Accession of Uzbekistan to WTO with the main focus to ＩＰＲ : Comparative Review with Russia and China

Article

Accession of Uzbekistan to WTO

with the main focus to ＩＰＲ:

Comparative Review with Russia and China

SHAYBAZYAN Goar

Chapter 2: Russian Case to Join the WTO

2.1. Russia - a recent example of preparation to accede WTO ｂｙ ａ developing civil law country

2.2. Objectives of Russia's accession to WTO 2.3. The history of Russia's WTO accession

2.4. An overview of Russia's commitments on trade in Goods 2.5. Agriculture

2.6. Export Duties

2.7. An overview of Russia's commitments on trade in services

2.8. An overview of Russia's commitments on Trade Related Intellectual Property Rights

2.9. Trademarks 2.10. Criminal measures

2.1 1. Industrial designs and patents

2.12. Establishment of uniform patent fees for residents and non-residents 2.13. Protection of plant varieties, animal breeds and topographies of integrated

circuits

2.14. Competent authorities

2.15. Specialized court for intellectual property disputes 2.16. Enforcing compliance

2.17. Border measures

2.18. Changes in the field of intellectual property 2.19. Summary (MEIKEI LAW REVIEW No.39)

Chapter 3: China's Case to Join the WTO

3.1. China − ａ recent example of preparation to accede WTO ｂｙ ａ developing civil law country

3.2. Objectives of China's accession to WTO 3.3. The history of China's WTO accession 3.4. Trade in Goods

3.5. Trade in services

3.6. Trade related intellectual property rights

3.7. China's adoption of international copyright instruments 3.8. Service marks and other trademarks

3.9. Patents

3.10. Administrative enforcement experience of IPR protection within the cus-toms

3.1 1. Judicial enforcement experience of IPR 3.12. Criminal measures

3.13. Implementation 3.14. Summary

Chapter 4: Accession of Uzbekistan to WTO 4.1. Chronology of accession of Uzbekistan to WTO 4.2. Past discussions in CIS countries

4.3. Objectives of Uzbekistan's accession to WTO 4.4. Trade in Goods

4.5. Agriculture

4.6. The impact of inadequate Intellectual Property Rights Protection in Uzbekistan

4.7. Some problems in Uzbek IP Legislation

4.8. The absence of ａ clear system in the legislation 4.9. Judicial enforcement

4.10. Criminal measures 4.11. Summary Chapter 5: Conclusion

Chapter 3: China's Case to Join the WTO

3｡1. China − ａ recent example of preparation to accede the WTO by

ａ developing civi 囗aw country

Before becoming ａ member of the WTO on December 1 1 _{， 2001,}

China did a great job in bringing its weak IPR up to an

interna-tional recognized level. Among the reasons for Chinese willingness

to accede to the WTO were removal of trade sanctions and

receiv-ing MFN status, excludreceiv-ing the quotas on textile and so ｏ ｎ ｌ･

The GATT deals with the trade in goods though its key

princi-li        ●   ●  ●    ●    lt lt      lt     li ●     ● pies such as non-discrimination, transparency," and

predictabil-it ｙ ¨ have been adopted by the agreements on services and

intellectual property2. The old GATT 1947 has been amended and

incorporated into the new WTO agreements3. The updated version,

"GATT 1994," deals with specific sectors or issues on trade in goods

such as: antidumping and countervailing measures, agriculture,

customs valuation methods, health regulations for farm products

(SPS), textiles and clothing, product standards, investment

meas-ures, preshipment inspection, rules of origin, import licensing, and

so ｏ ｎ４.

Besides this general requirement, there are three specific

de-mands made to China ｂ ｙ the Protocol in relation to its legal

sys-t ｅ ｍ: firssys-t, sys-the quessys-t for sys-transparency; second, sys-the necessisys-ty of

uniform, impartial and reasonable application of law, and third,

the assurance of prompt judicial review0. A11 three aim at

imple-1 Summer J.La Croix and Denise Eby Konan, "Intellectual Property Rights in China: The Changing Political Economy of Chinese-American Interests," The

World Economy 25 ， ｎ０. 6 （2002 ）:784.

２ Cheong Ching, Hung Yee Ching, Handbook 071 C 九加ぶｓW7 て) Accession and Its Impacts, 32.

3 Ibid. 4 Ibid.

５ Carlos Esplugues, "China's Accession to WTO," Chinese 召usiness La 叫2009, 4.

meriting the rule of law in China, making its legal system more

predictable and fair for foreign economic actors6.

3.2. Objectives of China's accession to WTO

ａ. By joining the WTO China wil expand its trade approach

overseas

By becoming ａ member of the WTO,

China will have stable and

non-discriminative market links with all member countries7 .

Before WTO accession, China was granted MFN treatment by

some WTO members, however,

after becoming ａ member of the

WTO,

the U.S. will no longer subject such treatment to annual

re-views bｙ the U.S. Congress and may essentially straighten the

con-fidence of future investors8. With China's acceding to the WTO,

many trading partners removed their restrictions to China's

im-ports, and eliminated quotas applied to exports of textiles and

clothing9｡

b. Access to multilateral dispute settlement procedures

under the WTO

Dispute settlement procedures help China to protect its trade

interests and limit imposing unilateral antidumping protections to

its products10. Before acceding to the WTO, China's trade relations

were based on bilateral agreements, and as ａ non-WTO member,

dispute settlements were based on bilateral discussions. Also for

the recent few years before becoming ａ WTO member, more than

200 dumping charges were imposed against China's exports.

Efficient Dispute Settlement is necessary for providing trade

6 Ibid.

7  学 者 社 区 一中 坪 网 ，海m, "The WTO and China's Objectives as ａ World Trading Power," C んina Center かr Economic ReseaΓch, no. Peking University, Beijing (June 1997) .

８ Thomas Rumbaugh and Nicolas Blanche, "China: International Trade and WTO Accession," Interna ぴonal Monetary Fund WP/04/36 (March 2004):10. 9 Ibid.

safety, justice, and assurance11.

ｃ. Participating in Writing Rules for the Future

Rounds of WTO negotiations are writing rules for the future and China didn't want to stay outside of it while others were writ-ing the rules for the trade game12.

3｡3. The history of China's WTO accession

China was one of the original twenty-three signatories to

GATT ＼ China signed the Protocol of Provisional Application on April 21 ， 1947, and formally became one of the original contracting parties of the GATT ０ｎ May 21 ， 194714. ０ｎ October 1 ， 1949, the People's Republic of China was founded10. China hasn't been

en-gaged in GATT s following procedures and Taiwan as Republic of China withdrew it's from GATT16. However, China didn't consider Taiwan's withdrawal as legitimate and true17. １ｎ connection with this historical reason, China gave ａ note to the Director General of the GATT on the 10th of July in 1986 and formally applied to begin its status as ａ contracting party again, making China's entry really ａ "re-entry" to the GA TTl ＼ Because of not following GATT 's procedures, China was ready to negotiate with contracting par-ties on its commitments and rights again19.

11  学 者 社 区 一中 坪 网 ，海 乢"The WTO and China's Objectives as ａ World Trading Power. ”

12 Ibid.

１３ Michael Bezney, ¨ＧＡＴＴ Membership for China: Implications for United States Trade and Foreign Policy," 研liversity of Pennsyl･mnia Law Sch〇〇I, 1986, 198･ １４ Yanling Wang, "Ten Years after Accession to the ＷＴＯ:China and the World

Economy," The Journal of China and Global Economies 1 ， ｎ０. 1 (Spring 2012):45. 15 Dieter Heinzig, The Soviet  び7元〇71 and Communist China,ﾌﾀ45-1ﾀ5 θご The

y1㎡ 四 回Road to the丿lliance (An East Gate Book, 2004), 255.

１６ Qingjiang Kong, China and the World 77Γαｄｅ Organization ごA Legal Perspective (Ｗｏｒld Scientific Publishing Co Pte Ltd, 2002), 4.

１７ Yanling Wang, "Ten Years after Accession to the ＷＴＯ:China and the World Economy," 45･

18 Carlos Esplugues, "China's Accession to WTO," Chinese 召Ixｓ加ess La 叫2009, 2. １９ Yanling Wang, "Ten Years after Accession to the ＷＴＯ:China and the World

Economy," 45.

3｡4. Trade in Goods

Obligations taken by China include binding all tariffs for im-ported products20, broadening trade approach to goods from other countries, and removing market obstacles21. China's usual tariffs for agricultural goods decreased to 15% after enforcing all the obli-gations concluded with the range from Ｏ to 65%, applying the higher rates to cereals22. For manufactured products the usual bound rate decreased to 8.9% among the range from Ｏ to 47%, with the highest rate put onto photographic film, automobiles, and other relevant goods23. Part of tariffs were to be removed by 2004, but no later than 201024｡

Analyzing trade commitments in the protocol of China, it is definable as both being ａ developing and developed country20. Within 3 years after the accession to the WTO, China obliged itself to totally remove a11 restriction on trade in goods, except products mentioned in Annex 2A to the Protocol26. Consequently, by 2004 1t would be free to import and export goods to and from China27. China also accepted to remove restrictions at distribution services inside the country and permitted for their "internal sale, offering for sale, purchase, transportation, distribution or use, including their direct access to end-users."28 China also accepted to amend and improve its market regulatory framework29. Definite sections

re-2０ Rongxing Guo, びnderstanding the C 九inese Economies (Elsevier Inc, 2013), 201･ ２１ WTO, "WTO Ｉ NEWS − WTO Successfully Concludes Negotiations on China's

Entry − Press 243," accessed March 11 ， 2015, httpｓ://ｗｗｗ.ｗtｏ.ｏｒｇ/english/news e/presO 廴e/pr243_e.htm.

22 United Nations Conference on Trade and Development, WTO ｊ ccessions and Devel 叩merit Policies (United Nations Publication, 2001), 321.

23 Ibid.

２４ WTO, "WTO Ｉ NEWS − WTO Successfully Concludes Negotiations on China's Entry − Press 243."

25 Carlos Esplugues, "China's Accession to WTO," 2009, 7･

26 World Trade Organization, Protocol on 沽ｅ Accession ｏ/ 沽ｅ People's Republic 可 China, W1ﾝﾌL バ 認, 2001, 20.

27 Carlos Esplugues, "China's Accession to WTO," 2009, 7. 28 Ibid.

stricting importation of Chinese goods to other WTO member countries were adopted by China, which meant rejecting its entire "market economy" position or imposing Safeguard measures on its goods30.

3.4.1. Ordinary customs duties

China's actions on binding tariffs for all goods in its market

access schedule and unilateral tariff lowering in certain sectors31

were appreciated by Working Party members and raised

confi-dence and predictability in its trade policy32｡

Main principles of the tariff strategy were based on economic

improvement and opening, among which were:

- tariff rates for imported, unprocessed goods were lower than on

processed goods;

- reduced tariff rates or duty-free for imported products necessary

for people's living and state economy, and which were not

manu-factured enough on internal market;

- lower import tariffs for parts of machinery products that were

not manufactured domestically or for high quality, or were

manu-factured domestically but with lower quality, compared to tariffs

on finished goods;

- higher import tariff rates for goods with sufficient domestic

manufacturing, protecting domestic manufacturers if needed, and

for goods considered not important for the country's economy and

people33｡

On imported products, China imposed tax with the main aims

30 Ibid.

３１ WTO, "Report of the Working Party on the Accession of China," October 1 ， 2001, 17.

32 "China's Accession to the WTO," Jones Day Publications, January 2002, 4 ， http://ｗｗｗjonesday. ｃｏｍ/chinas-accession-to-the-wto-0 1-0 1-2002/.

３３ Chang Hong, "The Political Economy of Tariff Protection in China: Evidence from WTO Accession," Canadian Journal of Economics 46 ， no. 4 (November 2013):5.

as government income, and controlling imports and helping do-mestic manufacture 气

China accepted the Harmonized System and became ａ member of the 一International Convi?ntion on 沽･? ど･:irmoniz･?ｄ Commodity Description and Cc浦 河System 1n 199235｡

There were two types of import rates − general and preferen-tial. General rates applied for all countries, except ones who had reciprocal tariff agreements with China. For later there were pref-erential rates36｡

China stated that upon accession to the WTO the same tariffs for all imports of wood and paper products will be applied37. For in-formation technology products, China's intention was to eliminate all kind of tariffs, duties, and charges for them upon accession to the WTO, and participate in the "Information Technology Agreement" (ITA) 。

Concerning the automotive sector, China stated that there were no tariffs for completely or semi-knocked down kits for vehi-cles, and in the case of creating such tariffs, rates wouldn't exceed 10%｡

China confirmed its support to the WT/GC/W/138/Add.l

proposal and intention to participate in any tariff liberalization initiative that the WTO might accept based on that proposal. With members of the Working Party, it conducted bilateral market ac-cess negotiations on goods38.

3.4.2. Rules of origin

The part of trade rules that used to define country of origin of products are Rules of Origin. They are used not only for statistical

４   1 に 叭 り   冖 ｈ ︶ ７ Ｑ り   Ｑ り   Ｑ り   Ｑ り 38 Ibid., 6.

WTO, "Report of the Working Party on the Accession of China," 18. Ibid.

Ibid. Ibid.

reasons, or labels of origin, but for applying preferential tariffs, quotas, anti-dumping actions, countervailing duty, etc. The 肺７ ０ Rules of Origin Agret?merit demands its members guarantee trans-parency of their Rules of Origin, that they not constrain, deform, or destroy international market39.

3｡4.3. Import licensing

Import Licensing is regulated by Articles XI and Ｘ Ⅲ:3 (a) of the GATT 1994 and the Agreement on Import Lice?rising Procedur･?ｓ， according to which the import licensing doesn't have to block trade and has to be clear, simple, and predictable. Members should notify the WTO on new import licensing systems, its modifications, and they should issue enough information for traders to know how to enact these modifications. Some import licenses which meeting conditions are issue automatically and some not. China committed that its responsible institutions for granting and permitting im-port licenses will issue any change within 30 days in the official journal "MOFTEC Gazette."40

1n 1993, China applied 53 import restrictions. By 1999, that fig-ure of goods was decreased to 35 ， including sugar, fertilizer, natu-ral rubber, wool, processed oil, polyester fibre, acrylic fibres, vehicle tyres, cotton, washing machines, tobacco, radios, refrigera-tors, colour television, cameras, watches, air conditioners, record-ing equipment, grain, wine, vegetable oil, colour sensitive material, laser disk production facilities, etc41. The applications for import licences can be submitted to the Quota and Licence Administrative Bureau of MOFTEC, Special Commissioner Offices in 16 provinces, or Commissions of Foreign Economic Relations and Trade of

vari-3９ WTO ECampus, "Introduction to Rules of Origin in the WTO," 2, accessed March 31 ， 2016, https://ecampus. wto.org/admin/files/Course_385/ …/R0-L1-R1 -Ｅ･pdf･

４０ WTO, "Report of the Working Party on the Accession of China," 26. 41 Ibid., 27.

ous provinces, autonomous regions, municipalities directly under

the central government, and those with independent budgetary

status. The granted import licences were prohibited to resell or

pass on, and its term is one year with extra

３ months extension 气

3｡4.4. Tariff rate quotas

The relevant WTO provisions include Article XI (General

Elimination of Quantitative Restrictions) and Article XIII （ Ｎｏｎ-discriminatory Administration of Quantitative Restrictions) of GATT 1994. The WTO Agreement on Agriculture says that it's members have to grant limited agricultural goods accession, which makes the tariff rate quota system 气After the accession to the WTO, China applied tariff rate quota to control the main sensitive agricultural goods 气For example, tariff rate quota was applied to rice, soybean oil, wheat, wool, corn, cotton, sugar 气After six years of accession to WTO, during the transition period, China executed final quota quantity 气More detailed tariff rate quota concession is described in Section 1-B, Part ｌ and Section Ａ ， Part Ill of Annex 8 to the Protocol.

3.4.5. Export licensing and restrictions

Chinese organizations list who is in charge of permission of

exports and will be updated in one month in MOFTEC Gazette

气

Export licensing was issued by the Administrative Bureau of

Quota and Licence, the Special Commissioner Offices located in 16

42 Ibid.

４３ Vai Io Lo, Xiaowen Tian, Law and Investment 加China ごThe Legal and 召usiness Environment after WTO Accession (Routledge Curzon, 2005), 336. 44 Ibid., 336.

４５ Ching Cheong and Hung-Yee Ching, Handbook 077 China's W1 で) Accession and Its Imi:･acts (World Scientific Publishing Co Pte Ltd, 2003), 43.

４６ Vai Io Lo, Xiaowen Tian, Law and Investment 加China ごThe Legal and 召usiness Environment after W7 で廴４ ccession, 336.

provinces, the Commissions of Foreign Economic Relations and Ｔｒａｄｅ( ＣＯＦＴＥＣ)of various provinces, and other authorities with independent budget｡

China used its export licence system for some agricultural goods and chemicals. There was a list of 143 goods to which export licensing applied in 1992, and the list reduced to 58 by 1999. Foreign Trade Law settled the followig main standards for applying export licensing: protection from deficit of procurement on local market or consumption of natural resources; commitments provided by in-ternational agreements; keeping public safety ａ concern; restric-tion of market volume of importing region48｡

Some members of the WTO were concerned about China's limi-tations on exports of raw materials, silk, semi-finished goods like metals, rare earth, ｅtc气By WTO regulations it is permitted to have restrictions on export only in limited occasions like a threat-ening deficit of foodstuff and other special cases.

3｡4.6. Export subsidies

Two types of subsidies are prohibited by Art. 3 0f the Agreement on Subsidies and Countervailing Measures (SCM Agreement):export subsidies and local content subsidies − because they have an influence on trade and can have harmful effects on

other WTO members. China confirmed that it eliminated all e χ-port subsidies, which is not complying with the SCM Agreement30.

3.4.7.

Textiles

There were some restriction imposed on the import of textiles

and clothing goods that were from China. The restriction was on

48 Ibid., 32.

49 United States General Accounting Office, "World Trade Organization Analysis of China's Commitments to Other Members," October 3 ， 2002, 59.

５０ WTO documents G/AG/N/CHN/4, 7 September 2004, and G/AG/N/CHN/6, 5 April 2005.

the quantity and was kept alive by the WTO members. It was pro-posed by the Working Party that these restrictions be brought

into notice of the Textiles Monitoring Body ( ＴＭ Ｂ) ａｎｄ the pro-posal was approved by the representatives of China. The  肺７ ０ Agreem･?nt on Textih?s and Clothing will hold these notifications as the base requirement for the enactment of Articles 2 and 3 0f the agreement. The phrase in article 2. １ ０ｆ ＡＴＣ尸day prior to the date of entry into force of the WTO Agreement" would directly refer to the date before China's accession with reference to the above men-tioned WTO members. According to Articles 2.13 and 2.14 0f the ATC, the uptick in the growth rates should be applied to the base levels with respect to China's accession01･

Below are the arrangements that have been agreed to by rep-resentatives of China in terms of trading of textiles and apparel until December 31 ， 2008. These will also be ａ part of the terms and conditions for China's Accession to the WTO:

1 . In case ａ WTO member had valid reasons to hold that the Chinese import of textiles and clothing products were causing market disruption, that particular member can inform China and consult on the matter to take measures to decrease or prevent such a situation. The products should be covered under ATC as per date of signing the

WTO Agreement. The particular member should be able to provide a detailed description of the situation and the rea-sons for posing this consultation request with factual data. The request submitted should have information on the kind of market disruption that has been created and also ａ proper description on how Chinese products have brought about the situation02.

5１ WTO, "Report of the Working Party on the Accession of China," 45･ 52 F rancis Snyder, The Europe?α箟 びnion and China, 194ﾀｰ2008: 召asic￡documents

2 。 Once the request is submitted by the member, the consul-tation should take place within 30 days. Ａ solution should be reached in 90 days of submission of request, which ｗ111 mutually benefit both the parties. The date of action can be extended on ａ mutual agreement basis53･

3 ． ０ｎ accepting the consultation request, China will hold its shipments of the products over which the consultation has been requested. The quantity of the shipment held will not be greater than 7.5 percent of the quantity that has en-tered in the previous １２ months with respect to the １４ months before the consultation request was placed04･

4 。 1f the matter was not reached to ａ mutual agreement in the 90 days of submitting the request by the WTO mem-ber, then the talks would continue according to the clause in point (c) for consultations raised over the product or products that come under the category or categories in-volved in the consultation00.

5. The term of restriction that has been mentioned under the claｕsｅ（d ）ｗｏｕld hold true from the date of consultation request until the date of the 31st of December of that year. If less than ３ months remained from the above mentioned date towards the year end, then the period would end in 12 months from the date of request06･

6 ． Any kind of action that has been taken with respect to the consultation will not last for more than ａ year unless re-applied under request, or agreed mutually by the

con-cerned Member and China57.

5３ WTO, "Report of the Working Party on the Accession of China," 45･ 54 F rancis Snyder, The Europe?αxlびnion and China, 194ﾀｰ2008: 召asic Documents

and Commenta ひ,3:300. 55 Ibid.

56 Ibid.

５７ WTO, "Report of the Working Party on the Accession of China," 46.

７

The provision for consultation request and also the

Section 16 Draft Protocol provision hold that both the

provisions cannot be imposed on the same product at the

same time08.

The allocation on the export of textile and related products to have quotas phased out has been revised under the びruguay Round Agreeme 肘on Textiles and Clothing (ATC) and will change the situation of the exports from developing countries. Each country will have a different level of restriction as these quotas are not one-sided. As the allocations are cancelled under the ATC agrei?merit, the countries that have been facing strict restrictions are expected to become more competitive while those countries that have been facing less strict quota rules may face issues dealing with market shares09｡

China's accession into the WTO membership will automati-cally make China ａ part of the ATC agreement and this will open up liberal access for China into the textile and apparel exports scenario60. The previous ATC was signed in 1995 and China was not ａ part of this agreement, and thus, faced strict restrictions with

regards to export rules. With China's accession into the WTO and its specific security mechanisms, the effect of the accession will go on ａ good number of years. The addition of China into the ATC will open up new arenas of export opportunity for the country61｡

Survey reports point out that China's market share in foot-wear exports increased by more than three times from 1990 to 2000 when the textile share percent remained the same62. China's export

58 Ibid.

59 Nicolas Ｒ. Blancher and Thomas Rumbaugh, China: Interna ぴonal Trade and ccession (International Monetary Fund, 2004), 11.

60 Ibid.

６１ Thomas Rumbaugh and Nicolas Blanche, "China: International Trade and WTO Accession.”

restrictions to the USA were removed in early 2002 and with this several other developing countries saw a decline in their exports63. By 2005 the rest of the quotas will also be phased out, and reports suggest that the effect of this will be more profound as these re-strictions constitute ａ major part of the export controls64｡

As China becomes ａ member of the WTO, it will have to abide by the rules and requirements of the Agreement on Textile?s and Clothing. Even though, the allocations on textiles exports will end by the 31st of December 2004 for all members of the WTO, there will still be some security measures put in place until 2008 ， which holds that the fellow members of the WTO can keep ａ check on the imports by China in case of any kind of market disruption60.

3.4.8. Agricultural subsidies

According to the WTO Agreement on Ag パculture, all the members are bound to follow the defined limit for agricultural en-dowment. Following China's accession and inclusion into the WTO, this value has been set at 8.5% of the production value for the coun-try. A11 kinds of agricultural export grants will also be phased out66. Agriculture is one of the most difficult areas in which to reach an agreement and the same problem had been faced with every other WTO member during their accession. The WTO con-sists of both developed and developing countries, and any kind of issues that relate to agriculture usually led to talks that extended over ａ long period of time. This is the situation that existed not

WTO Accession, 11.

63 Anuradha Dayal-Gulati and Angela Ｙ. Lee, Kellogg ０７１ ChinaごＳ￡Γα￡,?g加ｓ かｒ Success (Northwestern University Press, 2004), 19.

64 Nicolas Ｒ. Blancher and Thomas Rumbaugh, China ごInternational 77Γade and WTO A ccession, 11.

６５ WTO, "WTO Ｉ NEWS − WTO Successfully Concludes Negotiations on China's Entry − Press 243."

６６ Thomas Rumbaugh and Nicolas Blanche, "China: International Trade and WTO Accession," 8.

only between the developed countries but also between the

devel-oped and the developing countries. The accession of China into the

WTO and its entry into the Agreement on Agriculture has raised

some concerns as China is ａ developing country with a large part

of the population living away from the city. The concern has been

raised because the Chinese farmers who do agriculture on small

land plots with simple technologies might find it difficult to

com-pete with the industry in developed countries like USA, Canada,

and Australia who make use of complex technologies. The fact that

the price of agricultural produce in China is greater or levels with

the world market is concerning. Data over agricultural pricing in

1999 that compares with the price of corn in China and Chicago

shows that the pricing in China was two times greater than

Chicago and this makes the concern understandable･

There have been double-sided trade agreements between China

and the us and even China and Europe. In the agreement with the

us agricultural clause has been given more priority and the

agree-ment is rather complete. This has made the agreeagree-ment rather

popular when compared to the one signed with Europe･

The contents of the China-US agricultural trade agreements

ａ

ｒｅ: 67

1 . There were bans imposed on import of wheat from

TCK-affected areas ofthe us. This was lifted with respect to

wheat, citrus, meat based on sanitary and

phytosanitary grounds･

2 . Chinese allowances and grants to agri-exports were

re-moved.

3 ． The supreme power of the state-owned companies was

re-laxed and opportunity was provided to the private a

gen-67 U.S.-China agreement is drawn from the White House Office of Public Liaison, Summary of U.S.-China Bilateral WTO Agreement, available on the website of U.S.- China Business Council at http:// ｗｗｗ.uschina.ｏｒｇ･

cies to take part in agricultural trade｡

4 . TRQ or Tariff-rate quota was introduced on cereal im-ports｡

5 . Agricultural imports from the us were earlier imposed with a duty of above 20% and this was cut down for major imports following the agreement68｡

The lifting of the ban on wheat, citrus, and meat will not be ａ matter of major concern as they only form ａ small segment of the imports. Implementation of such kinds of trade restrictions which involve ａ small amount of product is practically difficult. Chinese subsidies on agricultural exports are very few and removing those will not have a big impact on the country. Taking the third point into consideration, this will be beneficial for the Chinese market as it opens up ａ bigger opportunity leaving aside the state ｍｏｎｏｐｏｌｙ･ This healthy competition between the state-owned traders and

in-dividual traders will eventually prove beneficial to the people of China. The main talks and concerns have been over the fourth and fifth points mentioned above, which dealt with lowering of import duties and also the agreement over the import of grains from the us.

3｡5. Trade in Services

Following the accession of China, the country has agreed to let

down several restrictions that govern the service sectors like

bank-insurance, distribution, business services, computer

depart-ment, movies, videos, telecoms, and sound services effective from

the year 200069.

6８ According to the agreement with the us, China will also eliminate restrictions on soybean imports, tariff on which will be cut down to 3%. Tariffs on beef will be reduced from 45% to 12%, on pork will be from 20％to 12%, and on poultry will be from 20 ％to 10%.Tariffs on oranges will be decreased from 40 ％to 12%, on grapes will be from 40％to 13%, and on apples will be from 30％to 10% and wheat gluten to 18% (Lapres, 2000).

６９ Qingjiang Kong 厂'China's WTO Accession: Commitments and Implications,"

It will also include professional services in the legal and ac-counting sector. This allows foreign access to the services in ａ transparent and easy licensing procedure. The main points under

the agreement include:

゜Trade and Distribution Agreement: Foreign Service

suppli-ers who are licensed will be allowed to sell products on ａ re-tail effective in 2003. The state will have its trading

monopoly over some sectors like oil and fertilizers and the other goods will be open to import and export by foreign firms from 2005. By 2007 ， domestic retailing and distribu-tion of all goods will be open to all foreign companies･ ゜On accession of China into the WTO, the financial sector

will be open to foreign companies to provide open banking services on foreign currencies which will be extended to local currency by 2003, and within the year 2006 ， the services can be provided to ａ１１ Chinese'0.

3.5.1. Telecoms

Foreign telecom companies can join in ａ combined venture alongside Chinese in the form of ａ foreign investment. There ｗ111 be no quantitative restrictions, but as per the accession agreement, the foreign investment amount cannot go above 25%. In the first year of accession, the facility will open up only in some cities and will be expanded to include several other cities within a year of Chinese accession. As ａ result, the foreign investment restriction will be relaxed to 35%. After three years from the date of accession, the maximum investment by foreign firms will be increased to the fina 囗evel of 49%. And the opportunity to set up telecom joint in-vestment venture for foreign firms will be open to all cities of

Journal o/ International Economic Law 3, no. 4 (2000):669.

70 Aaditya Mattoo 厂'China's Accession to the ＷＴＯ: The Services Dimension, ０肩ｏ㎡University Press, 2003.

China within five years of accession71

3｡5.2. Insurance

Foreign general insurance companies will be given the first entry into China's insurance sector whereby they can join hands with ａ Chinese company holding 51% of the investment'2. This re-striction will be relaxed within two years of accession so that the foreign non-life insurance company can register as a fully-owned company. The insurance sector will also open up life insurance

companies to have joint alliance with the Chinese companies on ａ 50% investment basis. Foreign companies with an equity share of

below 50% can enter the large scale insurance sectors like commer-rial, transport, marine, aviation, and reinsurance. This will be in-creased to 5 1% within a year of accession, and by five years, foreign insurance companies will be permitted to operate as wholly-owned entities'3.

3｡5.3. Banking

Following the accession, foreign banking companies will be able to provide foreign currency services in China to all clients･ This will be open to local currency services with restriction only on Chinese enterprises by 2003. The local currency service cannot be provided by the foreign companies to others except Chinese enter-prises until five years of accession to the WTO. After five years, the foreign banking companies can provide local currency services to all clients in China irrespective of any client restrictions'4.

71 United Nations Conference on Trade and Development, WTO Accessions and Development Policies, 322.

72 Shoushuang Li, The Legal Environment and Risks かr Foreign Investment in China (Springer, 2007), 277.

73 Ibid.

74 K. Thomas Liaw 。Investmen ￡召anking and Investment Opportunities in China ご A Compre んensive Guideｿor Finance Professionals (New Jersey: John Wiley and Sons, Inc., 2007), 26.

3｡6. Trade-related intellectual property rights

The 7 ￣

呪がAgreem･?

肘 is Annex 1C of the j/ぬ:irra

たesh

Agreement Establishing the Work:i Trade Organiza ぴon, signed in

Marrakesh, Morocco in 1994. 1t is part of the package of

agree-ments that has to be accepted by all members of the WTO75. TRIPS

marks the emergence of intellectual property rights as a fully

fledged trade-related issue76｡

Since 1980, China has taken numerous steps towards bringing

its IP laws into compliance with international standards". Take

copyright law as an example: despite China's unfamiliarity with

the concept of copyright, China managed to build up a

treaties-based regime of law that was closely modeled on western and us

Laws. The legal regime for copyright protection in China during

the 1990s included the Copyright Law, promulgated on 7

September 1990, recently amended on

２

７ October, 2001; the PRC

Copyright Law Implementing regulation promulgated by the

State Council on 24 May 1991 and effective on

１ June 1991; the

Computer Software Protection Regulations, effective

１ October

1991; the Computer Software Copyright Registration Procedures,

effective 18 April 1991; the Implementation of International

Copyright Treaties Provisions, effective 30 September 1992; the

Resolution on Punishment of Crimes of Copyright Infringement

adopted b ｙ the Standing Committee of the National People's

Congress on July 5 1994; and Article 217 0f the Amended Criminal

Law effective 1 October, 1997, which stipulated a fixed-term

sen-tence of up to seven years for copyright infringement. If an

inter-national treaty concluded or acceded to by China contains

provisions that differ from provisions of Chinese laws, the

provi-7５ Cheong Ching, Hung Yee Ching, Handbook on C 九加ぶｓW7 で) Accession and Its Impacts, 117.

76 Ibid. 77 Ibid., 125.

sions of the international treaty shall apply, except those on which China has made reservations'8｡

China and the U.S. entered ａ formal agreement called a 訂 飢 〇randum ｏ/゛出 直ｒｓ￡回 心ig (.MO び), which states Chinese commitments to provide better protection to U.S. IPR in China on January 16 ， 199279. Actually, this is not the first time that IPR be-came the subject of the China-U.S. trade negotiations. As Dexi

noted, "As early as 1979, when China first began its policy of re-form and opening to the outside world, the two countries negoti-ated and concluded a bilateral trade agreement which paved the way for future development of trade between the two nations."80 The Special 301 provisions of the USTR formed the basis for the 1992 trade negotiations on IPRs between China and the The January MO びmeant that China joined the 召erne Convi?ntion in October of the same year82, and these bilateral talks led to China's agreeing to join the Geneva Phonograms Convi?ntion as of June １， 199383｡

The U.S. Government has kept ａ close watch on China's pro-gress in implementing these international copyright agreements in the decade of adoption to the WTO84. Indeed, two of the biggest lev-ers the U.S. has in its ongoing negotiations with China are the threat of withholding the annual renewal of MFN status (the

78 Article 142 0f the General Principles of Civil Law and Article 238 0f the Civil Procedure Law.

79  Q. Dexi, "Survey of Intellectual Property Issues in China-US Trade Negotiations under the Special 301 Provisions, Pac. Rim. L. & Pol'y J. 2 (1993):260.

80 Ibid.

81 Dexi, "Survey of Intellectual Property Issues in China-US Trade Negotiations under the Special 301 Provisions, A," 261･

82 G. S Kolton, "Copyright Law and the People's Courts in the People's Republic of China: Ａ Review and Critique of China's Intellectual Property Courts,"びniversity of Pennsylvania Journal of International Law 17 (1996):421.

83 Dexi, "Survey of Intellectual Property Issues in China-US Trade Negotiations under the Special 301 Provisions, A," 285･

84 Feder, "Enforcement of Intellectual Property Rights in China," 252.

"stick")

and the promise of support for China's membership in the

WTO

(the "carrot")80. China made good progress in implementing

the U.S. requirements from soon after adoption, and undertook

the task to achieve full implementation, especially with the

en-forcement provisions from December 2001 when it became

ａ WTO

Member86｡

Besides making ａ primary legal system of IPR, China also

made essential efforts for developing its IP laws through judicial

enforcement, by creating special

１

Ｐ courts, and through

adminis-trative enforcement, by strengthening IP protection on the

border87.

3.6.1. Agencies to overlook the policy and its implementation

In China different agencies are responsible for the

implemen-tation and creation of the various IPR policies: the patent sector

will be overlooked by the State Intellectual Property Office

(SIPO); the trademark registration will be handled by the

Trademarks office, which operates under the governance of State

Administration for Industry and Commerce (SAIC);SAIC

ｗ111

also overlook the working of the Copyrights Office, which will

en-sure that there is no unfair competition taking place and will also

safeguard the trade secrets; the pharmaceutical sector will be

under the governance of the State Drug Administration and also

the General Customs Administration, which will 100k into the

bor-der measures; the integrity of the plant species diversity will be

taken care by the Ministry of Agriculture and Forestry

Administration Sector; all integrated layout circuits will be

85 Ibid.

86 "USTR ぐ10, accessed April 25， 2012,http://ｗｗｗ.ustr･ｇｏｖ/archive/Document Library/Reports_Publications/2003/2003_Specia し30 廴Report/Section_Index. html.

87 N. Zhang, "Intellectual Property Law in China: Basic Policy and New Developments," Annual Sur･ﾉ砂 ｏ/鈿 ￡ｅａ αぴonal & Comparative Law 4 (1997):14.

checked and rechecked for safety by the Ministry of Information

Industry; and any kind of duplicating actions will come under the

jurisdiction of the State General Administration of the People's

Republic of China for Quality Supervision and Inspection and

Quarantine, and will be backed by the SAIC. The IPR rights ｗ111

also be protected by other organizations like the courts and police

at a11 levels88.

3｡6.2. Participation in international intellectual property agree-ments

China became ａ part of the World Intellectual Property Organization back in 1980. 1t had taken part in the Paris Conv(?ntion in 1985 that was held for the Protection of Industrial Property. The Treaty on 一Intellectual Prope?rty in Respect ｏ/゛ 乃山 Ｗｒｄ･?d Circuits was first signed by China and was finally

bought into enactment in 1989. The same year China signed 沽ｅ Madrid Agreement Concerning the International Registration ｏ/゛ j/ぬ:irks. It also became ａ member to protect the integrity of artistic works by taking part in the 召erne Convi?ntion. Unauthorized du-plication of phonograms was ａ major issue faced by phonogram producers, and China was ａ member of Geneva Phonograms Convention in 1993 to safeguard their rights. In 1994 the Patent

Cooperation Treaty was signed followed by the 召udapest Treaty in 1995, which concerned patent over microorganisms. The

Agreement out?ｒ 乃山?rna ぴonal Classifica ぴon of Industrial Designs was signed in 1996, known as the Loca Γno Agrei?merit. In the fol-lowing year the  Ｓひasbou Γｇ Agreement was signed over International Patent Classification. The last of them has been the

7￣でRIPS Agreement after the Uruguay round of the Agreement89.

只 ︶ ０ び 只 ︶ ︵ χ ︶

WTO, "Report of the Working Party on the Accession of China." http:// ｗｗｗ.wipo.int/wipolex/en/profile.jsp?ｃｏｄｅ＝ｃｎ

3｡6.3.

Use of national and MFN treatment

The Working Party of the WTO had some members who

raised concern over some of the rules established by China that did

not assure unified national consideration to foreign individuals

and agencies that had national rights. The Rules on Banning

Infringement of Business Secrets did not have any consideration

for foreign individuals or organizations. Complete national

consid-eration was requested so that any kind of copyright violation

would not have to undergo multiple clearances especially by the

National Copyright Administration in Beijing90｡

The Chinese representative responded to this request by the

Working Party members. The foreigner would be considered based

on any treaty that involved the nationality of the foreigner under

concern and China or under the agreement of the principle of

reci-procity. The request for national and MFN treatment for

foreign-ers was taken seriously by China and the representative had

assured that changes would be bought about to the laws to

con-sider this request91.

3｡7. China's adoption of international copyright instruments

As already has been mentioned, China became ａ member of the

召ｅ

Γπｅ Convi?ntion in 1992 and a member of the Geneva

Phonograms

Convt?ntion in 1993. The Geneva Phonograms Convi?ntion provides

for the protection of phonograms against unauthorized

reproduc-tion and distribureproduc-tion for

ａ minimum term of 20 years. The main

function of this convention is that

ａ member country should

pro-vide protection to producers of phonograms from foreign member

countries against the making of duplicates without the consent of

the producer and against the importation and distribution of such

duplicates92.

９０ WTO, "Report of the Working Party on the Accession of China," 53 91 Ibid.

Article 18 0f the 召erne Convi? 肘jo が3 establishes the principle of retroactivity, which means that if the country accedes to the Berne Union, it should protect all the works which have not expired in the term of protection in other countries of the Union94｡

After accession to the 召ern･? Convi?ntion, the U.S. took meas-ures in 1989 to change the interpretation of the Article 18 0f the 召erne Conve?ntion to ensure that its retroactive effect did not cause financial consequences for the past ’ｎｏ contract' use of protected works in other countries90. As ａ result, it has been recognized by the Berne Union that retroactive protection does not entail finan-cial implications96｡

Until the accession of China to the 召erne Convi?ntion, there was an overall lack of IP protection, and this turned out to be ａ se-rious barrier for authors exporting their literary and scientific

works, because the Chinese legal system allowed reproduction of IP without approval and circulated the work inexpensively9'. China

92 "WIPO-Administered Treaties: Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms," October 29, 1971,http:// ｗｗｗ.wipo.int/wipolex/en/wipo_treaties/text.jsp?do （づd=131047 &file_id=177602･

93 Article 18 0f the Berne Convention states that '(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection; (2) If, however, through the ｅχpiry of the term of protection which was previously granted, ａ work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew; （3 ）The appli-cation of this principle shall be subject to any provisions contained in special con-ventions to that effect existing or to be concluded between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is concerned, the conditions of application of this principle; （4 ）The preceding ovisions shall also apply in the case of new accessions to the Union and to cases in which protection is extended by the application of Article 7 0ｒ by the abandonment of reservations'. "Berne Convention for the Protection of Literary and Artistic Works."

94 Sudarikov S.A., 刀paBO HHTejiJieKTyajibHOH codcTBeHHQCTM (Intellectual ｔｒ叩erty Rights) (Moscow: Prospect, 2011), 134.

95 Ibid.

96 Sudarikov S.A., UpaBO ＨＨ７四jieKTyajibHOM codcTBeHHQCTM (Intellectual ｔｒ叩erty Rights), 134.

97 Stephanie Ｌ. Sgambati, "China's Accession to the Berne Convention: Bandaging

adopted its first Copyright Law only in 1991 and one of the reasons why this was adopted so late was the Chinese concern about the control of publications while at the same time protecting copyrights98｡

Before MC つびbetween the U.S. and China, the U.S. demanded China provide full copyright protection to foreign works at an in-ternational recognized level, i.e. to accede to the 召ｅΓπｅ Convi?ntion and the Geneva Phonograms Convi?ntion, otherwise the U.S. would impose higher duties to products from China". Under the 訂 ０ び， the international conventions will prevail when domestic

legisla-tion in China is inconsistent with the 召erne Conve?ntion and the Geneva Phonograms Convi?ntio ぶoo. Avoiding the U.S. imposition of higher duties to products from China left the way clear for China to accede to the 召erne Convi?ntion without reservations in 1992, which in turn facilitated its WTO accession｡

Article 18 0f the 召erne Convi?ntion also was incorporated in the TRI1 二}S Agreement through Article 14 (6), which recognizes the retroactive protection of neighbouring rights. The principle of retroactivity had not been recognized by the earlier international treaties in the field of neighbouring rights. The WTO member states are expected to follow the principle of retroactive protection･ They are further expected to protect the exclusive rights of per-formers, phonogram producers, and broadcasting organizations in other countries that are members of the WTO and the WIPO

？･?rformances and P んonograms Tr･?aty, for which the term of pro-tection has not expired ｙｅtlol.

the Wounds of Intellectual Property Piracy in China," Fordham Intellectual ｔｒ叩erty, Me ぷa and Entertainment Law Journal 3, no. 1 (1992):149.

98 Zhang, "Intellectual Property Law in China," 1997, 7･

99 Stephanie  Ｌ. Sgambati, "China's Accession to the Berne Convention: Bandaging the Wounds of Intellectual Property Piracy in China," 160.

Ｏ   １ ０   ０ １ １ Ibid., 161.

Sudarikov S.A., JIj:)ａ召ｏ HHTejuieKTyajibHOH codcTBeHHQCTM (Intellectual ｔｒ叩ｅべy Rights), 135.

3.8. Service marks and other trademarks

The Chinese representative said of the Law of Trademark that its rules of implementation, as well as other laws that are related like department and regulation rules, made up the current legal system trademark of China. The laws' objective was to offer rights holders protection based on the prevailing practices and interna-tional conventions regarding the rights of the intellectual prop-erty, embedded in the procedures and substance regulation for registration of trademark as well as exclusive rights of trademark protection. For the trademark to be protected based on the full rights of the trademark, the law regarding trademark in China

was ａ combination of criminal and civil liabilities as well as trade-mark infringers' administrative punishments. The system of dou-ble tracking for exclusive trademark rights protection can lead to infringements on trademark, effective and timely prevention, as well as legitimate interests, and rights protection of the complete rights. Recently, the administration and judiciary of China has improved their complete rights of trademark protection efforts in their authority respectively. Several cases of international, domes-tic, and influential cases have been resolved with enough protection for the legitimate interests and rights of both foreign and Chinese complete trademark rights holders, as well as garnering ａ response that is positive from both foreign and domestic patentees102｡

Some Working Party Members expressed their doubts about some provisions of the law on trademark in China which seemed to give preference to national trademark owners over foreign ones. It was said that the law in China needed owners of foreign trade-marks to allocate agents of trademark, which citizens of China could directly file to the Office of Trademark in China. They fur-ther said that the law of trademark in China does not look at some

1０２ WTO, "Report of the Working Party on the Accession of China," 54.

signs when considering if a trademark in China is eligible for the

77?が°S

Agreem･?nt. They stated the signs as colors, numerals, and

letters which have the ability to differentiate services and goods･

Furthermore, if a trademark registration is based on use, the law

of trademark in China could give ａ mark that is not distinctive,

which can be used for registration when distinctiveness has been

gotten based on use. It was also stated by the Working Party

members that China's law was not clear on the ｅχact mark used for

which an individual could apply for a mark103｡

Concerns were further raised by the Working Party Members

about popular Chinese trademark protection, most of which were

registered outside of China. The regulations and law of China did

not exactly state the factors for concluding if

ａ mark is popular,

and thus it was confusing to know the exact TRIPS

Agreement

Article 16 requirement. Also, even though popular trademarks

that are Chinese-owned have been protected by China, popular

trademarks owned by non-Chinese have not received ａ similar

pro-tection. It was also stated by members that some provisions of the

law on trademark in China requires extension to popular

trade-marks that are not registered104｡

The China representative said that with the market economy

improvement in China as well as enhanced

７

呪 がAgreement

im-plementation, the bodies responsible for enforcing law and

legisla-tion of China, have also found out that the extant law of

trademark is not in full compliance with the 7

呪IPS Agreement

re-quirements or the ｔａパｓ Convi?ntion in some areas, and are

there-fore putting in place steps to adjust the extant law of trademark so

that it can meet every condition of the 7呪が3S Agreem･? 肘･

Adjustments would be carried out majorly in these areas: to cover

the registration of

３Ｄ trademark symbols, figures, alphabets, and

103 104

Ibid., Ibid.

color combinations; to include collective trademark content and

trademark of certification （sｕch as indications of geography) け ｏ begin protection of official symbols; to give popular trademarks

protection; to add rights of priority; to adjust extant system of right confirmation trademark and give parties that are interested the chance for review of the judiciary regarding the trademark rights confirmation; to stop all major infringements as well as en-hance the infringement of trademark damages providing system100.

3.9. Patents

The accession preparation to WTO has led to the first review of China's 1992 patent law106. Measures have been taken by China to improve its 7 呪IPS Agreement consistency based on protection standards and major provisions. ０ｎ August 25 ， 2000, the second Patent Law revision was approved by the National Peoples Congress for interventions, commercialization, and promotion; promotion of ａ social environment build up that is s ｏｕnd; TRIPS Agreem･?nt consistency with respect to general public awareness improvement on the protection of IPR; and particularly protection of patent. The patent law which was revised would be effective on July 1 ， 2001 and be comprised of: （1 ）Ｃｏｍｐｕlsｏｒｙ license granting conditions which would be made consistent with Agret?merit of

TRIPS and more clarified; (2) owners of patents would have the opportunity to request provisional measures including suspension orders on acts that infringe as well as offer preservation of prop-erty before legal proceedings is instituted; (3) for patents or de-sign applications and utility model, the ultimate decision on

invalidation and examination would be taken by the people's courts

105 Ibid.

106 State Intellectual Property Office of People's Republic of China, 乃男飛?meriting 沢喟㎡αぴons of ￡December 12, 1992, of the Patent Law of the Pe叩Z 醜 沢印 功 面 可 Ｃん加α．

after as opposed to before amendment patented interventions

(Articles 41 and 46); and (4) the right to stop people and organiza-tions from selling products they have patented without permission would rest with the owner of the patent107｡

It was stated by the China representative that the TRIPS Agreement Article 27 requirements has been met by China's new plant varieties protection as well as protection of patent range･ Article 25 was amended ｂｙ China during the 1992 Patent Law amendment, regarding the stipulations that the 7 呪IPS Agree? 肌ｅ肘 draft and coverage expansion of protection of patent to

pharma-ceuticals, flavorings, beverages, and food as well as other materials which were gotten from chemical techniques. The exclusions from the patents scope were limited to therapeutic and diagnostic meth-ods for plant and animal diseases varieties treatment, methmeth-ods, and rules of intellectual activity, scientific discoveries, and materi-als that were gotten by nucleus change108｡

Based on the 7 呪 がAgreement Article 28 (confer of rights), the China representative said that the patent law of China has been complied with fully alongside the following TRIPS Agreem･?n t re-quirements due to these reasons. (1) Article l l of the ｔｄ･?nt Law amendment of 1992 was amended thus: "any individual or entity

who does not have ａ previous license from the patentee is stopped from selling, using, making any patented processes or patented products, or selling or using products that were gotten directly from processes of patent for operation and production purposes"･ The adjustment gave the right of the patentee ａ wider scope, which is that the import prohibition right and the processes of patent ｅ仁 feet are made to cover products which were gotten from the

proc-107 Ming Q. Lu, Approaching C んina's Pha Γmaceutical Ma Γ加とA Fundamental G 回心 ￡ｏ Clinical Drug ￡)evel叩merit (Springer International Publishing Switzerland, 2015), 223.

ess of the patent directly. （2 ）Ｔｈｅｒｅ was another adjustment on Article 11 of the Patent Law in 2000 − the introduction of the new amendment which gives the right to patentees to stop the sales of products they have patented or products that were gotten directly by the process of the patent without the patentees' permission. As long as the patentees' right is involved, the Patent Law of China has accommodated fully the TRIPS Agreement requirement109.

3.10. Administrative enforcement experience of IPR protection within the customs

The main legislation on customs IP protection in China are

regulated by the Customs Law of Peopled R･?public of China110, Regulations  ｏπ Customs Prot･?ction  ｏ/゛ 7肘･?ZZ･?dual Property Rights 111 and Implementing Rules of Regula ぴons on Customs Proti?ction of Intellectual Prop ぽty Rights112｡

In 1995, China, in accordance with the WTO rules, started to organize an IPR customs protection system and adopted and

im-plemented the Regula ぴons on Customs Protection of匸Intellectual Propt?rty Rights113. As noted by Zhang, according to Article 2 0f the Regula ぴons on Customs Protection of IPR, "the scope of cus-toms protection will cover any import or export goods related to

109 Ibid.,

110 Customs Law cぴ？ｅ叩Z 心 沢印 功lie of China, 1987.

111 Regulations on Customs Protection of Intellectual Pr叩erty Rights. Adopted at the 30th Executive Meeting of the State Council on November 26 ， 2003, promul-gated by Decree No. 395 0f the State Council of the People's Republic of China on December 2 ， 2003, and effective as of March 1， 2004. The Regulations on Customs Protection of Intellectual Property Rights promulgated by the State Council on 5 July 1995 are repealed on the entry into force of these regulations, available at http:// ｗｗｗ.wipo.int/wipolex/en/details, jsp?id=5002.

112  加plementing Rule?ｓ ｏ/'ル 即lations on Customs Prote ぷon of Intellectual 片 叩erty Rights, 2009, available at http:// ｗｗｗ.wipo.int/wipolex/en/details. jｓp?id=7744.

1 13 Information Office of the State Council of the People's Republic of China, "New Progress  in China's Protection of Intellectual Property Rights," Ｃ九inese Governm 四 百 Ｑﾉ:ficia囗Web Portal, April 2005, http://english. gov.cn/official/ 2005-07/28/conten t_18131.htm.

intellectual property rights, including trademarks, copyrights and patent rights." 114 This regulation compelled China to comply with the requirements of the 7 ￣貎 石弓Agreement on border measures even though it had not become ａ member of the WTO115. Though,

7￣で尺が3S Agreem･?nt does not requires that members take border measures in exportation cases, China paid attention to IP protec-tion of exports too116｡

In order to provide a stronger law enforcement mechanism for IPR customs protection, China went through three steps. First, they established a record system for IPR customs protections (ac-tive protection)117. Article 7 0f the "Regulations  ｏ尽 Customs Protec ぴon of Intellectual Property Rights' provided details on the recording procedure. The record system requires that IP owner

register their works that need customs protection in advance to make it easier for Chinese customs to study the specific cases and increase the proficiency of their work. Around 1 1,000 records were filed from 1995 until 2007 at the General Administration of Customs. Due to this system, 90 percent of infringement cases were found by Chinese customs118｡

There are several examples of when enterprises have benefited from the record system. For example, in 2010 ， ａ Chinese textile company called CHANNO in Zhenjiang had registered its brand in

customs for a protection. Customs seized around 40,302 pieces of underwear infringing on the brand of CHANNO119. Another

ex-1 ex-14 Zhang, "Intellectual Property Law in China," ex-1997, ex-10･

1 15 N. Zhang, "Intellectual Property Law in China: Basic Policy and New Developments," Ann. Surv. Int'l & Comp. L. 4 (1997):10.

116 WTO, Trade Policy Review 2010, China, WT/TPR/S/230, p.65

1 17 Information Office of the State Council of the People's Republic of China, "New Progress in China's Protection of Intellectual Property Rights."

118 "Director General of the Department of Policy and Legal Affairs of GACC Answered Questions on IPR Border Protection," SIPO State Intellectual ｔｒ叩ｅｒぴOffice cぴthe P. 沢. C., October 19 ， 2007, http://english.sipo.gov.

news/official/200904/t20090417_453942.html･

ample involved the clothes company Ningbo MH Industry Co. Ltd, which, due to the registered record system at customs, successfully protected its rights seven times and received losses of over 6 million Yuan120｡

Second, China established ａ model mixing active protection with passive protection, which is implemented in law enforcement121. Besides detaining import or export goods suspected of IPR infringe-ment, customs can also investigate and deal with illegal trade of right-infringing goods within their initiatives122. Third, they set up relevant IPR protection divisions at all customs houses under the General Administration of China Customs （ＧＡＣＣ）123｡

In 2006 ， the Director General of the Department of Policy and Legal Affairs of the GACC, during the interview on IPR Border Protection, stated that Chinese customs faced difficulties on IPR protection ｏｎ: how to improve Chinese customs' law enforcement capacity of actively investigating infringement goods; how to more effectively prevent infringement goods from going abroad under the precondition of not influencing the efficiency of going through customs; and how to strengthen legal education on cus-toms IPR protection and create sound law enforcement atmosphere124｡

Then he recommended that such difficulties should be resolved bｙ the strengthening of legal education on customs IPR protection120. These difficulties within a five year period were re-solved, and in 2011, China was given ａ GAC award by the Global

Ｏ   ｌ ｎ 乙   ｎ 乙 Ｉ Ｉ ｎ ／ ｀   Ｑ り   ４ ｎ 乙   ｎ 乙   ｎ 乙 Ｉ Ｉ Ｉ

Intellectual Property Rights in 2010', China Intellectual Pre perty, Jan. 2011, http://ｗｗｗ.chinaipmagazine. ｃｏｍ/en/news -show .asp?id=2652.

Ibid.

Information Office of the State Council of the People's Republic of China, "New Progress in China's Protection of Intellectual Property Rights."

Ibid. Ibid.

"Director General of the Department of Policy and Legal Affairs of GACC Answered Questions on IPR Border Protection.

125 Ibid.

Anti-Counterfeiting Group （ＧＡＣＧ）foｒ its achievements, open

ness, and transparency in protecting IPR126.

3. 1 1 . Judicial enforcement experience of IPR

The Chinese courts system consists of four trial levels: the

Supreme People's Court (SPC), Higher People's Court ( ＨＰＣ) ， Intermediate People's Court ( ＩＰＣ)，ａｎｄ Basic People's Court ( ＢＰ Ｃ)127. Each court has its own four divisions: civil, economic, crimi-nal, and administrative divisions128｡

In order to strengthen judicial enforcement on IPR protection, in 1993, the IP divisions were established by China in High People's Courts in Beijing, Shanghai, Tianjin, and other p ｒｏｖinces129. These IP divisions were handling ａ wide range of topics related to pat-ents, trademarks, and copyrights130｡

In 1996, the highest judicial body, the SPC, also established a special 1P division for enhancing the quality trials throughout China, after which IPC in other provinces decided to establish simi-lar divisions131. The SPC established the sample of enforcing IPR by hearing many appeal cases, and the decisions it made became refer-ences for ａ１１ courts in China132. Furthermore, the SPC has made ａ lot of binding judicial interpretations on ａ１１ １Ｐ courts133｡

The development of the IP divisions in the courts has spurred an increase in IP litigation134. For example, IP cases increased from

126 Xinhua, "China's Customs Honored for IPR Protection," Intellectual Prope?ｒ眇 Protection in Ch 加a, June 12 ， 2011, http://ｗｗｗ.chinaipr･ｇｏｖ.ｃｎ/newsarticle/ news/government/201106/1230557 ユ.html.

127 L. Wang, "Intellectual Property Protection in China," The International Inform aぴon & LibΓαひ 沢ａ 庇w 36, no. 3 (2004):257.

128 Zhang, "Intellectual Property Law in China," 1997, 14･ 129 Ibid., 15.

130 Kolton, "Copyright Law and the People's Courts in the People's Republic of China," 436.

131 Q. Kong, "The Judicial Enforcement of Intellectual Property Rights in China," The Journal of World Intellectual Pr叩 ｅ肢y 4， ｎ０.6(2001):813.

132 Ibid., 812. 133 Ibid.

75.35% in 2003 to 85.35% in 2009, and appeals decreased from 59.38 ％ to 48.82% in 2003. More than 50% of IP cases were settled through court mediation at first instance130. The IPR judicial enforcement is executed by the courts through case-handling. Usually, Chinese courts handle civil litigation where IP owners complain against infringers through the court, criminal litigation where prosecu-tors sue suspected infringers, and administrative litigation where the parties are dissatisfied with acts of the authorities of IP administration136. Before the establishment of IP Courts in China, disputes were handled either in the Civil Divisions or the Economic Divisions of the courts137.

3.12. Criminal measures

Chinese criminal copyright infringements are regulated by the Article 217 and Article 218 0f the Ｃ八minal Lawm, and by two Ｊαぷｃ治Z 一Interpretaぴons of the Supreme People's Court and the

Supreme People's Procuratorate, which gives explanation and

terms that compose ａ crime. The first Judicial Interpreta ぴon is the 'Interpretation  卵  沽ｅ Supreme Peoph?'s Court SPC and  沽e Supreme ｔ ｅ叩Procurate SPP on Sevi?Γal Issues ｏ/゛ ConcreU? Å珂 ぷcation of Laws in Handling C 八白rial Cases ｏ八 治 加 明 加ｇ 刧 ひllectual Pr 叩 ｅべy ( No. 19, 22 December 2004)139, which provides

134 Zhang, "Intellectual Property Law in China," 1997, 67･

135  ¨中 国 法 院 知 枳 彦 枚 司 法 保 枦 状 况(2009)( 英 文 本) (Intellectual Property Protection by Chinese Courts in 2009)accessed March 29 ， 2012, http:// www.court･gov.cn/zscq/znss/201004/t20100426_4545.html･

１３６ Kong, "The Judicial Enforcement of Intellectual Property Rights in China," 812.

137 Kolton, "Copyright Law and the People's Courts in the People's Republic of China," 437.

138 Criminal Law of the Pe叩Z 醜 沢印 功lie of China, 1979,http:// ｗｗｗ.wipo.int/ wipolex/en/text.jsp?file_id= 181340･

139 'China: Interpretation by the Supreme People's Court SPC and the Supreme People's Procurate SPP on Several Issues of Concrete Application of Laws in Handling Criminal Cases of Infringing Intellectual Property,' adopted at the 1,331st Session of the Judicial Committee of the Supreme People's Court on 2