“[T]he word transparency [is] the ‘most opaque in the trade policy lexicon.’” Sylvia Ostry
On Feb. 4, 2016, SAIC published for public comment its draft Guidelines On Anti-Trust Enforcement Against IP Abuse, dated February 2, 2016, <关于滥用知识产权的反垄断执法指南（国家工商总局第七稿>公开征求意见的公告> . SAIC advises that this is their seventh draft. The deadline for SAIC’s receiving comments is February 23, 2016. The draft is also accompanied by an explanation, which briefly reviews the earlier drafts and notes that the numbers of comments received throughout the commenting process, which was first initiated in 2009.
This guideline draft is in addition to the IP abuse rules that SAIC promulgated in 2015, with an effective date of August 1, 2015. Unlike the guidelines, which will be adopted under the auspices of the Antimonopoly Commission of the State Council, the rules were adopted pursuant to SAIC’s own legislative authority. It will be interesting to compare the guidelines with the rules. If both rules and guidelines ultimately co-exist, and there are differences in wording and policy, there will inevitably be concerns over how these differences will be enforced.
I have previously discussed NDRC’s drafting process here, and on a non-public SAIC draft here. In fact, my comments on the SAIC fifth draft go back nearly to the time this blog was established, in 2012. As noted in the book I co-authored with Steve Harris and others, Anti-Monopoly Law and Practice in China (2011), SAIC’s engagement on IP abuse dates back to 2004 – before the AML was itself enacted — when it published a paper “The Competition Restricting Measures of Multinational Companies in China and Counter Measures.”
SIPO is also reportedly involved in drafting or commenting on IP abuse guidelines. As with SAIC, SIPO’s involvement goes way back. SIPO’s 2009 IPR Action Plan specifically contemplated that it would “step up research on abuse of IP rights, and strengthen communication and negotiation with relevant foreign government authorities on this issue.”
When I wrote the chapter on IP for my book, in fact there were various copies of the IP Abuse Guidelines of SAIC circulating, but none had been made available for public comment. Much has changed since then. In recent years, many laws and regulations have been subject to multiple opportunities for commenting at different stages of legislative drafting. Along with copyright law amendments, these guidelines have been very long in the making with many such commenting opportunities. As with the copyright law amendments, I also believe that comments on these IP abuse guidelines are not only intended to enhance the quality of the subject legislation, but also intended to show support for legislation that may be subject to claims of different agencies.
The current AML policy environment is suggestive of the type of IP environment that Martin Dimitrov outlined in his book Piracy and the State: The Politics of Intellectual Property Rights in China, where he attributed China’s inconsistent enforcement to campaign-based efforts, redundant approaches, responsiveness to external pressures, and unduly complex enforcement efforts. I previously blogged that one important step might be for the State Council to take a more active role in this area, consistent with current plans to reform China’s legislative process. Another, small positive first step might be for the AML-related agencies to publish an annual report which outlines their policy and enforcement mechanisms, much as is currently done for other areas, such as intellectual property, and which forces a degree of coordination.
I hope to post comments from others on this draft later on this blog.
Another positive note: SAIC has also made it site available in large type and with audio accompaniment for those who have visual impairments.
Updated: 2/8/2016, 10/17/201 (minor changes).