China IP Law Association Initiates a Discussion: IP Protection and Innovation Under the Background of Globalization

By Doris Li, China IP,[Comprehensive Reports]

On June 3, the 2017 Annual Conference of IP Law Association of China with the theme of "IP Protection and Innovation Under the Background of Globalization" was held in Beijing. This conference is a grand gathering for China's IP industry and even for the whole legal profession, which has been held for five years. In this year's annual session, industry experts centred on the discipline construction and the fundamental theory of IP, IP and Civil Code, the development of IP courts, IP issues of sports events, e-sports and live broadcast, big data and the implementation of IP system, Patent Law, Trademark Law, Copyright Law, Competition Law as well as other issues related to IP.
 
Mr. Liu Chuntian, dean of IP Academy of Renmin University of China chaired the opening ceremony. Mr. Zhang Sujun, vice-president of China Law Society, Mr. Wang Chuang, deputy chief judge of IP Tribunal of the Supreme People's Court of China, Mr. Chen Hongbing, director of WIPO China Office, Mr. Wang Liming, executive vice president of Renmin University of China delivered remarks respectively. During the main forum, Mr. Jia Dongming, the director of the Civil Affairs Department of Commission of Legislative Affairs of the Standing Committee of the National People's Congress of China gave a keynote speech on "The Interpretation of General Principles of the Civil Law of the People's Republic of China", Mr. Daren Tang, the chief executive of IP Office of Singapore, and the chairman of the board of IP Academy of Singapore delivered his keynote speech on "The Development and Coordination of IP Under the Background of Globalization: RECP and TPP". After the opening ceremony, the guests presented awards to winners of IP Law Association annual "Outstanding Paper of Young Scholars".
 
The discipline construction and the fundamental theory of IP session
The discipline construction and the fundamental theory of IP session invited IP experts from many domestic universities, and they expressed their perspectives on the discipline construction and the fundamental theory of IP in China. 
 
Experts said that the operation of a set of IP system relied on the national system, the understanding of the close ties between IP disciplines and jurisprudence, as well as the development of a set of comprehensive knowledge system. We must develop the discipline construction on the basis of China's reality, and make breakthroughs in the current system of China with the attitude of respecting for history, respecting for science, and respecting for law.
 
Meanwhile, there are scholars putting forward different views that discipline construction and the fundamental theory of IP is based on IP rights, and should be initially discussed in the context of IP law.
 
IP and Civil Code session
In this session, experts said that the incorporation of IP into Civil Code should be a long-term process. According to the national strategic plan, it is a must to publish Civil Code before 2020. It will be hasty if we have to incorporate IP into the Civil Code. The significance of IP is beyond any doubt; however, based on the specificity of IP, we should not act in haste to incorporate it into Civil Code.
 
While, some scholars believed that it is precisely because of the long-term isolation of IP law that the development of Civil Law has been severely constrained. The disadvantages come from two parts: first, ignoring the new right material of IP rights, which adversely affect the summary of General Principles of the Civil Law; second, low level of abstract ability, which resulted in the lack of abstract thinking of civil right objects.
 
The development of IP courts session
Mr. Su Chi, the president of Beijing IP Court delivered a speech entitled To Practically Play the Judicial Effectiveness to Develop Professional World-Class IP Courts with Chinese Characteristics.
 
According to his speech, in 2016, Beijing IP Court accepted 10,638 cases and concluded 8,111 cases, which is two times more than initial expectation 4,500 cases. The average annual growth is about 15%. In general, first instance cases and administrative cases cover a large proportion, and so do foreign-related cases and technology-concerned cases with certain high social influence and attention.
 
In addition, Ms. Li Shulan, the vice president of Shanghai IP Court and Mr. Li Chisen, the vice president of Guangzhou IP Court respectively introduced the performance and objectives of Shanghai and Guangzhou IP Court since their establishment.
 
Competition Law related IP issues
Mr. Huang Wushuang, the dean of IP School of East China University of Political Science and Law, said that the Article 5 in Anti-Unfair Competition Law should not be over dependent. As for the question of commercialization rights, he considered that rules should be created with prudent thinking, and to solve the problem on the basis of maintaining legal stability.
 
Mr. Yang Ming, the professor of Peking University Law School, expressed his views on commercial secrets protection and noncompetition, and anti-monopoly of standards essential patent (SEP). He held the view that consideration is highly worthy of studying in noncompetition agreement. On the pricing by anti-monopoly patentees, he said, the question that needs to be considered is why the patentee could not price like this. SEP obligees asking for high prices is not in line with the reality of industry. In fact, they expect that others apply their SEP. For the compulsory license, he believed that pricing is the essence. Compulsory licensing of pricing is actually a market-based issue.
 
IP issues of sports events, e-sports, and live broadcast
In recent years, there i s an increasing concern of sports-events relevant legal issues, and existing cases have become hot topics as well. During the parallel session of this annual conference, participants launched a fierce debate on this issue.
 
One party believed that sports event programs should be protected under Copyright Law as works. Sports event programs are creative achievements with originality in the field of literary arts and science, which is in line with Chinese Copyright Law on the protection of the works.
 
The other side argued that Copyright Law classifies different types of works, including the judgment criteria of the originality, and different types of works have various levels of originality. There is no doubt that competitive elements should not be protected under Copyright Law. In the process of sports events live, the form of practice and the technical rules determine the lack of its free creation; thus, the standard of protection should be improved.
 
Big data and the implementation of IP system
Mobile Internet has characteristics of fans resources, and fans thinking, thus the resulting big data generates tremendous business value. The pursuit of business value will result in unfair competition concerning various Internet resources. Considering this kind of unfair competition, it will be of increasing difficulties in obtaining evidences, and in the judgment of malicious behaviour.
 
On this basis, Mr. Liu Mingrong, the technical director of Sogou Corp, Ms. Diao Yunyun, the deputy director of the litigation centre under the legal department of Tencent, Mr. Zhong Ming, the senior vice president of IPHOUSE, and other guests talked about problems in their own professions raised by big data, and shared experience.
 
Trademark Law Session
In this session, Ms. Xia Junli, the chief judge of IP Tribunal in Supreme People's Court, introduced the judicial policy of curbing the malicious registration of trademarks. She said that the prohibition of malicious registration of trademarks should be clarified by the application of laws in specific cases, guided by judicial policy through the publication of typical cases, referring to the publication of guidance cases in similar cases, and unified by the development of judicial interpretation.
 
Ms. Zhou Liting, a judge from Beijing IP court shared the practice of the regulation of malicious trademark registration. First, making the full use of law to stop the trademark registration with no intension to use; second, strictly applying the law, and taking comprehensive consideration of the subjective and objective factors to fight against malicious trademark registration; third, increasing the censorship on non-used trademarks for three consecutive years; fourth, enhancing the judicial initiative, effectiveness, and providing no protection on maliciously registered trademarks in civil cases; fifth, protecting the interests of legitimate applicants through the proceedings. She put forward that in the next step Beijing IP court would intensify the censorship, promote the practice of publishing agencies for maliciously registered trademarks in judgement document, strengthen the burden of proof of the trademark agencies in violation of Article 19, Paragraph 3 of Trademark Law, at the same time strengthen the cooperation with relevant departments to develop a joint force in fighting against malicious registered trademarks.
 
Copyright Law Session
Professor Wang Qian from the IP School of East China University of Political Science and Law started with Alpha Go, the current hot topic of artificial intelligence. He put forward whether artificial intelligence creation could be identified as a work under Copyright Law. By comparing artificial intelligence paintings and manual works, we could tell the high consistency of the appearance. However in the actual creating process, only individuals use their intelligence and wisdom, and express personality; thus, their works are with unique characteristics. Artificial intelligence generates its painting with the program based on the algorithm rules and templates, which lacks of personality as well as originality. By comparison, Wang Qian analysed the difference of artificial intelligence application and original creation; meanwhile, he pointed out that we should distinguish between the state should-be and the real state. Finally, Wang Qian proposed that we should analyse how Copyright Law faces with artificial intelligence works on the basis of current situation.
 
Patent Law Session
The fourth amendment of Patent Law is undoubtedly the focus of general attention. At this annual conference, Mr. Zhou Xiang, the chief judge of IP Tribunal in Supreme People's Court delivered a speech with the title Viewing the Fourth Amendment of Patent Law from the Judicial Practice, and talked about his thinking of the fourth amendment from the perspective of judicial adjudication. Mr. Zhou Xiang put forward a comprehensive proposal from the perspective of judicial practice for main problems in this amendment. He clarified that the legislative work should be conducted with the aim of "promoting innovation based on realizing the balance among the patentee, the infringer, as well as social and public interests.
 
In addition, industry experts and scholars also expressed different opinions on "the judge and ownership of service inventions". During the final review, Liu Kongzhong held that the study of service inventions ownership is beyond the scope of IP, and involves Labour Contract Law if detailed analysis is conducted. As for the patent subvention system, governmental subsidy policy is necessary, but should not be a longterm interference for the market; an "exit" mechanism is necessarily recommended.
 
(Translated by Yu Shiwen)
 

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