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.

State Council Clears Patent Law Amendments, Forwards to NPC, Patent Linkage Is Not Referenced ….

According to the official central Chinese government website, on December 5, 2018, Premier Li Keqiang chaired a State Council meeting which cleared the long awaited proposed draft of the patent law amendments.  The description of the draft is set forth below:


A rough translation is as follows:

In order to further strengthen the protection of the legitimate rights and interests of the patent rights holder, improve the mechanism system for stimulating creation of inventions, and raise those mature practices for effectively protecting patents into law, the meeting passed the “(Draft) Amendments of the Patent Law of the People’s Republic of China.” The Draft aims to increase the severity of penalties for intellectual property infringement, draws on international practices, significantly increase the amount of compensation and fines for willful infringement and counterfeiting of patents, and significantly increase the cost of infringement to deter illegal acts;  it clarifies the burden of proof for the infringer to cooperate in providing relevant information, and sets forth that the network service provider should bear joint liability for not stopping infringement in a timely manner. The Draft also clarifies the incentive mechanism for inventors or designers to equitably share the proceeds from the creation of service inventions, and improves the patent authorization system. The meeting decided to bring the Draft to the NPC Standing Committee for its review.

In a possibly unrelated development, the National Development and Reform Commission released a Chinese interagency Cooperation Memorandum of Understanding on December 4, 2018  to deal with entities that have lost trust due to IP (patent) infringement. 关于对知识产权(专利)领域严重失信主体 开展联合惩戒的合作备忘录.  Compared to the proposed patent law amendments, this lengthy document focuses even further on public law aspects of a patent law system, including recidivist infringers, “irregular” patent applications, providing false documents to the patent office, etc. and includes a range of 33 different punishments to be meted out from a wide number of agencies, including denial of subsidies, debarment for procurement purposes, denying access to range of government programs, prohibiting leisure travel, etc.

The two documents taken together may suggest a disheartening renewed emphasis on administrative measures to deal with patent infringement and innovation incentives.  Such measures may be intended to address US trade concerns about IP infringement and “IP theft”.  They may also represent a return to China’s increasingly administrative enforcement-oriented approach to patent issues.  However, this renewed focus on administrative measures is also occurring the same time as China is moving to quickly establish a new national appellate IP court attached to the SPC by as early as the beginning of 2019.  This new court will be a national appellate circuit court with jurisdiction over administrative appeals and technical IP matters and will likely include seasoned judges from Beijing and the SPC itself.  Much work needs to be done to get this court off the group quickly.

What, however, is missing from both these documents is any reference to a patent linkage system for pharmaceutical products, which has been much talked about in this blog.  As previously reported, former CFDA Commissioner BI had been dismissed from his post as party secretary to SAMR this past summer in response to China’s tainted vaccine scandal. A State Council notice (no. 83) of August 20, 2018 on deepening reform in China’s medical sector thereafter also ominously omitted any reference to patent linkage.

As the original deadline for passage of the patent law amendments was the end of this year, my guess is that this draft may be referred on to the NPC by the end of this year, and passage may occur as early as the first half of next year.  I assume that a draft for public comment will be released by the NPC sometime early next year.  Generic and innovative pharmaceutical companies that believe a linkage system would help accelerate innovation in the pharmaceutical sector and support early introduction of high quality generics, may consider commenting on these issues once a public comment draft is made available.

Comments on the PRC Trademark Law Amendments

by Joe Simone


The National People’s Congress (NPC) issued a draft revision of the PRC’s Trademark Law for public comment in December, setting a deadline of January 31, 2013, for the receipt of comments.  The NPC’s Standing Committee is expected to pursue two or three readings of the draft before enacting it, perhaps as early as mid-2013.  The NPC is unlikely to provide further drafts for public comment. Continue reading