China and TRIPS

: diversification of intellectual property laws after harmonization

Abstract

After China incorporates TRIPS into its intellectual property laws, one may argue that China has been in line with the international standards in terms of the legal regime for intellectual property rights. However, it is clear that the infringement of intellectual property rights in China is growing rather than diminishing. To analyze this phenomenon, this thesis conducts a detailed study of China’s enforcement of intellectual property laws. The first section of the thesis investigates how the enforcement measure of TRIPS is implemented in China and how its administrative and judicial institutions function to deal with various intellectual property infringements. Particularly, the thesis is interested in looking into cases concerning legal issues not harmonized by TRIPS, such as patent claim interpretation, the standard of originality for copyright, copyright liability on the Internet, the protection of folklore, the similarity of trademarks, reverse passing off, disputes between a well-known trademark and domain name holders, the conflict of intellectual property rights, database protection etc. Moreover, the thesis investigates how criminal liability for intellectual property infringement is enforced in China. As a whole, this part shows the divergent legal principles in enforcing intellectual property rights in China after harmonization with TRIPS. Secondly, this thesis evaluates four factors that still impede the enforcement of intellectual property laws in China: the legal tradition, conflicts amongst competing domestic laws, lower level of technological level, and increased international competition. These problems illustrate how difficult it is to undertake the protection of intellectual property in China even after the incorporation of TRIPS into China’s domestic legislation. Thirdly, the thesis studies Hong Kong’s intellectual property legislation and cases law for comparative reference. It looks at how the Hong Kong government has adopted intellectual property policies geared to the private interests and emphasizing the function of stronger intellectual property protection as means of providing economic incentives for investment in intellectual property-related industries. It looks in detail at how Hong Kong has followed the UK tradition in dealing with intellectual property issues such as claim interpretation of patent, originality standard and infringement standards of copyright, the protection of goodwill by the law of passing off, and the protection of trade secrets through non-solicitation obligation and fiduciary duties. It illustrates that in various aspects of intellectual property laws not harmonized by TRIPS, Hong Kong has developed divergent legal principles more detailed and comprehensive than China. Finally, the thesis highlights the domestic and international factors that impact the development of intellectual property rights in China and examines how domestic incentive will promote the reformation of future intellectual property laws in China. It puts forward suggestions for reform of certain aspects of China’s intellectual property laws, namely: the protection of the tile of a work, copyrights in a work made for hire, damage calculation, liability for distributors and end users of software and non-competition obligations. These are areas of intellectual property law that have not been addressed in detail by TRIPS. Therefore, as China is unable to obtain direct guidance from TRIPS in these areas, it must learn from its own experience as well as foreign law and practice to develop its own statutory principles.

Date of Award	15 Feb 2007
Original language	English
Awarding Institution	City University of Hong Kong
Supervisor	Bryan Scott BACHNER (Supervisor) & Yuhong ZHAO (Supervisor)