SC NDC No. (1994)38
Intellectual property protection is a component part of China’s reform and opening up policy and an important system for promoting the prosperity and development of scientific, technological and cultural sectors and ensuring the normal operation of the socialist market economy. In order to adapt to the international trend of integration of science, technology and economy and to the objective requirement for quick restoration of China’s status as Contracting Party of GATT, China has in recent years speeded up intellectual property legislation and successively promulgated laws such as the Trademark Law of the People’s Republic of China, the Patent Law of the People’s Republic of China, the Law of the People’s Republic of China on Technology Contracts, the Copyright Law of the People’s Republic of China and the Anti-Unfair Competition Law of the People’s Republic of China, which have begun to connect with international standards and have played a positive role in promoting reform and opening up as well as the construction of modernization in China. Because China has not yet established its intellectual property system for a long time, intellectual property consciousness of the whole society is relatively weak, in some regions and entities; the importance of protecting intellectual property protection is not sufficiently understood. A number of grave infringements have not only damaged the lawful rights and interests of intellectual property right owners but also the dignity of the law. In order to realistically strengthen intellectual property protection work and ensure the law enforcement, the following decision is formulated.
1. Perfecting the intellectual property system and realistically strengthening intellectual property protection work, are important contents of the current deepening of complementary reforms in the scientific, technological and economic fields and expanding the scope of opening to the outside world, and also basic demands for the establishment of a socialist market economy system and the realization of connection with the world economy. All levels’ People’s Governments have to fully understand the importance of the intellectual property system in moving forward scientific and technical progress and economic development, correctly handle the relationship between local interests and overall interests, immediate interests and long-term interests, place intellectual property protection strengthening on the agenda of important matters in scientific, technical, economic and cultural work, comprehensively use legal, economic and administrative means to induce enterprises, scientific research institutes and work units of higher education (referred to below as enterprises and work units) to adopt effective steps to protect their intellectual property while fully respecting others’ intellectual property, move the whole society to foster the good habit of respecting and protecting intellectual property, to create a favourable environment and conditions citizens, enterprises and work units, to produce inventions, creations, and literary and artistic works as well as for foreign-related scientific, technical, economic and cultural cooperation and exchange.
2. Intellectual property protection is a comprehensive work with many aspects such as legislation, judiciary, law enforcement and administrative management, and all relevant entities must support each other and cooperate closely to form a unified and harmonious intellectual property protection system. Recently, the National People’s Congress Standing Committee has examined and approved the decision on punishing crimes of copyright infringement, to increase the force of the law for stopping and punishing acts of intellectual property infringement. The State Council will pay close attention to the research and formulation of administrative regulations to carry out border steps concerning intellectual property protection. All levels’ administrative authorities and enforcing agencies for intellectual property shall strengthen their functions, maintain their staff at full strength and increase efficiency. At present, it is necessary to focus on reinforcing the staff of administrative copyright and enforcing agencies at all levels to ensure the effective implementation of the “Copyright Law of the People’s Republic of China”. In the process of performing their duties, the administrative intellectual property and enforcing entities will need cooperation of other enforcement agencies and administrative entities, and the relevant agencies and entities must lend their support unstintingly. In respect of major cases producing a great impact, the administrative authorities and enforcement agencies for intellectual property may investigate and deal with them jointly with the entities in charge of scientific, technological, economic, cultural, press, publishing, broadcasting, cinematic, television and public security affairs. It is necessary to support the People’s Courts to handle intellectual property cases according to law, to support the relevant People’s Courts to establish intellectual property divisions according to needs, and strengthen enforcement capacity, to guarantee that all sorts of intellectual property cases will be dealt with fairly and timely. In judicial and administrative enforcement, it is necessary to break down the barriers of local protectionism and departmentalism, abide by the principles of “Where there is a law to abide, it must be abided, law enforcement must be strict, lawbreaking must be prosecuted”, strictly enforce laws and regulations and investigate and prosecute all sorts if intellectual property infringement according to the law. Where circumstances of the infringing activities are serious and constitute a crime, the relevant persons must be prosecuted for criminal liability according to law to realistically guarantee the lawful rights and interests of intellectual property rights owners as well as the unity and dignity of the socialist legal system. In order to further complete and perfect our country’s intellectual property management system and strengthen intellectual property macro-management and coordination, the State Council has decided to institute a State Council intellectual property meeting. All entities concerned must, in organizational reform, strengthen their intellectual property management mechanisms and sort out interdepartmental relations, under the framework of constructing in China a system of administrative management and judicial protection operate “in parallel” to increase the force of intellectual property protection.
3. It is necessary to energetically strengthen supervision and inspection of intellectual property law energetically and develop a mechanism combining routine supervision with inspection of key sectors. The State Council will intermittently organize the various administrative entities and enforcement intellectual property entities, together with the entities concerned with scientific, technological, economic, cultural, press, publishing, broadcasting, cinematic, television and public security matters, to carry out joint inspections of the situation in various regions and entities regarding intellectual property law implementation, focusing on investigating and dealing with a number of significant intellectual property infringement cases with a great impact, and to supervise local authorities in combating such phenomena as laxity in law enforcement and leniency in punishing infringing activities. This is to be shaped gradually into a system to ensure effective intellectual property law implementation. At present, the focal point of supervision and inspection is to put the audiovisual product and computer software market in order. The administrative copyright and industry and commerce entities at all levels must cooperate closely, intensify their inspections and deal seriously with infringing activities of illegally copying audiovisual products and computer software.
4. In order to carry out the relevant provisions of the “Paris Convention for the Protection of Industrial Property” and the “Berne Convention for the Protection of Literary and Artistic Works”, acceded to by China, and to strengthen intellectual property protection in foreign economic relations and trade, it is necessary to enhance the function of Customs in protecting intellectual property and stopping import and export of infringing products, and to adopt necessary border steps to effectively stop import and export of infringing products. Customs must strengthen communication and cooperation with relevant entities and strictly carry out the intellectual property border steps according to law.
5. It is necessary to strengthen intellectual property protection work in the import and export of new technologies and new products. When an item of technology or a product is imported, a comprehensive it is necessary to completely find out the intellectual status of the relevant technology or product in order to avoid infringement disputes or other losses. Where an item of new technology or a new product is exported, proper inquiries must also be made with respect to intellectual property so that after the technology or product is exported it may not be copied by others or infringe the intellectual property of others. It is necessary to strengthen brand-name audiovisual products processing examination, approval and management using materials supplied by clients or imported and the manufacturing and distributing of such products in the form of joint ventures. Where an enterprise is entrusted by a foreign firm with such activities, it must find out through the relevant administrative intellectual property authority or service agency whether the foreign firm is the lawful proprietor of the particular intellectual property item and has the right to use it or not, the contract shall appoint, where enterprises performing the agreed processing or production and distribution of audiovisual products activities are accused of copyright infringement by a third party, defence duties as well as compensation duty where the accusation is established.
6. All sectors must take strengthening of intellectual property work as an important step for promoting scientific and technological progress and economic development within the sector. It is necessary to, according to the actual state of scientific, technological and economic development in the sector, vigorously develop sectoral intellectual property strategy and management research work in order guide to the adjustment of the product mix, scientific research and production of the whole sector. For those sectors with little autonomous research and development capacity, such as the pharmaceutical, chemical and computer software sectors, a preferential policy must be adopted to increase the input of funds for research and development and raise the capacity and level of autonomous research and development.
7. The controlling authorities for all science and technological development planning must take intellectual property work as an important link in the management of their plans and formulate a unified intellectual property strategy for implementation and development of the plans, and must especially strengthen research on investigation and analysis of intellectual property in the fields related to planning and the corresponding countermeasures, making intellectual property work running through the complete process of listing planning items, the resulting legal protection as well as the resulting commercialization, industrialization and internationalization.
8. Enterprises and work units must take intellectual property protection as an important content of establishing a modern enterprise system and a modern scientific research institutes system, raise their intellectual property scientific research institutes, abide by intellectual property laws and regulations, bring intellectual property protection strengthening into their own research, development, production, operation and internal management work, and shaping these into corresponding systems. Research and development of new techniques, new technology, and new products as well as the technical transformation of enterprises and work units must be closely combined with intellectual property work. They must use information on intellectual property to formulate correct strategies of research, development, production and operation and decide on an appropriate direction of research and technical line, raise the starting point, level and efficiency of research and development and avoid the emergence of unnecessary repetitive developments or arising of infringement disputes in scientific research and production.
9. All categories of sector associations in the scientific, technical, economic and cultural fields, together with specialized public organizations concerning intellectual property and socialized service organizations, are an important force in promoting implementation of intellectual property laws and strengthening intellectual property protection work. It is necessary to encourage and support the development of these organizations, guide them towards utilizing their flexible mechanisms and provide all sorts of intellectual property law consulting and other services to society. It is necessary to establish a number of intellectual property legal service organs to assist concerned parties in investigating infringing acts and evidence gathering so that the relevant disputes may be resolved through legal channels. The government entities concerned must fully develop vigour of these organizations making them become capable assistants of the administrative entities in protecting intellectual property.
10. At present, it is necessary to vigorously strengthen the training of intellectual property specialists and the widespread leading cadres and masses to propagate intellectual property protection work. Administrative intellectual property entities and science, technology, economy, culture, etc. entities must carry out in-depth propaganda intellectual property work in combination with the Second Five Year Plan for the Popularization of Legal Knowledge and strengthen intellectual property legal system education. The media must intensify intellectual protection reporting and fulfil satisfactorily propagation, education, and public opinion supervision work. Enterprise and work units must bring intellectual property law into their legal knowledge popularization educational plans. It is necessary to gradually raise the intellectual property protection consciousness and legal system sense in the whole society through deep, sustained propaganda and education, to create a desirable social environment favourable to intellectual property protection.
11. The relevant State Council entities may formulate, on the basis of this Decision, specific rules for strengthening intellectual property work in enterprises and work units.
国务院 国发(94) 38号 1994年7月5日