| With the accelerating pace of China's accession to the WTO, the parallel import of copyright disputes have become more and more. Faced with this situation, we need to study the issue of parallel import of copyright field, to establish China on the issue with a view the basic policy and attitudes.Chapter 1 is the copyright area, explained the basic tenets of parallel import. First outlined the basic principles of parallel imports. Parallel imports is in the international sale of goods. The intellectual property or a country without the authorization or license the right to use intellectual property. intellectual property from third parties or outside the country who purchased the right to use non-infringement of intellectual property products, import into its territory and the marketing of these products. In addition, if the intellectual property rights in its domestic manufacturing and goods attached to the patent or trademark reproduce literature. not property subject to the import of foreign goods, in such circumstances, intellectual property without the consent of the importing country, also an act of parallel imports.Parallel imports mainly consists of five elements, namely the main elements of the special, special object elements, in the direction of special factors, and the legal elements essential acts. Trade is a judgment whether they constitute the fundamental basis for parallel imports. Meanwhile, parallel imports have many features distinguishing it from other acts of international trade.Have a parallel imports for many reasons, mainly for the following two : First, intellectual property price differential is to promote the parallel importation of parallel importers to implement internal economic momentum. Second, economic globalization and the liberalization of world trade is to promote a large number of parallel imports conduct the background conditions.Second is the concept of parallel importation of copyright field, form and the cause. In parallel with the parallel importation of copyright field with the general characteristics of imports, still has its own peculiarities. In the field of parallel importation of copyright is a copyright product by one country under the protection of copyright. authorized importers without the permission of the person or rights of foreign manufacturers, sales of the product imported into the State. There are three main forms of expression.As copyright protection, copyright trade presence, and therefore Apart from the price factor, Copyright areas of parallel imports has its own special causes. First, copyright trade with trade in goods cross the direct reason for the emergence of parallel importation of copyright. Second, the automatic protection of copyright principles exacerbated by the possibility of parallel importation of copyright field. Finally, the principle of national treatment, copyright protection is the copyright area, another parallel imports extreme force.Finally, the theoretical basis for the parallel importation of copyright field. Copyright fields on the legality of parallel imports, has been controversial, there are two completely different views. Support the exhaustion of rights principle : that the exercise of an intellectual property right may only be normal. If permitted the sale of a number of commodities, no matter how others resale of these commodities, have the right to interfere. According to this theory, if the first sale value of the intellectual property has been permitted, After the act would not be considered to constitute an infringement of any resale. This conclusion is : parallel imports was legal. Correspondingly, in the field of copyright, parallel importation certainly lawful. Regional support and protection of the rights of intellectual property the same principle : people who think according to the legal provisions, States were made in the scope and validity of intellectual property rights. only achieved in the corresponding enactment of the law's recognition of the area is strictly geographical in nature. According to this theory, the parallel importation of illegal behavior should be a tort. Then, in the field of copyright, parallel importation of illegal behavior goes even abusive.Chapter 2 is the EU, the United States, Singapore's attitude legislative and judicial practice. Piracy rampant in the field of parallel imports, there are also widespread concern from the international community, the same would constitute an infringement of its cause, the discussion should not be prohibited. At present, there are two issues on parallel imports fundamentally contrary to the legislative and judicial attitudes. Part of the European Union as the representative countries and regions basically adopted the principle of exhaustion of domestic copyright. act as parallel importation of copyright infringement to the field. Singapore and represented part of the country, has basically adopted the copyright principle of international exhaustion. recognizing the legitimacy of the parallel importation of copyright field. Meanwhile, the copyright law in many countries there is no more related to the issue of parallel importation. Representative to the United States, yet no comprehensive rules to address the issue of parallel importation of copyright field. In judicial practice, the court did not reach agreement on the approach, but taking a case-by-case approach. Despite government legislation and judicial practice and attitude are really differences, but in fact they have adopted a positive response. I would like to focus on the EU, the United States and Singapore, for example, some typical cases. Copyright areas for interpreting its basic stance on the issue of parallel imports. an indication of a country's attitude on this issue is not only related to its domestic legislation. even with the implementation of the trade policy has close ties.Chapter III is the copyright area, the practical considerations and the choice of parallel imports. Copyright disputes in the field of parallel imports face increasingly shown a growing tendency We need to be our field of copyright parallel imports reflect the current situation, from our perspective, the trade-offs. China in the field of copyright to seek to maximize the benefits of parallel import channels.First is the area of parallel importation of copyright practical considerations. China's current legal system there is the problem of institutional deficiencies. In addition to the United States reached with the "Memorandum of Understanding on the Protection of Intellectual Property Rights" clearly expressed their opposition to the field of parallel importation of copyright, China's existing laws, including international treaties China has participated in, No specific provisions against copyright field of parallel imports. We can draw upon the issues involved in the parallel import of the legal provisions are very limited. But there are still many scholars believe, according to the "Copyright Law" Article 10, Article 46 of the "Copyright Law". Article 47 of the shows, the field of copyright parallel imports are legitimate. Meanwhile, many scholars believe, according to the "Copyright Law" 10. "implementation of the Copyright Ordinance," the 5th and 24th of the "Copyright Law". Copyright is the parallel imports should be prohibited. The focus of the parties in dispute to the principle of exhaustion of rights with the right to apply the principle of the protection of geographical choices above.Lack of such a system also reflected in the "Anti-Unfair Competition Law". China's "Anti-Unfair Competition Law," to take the list, and set out a detailed description of unfair competition practices. It is clear that their behavior is not completely cover parallel imports. Therefore, the "Anti-Unfair Competition Law," the law is not able to make a comprehensive assessment of parallel imports.Faced with this situation, many scholars suggest using exclusive contracts made by the licensee in accordance with the right to be bound by parallel imports. But there are loopholes in this trial, and were immediately questioned by many scholars. Second is the area of parallel importation of copyright-benefit analysis. In my opinion, this is in the fundamental interests of China's economic development by the decision. The positive impact of parallel imports There are three main aspects : First, parallel imports will help prevent monopolies, price level; Secondly, Parallel imports are beneficial to ordinary consumers; Finally, free trade is conducive to the development of parallel imports. Accordingly, the negative impact of parallel imports are mainly in three aspects : First, parallel imports would lead to unfair competition; Secondly, parallel imports would infringe on the intellectual property rights of the importing country, weaken intellectual property licensing, the transfer of power; Finally, source of confusion and the quality of parallel imports will have different problems. It should be noted that in the field of intellectual property. two by the impact of parallel imports in specific performance is not the same extent. In the field of copyright, parallel importation even easier source of confusion caused, but its quality is likely to be minimal differences.In addition, as a developing country, the parallel importation of copyright holders if the absolute prohibition of attitude China will improve the entire social cost of consumer products overseas advanced culture, China's parallel import system divorced from reality, beyond the conditions. Therefore, I think this whole parallel importation of copyright on the field in terms of the advantages outweigh the disadvantages.Finally field parallel importation of copyright is a realistic option. We advocate for the parallel importation of copyright, should take the general permit, prohibit the exception. allowing parallel imports of general trade, the parallel importation of prohibited acts contrary to the principle of good faith. Practice has proven that the more realistic approach is not typical of the absolute nature of any legislation, Instead of principle and flexibility. Therefore, my wish to start their own position, a good grasp of fundamentals, the flexible approach using the existing legal system in the pursuit of our own best interests at the same time, Through judicial practice on the handling of specific cases to establish themselves on the field of copyright parallel imports of basic policies and attitudes.
|
PDF Full Text Request