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標籤: 美国

1992 US – China IP MOU 1992年中美知识产权备忘录

People’s Republic Of China Intellectual Property Rights Memorandum Of Understanding–1992
 
MEMORANDUM OF UNDERSTANDING BETWEEN THE GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA ON THE PROTECTION OF INTELLECTUAL PROPERTY 
 
In the spirit of cooperation embodied in their bilateral Agreement on Trade Relations and consistent with the principles of the relevant international agreements, the Government of the People’s Republic of China (Chinese Government) and the Government of the United States of America (U.S. Government) have reached a mutual understanding on the following provisions: 
 
Article 1 
 
1. The Chinese Government will provide the following levels of protection under the Patent Law of the People’s Republic of China: 
 
(a) Patentable Subject Matter 
 
Patents shall be available for all chemical inventions, including pharmaceuticals and agricultural chemicals, whether products or processes. 
 
(b) Rights Conferred 
 
A patent shall confer the right to prevent others not having the patent owner’s consent from making, using, or selling the subject matter of the patent. In the case of a patented process, the patent shall confer the right to prevent others not having the patent owner’s consent from using that process and from using, selling, or importing the product obtained directly by that process. 
 
(c) Term of Protection 
 
The term of protection for a patent of invention will be 20 years from the date of filing of the patent application. 
 
(d) Compulsory Licenses 
 
(i) Patent rights shall be enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced. 
 
(ii) Where China’s law allows for use of the subject matter of a patent without the authorization of the right holder, including use by the government or third parties authorized by the government, the following provisions shall be respected: 
 
(1) authorization of such use shall be considered on its individual merits; 
 
(2) such use may only be permitted if, prior to such use, the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time. This requirement may be waived by the government in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use. In situations of national emergency or other circumstances of extreme urgency, the right holder shall, nevertheless, be notified as soon as reasonably practicable. In the case of public non-commercial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government, the right holder shall be informed promptly; 
 
(3) the scope and duration of such use shall be limited to the purpose for which it was authorized; 
 
(4) such use shall be non-exclusive; 
 
(5) such use shall be non-assignable, except with that part of the enterprise or goodwill which enjoys such use; 
 
(6) any such use shall be authorized predominantly for the supply of China’s domestic market; 
 
(7) authorization for such use shall be liable, subject to adequate protection of the legitimate interests of the persons so authorized, to be terminated if and when the circumstances which led to it cease to exist and are unlikely to recur. The competent authority shall have the authority to review, upon motivated request, the continued existence of these circumstances; 
 
(8) the right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization; 
 
(9) the legal validity of any decision relating to the authorization of such use shall be subject to judicial review or other independent review by a distinct higher authority; 
 
(10) any decision relating to the remuneration provided in respect of such use shall be subject to judicial review or other independent review by a distinct higher authority; 
 
(11) the conditions set forth in sub-paragraphs (2) and (6) above are not required to be applied where such use is permitted to remedy a practice determined after judicial or administrative process to be anti-competitive. The need to correct anti-competitive practices may be taken into account in determining the amount of remuneration in such cases. Competent authorities shall have the authority to refuse termination of authorization if and when the conditions which led to such authorization are likely to recur; 
 
(12) where such use is authorized to permit the exploitation of a patent ("the second patent") which cannot be exploited without infringing another patent ("the first patent") , the following additional conditions shall apply: 
 
(A) the invention claimed in the second patent shall involve an important technical advance of considerable economic significance in relation to the invention claimed in the first patent; 
 
(B) the owner of the first patent shall be entitled to a cross-license on reasonable terms to use the invention claimed in the second patent; and 
 
(C) the use authorized in respect of the first patent shall be non-assignable except with the assignment of the second patent. 
 
2. The Chinese Government will submit a bill to provide the levels of protection specified in subparagraph 1 of this Article to its legislative body and will exert its best efforts to have enacted and to implement the amended patent law by January 1, 1993. 
 
3. Both Governments reaffirm their commitments to each other under the Paris Convention for the Protection of Industrial Property (Stockholm 1967) and their continued commitment to observe the principle of national treatment with respect to providing patent protection for the natural and legal persons of the other Party. 
 
4. If the U.S. Government becomes a party to an international convention that requires the United States to provide a patent term of at least 20 years from the date of filing of the patent application, the United States will amend its laws to satisfy this obligation. 
 
Article 2 
 
Both Governments reaffirm that the principle of territoriality and independence of patents with regard to protection of patents as provided in the Paris Convention for the Protection of Industrial Property should be respected. 
 
The Chinese Government agrees to provide administrative protection to U.S. pharmaceutical and agricultural chemical product inventions which: 
 
(i) were not subject to protection by exclusive rights prior to the amendment of current Chinese laws; 
 
(ii) are subject to an exclusive right to prohibit others from making, using or selling it in the United States which was granted after January 1, 1986 and before January 1, 1993; 
 
(iii) have not been marketed in China. 
 
The owner of the exclusive right in the United States regarding such a product invention that meets the above requirements shall provide the competent Chinese authorities with an application for administrative protection including the following documents: 
 
(1) a copy of the certificate issued by the competent authorities of the United States granting such exclusive right; 
 
(2) a copy of the document issued by the competent authorities of the United States for the approval for manufacturing or sale of such product; and 
 
(3) a copy of a contract for the manufacture and/or sale entered into between the owner of the exclusive right and a Chinese legal person (including foreign capital enterprises, joint venture enterprises, or cooperative enterprises) with respect to the manufacture and/or sale of the product in China. 
 
The competent Chinese authorities will, in accordance with published Chinese laws and regulations relating to obtaining manufacturing or marketing approval, examine such application. No special rules or additional requirements for approval will be imposed. After examination and approval, which shall occur promptly, a certificate for administrative protection, which will provide the right to manufacture or sell the subject product, will be issued to the person seeking such protection. The competent Chinese authorities will prohibit persons who have not obtained a certificate for administrative protection from manufacturing or selling the subject product during the term of administrative protection. The term of administrative protection begins from the date on which the certificate for administrative protection of the product is obtained and remains in force for seven years and six months. The above administrative protection will become available on January 1, 1993. 
 
Article 3 
 
1. The Chinese Government will accede to the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) (Paris 1971). The Chinese Government will submit a bill authorizing accession to the Berne Convention to its legislative body by April 1, 1992 and will use its best efforts to have the bill enacted by June 30, 1992. Upon enactment of the authorizing bill, the Chinese Government’s instrument of accession to the Berne Convention will be submitted to the World Intellectual Property organization with accession to be effective by October 15, 1992. 
 
2. The Chinese Government will accede to the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (Geneva Convention) and submit a bill to its legislative body authorizing accession by June 30, 1992. The Chinese Government will use its best efforts to have the bill enacted by February 1, 1993. The Chinese Government will deposit its instrument of ratification and the Convention will come into effect by June 1, 1993. 
 
3. Upon China’s accession to the Berne Convention and the Geneva Convention, these Conventions will be international treaties within the meaning of Article 142 of the General Principles of the Civil Code of the People’s Republic of China. In accordance with the provisions of that Article, where there is an inconsistency between the provisions of the Berne Convention and the Geneva Convention on the one hand, and Chinese domestic law and regulations on the other hand, the international Conventions will prevail subject to the provisions to which China has declared a reservation, which is permitted by those Conventions. 
 
4. In so far as China’s copyright law and its implementing regulations are inconsistent with the Berne Convention, the Geneva Convention or this Memorandum of Understanding (MOU), the Chinese Government will issue new regulations to comply with these Conventions and the MOU by October 1, 1992. These new regulations will also clarify the existing regulations and in particular will explain that the exclusive right of distribution that applies to all works and sound recordings includes making copies available by rental and that this exclusive right survives the first sale of copies. Regulations implementing the Conventions and this MOU will prevail over regulations for domestic works where there is an inconsistency between the new regulations and existing regulations. 
 
In addition to applying to works created by nationals of Berne Union members, these new regulations will apply to all works created in the context of a contractual relationship, joint venture, or commission from foreign capital enterprises, foreign joint venture enterprises, or cooperative enterprises in which such nationals, individually or jointly with others, are intended to be owners of copyright in the resulting works. 
 
The Chinese Government will submit a bill to amend its copyright law to its legislative body and use its best efforts to have enacted and to implement this legislation within a reasonable period of time. 
 
5. Both Governments will indicate the status of the Berne Convention and the Geneva Convention in their respective laws and notify judicial and administrative bodies responsible for the enforcement of the copyright law and regulations of the provisions of the Conventions within 30 days after signature of this MOU or 30 days after accession to each Convention, which ever is later. 
 
Both Governments will publish and provide to each other copies of any guidance provided to administrative or judicial bodies regarding the administration or interpretation of any laws and regulations related to the implementation of the Conventions or this MOU no later than 30 days after such guidance is issued. 
 
6. No later than the effective date of China’s accession to the Berne Convention, the Chinese Government agrees to recognize and protect computer programs as literary works under the Berne Convention, and consistent with the protection provided under that Convention shall impose no formalities on the protection of computer programs and provide a term of 50 years. 
 
7. After China’s accession to the Berne Convention, all works originating in a member of the Berne Union that are not in the public domain in their country of origin will be protected in China. 
 
(i) With regard to any uses of an original or a copy of a U.S. work on a commercial scale undertaken before establishment of bilateral copyright relations between China and the United States, there will be no liability. 
 
(ii) With regard to such uses undertaken after establishment of bilateral copyright relations, the provisions of the law and regulations will fully apply. With regards to a natural or legal person who owned and used a particular copy of a work for a particular purpose prior to establishment of bilateral copyright relations between China and the United States, that person may continue to make such use of that copy of the work without liability, provided that such copy is neither reproduced nor used in any manner that unreasonably prejudices the legitimate interests of the copyright owner of that work. 
 
8. The principles of paragraph 7 above, including the limitations on liability, shall. apply to sound recordings. 
 
9. The Chinese Government will recognize this MOU as an agreement under Article 2 of the Copyright Law of the People’s Republic of China which shall provide a basis for protection of works, including computer programs, and sound recordings of U.S. nationals published outside of China until such time as China accedes to the Berne Convention and the Geneva Convention. Such protection shall become effective 60 days after signature of this MOU. 
 
Based on the commitments set forth in this MOU, the U.S. Government will take the necessary steps to secure to Chinese nationals and their works eligibility for protection under the copyright law of the United States which shall become effective no later than 60 days after signature of this MOU. 
 
Article 4 
 
1. For the purpose of ensuring effective protection against unfair competition as provided for in Article 10 bis of the Paris Convention for the Protection of Industrial Property, the Chinese Government will prevent trade secrets from being disclosed to, acquired by, or used by others without the consent of the trade secret owner in a manner contrary to honest commercial practices including the acquisition, use or disclosure of trade secrets by third parties who knew, or had reasonable grounds to know, that such practices were involved in their acquisition of such information. 
 
2. The term of protection for trade secrets shall continue so long as the conditions for protection are met. 
 
3. The competent authorities of the Chinese Government will submit the bill necessary to provide the levels of protection specified in this Article to its legislative body by July 1, 1993 and will exert its best efforts to enact and implement this bill before January 1, 1994. 
 
Article 5 
 
Both Governments will provide effective procedures and remedies to prevent or stop, internally and at their borders, infringement of intellectual property rights and to deter further infringement. In applying these procedures and remedies, both Government’s will provide safeguards against abuse and shall avoid creating obstacles to legitimate trade. 
 
Article 6 
 
Both Governments agree, at the request of either Party, to consult promptly on matters relating to the protection and enforcement of intellectual property rights, in particular with respect to the obligations of this MOU. Both Governments agree that the first consultations pursuant to this MOU will include discussions on the new implementing regulations for the Berne Convention and this MOU and that these discussions will be taken into consideration in the drafting of the regulations. 
 
Article 7 
 
In recognition of the progress in improving the protection of intellectual property rights that the Chinese Government has made and of further progress that will result from the steps that the Chinese Government has agreed to take, and in the expectation that these commitments will be fully implemented, the U.S. Government will terminate the investigation initiated pursuant to the "special 301" provisions of U.S. trade law and China’s designation as a priority foreign country will be revoked effective on the date of signature of this MOU. 
 
Signed in Washington, D.C., this seventeenth day of January, one thousand nine hundred and ninety-two, in two copies in the Chinese and English languages, both texts being equally authentic. 
 
For the Government of The United States of America:
 
[signed Carla Hills]
 
For the Government of The People’s Republic of China:
 
[signed Wu Yi]
 
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The Statute of Anne 1710

The Statute of Anne; April 10, 1710

 

8 Anne, c. 19 (1710)

An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned.

I. Whereas printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families: for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books; may it please your Majesty, that it may be enacted, and be it enacted by the Queen’s most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same;

II. That from and after the tenth day of April, one thousand seven hundred and ten, the author of any book or books already printed, who hath not transferred to any other the copy or copies of such book or books, share or shares thereof, or the bookseller or booksellers, printer or printers, or other person or persons, who hath or have purchased or acquired the copy or copies of any book or books, in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of April, and no longer; and That the author of any book or books already composed, and not printed and published, or that shall hereafter be composed, and his assignee or assigns, shall have the sole liberty of printing and reprinting such book and books for the term of fourteen years, to commence from the day of the first publishing the same, and no longer; and That if any other bookseller, printer or other person whatsoever, from and after the tenth day of April, one thousand seven hundred and ten, within the times granted and limited by this act, as aforesaid, shall print, reprint, or import, or cause to be printed, reprinted, or imported, any such book or books, without the consent of the proprietor or proprietors thereof first had and obtained in writing, signed in the presence of two or more credible witnesses; or knowing the same to be so printed or reprinted, without the consent of the proprietors, shall sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, any such book or books, without such consent first had and obtained, as aforesaid: then such offender or offenders shall forfeit such book or books, and all and every sheet or sheets, being part of such book or books, to the proprietor or proprietors of the copy thereof, who shall forthwith damask, and make waste paper of them; and further, That every such offender or offenders shall forfeit one penny for every sheet which shall be found in his, her, or their custody, either printed or printing, published, or exposed to sale, contrary to the true intent and meaning of this act; the one moiety thereof to the Queen’s most excellent majesty, her heirs and successors, and the other moiety thereof to any person or persons that shall sue for the same, to be recovered in any of her Majesty’s courts of record at Westminister, by action of debt, bill, plaint, or information, in which no wager of law, essoin, privilege, or protection, or more than one imparlance shall be allowed. II. And whereas many persons may through ignorance offend against this act, unless some provision be made, whereby the property in every such book, as is intended by this act to be secured to the proprietor or proprietors thereof, may be ascertained, as likewise the consent of such proprietor or proprietors for the printing or reprinting of such book or books may from time to time be known; be it therefore further enacted by the authority aforesaid,

That nothing in this act contained shall be construed to extend to subject any bookseller, printer, or other person whatsoever, to the forfeitures or penalties therein mentioned, for or by reason of the printing or reprinting of any book or books without such consent, as aforesaid, unless the title to the copy of such book or books hereafter published shall, before such publication, be entered in the register book of the company of stationers, in such manner as hath been usual, which register book shall at all times be kept at the hall of the said company, and unless such consent of the proprietor or proprietors be in like manner entered as aforesaid, for every of which several entries, six pence shall be paid, and no more; which said register book may, at all seasonable and convenient time, be resorted to, and inspected by any bookseller, printer, or other person, for the purposes before-mentioned, without any fee or reward; and the clerk of the said company of stationers shall, when and as often as thereunto required, give a certificate under his hand of such entry or entries, and for every such certificate may take a fee not exceeding six pence.

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United States Copyright Act of 1909

 From: http://law.copyrightdata.com/, this text was valid from July 1, 1909 to August 23, 1912.

March 4,1909.

AN ACT TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person entitled thereto, upon complying with the provisions of this Act, shall have the exclusive right:

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美国联邦第12巡回法院?

  [豆注:本段话可读可不读] 美国的法院系统十分复杂。总的来说,有联邦法院和州法院的区别,每个州都有州法院和联邦地方法院两套系统。前者依据本州法律审理案件,后者则根据联邦法律审理涉及联邦事务的案件。具体的管辖权问题其实很复杂,不再赘述。这里要说的是:如果对各个联邦地方法院所作判决不服,则当事人需要上诉到联邦上诉法院。联邦上诉法院的设置就不是每州一个了,而是将全国划分为12个区片,设置了一个位于首都的哥伦比亚特区上诉法院和11个联邦上诉法院(此外,还有两个比较特殊的上诉法院,一个管军事案件,一个管涉及专利和海关的案件)——这11个联邦上诉法院通常被称为联邦巡回法院(Circuits)。例如,位于旧金山的第9巡回法院管辖美国西部的11个州,位于波士顿的第1巡回法院管辖东北部的5个州,等等。按照普通法系传统,这些巡回法院及其上的美国联邦最高法院的判决具有如立法一样的先例羁束效力,联邦地方法院和联邦巡回法院在裁决新案件的时候,应当首先回顾这些在先判决中所建立的规则,看是否适用于新的案件。


图片来源:维基百科 http://en.wikipedia.org/wiki/United_States_court_of_appeals
 

  上面这段话,对于美国律师来说当然是必备常识,但如果中国的司法考试里出一道题,问联邦第9巡回法院管辖哪些州,或者问一个发生在马萨诸塞的联邦案件是否应当上诉到第1巡回法院,就比较过份了。为什么?因为美国是美国,中国是中国,美国法律对中国不发生效力,了解当然说明一个人有知识,但不掌握也不等于这个人不能在中国从事法律职业——这本来也应该算是常识吧。

  问题是人们往往忘记常识。

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100年前中美条约中关于非法作品的约定

  美中WTO知识产权纠纷DS362的一个主要问题是:中国的著作权法第四条第一款是否违背TRIPS。关于这个问题我已有论文(中文英文)。今天读到光绪二十九年(1903)的《中美续议通商行船条约》第11款,又想起这个问题。

  该款的规定如下(值得注意的是,除新订条约更新之处外,本条款至今仍获台湾的中华民国政府承认为条约解释的渊源):

无论何国若以所给本国人民版权之利益一律施诸美国人民者,美国政府亦允将美国版权律例之利益给与该国之人民;中国政府今欲中国人民在美国境内得获版权之利益,是以允许凡专备为中国人民所用之书籍、地图、印件、镌件者或译成华文之书籍,系经美国人民所著作,或为美国人民之物业者,由中国政府援照所允保护商标之办法及章程极力保护十年,以注册之日为始,俾其在中国境内有印售此等书籍、地图、镌件或译本之专利。除以上所指明各书籍地图等件不准照样翻印外,其余均不得享此版权之利益。又彼此言明:不论美国人所著何项书籍、地图,可听华人任便自行翻译华文刊印售卖。凡美国人民或中国人民为书籍报纸等件之主笔或业主或发售之人,如各该件有碍中国治安者,不得以此款邀免,应各按律例惩办
  《中美续议通商行船条约》的草案是美国人提出的,但红字部分则是应中国谈判人员的要求增加的。可以发现,清政府在涉及著作权的国际谈判中,特别关注违禁作品的问题。那么,这句话是否可以被理解为美国曾经同意放弃非法作品的版权呢?
 
  答案是否定的。在功能上,红字部分与《伯尔尼公约》第十七条十分相似——需要强调的是,《伯尔尼公约》第十七条不是不保护著作权的理由,它只是说:缔约国可以禁止其国内法认定的违禁作品的传播,但并不意味着这些违禁作品在被盗版的时候,缔约国可以不予以保护。同样的,《中美续议通商行船条约》中的这句话,也只意味着中国当局有权追究创作、翻译和传播“有碍中国治安”的作品的“主笔或业主或发售之人”的法律责任,但并不意味着这些作品本身不获得中国所允诺的版权保护。
 

1902年中外通商行船条约谈判代表合影
 
  图片简介(来自爱老照片网站):
  这幅照片是清政府的商约大臣吕海寰(前排左四)和盛宣怀(前排左五)与美国(康格,前排左三)、日本(日置益,前排左六)、英国、法国、德国代表就中外通商行船条约签署谈判时合影。该照片从未发表,十分珍贵。据1901年《辛丑条约》规定,清政府指定工部尚书吕海寰和工部左侍郎盛宣怀为商约大臣,于20世纪初年在上海与外国签订的若干通商行船条约。包括《中英续议通商行船条约》、《中美通商行船续订条约》、《中日通商行船条约》。这几个条约都是根据《辛丑条约》第十一款的规定签订的。订立新的通商行船条约是参加《辛丑条约》的列强所取得的权利之一。
 
 
附:与《中美续议通商行船条约》相关的研究

崔志海:试论1903年《中美通商行船续订条约》

斯伟江:中国古代版权保护源流考

李雨峰:《枪口下的法律:中国版权史研究

吴汉东、王毅:中国传统文化与著作权制度略论

林俊言:台灣著作權法簡史:拷貝逐漸受限的法發展史

王兰萍:《近代中国著作权法的成长》(作者在此书中误用了未包括红字部分的早期条文草案作为条文定稿

Jianqiang Nie, The enforcement of intellectual property rights in China

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WTO WT/DS363 Information Center 信息中心

本日志为WTO争端解决案件 《DS363 中国 – 关于影响贸易权利的措施和影响若干出版物及娱乐音像产品的分销服务的措施》 的中英文信息汇总。专家组报告(点此)于2009年8月12日公布,WTO上诉机构的最终裁决也已于2009年12月21日作出(点此查看).请收藏本页或订阅法豆获取最新资讯。

This is a collection of the materials on WT/DS363: Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products The Panel Report has been published on 12 Aug. 2009.

China appeals the case to the the Appellate Body. The Appellate Body Report was issued on 21 December 2009. please Bookmark this page or subscribe BLawgDog for update.

English Materials:

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美国2009年度特别301报告

美国贸易代表办公室(USTR)于2009年4月30日公布2009年度特别301报告,点这里看报告全文(英文)。想看前两年的美国特别301报告,请点:20072008

此外,美国的IIPA(国际知识产权联盟)每年都会针对版权保护问题提出一个自己的特别301报告(点这里查看)。

今年的USTR特别301报告最大的变化在于结构。变得更加清晰和易于阅读,包括以下一些部分:

  • 第一部分:知识产权保护和执行的进展
  • 第二部分:国别报告
  • 第三部分:臭名昭著的市场
  • 附件一:特别301报告的法律根据
  • 附件二:WCT和WPPT的成员列表

今年中国继续被列为重点观察国家列表(Priority Watch List)的首位。但在“积极进展”部分(p.10),中国在奥运会期间关闭侵犯版权的网站的努力被特别提及,并被作为“如果中国政府有意愿,是可以有效控制侵害知识产权行为”的证据。此外,台湾和韩国则被从观察国家列表(Watch List)中删除。

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围绕美中WTO知识产权争端的Propaganda

2009年3月20日,WTO争端解决机构正式通过了DS362专家组报告(美国诉中国影响知识产权保护措施案,两年来,我在这里这里这里这里这里一直对此案进展有记录)。了解WTO的都知道,如果没有上诉,专家组报告是不可能通不过的,因为只有“一致反对”,才会导致不通过。而专家组报告已于1月份公布,所以现在已经不算什么新闻了。简单地说,本案中,专家组的判决是:

(1)认定中国著作权法第四条所规定的“违法作品不受本法保护”及其它相关法规中的审查措施有违TRIPS及伯尔尼公约的作品自动保护原则(关于这一点,我的一篇论文有详细分析);

(2)中国海关根据特定条件,决定将罚没的侵权品捐赠给社会公益机构、卖给权利人或拍卖处理等方式本身并无不妥,中国海关在将罚没商品拍卖前,只是除去侵权品上的商标而没有其它措施(例如征得商标权人的同意),是违反TRIPS规定的。

(3)中国已经对达到一定规模的盗版和假冒行为进行了刑事处罚。至于这个处罚标准是否适当,美方有义务举证,但美国的证据不足以证明这个“规模”不是“商业规模”。“商业规模”是一个相对性的概念,起诉方必须证明:对相关的确定市场和特定产品而言,被诉方的法律措施,确实无法涵盖所有达到“商业规模”的商标假冒和盗版行为(从WTO法发展的意义上讲,这一段专家组意见最为重要,也最为精彩)。

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