How to protect intellectual property rights in China?

In the short period of more than ten years from the end of 1970s to the present, China has done a lot of fruitful work, gone through the legislative process that some developed countries usually need decades or even hundreds of years to complete, established a relatively complete legal system for intellectual property protection, and made remarkable achievements in intellectual property legislation and law enforcement. China regards the protection of intellectual property rights as an important part of reform, opening up and socialist legal system construction. Since the late 1970s, China has formulated relevant laws and regulations, and actively participated in the activities of relevant international organizations to strengthen exchanges and cooperation among countries in the world in the field of intellectual property rights. Therefore, the construction of intellectual property protection system in China has shown a high starting point facing the world and international protection level at the initial stage. Driven by the reform and opening up, the speed of intellectual property legislation in China is unprecedented. In just over ten years, laws and regulations on intellectual property protection, such as Trademark Law, Patent Law, Copyright Law and Regulations on the Protection of Computer Software, have been promulgated and implemented one after another, and they have actively participated in international cooperation in the field of intellectual property, and successively joined the World Intellectual Property Organization, Paris Convention, Madrid Agreement, Berne Convention and universal copyright convention. At the same time, the State Trademark Office, Patent Office, Copyright Bureau and other intellectual property law enforcement agencies have been established accordingly, and a set of international intellectual property legal protection system has been initially established, which not only embodies the characteristics of China. These have played an important role in safeguarding the legitimate rights and interests of knowledge creators in China, promoting the commercialization of scientific and technological achievements, and promoting the opening up and the development of international economic, scientific, technological and cultural cooperation and exchanges. At present, our government is gradually amending laws that are inconsistent with the WTO, which shows that we are moving towards WTO rules in good faith and doing a solid job in judicial protection of intellectual property rights. However, it must be noted that there are indeed many problems in the protection of intellectual property rights in China. In some respects, counterfeiting is prevalent and intellectual property rights are wantonly violated. In some places, counterfeiting is in collusion with underworld and corruption, and the situation is grim. Some fakes are made in remote and hidden places and traded with very modern tools. At the same time, we should also see that there is still a big gap between China's intellectual property legal system and the high level of protection in developed countries and internationally. For example, the patent law promulgated by 1984 excludes inventions such as medicines, chemicals, food and beverages protected by most countries today from patent protection; 1983 trademark law only protects the exclusive right to use a commodity trademark; Even in the copyright law promulgated later, the practice of "internal and external differences" still exists. That is, the works of China citizens or units can automatically obtain copyright whether they are published or not, while the works of foreigners must be published in China to obtain copyright; Patent and trademark infringement can be applied to civil liability, administrative liability and criminal liability, but there is no criminal liability for copyright infringement. It is gratifying that the establishment of China's socialist market economy system and the full development of the market economy have provided the most favorable internal environment and solid economic foundation for the internationalization of China's intellectual property protection system, and further promoted the integration of China's intellectual property protection system with international rules. Four. Promoting the Internationalization of Intellectual Property Protection System in China China's Achievements in the Internationalization of Intellectual Property Protection System At the 35th General Assembly of the World Intellectual Property Organization, China's proposal was adopted and it was decided to designate April 26th as World Intellectual Property Day from 200 1. With the development of knowledge economy and the acceleration of economic globalization, the status and role of intellectual property rights are increasingly prominent. At the press conference held by the International Cooperation Center of the State Council Economic Restructuring Office, Martin, the owner of M-CM, an authoritative company of intellectual property evaluation in the United States, told China: "During the period when we are here to discuss the protection of intellectual property rights in China, tens of millions of profits transformed from property rights have fallen into other people's pockets in China." After China's entry into WTO, intellectual property protection must be regarded as foreign-related

The "top priority" of management. Since 1992, in the process of perfecting the intellectual property protection system, China has paid attention to the protection of intellectual property rights in accordance with international norms, especially in the legislation and legal implementation of intellectual property rights, and gradually moved closer to the GATT agreement on intellectual property rights. Specifically, the following work has been done: in terms of legislation, China has revised the patent law and trademark law in time; In the newly promulgated Anti-Unfair Competition Law, the protection of trade secrets has been increased. The National People's Congress Standing Committee (NPCSC) has successively formulated the Supplementary Provisions on Punishing the Crime of Counterfeiting Registered Trademarks and the Decision on Punishing the Crime of Infringement of Copyright, making China's intellectual property legislation basically reach the international level. In particular, the revision of China's patent law is generally consistent with the requirements of GATT's Intellectual Property Agreement, which further improves the degree of international protection of China's patents. Law enforcement: In order to further strengthen the enforcement of intellectual property laws, the State Council has established a meeting system of the Intellectual Property Office, which is responsible for macro-management and coordination and guidance of intellectual property work. Major provinces and cities across the country have also established corresponding coordination and guidance institutions or working conference systems to seriously investigate and deal with intellectual property violations. The State Council issued the Decision on Further Strengthening the Protection of Intellectual Property Rights, which further strengthened the means of administrative protection of intellectual property rights. At the same time, China also attaches importance to the use of judicial procedures to protect intellectual property rights, and many places have set up intellectual property courts to hear intellectual property cases. China Customs General Administration has also taken border protection measures to prevent the import and export of infringing products. It can be seen that after several years of work, the legal protection system of intellectual property rights in China is striving to reach the level of developed countries and international standards. How to further promote the international integration of China's intellectual property protection system? Today, with the internationalization of intellectual property system and the gradual dismantling of tariff barriers, it is not enough to have a competitive advantage in the market only by developing high-tech achievements. Only under the premise of obtaining patents according to law and being effectively protected can we finally form our own unique competitive advantage in the market. "Economic globalization" is a double-edged sword-while sharing the benefits of the international market, it also requires the establishment of a new international economic order conducive to trade and investment liberalization and effective protection of intellectual property rights. In the middle and late 1980s, the signing of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) became an important symbol of the reform of the international intellectual property system. Driven by the implementation of the TRIPS Agreement, countries and organizations in the world have successively concluded and revised the Patent Law Treaty and The Hague Agreement on International Registration of Designs. The "outside world" tells us that from building a car behind closed doors to telling the world that "this is my car", our wheels must catch up with the pace of the world. In view of the shortcomings of China's intellectual property protection system, the author puts forward the following ideas on how to promote the internationalization of the intellectual property protection system: taking the revision of the patent law, trademark law and other laws as an opportunity, the provisions that the people's courts have the right to conduct final judicial review of all administrative decisions made by administrative organs are added to the above laws, so as to effectively protect the rights and interests of intellectual property rights holders and keep in line with international standards. Regarding the principle of liability for intellectual property infringement, "when revising the existing intellectual property law, we should comprehensively consider the characteristics of intellectual property infringement, balance the interests of all parties and the possibility in law enforcement practice, and refer to the existing cases abroad to stipulate the application occasions of the principle of no-fault liability and the principle of fault liability in different situations of direct infringement, * * same infringement and indirect infringement, instead of denying the former or the latter across the board." The Supreme People's Court can make a judicial interpretation of the principle of liability for intellectual property infringement, and make it clear that different types of infringement adopt different principles of liability. That is, direct infringement of intellectual property rights adopts the principle of no-fault liability, and indirect infringement of intellectual property rights adopts the principle of fault liability. In the course of litigation, after the obligee has filed an application and provided effective guarantee, the court should take measures such as prior execution in time to stop the infringer from continuing to infringe and avoid irreparable damage to the obligee of intellectual property rights. In this regard, the Supreme People's Court can make a new judicial interpretation of the conditions for prior execution, so as to facilitate the application of the parties and the specific operation of the court. Strengthen judicial relief for intellectual property rights holders in judgments. In terms of civil relief, the economic compensation liability of the infringer should be calculated based on the illegal profits obtained by the infringer, the losses suffered by the infringed or the amount not less than the reasonable use fee. Among these methods, the obligee has the right to choose. For the infringer who intentionally commits infringement and causes serious consequences, it is necessary to compensate not only the obligee for the losses caused by his infringement, but also the plaintiff for the infringement profits, so as to increase the sanctions against the infringer. China should establish a statutory compensation system as soon as possible. According to China's specific national conditions, the amount of legal compensation that the infringer should bear should be between 5,000 yuan and 200,000 yuan when the profits obtained by the infringer or the losses caused by his infringement are difficult to calculate. This statutory compensation amount is applicable to all cases of infringement of intellectual property rights. In the case of infringement of intellectual property rights, all reasonable expenses paid by the obligee to stop the infringement, such as attorney's fees, investigation and evidence collection fees, notarization fees, audit fees, appraisal fees, transportation fees, etc. , shall be borne by the infringer. A principle that should be observed when determining the amount of compensation is that the infringed person should understand that there is a price to pay for infringement, and it is not worth the loss. Only in this way can we punish the infringer. In a word, China's intellectual property protection system cannot be separated from the international protection stage. Establishing an intellectual property protection system in China that meets international standards is not only the need of modernization and internationalization of China's intellectual property legal system, but also the inevitable requirement of China's further reform, opening up and development of socialist market economy. It is believed that with the further integration with international standards, China's intellectual property system will be improved. On this basis, China should, as always, actively participate in the activities of relevant international organizations, fulfill its obligations in various international treaties and agreements in the field of intellectual property, continue to cooperate with other countries on the basis of the Five Principles of Peace and the principles of equality and mutual benefit, and make joint efforts to improve and develop the international intellectual property system and make positive contributions. Now, China has joined the WTO, the World Intellectual Property Organization and the process of world economic integration. Joining the WTO means that we must abide by the "rules of the game", because only in the game of rules and regulations can we have the opportunity to continuously learn and introduce advanced technology and management experience, and we can have our own independent intellectual property rights through our own original innovation and participate in higher-level competition-this is the long-term interest and goal of China's reform and opening up!