Balance and limitation of intellectual property protection in China : the latest law amendments and judicial development under micro-comparative perspectives / Chenguo Zhang.

Format:

Book

Author/Creator:

Zhang, Chenguo, author.

Language:

English

Subjects (All):

Comparative law.

Intellectual property--China.

Intellectual property.

Physical Description:

1 online resource (216 pages)

Place of Publication:

Singapore : Springer, [2022]

Summary:

The book focuses the openness of Chinese copyright law and patent law, namely the right limitation and exception rules (as the IP-internal balancing mechanism) and the right enforcement and protection (as the IP-external balancing mechanism). It examines the highlights of the 3rd and 4th amendments to the Chinese copyright law, patent law and the trademark law, addressing the most debated questions during these amendments. This book also takes a comparative approach to study the legislations and case laws in the USA, EU and China. The comparison covers the legislation, case decisions, which could offer useful clues for legislators to revise the current law, for judges to decide the cases about relevant topics and lay down their market plans. Moreover, this study also provides several recommendations for the right holders who are currently operating or planning to operate in China, regarding the de facto protection levels of their IP rights, the risks of right infringement and litigation costs as well as the trend of the goalsetting in their intellectual property strategy.

Contents:

Intro

Contents

1 The Development of Chinese Law Under the International Debate on Adequate Intellectual Property Protection

1.1 Chinese Copyright Law in the Context of International Integration

1.1.1 International Perspective

1.1.2 Globalization and Chinese Copyright Law

1.1.3 China's Accession to International Convention

1.2 Overview of the Third Amendment of Chinese Copyright Law

1.2.1 Object of the Third Amendment

1.2.2 Process of the Third Amendment

1.2.3 Key Changes

1.3 Endeavors for More Effective Copyright Protection

1.3.1 "Multiple Punitive Damages" and the Increase of the Limit on Compensation

1.3.2 The Injured party's Burden of Proof

1.3.3 Adjustment of Financial Penalties

1.4 Concluding Remarks

2 The New Right Limitation and Exception Rules in Chinese Copyright Law

2.1 Introduction

2.2 Inconsistency of Court Decisions: A Review of Illustrative Cases

2.2.1 Cases Regarding Use for Educational Purpose

2.2.2 Cases Regarding Electronic Databases

2.3 Google Case: Further Comparison with Judicial Paths of Germany and the United States

2.3.1 Germany: Google Photo Search Case

2.3.2 The United States: Digital Library Case

2.3.3 Comparative Analysis

2.4 Problems Presented by the Judicial Practice of Illustrative Cases

2.4.1 Problem When Applying First Step

2.4.2 Problem When Applying the Second Step

2.4.3 Problem When Applying the Third Step

2.4.4 The Overlap Between the "Fair Use Doctrine" and the "Three-Step Test"

2.5 China-Specific Two-Step Test?

2.5.1 Mixed Mode of Two-Step Test in Article 24 Chinese Copyright Law (2021)

2.5.2 "Certain Special Cases" Standard in the World Trade Organization (WTO) Panel Report

2.5.3 The "Munich Declaration on a Balanced Interpretation"

2.6 Legislative Suggestions on Three-Step Test.

2.6.1 Reconstruction of the Three-Step Test

2.6.2 The Application of the Principle of Proportionality

2.6.3 Why Not the Absolute U.S. "Fair-Use Doctrine"

2.7 Chinese Judicial Enforcement System and the Fair Use Open Clause

2.7.1 China-Specific "Binding Precedent" to Reduce Legal Uncertainty

2.7.2 "Certain Special Cases" Determined by the people's Courts

2.7.3 Application of the Second and Third Steps by Chinese Courts

2.8 Conclusion

3 Copyright and Human Rights: Why the Marrakesh Treaty Approach is Politically Correct But Legally Disputable

3.1 Introduction

3.2 Skepticism and Critique Against the Treaty

3.2.1 No Necessity of the Treaty as Such

3.2.2 Violation of Article 20 Bern Convention

3.3 Gap Between the Treaty and Current Chinese Copyright Law

3.3.1 Definition of "Beneficiary Persons"

3.3.2 Definition of "Accessible Format Copies"

3.3.3 Types of Works to Which the Treaty Applies

3.3.4 Disputes Over Exclusive Rights Under Limitations and Exceptions

3.4 Amendment Proposals to Legislators of Chinese Copyright Law

3.4.1 Reaffirmation of the "Three-Step Test"

3.4.2 Broaden the Scope of "Beneficiary Persons" and "Accessible Format Copy"

3.4.3 Redefine the Right of Translation Under Limitation and Exception

3.4.4 Regulation Regarding Technological Protection Measures

4 The Music Borrowing: Right Infringement or Freedom of Art?

4.1 Is Musical Borrowing Fair Use?

4.1.1 The Freedom of Art

4.1.2 The 'Metall Auf Metall' Case (Kraftwerk, Et Al. V Moses Pelham, Et Al)

4.2 Sampling: Infringement of the Neighbouring Rights?

4.2.1 Analyzing the First Instance Decision

4.2.2 Distinction Between German and U.S. Copyright Laws

4.3 From 'Freedom of Art' to Copyright Principles

4.3.1 The Indispensability of Samplers in Modern Music Composition.

4.3.2 Why the 'Per Se Infringement Rule' Should not Apply?

4.3.3 Deliberations of German Federal Constitutional Court

4.3.4 The Free Use Doctrine

4.4 "Sample Clearing" As a Solution?

4.5 Concluding Remarks and Outlook

5 Copyright Protection in the Live Broadcasting

5.1 Introduction

5.2 Webcasting of the Online Teaching and Challenges for Copyright Protection

5.2.1 The Types of Online-Teaching Webcasting

5.2.2 Copyright Protection Issues in the Online-Teaching Webcasting

5.2.3 The Copyright Protection of the "Sequence of Images"

5.2.4 The Object of the Broadcasting Organizations' Rights

5.2.5 The Application of the Anti-Unfair Competition Law

5.3 Risk and Liability Allocation of Online-Teaching Webcast Piracy

5.3.1 Risk Allocation

5.3.2 Safe Harbor Rule

5.3.3 Limitation of the Application of Safe Harbor Rule

5.3.4 Validity in General Clause of Right and Liability Allocation

5.3.5 The Relationship Between the Lecturers and the Platforms

6 Copyright Enforcement Via Civil Damages Remedy

6.1 Proposal for Copyright Damage Reform to Enhance the Copyright Enforcement

6.2 Genesis and Background of the Copyright Damage Reforms

6.2.1 Three Stage Evolution of the CCL

6.2.2 Formation and Development of the Copyright Damages System in China

6.3 Substantial Revisions Proposed in the Third Amendment to CCL

6.3.1 The Main Revisions

6.3.2 The Problem of Statutory Damages

6.3.3 Punitive Damages

6.3.4 Adopted New Evidence Rules

6.4 Concluding Remarks

7 Empirical Research: Patent Litigation in the Beijing Courts

7.1 Background: Patent Right Enforcement in China

7.1.1 The Anecdotes

7.1.2 Goal and Approach of the Empirical Research in This Chapter

7.2 Perceived Inadequacy in Judicial Enforcement of Patent Rights

7.2.1 Why Focus on Patents?.

7.2.2 Role of Civil Measures in the Dual Patent Enforcement System

7.2.3 Approach of the Empirical Research

7.3 Findings

7.3.1 No 'Xenophobia' or 'Domestic Protectionism' Dominates Litigation Outcome

7.3.2 'Favorable Treatment' of Foreign Right Holders?

7.3.3 Impact of Patent Types on Trial

7.4 Explanation for the Findings

7.4.1 Mechanisms Contributing to the Impartiality of Decision Making

7.4.2 Foreign Litigated Patents Are Stronger Than Domestic Ones

7.4.3 Foreign Right Holders Tend to Prepare More for Litigation

7.4.4 Foreign Right Holders' Trade-Off

7.4.5 Chinese Judges' Fairness Concerns

7.4.6 Is the Third Amendment to Chinese Patent Law in Raising Compensatory Damages Effective?

7.4.7 Why Are Damages Compensations So Low?

7.4.8 Implications for the Fourth Amendment to Chinese Patent Law

7.5 Remarks and Conclusions

8 Critical Comments on the Third Amendment of Chinese Trademark Law

8.1 The New Definition of the Term "Trademark"

8.2 Reconstructing the Registration Procedure

8.2.1 Prescribed Time Limits for Trademark Verification

8.2.2 Simplification of the Opposition Procedure

8.3 Prevention of "Pirate Trademark Registration"

8.4 Innovations in the Well-Known Trademark Protection

8.4.1 Establishing the Reputation of a Trademark

8.4.2 Prohibition from Advertising Activities Using the Designation "Well-Known Trademark"

8.5 More Effective Enforcement

8.5.1 The "Triple Damage Calculation" by Introducing Punitive Damages

8.5.2 Increase of the Legal Limit for Damages

8.5.3 New Evidence Rules

8.6 Comments and Outlook

9 Comments on the Fourth Amendment to the Chinese Trademark Law

9.1 Background of the Fourth Amendment to Chinese Trademark Law

9.2 Focusing on the Bad-Faith Trademark Registration.

9.2.1 Problem of Acquiring the Trademark Right Through Registration

9.2.2 Systematization and Revisions of the Provisions Regarding Bad-Faith Registration

9.3 The Coordination Between the New Trademark Law and Other Laws

9.3.1 The Clarified Coordination with the Principle of Bona Fide (the Good Faith)

9.3.2 The Coordination with the Revocation System for Nonuse

9.4 New Rules Regarding the Obligations of the Trademark Agencies

9.4.1 Perceived Decline in the Overall Quality and Integrity

9.4.2 The Problem of Trademark Hoarding and Proposed Solutions

9.4.3 More Obligations Imposed on Trademark Agencies by the Fourth Amendment

9.5 Enhancing the Trademark Protection Standards

9.5.1 Raising the Roof for Payable Damage Compensation

9.5.2 Destroying Counterfeit Goods and Prohibiting Them from Entering Commercial Channels

9.6 Concluding Remarks

10 Three Opportunities for Research on the Interdisciplinary Field of "Intellectual Property and Judiciary"

10.1 Judicial Protection of Intellectual Property Rights Has Become the Focus of International Current Affairs

10.2 Research on Intellectual Property Law Breaks Through the Limitations of Text and Focuses on "Living Law"

10.3 The Interaction of Intellectual Property Law and the Procedure Law Theory Research.

Notes:

Description based on print version record.

Other Format:

Print version: Zhang, Chenguo Balance and Limitation of Intellectual Property Protection in China

ISBN:

9789811968648