Editing Intellectual property in China (section)

==National legal framework==
China's legal framework for intellectual property protection is developing rapidly as China becomes a source of innovation, although its IP framework is still less developed than most industrialized nations as of 2023.<ref name=":3">{{Cite book |last=Lewis |first=Joanna I. |title=Cooperating for the Climate: Learning from International Partnerships in China's Clean Energy Sector |date=2023 |publisher=The [[MIT Press]] |isbn=978-0-262-54482-5 |location=Cambridge, Massachusetts |doi=10.7551/mitpress/11959.001.0001|s2cid=167841443 }}</ref>{{Rp|page=2}} The general trend of its IP system has been to develop towards increasing similarity with the E.U. and U.S. systems.<ref name=":4" />{{Rp|page=267}}

China established its first ''Trademark Law'' in 1982, its ''Patent Law'' in 1984, and its ''Copyright Law'' in 1990.<ref name=":4" />{{Rp|page=19}} It comprehensively amended these laws after it joined the World Trade Organization in 2001.<ref name=":4" />{{Rp|page=52}}

===Trademark law===
{{Main|Trademark law of China}}

In 1950, China issued ''Procedures for Dealing with Trademarks Registered at the Trademark Office of the Former Kuomintang Government'' which eliminated all trademarks registered under the Nationalist government.<ref name=":5" />{{Rp|page=59}} ''Provisional Regulations on Trademark Registration'', issued in the same year, allowed registration of foreign trademarks.<ref name=":5" />{{Rp|page=59}} Few holders used the procedures.<ref name=":5" />{{Rp|page=59}}

In conformity with the TRIPS Agreement, China amended the ''Trademark Law'' in 2000.<ref name=":4" />{{Rp|page=20}}

China uses a first-to-file trademark registration system.<ref name=":Zhang" />{{Rp|page=230}} Trademark registrants do not need to demonstrate their prior use of a trademark.<ref name=":Zhang" />{{Rp|page=230}}

===Copyright law===
{{See also|Software copyright in China}}

====History====
The concept of copyright in China has been found to exist at least as far back as the [[Song dynasty]] (960–1279). The publishers of a work at that time wrote on the final page of a text that it could not be copied. The first modern official code was implemented in 1910 at the end of the [[Qing dynasty]] (1644–1912). A new version was issued in 1915 during the [[Warlord Era]] of the [[Republic of China (1912–1949)|Republic of China]].<ref name="Yiping">{{cite web |url=https://escholarship.org/content/qt8p06h5m1/qt8p06h5m1.pdf |title=The 1990 Copyright Law of The People's Republic of China |last=Yang |first=Yiping |publisher=Pacific Basin Law Journal |date=1993|access-date=February 26, 2021}}</ref> On May 23, 1928, the [[Nationalist Government]] enacted a copyright law that covered books, music, paintings, photographs, engravings, and models. The copyright for most items existed for 30 years after the death of the author. Translations of literary works had a 20-year copyright and photographs had a 10-year copyright after publication. Corporate copyright existed for 30 years after publication.<ref>{{cite book |last=Koepfle |first=Leo |date=January 1937 |title=Copyright Protection Throughout the World Part VII Near East, Far East, Africa, Asia, Surinam and Curacao |url=https://books.google.com/books?id=zVKQyc1c8koC |publisher=US Department of Commerce |page=2}}</ref>

The People's Republic of China abolished the Republic of China statutes in 1949.<ref name=":5">{{Cite book |last=Alford |first=William P. |title=To Steal a Book is an Elegant Offense: Intellectual Property Law in Chinese Civilization |date=1995 |publisher=[[Stanford University Press]] |isbn=978-0-8047-2270-4 |series=Studies in East Asian Law series |location=Stanford (Calif.) |doi=10.1515/9780804779296 |s2cid=246169874 |author-link=William P. Alford}}</ref>{{Rp|page=56}} The PRC found the Soviet intellectual model more consistent with traditional Chinese thinking than the Republic of China model, as the Soviet model accorded with the idea that through invention or creation, people engaged in social activities drawing on a body of knowledge that belonged to all people.<ref name=":5" />{{Rp|pages=56–57}} In contrast to patents and trademarks, the early PRC did not issue comparable copyright regulations.<ref name=":5" />{{Rp|page=59}} Instead, official policy in this area was set by resolutions passed in the early 1950s.<ref name=":5" />{{Rp|page=60}} These included editorial rules by which state publishing entities were encouraged to memorialize the author-publisher relationship in contracts which would cover submitting manuscripts, publication, and payment.<ref name=":5" />{{Rp|page=60}}

A copyright statute was not adopted until 1990.<ref name="Yiping" /> WIPO provided technical assistance to China during the drafting of the 1990 Copyright Law.<ref name=":4" />{{Rp|page=183}}

====Current law====
{{wikisource|Copyright Law of the People's Republic of China}}
The ''Copyright Law'' was amended in 2000 to ensure compliance with China's obligations under the TRIPS Agreement.<ref name=":4" />{{Rp|page=20}}

In 2015, the [[National Copyright Administration]] required all domestic online music platforms to remove unlicensed music or face severe sanctions.<ref name=":Zhang" />{{Rp|page=103}}

An influential decision by the Beijing Internet Court has ruled that [[Artificial intelligence industry in China|artificial intelligence]]-generated content is entitled to copyright protection.<ref name=":023">{{Cite book |last1=Bachulska |first1=Alicja |url=https://ecfr.eu/publication/idea-of-china/ |title=The Idea of China: Chinese Thinkers on Power, Progress, and People |last2=Leonard |first2=Mark |last3=Oertel |first3=Janka |date=2 July 2024 |publisher=[[European Council on Foreign Relations]] |isbn=978-1-916682-42-9 |location=Berlin, Germany |pages=98 |format=EPUB |access-date=22 July 2024 |archive-url=https://web.archive.org/web/20240717120845/https://ecfr.eu/publication/idea-of-china/ |archive-date=17 July 2024 |url-status=live}}</ref>

===Patent law===
{{Main|Patent law of China}}

In 1950, the PRC issued ''Provisional Regulations on the Protection of Invention Rights and Patent Rights.''<ref name=":5" />{{Rp|pages=57–58}} The PRC's early regulations provided for inventors' patent rights, but these were abolished fairly quickly under the view that patent rights were incompatible with socialism.<ref name=":4" />{{Rp|page=183}} China then followed the model of the Soviet Union's investor certificates, honorary titles that were granted to investors without remuneration.<ref name=":4" />{{Rp|page=183}} Just prior to the [[Cultural Revolution]], China completely abolished its patent regulations.<ref name=":4" />{{Rp|pages=17–18}}

In 1984, China passed the ''Patent Law of the PRC'' to encourage invention-creation and to promote the development of science and technology.{{cn|date=May 2024}} The subsequent ''Implementing Regulations of the Patent Law of the PRC'' added clarification.{{cn|date=May 2024}}

In addition to [[Inventions Patents|invention patents]] and [[design patent]]s, [[utility patents]] are available under Chinese law.<ref name=":3" />{{Rp|page=140}} In cases of joint patentees, the default rule in China is that each patentee can grant nonexclusive license without the other joint patentees' consent.<ref name=":3" />{{Rp|page=140}} Joint patentees can avoid application of this default rule by agreement, however.<ref name=":3" />{{Rp|page=140}}

As compared to the United States, China has more non-patentable matters.<ref name=":3" />{{Rp|page=140}} Pharmaceuticals and chemicals were not patentable under the 1984 Patent Law, but became patentable after the law was amended in 1992.<ref name=":4" />{{Rp|page=20}} A bilateral memorandum of understanding with the United States made this amendment to domestic law necessary.<ref name=":4" />{{Rp|page=20}} China accepted this requirement because it would have ultimately been necessary in order for China to re-enter GATT.<ref name=":4" />{{Rp|page=21}}

The Patent Law was again amended in 2000 to ensure compliance with China's obligations under the TRIPS Agreement.<ref name=":4" />{{Rp|page=20}} In 2008, amendments to the Patent Law added provisions on the protection of genetic resources.<ref name=":4" />{{Rp|pages=96–97}} These amendments established a disclosure obligation for genetic resources, a domestic provision which developed from the positions China took in negotiating on this issue in the TRIPS Council.<ref name=":4" />{{Rp|page=110}} 2010 ''Implementation Rules of the Patent Law'' define genetic resources as any material taken from a human, animal, plant, or microorganism containing genetically functioning units with actual or potential value.<ref name=":4" />{{Rp|page=27}}

China became the country filing the largest number of patents in 2011.<ref>{{Cite journal |last=Hu |first=Albert G.Z. |last2=Zhang |first2=Peng |last3=Zhao |first3=Lijing |date=January 2017 |title=China as number one? Evidence from China's most recent patenting surge |journal=[[Journal of Development Economics]] |language=en |volume=124 |pages=107–119 |doi=10.1016/j.jdeveco.2016.09.004}}</ref> This increase resulted in part from government incentives to patent filers, outpacing China's actual R&D spending and labor productivity. Most design and utility patents, which enjoy a shorter protection period and are easier to obtain compared to invention patents, were not renewed after five years.<ref>{{Cite news |last=Yilun Chen |first=Lulu |date=2018-09-26 |title=China Claims More Patents Than Any Country—Most Are Worthless |url=https://www.bloomberg.com/news/articles/2018-09-26/china-claims-more-patents-than-any-country-most-are-worthless |url-status=live |archive-url=https://archive.today/20200217015942/https://www.bloomberg.com/news/articles/2018-09-26/china-claims-more-patents-than-any-country-most-are-worthless |archive-date=17 February 2020 |access-date=2024-11-30 |work=[[Bloomberg News]] |language=en}}</ref> In 2020 the Chinese government began pushing for stricter standards in granting patents.<ref>{{Cite web |last=slangman |date=2022-08-30 |title=China sets new targets for high-value patents in ambitious five-year plan |url=https://www.mathys-squire.com/insights-and-events/news/china-sets-new-targets-for-high-value-patents-in-ambitious-five-year-plan/ |access-date=2024-12-03 |website=Mathys & Squire LLP |language=en-GB}}</ref>

===Other legislation and regulations===
Apart from major legislation on trademarks, copyright and patents, a few other laws and regulations have been passed to deal with intellectual property related issues. In 1986, the ''General Principles of Civil Law'' was adopted to protect the lawful civil rights and interests of citizens and legal persons, and to correctly regulate civil relations. Articles 94–97 of the ''General Principles of Civil Law'' deal with intellectual property rights of Chinese citizens and legal persons.{{Citation needed|date=January 2018}}

In the 1990s, many more pieces of legislation were passed to perfect the intellectual property protection system. These include the ''Regulations on Customs Protection of Intellectual Property Rights'' (1995) and the ''Law Against Unfair Competition of the PRC'' (1993).{{Citation needed|date=January 2018}} The latter prohibited the passing off of registered trademarks, infringing trade secrets, the illegal use of well-known goods or names of other people, as well as other misleading and deceptive conduct. The ''Advertising Law of the PRC'' was passed in 1994 and extensively revised in 2015, to now include a joint liability with the advertising spokesperson, special regulations on public interest advertising, and most importantly a definition of misleading advertisement.<ref>{{Cite journal|last=Richter|first=Eva Lena|title=Die Revision des Werbegesetzes der VR China (Revision of the Advertising Law of the People's Republic of China)|url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2972630|journal=Zeitschrift für Chinesisches Recht|date=14 August 2015 |volume=23|pages=104–116|ssrn=2972630 }}</ref>

The [[Anti Monopoly Law of China|Anti-Monopoly Law]] provides for investigating unreasonable IP licensing fees and authority for further supplementary regulations on IP issues.<ref name=":4" />{{Rp|page=124}}

The Law of Seeds (2000) established the principle of state sovereignty over the regulation of [[germplasm]] resources for plant seeds.<ref name=":4" />{{Rp|page=97}} Eight years later, amendments to the Patent Law more broadly addressed protection for genetic resources.<ref name=":4" />{{Rp|pages=96–97}}

Although rarely enforced, the Administration of Technology Import/Export Regulations (TIER) previously prohibited foreign enterprises licensing their technology to China from restricting where that technology could be used and required them to waive any rights related to subsequent improvements to the technology.<ref name=":3" />{{Rp|page=100}} The provisions of TIER had been the subject of a number of WTO disputes.<ref name=":3" />{{Rp|page=100}} In March 2019, China agreed to revoke some of the TIER provisions.<ref name=":3" />{{Rp|page=100}}A Foreign Investment Law introduced in late 2019 banned forced technology transfers.<ref name=":2">{{Cite book |last=Moore |first=Scott |url= |title=China's Next Act: How Sustainability and Technology are Reshaping China's Rise and the World's Future |date=2022 |publisher=[[Oxford University Press]] |isbn=978-0-19-760401-4 |location=New York, NY |pages= |doi=10.1093/oso/9780197603994.001.0001 |oclc=1316703008}}</ref>{{Rp|page=170}}

With regard to artificial intelligence, the [[Cyberspace Administration of China]] issued draft measures which, among other provisions, obligate tech companies to implement safeguards to ensure their [[Artificial intelligence industry in China|artificial intelligence]] platforms respect intellectual property rights.<ref name=":Zhang">{{Cite book |last=Zhang |first=Angela Huyue |title=High Wire: How China Regulates Big Tech and Governs Its Economy |publisher=[[Oxford University Press]] |year=2024 |isbn=9780197682258 |doi=10.1093/oso/9780197682258.001.0001}}</ref>{{Rp|page=278}}

=== Geographical indications ===
The use of place names as part of product names to emphasize regional specialties existed in China for over 3,000 years.<ref name=":4">{{Cite book |last=Cheng |first=Wenting |title=China in Global Governance of Intellectual Property: Implications for Global Distributive Justice |publisher=[[Palgrave Macmillan]] |year=2023 |isbn=978-3-031-24369-1 |series=Palgrave Socio-Legal Studies series |doi=10.1007/978-3-031-24370-7|s2cid=256742457 }}</ref>{{Rp|page=49}} China first encountered European-style [[geographical indication]]s as intellectual property following [[Reform and opening up|Reform and Opening Up]] in the 1980s.<ref name=":4" />{{Rp|page=49}} Under China's 1984 Trademark Law, geographical names were excluded from trademark registration and in 1986, the [[State Administration for Industry and Commerce]] prohibited the use of geographical names of administrative divisions at or above the county levels as trademarks.<ref name=":4" />{{Rp|page=50}} However, regulators in China began protecting foreign geographical indications on a case-by-case basis.<ref name=":4" />{{Rp|pages=51–52}}

In the 2001 amendments to China's ''Trademark Law'', China adopted the provision on geographical indications from the TRIPS Agreement.<ref name=":4" />{{Rp|page=53}} Under this standard, if a trademark contains a place name but the product does not originate in that area, the geographical name should not be used or registered given the risk of misleading the public.<ref name=":4" />{{Rp|page=53}} A [[grandfather clause]] provides an exception where an otherwise prohibited trademark already registered in good faith remains valid.<ref name=":4" />{{Rp|page=53}}

The [[General Administration of Quality Supervision, Inspection and Quarantine]] (AQSIQ) established a ''[[sui generis]]'' system to cover the use of geographical indication products through the 2005 ''Provisions on the Protection of GI Products.''<ref name=":4" />{{Rp|page=53}} These regulations establish protection and requirements for products using place names if (1) the product is grown or bred from a certain place name location and all of the raw materials come from that place, (2) products produced elsewhere but for which all of the raw materials come from the place name location, and (3) products where some of the raw materials come from elsewhere but are produced in the place name location using specialized techniques.<ref name=":4" />{{Rp|page=53–54}} This approach is intended to accommodate the use of geographical indications in handicrafts like embroidery or ceramics.<ref name=":4" />{{Rp|page=54}} The regulation sets strict standards for products produced under the geographical indication, and non-compliance results in a producer losing the ability to use the place name.<ref name=":4" />{{Rp|page=54}}

In 2007, the [[Ministry of Agriculture (China)|Ministry of Agriculture]] (MOA) issued a regulation on the protection of agricultural geographical indication products.<ref name=":4" />{{Rp|page=54}} These are defined as including plants, animals, and microorganisms.<ref name=":4" />{{Rp|page=54}}

[[China–European Union relations|China and the European Union]] signed a GI agreement in September 2020.<ref name=":4" />{{Rp|page=67}} The agreement developed from pilot programs over the preceding eight years in which China and the EU worked on mutual registering and protection of geographical indications.<ref name=":4" />{{Rp|page=67}} The 2020 agreement extends mutual recognition of geographical indications to 275 from each side.<ref name=":4" />{{Rp|page=67}}

The 2020 U.S.-China Economic and Trade Agreement required China to amend its domestic regulations regarding geographic indications, including to provide that geographical indications may become generic over time.<ref name=":4" />{{Rp|page=68}}

As of 2023, nine of China's bilateral [[free trade agreement]]s include provisions dealing with geographical indications.<ref name=":4" />{{Rp|page=69}} China has generally taken a flexible approach with regard to these provisions and proceeds on the basis of reciprocity.<ref name=":4" />{{Rp|page=74}}