The Greater China IP Updates

 By Lyndon 

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Fair Use Adjustment in Copyright Law of China

When China amended the Copyright Law in November 2020 (to become effective on June 1, 2021), as well as increase the punishment measures for infringement, the concept of fair use was clarified.  Originally, the law stated that: ˇ§free of charge live performance of a published work, without the permission from and payment of remuneration to the copyright owner, is permitted when neither fees are charged from the public nor the remuneration is paid to the performers, provided that the name of the author is mentioned.ˇ¨  However, that left an unintended loophole because a profit could still be made by charging advertising fees through free performance.  With the new amendments, the law has been changed to state: ˇ§In the following cases, a work may be exploited without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work shall be mentioned and the other rights enjoyed by the copyright owner by virtue of this Law shall not be prejudiced.ˇ¨ And also, ˇ§free of charge live performance of a published work and for said performance neither fees are charged from the public nor the remuneration is paid to the performers, and the performance is not for the purposes of making profits.ˇ¨

Implementing Regulations of the China Patent Law

To facilitate the practice of the newly updated Patent Law, draft amendments to the Implementing Regulations have been published.  These regulations are aimed at guiding examiners about the rules and regulations under the Patent Law.  For example, Rule 6.5 states that in the event of a state emergency or some other extraordinary situation, the Patent Administration Department may extend the time limit for patent applications.  This new rule has been activated to take the Covid-19 pandemic into account.  Rule 43.1 gives more detail about what violating the principle of good faith means by giving examples such as, fabrication, forgery, and plagiarism.  Rule 62.1 allows for additional issues to be raised during reexamination proceedings even though they were not pointed out in the original Rejection Decision.  The reexamination petitioner will, however, be allowed to express opinions.  Since these are just draft regulations, further public scrutiny may result in some adjustments before the law comes into effect.

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Technology and Innovation Support Centers in China

Together with the World Intellectual Property Organization (WIPO), the China National Intellectual Property Administration (CNIPA) has established 51 Technology and Innovation Support Centers (TISCs) nationwide.  These centers offer IPR information services that can potentially unlock great value in less developed parts of the country.  By giving access to a range of patented processes, rural and urban areas can mechanize agricultural activities more efficiently and construct an industrial chain that will increase incomes.  The concept of Geographical Indications plays into this very well as it is in rural areas where traditional products have kept their individuality.  By late 2020, a total of 2,385 GI protection products have been approved, and 5,935 GI trademarks have been registered.  By combining patented technologies, trademark brands and geographical indications, the CNIPA has shown how less developed regions can improve economically.

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