The War on Fakes and Infringement

China continues its fight to protect intellectual property rights and crack down on counterfeiting By Lan Xinzhen

The War on Fakes and Infringement

China continues its fight to protect intellectual property rights and crack down on counterfeiting By Lan Xinzhen

China has been making strenuous efforts to uphold intellectual property laws and individual’s ownership rights. The latest steps in its war on knockoff products and IPR violations were announced on December 13 by Vice Minister of Commerce Jiang Zengwei.

The Ministry of Commerce (MOFCOM),Jiang said, is urging various local governments to set up special departments and task forces to combat counterfeits and IPR-related crimes. The long-term goal is to establish a more concrete mechanism to address piracy and protect property rights.

“Compared to special campaigns we carried out in the past, a routine mechanism will be created as we search for a permanent cure to this problem,” Jiang said.

To improve China’s pattern of protecting IPR, Jiang said, the country has revised and improved relevant laws and regulations,making them more feasible and pertinent, and upgraded those practicable judicial interpretations into laws. China has also increased the amount of fi nes against IPR infringement and counterfeits, and improved the civil evidence rules to facilitate right holders in presenting evidence.

In 2010 the State Council set up the National Leading Group for Combating IPR Infringement and Counterfeits. From October 2010 to June 2011, 156,000 cases were registered nationwide, involving an amount of 3.43 billion yuan ($541.86 million), with 9,135 underground production facilities and distribution channels destroyed.But eradicating the problem altogether will take time, Jiang said, especially since China is engaged in a massive industrialization and urbanization process. The country’s economic and legal systems also need to be improved to facilitate rapid progress on addressing the IPR issue.

PROTECTING COPYRIGHTS: IPR protection authorities in Changchun, Jilin Province, destroy pirated publications on April 26, World Intellectual Property Day

“This is going to take some time.Therefore, we need to establish a concrete mechanism to eliminate this problem altogether,” Jiang said.

China’s way

Most countries worldwide rely on the judicial process to protect IPR. In China, based on its actual situation of administrative and judicial systems, an IPR protection mechanism connecting both administrative and criminal justice measures is adopted.

Strengthening connections between administrative law enforcement and criminal justice departments will involve cooperation and collaboration among related government departments and courts at various levels, according to MOFCOM.

When administrative law enforcement departments discover IPR infringement and counterfeits, they should report to the public security department for investigation, and the latter should decide whether to accept the cases. Local governments at the county level or above should establish mechanisms to consult on IPR infringement and counterfeits.The judicial department should support administrative law enforcement departments in how to handle the case.

Some countries think China’s mechanism is effective; others think that although administrative measures are swift to handle cases involving IPR infringement and counterfeits,IPR-related crimes cannot receive due legal punishment with only simple administrative penalties.

The Central Government has also incorporated combating IPR infringement and counterfeits into the performance assessment mechanism for local governments. MOFCOM has been trying to increase publicity on IPR protection to enhance public awareness against IPR violations. It also encourages the public to report cases involving IPR infringement and counterfeits, offering cash incentives for those who turn in IPR violators.

Meanwhile, MOFCOM has accelerated establishment of the integrity system to encourage integrity among businesses and individuals to abide by laws on protecting IPR.

According to Jiang, China will establish an information-sharing platform for connecting administrative law enforcement and criminal justice. Those departments that reject coordination between administrative law enforcement and criminal justice will be held responsible.

China has also strengthened international cooperation, establishing IPR-related cooperation mechanisms with the United States, European Union (EU), Japan,Switzerland, Russia and other countries and regions. At the 22nd Joint Commission on Commerce and Trade (JCCT) meeting held on November 21, China and the United States signed Sino-U.S. Intellectual Property Rights Cooperation Framework Agreement, agreeing to strengthen exchange and cooperation on the issues both sides are concerned about.

Foreign right holders

In China, foreign enterprises and individuals are protected under Chinese laws. MOFCOM,the General Administration of Customs,the State Administration of Industry and Commerce and the State Intellectual Property Office have all kept their doors open to foreigners who wish to file complaints against IPR violators.

According to Jiang, during the special campaign on combating IPR infringement and counterfeits from 2010 to 2011, MOFCOM held discussions on protecting IPR of foreign companies, exchanging views with foreigninvested enterprises and foreign organizations in China and collecting feedback. Rights holders can also issue complaints via the Quality Brand Protection Committee of the China Association of Enterprises With Foreign Investment.

China has also discussed and exchanged views on hot IPR issues through IPR working groups with the United States, EU, Japan and other countries, as well as the dialogue mechanism with the EU.

In the past year, China has investigated a number of cases infringing on foreign right holders. For example, the Shanghai Public Security Bureau cracked a case of pirate software by destroying two hideouts that had produced pirated software of Windows 7 and cut off more than 1,000 pirate software download websites.

However, China’s efforts sometimes go unacknowledged.

“It seems that criticizing China is very easy, but introducing China fair-mindedly is difficult,” said Li Chenggang, Director of the Department of Treaty and Law of the MOFCOM.

Li said after 30 years of unremitting efforts, China has obtained obvious achievements, and international community should value these achievements.

In October 2011 the MOFCOM organized China’s IPR authority to visit the United States and introduce China’s IPR protection measures.

“Some American friends persuaded us not to go, because in the United States, the public believes China is a nation of IPR pirates, and people there would throw tomatoes at us,” Li said.

Li went anyway, and no vegetables were thrown. On the contrary, they won applause for their frankness and sincerity,Li said. Top officials of the Office of the United States Trade Representative have officially invited China for the activities next year.

“Only by deepening exchange and cooperation can we continuously enhance mutual understanding, eliminate misunderstanding,resolving conflicts and creating a win-win situation,” Li said.