Tag: <span>En</span>

Tag: En

学术论文

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.

学术论文

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.

 

专业日志 itemprop="discussionURL"2

From FaTianXia to YaDian-从法天下到雅典学园

This is a bilingual post. The Chinese version is following the English.
这是一篇双语日志，中文部分在后面。

The logo of FaTianXia.
FaTianXia (Red characters beside the left stamp of Chinese traditional "Law") means Law in the World, or Law for the World, or Study from the World, etc. The black inscription is specially presented by professor Jiang Ping, the most prominent Jurist in China. It says: Rule of the Law for Everwhere, and Thinking for China (my bad translation, while it has far more implications in Chinese).

FaTianXia[dot]com (closed now) impressed me when I saw it at the first sight by its significant technological progress comparing to other Chinese online legal communities. Its founder, KaKaYu had obviously tried his best to design a user-friendly and multifunctional Web 2.0 style interface. I blogged it with joy immediately.

 

Perhaps because of the "BBS culture" in Chinese Internet sphere, or because of the tendency of grand narrative in Chinese legal blogosphere (this tendency has been changing significantly in recent two years), the content in FaTianXia was not as diverse as its technological functions. However, the defects cannot obscure the virtues. It is still one of the best non-profit grass-roots legal communities in China, at least in my view.

 

In fact, because I have my own independent BLawgDog.com, so I actually was not an active user of FaTianXia. I just established a mirro site of BLawgDog at FaTianXia, and occationally uploaded my posts together with their URLs at BLawgDog to lure the eyeballs to my own site. For a UGC (User-generated Content) site, criticising it but with almost zero contribution, is more or less an unkind behavior. 

 

Last December, FaTianXia was closed.  I don’t know the exact reason, so I cannot say anything on it.  What I can say currently is: I find a new Web 2.0 style Chinese legal site: YaDian (means Athens Lyceum in Chinese). It might be the best non-profit grass-roots online legal communities in China, at least in my view.

　　从见到法天下的第一天起，我就被它深深吸引。相比其它中文法律社区网站，它在技术理念上大大进步。其主办者卡卡鱼从一开始就尽力将其打造成为一个界面友好、功能丰富的Web2.0网站。为此我还兴奋地专门写过一篇日志。

　　也许是因为中文网络环境中的“BBS文化”，也可能是因为中文法律博客圈的宏大叙事倾向（近两年有非常大的改观），法天下中的内容还是比较平面化和单一化。但瑕不掩瑜，在我看来，它仍然是中国最好的非营利性草根法律社区之一。

学术论文

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;

Introduction:

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.

书章：电子商务中的税收问题

专业日志

Some comments to the research of Chinese law

After more than thirty years legal march, the Chinese legal system has been more and more complicated (although still immature and full of conflicts), and it is the time to review it as an integrated system but not only a target of criticism.

 

For instance, the research to the text of Chinese legislation may frequently meet a paradox: why the standards in Chinese law are not enforced in practice? The researchers may attribute to the Confucian culture, "Asian Value" and the corruption (or arbitrariness) of authoritarian regime, etc. It seems the violation of human rights, the censorship of Chinese Internet and the widespread piracy in Chinese copyright market were normality, or that would not be China. However, these not-wrong discoveries are mostly not able to provide solutions. A combination of positive research to Chinese law and the observation to either the existing reform within the regime or the potential trends in the society, as what I am trying in my proposed research, may make the solutions nearer.

学术论文

Promoting Human Rights in Transitional Cultures

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

DONG Hao

 

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)

 

Abstract:

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.

学术论文 itemprop="discussionURL"1

Orphan Work Problem under Chinese Copyright Law

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

DONG Hao

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.

Keywords: 
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.

 

 

论著作权法中的孤儿作品问题董皓：一项基于比较法视角下的研究（摘要）

董皓

[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

学术论文

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.

 
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* 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.

专业日志 itemprop="discussionURL"2

What is the Public Domain?

When I am presenting my research today, I find I have to clarify the Public Domain for myself and others in brief and clear sentences. Here it is.

 

Basically, Public Domain means the Domain that is out of the Private Right. It has many definitions such as the strict legal definition, broader definition and the multi-discipline ones.

 

专业日志

The (Draft) Amendment to the Patent Law of China

The Bill of The Amendment to the Patent Law of the People’s Republic of China
With the Current Provisions for Comparison

 

中国专利法修正案英译稿——与旧法条对照阅读

 
Dong Hao 
 
 
The Bill of The Amendment to the Patent Law of China has been published for  comments and suggestions by the National People’s Congress more than two months ago. I have reported this in a Chinese post and compared the amended provisions with the present ones. Actually I have translated the pending provisions roughly as follows. Hope this can be the first try in academia. Mistakes or defects are for sure existing, and your advices will be of course appreciated.
 
 
学术论文

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.

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* 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 http://www.hmcourts-service.gov.uk/aboutus/history/magistrates.htm.
[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 http://www.australia.gov.au/Justices_of_the_Peace.
[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: http://www.jppenang.org/.
[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 http://www.info.gov.hk/jp/eng/JPList_g.htm.
[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 http://www.info.gov.hk/jp/eng/anreport07_eng.pdf.

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