China Laws and Regulations Update in December 2021

1. Cyber Data Security Regulations (Exposure Version)

Promulgated by Cyberspace Administration of China

Promulgation date: 15 November 2021

The Exposure Version provides that there should be a data classification and protection system in China, in which data are classified into general, important and core data according to how they affect and how important they are to national security, public interests or individual or organization’s legal rights. Protection measures for data in different classes may differ. In China, enhanced protection is given for personal and important data and strict protection for core data.

The Exposure Version further states that data processors who use biometrics to authenticate an individual’s identity should conduct a risk evaluation to decide whether it is necessary and safe and cannot force an individual to have their bio information collected by using a kind of biometrics such as the human face, way of walking, fingerprint, iris or voiceprint as the only way to authenticate an individual’s identity.

(Source: CAC Website)

2. Rules on Registering Pledge on Patent Rights (Revised)

Promulgated by China National Intellectual Property Administration

Promulgation date: 16 November 2021

Implementation date: 16 November 2021

Document number: CNIPA Announcement 461

The Rules included substantive amendments to Articles 6, 7, 10, etc. and wording changes in other articles made to arrange them in a different order, make them more concise or formal, etc. The main amendments are a. formalities for registering pledge based on a commitment, b. removal of certain circumstances where registration requests should be refused, c. shorten the registration request review period and d. improve registration related services. The Rules explicitly states that people concerned may register the pledge on patent rights by providing a commitment without providing identity, change, cancellation or other documents and that CNIPA will strengthen in-process and post regulation and treat a false commitment as a dishonest act for which exemplary measures should take according to relevant provisions.

(Source: CNIPA)

3. Regulations of Credit on the Cultural and Tourism Markets

Promulgated by the Ministry of Culture and Tourism

Promulgation date: 16 November 2021

Implementation date: 1 January 2022

Document number: MCT Order 7

The Regulations consists of nine chapters and 37 articles and sets out policies for identification and regulation of dishonest people on the cultural and tourism market, collection, aggregation, openness and sharing of credit information, credit restoration, credit appraisal, credit commitment and protection of rights to ensure awards and punishments for honest and dishonest acts are given appropriately, which is the basis for credit management on the cultural and tourism market. The Regulations sets out ten measures to regulate seriously dishonest people on the cultural market that the cultural and tourism authority can take, such as “increasing the proportion and times of inspection and adding them to the list of strictly regulated people” and seven measures to regulate seriously dishonest people on the tourism market, such as “providing dishonesty details for searches by people on the market and general use in activities on the market”.

(Source: MCT Website)

4. Data Rules of Shanghai

Promulgated by the Standing Committee of Shanghai Municipal People’s Congress

Promulgation date: 29 November 2021

Implementation date: 1 January 2022

The Regulations consists of 91 articles and ten chapters, i.e. General Principles, Protection of Rights in Data, Public Data, Data Element Market, Data Resource Development and Application, Data Reform in Pudong New Area, Cooperation in Dealing with Data in the Yangtze River Delta, Data Security, Legal Responsibilities and Supplement. In the Regulations, public data are defined as data gathered or generated while state organs in Shanghai, public services and organizations that are legally authorized to perform public administration or pubic services such as water, electricity or gas supply and public transport (“public administration and services”) are performing public administration and services.

Focusing on protecting rights in data, the Regulations explicitly states natural person’s personal rights in their personal data are legally protected in Shanghai. Regarding special protection of personal data, the Regulations explicitly states that unless otherwise provided by law or regulations, processing a person’s data should be subject to the person’s approval.

Focusing on the construction of the market of data elements, the Regulations explicitly states that the People’s Government of Shanghai should comply with national requirements by deepening the reform to allocate data elements on the market, formulating promotional policies, developing a fair, open, orderly and honest market of data elements, establishing market operation systems in respect of property evaluation, registration and, business contact, dispute resolution, etc. and helping with the flow of data elements in a legal and orderly manner. The General Office of the Government of Shanghai should formulate policies to encourage and lead people on the market to legally share, open, sell and purchase and cooperate in dealing with data and promote the flow and use of data between different regions and industries. There should be policies in Shanghai to cultivate people on the market of data elements, encourage data technology researches, promote data application, discover the value of data and produce data products and services by substantive processing or creative work.

(Source: Shanghai Government Website)

5. Regulations of Implementing the Exclusive Sale of Tobacco Law of China (Amended)

Promulgated by the State Council

Document number: SC Order 750

Promulgation date: 26 November 2021

Implementation date: 26 November 2021

To strengthen the regulation of new types of tobacco products such as e-cigarette, the State Council decided to amend the Regulations of Implementing the Exclusive Sale of Tobacco Law of China as follows.

Add an article as Article 65 “new types of tobacco products such as e-cigarette are subject to cigarette related provisions of the Regulations”.

(Source: State Council Website)

6. Trademark Review and Examination Guidance

Promulgated by the National Intellectual Property Administration

Promulgation date: 22 November 2021

Implementation date: 1 January 2022

Document number: CNIPA Announcement 462

Guidance hastwo chapters, one about formal examination and routine work and the other about trademark examination and review. The contents of the latter chapter are examination and review of malicious trademark applications with no intention to use them, marks that shall not be used as trademark, characteristics of a trademark, the same or similar characteristics of trademarks, 3D trademarks, etc. For example, regarding the “examination and review of malicious trademark applications with no intention to use them”, Guidance sets out legal basis, interpretation, conditions on which it applies, factors that should be considered, circumstances where it applies, classic cases, etc. in order to ensure the application of the same laws and criteria in each part of the trademark examination and review process.

(Source: CNIPA Website)

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