IPR judicial system in need of review - expert
By Liu Li (China Daily)
Updated: 2006-02-16 06:10

China's judicial system to protect intellectual property rights (IPR), including rights against online violation, has loopholes in law enforcement, legal experts claimed yesterday.

They also stressed the need for all levels of the Chinese Government to provide equal intellectual rights protection for foreign and local enterprises.

"The judicial protection system for IPR needs to be further improved," Li Shunde, law professor at the Chinese Academy of Social Sciences, told China Daily yesterday. "For example, some law enforcement staff lack sufficient capability and experience."

As for the system implemented by the judicial departments, there are also problems, claimed Li.

One of them involves the constant changing of judges' assignments with regard to the type of cases they handle, he complained, such as IPR cases versus criminal cases.

"Although the country began to hear and make judgements over IPR cases more than 20 years ago, there are few judges who have been doing the work for more than 10 years," he said.

"Even the number of IPR judges who have worked for more than five years in the field is rather small."

As for the legal structure, the third revision of the Patent Law and its implementation rules will finish by the end of 2008 to meet the requirements that accompanied China's entry into the World Trade Organization.

"China has enough laws in IPR protection now," Li said.

Lawsuits filed involving foreign individuals or companies are usually handled by intermediate people's courts or above. However, IPR rights owners can also appeal to responsible government departments, such as the copyright department.

Those departments may legally punish those who have been proved to have violated IPR rights without any court action, but those cases involving a suspected criminal offence may also be transferred to the police or prosecutors, Li pointed out.

As some foreign enterprises chose to complain to the departments to catch and punish suspected rights violators, Li and Tang Guangliang, IPR associate professor at the Chinese Academy of Social Sciences, agreed that the process was unfair but for different reasons.

"The phenomenon is abnormal," Li said. "As IPR rights are private, only those violations that negatively influence the public interest could be dealt with by governments."

Tang said if the departmental route mainly helped those foreign companies, then it would be an infringement on the rights of Chinese individuals and companies.

They both agreed that individuals and companies should take suspected violators to court rather than seek help directly from governments.

(China Daily 02/16/2006 page2)