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IPR judicial system in need of review - expert
By Liu Li (China Daily)
Updated: 2006-02-16 06:10
China's judicial system to protect intellectual property rights (IPR),
including rights against online violation, has loopholes in law enforcement,
legal experts claimed yesterday.
They also stressed the need for all levels of the Chinese Government to
provide equal intellectual rights protection for foreign and local enterprises.
"The judicial protection system for IPR needs to be further improved," Li
Shunde, law professor at the Chinese Academy of Social Sciences, told China
Daily yesterday. "For example, some law enforcement staff lack sufficient
capability and experience."
As for the system implemented by the judicial departments, there are also
problems, claimed Li.
One of them involves the constant changing of judges' assignments with regard
to the type of cases they handle, he complained, such as IPR cases versus
criminal cases.
"Although the country began to hear and make judgements over IPR cases more
than 20 years ago, there are few judges who have been doing the work for more
than 10 years," he said.
"Even the number of IPR judges who have worked for more than five years in
the field is rather small."
As for the legal structure, the third revision of the Patent Law and its
implementation rules will finish by the end of 2008 to meet the requirements
that accompanied China's entry into the World Trade Organization.
"China has enough laws in IPR protection now," Li said.
Lawsuits filed involving foreign individuals or companies are usually handled
by intermediate people's courts or above. However, IPR rights owners can also
appeal to responsible government departments, such as the copyright department.
Those departments may legally punish those who have been proved to have
violated IPR rights without any court action, but those cases involving a
suspected criminal offence may also be transferred to the police or prosecutors,
Li pointed out.
As some foreign enterprises chose to complain to the departments to catch and
punish suspected rights violators, Li and Tang Guangliang, IPR associate
professor at the Chinese Academy of Social Sciences, agreed that the process was
unfair but for different reasons.
"The phenomenon is abnormal," Li said. "As IPR rights are private, only those
violations that negatively influence the public interest could be dealt with by
governments."
Tang said if the departmental route mainly helped those foreign companies,
then it would be an infringement on the rights of Chinese individuals and
companies.
They both agreed that individuals and companies should take suspected
violators to court rather than seek help directly from governments.
(China Daily 02/16/2006 page2)
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