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国务院关于进一步加强知识产权保护工作的决定 DECISION OF THE STATE COUNCIL OF THE PEOPLE'S REPUBLIC OF CHINA ON FURTHER STRENGTHENING THE WORK OF INTELLECTUAL PROPERTY PROTECTION

2006-05-16 17:04   我要纠错 | 打印 | 收藏 | | |

国发(1994)38号
(July 5, 1994)
颁布日期:19940705  实施日期:19940705  颁布单位:国务院

  The protection of intellectual property is a component part of the policy of reform and opening of China and an important system for promoting the prosperity and development of scientific, technological and cultural undertakings and ensuring the normal operation of the socialist market economy. In order to adapt to the international trend of integration of science, technology and economy and to the objective requirements for the earlier restoration of China's status as contracting State of GATT, China has in recent years speeded up its intellectual property legislation and successively promulgated such laws as the “Trademark Law of the People's Republic of China”, the “Patent Law of the People's Republic of China”, the “Law of the People's Republic of China on Technology Contracts”, the “Copyright Law of the People's Republic of China” and the “Law of the People's Republic of China for Countering Unfair Competition”, which have begun to link up with international standards and have played a active role in promoting reform and opening as well as the construction of modernization in China. As it is only recently that China has established its intellectual property system, and the sense of intellectual property of society as a whole is still rather hazy, there is still lacking, in certain regions and departments, a sufficient understanding of the importance of protecting intellectual property. A number of aggravated acts of infringement have not only damaged the lawful rights and interests of intellectual property right owners but also the dignity of law. In order to strengthen conscientiously the work of intellectual property protection and ensure the enforcement of the laws, the following decision is made.

  1. Perfecting the intellectual property system and strengthening conscientiously the work of intellectual property protection, are currently important contents of deepening the systematic reforms in the scientific, technological and economic fields and expanding the scope of opening to the outside world, and also the basic requirements in our efforts to speed up the establishment of a system of socialist market economy and realize the link-up with the world economy. The People's Governments at various levels have to understand fully the importance of the intellectual property system in giving impetus to scientific and technical progress and economic development. The relationship between local interests and overall interests, between immediate interests and long-term interests should be handled correctly. The strengthening of intellectual property protection should be placed on the agenda of scientific, technical, economic and cultural work as an important matter. Governments at various levels have to utilize comprehensively legal, economic and administrative means to induce enterprises, scientific research institutes and institutions of higher learning (referred to below as enterprises and institutions) to adopt effective measures to protect their intellectual property while fully respect the intellectual property of others. Society as a whole should be urged to foster the good habit of respecting And protecting intellectual property so as to create a favourable environment and condition for the inventions, creations, and literary/artistic works produced by citizens, enterprises and institutions. A favourable environment and condition should be also created for the scientific, technical, economic and cultural cooperation and exchange with foreign countries.

  2. The protection of intellectual property is a comprehensive task involving many aspects such as legislation, judicature, law enforcement, and administration. The various relevant departments should support each other and co-operate closely so as to form a unified and harmonious system of intellectual property protection.

  Recently, the Standing Committee of the National People's Congress has examined and approved the decision on punishing crimes of infringing on copyright, so as to increase the force of the law for stopping and punishing acts of intellectual property infringement.

  The State Council will pay close attention to the study and formulation of administrative regulations for carrying out border measures in respect of intellectual property protection.

  The administrative authorities and enforcing agencies for intellectual property at various levels shall strengthen their functions, maintain their staff at full strength and increase their efficiency. At present, it is necessary to focus on reinforcing the staff of copyright administrative and enforcing agencies at various levels to ensure the effective implementation of the “Copyright Law of the People's Republic of China”。 In the process of performing their duties, the intellectual property administrative and enforcing agencies need cooperations of other enforcement agencies and administrative departments, and the relevant agencies and departments should lend their support unstintedly. The administrative authorities and enforcement agencies for intellectual property affairs should investigate and deal with major cases of great influence, jointly with the departments in charge of scientific, technological, economic, cultural, press, publishing, broadcasting, cinematic, television and public security affairs.

  Supports should be given to the hearing of intellectual property cases held by the People's Courts and to the setting up of intellectual property adjudication divisions by the relevant People's Courts where they are needed. The ranks of judges should be expanded in earnest so as to ensure that various categories of intellectual property cases will be dealt with justly and promptly.

  In judicial and administrative enforcement, the barriers of local protectionism and of departmental ism should be broken down. Various acts of intellectual property infringement should be investigated and punished by implementing strictly the enforcement of laws and regulations, and by following the principles of “There should be laws to observe. Where there are laws, they must be abided by. Where laws are enforced, they must be enforced strictly. Where laws are broken, the law-breakers must be investigated and dealt with.” Where the case of infringement is so serious that a crime is committed, the relevant offender should be prosecuted for his criminal liability according to law so as to safeguard conscientiously the lawful rights and interests of owners of intellectual property rights as well as the unity and dignity of the socialist legal system.

  In order to further amplify and perfect the intellectual property administration system of China and strengthen the macro-management and coordination of intellectual property, the State Council has decided to institute the system of holding regular meetings at the State Council to deal with intellectual property matters. The various departments concerned should strengthen their administration organizations for intellectual property affairs in the organizational reform and sort out interdepartmental relations. In China, there should build up a framework in which the system of executive administration and the system of judicial protection operate in parallel, “to do two things at the same time”, so as to increase the force of intellectual property protection.

  3. It is necessary to strengthen energetically the supervision and inspection of the implementation of intellectual property laws and develop a mechanism combining routine supervision with inspection of key sectors. The State Council is going to organize non periodically the various administrative authorities and enforcement agencies for intellectual property affairs, together with the departments concerned such as scientific, technological, economic, cultural, press, publishing, broadcasting, cinematic, television and public security matters, etc., to carry out joint inspections of the situation in various regions and departments regarding the implementation of intellectual property laws, with the stress on investigating and dealing with a number of major cases of intellectual property infringement which are of great significance and great impact. The phenomena such as laxity in law enforcement and leniency in punishing infringing acts existing in some local authorities should also be supervised and eliminated. This is to be shaped gradually into a system to ensure the effective implementation of the intellectual property laws.

  At present, the focal point of supervision and inspection is to inspect and to put the audio-visual product and computer software market in order. The administrative authorities for copyright and for industry and commerce at various levels should cooperate closely, intensify their inspections and deal seriously with piratical acts of illegally copying audio-visual products and computer soft-ware.

  4. In order to carry out the relevant provisions in the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works, acceded to by China, and to strengthen intellectual property protection in foreign economic relations and trade, it is necessary to enhance the functions of the customs authorities in protecting intellectual property and stopping the import and export of infringing products, and to adopt necessary border measures to stop the import and export of infringing products effectively. The customs authorities should strengthen the liaison and cooperation with the relevant departments and strictly carry out the border measures concerning intellectual property according to law.

  5. It is necessary to strengthen the work of protecting intellectual property in the import and export of new technologies and new products. Where an item of technology or a product is imported from abroad, a comprehensive investigation should be carried out of the status of the relevant technology or product in respect of intellectual property in order to avoid infringement disputes or other losses. Where an item of new technology or a new product is exported, proper inquiries should also be made with respect to intellectual property so that after the technology or product is exported it may not be copied by others or infringe the intellectual property of others.

  It is necessary to strengthen the examination, approval and administration referring to the joint ventures which manufacture and distribute the processing products of brand-name audio-visual materials imported or supplied by clients abroad. Where an enterprise is entrusted by a foreign firm with such activities, it should find out through the relevant intellectual property administrative authority or service agency whether the foreign firm is the lawful proprietor of the particular item of intellectual property and has the right to its use, and it should be stipulated in the contract the liability in a litigation when the enterprise is accused by a third party of infringement for the activities of processing brand-name audio-visual products or manufacturing and distributing such products while performing the contract, and the liability for making compensation where the accusation is found tenable.

  6. The various trades should take the strengthening of intellectual property work as an important measure for promoting the scientific-technological progress and economic development within the trade. Each trade should, according to its actual state of scientific, technological and economic development, actively carry out studies on its own intellectual property strategy and management in order to lend guidance to the adjustment of the product catalogue, scientific research and production throughout the trade. In respect of those trades with little capability of autonomous research and development, such as the pharmaceutical, chemical and computer software trades, a preferential policy should be adopted to increase the input of funds for research and development and raise its capability and level of autonomous research and development.

  7. The departments responsible for various plans of scientific-technological development should take intellectual property work as an important link in the management of their plans and formulate a unified intellectual property strategy in the light of the execution and development of the plans, and should in particular strengthen the investigation and analysis of intellectual property in the fields related to the plans and the corresponding study of countermeasures, so that the intellectual property work will run through the entire process of planning projects' approving, achievements' legal protecting and their commercialization, industrialization and internationalization.

  8. Enterprises and institutions should take the protection of intellectual property as an important content of establishing a modern system of enterprises and a modern system of scientific research institutes, heighten their consciousness of intellectual property, abide by the intellectual property laws and regulations, channel the strengthening of intellectual property protection into line with their own work in research, development, production, operation and internal management, and shaping these into corresponding systems.

  The research and development of new techniques, new technology, and new products as well as the technical transformation of enterprises and institutions should be closely combined with intellectual property work. They should make use of information on intellectual property to formulate correct strategies of research, development, production and operation and decide on an appropriate direction of research and technical line, raise the starting point, level and efficiency of research and development and avoid the emergence of unnecessary repetitive developments or the arising of infringement disputes in scientific research and in production.

  9. The various categories of trade associations in the scientific, technical, economic and cultural fields, together with specialized public organizations concerning intellectual property and socialized service organizations, are an important force in promoting the implementation of intellectual property laws and strengthening the work in intellectual property protection. It is necessary to encourage and support the development of these organization, steer them towards utilizing their flexible mechanisms and, geared to the needs of society, provide various kinds of intellectual property law consulting and other services. A number of legal service organizations concerning intellectual property should be set up to assist interested parties in the investigation of infringing acts and the gathering of evidence so that the relevant disputes may be resolved through legal channels. The departments concerned of the government should fully bring into play the initiative of these organizations so that they may become capable assistants of the administrative authorities in protecting intellectual property.

  10. At present, it is necessary to vigorously strengthen the training of specialists in the field of intellectual property and the work of popularizing knowledge on intellectual property protection among the vast numbers of leading cadres and the masses. The administrative authorities for intellectual property and departments in charge of scientific, technological, economic and cultural affairs should carry out in-depth disseminations about intellectual property in combination with the Second Five Year Plan for the Popularization of Legal Knowledge and strengthen education in respect of the legal system concerning intellectual property. The media should intensify the reporting on intellectual protection and fulfil satisfactorily the tasks of propagation, education, and supervision through public opinion. Enterprises and institutions should bring intellectual property law into line with their educational plans for popularization of legal knowledge. It is necessary to gradually heighten the consciousness of intellectual property protection and the related sense of legality in society as a whole through in-depth, sustained dissemination and education, so as to create a salutary social environment favourable to the protection of intellectual property.

  11. The departments concerned of the State Council may formulate, on the basis of this Decision, specific rules for strengthening the intellectual property work in enterprises and institutions.

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