Leading Group’s Work Plan for Fighting Infringement in the On-Line Environment

Here’s the full text of the June 18, 2014 work plan of the Leading Group under the State Council for fighting the manufacturing and sale of fake and shoddy goods in the on-line environment (关于印发打击互联网领域侵犯知识产 权和制售假冒 伪劣商品工作方案 的通知) (http://www.ipraction.cn/2014/06/25/ARTI1403685293345289.shtml).  The plan involves a range of agencies, including Customs, AQSIQ, GAPP/SARFT, SAIC, Ministry of Agriculture, and the Chinese Food and Drug Administration.

Notice on Issuing the Work Plan for Fighting IP Infringement and the Manufacturing and Sale of Fake and Shoddy Goods in the Internet Field (Da Jia Fa [2014] No. 3)

All member units of the Leading Group of the National Fight against IP Infringement and the Manufacturing and Sale of Fake and Shoddy Goods:

The “Work Plan for Fighting IP Infringement and the Manufacturing and Sale of Fake and Shoddy Goods in the Internet Field” is hereby issued to you, which you are required to implement carefully.

  Leading Group of the National Fight against IP Infringement and the Manufacturing and Sale of Fake and Shoddy Goods (“Leading Group”)

  June 18, 2014

 

Notice on Issuing the Work Plan for Fighting IP Infringement and the Manufacturing and Sale of Fake and Shoddy Goods in the Internet Field

This work plan has been developed to implement the spirit of the “Notice of the General Office of the State Council on Issuing the Essentials of the Nationwide Fight against IP Infringement and the Manufacturing and Sales of Fake and Shoddy Goods in 2014” (Guo Fa Ban [2014] No. 13), crack down the illegal and criminal activities of infringing IP and manufacturing and selling fake and shoddy goods in the Internet field (collectively “Infringement & Counterfeiting”) and promote the healthy development of e-commerce.

  1. Clarifying objectives and tasks

Starting from June 2014, we will spend half a year of time carrying out a special campaign to address Infringement & Counterfeiting in the Internet field; strengthen the supervision of key websites and online marketing platforms, severely investigate and punish a number of cases, shut down a number of illegal websites and deal with a number of lawbreakers to warn and educate operators and consumers. Meanwhile, in response to the cross-regional, long chain, virtualized and intellectualized characteristics of Infringement & Counterfeiting in the Internet field, we will innovate the modes and means of supervision, strengthen interdepartmental and cross-regional information sharing and law enforcement cooperation, enhance the resultant force of work, improve the long-term mechanism of fighting Infringement & Counterfeiting in the Internet field and maintain the normal order of e-commerce.

  1. Highlighting the focuses

(1)   Cracking down on the online sales of fake and shoddy goods. The departments, including the Ministry of Agriculture, SAIC, AQSIQ and CFDA, shall focus on agricultural materials, auto parts, children’s products and the drugs that treat tumors and chronic diseases, strengthen the surveillance of Internet search engines, promptly find the information on fake and shoddy goods and the websites, web pages and various links that are suspected of illegal sales, improve the mechanisms of information submission, clues sharing, case studies and communications.

(2)   Cracking down on online infringement and piracy. The departments, including the State Administration of Press, Publication, Radio, Film and Television (“Administration”) and the National Internet Information Office, shall launch the special “Sword Net Campaign” against Internet infringement and piracy that focuses on the key fields of online literature, music, films and TV, games, animation and software and the key products of books, AV products, electronic publications, online publications and standard copyrighted works; focus on combating the acts of committing infringement and piracy in the field of mobile Internet and through the use of set top boxes and TV dongles; punish and ban illegal websites of AV programs according to law. The Administration shall intensify the copyright supervision of key websites and standardize the order of the copyright market of works that are transmitted on the Internet. The Ministry of Culture shall regulate the market of online music and games and strengthen the supervision of the online cultural products that use such terminals as mobile phones and tablet computers as carriers. The SAIC and the SIPO shall step up the supervision and inspection of the online acts that infringe patent right and trademark right, intensify the communications with e-commerce platforms, improve the working mechanism of enforcement and case handling, and promptly investigate and punish infringing acts.

(3)   Intensifying the supervision of e-commerce websites. The departments, including the Ministry of Industry and Information Technology (“MIIT”), SAIC and the National Internet Information Office, shall screen and promptly delete the information on infringing and fake goods by focusing on large shopping websites; shield and shut down the websites that have violated laws and regulations on the basis of the records of the involved websites; strengthen interdepartmental collaboration to investigate and deal with unlicensed websites; intensify the supervision and management of the business conduct of Internet service providers, domain name registration service provides and information service providers; assist the law enforcement department in investigating and collecting the evidences of Infringement & Counterfeiting.

(4)   Intensifying the harnessing of production and processing sources. The AQSIQ shall carry out a special law enforcement campaign to intensify the centralized harnessing of the sources of e-commerce products, strengthen the monitoring, supervision and random check of the quality risks of e-commerce products, promptly announce the results of the random check of product quality; accelerate the building of a product quality traceability system, improve the mechanism of online discovery, notification of clues, source tracing, local investigation and treatment, strengthen the clean-up and rectification of places with concentrated production of e-commerce  products, and launch regional quality enhancement actions; push enterprises to set up the system for assuring the quality of e-commerce products, promote the application of the bar codes for commodities and organization codes; solve the information dissymmetry under the online environment; rely on the 托“12365” system to establish and improve the mechanism of collaboration in fake-fighting enforcement and strengthen joint cross-regional law enforcement.

(5)   Launching a special campaign for cross-border IP protection. The General Administration of Customs (“GAC”) and the post offices shall launch a special law enforcement campaign that targets the consumer products, cosmetics and electrical products transported via mailing and express delivery channels in cross-border online transactions to combat the infringing and illegal acts in the channels for import/export, mailing and express delivery. The Ministry of Public Security and GAC shall improve the mechanism of multilateral/bilateral law enforcement to fight the cross-border crimes of leveraging the Internet to sell fake and shoddy goods.

  1. Intensifying supervisory measures

(1)   Collaborating in strengthening enforcement. The competent administrative enforcement departments shall combine online supervision with offline supervision, provide each other with the information on Infringement & Counterfeiting found in production, sales and import/export, intensify the backward tracing of clues of Infringement & Counterfeiting, dig out and clear out the sources of producing and processing infringing and fake products; hand over or report the discovered cases of suspected crimes or the clues thereof to the public security authority in time; strengthen the collaboration in cross-regional law enforcement, improve the system of communicating clues, referring cases and assisting in investigations; hand over any illegal operators of online infringing and fake goods who are found to be in nonlocal places promptly to the law enforcement department at the location thereof or the servers of their websites for investigation and follow-up; report any dispute over jurisdiction to the higher law enforcement department for it to designate the jurisdiction; establish the mechanism of communicating and contacting with large local e-commerce enterprises and the logistic enterprises, EMS enterprises and payment companies related to e-commerce, obtain the information on operations, logistics and payment according to law to enhance case-handling efficiency.

(2)   Intensifying the supporting role of information. The Ministry of Public Security shall strengthen the cooperation with e-commerce platforms, meticulously screen the clues of online Infringement & Counterfeiting and enhance the ability to find criminal activities under the Internet environment; give full play to the advantages of cluster of campaigns, ferret out the production dens, destroy the marketing network and crack down on the criminal activities of online Infringement & Counterfeiting on the entire chain.

(3)   Strengthening social supervision and the self-discipline of industries. We should improve the system of report incentives, guide consumers to report the illegal acts of online Infringement & Counterfeiting and broaden clue sources and channels; improve the system of accepting the reports on the acts of online Infringement & Counterfeiting, case handling and feedback on results; encourage right holders to actively safeguard their own rights; publish the information on the cases involving online Infringement & Counterfeiting and expose typical cases to deter criminal acts and educate the general public. The industry management department shall give full play to the roles of industry organizations e.g. the associations and chamber of commerce, in the field of e-commerce, to conduct industry self-discipline and cultivate the fashion of consciously resisting the acts of Infringement & Counterfeiting in the whole industry.

(4)   Using IT to enhance supervisory capability. The competent law enforcement departments shall innovate the modes and means of supervision, use IT to set up the electronic service supervising network, database of Internet operators, right-safeguarding center for online consumption and reporting platform, develop and apply the engine of searching Infringement & Counterfeiting, information inquiry and monitoring software and traceability technology to enhance the informatization level of Internet surveillance and provide technical support for intensifying supervision and enforcement.

  1. Establishing a long-term mechanism

(1)   Promoting the improvement of laws, regulations and standards for supervision of the Internet. The Office of the Leading Group shall join the other related departments in establishing a long-term work mechanism that addresses the characteristics of Infringement & Counterfeiting acts in the Internet field and the vulnerabilities in the supervisory efforts, studying and making opinions on improving the relevant laws and regulations, promoting the release of judicial interpretations, tightening the connection between relevant laws, administrative regulations and departmental rules, clarifying the trading rules, quality supervision, after-sale service and compensation responsibility of e-commerce platforms and online shops, improving the evidence rules for investigating the Infringement & Counterfeiting in the Internet field and the method of protecting online business data, perfecting the standards for exhibition of online products, information disclosure and product verification to provide case handling with institutional guarantee.

(2)   Driving the implementation of corporate responsibility. The industry management department shall guide e-commerce enterprises in improving the internal management system, strictly examining the qualifications of the member merchants, registering their real names, strengthening the examination of the information on the goods sold online, taking the initiative to provide the law enforcement department with the relevant information of operators, and improving the mechanism of accepting and processing reports and complaints as well as  the mechanism for the elimination and withdrawal of illegal merchants; intensify the market supervision of logistics and EMS enterprises, urge the EMS enterprises to strictly implement the post inspection system; study the possibility of establishing the system of real-name postal delivery; guide the e-commerce payment companies, logistics enterprises and EMS enterprises in recording the information, providing information inquiry service as necessary for law enforcement and case handling, and assisting the law enforcement department in carrying out investigations.

(3)   Accelerating the building of the e-commerce credit system. The industry management department and the enforcement supervising department shall accelerate the creation of a fundamental database of e-commerce enterprises and improve the trading credit files of online commodities; promote the exchange and sharing of the credit information of e-commerce enterprises and the relevant information in other social fields; guide e-commerce enterprises in establishing and improving the system for management of customer credit and evaluation of trade credit; encourage the development of e-commerce third-party credit service organizations, the objective and just collection and recording of the credit of operators, establishment of credit evaluation system and credit information disclosure system to provide e-commerce enterprises and consumers with credit service and warn trading risks; strengthen the training of small and medium-sized e-commerce enterprises to strengthen their ability to prevent and identify fakes and cause them to carry out good faith and law-abiding operations.

  1. Meet work requirements

(1)   Strengthening organizational leadership. All regions and leading departments shall fully recognize the importance and necessity of fighting Infringement & Counterfeiting in the Internet field, strengthen organization and leadership, assign responsibilities to each level; reinforce the guidance and inspection of the grassroots, coordinate the handling of interdepartmental and cross-regional cases, concentrate resources to investigate and deal with a number of major cases of a serious nature that draw domestic and foreign attention. The Office of the Leading Group and the related departments shall supervise and inspect the implementation of the fight in various places in due time.

(2)   Scheduling. All regions and the related departments shall work out a specific implementation plan in light of their realities, refine the work measures and make all-round arrangement for the purpose before the end of June; collect criminal clues extensively, make careful analysis and screening thereof, sternly investigate, deal with and expose criminal cases, study the promotion of the relevant systems and mechanisms in July ~ December; make all-round summarization of the efforts and form a report to be submitted to the Office of the Leading Group before the end of December.

(3)   Strengthen publicity and education. All regions and the related departments shall make full use of the media, e.g. newspapers, TV, radio and press websites, for timely coverage of the work measures, results and typical cases to expand influence, create an atmosphere of public opinions; extensively popularize the knowledge about discerning fakes, guide consumers and IP right holders in taking an active part, pool the forces of the entire society to jointly address the Infringement & Counterfeiting in the Internet field.

NDRC, IP and China’s Plans for 2014

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The NDRC released to the public last week its Notice of Its Opinion on Key Tasks on Deepening Economic Reform in 2014 (国务院批转发展改革委关于2014年深化经济体制改革重点任务意见的通知) (dated April 30, 2014, released May 20, 2014) (http://www.gov.cn/zhengce/content/2014-05/20/content_8818.htm).   Although not focused on IP, this Notice does encompass several IP and economic reform issues, and is perhaps more notable for how it says things rather than what it says.  Here are some highlights:

Article 2 calls for changes in government functions.  It is the only article that expressly references IP.  In this article, the NDRC calls for “severely punished swindling, counterfeiting, intellectual property infringement, intentional pollution of the environment, and behavior that is contrary to the principles of fair market competition; establishing a scientific sampling system,  a system for tracing responsibility, an ‘anomalous’ businesses directory and blacklist system, with an emphasis  on controlling problem companies and illegal business  operators.”   The article suggests a continued important role for the State Council Leading Group in fighting IP infringement and substandard products.

Article 4 deals with deepening state owned enterprise, science and other reforms. This article  calls for accelerating China’s scientific and technological innovation to  support and promote industrial structure optimization.  It also calls on China to strengthen the “dominant position of enterprises in technological innovation, encourage enterprises to set up  R & D institutions , lead collaborative manufacturing study and research alliances, increase development funds to support SME’s technological innovation efforts,  give full play to the guiding role of the market for scientific and technological innovation, and to improve and promote the industrialization of scientific and technological achievements…”

In addition this article notes that China will “building an innovative platform to promote the development of strategic emerging industries.”   The following industries area also targeted for further development:  “culture, creativity and design services ,… e-commerce , … the Internet of Things and the Internet .”

Article 6 calls for opening to promote reform and promoting “indigenous brands”.

What is the role of IP in this important document?  The word “innovation” (chuangxin) appears 15 times in a variety of contexts, the word “intellectual property”, only once.  By contrast, rule of law (fazhi) appears 3 times, and environmental protection (huanbao, huanjingbaohu) four times. As a goal oriented document, this may suggest that IP is but one vehicle for China to become more innovative, and that IP is a limited part of economic planning for NDRC. 

Direct word counts can, however, also be misleading indicators.  An agency may also wish to bury its important role in a particular area, in order to show broader consensus.  For example, while NDRC has direct enforcement authority under the antimonopoly law, there is no direct mentioning of the AML in this document,  despite NDRC having taken a more active role in AML matters over the past year.   There are however  general references to the market order and the report discusses the creation of joint research alliances, which are potentially exempt from coverage under China’s Antimonopoly Law (Article 15). 

Overall, the document suggests continued, active intervention / guidance in the market by the Chinese government for economic planning purposes, and that IP is one part of that important project.

(Above is what the document looks like as a world cloud, using Google translate  (via http://www.worldle.net).  The  short translations in this blog however do not necessarily correspond to those in Google translate.)

 

The Door Opens Wider on Administrative Enforcement Transparency

ImageThe 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).   The Chinese and a machine translation are also available here.

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. 

Rev: Jan 16, 2017

 

 

Ministry of Commerce IP Program in DC December 5

Chen Fuli, IP Attaché at the Chinese Embassy in Washington, DC the morning of December 5.   The program is free of charge, but seating may be limited.   You should RSVP at: lishuai@mofcom.gov.cn.

The topics are all ones that I have actively followed in this blog.  Here is the tentative agenda:

International High Level IPR Cooperation Forum

Dec 5,  Georgetown Holiday Inn

2101 Wisconsin Ave, NW, 20007, Washington DC

 9:00-9:20  Opening remarks, by Both China and U.S. Representatives

 9:20-9:40   New developments in IP enforcement in China, by Director Jing Zhang from the Office of Fighting Against IPR Infringing and Making or Selling Counterfeit and Shoddy Products under the State Council

9:40-10:00  New amended Chinese Trademark Law, by Deputy Director General Qing Xia from CTMO

 10:00-10:15 Q & A

 10:15-10:30 Coffee Break

 10:30-10:50  Amending of Chinese Copyright Law by Deputy Director Ping Hu from NCAC

10:50-11:10  Amending of Chinese Patent Law and Regulation on Service Invention by director Yanhong Wang from SIPO

11:10-11:30  New practice of IP trials after the amendment of Chinese Civil Procedure Law by Judge Yuanming Qin from SPC

11:30-11:50 Q & A

11:50-12:00 Closing Remarks

—————-

12:00-13:30                    Lunch (hosted by China for all the participants)

In addition to the speakers noted above, there will also be Chinese official participants from public security, Customs, procuratorate, AQSIQ and other agencies, which should help make for lively discussion and interaction.  I hope to see you there!