10 Years of IP Development: From Worship to Practical Use

2012/6/7By Anne Zhang, China IP,[Comprehensive Reports]

As the Dean of the IP School of Shanghai University, Professor Tao Xinliang has been engaged in IP law study, teaching and practice for more than 20 years. Considering himself as a “pioneer” in the IP industry, Prof. Tao has been playing a multiple role—“a teacher yet a lawyer, a scholar yet a practicer,” as he said. For many years, Prof. Tao has devoted himself to both the study of China’s IP laws and the actual practice and has achieved deep attainments in both fields.
 
Invited by the National Copyright Administration of the People’s Republic of China (NCAC), Prof. Tao is now one of the consultants for the third amendment of China’s Copyright Law. China IP conducted this interview with Prof. Tao when he came to Beijing to attend the Expert Seminar on the 3rd Amendment of the Copyright Law (Seminar), and discussed with him the improvements in China’s IP law environment and the enhancements in people’s IP awareness after China joined the WTO.
 
China IP: By far, China has become a WTO member for over a decade. Comparing with the former two law amendments, do you have any different feelings this time in the Seminar?
 
Prof. Tao: China has entered the WTO for 10 years. During the time, China’s IP industry got both praise and blame. The ongoing amendment is the first time China undertakes a Copyright Law revise actively after its accession to the WTO. In the past, China’s Copyright Law has gone through two amendments: one of them took place in 2011 to meet the needs of joining the WTO, and the other happened in 2010, aiming at solving the WTO related disputes. In short, the former two amendments were all motivated by external pressures and needs. However, it’s a different story this time. There is not any obvious, real-time or high-pressured diplomatic reason. This time, the revise of the Copyright Law insists on keeping in line with the principles of “independent, balance and international,” emphasizing on inspiring innovation and promoting the development of the copyright industry. As a result, it is expected that the law should aim at balancing the interests of different parties under China’s current conditions as well as following the international trend. Meanwhile, it is also hoped that the law would keep a close relationship with the new situations on the network so that it would be predictive to a certain extend.
 
In this Seminar, the three drafts prepared respectively by the NCAC authorized three expert teams came out. It was predicted that before long, the NCAC will pass a final draft which is a integration of the three drafts to the Legislative Affairs Office of the State Council P. R. China in order to solicit opinions publicly, including solicit opinions through the network. The examples of other countries show us that the Copyright Law may be the most frequently revised IP law. There are also people inquiring whether there will be a big change this time. It seems that there won’t. On the one hand, China’s legislation mechanism tends to make a mountain out of a molehill. On the other hand, China’s Copyright Law has lived up to the international standard. As a result, there is little to be added and the law is hard to be improved. In the contrast, the amendment may even enter the “high speed” legislation process based on the principles of “active in attitude, integrate in amendment, limit the revising scope and speed up the revising process.”
 
China IP: Do you think becoming a WTO member have positive meanings in accelerating China’s legislative process? Could China adapt to the rapid change in IP law after entering the WTO smoothly? And how would you like to evaluate China’s current IP legal system?
 
Prof. Tao: Ten years ago, China amended its Patent Law, the Copyright Law and the Trademark Law in a large-scale in order to meet the standards of the WTO. That was a significant improvement in China’s IP-related legal construction work. At that time, there were people saying that the large-scale law amendments were a “high” price to be paid for entering the WTO. And my responses were: “Even if the price is high, we should pay it without any hesitation when we can afford it. Otherwise, there may mot be a second chance for us to do so in the future. Besides, as long as we can afford it, we can surely make the best of it.” Indeed, up to now, China has accommodated perfectly to the rapid changes which have happened to China’s IP system after its accession into the WTO. In retrospect, over the last ten years, IP issues not only hindered back and blocked China’s development, but also played the role of catalyst and accelerator. IP protection is not just an alternative when we are in need of improving China’s investment environment or facing with diplomatic pressures. Instead, it should be the inner need and a long-time mechanism for the ever upgrading industries and technique innovations. The world is always developing, and so is China. Since it joined the WTO, China has been devoted to improving its IP system through cooperation and competitions with the other countries. Comparing with 10 years ago, China and Chinese enterprises had improved, rather than reduced, their comprehensive IP power and the ability of upholding IP rights. Consequently, China ranks higher in the world IP field nowadays. Moreover, China has mapped-out and begun implementing its national IP strategy. The IP strength of Chinese enterprises has also been enhanced; a lot of enterprises capable of competing with strong IP rivals on the international stage have mushroomed, such as Huawei and ZTE. Till now, China has become a remarkable IP country, and although we still can’t say that China has been strong enough, we must acknowledge that China has accumulated noticeable IP power and potential. This provides strong evidence in proving that China did a rather good job in deciding to accelerate the IP legislation process a decade ago when it joined the WTO.
 
Currently, the construction of the IP legal frame of China has been basically finished. However, there are still rooms for improvement, such as furnishing the detailed rules and keeping in pace with time. And although the enforcement of IP laws has been reinforced, it is still necessary to pay special attention on two aspects—combating counterfeits and preventing infringements. In addition, the already started popularization of IP laws should be further implemented in creating an atmosphere of protecting IP and promoting people’s awareness of IP management. In further retrospect, I personally assume that there are little to be added to the current law provisions, but a lot to do in advancing with the times. Take the most challenging field—the protection of IP on the network for example. In this aspect, China and the developed countries such as America, Japan, and the Europe countries are now standing on the same starting line. And since there are more netizens in China, China may have more rights to speak on this issue. Therefore, as to the law development concerning the network, we are looking forward for China to take more responsibilities and play a leading role.
 
China IP: Do you think there’s any conspicuous change in people’s understanding of IP after China entered the WTO?
 
Prof. Tao: Ever since China’s accession to the WTO, changes have taken place to China, Chinese enterprises and the public. People’s attitudes toward IP have changed step by step from passive reaction to active protection. And the IP awareness of the whole society has been increasing too. I can still recall that when China just joined the WTO, most citizens and enterprises tended to accept the concept of IP and its relative protection systems passively. Indeed, at that time, most of the citizens simply have no idea what “IP” means, let alone its management and usage. However, ten years later, a large amount of Chinese enterprises and citizens began to realize that IP has become one of the most important weapons in competitions and games between countries and enterprises, that IP is the most significant major resource, and that “IP serves as tools rather than toys to play with or something divine to be worshipped.” In short, “to enterprises, IP serves more like a book on the art of war than the Holy Bible.” Thus, they began to cultivate and apply with their IP, and learn to manage and make the best out of it gradually as what the ancient Chinese General Sun Tzu did with his army. However, comparing with the total sum, the number of enterprises which have begun to use and protect IP is still relatively few, and their average management level is low.
 
The IP cultural atmosphere and the awareness of managing IP are still waiting to be improved in China. I once listened to a discussion among a few talented young men from transnational corporations in a conference. They said that if we choose 100 people randomly on the street of different cities and ask every single person 100 questions on IP, then people from Beijing, Shanghai and Shenzhen would definitely gave better answers than people from New York, Paris, Berlin and London because China held the most activities on IP which covers the most people and China also published the most IP related books. I agree with them. However, I feel regret at the same time for that the activities in China are mostly like shows and lacking of actual effects, and the IP protection projects usually become the tool for government officers to accumulate achievements in their career or just a game of the “number.” I believe that the goal of these projects and activities should be cultivating the IP culture, while the key of cultivating such a culture lies in promoting the idea of “improving the management of one’s own IP and respect in all aspects other’s IP.” IP protection should never be treated as a tool or a toy. The government and enterprises should shift their attention from “quality” to “quantity,” cultivate and create decisive patent and other critical IP and establish and improve the core competitive power of Chinese enterprises and even the country.
 
China IP: As one of the promoters and research scholars of the National IP Strategy (Strategy), do you think there was an inner relationship between the drafting of the Strategy with China’s accession to the WTO? How should we understand the chief guidelines of the Strategy?
 
Prof. Tao: The mapping of the Strategy enjoys a close relationship with China’s WTO membership. In my opinion, there are three reasons for the making of the Strategy: first, China joined the WTO, an organization to which IP serves as a main element. The urgent need of adapting to the WTO’s IP framework and participating in trade activities involving IP both at home and abroad under the WTO framework made it necessary for China to laying out such a Strategy. Secondly, a few years ago, Japan launched its own Japan IP Strategy Outline, and China wanted to follow the successful example to take off in the IP field. Thirdly, at that time, preparing an IP Strategy was the cessation and the hope of various fields, including the government, the industries and the scholars. So the Strategy bears an innate relationship with China’s accession to the WTO. Up to now, China has launched only a few “strategies,” e.g. the Science and Education Strategy, Talent Strategy and Sustainable Development Strategy. Sometimes, even I will wonder if China hadn’t been a WTO member then, would the Strategy be mapped out so passionately and urgently. Having participated in drafting the Strategy was a big honor to me since I was one of those called for launching such a strategy. During the preparation of the Strategy, I took part in the research work of many subjects concerning the Strategy, and acted as an expert in the reviewing board of several other subjects. Moreover, I along with Prof. Zheng Sicheng, Wu Handong and Chen Meizhang subscribed our expert proposals of the draft of the Strategy respectively in the general subject. According to my recollections and feelings, in the drafting of the Strategy, the experts always bore in mind the WTO related international IP backgrounds and the detailed elements such as how to fulfill China’s promises as WTO member.
 
The true essence of IP lies in its effective enforcement and positive affect, therefore the chief guidelines of the Strategy are “encouraging innovation, effective usage, protect by law and scientific management.” Among the guidelines, innovation is the source of IP; usage is the final goal; protection describes measures must be taken and management serves as the foundation of all. The four points are complementary to each other. The general goal of the Strategy is a picture in which “the legal environment of IP is improved, the market entities’ abilities of creating, using, protecting and managing IP is enhanced, the awareness of IP is increased, the quality and quantity of IP are sufficient in supporting the construction of a new China, and IP’s positive influences on China’s economic development, cultural enrichment and society construction are fully displayed.” After China’s accession into the WTO, the experience of the government and the enterprises has made it clear that IP is a double-edged sword, which can serve both fair competitions and unfair ones. The reasons and the aims of the Strategy are all about how to enforce IP effectively and fruitfully.
 
China IP: You have been engaged in the teaching work of IP for many years, how do you evaluate the IP personnel training and personnel needs in China over the last ten years after China joined the WTO?
 
Prof. Tao: I was majored in Metallurgical Engineering in my college years and received my master degree of Engineering and Engineering Management in Fudan University. However, 25 years ago, I became one of China’s first patent agents and began to learn about IP comprehensively. 18 years ago, I took part in the establishment of the IP School in Shanghai University and had been devoted to teaching ever since then. Comparing with what it was when China just became a WTO member, the cultivation of IP talents in China has achieved great progress. For example, there used to be only a few colleges and universities having their own IP Schools (in 1993 and 1994, Peking University and Shanghai University established their IP Schools respectively, while Renmin University and Huazhong University of Science and Technology possessed IP research centers). However, I learned in recent years that there have been 22 IP Schools and more than 60 IP research centers in China’s universities and colleges, the number is still increasing. Today, most of China’s universities and colleges are training IP talents in law schools while some of them training IP personnel in schools of management. We used to be responsible for a research titled “China’s IP Personnel Training Analysis and relevant Development Strategy” when preparing the Strategy. According to our prediction, by the year 2020, China will be in need of 70-80 thousand IP talents, and over 75% of them will be working in the governmental departments and enterprises managing IP.
 
Currently, there are mainly three disconnections in the training of IP personnel and need to be improved with effort: first, the disconnection between theories and practices. Some enterprises reflect that “the IP talents trained by the universities can’t be trusted with practical tasks, while the talents we need to take care of our IP seems simply cannot be trained just by the universities.” They hope that in the future, the universities and colleges would take more approaches to cultivate talents, and enhance their students’ practical abilities. Secondly there comes the disconnection between the lessons and the needs. The most urgently needed talents at present are those who with business thinking, managerial competence, legal knowledge and some engineering backgrounds. However, most talents cultivated by the universities are specialized only in IP laws. They wish that from now on, the universities can cultivated more complex talents. The third one is the disconnection between talents “import” and “export.” Over the last ten years, a large percentage of excellent IP talents that China has cultivated chose to go abroad or working for foreign companies. It is natural, of course, for people to choose their own careers. However, it is still hoped that some of them will come back to work for Chinese enterprises, and devote their knowledge and experience to the promotion of IP in China. We just hope to seem a more balanced flow of talents.
 
(Translated by Monica Zhang)

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