Monday, June 18, 2007

Reaction to Danwei Article About China's Ratification of WIPO's Internet Treaties

Ms. Maya Alexandri wrote an interesting article called 'Copyright protection for online content' for Danwei.

Referring to China's accession and ratification (June 9, 2007) of WIPO's Copyright Treaty (WCT) and WIPO's Performances and Phonograms Treaty (WPPT) a report by the Beijing Business Today, Ms Alexandri wrote:

"More typically, China's stance on intellectual property enforcement includes caveats about China being a developing country or expresses concerns about wholesale adoption of foreign values and methods. For example, China has a "two track" mechanism for enforcing intellectual property that gives both courts and administrative agencies enforcement authority. This system creates inefficiency, a lack of accountability and has rendered intellectual property virtually unprotectable in China. But far from amending its two-pronged approach, China has showcased it, insisting that it yields even greater protection for intellectual property."

The fact that China has more than one way (in fact three ways) to enforce intellectual property rights, does not necessarily creates inefficiency nor a lack of accountability. In my view there is no causal relationship between plural routes of IP enforcement and a situation whereby IP rights are "virtually unprotectable in China". In fact, IP enforcement in China is possible, although not always easy. It does not happen automatically; if you want to enforce your infringed IP rights, you have to act. Best thing to do this pro-actively. Since one of the characterisics of industrial property, trademarks, patents (which include design rights in China) is that their scope is national. So if you want to protect and enforce these rights, you have to register in the first place. Copyright (industrial rights + copyrights=intellectual rights) is protected at the moment an original idea has been expressed with the stamp of the author in a figurative way. Copyrights are also national in scope, but since the Berne Convention you don't need to register it before it becomes effective. Then, if your IP right is infringed there are different routes to enforce in China.

More is not always less

There is an administrative, criminal and civil enforcement route in China. Which all have their advantages and disadvantages, see my paper 'How to work within China's IPR enforcement system for trademark and design rights' here. There is even an overlap between some administrative enforcement authorities, which is not bad, because, given the right incentives, it can bring a certain competition between these authorities (as determined by Mr. Andrew Mertha), increasing the level of quality for all and making enforcement more effective. The distinction between criminal enforcement and civil enforcement is undisputed in most jurisdictions. China is quite unique in that it offers an extra venue of enforcement; the administrative enforcement route. Why would this be a bad thing? Besides, as right holder of infringed IP rights you can always go directly to the People's courts or to the Public Security Bureau (police). And even if you tried the administrative enforcement route, and are unsatisfied, you can still have a go with litigation.

Then if these different routes are not the problem, what is?

In my paper I suggest the following reasons for China's inability up to this point in time to effectively enforce IP rights:

  1. A lack of transparency [1];
  2. lack of a rule of law [2];
  3. lack of an independent judiciary [3];
  4. lack of a uniform application of law [4];
  5. widespread corruption [5];
  6. local protectionism [6];
  7. and lack of expertise in and respect for IPR [7].
[1] Upon accession to WTO China committed itself to share information about new regulations, issue draft laws, establish public comment procedures. China’s size and decentralisation, communist heritage and language, makes for a lot of confusion about IP in China. Not only China can increase the transparency, overseas companies could exchange their experiences.
[2] China’s leadership clearly wants to restrict lower government authorities to the rule of law, however it does not want to self-impose restrictions as long as its very survival is at stake.
[3] The Standing Committee of the National People’s Congress is superior to the Supreme People’s Court: it has the final word when it comes to the interpretation (article 43 Legislation Law) or invalidating (article 90 Legislation Law) of laws by the Supreme People’s Court. The National People’s Congress controls the funding and staffing of the Supreme People’s Court. Similar structures exist at lower levels: where local Party Organisation Department and people’s congresses control key appointments and funding for courts. Randall Peerenboom, ‘China’s Long March Toward Rule of Law’, Cambridge University Press, 2002, pg. 268.
[4] The Legislative Affairs Office, which monitors and addresses non-uniform application of law has much work to do. Therefore it is doubtful if it even get round to dealing with local deviations from WTO standards, such as TRIPs. More might be expected of MOFCOM’s Department of WTO. A concentrated appeals court, would probably have more chances to unify the application of law.
[5] The Transparency International Corruption Perceptions Index has ranked China in 78th position with a score of 3.2, where 10 is highly clean, available at:
[6] Localism (local protectionism): When deciding in IP infringement disputes, local courts are inclined to rule in favour of local companies even though they infringe IP. The reason is that the local judge is appointed by the local party and financed by the local government, who in turn is dependent on the tax revenues and management fees paid by the local company. Then the local company’s employer or employees are often friends and relatives of the local party or government. Besides, it is not in the interest of the local government that the infringing company is going out of business, because this will lead to unemployment and social-unrest.
[7] The 2006 Special 301 Report states: “Litigants, according to the US Trade Representative, have found that most judges lack necessary technical training, (..),” pg. 21, available at:

I agree with Ms. Alexandri relativism about the effectiveness in China of these WIPO internet treaties.

"That said, don't expect too much in the way of copyright protection for online content. The Internet is where countries with advanced copyright protection and enforcement mechanisms meet their match. In acceding to the WIPO Internet treaties, what China may have done is join the rest of the world in paying lip service to the protection of copyright online."

I would like to add the following: unlike WTO TRIPs Agreement which has a binding dispute settlement mechanism, WIPO has none. WIPO is teethless.

Read Ms. Alexandri's article for Danwei here.

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