The People’s Republic of China has made great strides towards a commercial rule of law in regard to intellectual property law. International law has helped raise the bar for the protection and enforcement standards of intellectual property law in China. Now, that China has realized the potential of intellectual property law for innovation, culture and commerce it has become a vocal advocate in international law fora to reform intellectual property law in line with their ideas about Traditional Knowledge.
Guest blog by Dr. Danny Friedmann, researcher and lecturer of Intellectual Property Law based in Hong Kong.*
The People’s Republic of China (China) has made great strides towards a commercial rule of law in regard to intellectual property law. International law has helped raise the bar for the protection and enforcement standards of intellectual property law in China. Now that China has realised the potential intellectual property law has for innovation, culture and commerce, it has become a vocal advocate[1] in international law fora to reform intellectual property law in line with their ideas about Traditional Knowledge.[2]
According to the General Principles of Civil Law,[3] the treaties China concluded or acceded to have priority over domestic legislation that deviates from these treaties. One can argue that with the promulgation of the third amendment of the Patent Law in 2009,[4] China is no longer just a follower of intellectual property standards that were imposed by multilateral treaties, but is increasingly becoming a trend-setter of intellectual property standards with Chinese characteristics, especially in regard to Traditional Knowledge.
Before the 1880s, several jurisdictions tried to raise standards of protection and enforcement of intellectual property via bilateral agreements. However, in the 1880s two international conventions were signed that harmonized the field of intellectual property law to a great extent. In 1883, the Paris Convention for the Protection of Industrial Property (Paris Convention) was signed,[5] and the members formed a Union for the protection of industrial property.[6] And in 1886, on the instigation of the author Victor Hugo, who founded the still existing Association Littéraire et Artistique Internationale,[7] the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) was completed.[8]
China acceded to the Paris Convention in 1984[9] and Berne Convention in 1992.[10] These conventions refer to the International Court of Justice (ICJ) to settle disputes,[11] but countries could not be compelled to use the ICJ for the resolution of a dispute. The ICJ has never been used for the resolution of intellectual property related disputes.
China acceded to the Agreement establishing the World Trade Organization (WTO) in 2001, of which the Trade-related Aspects of Intellectual Property Rights (TRIPS), is an integral part. Article 2 TRIPS incorporates many of the obligations under the Paris Convention and Berne Convention.[12] Furthermore, TRIPS benefits from the binding dispute settlement mechanism of the WTO.[13]
Despite China’s assurance that at the moment of WTO ascendance it would meet the minimum standards set by TRIPS, some countries were frustrated by the enforcement level of intellectual property in China. These countries with a high level of protection and enforcement of intellectual property wanted to further raise the standard, and agreed to TRIPS plus provisions in bilateral agreements and implemented such provisions in their national legislations.
In 2001, China also acceded to the International Covenant on Economic, Social and Cultural Rights (ICESC). This covenant includes Article 15 which on the one hand obliges member states to protect intellectual property, and on the other hand to recognize the right of everyone to benefit from these intellectual property rights; by taking part in cultural life and enjoy the benefits of science.
Due to China’s Confucian preference to first develop collective rights over individual rights, China is innovatively trying to protect Traditional Knowledge, including Traditional Chinese Medicine, against, for example, bio-piracy.[14] An instance of Bio-piracy was when bio-technology company Monsanto tried to patent a natural gene sequence originating from a wild Chinese species of soy.[15] To prevent such future incidences of appropriation, China’s patent law now includes a protection clause for genetic resources[16] and a source indication clause.[17] In general, Traditional Knowledge, such as the often millennia old Traditional Chinese Medicine in China falls in the public domain and cannot be patented, since it lacks novelty or an inventive step. However, in 2002 China started a database for “Traditional Chinese Medicine patents”, in itself an oxymoronic term. The database for Traditional Chinese Medicines patents included formulas, bibliographic records and the holders, compiled by the State Intellectual Property Organization of China, that have been published between April 1985 and December 2002.[18] In the WIPO forum, China advocated to create a legal presumption of ownership on the part of Traditional Knowledge of the holder with its Traditional Knowledge rights system.[19] In the WTO forum of the TRIPS Council, China, Brazil, Colombia, Ecuador, India, Indonesia, Peru, Thailand, the African Caribbean and Pacific Countries (ACP) Group and the African Group, proposed a new provision for TRIPS, Article 29bis, which would implement the fair and equitable sharing of the benefits that arise from the utilization of genetic resources.[20] So far, neither the WIPO forum nor the TRIPS Council forum, reached a consensus on the Traditional Knowledge-related issues.
*About the author: Dr. Danny Friedmann is a researcher and lecturer of Intellectual Property Law based in Hong Kong. Danny Friedmann is the author of the intellectual property monograph 'Trademarks and Social Media, Towards Algorithmic Justice' (Edward Elgar Publishing, September 2015). His blog 'IP Dragon' (http://ipdragon.org), gathers and shares information about intellectual property law in China since 2005. Click here for a selection of published works of Dr. Danny Friedmann.
[1] See here an overview of TRIPS Council communications on Article 27(b)(3) Trade-Related Aspects of Intellectual Property Rights, which demonstrates China’s commitment to Traditional Knowledge, available at: https://www.wto.org/english/tratop_e/trips_e/art27_3b_e.htm.
[2] WIPO’s definition of Traditional Knowledge includes Genetic Resources and Traditional Cultural Expressions. See here: http://www.wipo.int/tk/en/.
[3] Article 142(2) General Principles of the Civil Law of China: If any international treaty concluded or acceded to by the People's Republic of China contains provisions differing from those in the civil laws of the People's Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People's Republic of China has announced reservations. General Principles of the Civil Law of China, adopted at the Fourth Session of the Sixth National People's Congress on April 12, 1986 and promulgated by Order No. 37 of the President of China on April 12, 1986 and became effective on January 1, 1987.
[4] Patent Law amended for the third time in accordance with the Decision of the Standing Committee of the Eleventh National People's Congress on Amending the Patent Law of the People's Republic of China at its 6th Meeting on December 27, 2008 and became effective on October 1, 2009.
[5] Paris Convention was signed on 20 March 1883, by Belgium, Brazil, France, Guatemala, Italy, the Netherlands, Portugal, El Salvador, Serbia, Spain and Switzerland, and ratified on June 6, 1884 and went into effect June 7, 1884 and is still in force.
[6] Industrial property are all intellectual property rights except for copyright/author’s rights.
[7] See http://www.alai.org/en/.
[8] Berne Convention was signed on 9 September 1886, by Belgium, France, Germany, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia, and the United Kingdom, and ratified on September 5, 1887 and went into effect on December 5, 1887, and the convention is still in force.
[9] China acceded to the Paris Convention on December 19, 1984 of which the obligations went into effect on March 19, 1985.
[10] China acceded to the Berne Convention on July 10, 1992 of which the obligations went into effect on October 15, 1992.
[11] Article 28 Paris Convention; Article 33 Berne Convention.
[12] Article 2 TRIPS: (1) In respect of Parts II, III and IV of this Agreement, Members shall comply with Articles 1 through 12, and Article 19, of the Paris Convention (1967). (2) Nothing in Parts I to IV of this Agreement shall derogate from existing obligations that Members may have to each other under the Paris Convention, the Berne Convention, the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits.
[13] China - Measures Affecting the Protection and Enforcement of Intellectual Property Rights - Understanding between China and the United States Regarding Procedures under Articles 21 and 22 of the DSU
WT/DS362/15, 13 April 2010. China - Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products - Joint communication from China and the United States
WT/DS363/19, 11 May 2012.
[14] Convention on Biological Diversity. China signed this convention on June 11, 1992, and ratified it on May 1, 1993.
[15] Jia Heping, “China faces uphill battle against ‘biopiracy’”, Sci Dev Net, July 27, 2002, available at: http://www.scidev.net/global/biodiversity/news/china-faces-uphill-battle-against-biopiracy.html.
[16] Article 5(2) Patent Law 2009: Patent rights shall not be granted for inventions that are accomplished by relying on genetic resources which are obtained or used in violation of the provisions of laws and administrative regulations.
[17] Article 26(5) Patent Law 2009: With regard to an invention-creation accomplished by relying on genetic resources, the applicant shall, in the patent application documents, indicate the direct and original source of the genetic resources. If the applicant cannot indicate the original source, he shall state the reasons.
[18] Online Databases and Registries of Traditional Knowledge and Genetic Resources, WIPO, available at: http://www.wipo.int/tk/en/resources/db_registry.html.
[19] WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Eighth Session Geneva, June 6 to 10, 2005, available at: www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_8/wipo_grtkf_ic_8_7.doc. See also Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore established in 2000 by the WIPO members. In 2009 they agreed to develop an international legal instrument (or instruments) that would give traditional knowledge, genetic resources and traditional cultural expressions (folklore) effective protection. Traditional Knowledge and Intellectual Property – Background Brief, WIPO, available at: http://www.wipo.int/pressroom/en/briefs/tk_ip.html. See the different Draft Provisions/Articles for the Protection of Traditional Knowledge and Traditional Cultural Expressions, and IP & Genetic Resources, WIPO, available at: http://www.wipo.int/tk/en/igc/draft_provisions.html.
[20] Draft Decision to Enhance Mutual Supportiveness Between the TRIPS Agreement and the Convention on Biological Diversity, Communication from Brazil, China, Colombia, Ecuador, India, Indonesia, Peru, Thailand, the ACP Group, and the African Group, WTO Trade Negotiations Committee, TN/C/W/59, April 19, 2011, available at: http://docsonline.wto.org/imrd/directdoc.asp?DDFDocuments/t/tn/c/W59.doc.