Intellectual property in China

Historically, China began accepting foreign IP concepts at the start of the 20th century, abolished them when the PRC was established, and began acknowledging IP rights during Reform and Opening up. China also acceded to the WIPO-administered China is also a signatory to the WIPO-administered Beijing Treaty on Audiovisual Performances, which enhances performers' intellectual property rights. and assumed its obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) when it joined the World Trade Organization in 2001. China's adoption of TRIPS incentivized Chinese policymakers to improve the country's regulatory structure to encourage national innovation and resulted in significant domestic policy reforms. The TRIPS agreement is also the basis of China's domestic IP law, as China conformed its IP law, including regarding patents, trademark, and copyright, to the TRIPS standards. As of at least 2023, China's general approach in addressing IP issues in international forums is to maintain TRIPS Agreement standards and sometimes joining the proposals of other developing countries to oppose further increases in IP standards. China has also been trending towards increased alignment with the positions taken by developed countries. The global regulation of IP involves multiple non-hierarchical international institutions, and China sometimes adopts different or inconsistent proposals in different forums. Since the creation of the Ministry of Commerce (MOFCOM) in 2003, MOFCOM has generally been China's lead negotiator on IP issues in international forums. As part of the Like-Minded Megadiverse Countries (LMMC), China promotes international negotiations on the disclosure of the origin of genetic resources in the context of patents. China is involved in discussions on the protection of genetic resources in a variety of international forums, including the TRIPS Council, the WIPO Intergovernmental Committee, and in its free-trade agreements. As of at least 2023, multilateral negotiations on the disclosure obligation feature strong disagreements between LMMC, EU, and the United States regarding whether a disclosure obligation is necessary and if so, how one should be implemented. ==National legal framework==

China's legal framework for intellectual property protection is developing rapidly as China becomes a source of innovation, although its IP framework is still less developed than most industrialized nations as of 2023. The general trend of its IP system has been to develop towards increasing similarity with the E.U. and U.S. systems. Copyright law History The concept of copyright in China has been found to exist at least as far back as the Song dynasty (960–1279). The publishers of a work at that time wrote on the final page of a text that it could not be copied. The first modern official code was implemented in 1910 at the end of the Qing dynasty (1644–1912). A new version was issued in 1915 during the Warlord Era of the Republic of China. On May 23, 1928, the Nationalist Government enacted a copyright law that covered books, music, paintings, photographs, engravings, and models. The copyright for most items existed for 30 years after the death of the author. Translations of literary works had a 20-year copyright and photographs had a 10-year copyright after publication. Corporate copyright existed for 30 years after publication. The People's Republic of China abolished the Republic of China statutes in 1949. The PRC found the Soviet intellectual model more consistent with traditional Chinese thinking than the Republic of China model, as the Soviet model accorded with the idea that through invention or creation, people engaged in social activities drawing on a body of knowledge that belonged to all people. Patent law In 1950, the PRC issued Provisional Regulations on the Protection of Invention Rights and Patent Rights. This increase resulted in part from government incentives to patent filers, outpacing China's actual R&D spending and labor productivity. Most design and utility patents, which enjoy a shorter protection period and are easier to obtain compared to invention patents, were not renewed after five years. In 2020 the Chinese government began pushing for stricter standards in granting patents. Other legislation and regulations Apart from major legislation on trademarks, copyright and patents, a few other laws and regulations have been passed to deal with intellectual property related issues. In 1986, the General Principles of Civil Law was adopted to protect the lawful civil rights and interests of citizens and legal persons, and to correctly regulate civil relations. Articles 94–97 of the General Principles of Civil Law deal with intellectual property rights of Chinese citizens and legal persons. In the 1990s, many more pieces of legislation were passed to perfect the intellectual property protection system. These include the Regulations on Customs Protection of Intellectual Property Rights (1995) and the Law Against Unfair Competition of the PRC (1993). The latter prohibited the passing off of registered trademarks, infringing trade secrets, the illegal use of well-known goods or names of other people, as well as other misleading and deceptive conduct. The Advertising Law of the PRC was passed in 1994 and extensively revised in 2015, to now include a joint liability with the advertising spokesperson, special regulations on public interest advertising, and most importantly a definition of misleading advertisement. The Anti-Monopoly Law provides for investigating unreasonable IP licensing fees and authority for further supplementary regulations on IP issues. With regard to artificial intelligence, the Cyberspace Administration of China issued draft measures which, among other provisions, obligate tech companies to implement safeguards to ensure their artificial intelligence platforms respect intellectual property rights. Geographical indications The use of place names as part of product names to emphasize regional specialties existed in China for over 3,000 years. China first encountered European-style geographical indications as intellectual property following Reform and Opening Up in the 1980s. Under China's 1984 Trademark Law, geographical names were excluded from trademark registration and in 1986, the State Administration for Industry and Commerce prohibited the use of geographical names of administrative divisions at or above the county levels as trademarks. However, regulators in China began protecting foreign geographical indications on a case-by-case basis. In the 2001 amendments to China's Trademark Law, China adopted the provision on geographical indications from the TRIPS Agreement. Under this standard, if a trademark contains a place name but the product does not originate in that area, the geographical name should not be used or registered given the risk of misleading the public. A grandfather clause provides an exception where an otherwise prohibited trademark already registered in good faith remains valid. The General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ) established a sui generis system to cover the use of geographical indication products through the 2005 Provisions on the Protection of GI Products. These regulations establish protection and requirements for products using place names if (1) the product is grown or bred from a certain place name location and all of the raw materials come from that place, (2) products produced elsewhere but for which all of the raw materials come from the place name location, and (3) products where some of the raw materials come from elsewhere but are produced in the place name location using specialized techniques. This approach is intended to accommodate the use of geographical indications in handicrafts like embroidery or ceramics. The regulation sets strict standards for products produced under the geographical indication, and non-compliance results in a producer losing the ability to use the place name. In 2007, the Ministry of Agriculture (MOA) issued a regulation on the protection of agricultural geographical indication products. These are defined as including plants, animals, and microorganisms. China and the European Union signed a GI agreement in September 2020. The agreement developed from pilot programs over the preceding eight years in which China and the EU worked on mutual registering and protection of geographical indications. The 2020 agreement extends mutual recognition of geographical indications to 275 from each side. The 2020 U.S.-China Economic and Trade Agreement required China to amend its domestic regulations regarding geographic indications, including to provide that geographical indications may become generic over time. As of 2023, nine of China's bilateral free trade agreements include provisions dealing with geographical indications. China has generally taken a flexible approach with regard to these provisions and proceeds on the basis of reciprocity. ==Implementation==

More than 30 government ministries are involved in domestic IP governance. suggesting tougher enforcement of IP laws. The specialized IP courts sit at the intermediate court level and have first instance jurisdiction over all technically complex civil and administrative IP cases (including patents, new plant varieties, integrated circuit layout designs, trade secrets, and computer software). They also have first instance jurisdiction over well-known trademarks and deal with all other IP cases upon appeal from the basic people's courts in their province.86 In terms of administrative law, the Beijing Intellectual Property Court also has special, first-instance jurisdiction over administrative appeals brought against decisions issued by administrative IP adjudication bodies. Although these tribunals are administratively a part of the intermediate people's court in their city, they have cross-regional and exclusive subject matter jurisdiction over IP cases—similar to the IP courts established in 2014. Parties appear before the court via videoconference and AI evaluates the evidence presented and applies relevant legal standards. Chinese government-sponsored search-engine Baidu provides links to third-party websites that offer online counterfeit products as well as access to counterfeit hardware and merchandise. The Chinese government dominates 70% of its country's search engine revenue and has been called on by US officials to limit the activity of online counterfeiting groups. ==Cases==

The first major dispute on violation of intellectual property rights was filed in April 1992 by Wang Yongmin, the inventor of Wubi, against Dongnan Corporation. In March 1992 Chinese authorities found that Shenzhen reflective materials institute had copied 650,000 Microsoft Corporation holograms. The institute was found to be guilty of trademark infringement against Microsoft and was fined US$252. Losses to Microsoft as a result of the infringement are estimated at US$30 million. In the 1994 Disney v. Beijing Publishing House case dealt with how a Chinese court would apply international agreements in copyright disputes. Though the Supreme Court ruled in favor of CEPT, the court failed to issue an injunction because the infringing process was being used to generate electricity and an injunction would interfere with the public interest. The court instead awarded RMB 50 million to CEPT. In its judgement, the Wenzhou Intermediate People's Court labeled the case "the no. 1 case of patent infringement in China". At the EU–China summit 2007, EU Trade Commissioner Peter Mandelson said, "I regard the SCHNEIDER case as a test case of the level playing field in China on intellectual property protection that we want to see". In 2014, Tencent sued its major competitor NetEase alleging copyright infringement. In 2018 Micron Technology, a U.S. memory chip maker, accused Chinese competitor Fujian Jinhua and Taiwanese manufacturer UMC of stealing chip designs. The U.S. Department of Justice (DOJ) announced an indictment against Fujian Jinhua and UMC. In October 2020, UMC pleaded guilty and agreed to pay a fine in exchange for cooperating with the DOJ. In February 2024, US District Judge Maxine M. Chesney in San Francisco acquitted Fujian Jinhua of the charge in a non-jury verdict, judging that the prosecutor failed to provide sufficient evidence. In September 2019, Levi's won final judgment in Guangzhou IP Court on a trademark infringement in Guangzhou, China. The case centred on the "arcuate design on two pockets at the back of jeans", which has been protected in China since its registration there in 2005. The company won damages and costs in addition to a ban on future infringements. The infringer's ignorance of the trademark was no bar to punishment. In 2021 Belgian artist Christian Silvain sued Chinese artist Ye Yongqing for plagiarism. Since the 1990s, Ye's works have taken on composition and motifs similar to those of Silvain. On 24 August 2023, the Beijing Intellectual Property Court awarded €650,000 ($696,000) in damages to Silvain, the highest amount so far for cases related to fine arts in China, and ordered Ye to make a public apology in the Global Times. It was still lower than what Silvain had hoped for, but as of September 2023 his lawyers had not appealed the ruling for a larger sum. == U.S.–China relations ==

IP first became a significant negotiating point between the countries in establishing the U.S.-China Agreement on High Energy Physics and the U.S.-China Agreement on Trade Relations. In addition, the U.S., based on claims brought to it by the China Copyright Alliance (CCA)—a group of major copyright industry associations and select companies—brought two World Trade Organization (WTO) cases against China, one focused on intellectual property rights violations, and one based on market access deficiencies. In both cases, it was ruled that China must change its operating standards to comply with WTO rules; in the IPR case, a helpful standard was established as to the definition of "commercial scale" for which criminal penalties would be required, but found that the U.S. had not supplied sufficient evidence to show that China's 500 copy threshold for criminal liability left some "commercial scale" infringement cases without a criminal remedy. The American Chamber of Commerce in the People's Republic of China surveyed over 500 of its members doing business in China regarding IPR for its 2016 China Business Climate Survey Report, and found that IPR enforcement is improving, but significant challenges still remain. The results show that the laws in place exceed their actual enforcement, with patent protection receiving the highest approval rate, while protection of trade secrets lags far behind. Many US companies have said that Chinese companies have stolen their intellectual property some time between 2009 and 2019. There are three main ways to address this issue. One is to bring a case to the WTO, which usually takes years to reach a final decision and requires a standard of proof against Chinese laws with respect to WTO rules that can be difficult to meet. Another avenue is unilateral restrictions on Chinese exports and investment, possibly leading to retaliations and a trade war. A third avenue is the negotiation of a bilateral investment treaty (BIT) with China that contains a dispute settlement mechanism between states and investors in order to ensure effective enforcement. The 2020 U.S.-China Economic and Trade Agreement includes the highest IP enforcement standards of any U.S. bilateral agreement. It includes provisions on patent linkages, patent term extensions, data exclusivity, trade secrets, and higher criminal standards for infringement. Although legal disputes between American and Chinese entities alleging mishandling or misappropriation of intellectual property occur, the most frequent basis for disputes stems from misunderstandings based on the differing IP rules and legal systems of the two countries. ==See also==