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Despite all that, the People’s Republic of China with a population of 1.2 billion and a fast growing economy, which had applied to enter the GATT nearly 15 years ago, has officially become the 143rd member of the WTO on 11 December in 2001[46].
Brief introduction to the WTO and TRIPS
The WTO was established on January 1, 1995 to encompass the Uruguay Round results and to succeed GATT[47]. Many industrialized nations have joined the WTO, thereby becoming WTO “Members.” [48] The WTO provides the framework for contractual obligations between Members, and these obligations may determine the confines of domestic trade policy[49]. The Uruguay Round brought intellectual property into the GATT-WTO system for the first time through TRIPS, [50]which is a significant component of the tripartite foundation upon which the WTO is established[51]. While there have been other attempts to create international standards for intellectual property protection, TRIPS strengthens and enlarges the scope of earlier accords such as the Berne and Paris Conventions[52].
All member nations of the WTO accept all the same rights and responsibilities of the agreement. As such, a member nation must comply with TRIPS of GATT[53]. However, developing nations or “less developed countries” (LDCs) have five years from admittance into the WTO before they have to adopt, implement and enforce the laws in compliance with TRIPS.[54] Entrance into the WTO as a developing country allow China to continue its trade policy of export-led growth and protectionism for at least another five years.
The WTO’s Dispute Settlement Understanding (DSU) is a multilateral approach to obtain a dispute settlement and implies that one member nation should not use unilateral sanctions against an other WTO nation without first going through the WTO dispute settlement mechanism.[55] Therefore, With respect to the WTO, use by the United States of its Section 301 sanctions could result in Dispute Settlement Understanding-authorized counter retaliations.[56] The strength of the WTO will depend on its leadership and on the political pressures driving national positions which must be balanced against fairness in WTO decision making.
China has made the promise that it will implement the obligations under TRIPS upon its accession to the WTO[57].
Characteristics of TRIPS
While TRIPS establishes only the minimum protection that Members must give to intellectual property rights,[58]the scope of TRIPS is comprehensive: the Agreement encompasses both general and specific intellectual property rights. The agreement also requires countries to provide effective enforcement of these rights. The TRIPS Agreement is the first broadly subscribed multilateral intellectual property agreement that is enforceable between governments, allowing them to resolve disputes through the WTO’s dispute settlement mechanism.”
According to the general provisions and basic principles of TRIPS, member states shall accord the nationals of other member states no less favorable treatment than their own nationals regarding the protection of intellectual property.[59]Therefore, when China enters the WTO, China will accord the “ no less favorable treatment policy” concerning the protection of intellectual property to the nationals of other foreign countries.
The TRIPS Agreement is consist of seven parts. Part one to Part four refer to General Provisions and Basic Principles, Standards concerning the Availability, Scope and Use of Intellectual Property Rights, Enforcement of Intellectual Property Rights, Acquisition and Maintenance of Intellectual Property Rights and Related Inter-Parties Procedures. Part five to part seven refer to Dispute Prevention and Settlement, Transitional Arrangements, Institutional Arrangements; Final Provisions.
To sum up we can say TRIPS is an agreement which provides widely protection, high protection standards, effective and strong binding force to intellectual property.
Recent Legislative amendments
Currently, all three of China’s intellectual property laws (Copyright Law, Trademark Law, and Patent Law) have already been amended in order to adhere to the TRIPS Agreement.
l Copyright Law
In October 2001, the 24th Session of the Standing Committee of the Ninth National People’s Congress published the Copyright Law of the People’s Republic of China[60]. The previous Copyright Law, which is not compliant with the TRIPS, has been changed significantly. For example, the “ voluntary statutory license” in Articles 32, 35, and 37 and the compulsory license in Article 43, have been changed so as to be in conformance with Article 13 of the TRIPS Agreement. In addition, databases compiled with some level of minimum creativity have been protected as required by Article 10 of the TRIPS Agreement.
Widening subject matter
The previous Copyright Law, by itself, does not clearly protect unpublished works[61].The current Copyright Law now clearly extends protection to published or unpublished works of foreign authors and stateless persons[62], acrobatic works[63], works of architecture works,[64] and computer programs as literary works[65] for a term of fifty years with no registration requirements[66].
Extending the scope of rights
a. Rights of Reproduction
In adopting current Copyright Law, China essentially tailored its protection of authors’ rights of reproduction to fulfill the requirements of TRIPS Agreement[67]. One specific area of uncertainty, however, is the ability of various media forms to reprint published works. By permitting newspapers and periodicals to use published works for the reporting of current political, economic, and social topics, the current Copyright Law creates a potentially broad limitation on an author’s right to control reproduction of copyrighted work, even with the “ unavoidable reason” requirement[68] set forth in the Copyright Law. For example, since neither “ declaration” nor “ unavoidable reason” is defined, this provision could be interpreted to allow the reproduction of an entire copyrighted work if the work deals with current topics.
Ultimately, the question of whether China’s grants of rights of reproduction comply with the TRIPS Agreement depends on the extent any restrictions and limitations of those rights” provided that the name of the author and the title of the work shall be mentioned and the other rights enjoyed by the copyright owner by virtue of this Law shall not be prejudiced” . In fact, China has already clarified some of its most expansive restrictions with essentially identical language.[69]
b. Rental Rights
The TRIPS Agreement includes provisions governing two areas of authors’ rights--rental rights and neighboring rights[70]. Article 11 of the TRIPS Agreement provides that copyright holders of computer programs and their successors in title have the right to authorize or prohibit the commercial rental of originals or copies of their works[71]. For cinematographic works, the TRIPS Agreement permits unauthorized rental unless such rental “ has led to widespread copying . . . which is materially impairing the exclusive right of reproduction” of the author or successor in title.[72] Similarly, producers of sound recordings retain rental rights although, if a member state maintains a system of “ equitable remuneration” for unauthorized rental, such system will be allowed to continue unless copying materially impairs the exclusive rights of reproduction.[73]
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