Several Provisions on Prohibiting Infringements upon Trade Secrets and Interim Regulations on the Protection of Commercial Secrets of Central State-Owned Enterprises.
6. Plant Variety Protection
The new plant variety means a cultivated plant variety, or a developed one based on a discovered wild plant, which is new, distinct, uniform and stable, and whose denomination is adequately designated.
Plant Varity Protection in China is mainly regulated by the Regulations of the People's Republic of China on Protection of New Varieties of Plants and its two implementing regulations on agriculture and forestry, which are, the Implementing Rules for the Regulations of the People's Republic of China on the Protection of New Varieties of Plants (Agriculture Part) and the Implementing Rules for the Regulations of the People's Republic of China on the Protection of New Varieties of Plants (Forestry Part).
Key international agreements affecting China Plant Variety Protection include:
7. Domain Names
Domain Name refers to the character identification of hierarchical structure that identifies and locates a computer on the Internet and corresponds to the IP address of this computer. The China Internet Domain Name Regulations was adopted by the Ministry of Information Industry in 2004. The China Internet Network Information Center (CNNIC) is the state network information center of China, which issued the Domain Name dispute resolution rules (The China Internet Network Information Center (CNNIC) Domain Name Dispute Resolution Policy and Rules for CNNIC Domain Name Dispute Resolution Procedure) in 2007 and registration rules (CNNIC Implementing Rules of Domain Name Registration) in 2009. Both these rules were amended in 2012. The registration is compulsory procedure to obtain a domain name.
8. Transfer of Technology
The core regulation in this area is the Regulations on Administration of Import and Export of Technique. Specifically, the contract registration of any transfer of technology is governed by the Measures for the Administration of Registration of Technology Import and Export Contracts of the People's Republic of China.
9. Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs)
The Intangible Cultural heritage Law concerns the administrative protection of intangible heritage. In addition, the Regulation of the People's Republic of China on Traditional Chinese Medicines concerns protection and promotion of Chinese traditional medicine, and the Regulations on Protection of Traditional Arts and Crafts was adopted for the purpose of protecting traditional fine arts and crafts.
Key international agreements affecting China Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs) include:
IP Enforcement in China follows a two-track system. The first and most widespread is the administrative track, whereby an IP rights holder can file a complaint at the local administrative office of SAIC (see II.A above). The second is the judicial track, whereby complaints are filed through the court system. China has established specialized IP panels in its civil court system throughout the country. Besides, new specialized IP courts exclusively handling intellectual property disputes (mainly focus on the cases of patent, new plant variety, layout-designs of integrated circuits and trade secrets) are expected to be set up in Beijing, Shanghai and Guangzhou, targeting to meet the increasing litigations amid the country's boosting innovations, improving the trial level and strengthening the legal protection of IP. The courts have the same the trial grade with the local intermediate people's court.
D. Awareness-Building and Education
The Chinese government highly emphasizes improvement of the awareness of Intellectual Property Protection (IPR) in all levels of society. On August 9, 1999, the Chinese delegation at WIPO proposed the adoption of the "World Intellectual Property Day". Diverse activities are held by the IP authorities every year around April 26th to attract ordinary people's attention to IPR. Several law schools offer programs or degrees focused on intellectual property.
The National People's Congress of the P.R.C.: http://www.npc.gov.cn/englishnpc/news/
State Intellectual Property Office: http://www.sipo.gov.cn/
National Copyright Administration: http://www.ncac.gov.cn/
General Administration of Customs: http://www.customs.gov.cn/publish/portal0/
China Internet Network Information Center: http://www.cnnic.net.cn
Ministry of Agriculture: http://www.moa.gov.cn/
State Forestry Administration: http://www.forestry.gov.cn/
Administration for Quality Supervision, Inspection and Quarantine: http://www.aqsiq.gov.cn/