As part of the continuing efforts concerning regulatory reform in the cultural sphere, the SPC published a a number of guidelines for judges deciding intellectual property rights cases. He Tianxiang, who’s currently writing a Ph.D. concerning Chinese Internet copyright issues at the Maastricht University Institute for Globalization and International Regulation, was so kind as to offer his thoughts on the background and probable effect of this document.
On December 16, 2011, the Supreme People’s Court of Peoples Republic of China (hereinafter “SPC”) issued a new directive document entitled “Several Opinions of the Supreme People’s Court on Some Issues in Fully Giving Rein to the Function of Intellectual Property Rights Adjudication in Promoting the Great Development and Flourishing of Socialist Culture and Stimulating the Indigenous and Coordinated Development of Economy” (hereinafter “SPC Opinions”). It is a new major guidance for courts in China on how to deal with intellectual property cases.
This new directive document–“SPC Opinions”–considers the cultural development, scientific and technological progress and knowledge innovation, to be the basic drivers for promoting the transformation of economic development pattern and the indigenous and coordinated development of an economy. It serves as a guidance of judicial protection for intellectual property rights. But its real purpose is to deepen the reform of China’s cultural system and promote the development of China’s cultural industry, thereby raise China’s comprehensive national strength and international competitiveness.
Speaking in a news briefing, Jungong Sun, the news spokesman of the SPC-said the “SPC Opinions” is “an important directive document” for the purpose of “deeply implementing the spirit of The Sixth Plenary Session of the 17th CPC Central Committee (hereinafter “Sixth Plenary Session”) and the Central Economic Work Conference”, and “providing the judicial safeguard and service for the implementation of the ‘12th Five-Year Plan’ (hereinafter “FYP”) outline.” In the same briefing, Xiangjun Kong, the presiding judge of “Intellectual Property Division” of SPC-said the “SPC Opinions” is “all for the public interest.”
An important guideline named “Decision of the CPC Central Committee on Major Issues Pertaining to Deepening Reform of the Cultural System and Promoting the Great Development and Flourishing of Socialist Culture” (hereinafter “Cultural Decision”) which was passed by the Communist Party of China in the “Sixth Plenary Session,” deems culture as an important part of the country’s comprehensive competitiveness in today’s world. The main theme in the “Decision” is to boost China’s soft power and maintain “cultural security” following its ongoing economic boom.
This guideline is in a way connected to an important aspect of the 2011 Central Economic Work Conference: to ensure “stable and relatively fast” economic growth in 2012 and, in particular, to raise original innovation capacity, to strengthen intellectual property rights protection and to promote the flourishing and development of cultural undertakings.
In the 12th FYP, China is calling for steady efforts to boost cultural development and has pledged to speed up the transition of its economic model; scientific progress and innovation were believed to be the critical supportive elements.
The “Cultural Decision”, the report of the Central Economic Work Conference and the 12th FYP, together they formed the political background of the new “SPC Opinions”. The “SPC Opinions” has six chapters, in which topics like general requisitions, judicial policy and requirements for culture related intellectual property trials, protection for science and technology achievement, trademark protection, competition orders and the construction of intellectual property rights litigation system are well covered. Some really interesting topics and the highlights and problems of them are selected and discussed in this article, for the purpose of getting a full overview of the document.
Some aspects of the rules of culture-related trial of intellectual property rights have been specified as follows:
The Internet copyright infringement judgment rules are further specified in the “SPC Opinions”, including the clarification of the “notice and takedown” rules and the judgment of ISP liabilities. It also mentions that these rules should also “pay attention to stimulating information network technology innovation and commercial model development, guaranteeing the interests of the social public.” And for the first time, the SPC put forward judicial policies and principles for intangible cultural heritage protection, which sends a message that China is trying to stimulate the conversion of cultural resources into cultural competitiveness. The technology neutrality and “fair use” doctrine are also cited and further interpreted, to illustrate the importance of the harmonization and unification of protecting copyright with efficiency and stimulating technological innovation and industrial development. Some interpretations, like those about the “fair use” doctrine, allows the court to introduce the US “four factors model” into China’s “fair use” judgment regime, in some “special circumstances in which the necessity to stimulating technological innovation and commercial development appears.” It should be deem as a tentative response to the massive criticises about the inefficient and enumerative “fair use” doctrine in copyright law of China. We should never forget that the effect of it would be limited by the aforementioned condition, but still it is a praiseworthy improvement.
As they are especially related to science and technology achievement, the protection of patent rights is strengthened likewise. First of all, the judicial policy of appropriate leniency and severity in patent rights protection were introduced and further interpreted in the “SPC Opinions”; Furthermore, other than new product manufacturing process patent cases, the burden of proof rules in the process patent cases were also clearly interpreted in the “SPC Opinions”. That is, if “the patent holder is able to demonstrate that the alleged infringer has produced similar products, and it is impossible to prove with reasonable efforts that the alleged infringer has really applied a patented process, but according to the concrete circumstances of the case, integrating the already known facts as well as daily life experience, it can affirm that the possibilities that the similar products are produced with a patented process is very large, according to the relevant provisions of judicial interpretations on civil procedure and evidence, it is permitted to stop requiring the patent holder to provide further evidence, and the alleged infringer shall provide evidence that his manufacturing process is not similar to the patented process.”
Moreover, the judicial protection for trademarks is further strengthened. For instance, the judicial policies of trademark protection are further clarified. That is, “the protection of trademark rights must be beneficial to competition stimulation, to the distinction between commercial marks, to resisting malicious registration of other persons’ famous brands and ‘free riders of brands’, and to the provision of a harmonious and comfortable legal environment for famous brand innovation and development, providing assistance to fostering famous brands and raising enterprises’ overall competitiveness, promoting the accelerated transformation of our country from a large production country to a strong brand country.” Other topics like the legal scale of trademark similarity identification, standards for product similarity identification, well-known marks protection and the so-called “substantive resolution” of trademark disputes are well covered by the “SPC Opinions.” Most interestingly, in explaining the concept of “substantive resolution,” the “SPC Opinion” states that in order to provide clear guidance for the administrative unit at issue to remake a decision, the courts should make clear decision about “Where it is possible to make substantive judgements on whether or not the trademark should be granted registration or not, or where they should be cancelled or not, et cetera” in the grounds of judgment.
It is not merely a coincidence that the SPC chose to issue the “SPC opinions” around the exact date of 10th Anniversary of WTO Accession (11th Dec 2011), it represents a long lasting Chinese tradition to commemorate significant events by some tremendous actions after tenfold years passed, it also acting as a response to the WTO and TRIPs requirements about intellectual property protection, to show the progress China has made in fulfilling its international commitments.
Although we should believe in good intentions of the “SPC Opinions”, somehow its impact is being questioned. Actually, it seems that the whole concept of “the great development and flourishing of socialist culture” is giving out a possibly dangerous signal, that the courts will treat the foreign intellectual property right holders differently, because of the requirements of the socialist culture industry revival plan, and they certainly have nothing to do with socialism. However, the “SPC Opinions” we are discussing now, is only a directive document, a judicial interpretation with ambiguous guidelines. As a general directive document, the “SPC Opinions” only provides general guidelines but not specific directions on subtle matters，no doubt the language of the document is ambiguous. Interestingly, one of these ambiguous words, “Judicial Activism”, is a debatable term since its emergence in China academia in 2009. Moreover, the term certainly has different meanings in China than in countries it originated from. To incorporate such a term into the “SPC opinions” may cause some sort of uncertainty: one, the common understanding of the term is not well formed yet; two, the problems of the term which were pointed out by scholars during these years will certainly come along; three, the guidelines and slogans in the “SPC Opinions” are both in an abstract and vague form, which means, although the intent of the so-called “Judicial Activism” is to enhance judicial protection of intellectual property rights, its vulnerable and obscure nature may potentially cause new problems.
In addition, the “SPC Opinions” is just a judicial interpretation, a low-level document in the Chinese hierarchy of law. According to a reply of the SPC in 1986, “the so-called ‘SPC Opinions’ should be implemented, but better not quoted directly in legal documents.” That is to say, it will interfere with IPR adjudication in a general way rather than in a specific way. What’s more, it’s also very hard to separate foreign right holders from the revival plan of socialist culture in concrete decisions, because obviously, the protection of foreign right holders is not on the opposite side of the culture revival plan, on the contrary, to protect the foreign right holders is to protect the whole culture industry in the same way; and since the “SPC Opinion” is unquotable, the courts will still rely on the same legal regime to come up to a decision. However, it is very clear that the “SPC Opinions” is based on the Decision of the “Sixth Plenary Session” of CPC and the FYP of Chinese government, therefore the independence of the people’s courts is in doubt. It leads people to question whether justice can be served in people’s court while the government controls the country’s judicial system, or maybe, it’s just another form of democratic governance we should try to understand.
Therefore, although the “SPC Opinions” cause some doubts, they do represent the good faith of Chinese government in dealing with the dilemma in judicial protection of intellectual property rights. In addition, it helps in fulfilling China’s international commitments by setting up judicial guidelines and interpreting judicial rules, these measures ensure a healthy improvement of cultural industry, and hence establish a well constructed environment in which better protection for intellectual property rights can be provided.