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关于中国知识产权战略的几点思考
 Several Considerations in China’s IPR Strategy
Prof. Dr. Zhou Lin

    Intellectual Property Center of Chinese Academy of Social Sciences
    
    At the turn of 21 century, IPR strategies were drafted in several countries. For instance, in 2002, Japan government issued an Outline of IPR Strategy, and in the same year, US Patent Office issued an Outline of 21 Century Strategy. Both of the strategies stressed on the strong protection of IPR for the rights holders. This gives stimulation for some of the Chinese IPR officials and experts. Opinions or suggestions could be found in the media for making China’s IPR strategy and drafting an IPR Basic Law. No doubt it is the right time to draft a comprehensive IPR strategy when China joined WTO in 2001.
    
    The nature of IPR law system lays on the encouraging new creations and increasing welfare of the society. But it is an unbalanced game which is more in favor of the developed and rich countries. For a purpose of entering WTO, China amended her IPR laws and established a set of enforcement organs and kept on training and educating people for the awareness of IPR protection. Several promises were made while foreign critics and complains still exist. As a developing country, people keep on asking what China could do and make the advantages from this IPR law system?
    
    Compared with the aim a “nation founded on intellectual property” in Japan, facing many critics and complains on piracy in China, most opinions stress on a complete IPR law system, an effective enforcement of the laws and more well-educated people in IPR field. Yes, they are right, but they are not the key factors in drafting China’s IPR Strategy at the moment. A policy maker should know: Chinese creators should take the first place in IPR laws, it is they should benefit from the laws; IPR laws should give good protection for Chinese enterprises. A good model should be found. It gives a believe that IPR law system has a good function in the development of an enterprise; At the international stage, China should expresses her concern on the protection of traditional knowledge which is a rich resources not only for China but also a beneficiation for the whole world.
    
    I.Chinese creators should take the first place in China’s IPR law system
    
    Chinese people found the interests in a book and a trade-mark long ago. IPR laws were introduced in China for the first time around in 1900. Since 1949, IPR as a private right was resisted until 1979. It was in the Chinese-Foreign Joint Venture Law, which was passed and implemented in July 1979, that intellectual property was introduced for the first time in the law. Hereafter, the Trademark Law (1982), the Patent Law (March 1984) and the Copyright Law (1990) were passed, and the country saw a comprehensive protection of intellectual property only since then.
    
    Some experts and observers noticed that IPR law system is a result of realizing a certain political object, or under some kinds of foreign pressures. Take a look of the articles in the laws, it is hard to deny the shame. For instance, there are too many articles of statuary usage or limitations for authors in China’s copyright law. This seriously discourages the enthusiasm of the Chinese authors, and has a bad influence enforcement of the law. So, for a Chinese policy maker, he/she should know the Chinese creators should take the first place in drafting China’s IPR strategy. Especially after joined WTO, her political object has been achieved, under no pressure, all the draft and amendment of the IPR laws should set the Chinese creators in the first place and give them real, proper and full protection.
    
    II.Try to find a good model that Chinese enterprises could develop itself with their own intellectual property rights under present IPR law system.
    
    In China, people always say a good model could yield great good effect. In the past ten or twenty years, the Chinese government has been asking to fight against piracy. The central government and local authorities did adopt several measures or even take use of mass moment fighting against piracy. But things seem no change. Recently a speak man from National Copyright Administration expressed that China would root out piracy within 5 years. It is easy to say like this, but it is hard to imagine things would be so optimistic. If we could give another new thinking that IPR law could help and give much energy for a Chinese enterprise to develop itself based on its own intellectual property right. If we could find a good example like this? If only punishment is enough? How could we let people believe IPR law system be good for the development of an enterprise? If no such believe, how could we imagine that all Chinese enterprises could do their things following the rules of IPR law system?
    
    Early this year at an international conference in Singapore on the protection of famous trademarks I expressed the idea that the right holders, especially the famous foreign trademark right holders should give some kinds of support to China local enterprises and/or companies to use their own trademarks and set up their own business reputations. Here I stress again, in drafting China’s IPR strategy, one must take it in mind that IPR law system could be a real good for a Chinese enterprise. A good model should be found to proof it.
    
    III.China should expresses her concern on the protection of traditional knowledge which is a rich resources not only for China but also a beneficiation for the whole world
    
    The genetic resources, traditional knowledge and folklore are basis of survival and development for a nationality, a country and even for the whole human being. It is believed that protection of TK is not only significant for maintaining cultural diversity and excellent culture distribution, but also an irreplaceable factor in economy promotion and sustainable development. China is one of the developing countries with long history and rich natural and cultural resources. For thousands of years, the Chinese people have been accumulating rich TK in their production, practice and daily life. It is well known that traditional Chinese medicine, Peking opera, Chinese calligraphy and painting are three famous quintessence of the country, which represent the soul of the TK accumulated for over thousands of years. To effectively preserve and protect such TK is very important for promoting national economy and culture flourish.
    
    In China, there are really several rules concerning the protection of TK, but there lacks specific regulations for enforcing the rules. The exist rules are falling behind the international trend to protect TK. The present international IPR system, especially the patent system has some conflicts towards TK in several aspects. Some of the big companies in the developed countries keep most of the related key patents and stretch their power to the developing countries. They make big profit while refuse to compensate the contributors of the plant genetic resources. China, as a country full of plant genetic resources, should take good measures to protect them. If not, the plant genetic resources could be loss or missing, and the present un-justice could cause more limitations or obstacles for China’s agriculture industry.
    
    IV.Final remarks
    
    For encouraging a balanced enforcement of IPR laws and thawing herself into the development of international economy and politics, China should find her own way of IPR law system, focus on her great creators, find a good model of IPR protection and pay more attention to the protection of traditional knowledge.
    
主办:中国社会科学院法学研究所、国际法研究所
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