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China had to make effort striving to return to the WTO in order to adhere to the TRIPS Agreement. Thus China was amending its Patent Law when the Dunkel Text of the TRIPS Agreement was published at the end of 1991[17]. But the United States commentators had different views of amending Patent Law. They regarded this amendment as pursuant to the 1992 MOU[18]. In addition, 1982 Trademark Law was amended in 1993, which included criminal penalties within the statute[19]; 1990 Copyright Law was established as well as other intellectual property laws[20] changing according to TRIPS Agreement. As mentioned before, China acceded to the Berne Convention and ratified the Geneva Convention[21]. To comply with these multilateral treaties, the Chinese government amended the 1990 Copyright Law and issued new implementing regulations. The amended copyright statute protects computer software programs as literary works for fifth years; removes formalities on copyright protection; and extends protection to all works originating in a Berne Convention country, including sound recordings in the public domain[22].
Since the MOU 95, the Chinese enforcement system to be established is described in an Action Plan for Effective Protection and Enforcement of Intellectual Property Rights (“Action Plan”)[23]. This Action Plan focused specifically on improving the enforcement structure and the legal environment regarding intellectual property protection[24]. It introduced a new enforcement structure known as the State Council Working Conference on Intellectual Property Right (“Working Conference”), which was responsible for enforcement of all intellectual property laws throughout the country in order to target local protectionism and vulnerability of the Chinese judicial system to that problem[25]. In addition, the Action Plan created Enforcement Task Force, which comprised administrative and other authorities responsible for intellectual property protection. Such authorities included the National Copyright Administration, the State Administration for Industry and Commerce (the agency responsible for the protection of trademarks and protection against unfair competition), the Patent Office, the Police at various levels, and Customs Officials. These Task Forces were authorized to enter and search any premises allegedly infringing on intellectual property rights and they had authority to impose fines; to order a stoppage; to revoke production permits; and to confiscate and destroy the infringing goods. [26]
However, the United States found the 1995 MOU had become inadequate so that several trade sanctions and countersanctions between China and U.S. had been announced to begin[27]. Thus, the two countries had to make a compromise again, reaching a new accord, known as 1996 MOU. Unlike the 92 and 95 MOU, the 96 MOU mainly reaffirmed China’s commitment to protect intellectual property rights, which included measures China had undertaken or would undertake in enforcing intellectual property rights[28]. It also confirmed the market access arrangements concluded under the 95 MOU[29].
Since the MOU 96, the Chinese government has taken a number of measures to improve intellectual property protection in China. In August 1996, China issued Regulations on Certification and Protection of Famous Trademarks, thus bringing its laws in conformity with TRIPS Agreement[30]. In 1997, China issued the Regulations on the Protection of New Plant Varieties and China also amended its Criminal Law to include a section on intellectual property crimes.[31] In 1997, China became a member state of the International Union for the Protection of New Varieties of Plant since the Regulation on the Protection of New Plant Varieties was issued.
In addition, in April 1998, the Chinese government upgraded the State Patent Bureau to a ministry-level branch of the State Council, known as the State Intellectual Property Office. Replacing the State Council Working Conference mentioned before, this new office is responsible for improving “trademark, copyright, patent application and management and other intellectual property rights aspect” and works closely with the State Administration of Industry and Commerce and the State Press and Publication Administration to identify enforcement laws and regulations[32].
While reforming the domestic legal system for the protection of intellectual property, China has joined a number of international organizations and conventions.[33] So far, China has made great efforts to promote its self-sustainable, in a sense, which is constantly rejuvenated by external “pushes”, such as the threat of trade sanctions and Section 301 investigation.[34]
With all these new legislation and implementation efforts, intellectual property protection has improved greatly in China. As the 2000 National Trade Estimate Report stated: “today, China has improved its legal framework-and it has virtually shut down the illegal production and export of pirated music and video CDs and CD-ROMS… [35]
Preparation for WTO entry
After the establishment of the WTO in 1995, China has taken steps to keep Chinese intellectual property law in pace with the TRIPS Agreement. China has its own needs just as do the Americans, and this mutuality makes trade negotiation on intellectual property and market access feasible. China needs United States investments and imports to transform its labor-intensive factories to high-capital, high-technology factories.[36] China is eager to join the WTO, and China does not want to be excluded from the huge United States market. In fact, both sides need each other and a trade war would not benefit either country.
Therefore, at the beginning of 21st century, China has amended a series of intellectual property laws including Patent Law, Copyright Law, and Trademark Law and so on[37]. There is no choice but to improve protection of intellectual property in China for the purpose of accession to WTO.[38] Although China’s intellectual property laws has been developed only in approximately 20 years rather than several hundred years in western countries, China can not get rid of passive embarrassed situation which is from United State’s politic pushing effect.
Not only for China, but almost all developing countries in the world face such embarrassment due to United States exports not only its products into everywhere around the world, but also impose their culture, valuation and legal system or behavior regulation to those developing countries. To protect its economic interests, the United States has been very aggressive in pushing for a universal intellectual property regime, which offers information and high-technology goods uniform protection through the world[39]. To increase its leverage, the United States government has threatened to impose trade sanctions on countries that fail to provide adequate intellectual property protection to American product.
As a result, the United States as the largest net exporter of technologically in the world tried to add intellectual property issue into the Uruguay Round[40] of GATT [41]in order to design an intellectual property protection regulation based on their requirement[42]. That is what Endeshaw pointed out: “the more ascendant a country or industry is within the league of industrial and commercial powers, the more demanding it will be in the implementation of laws.”[43] The significance of such intellectual property protection has become a tool of economic competition rather than intellectual property protection itself. Intellectual property has, therefore, moved from a meager bilateral issue to the forefront of the international trade debate[44]. To some extent, the establishment of international intellectual property regulation was subjected to the compromised result of difference nation’s interest, especially between the developed and the developing countries. However, this result to a great extent only reflects the developed country’s will and requirement[45].
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