Category: <span>学术论文</span>

Book Chapters-The Intellectual Property Law (2004)

Here are English abstracts of my book chapters in CHEN Xinghua (ed.), The Intellectual Property Law (Kunming: Yunnan University Press, 2004).

Chapter 25: Name of Commercial Entities and Geographical Indication
This chapter includes two sections. The first one introduces the following contents: the identification and characters of the Name of Commercial Entities (NCE); the conditions for gaining NCE; how does Chinese law regulate the NCE, i.e., the specific regulations in Trade Mark Law, Anti-Trust Law and Civil Law; and how could these regulations be applied in the dispute resolution. In the section of “Geographical Indication”, the notions of Indication of Source, Appellation of origin and Geographical Indication (GI) will be differentiated and compared, followed by the description of the protective mode on GI, through which the related provisions of TRIPS will be examined and possible legislation suggestions in China will be proposed.
Key contents of this chapter include: the identification of NCE, the difference between NCE and trade name; the name rule of NCE in China; the legal protection to NCE; the difference and connection among Indication of Source, Appellation of origin and Geographical Indication; the identification of GI in TRIPS; the protective regulation in China’s Trade Mark Law. During the studies, it is advisable that the students should familiarize the international and domestic regulations related to this chapter. And the method of moot court could be utilized to furniture the comprehensive capacity in problem resolving in the reality.
There are about 10,000 Chinese words in this chapter.
Chapter 26: The Intellectual Property Concerning Internet and the Information Technology
This chapter is a pilot pedagogy on “Internet Intellectual Property”. It discusses the questions of domain name, integrate circuit layout design and the rights of website and homepage designers. It introduces the related modern legal system and familiarizes the students about consultant know-how at one hand. On the other hand, it demonstrates the substantial influence of Internet era on the intellectual property and civil law system and the significance of cyber law.
Key contents of this chapter include: the concept of domain name; the identification and characters of rights of domain name; the copy right features of domain name; the dispute resolution arrangement in China; the standard of ill faith in defying domain name violation; the relation between Uniform Domain Name Dispute Resolution Policy and judicial litigation; the copy rights contents of integrate circuit layout design and the preconditions to gain such rights; the concept of data base; the copy right relations between data base software designer and website designer; the jurisdiction on Internet intellectual property disputes; the infringement of illegal using of published works and the responsibilities of website designers/owners and Internet service providers.
There are about 22,000 Chinese words in this chapter.
Chapter 28:The International Protection on Intellectual Property
This chapter briefly reviews about twenty international treaties on the arena of intellectual property; among them include the major components of Paris Convention, Berne Convention, Copy Right Treaty of WIPO and TRIPS. The protective system in relation of intellectual property in WIPO and WTO are also introduced. Furthermore, the chapter discusses the international registration of trademark and international protection on copyrights. The reader may want to refer the other chapters that examine the related questions in depth for a better understanding of this chapter. The main provisions of the international treaties and their development process are the key issues of this chapter.

There are about 18,000 Chinese words in this chapter.

Lecture – WTO IP Disputes – US v China DS362 DS363

On 2 Dec 2008, invited by my friend Ms. LEE Na, I lectured for 2 hours in English at the bilingual course "Advanced Int’l Trade Law" in School of Law, Kunming University of Sci. & Tech. The topic is: WTO IP Disputes: US v China DS362 & DS363.

 Here is the PPT. It will be updated along with the dispute resolution procedures. Please visit my website for the newest version.


Book Chapter – Taxation Issues in the E-commerce

DONG Hao, “Taxation Issues in the E-commerce”, in LI Zuming (ed.), E-commerce Law, Beijing: University of International Business and Economics Press (2009), 19,000 words;


The E-commerce should not escape itself from the taxation. However, the troditional tax law and taxation policies would not cope with the new challenges including the identification of the taxpayer, the jurisdiction issues, the "new" objects of taxation, etc. This chapter firstly analyzed the impacts of the online commerce to the traditional tax law. Then it introduced the achievements either in the academia or in the legislations in various countries. China’s relevant taxation policies and the future development are discussed in the third section of this chapter. To make this book more practical,  although the structure of the chapter can be divided to the above three parts, the whole chapter always focuses on the possible dilemma as well as the solution in the context of Chinese taxation system.


Promoting Human Rights in Transitional Cultures

Promoting and Protecting Human Rights in Transitional Cultures:
An Empirical Case Study in Minority Regions (Excerpt)



The article includes six sections. Only the Introduction and an excerpt of Part I and Part II are provided here. The Chinese full-text was published at Achieves for Legal Philosophy and Sociology of Law, Vol. 7, 2004, Beijing, 18,000 words in Chinese.

Click here for the Chinese Full-text (PDF)



This article reviews the dilemma on the notion of “culture” in current human rights research with seven cases related to the ethnic cultures. Associated with the analysis of cultural relativism and the universalism of human rights, the following conclusions have been made: (1) culture itself is a dynamic phenomenon which will produce significant influence on people’s rights in reality; (2) the transformation of specific ethnic culture could be in accordance with the international human rights standard by occasion, at the same time, it also constitute the obstacles to the realization of those human rights; (3) National ideology can influence the transformation of certain culture; (4) through this influence, it is possible that the traditional ethnic culture can absorb the values of modern human rights ideas; (5) there’s no hurdle between ethnic culture protection and human rights protection; (6) the culture transformation is based on its origins and basis no matter how the national ideology want to impose the impacts; (7)a precondition of influencing the ethnic culture through national intervention is to protect the existing cultures as well as its autonomy and free development; (8) the so-called culture protection could produce further influence on the transformation of the protected culture.

Orphan Work Problem under Chinese Copyright Law

 Orphan Works in the Context of Chinese Copyright Law:
A Comparative Research


Abstract: "Orphan Works" means works whose copyright (if not expired) owners can hardly be located, hence the users may not exploit the works lawfully with the licenses issued by right owners. Discussions to this topic in the U.S. and Britain have been raised for years, and the Bills for orphan Works have been introduced to the U.S. congress several times. The dilemma of orphan works and abandon softwares also exists in the context of Chinese copyright system, and this phenomena may be more widespread because the history of Chinese copyright law in the recent 100 years are inconsistent, unsteady and intermittent. Furthermore, the current Chinese copyright system is of not mature enough. It not merely lacks solutions for  the orphan work problem, but also exists unreasonable provisions that may worsen it. Four factor should be considered when one is about to solve the problem: (1) comply with the three-step test; (2) based on existing legal system of the country; (3) minimize the cost of both right owners and users; (4) guarantee the predictability of the benifits and the obligations. Based on these four premises, this article critically reviewed the solutions in the U.S., Canada and Japan,  and then proposed a set of multi-method and integrated suggestion that suit to the features of Chinese copyright regime.

orphan Work, statutory licence, compulsory licence, authorship, public domain

The paper (in Chinese, 21,000 words) has been accomplished in Nov. 2006, and it is continuously updating before the formal publication. If you need it, please conatct the author.





[摘要] “孤儿作品”是指因难以找到权利人而无法取得使用授权的作品。美国《2006孤儿作品法案》已被提交国会讨论。孤儿作品现象在中国同样存在且可能更为普遍,现行中国著作权法律体系不但没有为该问题的解决提供足够的制度资源,而且还存在着不合理的规则。在选择孤儿作品问题的治理方案时应考虑四个方面的因素,以它们为评价标准,综合各种解决模式的优长,结合中国体制的特点后,方可形成一套多模式并用的、中国的孤儿作品法律治理方案。

[关键词] 孤儿作品、法定许可、强制许可、作者、著作权

Paper Abstract – By John BURKE and Hao DONG

Competition Policy and Updating Vehicles for the Delivery of Legal Services: The New South Wales Experience and Lessons for Hong Kong

John BURKE* & Hao DONG**

Accepted by SSCI Journal: Asian and Pacific Law Review

Abstract: Competition policy has been applied to the legal profession in NSW for over a decade. The introduction of a broad reaching competition law to Hong Kong is currently being considered there. This article will review two key aspects of competition policy in NSW, the introduction of incorporated legal practices (‘ILPs’) and multi-disciplinary legal practices (‘MDPs’). In particular, it will explore the degree to which these changes have altered the traditional professional model of legal practice in NSW and the benefits and costs of these effects. These lessons are relevant to legal profession in Hong Kong because proposals in a public consultation paper issued by the Commerce and Economic Development Bureau on 6 May 2008 envisage that competition policy would apply prima facie to all business models. Furthermore, existing (but dormant) legislation permitting ILPs and recommendations to allow MDPs make these changes to the landscape of legal practice a real possibility. This article will conclude that such changes should be viewed with caution in Hong Kong and perhaps other solutions sought to improve the efficiency and productivity of the legal system and access to justice in that jurisdiction.


* Teaching Fellow, City University of Hong Kong. BA (Macquarie University), Dip. Law (SAB), LLM (UTS), Graduate Certificate in University Teaching and Learning (Charles Sturt University).
** Lecturer in Yunnan University (PRC), PhD Candidate in City University of Hong Kong. The authors would also like to thank Professor Christopher Roper and Professor Gino Dal Pont’s careful proof reading, as well as very helpful insights provided by Michael Sandor on the current law of Hong Kong, who refereed this article.


Can the Moral Right be Transferred and Waived?
A Positive Research to the Chinese Copyright Law

(Law School, Yunnan University, Kunming 650091, China)
Abstract: This article reviews the possibility of the transferring and / or waiving the moral rights stipulated in Chinese current Copyright Act. The premise of this discussion is: copyright in Chinese legislation is by nature a kind of statuary right but not natural right. Based on this precondition, this article positively analyzes the moral rights in Chinese copyright law and draws the following conclusion: (1) the right of publication can neither be transferred nor be waived; (2) the right of revision cannot be transferred but can be waived; (3) the right of integrity can neither be transferred nor be waived; (4) the right of attribution can be waived, and when the law accept the conception of transferability, it can be transferred then.
Copyright, Right of Attribution, Right of Publication, Right of Revision, Right of Integrity
This paper has been accepted by the Journal of Yunnan University – Law Edition, the full-text will be provided after the publication. Please visit this page later and see the update.

董 皓
















董皓: 《互联网域名的法律性质及相关问题研究》,云南大学硕士学位论文(2003),第…页,文献获取自:

目 录


Is a Justice of the Peace a Judge?

A revised version of this essay was published in The Standard (Student Edition),  17 September 2008, p. E05.

 Is a Justice of the Peace a Judge?

 Donnie DONG*

As an Andy Lau fan, I am delighted to hear that he was appointed a Justice of the Peace (JP, 太平紳士) by the Hong Kong government this July.[1] What exactly is a JP? Is a JP a Judge? Let’s review the story of JP and see what Andy is supposed to do in his new position.
In ancient Britain, the rule of law was not perfectly established, so the King had to look for reputable knights to keep the peace in unruly areas. Those knights, appointed as “Keepers of the Peace” (和平維護官),[2] were widely respected by the residents in their counties. In 1327, an Act referred to "good and lawful men" to be appointed in every county in the British land to "guard the peace".[3] They were called “Conservators of the Peace” (和平守護官).[4] As such they were authorized to curtail wanderers, dissipate all mutinous and riotous groups, and crack down on thieves and outlaws, and other persons disaffected to the peace. In 1361, their name was altered to “Justice of the Peace” because a statute authorized them to try (審理) the felonies (違法行爲) happening in their own communities.[5] We can conclude, therefore, that JPs were originally judges in the history of British judicial system.
During the colonial times (殖民時代), the British JP tradition had spread around the world. Many colonized countries and regions, such as Australia,[6] New Zealand,[7] Canada,[8] Malaysia,[9] certain states in the United States,[10] as well as Hong Kong,[11] had established their own systems of JP. However, the JP system in different countries began to evolve variously over time. In some countries, JPs still sit in the local courts hearing and judging cases,[12] while in other jurisdictions (法域) such as Hong Kong, the JP’s function of judging the cases has been taken over by full-time, legally-qualified magistrates (裁判官).The reason for this replacement is that the legal system has been more and more complicated, and only professional lawyers can ensure consistency in legal judgments. The result of this development is that in contemporary Hong Kong, JPs are actually not real judges.
Although the responsibility of hearing cases has been shifted to the magistrates, JPs are still very important to the peace of our society because they are all honourable persons with great influence over our communities.[13] According to the law, a JP may visit any custodial institution (羈押院所) or detained person (被羈押者) and receive complaints.[14] This is essential for protecting the human rights (人權) of the detained persons. In other words, as a JP, Andy Lau has the power to investigate any wrongful treatment of prisoners, juvenile offenders (少年犯) and mental patients, or he can refer the cases to the institutions concerned for follow-up actions.[15] That means he will not only act as heroes in movies, but also be a real guardian of justice for Hong Kong people.
“It was a great honour.” Andy said. Yes, indeed. I definitely agree with him, whether as his fan or as a lawyer.


* Donnie DONG, PhD Candidate in City University of Hong Kong.
[1] G.N. (E.) 30 of 2008, in Gazette, No. 26 Vol. 12 (1 July 2008).
[2] James Birch Sharpe, An Inquiry Into the origin of the Office and Title of the Justice of the Peace (Shaw and Sons, 1841), p. ix.
[3] See Her Majesty’s Court Service, The History of Justices of the Peace (Magistrates) , available at
[4] Sharpe, p. 108.
[5] Edward Hasted, The History and Topographical Survey of the County of Kent: Volume 1 (1797), pp. 215-221.
[6] See
[7] See Justice of the Peace Act 1957, New Zealand.
[8] See Justice of the Peace Act, R.S.N.W.T. 1988, c.J-3.
[9] The Justices of the Peace in Malaysia are appointed by states separately. See for example:
[10] Many states in the United States have their own system of Justice of the Peace, such as Arizona, Massachusetts, Connecticut, Vermont, New Hampshire, and so forth.
[11] See Justices of the Peace ordinance, Hong Kong.
[12] For example, In Ontario (Canada), a justice of the peace has judicial jurisdiction throughout the province. See Justices of the Peace Act, R.S.O. 1990, c. J.4, s. 17 (1).
[13] For a list of JPs of Hong Kong, see
[14] See Art. 5, Justices of the Peace ordinance, Hong Kong.
[15] See Administration Wing of the Chief Secretary for Administration’s Office, 2007 Annual Report on JP Visits, p. 3, available at

A revised version of this essay was published in The Standard (Student Edition),  17 September 2008, p. E05.








关键词:非法采礦; 礦產資源價值; 鑒定方法







作者:Peter B. Hirtle*

本表格首次刊发于Peter B. Hirtle先生的论文《版权法的近期改变:版权期限的延长》(Peter B. Hirtle, “Recent Changes To The Copyright Law: Copyright Term Extension”, Archival Outlook, January/February 1999),后被作者刊登于互联网上,并随着时间的推移和美国版权法的修正不断修订。目前所翻译版本中的“是否进入公共领域”是以2008年1月1日为准做出的判断。
美国宪法规定,版权必须在“有限的时间内”获得保护,但这个“有限”究竟是多长时间?要回答这个问题,必须先对其它一些问题作出回答。例如,谁是作品的作者?如果作者是自然人,那么当代版权法所规定的版权保护期间就是作者终生外加七十年。如果是单位作品,那么保护期则截至作品发表后的第九十五年年底,或者作品创作完成后的第 一百二十年年底。
l   作品发表过还是未发表过?
l   如果是发表过的作品,那么是在美国境内还是境外发表的?
l   在发表的时候,作品上是否附带有版权标识?
l   作品是否曾经在版权局登记过?
l   在版权局的登记是否有过续展?
最后,在联邦法下,并非所有已发表作品都能够获得版权的保护,这个表格对此问题也没有详细说明。以录音制品为例,这些作品直到1972年才获得联邦版权法的保护,因此这个表格并不适用于任何在此之前录制的录音制品。 再如,建筑作品直到1990年才得到版权保护;又如,联邦政府创作的作品从未获得过版权保护。当然,本表格对大部分文字、图形、雕塑作品而言,都是适用的。
如果不考虑对作者身份和发表与否的复杂判定的话,那么这个表格至少可以被作为判断作品是否处于公共领域的第一步。在许多方面,这个表格其实是基于 Laura N. Gasaway的成果而设计的——她的成果名称是:《作品何时进入公共领域》<>. 此外,还有其它一些表格,这些表格在本表格的第一个注释中都进行了说明,你可以根据需要参考这些表格。
如何判断一个作品是否已经在美国版权局登记?美国版权局的第22号宣传手册可以作为你的参考:《如何调查一件作品的版权状态》<>。1978年以后的登记和续展记录现在都可以通过互联网查询到。至于1978年以前的登记和续展记录,则发表于《版权登记索引》(Catalog of Copyright Entries, CCE)上。该索引的许多卷也已经通过扫描的方式被放到了互联网上,地址是 <>。此外,最近迈克尔·莱斯克(Michael Lesk)还对一个可搜索条目的网上 版本进行了观察<>。上述后两个网址是非官方的,因此在使用的时候还要注意验证。如果你在这两个网站中的一个发现了一件作品的记录,那么就意味者它可能处于版权保护下。但是,如果你在这两个网站上都没有发现所要搜寻的作品,却不能保证这个作品一定处于公共领域中。
对于本表格所不能回答的问题,您还可以访问“版权建议网”(Copyright Advisory Network) <>尝试解答。此外,史蒂芬·费施曼(Stephan Fishman)的《公共领域:如何找到不受版权保护的文字、音乐、艺术及其它作品》(The Public Domain: How to Find Copyright-free Writings, Music, Art & More)一书,是这个方面最好的参考资料。[2] 

*  Peter B.Hirtle是美国康奈尔大学图书馆知识产权主管。他同时是康奈尔大学图书馆教育、研究和信息服务部主任,曾担任康奈尔大学数字文件汇集部的主任。Hirtle先生还是《D-Lib》杂志的副主编,并曾于2003-2004年任美国档案工作者协会第58任年度主席。
** 董皓:法学博士研究生、云南大学法学院讲师,研究方向:知识产权、网络法。个人网站:,Sharron Ma对本文的翻译也有贡献,谨此致谢,但译稿的一切责任,仍由译者承担。
[1] 译者注:前言是原作者于2004年该表格的英文版被《Information Outlook》杂志发表时添加的。在中文译本发表前,作者向译者发来了这段前言,在此一并译出。
[2] 译者注:本表中的“公共领域”是最狭义,仅指超过版权保护期的作品。不包括版权法所不保护的作品及其它情形。