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However, there was no express provision related to the rental rights in previous Copyright Law and the status of rental rights for producers of sound recordings in China is ambiguous. The new Copyrights Law has addressed the rental of copyrighted works under Art 10(7) to comply with the TRIPS Agreement.
l Trademark Law
In October 2001, when the second amendment to the Trademark Law was passed by the 24th Session of the Standing Committee of the Ninth National People’s Congress[74], it turned out to be quite close to the TRIPS Agreement. inter alia, it was amended according to the TRIPS Agreement as follows.
The previous 1993 Trademark Law had no provision extending enhanced protection for well-known marks. Instead, there was a very narrow administrative regulation on certification and action against infringement of such marks.[75] An amendment which enhances the standards for “ well-known trademarks” has been contained in the new Trademark Law[76] even where they have not been registered. This is exactly what is required by the TRIPS Agreement in Article 16(3) and raised the used “ third level legislation” to the “ first level” Another amendment addressed conflicts between internet/network domain names and trademarks.
The TRIPS Agreement requires that the administrative enforcement of the trademark law be reviewed by a judiciary. Art. 4(4) provides that “ parties to a proceeding shall have an opportunity for review by a judicial authority of final administrative decisions and, subject to jurisdictional provisions in national laws concerning the importance of a case, of at least the legal aspects of initial judicial decisions on the merits of a case.” [77] In trademark application prosecution, opposition, cancellation and invalidation proceedings, however, the previous Chinese administrative review was final[78]. Parties involved did not have an opportunity to apply for judicial review of the Trademark Office’s decisions.
To comply with the TRIPS requirement, the 2001 Trademark Law has made judicial review available for all administrative decisions regarding determination of trademark rights.[79] China eventually let all such cases, especially appeal cases filed by trademark applicants against the Trademark Office’s decisions refusing registration of a mark, be reviewed by the judiciary.
Articles 22 to 24 of TRIPS relate to protection of geographical indications. In contrast, the previous Chinese Trademark Law lacks comparable provisions. Protection of geographical indications, such as collective marks or certification marks, is only briefly mentioned in the implementing regulations of the Chinese Trademark Law. China has become aware of the importance of such protection, and already amended its trademark law to include protection of geographic indications[80].
Furthermore, the new Trademark Law has added details of enforcement of enforced authorize.
l Patent Law
China has amended some of its patent laws in an effort to comply with the requirements of the TRIPS Agreement. There were several provisions of China’s Patent Law that still did not comply with the TRIPS Agreement after the 1993 amendments. Some of these provisions were the subject of the second amendment to China’s Patent Law, which was approved by the National People’s Congress on Aug. 25, 2000, and took effect on July 1[81].
A clear objective of the amendments is to provide a more favorable environment for scientific and technological innovation[82]. This is demonstrated by the removal of the dichotomy between patent rights held by an entity under the ownership of the whole people, and patent rights held by an entity under collective or individual ownership[83]. It is also certain that the so-called the “ State Plan Licensing System” in article 14 of the previous Patent Law have been repealed, as China has made efforts to change from a centrally-planned economy to a market economy[84].
The Patent Law as amended in 1993 failed to endow the patent owner with the right to exclude others from offering for sale the patented products or products directly obtained by patented processes. Art. 28 of the TRIPS Agreement defines offering for sale as an exclusive right conferred on the patent owner. Article 11 of China’s Patent Law was amended again in 2000 to include offering for sale as a patent holder’s right[85].
Article 31 of the TRIPS Agreement expressly permits the grant of compulsory licenses under reasonably well-defined circumstances. Two provisions of China’s Patent Law were amended to effectively limit the situations in which compulsory licensing would be available. Specifically amendments were made to more clearly define the relative value and subject matter of a patent for which a compulsory license could be granted[86].
More particularly, Article 53, of the current Patent Law -- governing compulsory licensing -- was amended. The previous version read, “ Where a patented invention or a patented utility model for which the right of patent was granted is technically more advanced than another invention or utility model for which a right of patent was granted earlier, and the exploitation of the later invention or utility model depends on the exploitation of the earlier invention or utility model, the Patent Office may, upon the request of the later patentee, also grant a compulsory license to exploit the earlier invention or utility model.” Now, the new version begins, “ Where a later invention or utility model represents an important technical development with particular economic significance in comparison with another invention or utility model . . . “ and finishes with the above language. The new language is almost identical to the language of Art. 31(1)(I) of the TRIPS Agreement, thus effectively removing any inconsistency of this aspect between that agreement and the Patent Law.
The above-noted changes with respect to compulsory licensing notwithstanding, as Thomas T. Moga pointed out, the Patent Law still fails to specify clearly the efforts required by the proposed user to obtain authorization from the right holder as required under Art. 31(b) of the TRIPS Agreement[87]. Adequate assurance must also be made that any use of the patented product by way of a compulsory license will be made “ predominantly for the supply of the domestic market of the Member authorizing such use” as required by Art. 31(f) of the TRIPS Agreement. Finally, the Patent Law must also be amended to specify that the right holder will be paid “ adequate remuneration in the circumstances” as required by Art. 31(h). These modifications are particularly important to patent holders of higher technology, such as pharmaceutical patents. Amendments are necessary for clarification and to provide assurance to such industries that their investments will be protected[88].
As introduced above, China has transformed their old and antiquated intellectual property laws. Indeed, once China has embraced intellectual property laws according to TRIPS Agreement, the next problem becomes whether they are or will be using them. For China that has yet to industrialize fully, but have adopted intellectual property laws which evolved and matured in developed industrial societies, the basic question become whether those laws can become effective; in other worlds, whether the laws transplanted into the new environment will be able to operate in it and reproduce the results that they are supposed to have achieved in the old environment.
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