The State Council recently promulgated its notice of its “Trial Opinion” on Making Publicly Available According to Law Information on Administrative Penalties Concerning the Production and Sale of Fake, Counterfeit and Sub-standard Goods and Intellectual Property Infringement (Guo Fa No. 6, Feb. 19, 2014).
I previously blogged about the drafting of this Trial Opinion, including the background of earlier controversies involving the United States and China when China refused to reveal information about pending administrative cases, see: Through A Glass Less Darkly: China’s March to Administrative Enforcement Transparency. Here are a few of the key points of this Trial Opinion:
A) First, as its name suggests the initial focus is on fake, counterfeit and sub-standard goods. While IP infringement is also a part of this effort, traditionally the amount of enforcement against substandard goods is greater than IP. This seems to be the continued focus. The opening chapeau mentions as the first goals of this regulation “to protect consumer interests” and to “maintain the market order for fair competition.” The chapeau does not mention that protecting the legitimate rights of IP holders is a specific goal.
It is also unclear if certain IP-related offenses are included in the scope of this regulation, such as illegal business operations by manufacturing or selling of illegal publications and antitrust matters, particularly those that involve Article 55 of the Antimonopoly Law regarding abuse of IP rights.
B) The Trial Opinion also has a substantive commitment regarding IP enforcement: administrative agencies, “in principle” should conduct their enforcement actions in an “ex-officio” (self-initiated) manner. The distinction between ex-officio and enforcement on complaint has historically been a problem in certain jurisdictions, as administrative officials may feel less compelled to provide information on cases if they had “self-initiated” cases than if they were responding to a complaint (Art. 1.1).
C) The Trial Opinion sets forth specific requirements regarding the information that much be disclosed, such as the name of the offending party, their legal representative, legal basis for the punishment, and person(s) who decided the case. (Article 2).
D) County level officials and above ae responsible for directly implementing this Trial Opinion (Article 3). For IP-related offenses, this is likely to impose the highest burden on SAIC, as it is the largest IP-related agency, and has offices at sub-county levels.
E) Generally disclosure is principally to be made via the Internet. In most cases disclosure should be made within 20 days after the punishment decision. However, if the decision involves public health and safety, it should be made immediately available (Art. 4)
D) Information that should not be disclosed include trade secret information, government secrets and information that involves privacy concerns (such as involving the physical location of individuals and their phone number) (Art. 5). Chinese practice of not disclosing in its entirety cases that involve “trade secrets” may make it exceedingly difficult to understand how trade secret and many other IP cases are handled, particularly at a time when the IPR Leading Group is considering a trade secret enforcement campaign.
It is hoped that, over time, China will publish administrative and civil cases that remove relevant confidential information. The current civil practice seems to involve not publishing cases and sometimes having cases discussed in the press by enforcement officials. This was practiced by judges who have written articles that discussed Huawei vs. Interdigital, an antimonopoly civil case. This approach can have the unfortunate consequence of giving the public the impression that an undue amount of power has been given to the enforcing official to disclose the nature of the case on the regulator’s own terms.
In general, the Trial Opinion shows a commitment to greater transparency of administrative agency, and appears to be occurring in tandem with efforts to improvement transparency in the courts. While it took 90 days for this Trial Opinion to be made public, another important step in transparency would be to make public a State Council opinion on improving administrative-criminal IPR enforcement coordination (September 12, 2012). The latter opinion appears to have markedly improved criminal IPR enforcement within China, and may have been referred to obliquely in Article 2.5 of the Trial Opinion as it requires public disclosure of administrative punishments for cases that are referred to criminal prosecution.