Title - Restraining Exclusivity of IP Rights To Further Public Interests - Court Practices In China
Synopsis
Intellectual property (IP) rights are private rights and enjoy strong exclusivity. However, to balance the interests of IP rights holders and the public interest, IP rights are subject to exceptions and limitations, such as fair use or fair dealing widely adopted by nations. In the judicial practice in China, it is noticed that Chinese courts have in some cases softened the harsh effects of IP protection by awarding only compensation instead of injunction, to better balance the IP rights and the public interests, achieving the purpose of legislation of IP rights.
Three influential cases are selected from patent, copyright and trademark law to illuminate how courts are balancing the consideration of public interest and public policy against the exclusive IP rights.
In a civil case that involves patent infringement, Wuhan Jingyuan Environmental Engineering Co., Ltd. v. Japan Fuji Water Industry Co., Ltd. and Huayang Electricity Co., Ltd., Min San Zhong Zi No. 8 (2008), the Supreme People's Court upheld the lower court’s decision: Despite the fact that Fuji and Huayang infringed Jingyuan's patent, it refused to issue injunction on the ground that the accused products have been installed and in operation and are related to environmental protection, if injuncted, it will seriously affect local social and public interests and only ordered the payment of damages.
In Liang Xin v. The National Ballet of China (Jing Min Shen No. 1722 (2016)), the Beijing Municipal Higher People's Court upheld the lower court's decision, which involved a well-known script called "the Red Detachment of Women." The court ruled that the script has indeed been infringed for many years by numerous performance of the ballet "the Red Detachment of Women" that derived from the script, yet given the complex cultural significance of the ballet, ordered only payment of license fees.
In Guangzhou Riverstars Industrial Development Co., et al v. Tianjin Hongxing Real Estate Development Co. Ltd (Min Ti Zi No. 3 (2013)), the SPC overruled the lower courts' judgments. The SPC found that Hongxing's use of "Xing He Wan" on its buildings constituted trademark infringement; however, given building is a special commodity and the use the name has been for many years, if the use is injunctd, it "will lead to imbalance of trademark rights holder and public interest and the interests of the residents". The Court ordered that such good faith use should be tolerated and compensated, and that buildings still under construction can no longer use the name
The three decisions highlight the need for us to explore the doctrinal foundation to balance the interests of IP right holders and public interest. Should we redefine the exclusivity of IP as such? To reduce its strength or even hardship? Or should we apply some basic legal principles, such as no abuse of rights, proportionality also to the realm of IP law? Or should we create new IP-internal doctrines to delimit the boundary of IP rights exercise? These issues will be discussed during the talk.
Speaker
Yong-Pei Liu is lecturer and the director of the Center for Entertainment and Sports Law, Koguan School of Law, Shanghai Jiao Tong University since 2016. He is council member of the Intellectual Property Law Association in China (IPLA). Dr. Liu has mainly devoted himself to the research of intellectual property and entertainment law, and the teaching of clinical legal education, legal negotiation, moot court trial. Dr. Liu got his Bachelor of Science (B.S.) from Harbin Shipbuilding Engineering Institute of China (1991), M.A. and Ph.D. from Peking University, China (2006). Dr. Liu was a Visiting Scholar at University of California at San Diego, the U.S.A (2008).
Dr. Liu published the following papers:
1.Can Artificial Intelligence Be A Genuine Author? Liberation Daily (Chinese), June 20, 2017
2.Intellectual Property Rights Protection for E-Commerce in China (English), Intellectual Property & Technology Law Journal 28.8, August 2016.
3.Meta-Comparison Theory of Patent Infringement Judgment (Chinese), Peking University Law Review, Vol 12.2 (2011).
4.Business Methods Patents: Theory and Practice(Chinese), Internet Law Review, Volume 11 (2010).
5.Comments on Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law to the Trial of Patent Dispute Cases (Chinese), China Intellectual Property, February 2010.
6.Patent Law: A Cooperation Mechanism under the View of Game Theory (Chinese), Journal of Yunnan University, Social Science edition, Issue 6 (2009).
7.The Game Theory Analysis of the Technological Standard Strategy of Wireless LAN (Chinese), Electronic Intellectual Property, Issue 8 (2005).
Title - The "Internet Clause" In The Newly Revised Anti-Unfair Competition Law of China
Synopsis
China enacted its first Anti-Unfair Competition Law in 1993 (AUCL 1993), which aims at providing a solid legal groundwork for building a market economy. In the following two decades, Chinese economy went through a tremendous change, and the legislature in China believed that a fundamental revision should be made to AUCL 1993. Particularly, with the rapid development of Internet industries in China and the fierce competition in this sector, many novel unfair competition cases occurred between Internet companies. Chinese courts adjudicated these cases mainly by referring to the general clause of AUCL 1993, which raised lots of discussion on the appropriate borderline for competition between Internet industries.
To better regulate the competition in this rising industry, the newly revised AUCL (effective Jan. 1, 2018) includes an “Internet Clause” (Article 12) which specifically defines three types of unfair competition: 1. To insert a link or force redirection in another’s online product or services without latter’s consent. 2. To mislead, defraud or coerce users to change, close off or unload Internet products or services legally provided by others. 3. To cause incompatibility with Internet products or services legally provided by others in bad faith. Further, in order to be able to cover other unfair competition acts in the Internet industries, the Clause also includes an open-ended provision, which prohibits “other acts of interfering with or sabotaging the normal operation of online products or services legally provided by others”.
This “Internet Clause” is formulated based on the experiences accumulated in judicial practices. Therefore, it is meaningful to review these unfair competition cases occurred on Internet before the law was revised in 2017, as it helps to assess how the “Internet Clause” will be applied in the future.
Speaker
Jie Wang is currently an Assistant Researcher at Koguan Law School, Shanghai Jiaotong University. His research focuses on Intellectual Property Law, particularly on copyright law, and also covers European Law and Comparative law. In Oct. 2016, he finished his PhD research and received this doctor degree from Maastricht University, Netherlands. In 2012, he successfully acquired scholarship from Max Planck Institute for Innovation and Competition, and had done study there for 14 months as a guest researcher. So far, he has been invited to attend and present at the conferences held in the US, UK, Germany, Belgium, Netherlands, Hongkong and Macau. 8 of his articles have been published on Journals, including some renowned Journals in IP field, such as International Review of Intellectual Property and Competition, European Intellectual Property Review and Intellectual Property (Chinese). His PhD thesis “Regulating Hosting ISP’s Responsibilities for Copyright Infringement: The Freedom to Operate in the US, EU and China” will be published with Springer in April, 2018.
Discussant
Masabumi Suzuki teaches Intellectual Law at Nagoya University Graduate School of Law in Japan since 2002. He graduated from the University of Tokyo (LL.B., 1981) and received an LL.M. from Harvard Law School (1986). He joined the Japanese Ministry of International Trade and Industry (MITI; renamed METI since 2000) in 1981, and was Director of the Office of Intellectual Property Policy from 1999 to 2001. He also served as Visiting Fellow at the Brookings Institution (1998-99). He was admitted to the New York Bar in 1987. He is currently a Council Member of the Japan Association of Industrial Property Law, the Copyright Law Association of Japan, and the Japan Association of International Economic Law. Professor Suzuki’s recent major works include: Realization of Substantive Law through Legal Proceedings (Mohr Siebeck, 2017) (co-editor with Professor Alexander Bruns); “International Norm Setting and Its Localization on Intellectual Property,” 19 Quarterly Jurist 37 (2016) (in Japanese); “Legal Issues concerning Enforcement of Standard Essential Patents,” RIETI Discussion Paper Series 15-J-06 (2015) (in Japanese).
Chair
Kung-Chung LIU holds an LL.B. and LL.M. from National Taiwan University and a Doctorate from the Ludwig Maximilian Universitaet (University of Munich). He was a Research Fellow at Academia Sinica, Taiwan until 2017. In 2003, he was a Visiting Professor at the Faculty of Law of the National University of Singapore and a Visiting Senior Research Fellow for the IP Academy of Singapore. Professor Liu has served as one of the founding Commissioners of the National Communications Commission in Taiwan between 2006 and 2007. In 2014-15, he was a Visiting Professor at the School of Law, Singapore Management University, and the Founding Director of the Applied Research Centre for Intellectual Assets and the Law in Asia (ARCIALA). In addition, he has been co-appointed Professor at the Renmin University, China (2017), and the Graduate Institute of Technology, Innovation & Intellectual Property Management, National Chengchi University, Taiwan (since 2010).
Programme
9.30am - Registration
10.00am – Lecture by Dr. Liu
10.45am – Lecture by Dr. Wang
11.30am - Comments by Professor Suzuki
11.45am - Q & A
12.00pm - End of Event
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Last updated on 12 Jun 2019 .
