Second Edition of China Copyright Law’s Exposure Draft

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The National Copyright Office of China publicized the second edition of Chinese Copyright Law’s exposure draft in recent, and before that we have posted the essays to analyze the English draft of the first edition, today we would like to share you our translation on the second edition of the recently released draft. 

Chapter I General Provisions

Article 1: In order to protect the copyright of creators of literary, artistic and scientific works, as well as the related rights of disseminators, encourage the creation and dissemination of works beneficial to the construction of a Socialist spiritual culture and material culture, and stimulate the development and flourishing of Socialist culture, science and economy, in accordance with the Constitution, this Law is formulated.

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Analysis on Lawsuits and Arbitration in Domain Name Dispute Settlement System in China

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By Luo Yanjie

According to a news report, Apple filed arbitration in June over “iPad 3.com” in WIPO, and claimed the adjudication to grant it the domain name. So far as is known this week, Apple is said to have received the internet address, and the registration information of iPad 3.com, and has now been updated, transferred from Global Access to Kilpatrick Townsend & Stockton; the law firm entrusted by Apple.

The development and popularity of the Internet has increased the weight of domain names to the companies, especially for those engaged in the Internet industry and to them the domain name is playing the main role in propaganda with the replacement of trademark to some extent. Therefore, the domain name has been one of the main battlegrounds of the Internet or IT companies, and that thereby has brought many disputes. Due to the fact that the domain name is unified in global standard, the dispute concerning the domain name could be mainly settled in arbitrations (like Apple did in the case above, while it’s a little different from the contractual arbitration as specified below) and lawsuits. Now, we would like to introduce you how these two settlement methods applied in China:

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Qiaodan Sports Cancelled Trademarks Registerred in Jordan Children’s Name

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By Si Weijiang

According to a news report, Qiaodan Sports made an announcement in recent, that it has canceled the trademarks registered matching the Chinese translation of Jordan’s Children’s names. Also it’s mentioned in the statement that, Qiaodan Sports has found many trademarks with Qiaodan （乔丹）contained, therefore for the protection of its brand, so far the company has registered 129 trademarks for the defense strategy. However for the defense purposes, these trademarks have never been used and Qiaodao has no intension to use them in the future. In our opinions, the active cancellation by Qiaodan is a right step on the course for the name of foreign people shall also be protected in China.

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SINO-RUSSIA PPH Has Started from 1st July

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By Huang Mengren

The SINO-RUSSIA PPH program will start from this 1st July, this program is similar to those of SINO-USA and SINO-JAPAN. And the following is our past essay on the PPH program between China and other countries.

The Patent Prosecution Highway is Piloting in China

—introduction on PPH programs between China and USA, Japan

Recently, China government has speeded up the process of international patent cooperation. Currently, the Patent Prosecution Highway (PPH) Program between China and several other countries has started or prepared to start. Among the cooperations, the Sino-Japan PPH is piloting from 1st November, 2011, the Sino-America PPH will be carried out on 1st December, 2011, and Sino-Korea program will start from March, 2012.

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Legal Analysis on Program Format Protection

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By Luo Yanjie

China’s Got Talent broadcasted on Dragon TV has seen its 4th season this year, and during the past couple years, the show has been one of the most popular interactive reality TV shows in China. The main reason contributing to the show’s success is its high production level and the claimed license from British copyright owner which makes the program the true Talent like its British and American equivalents. However, in fact, Dragon TV’s statement is not legally accurate by China Copyright Law for the show is kind of transfer of the British program format. Today, the essay will tell you shall the program format be protected by law and what kind protection it is.

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Analysis of App Store’s Obligation under China Copyright Law

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By Zhan Yi

Highlight

At the beginning of 2012, Apple Inc. (the “Apple”) was sued by some noted local writers in China for copyright infringement. This aroused wide concentration amongst the public on the copyright issue in App Store. Will Apple be liable for the free or paid download by law? The answer to this question, in my perspective, shall focus on the determination of its legal nature which shall be considered within the regulations of the copyright law based on App Store’s commercial and technological model of App Store.

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No Infringement of SONY TV’s Unauthorized Cartoon Playing

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By Luo Yanjie

In our past post “How Sony Can Avoid Copyright Risk”, we gave our legal opinion in the copyright infringement charged against SONY. And in that case, SONY integrated the function of networking in a type of its TV products, by which the consumer could watch the cartoon produced by an animation company after registering its TV and the application for an account on an appointed websites under the instruction of SONY. The animation company sued SONY and the website in Beijing after detaining the infringement.

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Latest China Laws and Regulations in June, I

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I. The Supreme People’s Court Issued the Judicial Interpretation on the Issue concerning the Application of Law in the Trial of Disputes Arising from Purchase and Sale Contracts

On 6th June,2012, the Supreme People’s Court published the Interpretation of Supreme People’s Court on the Issue concerning the Application of Law in the trial of Dispute Arising from Purchase and Sale Contract ( the “ Judicial Interpretation”), which becomes a remarkable interpretation on the issues concerning purchase and sale contracts after the promulgation of Property Law. The Judicial Interpretation is consisted of 46 articles, completely covering the conclusion and validity of a purchase and sale contract, the delivery and transfer of title, risk bearing, inspection of objectives, liability for breach, retention of title and so on. The Judicial Interpretation will come into force on 1st July, 2012, and it will be applied to the cases that haven’t been finally sentenced when the Judicial Interpretation executes, however, it shall not be applied in the case that has been sentenced before the implementation of the Judicial Interpretation but the retrial is initiated.

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Is It Worth for Apple to Pay $60M for iPad Trademark?

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According to the media report, the Guangdong People’s High Court announced on the 2nd of July that Apple has concluded a mediation agreement with Proview in the iPad battle, which will be finally settled with the trademark transferred to Apple on its payment of $ 60 million. After the news, the settlement amount of $ 60 million offered by Apple has soon been the focus of the public, and in this essay, we would like to discuss has Apple gained a bargain in the settlement?

For Apple, the payment may be less than its value for the following reasons:

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Apple Pays 60 million US Dollars for iPad Trademark in China

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By You Yunting

On the morning of the 2nd of July, the Guangdong People’s High Court announced both Apple and Proview prefer toend the case through mediation in the iPad battle, and both parties have confirmed the final settlement with $ 60 million paid by Apple for the trademark’s ownership in mainland China and thereby signed the agreement of mediation.

By the agreement, Apple shall remit $ 60 million yuan to the appointed account by the court, and meanwhile, on the 28th of June Apple has applied for the enforcement of the above agreement to the Shenzhen Intermediate People’s Court, where the 1st instance of the trial is heard. After the application, the Shenzhen Court sent the State Administration of Commerce and Industry the judicial decision and the notice of enforcement assistance today, by which the iPad trademark shall registered under the name Apple.

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Data of Copyright Infringement Combat from 2006 to 2010 in China

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By the Economic Daily, during 5 years from 2006 to 2010, the administrative punishment on piracy judged by the copyright offices of each level totaled 49, 416, 1,653 transferred to the judicial organ, 128, 493 illegal operating units have been cancelled, 3, 507 dens have been investigated and 317 million pieces are captured. And in addition to the daily supervision, the special act on infringement combat by the administrative organs have been conducted for continuous 5 years, special act on illegal preinstalled pc software for continuous 3 years and promotion of genuine software using in companies for continuous 5 years.

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How to Apply for the Trademark Record in China Custom

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By Huang Mengren

We are recently consulted for the trademark record in China custom house, therefore we would repost the essay on the issue today.

Highlight: You could get to know the effective way of combating infringing product by trademark record in China custom in today’s post.

As reported by xinhuanet.com, the first instance of the knockoff brand product case with the biggest amount involved in recent was heard. The suspect of the case purchased the knockoff LV, Adidas, LACOSTE and other brand products for export, afterwards the knockoffs were detained for the suspicious infringement basing on the recorded trademark by the customhouse after the inspection, and finally the products were appraised fake with the market value of more than 230 million yuan.

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Introduction to China Internet Information Supervision System

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By You Yunting

According to Progress in China’s Human Rights issued by the Information Office of State Council PRC, the speech freedom of Chinese netizens is protected by law and they could express their opinions in whatever the way they choose. By the end of 2009, China has more than 384 million netizens and the popularity of Internet has been more than 28.9% which are both above the average standard in the world. Moreover, the website established in China has been more than 3.23 million, BBS of more than 1 million and the blog user of more than 220 million. By the sampled statistics, the information sent by local people each day through BBS, news comment or blog are more than 3 million and 66% more netizens will comment on the Internet, participate in the topic discussion, express their opinions or make appeal for their interests.

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Traditional Internet VS Mobile Internet: Any Difference in Law Application?

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By Luo Yanjie

With the popularity of the smart phones in the modern society, we have seen an explosion development of the mobile internet. And by some statistics, the data traffic of the mobile terminal has occupied 10% of the total on the internet, which has been taken as the most important growth point of technology in the coming several years. Meanwhile, the explosion also adds fuel to the firing copyright piracy on the internet, and the convenience of the network also troubles the copyright owner in the right protection. And moreover, it also puzzles the copyright the law application in the mobile internet. Therefore, in today’s post, we would like to share our opinions and experiences on the issue:

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Beijing Treaty on Audiovisual Performances

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adopted by the Diplomatic Conference on June 24, 2012

CONTENTS

Preamble

Article 1:       Relation to Other Conventions and Treaties

Article 2:       Definitions

Article 3:       Beneficiaries of Protection

Article 4:       National Treatment

Article 5:       Moral Rights

Article 6:       Economic Rights of Performers in their Unfixed Performances

Article 7:       Right of Reproduction

Article 8:       Right of Distribution

Article 9:       Right of Rental

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