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XIAOQING FENG*
Since 1978, when it began its policy of reform and opened its economy to the outside world, China has increasingly emphasised the protection of intellectual property. This article deals with two aspects of Chinese intellectual property law, which have developed in response to the information revolution, the protection of layout-designs for integrated circuits and the extension of copyright protection to transmission over information networks.
Intellectual property protection of layout-design poses some specific problems. In many jurisdictions, including China, patent and copyright protection has been found inadequate, leading to legislation providing intellectual property protection tailor-made for layout designs. The article examines the Chinese legislation, looking at issues such as the requirement of originality, the scope of and entitlement to exclusive rights of commercial exploitation and limits on those rights, registration, and liability for breach. The article also compares some provisions of the legislation with relevant articles of the TRIPS Agreement.
The second part of the article deals with recent Chinese legislation giving copyright owners a right of transmission of copyright information on networks, including the Internet, television, telephone and mobile telephone networks. The article also considers the protection the legislation gives to technical measures designed to protect copyright and to protect electronic information as to the ownership and management of rights attached to recordings such as sound and video recordings. The rights given by the Chinese law are compared with the provisions of some of the WIPO treaties.
China is a developing country. Since 1978, when it began its policy of reform and opened its economy to the outside world, China has increasingly emphasised the protection of intellectual property, including the protection of layout-designs for integrated circuits.[1] Although legislation protecting layout-designs for integrated circuits (hereafter referred to as layout-design) is only recent, a series of related laws and regulations enacted and enforced in recent years has provided legal protection indirectly. Such laws and regulations include: the Trademark Law (enacted in 1982, enforced in 1983); the Patent Law (enacted in 1984, enforced in 1985); the Civil Law (enacted in 1986, enforced in 1987), which establishes the status of intellectual property in the legal system; the Technology Contract Law (enacted in 1988), which provides the ground of adjustment for the market circulation of technology achievement; the Copyright Law (enacted in 1990, enforced in 1991); and the Competition Law (enacted and enforced in 1993). Meanwhile, China has joined a series of international organizations and conventions related to intellectual property. For example, in 1980 China joined the World Intellectual Property Organization (WIPO). In 1985, China joined the Paris Convention for the Protection of Industrial Property. Furthermore, in 1989 China signed the Intellectual Property Treaty Regarding Integrated Circuits. Such initiatives provide the basis for the international protection of intellectual property for China.
As a product of intellectual labour, a layout-design should naturally be protected by intellectual property law. Such protection is a complex issue. As previously mentioned, the Patent Law, Copyright Law and other intellectual property laws can offer indirect legal protection for layout-designs. However, this protection has some defects. Patenting is a good example. The basic criteria for inventions-creations, pursuant to the Patent Law, is that novelty, inventiveness and practical applicability of inventions and utility models are met. However, for most layout-designs, there exist difficulties in meeting the criteria of novelty and inventiveness. Copyright law also poses some problems in the field of layout designs. Valuable layout-designs are those advanced in technology. Correspondingly, what requires protection is the technology included in the layout-design; however, this is beyond the scope of copyright protection. Hence, in countries and regions where legislation has been enacted to protect layout-designs, special provisions are provided especially for layout-designs, so as to circumvent problems of coordination arising from the combination of patent law and copyright law. In China, the industry of integrated circuits still falls behind western developed countries. In order to promote the development of the industry of integrated circuits, to protect the exclusive right of the inventor of layout-designs and to encourage innovation in integrated circuit technology, China established an intellectual property protection system for integrated circuits by a special law in 2001. The Regulations for the Protection of Layout-design of Integrated Circuits (hereinafter referred to as the Regulations) came into force on October 1, 2001.
The Regulations provide relatively comprehensive protection to layout-design. The main features regarding the protection of layout-design will be discussed in detail below.
1.1.Article 4 of the Regulations provides that a protected layout-design shall possess originality. This entails that the layout-design be the product of the intellectual labour of the inventor, and not a standard design generally accepted – the aim of the Article is the protection of originality. Such originality is different from that found in copyright law, and is also different from ‘inventiveness’ in patent law. In other words, the protected layout-design must not be the result of plagiarism and must not be a standard design familiar within the integrated circuit industry. The law should protect innovation and technology, the main value of layout-design. It is not necessary for the law to protect a layout-design that lacks originality and it is generally accepted by integrated circuit circles that no protection is needed after the layout-design has entered the public domain.[1] Article 4 of the Regulations reflects the similar protection of layout-design established in other legal systems. For example, Article 902 of the Law for the Protection of Semi-conduct of the United States of America provides that, where the design does not possess originality or is of common practice, the layout-design is not protected by law.
The exclusive rights relating to layout-designs include the right of reproduction and the right to commercial exploitation. Article 1 of the Regulations provides that a rights-holder enjoys the following exclusive rights: (i) reproduction of the whole or any part of the original layout-design under protection; and (ii) commercial exploitation of the protected layout-design, integrated circuits incorporating a layout-design or articles incorporating such an integrated circuit.
‘Reproduction’ here means the act of producing repeatedly a layout-design or integrated circuit incorporating the layout-design. Objectively, the establishment of the right of reproduction derives from an important feature of layout-designs, the ease with which they are reproduced.[2] Generally speaking, no matter in what form it exists, a layout-design can be reproduced by a proper method. For example, when the carrier of a layout-design is a mask plate, the layout-design can be fully reproduced.[3] The establishment of the right of reproduction is a response to the increasing division of labour in the field of integrated circuits. The industry of integrated circuits is one of the central industries of high technology and is in high demand. In modern times, the design of integrated circuits has gradually become a specialised profession: there now exist a number of corporations focusing specifically on integrated circuit designs. The exclusive right of reproduction of a layout-design is a response to the development and rapid modernisation of the industry of integrated circuits.
‘Commercial exploitation’ here refers to an act of importing, selling, or otherwise distributing, for commercial purposes, a protected layout-design, an integrated circuit incorporating a protected layout-design, or an article incorporating an integrated circuit.[4] The establishment of the right of commercial exploitation derives from the practical applicability of the integrated circuit. Pursuant to the interpretation of the Detailed Rules and Regulations of the Patent Law of the P.R.C, practical applicability means the product seeking protection can be made or exploited in a practical context. The practical applicability of a protected layout-design relates to the possibility of commercially exploiting the layout-design, an integrated circuit incorporating the layout-design, or an article incorporating an integrated circuit. A layout-design is related to a fixed electronic function: in essence, it is a form of expression changing an electronic line to a graph. The acknowledgment of the right of commercial exploitation of a layout-design safeguards the value of a layout-design to the rights-holder. Under the Regulations, a layout-design rights-holder is entitled to prohibit an act that is not licensed and that commercially exploits a protected layout-design, an integrated circuit incorporating a layout-design, or an article incorporating an integrated circuit.
Under the Regulations, those who enjoy exclusive rights in a layout-design must be natural persons, legal entities and other organizations. The Regulations are similar in this regard to provisions of China’s Copyright Law. The provisions concerning the subject of rights are closely related to the issue of rights in the product. Rights in intellectual property can be divided into original rights therein and subsequent rights therein.
According to Intellectual Property theory, the subject of rights is the creator of the product, the person who has expended the intellectual labour. Article 9 of the Regulations provides that the exclusive rights to a layout-design belong to the layout-design inventor unless otherwise provided. Of course, in some cases, the owner of the original rights is not the inventor of the layout-design. For example, Article 9(2) of the Regulations provides that, where a layout-design is invented under an agreement between the inventor and a legal entity or any other organization and for which the legal entity or any other organization is responsible, the exclusive rights of the layout-design are owned according to the agreement concluded between the parties. In this way, the legal entity or other organization or entrusted party not the inventor of a layout-design can become the owner of exclusive rights.
With subsequent rights in intellectual property, the subjects of rights are those natural persons, legal entities or any other organisations that are not the creators of the product but who become entitled to the rights. Assignment, inheritance and the alteration of rights and other legal facts may constitute subsequent rights. The Regulations provide that, where a layout-design’s exclusive rights are owned by a natural person, the exclusive rights are transferred according to the provisions of the Inheritance Law within the duration of protection[5] under the Regulations after the natural person passes away.
Viewed from the perspective of nationality, the subject of rights can be divided into domestic and foreign persons. The Regulations provide that China may always accept the principle of national treatment in the treatment of foreign persons. In fact, this is also an important factor that exposes China to international influence, because international intellectual property conventions almost always accept the principle of national treatment.[6] Article 3 of the Regulations indirectly acknowledges this principle. It provides that any foreign person who commercially establishes a layout-design in Chinese territory, or who is from a country which has concluded an agreement with China on the protection of layout-design, shall enjoy the exclusive right to the layout-design in China.
A layout-design is a technical design. Almost all the laws regarding the protection of layout-design in the world require that the exclusive right cannot be generated until registration. The registration certificate is the preliminary proof that the registered person enjoys the exclusive right to the layout-design; unregistered layout-designs are not protected under the Regulations. Article 8 of the Regulations explicitly provides that the exclusive rights in a layout-design are established through registration with the Intellectual Property Administrative Authority under the State Council. The Intellectual Property Administrative Authority under the State Council is responsible for the registration of layout-designs. In addition to the submission of an application field for the registration of a layout-design, the applicant must submit the layout-design application form, a copy of a drawing of the layout-design and an integrated circuit specimen for the Intellectual Property Administrative Authority under the Council. The Intellectual Property Administrative Authority will not register any layout-design for which no registration is filed within two years from the date when it is first put into commercial exploitation anywhere in the world. Where there exists no reasonable ground for the rejection of the application for registration of a layout-design upon preliminary examination, the Intellectual Property Administrative Authority will register it, issue the registration certificate and publish the registration. Any layout-design applicant who is not satisfied with the rejection of the registration application may request the Intellectual Property Administrative Authority under the State Council for a re-examination within three months from the date of receipt of the notification of rejection. The Intellectual Property Administration Authority then makes its decision and notifies the layout-design applicant. The layout-design applicant who is still not satisfied with the re-examination decision by the Intellectual Property Administrative Authority under the State Council may institute legal proceedings in the People’s Court within three months from the date of receipt of the notification. Where the Intellectual Property Administrative Authority, after granting the registration of a layout-design, decides that the registration does not conform to the provisions of the Regulations, the registration shall be revoked, the holder of the rights in the layout-design notified, and the revocation published. A holder of the rights in the layout-design who is not satisfied with the revocation of the registration may also institute legal proceedings in the People’s Court within three months from the date of receipt of the notification thereof.
Just as copyright law focuses on the protection of the rights and interests of authors, the central objective of the Regulations is to protect the exclusive rights of the inventor of the layout-design.[7] In the early stages of class society, people generally acknowledged that property produced by manual labour should belong to those who produced the property. The emphasis on intellectual labour is only recent; nevertheless, the phenomenon of plagiarism in the area of intellectual labour is now widely highlighted. Intellectual property law is thus a notable development.[8] With the progress of civilisation, and with the development of science and technology and the commodity economy, people have gradually realised the importance of protecting intellectual labour, and have accordingly adjusted the relationship between inventors and consumers. The intellectual property system attempts to balance the exclusive rights of the individual with the public interest. This ‘balancing of rights’ approach has been applied to layout-designs: on the one hand, the rights and interests of the inventor of layout-designs must be protected effectively; on the other hand, the exploitation and commercialisation of layout-designs must be considered. In other words, the protection of layout-designs must not restrict exploitation and development – there must be incentives to innovation. With a view to coordinating the relationship between the individual rights-holder and the public, the Regulations establish a system of fair use, reverse engineering, exhaustion of rights, and non-voluntary licence.
The Regulations provide that a licence may not be sought from, nor remuneration paid, to a rights-holder if an act of reproducing a protected layout-design is performed for private purposes of evaluation and analysis, research and teaching. The aim of this Article is to promote the development and progress of science and technology based on the protection of layout-designs, and is useful for the development and exploitation of layout-designs. The right of reproduction is a good example. This right is different from that of the practice of ‘reverse engineering’ which is very popular, and is a trade custom in integrated circuits. It is not useful for the development of the industry of integrated circuits to limit such practice unconditionally. Therefore, the exclusive right of reproduction of the layout-design is limited to a fixed scope. Where an act of reproducing a protected layout-design is performed for private purposes or for the sole purposes of evaluation, analysis, research and teaching, a licence need not be sought from, nor remuneration paid, to the rights-holder of the layout-design.
With regard to the special characteristics in the production of integrated circuits, it is a widespread practice to use reverse engineering to research the layout-design in the industry, and to reproduce the manufacturing in different ways. Taking into account the balance between the promotion of technological progress and the protection of the interests of the individual rights-holder, the Regulations permit reverse engineering of integrated circuit products.
Article 24 of the Regulations provides that, where an integrated circuit incorporating a layout-design is put on the market by the rights-holder or by a person with authorisation from the original rights-holder, a licence need not be sought from, nor remuneration paid, to the layout-design rights-holder by a purchaser or user of the circuit. Such a limitation in intellectual property rights are called exhaustion of rights. Its justification stems from the need to balance effectively the exclusivity of intellectual property with the promotion of the free circulation of the commodity. The application of the principle of exhaustion of rights ensures the free market circulation of a protected layout-design, integrated circuits incorporating the layout-design, and articles incorporating an integrated circuit. Nevertheless, this principle applies only to the protected layout-design, integrated circuits incorporating the layout-design and the article incorporating an integrated circuit which is put on the market for sale by the holder of the layout-design rights or with the authorisation of the holder of the layout-design rights.
A non-voluntary Licence, also called a compulsory licence, is provided for in the patent law and copyright law of many countries. The Regulations also set up the system of non-voluntary licence, which aims to protect the interests of the public, promote the popularisation and application of layout-design, and to prevent the rights-holder from misusing his or her exclusive right. The establishment of this system does not mean the weakening of the exclusive right of layout-design; on the contrary, it is a measure taken for society’s benefit and in the public interest.
In accordance with the Regulations, where a national emergency or any extraordinary state of affairs arises, or the supervising anti-trust department decides that the rights-holder is involved in an act of unfair competition, the Intellectual Property Administrative Authority under the State Council may grant a non-voluntary licence for the exploitation of the layout-design. However, the Intellectual Property Administrative Authority must notify the layout-design rights-holder of the non-voluntary licence. The decision on a non-voluntary licence for the exploitation of the layout-design is made according to the conditions governing non-voluntary licences and will specify the scope and duration of the exploitation. The scope shall be limited to non-commercial exploitation for public purposes, or to any other purpose determined by the People’s Court or the supervising and inspection department against acts of unfair competition. When the conditions for the non-voluntary licence cease to exit, the Intellectual Property Administrative Authority under the State Council shall terminate, upon examination, the decision on the non-voluntary licence for the exploitation of the layout-design at the request of the original rights holder. Since a non-voluntary licence is a limitation on exclusive rights to layout-designs, its limits must be clearly delineated. Concretely, limitations includes the following:
(i) The decision on non-voluntary licences for the exploitation of the layout-design must be made according to the conditions governing non-voluntary licences, specifying the scope and time of the exploitation thereof.
(ii) Any natural person, legal entity or any other organization that is granted a non-voluntary licence for the exploitation of the layout-design does not enjoy an exclusive right to exploit, and shall not have the right to authorise exploitation by another person.
Furthermore, where the original rights-holder is not satisfied with the decision of the Intellectual Property Administrative Authority under the State Council, or where the person granted the non-voluntary licence is not satisfied with the adjudication regarding the remuneration payable to the original rights-holder, the complainant may institute legal proceedings in the People’s Court within three months from the date of receipt of the notification.
In Chinese intellectual property law, generally speaking, there exist provisions regarding ‘legal liability.’ The Regulations provide that exploitation of a layout-design without the authorisation of the rights-holder constitutes an infringement of the rights-holder’s exclusive rights in the layout-design. In particular, importing, selling or otherwise distributing a protected layout-design, integrated circuit incorporating a layout-design or article incorporating an integrated circuit for commercial purposes without the authorisation of the rights-holder infringe the exclusive rights in layout-designs. Infringement gives rise to liability for damages. However, it is not an infringement to put into commercial circulation an integrated circuit incorporating a protected layout design, or an article incorporating an integrated circuit, when one does not know, nor has any reasonable grounds to know, that it incorporates an illegally reproduced layout-design.[9] After being expressly notified that the product incorporates an illegally reproduced layout-design, the infringer may continue commercially to exploit the layout-design, but must pay a reasonable amount of remuneration to the original rights-holder.
Viewed from a jurisprudential perspective, the Regulations in their essence belong to the category of substantive law, but they have some procedural provisions concerning the settlement of disputes. The provisions belonging to procedural items aim effectively to resolve disputes relating to layout-designs and fully to safeguard the rights and interests of related parties.
As mentioned previously, the legal protection of layout-design is a complex issue in intellectual property, and special legislation has been the dominant response. The Chinese legislation relating to layout-design does not simply inherit the provisions of patent law and copyright law. The Regulations address specifically the legal intricacies involved with layout-design, while also drawing upon relevant principles of Copyright law. An example is the establishment of the condition of originality. Considering that the industry of integrated circuits in China still falls behind western developed countries, the Regulations attempt, on the one hand, to protect the interests of the inventor of a layout-design, while correspondingly attempting to avoid, on the other hand, the undue restriction of the development of layout-design technology. The Regulations also attempt to establish a favourable legal environment conducive to foreign investment and advanced technology, emphasising the development and innovation of the Chinese industry of integrated circuits. Of course, with the development of China's integrated circuit technology, the level of protection and the administrative level of legislation have yet to be addressed.
In recent years, the Chinese network transmission system has developed rapidly. However, the Protocol for the Amendment of the Copyright Law delivered to the Standing Committee of the National People's Congress of the People's Republic of China, presented for discussion by the State Council in 1998, did not address issues relating to information technology networks. There may be several reasons for this. At the time, it was argued that the Copyright Law could not encompass the issues associated with network transmission; and that it was too early to attempt to solve the myriad issues raised by developing information technology. It was also argued that the main purpose of the amendment of the Copyright Law at that time was to meet entry conditions for admission to the WTO.
Another reason may be that, at the time of the Protocol, those using the Internet were so few in number[10] that the application of copyright law to the information technology environment was not an obvious or imminent consideration. However, since 1999, great changes have taken place in China: the number of internet users has increased dramatically,[11] and various internet service providers (ISP) have emerged.[12] Currently, breach of copyright is extensive in information technology, from the publication of works derived from illegal downloading on the internet; the works of others illegally published on the internet; encrypted devices of software being illegally disclosed and distributed online; digital music being illegally broadcast; illegal links, and so on. Since there is no specific law to regulate such acts, the interests of the copyright owner are damaged greatly. The People's Court finds it difficult to handle these network-related cases.
Because of the extent and ease of illegal copying on the internet and the difficulties in policing copyright laws against it, not only in China but in the rest of the world, it has been suggested that the appearance of information technology networks has threatened the viability of the copyright system itself: The issue is not whether the copyright law can adjust to developing informational networks, but whether the whole copyright system is redundant in the age of rapid information flows.[13] With the development of electronic commerce in cyberspace and the fact that more people and more people are obtaining information from the internet, the Chinese legislature has gradually rejected this view and taken a robust stance regarding legal protection in cyberspace.
The Protocol for the Amendment of the Copyright Law delivered to the Standing Committee of the National People's Congress, released for discussion by the State Council in November 2000, deals with the issue of information technology networks for the first time. In this Protocol, the right of transmission through information networks is confirmed as a right of copyright owners. On 27 October 2001, the Twenty-fourth Session of the Standing Committee of the Ninth National People's Congress adopted the Decision Regarding the Revision of the Copyright Law of the People's Republic of China. In accordance with this Decision, the Amendment to the 1990 Copyright Law (hereinafter referred to as the Amendment) was scheduled to take effect on 27 October 2001. The Amendment not only meets the needs of the socialist market economy of China, but also the challenge to copyright protection raised by digital technology. The right of transmission through information technology networks is formally established in the Amendment.
Pursuant to Article 10(11) of the Amendment; the ‘right of transmission through information networks’ means a right to provide a work through wire or wireless so that the public can obtain a work in a selected time and place.
It is worth noting that the title of the right of transmission through information technology networks in the Amendment is ‘the right of transmission through information networks’, which indicates that the technology covered by the Copyright Law includes not only the internet, but television, telephone, and mobile telephone.
Issues associated with copyright and information technology networks have been dealt with in some international conventions. While the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) does not deal with the problem of networks, the Copyright Treaty of the World Intellectual Property Organization (WCT) and the Performance and Phonogram Treaty of the World Intellectual Property Organization (WPPT), held by the WIPO in 1996, establish ‘the right to transmit to the public’ for authors, performers, and producers of sound recordings. That is, the user transmitting the works of authors, performances, or sound recordings on the internet must obtain permission from the authors, performers, and producers of sound recordings. The WCT provides ‘the right to transmit to the public’, while the WPPT provides ‘the right to provide the performance recorded’ and ‘the right to provide sound recordings’. In the course of the amendment of the 1990 Copyright Law, ‘the right to transmit to the public’ was not used, so as to be consistent with the two treaties.
The WCT is an extension of the Berne Convention, in which there is the conception of ‘to transmit to the public’.[14] It is argued that the WCT extends this to the network environment. In the WCT, the right to transmit to the public is firstly a right to transmit on the network: the general meaning of ‘transmission to the public’ remains.[15] The WPPT is based on the Rome Convention enacted in 1961 regarding the protection of performers, producers of sound recordings and radio stations. The WPPT attempts to be consistent with the Rome Convention.[16] The Amendment confers the right of transmission through information technology networks: this achieves consistency with the WPPT.[17] The provision regarding the right of transmission through networks for producers of sound recordings and video recordings also achieves coherence with similar provisions of the WPPT.[18] The usage in the Amendment of ‘the right of transmission through information and network’ in fact contains the salient content from the two treaties.[19]
Besides the fact that copyright owners enjoy the right of transmission through networks, the Amendment provides that others may be authorised with rights to transmit to others. Pursuant to Article 37(6) of the Amendment, a performer shall have the right to authorise others to transmit his or her performance to the public by means of information technology and receive remuneration. Article 41 provides that a producer of sound recordings or video recordings has the right to authorise others to reproduce, distribute, lease and transmit to the public through information technology, as well as the right to receive remuneration. The Amendment does not provide for the right of transmission through information networks for radio stations and
televisions stations. This is not a legislative oversight, but a realisation that relevant international conventions, such as the WPPT, have not yet dealt with this issue. Admittedly, the problem of the right of transmission through information networks for radio stations and television stations will arise in the near future.
In addition, the Amendment strengthens the regulations regarding acts of copyright infringement and extends such regulation to cyberspace. In accordance with the provisions of Article 47(6) and 47(7), anyone who intentionally avoids or destroys technical measures taken by the rightful owner in order to protect his or her copyright or rights related to copyright, without the consent of the copyright owner or the owner of rights related to copyright, unless otherwise provided in laws and regulations, shall bear civil liability and possible administrative liability. Similarly, such liability extends to anyone who intentionally removes or changes the electronic information on the management of rights to works and productions of sound recordings and video recordings without the consent of the copyright owner or the owner of rights related to copyright, unless exempted by other laws and regulations. ‘Technical measure’ means an effective technical measure designed to deter acts of disclosure without the authorisation of the right owner or without the permission of the law by means of encryption techniques. The electronic information on the management of rights is the information used to identify a work, the author of the work, the owner who enjoys any right to the work, or information dealing with items for exploitation and any figure or code representing such information. The two Articles demonstrate that copyright infringement has significantly changed with the development of network technology.[20]
However, as a new kind of right enjoyed by the right owner, the right of transmission through information networks is limited in scope, similarly to traditional copyright. Under principles of copyright law, in order to balance the relationship between the interests of authors, disseminators and the general public, it is necessary to limit the right of transmission. However, in view of the early level of development of the Chinese internet and the limitations stemming from the fact that the right of network transmission in international society remains at the preliminary stage,[21] it is not necessary for the current law to provide for it definitely.
The world of information technology networks is an open space. Even though network technology develops rapidly, the protection of copyright in a network environment is still a new topic, and research regarding the application of copyright law to information technology is sparse. The Amendment merely provides for the protection of copyright in the information technology environment. As to how to enforce this right, the Amendment authorises the State Council to provide for it separately.
* Visiting Professor, Asian Legal Studies Faculty of Law, University of British Columbia, Vancouver, Canada; Professor of Law, Faculty of Law, Xiangtan University, Hunan, P.R.C.; Ph.D. Candidate, Law School, Peking University, Beijing, P.R.C. The author may be contacted at: < fengxiaoqing0617@sina.com > or < xiaoqingfeng@hotmail.com >.
[*] The subject matter for direct protection by law is not the integrated circuit itself, but the layout-design of integrated circuits. The legal protection of integrated circuits focuses on the layout-design, and correspondingly the protection of integrated circuits is realised by means of the protection of the layout-design. ‘Integrated circuit’ here means a semi-conduct integrated circuit, a product in an intermediate form, in which the elements and two or more of the interconnections are integrally formed in and which are intended to perform an electronic function. ‘Layout-design of integrated circuit’ refers to the three-dimensional disposition of the elements and two or more of the interconnections of an integrated circuit, or a three-dimensional disposition prepared for an integrated circuit for manufacture.
[1] See He Guo, Integrated Circuits and Intellectual Property 3 Jurist (1993).
[2] In addition, a layout-design is distinguished by its intangibility and practical applicability.
[3] Supra note 2.
[4] In the course of the enactment of the Regulations, it was argued that the right of commercial exploitation should be only concerned with the layout-design itself and the integrated circuits incorporating the layout-design. It has also been argued that the right is not only related to layout-design and the integrated circuits incorporating the layout-design, but also associated with the products utilising the integrated circuits. The former view is shown in the IPIC Treaty, and the latter, wider view of protection is indicated in the TRIPs Agreement. As the TRIPs Agreement represents a global trend, the Regulations accept the latter view. See generally, Development and Analysis of Legislation on Integrated Circuits in China Patents and Trade Mark (1999).
[5] Under Article 12 of the Regulations, the duration of protection for layout-design exclusive rights is ten years, starting from the date of application for registration of the layout-design or from the date of putting it into commercial exploitation somewhere in the world, whichever is the earlier. However, a layout-design, whether or not it is registered or put into commercial exploitation, is not protected under the Regulations fifteen years after its invention.
[6] TRIPS Agreement, Article 3. See generally Xiaoqing Feng, ‘Internationalisation and Upgrading of the Mainland and Hong Kong’, 4 The Journal of World Intellectual Property (1999).
[7] See generally Xiaoqing Feng, ‘The Status of Authors in the Copyright Law 4,’ Intellectual Property (1995).
[8] See He Guo, ‘The Protection of Integrated Circuits in China’ 4 Jurist (1995).
[9] This provision is similar to that of article 62(2) of the Patent Law of China (1992), which provides that it is an infringement upon patent where one uses or sells without the authorisation of the patentee. However, this provision is amended in the Patent Law in 2000.
[10] According to the investigation and statistics from the Information Center of China's Internet, the number of people who used the internet in China in October 1997 was 620 000, while by the end of 1998, the number was 2 200 000.
[11] According to the investigation and statistics from the Information Center of China's Internet, the number of people using the internet in China in July 1999 was 4 000 000, and by June 2001, the number was 26 500 000, a ten-fold increase within two years.
[12] According to the investigation and statistics from the Information Center of China's Internet, in June 2001, the number of web sites in China was more than 20 000.
[13] See Chengsi Zheng, ‘The Amendment of Two Laws from the Viewpoint of the Entrance into the WTO and Legal Research’, 11 Chinese Trademark, 2001, at 18.
[14] However, the Berne Convention does not establish the right to transmit to the public as an independent right. It is found within a number of related provisions: for example, the right to transmit broadcasting to the public in Article 11(2), the right to transmit information to the public and the right to information regarding literary works in Article 11(3).
[15] See Article 8 of the WCT, which notes that the right to transmit to the public in a network environment and the right to transmit to the public in a traditional environment both belong to the category of the right of transmission.
[16] The Rome Convention provides that a performer may transmit his live performance in public, but does not provide for other rights to transmit to the public.
[17] However, the right of performers, provided for in the WPPT, does not include the right to transmit live performance through information technology networks.
[18] It is worth noting that the Amendment provides for the right of transmission through information technology networks for producers of sound recordings and video recordings, while the WPPT merely deals with sound recordings. This is because video recordings are works protected in international conventions, which can be applicable to the related provisions of the WCT.
[19] In fact, the Amendment unites the right of the authors, performers, and producers of sound recording and video recordings in this respect, and calls it the right of transmission through information networks. This mode of legislation is different from that of some countries; for example, in Japan, the right of broadcasting is extended to the network environment, while in the United States of America, the conception of the right to perform in public is broadened to include the right to public transmission.
[20] Viewed from the perspective of international conventions and the provisions of copyright legislation for cyberspace in some countries, these acts are listed as copyright infringement, of which a case in point is the Digital Millennium Copyright Act of the United States of America (DMCA).
[21] It is not true that the WCT and WPPT do not have provisions regarding the limitations on rights and exceptions. The two treaties provide for the basic principles to be followed by every member state when dealing with provisions of limitations on rights and exceptions. However, they do not provide for the specific contents of the limitations on copyright in a network environment. In recent years, there has been considerable investigation into the limitations on copyright in the international network environment. For example, the Digital Millennium Copyright Act (DMCA) provides for Internet Service Providers (ISP) regarding the exceptions of the infringement of copyright. And the European Assembly Directive on Copyright and Related Rights in the Information Age (the Directive), requires the member states to accept uniform provisions of exceptions and those of selectivity in the domestic legislation.
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