New Developments in Chinese IP Law – A Conference Recap

By TAP Guest Blogger

Posted on October 12, 2012

This conference write-up is provided by Patrick Goold.
On October 4th, 2012, the Berkeley Center for Law and Technology hosted a day-long conference entitled “New Developments in Chinese IP Law: Copyright Revisions and Enforcement Challenges.” The event gathered leading intellectual property (IP) academics and practitioners from both the U.S. and the People’s Republic of China.
China’s first copyright law was enacted in 1990 and was later amended in 2001 and 2010. In March this year, the National Copyright Administration of China published a draft of proposed revisions. After public and academic commentary, the draft was revised. The latest version now lies with the State Council for further consideration. The draft itself proposes numerous changes to the law; these developments were the focus of the morning’s discussions. Representatives from China stressed the necessity for a holistic and systematic copyright law and its role in China’s economic growth. Representatives from the U.S. praised China’s so-far transparent revision process while lauding doctrinal innovations such as the proposed adoption of the TRIPS three-step as an exception to copyright, and the widening of copyrightable subject matter to include architectural and audiovisual works. However, many also noted the lack of sufficiently clear provisions in areas such as Internet liability, orphan works and technical protection measures.
The afternoon session concerned the issue of IP enforcement in China. The conversation began by looking at IP enforcement in a general context. Both Professor Mark Cohen (Fordham University School of Law) and Professor Xuan-Thao Nguyen (Southern Methodist University Dedman School of Law) countered the assertion that China is not an IP rights conscious society, and that China’s IP system primarily benefits foreign nationals. Professor Cohen demonstrated that, not only is China the most litigious society for IP in the world, but that only 2.2% of the 2011 judicial docket were classifiable as ‘foreign cases’.
The conversation then turned away from general trends in IP enforcement to issues within specific industries. Starting with the entertainment industries, numerous participants were interested to learn of recent reductions in content infringement on notorious websites such as Youku and Todou. Professor Eric Priest (University of Oregon School of Law) and Karen Thorland (Motion Picture Association of America) both highlighted the successful market-force mechanisms behind such recent enforcement successes. One particularly promising strategy is to deter potential financial backers from associating with infringing websites through highlighting the website’s history of piracy. Nevertheless, it was also agreed that better enforcement mechanisms, such as access to preliminary injunctions, should still be developed. The issue of remedies in IP continued to generate discussion as the conversation turned to the technology-industries. On this point, Professor Zhang Guangliang speculated on the potential remedies available if the recent Apple v Samsung litigation were to be brought in China. 
A dynamic keynote speech was delivered by the corporate vice president and deputy general counsel of Microsoft Corporation, Mr. Horacio Gutierrez. Mr. Gutierrez outlined numerous areas for strengthening within China’s IP system. To ensure software is fully protected the law should provide full civil and criminal sanctions; this should include the prohibition on hard-disk loading (a process wherein Hardware retailers pre-install infringing software) and should not be subject to any unique and unjustifiable exceptions. Similarly, in order to aid development of cloud computing services, software creators must be able to exclude non-paying users; this requires that Chinese IP law prevent the circumvention of access controls.
For more information on these issues please visit the conference homepage.
Patrick Goold is the Microsoft Research Fellow at the Berkeley Center for Law and Technology at UC Berkeley School of Law.