Former SIPO DG Yin Xintian Has Passed Away

Several sources in China have told me that Yin Xintian 尹新天 , the former Director General of the Law and Treaty Department of the State Intellectual Property Office, passed away this week. 

I have known DG Yin for approximately 20 years.  We worked closely when I was IP Attaché at the US Embassy in Beijing (2004-2008), and later when I was in private practice and teaching.  He was most recently associated with the IP policy consulting arm of the Wanhuida law firm.

There were several matters that we worked on together.  DG Yin was the first Chinese official to talk to me about proposals for a national IP strategy, which I believe was an idea that he actively promoted and perhaps first proposed.  We talked at length at a conference in Kunming on IP and development, about the national IP strategies of various nations, and how much he believed that a National IP Strategy would help China’s development.  This was about 15 years ago.  He later invited me to speak twice before the National Strategy Office (NIPSO): once as a foreign diplomat, and a second time as an IP expert. 

I also vividly recall a dinner with Judge Rader during those years at SIPO, at which time DG Yin spoke at length with Judge Rader about the significance of recent CAFC opinions, including dissenting opinions and even footnotes.

When I discussed foreign concerns in the proposed 2008 patent law, DG Yin was also quick to suggest that his office, the US Embassy and the Quality Brands Protection Committee host a joint discussion around the various issues of concern.  The subsequent meeting was highly successful.   His guide to the earlier revisions to the patent law, 新专利法详解, was an important resource on this topic.

Although I  disagreed with DG Yin from time to time, he never took ill-informed or indefensible positions.  It was for this reason that I also thoroughly supported the choice of DG Yin as the first patent expert on the Chinese side of the­­­ US-China IP Cooperation Dialogue, which was proposed by me and continues to be run by the US Chamber of Commerce.  He was succeeded by his former colleague, former SIPO Commissioner Gao Lulin, who still serves in that role.

My condolences to his family, his colleagues at Wanhuida, his former colleagues at SIPO, and the many friends and students he has left behind.  May his memory be a blessing.

­­­

Upcoming China Pharma IP Program

The Berkeley Center for Law and Technology will be launching a five-part webinar series on “Innovation, Regulation in the Life Sciences” on November 17 from 4:30-6:00 PM.   The launch program is devoted to “China’s Emerging Regime for IP In the Life Sciences”. 

Joining me for the program will be He Jing from the Gen Law firm, Dr. Karen Guo from Novo Nordisk, Xuejiao Hu from Beigene, Prof. Guobin Cui from Tsinghua Law School and Dr. Can Cui from Morrison & Foerster.  CLE credit will be provided. 

Students and media are free of charge, BCLT sponsors are half-price. We expect to cover the full range of issues in this first session: patent linkage, regulatory data protection, patent prosecution, the recent SAMR rule and SPC judicial interpretation, etc.  A package of English language reading materials is also available for attendees. The programs costs $75.00 for the session and $300.00 for the series. 

Other sessions in the series include: FDA Innovation, Food Innovation, Drug Pricing and Sharing Data for Research and Development.

Further Observations on the Recent Copyright Law Amendments

Prof. Jiarui Liu at the University of San Francisco, has offered the following observations on the recently passed copyright law reforms, which he has authorized me to share with readers:

“- This 2020 Amendment to Chinese Copyright Law, while officially called the third amendment, is essentially the first comprehensive amendment to Chinese Copyright Law since 2001, for almost 20 years. The so-called second amendment in 2010 was motivated primarily to make one change only, i.e. to implement a WTO decision that required China to remove any censorship approval as a prerequisite for copyright protection. 

– The 2020 Amendment for the most part brings cosmetic changes to the extent that it incorporates existing provisions in various regulations in copyright areas, including the Regulations for the Implementation of the Copyright Law (2002) and the Regulations on Protection of the Right of Communication through Information Network (2006). These “new” provisions, e.g. on originality, technological protection measures and copyright management information, transferred from regulations to law will not affect legal practice. However, there are a few substantive changes that are noteworthy.

– Article 3 of the 2020 Amendment makes copyright subject matters open-ended by including a catch-all phrase: “other intellectual creations that satisfy the characteristics of works”. Accordingly, courts and administrative authorities have discretion to recognize new subject matters in individual cases outside of the legislative process.

– Article 3 replaces the term “cinematographic works” with a potentially more inclusive term “audiovisual works.” It appears that audiovisual content such as sports programs and music videos may be more likely to be protected as copyrighted works than they were before.

– Article 10 expands the scope of the right of broadcasting to cover both wired and wireless means, and explicitly excludes interactive communication (which is covered by the right of communication through information network). This redefined right apparently covers online streaming of sports and other copyrighted programs.

– Article 23 extends the duration of a photographic work from 50 years as of publication to life plus 50 years.

– Article 45 adds the right of broadcasting and the right of mechanical performance for sound recordings. However, these two rights are limited to the right of remuneration (or, in other words, subject to compulsory licenses) and do not enjoy exclusivity. This new level of protection for sound recordings is not required by any international treaty, and higher that that provided under the U.S. Copyright Act.

– Article 47 clarifies that the right of retransmission for broadcasting organizations comprises of both wired and wireless means, which is now broad enough to cover live sports streaming. It also adds the right of communication through information network for broadcasting organizations, which covers on-demand and other interactive communications and reaches a new level of protection not required by any international treaty.

– The one provision in the 2020 Amendment that may really excite copyright owner is Article 54. It not only provides for a higher ceiling for statutory damages (up to RMB 5 million) but also sets a floor for statutory damages (no less than RMB 500). Additionally, it adds one to five times of ordinary damages as punitive damages imposed on serious willful infringements. However, it appears from the structure of the provisions that statutory damages may not be used as the base for calculating punitive damages. Notably, a floor for statutory damages has first appeared in the Patent Law amended in 2020 (i.e. RMB 30,000).  The Trademark Law and Anti-Unfair Competition Law do not provide for such a floor yet.

– The new Copyright Law as amended will take effect on June 1, 2021, which presumably allows time for the government to update copyright regulations areas accordingly.”

The NPC Observer has also published its own observations on changes in the law as has Aaron Wininger in China IP Law Update.  A Chinese judge, Bai Fan, 白帆 from the Guizhou High People’s Court, in a Chinese language article released by zhichanli.com, pointed to  the following improvements made by the Copyright Law: (a) adjusting to the challenges of technological progress, including by adding the concept of “audio-visual works” ; (b) dealing with practical implementation issues, such as the possibility of an expanded scope of works and fair use concepts;  (c) clarification of the continuity and status of legal concepts, as similarly identified by Prof. Liu, by placing concepts previously found in regulations into the law; (d) implementing international obligations such as the presumption of legal ownership of copyright as provided in the Phase 1 Trade Agreement (note: this is found in Art. 1.29), access to copyrighted works by the blind in the Marrakesh Agreement (Art. 24), and rental rights for performers in the Beijing Convention (Art. 52); (e) clarifying ownership of rights – a topic that is also shared with the patent law, in this case for joint works, news reporting, droit de suite for fine art and fine art and photographic works, and “service performance rights” for rights of performers; and (f) strengthening IP enforcement, including the broadcast of phonographic works, lengthening the copyright term of photographs, increasing damages for copyright infringement, “action preservation” or provisional measures, collective management, and protecting the broadcast of televised works over information networks.