The New Civil Code and the Metal Ox

China’s new Civil Code has come into effect January 1, 2021, after many years of drafting and debate.  As I have previously blogged, the Civil Code should have a strong impact on areas of Chinese law that are less codified in separate legislation, including those involving personality and naming rights (such as were implicated in the Qiaodan/Jordan dispute), as well as in technology contracts.   

Susan Finder’s Supreme People’s Court Monitor continues to provide useful updates on the work of the SPC in implementing the new Civil Code provisions, including by new judicial interpretations and guiding cases.  Danny Friedmann’s IP Dragon blog has also listed the 18 IP-related judicial interpretations that are now going into force with the new Civil Code, and will be updating his blog with a review of these amendments.   The Chinese government has also made available an unofficial translation of the new Civil Code.

We enter the year of the Metal Ox in a few weeks.  The Ox is a hard-working creature that brings prosperity to farmers.  Riding the ox is also a symbol of enlightenment in Buddhism.  I congratulate the hard work of the many people who have enriched us through their study, drafting, and implementation of the Civil Code,

NPC Passes Revised Copyright Law — Concluding a Robust IP Legislative Agenda For the Past Two Years

According to press reports, an amended Copyright Law was passed on Singles Day, November 11, 2020.  The prior NPC drafts was discussed here, and the State Council draft was discussed  here.  An earlier NCA draft from 2012 (!) was discussed here.

With the passage of the Copyright Law, China has completed the unenviable and huge task of revising all its major IP laws in the space of approximately two years, including its: Patent Law, Anti-Unfair Competition Law (which includes trade secrets), Trademark Law, Technology Import/Export Regulations, as well as numerous judicial interpretations, rules and other guidance and the Civil Code itself. 

Prof. Jiarui Liu translated the prior draft of the copyright law.  Based on a cursory review, the law removes onerous public interest provisions, which I objected to here  It maintains the use of audio-visual works to encompass motion pictures, which I hope will be useful in protecting against piracy of live streaming sports broadcasts.  It also continues the expansion of administrative copyright authority to the county level.  This is also consistent with other trends towards increasing administrative involvement in China’s IP enforcement regime.  I most recently discussed this long-term trend in my blog on the Horse Before the Cart in China’s Patent Linkage Regime (Oct. 28, 2020).

Although the Copyright Law appears to have backed off from giving copyright authorities a vague antimonopoly law-like authority to address “disruption to the order of communication” and “abuse of rights” that causes “harm to public interests”, there are other administrative rules regarding online service providers that have since emerged to address regulation in the on-line environment.  One day prior to the Copyright Law passage, SAMR released its Notice of Public Comment on the draft Antitrust Guidelines for Platform Economy (关于平台经济领域的反垄断指南) (Nov. 10, 2020). Comments are due November 30, 2020.   The stocks of Alibaba and JD.Com both dropped despite record singles day receipts on November 11, most likely due to the proposed rule. 

In another unrelated development, SAMR promulgated on October 20 a draft for public comment of its Measures for the Supervision and Administration of Online Transactions (网络交易监督管理办法). Comments were due November 2. This document primarily concerns protection of consumer interests in online transactions.  However, it does address some IP issues, including misleading indications of the source of goods, as well as establishing time frames for publication of information regarding IP notices or counter-notices  as provided in the e-commerce law (Art. 30).

The revised IP laws provide fertile ground for analysis and research regarding general trends in China’s IP regime in such areas as administrative and civil law, civil remedies and compensation, and employee ownership of the IP they have created. The new e-commerce provisions and the IP laws together, once finalized, will likely provide additional insights into Chinese regulation of e-commerce platforms and merchants.

SPC Sets Up Team to Work on Civil Law Reform – IP Likely Continues in the Mix

April2015Judicialprogram

On May 12, the SPC set up a civil law codification team, chaired by Vice Presidents Xi Xiaoming, He Rong, Tao Kaiyuan, with Du Wanhua 杜万华 serving as Director of the Office.  Xi Xiaoming introduced the preliminary work of the SPC in this area.  He noted that the SPC intends to give full play to its experts in an advisory role to the NPC in the codification of civil code as called for in the Fourth Plenum, and in that light the Supreme Court established a consultant and Expert Committee for the codification of the civil code.

My comment: It is particularly gratifying to see former IP officials like Madame Tao Kaiyuan contribute to the work of the civil code. At the same time, we are seeing more civil law law judges working on the development of China’s specialized IP courts, thereby demonstrating increasing cross-fertilization between IP issues and general civil law issues in China.  The more IP is regarded as a private right, the more likely it is that China’s goals of developing an innovative economy can be achieved, IMHO.

Content source: Susan Finder and the Supreme People’s Court website, via the Chinalaw Listserve.

Photo source: Mark Cohen at the April 2015 “First China Intellectual Property Judicial Conference” (with subtitle indicating “under the background of judicial reform”). Chief Judge Song Xiaoming of the SPC IPR Tribunal presenting opening comments.