China losses suit against U.S on Protection of Intellectual Properties
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So what does this mean for china? does that mean they are going to enforce the patent laws? Anti Piracy laws?
Here is the full article:
美控中保護智財不力 WTO判中國敗訴
【中央社╱日內瓦26日專電】
2009.01.27 10:37 am
美國在世界貿易組織（WTO）控告中國保護智慧財產權不力，爭端解決小組今天做出判決，採納美方大多數觀點，包括認為中國不保護未通過審查書報的版權違法。
美國代理貿易代表歐蓋爾（Peter Allgeier）發表聲明指出，小組的發現「是一項重要的勝利」。
這起訴訟，美國在2007年4月向中國要求諮商，未獲結果，同年9月爭端解決小組成立。美國的三項主要訴求，小組認為有兩項裡中國的法律或措施違反「與貿易有關智慧財產權協定（TRIPS）」，另一項美方舉證不足。雙方都還可以上訴。
中國著作權法第四條規定：「依法禁止出版、傳播的作品，不受本法保護」。中國在小組調查審理過程中爭辯，未通過審查的出版品既已全面禁止，自然就不會在市面上流通盜版，可見「有了公共審查，便不需要私人訴訟」。
三名專家組成的在小組在報告中指出，政府審查跟著作權法二者保護的是不同的權利與利益，中國的說法缺乏根據。
另外，美國指控中國海關將查獲的仿冒商品僅僅去除商標後，就進行拍賣流回市場，這會混淆消費者認知，反而傷害被仿冒品牌的商譽，甚至讓仿冒行為有增無減。小組也判定中國敗訴。
小組建議，中國應使其著作權法和海關措施符合它在TRIPS下的義務。
第三，美國指出，TRIPS中規定，達到「商業規模」的盜版或商標仿冒，就應該以刑事犯罪處理，但中國刑事法把構成犯罪的數量門檻訂得太高，不符市場現實。
對此，小組認為，商業規模是個相對概念，要證明中國的成罪門檻高到無法打擊商業規模的盜版和仿冒，美國所提的證據尚不足。
【2009/01/27 中央社】@ http://udn.com/
P.S I am not good at translating so I am not going to try
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January 27th, 2009 at 10:54 pm
Patents keeps the poor of the world poor, it was created to make China poor, limit her productions and trade.
January 28th, 2009 at 12:05 am
@Vmoore55 – Yeah, that’s why countries which encourage innovation through IPR systems are so poor!
Seriously, go and check out what the average patent is about. Most likely it will be about a small mechanical or chemical invention which will hopefully improve some area of industry slightly. Now who would bother inventing such a thing if he could not profit from doing so?
I wrote a piece on a talk I heard about the US v. China WTO case last year, you can read it here:
http://foarp.blogspot.com/2008/04/eipin-windsor-justin-hughes-on-china-v.html
Short and tall of it? I don’t think this decision is going to affect anything.
PS – I actually worked in a patent office in China drafting US patent applications (although the final draft was, of course, done by a qualified patent agent). The applications we filed were all for inventions developed in China and Taiwan for photolithography methods, PCB printing methods, heat-pipe devices, fans, and a million different widgets for use with mobile phones and lap-top computers. That is to say, Chinese workers benefited directly from protection under US patent law. Without these patents, the products we made for the US market could be copied by someone else and our company (which employs more than 500,000 workers, mostly in mainland China) would lose business and have to lay off workers.
For this reason I am a firm believer in the patent system, and I believe it benefits all the countries that join it. Sure you can argue as to whether countries should allow the patenting of say, business methods (in fact, I believe the US courts are thinking of revisiting the State Street Bank decision and may overturn it), but if there is a better system for encouraging innovation that patents, I’d like to hear it!
January 28th, 2009 at 3:57 am
Patents secure their holder an exclusive right to sell or not, collect fees or license rights, plus the right to sue. Where the holder is the only seller in the market, and the holder is often having a monopoly on it.
It’a no more than having monopolies on information and intellectual monopoly rights, even to the detriment of all societies.
Look up the UK’s patent on China and ask who owns the rights to it?
January 28th, 2009 at 5:58 pm
@Vmoore55 – Yeah, I guess companies like Microsoft, Boeing, BAe, Lenovo, Hitachi, Sony, Hyundai etc. are operating at a detriment to the rest of society. Strange then that most people don’t want to go the way of North Korea.
Look, if you don’t allow inventors a limited monopoly over their inventions then they have no reason to make their inventions public – they will simply keep them secret. The patenting system represents a bargain between the state and inventors whereby inventors are granted a limited monopoly over their inventions in exchange for filing documents which will tell anyone skilled in the art how to practice the invention. In this way society receives a benefit, and others may learn from patents and attempt to improve them, and patent their improvements in turn. Otherwise no one would ever allow the secret of their invention to become public.
February 5th, 2009 at 9:55 pm
You know, the more I think about this the more I am inclined to say that the WTO as an organisation doesn’t really work in its current form. Right now the only way to enforce compliance with the WTO terms is state-to-state actions, but national citizens suffer as much as foreigners from state non-compliance, and the remedies available even when the WTO finds that there has been a breach (i.e., retaliation) is stupid – it essentially makes the citizens of a country suffer for their government’s failure to implement. So if the American government acts against the WTO treaty when they block internet gambling websites based in Barbados,then the WTO grants Barbados a licence to infringe the IP of American citizens – does this make sense as a legal system?
A much better system would be one founded on the idea of state liability. The WTO clearly grants a benefit upon the citizens of signatory countries, why not allow citizens of signatory states to sue the government of non-compliant states through the national courts when they suffer loss as a result of that states non-compliance? This principle is used in the EU to good effect, and I think it would be a good way of allowing individuals to recover their own personal loss whilst putting pressure on the national government using their own legal system without all the problems involved in the current state-to-state actions. If they don’t want to be held liable for non-compliance – fine, they shouldn’t be allowed in. States which wish to enjoy the benefits of WTO membership without fulfilling their duties under the agreement should be forced to pay for the harm they cause.