China Laws and Regulations Update in August 2021

1. Instructions on Support for High Quality Reform and Opening Up and Development of a Pioneer

Socialist Modernization Zone of Pudong New Area

Promulgated by the Central Committee of the Communist Party of China and the State Council

Promulgation date: 15 July 2021

According to Instructions, by 2050, Pudong will have become an important urban area with great appeal, creativity, competitive advantages and influence in the world, a world model of urban governance capacity and effects and a brilliant pearl of the modern socialist power.

READ MORE

China Laws and Regulations Update in July 2021

1. Data Security Law

Promulgated by the Standing Committee of the National People’s Congress

Promulgation date: 10 June 2021

Implementation date: 1 September 2021

Document number: Chinese president order 84

The data security law is an important move for development of digital economy. Over recent years we have continued developing network and digital industries of our country and building an intelligent society. Digital economy where data are used as new essential production materials thrives. Data competition has become an important part of international competition. Data Security Law attaches equal importance to security and development, includes provisions relating to measures for data security and development and the openness of government data and helps legal, reasonable and effective use of data to take full advantage of data as fundamental resources and innovation power, accelerate the formation of digital economy led and sustained by innovation and give more support to economic and social development of our country.

READ MORE

Does the Acquisition and Use of User Information Constitute Unfair Competition?

(By Gao Tianyi and You Yunting) Data buyers often focus on several potential legal concerns in web-scraped data, particularly relating to the Computer Fraud and Abuse Act (CFAA) in the United States. But a recent case in China between Weibo and Maimai demonstrates that even where the CFAA does not apply and vendors are using an Open API, risks may still exist if the buyers fail to acquire and use data appropriately.

Weibo is one of China’s largest social media platforms and has over 530 million monthly active users, according to China Internet Watch. Maimai is a China-based professional social-networking platform, which was initially modelled on LinkedIn. In July 2019, Maimai had 25 million monthly active users.

READ MORE

Does Tesla Violate Law When Disclosing a Customer’s Driving Data?

(By You Yunting)According to a media report, a woman recently claimed her rights at a car exhibition in Shanghai after Tesla disclosed part of driving data of her Tesla car, including time, VIN, speed, physical movement signal of the brake pedal and the pressure of master brake cylinder. The woman’s family claimed that Tesla infringed the car owner’s privacy and consumer rights and should cancel the data and apologize.

Let’s discuss whether it was illegal for Tesla to disclose the customer’s driving data to media. First, in my opinion, driving data are personal data of Tesla car drivers, so Tesla violated the Cyber Security Law when disclosing the driving data without the driver’s approval.

READ MORE

China Laws and Regulations Update in June 2021

1. Law Against Food Wastes of the People’s Republic of China

Promulgated by the National People’s Congress

Promulgation date: 29 April 2021

Implementation date: 29 April 2021

Document number: Chinese president order 78

The law consists of 32 articles covering definition of food wastes, rules and requirements against food wastes, duties of governments and departments, responsibilities of different persons, incentive and restriction measures and legal responsibilities. It emphasizes the national policy of strict economy against wastes, clarifies duties of governments at different levels and departments of the state council, sets standards for business meals and activities of restaurants and other food businesses, gives individuals and families correct guidance as to the concept of consumption; establishes a social governance mechanism against food wastes with government leadership, department collaboration, industrial guide, media attention and public participation and creates legal obligations in a scientific way, imposing rigid restrictions and strictly administering rules with a strong determination to prevent wastes.

READ MORE

China Laws and Regulations Update in May 2021

1. Minutes of Meeting on What Courts in China Should Do to Fully Implement Civil Code

Promulgated by the Supreme People’s Court

Document number: L.I.[2021]94

Meeting Minutes clarifies important issues concerning the application of law and work mechanism that should be addressed now to take Civil Code into full action. It is crucial for appropriate administration of Civil Code, creation of uniform law application rules, equal protection of legal rights and interests of all sides and services for excellent social and economic development. Courts of all levels should fully and accurately understand the essence and fundamental parts of Meeting Minutes.

READ MORE

China Laws and Regulations Update in April 2021

1. Interpretation of the Supreme People’s Court on Exemplary Damages in Civil Cases of Intellectual Property Infringement

Promulgated by the Supreme People’s Court

Promulgation date: 3 March 2021

Implementation date: 3 March 2021

Document number: L.I.[2021]4

Highlights of Interpretation are its clarification of the following matters.

First, relationship between “deliberateness” and “maliciousness”. “Deliberateness” is one of the subjective elements of exemplary damages in the civil law and corresponds to “maliciousness” in Article 63.1 of the trademark law and Article 17.3 of the unfair competition law. Based on opinions and studies in preparations for the Interpretation, “deliberateness” and “maliciousness” should have the same meaning.

READ MORE

Changes in Trademark Crime Related Provisions of (Eleventh) Made by the Amendment to Criminal Law

(By Ye Sushuo)Comparison between trademark crime related provisions

Changes of trademark crime related provisions in Articles 213 to 215 of Section 7, Chapter 3 of Criminal Law
Crime Current Criminal Law (Eleventh) Amendment 2020
Article 213 Crime of falsifying a registered trademark A person who uses a mark that is the same as other’s registered trademark on the same type of products without permission of the registered trademark owner in serious circumstances should be sentenced to less than three years in prison or detainment and/or payment of a fine; and more than three and less than seven years in prison and payment of a fine in very serious circumstances. A person who uses a mark that is the same as other’s registered trademark on the same type of products or services without permission of the registered trademark owner in serious circumstances should be sentenced to less than three years in prison and/or payment of a fine; and more than three and less than ten years in prison and payment of a fine in very serious circumstances.
Article 214 Crime of selling products with a falsified registered trademark A person who sells products in a large amount of sales which they know contain a falsified registered trademark should be sentenced to less than three years in prison or detainment and/or payment of a fine in case of a large amount of sales; and more than three years and less than seven years in prison and payment of a fine in case of a very large amount of sales. A person who sells products which they know contains a falsified registered trademark should be sentenced to less than three years in prison and/or payment of a fine in case of a large amount of illegal profits or serious circumstances; and more than three years and less than ten years in prison and payment of a fine in case of a very large amount of illegal profits or very serious circumstances.
Article 215 Crime of illegally manufacturing or selling illegally manufactured registered trademarks A person who falsifies or manufactures other’s registered trademark without permission or sells a registered trademark falsified or manufactured without permission in serious circumstances should be sentenced to less than three years in prison, detainment or surveillance, and/or payment of a fine; and more than three years and less than seven years in prison and payment of a fine in very serious circumstances. A person who falsifies or manufactures other’s registered trademark without permission or sells a registered trademark falsified or manufactured without permission in serious circumstances should be sentenced to less than three years in prison, and/or payment of a fine; and more than three years and less than seven years in prison and payment of a fine in very serious circumstances.

Change A: An additional type of trademarks – service marks

One of major changes in trademark related crimes is that acts of seriously infringing service marks are treated as the crime of falsifying a registered trademark. Whether provisions relating to the crime of falsifying a registered trademark apply to service marks was always a question discussed in academic and practical worlds. Because of the large-scale development of the Chinese service industry, there is an urgent need to strengthen criminal law protection of service marks.

READ MORE

China Laws and Regulations Update in March 2021

1.Interpretation of the Supreme People’s Court on Exemplary Damages in Civil Cases of Intellectual Property Infringement

Promulgated by the Supreme People’s Court

Promulgation date: 3 March 2021

Implementation date: 3 March 2021

Document number: L.I.[2021]4

Highlights of Interpretation are its clarification of the following matters.

First, relationship between “deliberateness” and “maliciousness”. “Deliberateness” is one of the subjective elements of exemplary damages in the civil law and corresponds to “maliciousness” in Article 63.1 of the trademark law and Article 17.3 of the unfair competition law. Based on opinions and studies in preparations for the Interpretation, “deliberateness” and “maliciousness” should have the same meaning.

READ MORE

China Laws and Regulations Update in December 2020

1.(Eleventh)Amendment to Criminal Law 

Promulgated by the Standing Committee of the National People’s Congress

Promulgation date: 26 December 2020

Implementation date: 1 May 2021

Document number: No.66 Chinese President Order

The Amendment changes the age of criminal responsibility, providing that a person aged 12 or above and less than 14 years old should take criminal responsibility for murder or assault causing death or serious injury or disability very violently in serious circumstances subject to approval of the Supreme People’s Procuratorate for pursuing their criminal responsibility.

READ MORE

Anti-Monopoly Actions Against Facebook and Legal Risks Incurred by Tencent Blocking its Rivals

The US Federal Trade Commission and others in 48 states and areas in the US filed anti-monopoly actions against Facebook for its acts of blocking access of its rivals’ apps to the application programming interface of its open platform. Actually, such acts are very common and even more serious in China. For example, WeChat developed by Tencent blocked APIs of open platforms of apps and domain names of many of its rivals.

Acts of platform companies blocking others do much damage to orderly competition and could harm or even destroy medium and small size startups. Let’s see what we can learn from the Facebook anti-monopoly action case to prevent monopolies among Chinese platforms.

READ MORE

China Laws and Regulations Update in November 2020

1.CopyrightLaw of China (Revised)

Promulgated by the Standing Committee of the National People’s Congress

Promulgation date: 1 November 2020

Implementation date: 1 June 2021

Document number: No.62 Chinese President Order

Major clauses revised this time are as follows.

I.Changes of relevant wordings and new rules and measures to meet practical needs

Changing movies and works created in a similar way of making a film to “audiovisual works”; creating rules on recordation of works, making the public accessible to information about owners of rights in works; changing wordings relating to the broadcast right to adapt to new technologies for simultaneous online broadcast and use of works; clearly stating that as owners of neighboring rights radio and IV stations have the right to broadcast through information network in “signals containing programs” they broadcast; adding provisions on technical measures and right control information to solve problems in protecting them online and offline as a whole.

READ MORE

An Analysis of the Export Control Law from the Angle of National Security and Interests

(By Wang Haichua)The Export Control Law adopted by the Standing Committee of the National Congress on 17 October 2020 took effect on 1 December 2020. The aim of this law to accord paramount status to national security and interests was reflected in its official version and the process of its amendment in its formulation procedures. This article is an analysis of this law from the angle of national security and interests.

1.National security and interests up to the highest status

Article 1 of the Export Control Law provides that the aim of making this law is to protect national security and interests, perform the international duty of non-proliferation and strengthen export control. The second draft published in July 2020 changed the order of the phrases “protect national security and interests” and “perform the international duty of non-proliferation” so that the former came before the latter. In contrast with the second draft, in Articles 2, 9 and 10 of the official version the phrase “protect national security and interests” comes before the phrase “perform the international duty of non-proliferation”. The amendments are aimed to align the clauses with Article 1 and reflect the top aim of making the law to protect national security and interests.

READ MORE

China Laws and Regulations Update in October 2020

1.Patent Law of China (Revised)

Promulgated by the Standing Committee of the National People’s Congress

Promulgation date: 19 October 2020

Implementation date: 1 June 2021

Document number: No.55 Chinese President Order

The revised law mainly deals with the following matters.

I.Increase of the cost of infringement, making infringers pay high prices

The revised law creates rules on punitive damages, under which in serious cases of patent right infringement, the court can decide the amount of damages at one to five times an amount calculated on the basis of patent holder’s loss, infringer’s benefits and times the patent license fee. In addition, it increases the upper limit of statutory damages to RMB 5 million and their lower limit to RMB 30 thousand. To solve evidence collection problems in patent cases, the revised patent law further improves evidence rules and provides that if the patent holder has make greatest possible efforts to collect evidence and most of books and materials connected with infringement are controlled by the infringer, the court can order the infringer to present such books and materials and reduce the patent holder’s burden of proof.

READ MORE

Could Gathering Images through Cameras in Advertising Screens Create Law Violation Risks?

According to People’s Daily, the Personal Data Protection Law (Draft) was recently submitted to the Standing Committee of the National Congress for deliberation. I believe it protects personal data better and offsets disadvantages of the Cyber Security Law in protecting offline citizens’ data, which could increase law violation risks to non-internet businesses, for example Focus Media that was criticized for its intention to gather images through cameras in advertising screens.

Focus Media, if using cameras in advertising screens to gather images for big data analysis, would violate the Personal Data Protection Law (Draft) providing that “image collection and identity recognition devices placed in public places should be necessary for public security”. Its gathering, processing, transmission and storage of personal data are controversial and accompanied by risks of being punished by regulatory authorities for personal data protection purposes. The worst possible outcome is a closure of that business. More details are as follows.

READ MORE