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Copyright law is to grant an author, a composer, a playwright, a publisher, or a distributor with the right of exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work. Chinese copyright law mainly prescribes the scope of copyright, the right to use, the limits of right to use.
The duration of copyright is 50 years. In case the owner is a natural person, the copyright ends on 31 December of the fiftieth year since death of the owner. In case of a legal person, the copyright end on 31 December of the fiftieth year since the first publication of the production concerned.
(2) Patent law
Patent law confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time. There are three types of patent within Chinese patent law, i.e. invention, utility model and design. As regard the difference between invention and utility model, you can say that utility model is a ‘little invention’, the significance of which is far less than invention.
The duration of invention patent right for inventions shall be twenty years, the duration of patent right for utility models and patent right for designs shall be ten years, counted from the date of filing.
(3) Trademark law
Trademark is a name, symbol, or other device identifying a product, officially registered and legally restricted to the use of the owner or manufacturer. The trademark law prescribes the procedure to register trademark, the right to use trademark and how to protect your trademark.
The period of validity of a registered trademark shall be ten years, counted from the date of approval of the registration. Nevertheless, by an application of renewal of the registration, you can continue use your trademark. Every renewal will be effective for ten years.
As regard the protection of digital software, there is a special regulation made by state department, which provides the right to use digital software.
2. Execution of IP Law in China
In a word, Chinese IP law is good. The problems come out in the process of execution. Probably everyone knows the lawsuit between USA and China, mainly concerning the illegal use of digital software, which indicates the insufficient protection of IP of China in practice. The IP law cases in China mainly concern goods with illegal trademark, illegal DVD, digital software and other publications. The protection of patent works better than the protection of the other two.
In order to keep the promises in joining WTO, China began to beat the act of infringing IP to a greater extent. It can be implied in the two aspects:
(1) Since 1999 a special chamber dealing with IP law cases has been established in Supreme Court, every high court, some intermediate court and three local courts (under normal conditions the court of first instance for IP cases is intermediate court. Therefore, only one local court in Beijing and two local courts in Shanghai have this special chamber);
(2) The government allocates more resources to judicial authorities, including courts and some government offices, to deal with IP law cases.
The number of IP cases dealt with by different authorities in 2005
Trademark cases
Copyright cases
(including digital software)
Patent cases
State Administration for Industry & Commerce 24189
State Administration for Publications 2960, including 1.69 Billion pieces of illegal publications
State IP Office 1269
Courts 8332 in total, increasing by 21.5%
However, this is far from enough. For instance, you easily find illegal DVD, software, clothing and so on in each city in China. According to the resolution of State Department this year, the fight against infringement of IP will be one of the most important missions this year and the situation will be expected to be changed before 2008 Olympic Games.
IV Contract Law
1. Freedom of Contract 合同自由
Three aspects
Freedom to make a contract (Art. 4 Contract Law)
Freedom to choose the other parties of a contract (Art. 3 & 4 Contract Law)
Freedom to decide the content of a contact (Art. 5 Contract Law)
2. Formation of a Contract (offer and acceptance) 合同成立（要约，承诺）
A. General terms of a contract
A contract is an agreement for the purpose of establishing, changing or terminating rights or obligations. (Art. 2 CL) A contract generally contains the following items, which shall be specific and certain.
a. prerequisite items:
Lack of these items a contract cannot be concluded. There is no common recognition about prerequisite items of a contract in general.
i. Contract parties;
ii. Subject matter;
iii. Quantity;
Case 1
A and B concluded a contract that A rents one of his buildings to B. Do you think of the terms concerning subject matter, one of A’s buildings as unspecific and therefore void? The answer is no. It is a valid contract since we already know the subject matter. As regards the question of which building is subject to the contract, it depends on contract interpretation.
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