Outline of the Legal and Regulatory Framework for Intellectual Property in the People's Republic of China (PRC)
Prepared by WIPO © 2011
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 and etc., which are issued by an executive agency or by a local People's Government.
According to the Legislation Law of the PRC, 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 and 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. What this means is 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 shall 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 Administration on Industry and Commerce (SAIC)
The Trademark Office under SAIC maintains authority over trademark registration and enforcement of trademark protection. 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.
2. 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, as well as coordinating domestic foreign-related IPR issues involving copyrights, trademarks and patents. Provincial offices generally handle the administrative enforcement of patent complaints.
3. National Copyright Administration (NCA)
NCA is responsible for copyright administration and enforcement. 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. Copyright owners can also voluntarily register with NCA to establish evidence of copyright ownership.
4. General Administration of Customs (GAC)
GAC is responsible for customs measures of IPR. 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.
5. 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 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.
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.
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 NPC and promulgated by the President on March 12, 1984, and amended 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 Regulations 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 to Examination of Patents in PRC for use by patent attorneys, agents, and examiners.
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 twice, the latest on October 27, 2001, contains 64 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 Regulations for the Implementation of the Trademark Law of the People's Republic of China, which was issued by the State Council on August 3, 2002. The third draft amendment to the Trademark Law has been released for public comments and will be submitted to NPC for review in the near future.
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.
5. Undisclosed information
Undisclosed information (trade secrets) has been traditionally protected under the Law of the People's Republic of China Against Unfair Competition. It is also covered by some other specific regulations, such as Several Provisions on Prohibiting Infringements upon Trade Secrets.
6. Plant Variety Protection
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).
7. Domain Names
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 registration rules (CNNIC Rules for Implementation of Domain Name Registration) and dispute resolution rules (Rules for CNNIC Domain Name Dispute Resolution Policy).
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 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.
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.
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.
(1) Wikipedia page of Law of the People's Republic of China (http://en.wikipedia.org/wiki/Law_of_the_People's_Republic_of_China), last visited on Dec 13, 2010.
(2) Website of State Intellectual Property Office of the P.R.C. (http://www.sipo.gov.cn/sipo_English/index.html), last visited on Dec 11, 2010.
(3) Website of Trademark Office of State Administration on Industry and Commerce of P.R.C. (http://18.104.22.168/english/index_e.asp), last visited on Dec 13, 2010.
(4) Website of The National People's Congress of the P.R.C. (http://www.npc.gov.cn/englishnpc/news/), last visited on Dec 13, 2010.