Which Part of Medical Instruction Could be Protected by China Copyright Law?

By Luo Yanjie

In recent, the Supreme People’s Court of China asked for public opinions on “judicial protection on the medical instruction’s copyright and the definition of its legal boundary”. The lawyers of our website are confronted with the same problems in practices: shall the instruction be protected by the copyright law? So, in today’s post, we would like to share our opinions on the copyright protection of the insert with the reference to our past cases and experiences.

I. Could the instruction be the works on law?

The determination of the works to the insert is the precondition to the establishment of the copyright law protection. And by the regulations of the existing copyright law and the general theory of it, the standard to judge a work is the “originality” and other expressions. As to the instruction, for it may include various parts and that makes a general conclusion or description on them impossible. Therefore, the judgment of the works shall relay on the analysis on different parts of the specification.

1. The experimental data and molecular formula have no originality

In the written judgment (note: the link is in Chinese) of the copyright dispute between Xiangbei Welman Pharmaceutical Co., Ltd and Suzhou Erye Pharmaceutical Co., Ltd over medical specification, the court judged that “a full protection shall be given to the medicine experimental data and its conclusion which has originality in it”. By such statements, the experimental data and conclusion shall be equipped with originality and shall be under the protection of copyright law. Yet, we hold an opposite opinion to it.

It’s undeniable that both the experiment results and conclusion are got through efforts, but that does not equal to the production of originality on copyright law. Unlike other legislation of IPR, copyright law only protects the expression, and such expression shall be “variable”, otherwise there could be little space for other’s “original expression” on it. Moreover, both the results and the conclusion are the description to the facts, though it may be acquired by a company first, yet such facts which have few expressions are not protected by law.

2. The specification with limited expressions could not be protected by copyright law

As to the literary part in the specification, we could see many concise descriptions, like the insert of aspirin (note: the link is in Chinese) says, “for antipyretic or analgesia once 0.3-0.6g, 3 times a day, or once every 4 hours when necessary; for rheumatism, 3-6 g per day and 4 times per day”. In our opinions, such expression is quite similar to the experimental data and molecular formula in essence, and has few other expressions. And the principle of mixing is applied in copyright law, by which when some ideas could only be expressed in few methods, then such methods shall exclude from the copyright protection even it is original, like those game rules of sports.

3. The literary part of the discussion shall be protected by copyright law

In addition to the above parts, we could also see much discussion in the specification, and still take the insert of aspirin as the example, “this drug is easy to be absorbed placenta. And by the animal experiment, the taking of it may lead to the monster… and also the cases are found in man’s pregnancy… and the abuse use of the medicine may result in stillbirth and the death of new born baby…yet such consequence has not been found when normal amount is used.”

The above words are the description to an objective fact with the writers of writing skills and intelligence work in it. For these reasons, these words could constitute the works on the copyright law and shall be legally protected.

II. The protection on the instruction and the balance of public interests.

The above part is the analysis on law, yet to a macroscopic aspect, a special regulation, in our mind, shall be made to the protection on instruction.

Not like other works, no one shall enjoy the specification for joy, and the reading on it is solely for a better use of the medicine. Therefore, once a monopoly use of the specification to a certain person, the spread of the medicine information could be influenced, and thus could burden the patients to make a prior investigation before buying the medicine. And that’s surely kind of influence on the public interests.

Second, for the manufacture methods or other technology contents of the medicine, they could be protected by patent or trade secret, and the specifications are the supplementary to the medicine instead of the core value of the drug. So, the copyright law shall not give it an extravagant protection.

Surely, in practices some companies may establish the database of the medicine information after the collection of the inserts. But to our opinions, the protection on the database shall only aim at the pool itself, and in the situation when others copy the database, a relief method could be fulfilled by the Anti-unfair Competition Law; meanwhile, to the single specification, in addition to the literary part, all the information shall not be copyrighted and protected thereby.

Lawyer Contacts

You Yunting

86-21-52134918

youyunting@debund.com, yytbest@gmail.com

For further information, please contact the lawyer as listed above or through the methods in our CONTACTS.

Bridge IP Law Commentary’s posts, including the comments and opinions contained herein, shall not be construed as the legal advice on any issues related. The contents are for general information purposes only. Anyone willing to quote or refer the posts to any other publications or for any other purposes, no matter there’s benefits gained or not, shall first get the written consent from Bridge IP Law Commentary and used under the discretion of us. As to the application of the reprint permission for any of our posts, please email us to the above addresses. The publication of this post or transmission of it through mail, internet or other methods does not constitute an attorney-client relationship. The views set forth here are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works.

Short Link: