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People's Daily: China is an important force in promoting international protection of intellectual property rights
发表时间:2019-04-11     阅读次数:     字体:【

So far this year, the us has accused China of "coercive technology transfer" and unilaterally provoked a trade war with China. Protecting intellectual property rights is a consistent and clear-cut position of China. What the United States is doing is out of selfish interests, and it also has a negative impact on international intellectual property protection. The current international intellectual property protection rules are the legal order formed after years of practice in the international economic and trade field. Although the system is imperfect and unreasonable, it has played an active role in promoting economic globalization and maintaining the international order of intellectual property rights. Parties should work to reform and improve the system to make it more equitable and just, and should not abandon it for their own narrow interests. In the future, China will pay more attention to ipr protection and make positive contributions to improving global ipr governance.

Since the beginning of this year, the United States has unilaterally started a trade war against China, not only imposing tariffs on goods from China, but also publishing the so-called "301 investigation report", accusing China of implementing "unfair trade" practices related to intellectual property rights. It is related to the misreading and misjudgment of China's laws and practices on ipr protection. At a deeper level, it is related to the narrow position of the us that only considers its own interests.

Protecting intellectual property is China's consistent position

China revised relevant laws, regulations, policies and judicial interpretations before and after its accession to the wto in 2001, making China's ipr protection consistent with international prevailing rules in terms of legislative spirit, content of rights, protection standards and legal remedies. These include the agreement on trade-related aspects of intellectual property rights, as well as the world trade organization's investment rules, trade rules, etc. This fully demonstrates China's openness and sense of responsibility.

It should be made clear that the international community does not currently have multilateral rules on technology transfer. Even so, China entered the world trade organization promising that government approval of foreign investment would not be conditional on technology transfer. However, the government does not interfere in the independent cooperation between the two parties. There is no mandatory technology transfer in Chinese law. Article 43 of the regulations for the implementation of the law on chinese-foreign equity joint ventures contains binding provisions on technology transfer agreements, such as technology royalties, term of the agreement, continued use of the technology after expiration of the term of the agreement, and reciprocal exchange of improved technology between the parties, but there is no provision that obliges a foreign enterprise to transfer its technology to a Chinese enterprise. Article 27 of the regulations on the administration of technology import and export stipulates that, within the term of the technology import contract, the achievements of technology improvement shall belong to the improver. In accordance with the principle of "who creates who owns", the improver has no right to have the right to improve the technical achievements, and the improver may be the technology transferor, the technology transferee or both parties. Technology import and export is a technology import contract, article 29 of the regulations of restrictive clauses, such as not restricting the receiving party to improve the technology supplied by the supplying party or restricting the receiving party to use the improved technology, not restricting the receiving party from other sources and the technology supplied by the supplying party similar or competing technology, etc. These are general examples of international technology transfer and do not involve mandatory technology transfer.

The Chinese government and judicial departments strictly fulfill the commitments of China's accession to the world trade organization. Over the past decade and more, China's ipr protection has been strengthened and its business environment has improved significantly. As early as June 2008, China issued the outline of the national intellectual property strategy, making a strategic plan to strictly protect intellectual property rights. In terms of legal system construction, the patent law, copyright law, trademark law and anti-unfair competition law have been successively revised, and an intellectual property legal system that conforms to the rules of the world trade organization and China's national conditions has been established, providing legal guarantee for the protection of intellectual property rights. In terms of the judicial system, China has established intellectual property courts in Beijing, Shanghai and guangzhou, and intellectual property courts in 15 cities. In the past five years in particular, nearly 800,000 civil, administrative and criminal cases concerning intellectual property rights have been concluded by courts nationwide. In terms of administrative law enforcement, the state intellectual property office (sipo) has been re-established to strengthen law enforcement and strengthen law enforcement. It can be said that the pattern of great protection, strict protection, quick protection and equal protection of intellectual property rights has basically taken shape. In 2018, promulgated by the state council "about positive and effective use of foreign capital to promote economic development measures of high quality notice, emphasize intensify protection of intellectual property rights, counterfeiting to crack down on infringement, increase of foreign investment enterprises reflect more infringement of trade secret, trademark malicious registered and business identity confusion of unfair competition, patent infringement of counterfeit, infringement of online piracy and other intellectual property rights infringement violations of the punishment dynamics, reiterated that foreign investment in the process of technical cooperation conditions by investment parties agreed, staff members of the people's governments at various levels shall not use administrative means to force technology transfer.

It can be seen that the protection of intellectual property rights is a consistent and clear-cut position of the Chinese government. In foreign-related investment activities, China has not implemented compulsory technology transfer through laws, policies and administrative examination and approval procedures. As for the technology transfer of some enterprises or individuals, it is a normal commercial behavior and a manifestation of the autonomy of the market subject. If these ACTS involve disputes over intellectual property rights, they are also individual cases and should be submitted to relevant judicial organs for adjudication on the basis of ascertaining the facts. Us accusations that China is not doing enough to protect intellectual property are not true.

Unilateralism is not conducive to global intellectual property governance

The United States unilaterally provoked trade disputes by launching the so-called "301 investigations" and "special 301 investigations" mainly in accordance with its domestic laws, the trade act of 1974 and the comprehensive trade and competition act of 1988. Among them, "301 investigation" involves all "unfair trade" practices, and "special 301 investigation" is a special investigation on intellectual property rights. These reports often emphasize the realization of the interests of the United States, which is not objective and fair. On this basis, the United States government will judge whether foreign policies and behaviors harm its trade interests and decide whether to adopt sanctions or not. In the event of intellectual property conflicts with other countries, the United States applied unilateral sanctions based on its domestic laws before the establishment of the world trade organization. After the establishment of the wto, the United States in most cases resorted to the multilateral dispute settlement mechanism of the wto for settlement.

In recent years, some countries have seen the rise of unilateralism and trade protectionism, which have become negative factors affecting international ipr protection. The current international ipr protection rules are the legal order formed after years of practice in the international economic and trade field. The international ipr protection rules, together with the international trade rules and the international investment rules, constitute the basic rules of the world trade organization.

The international protection system of intellectual property is centered on the agreement on trade-related aspects of intellectual property and has two characteristics. In accordance with the principle of "minimum standards of protection" of international conventions, each contracting party shall provide intellectual property protection in its domestic law no less than the minimum standards set forth in the convention. "Minimum protection standard" is a kind of conformance standard, involving the object, acquisition, content and even protection of intellectual property rights and other basic norms. It is the universal application of this principle that promotes the formation of a pattern of integrated protection of intellectual property rights in the world. Second, the binding nature of the dispute settlement mechanism. The agreement on trade-related aspects of intellectual property rights provides procedures for the mediation of disputes through consultation, mediation, adjudication, appeal and enforcement. In case of any intellectual property dispute between the contracting parties, the parties shall consult first or ask a third party to mediate; If consultation or good offices fail, an expert panel may be applied for a ruling; If an expert is not satisfied with the ruling, he may request the appellate body to make a final ruling; Once a final decision is made, both parties must comply. This rule states that any contracting party must deal with intellectual property disputes in accordance with the wto dispute settlement mechanism and cannot resort to unilateral trade retaliation.

In the past 40 years, disputes related to intellectual property have emerged from time to time in the development of sino-us economic and trade relations. Before China joined the world trade organization in 2001, China and the United States also had a number of conflicts over intellectual property rights, but eventually reached an agreement. After China's accession to the world trade organization, the intellectual property disputes between China and the United States are mostly resolved through consultation. But since march, the us has taken direct trade retaliatory moves. This unilateral approach, which abandons the dispute settlement mechanism, runs counter to the basic spirit of the world trade organization and leaves the international community disappointed.

The United States and China are the largest developed and developing countries in the world respectively. Since the reform and opening up, China has gradually changed from a follower and follower of international rules to a participant and facilitator, making continuous positive contributions to the international community. The United States always prides itself as the leader and leader of economic globalization and the integration process of intellectual property, but now it is out of selfish interests and has become a destroyer of international rules time and again. This not only affects the effectiveness and authority of relevant international rules, but also brings great uncertainty to the international protection system of intellectual property. (wu handong / | People's Daily)

(the author is honorary director and professor of intellectual property research center, zhongnan university of economics and law)


 
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