Research On The Protection And Enforcement Of Intellectual Property In China

The intellectual property disbute between China and the U. S has a long history. There were four intellectual property negotiation happened between the two Parties since the 1980s to 1990s. Since the United States of America(U.S.A) submitted the negotiation application to World Trade Organization ("WTO")on 4th,2007, the dispute of "China-Measures Affecting the Protection and Enforcement of Intellectual Property Rights", namely the "First case on TRIPS between China and the U. S", officially began. This case caught high attention around the world which was a significant dispute in the frame of the dispute settlement in WTO between China and the U. S in intellectual property.This article starts from the intellectual property disputes between China and the U. S, makes brief introduction to the overview of the intellectual property between China and the U. S before and after entering WTO and makes analysis to the reasons of the intellectual property disputes between China and the U. S in the TRIPS times. Then this article uses the entry point of the first TRIPS disputes between China and the U. S, which was the first international lawsuit between China and the U. S that happened in the level of WTO after China’s entry into the WTO. The article introduces the background of the lawsuit and reviews the contents in the procedure and the main dispute focuses. There were three focuses in the lawsuit, namely the intellectual property criminal threshold of China, customs’ disposition measures to infringing goods and the copyright protection of illegal works. Later on, from the perspective of the related regulations and theories of international intellectual property law,this article makes clarifications and explanations to the questions that cause great disputes or need to futher explain in the three focuses. In the first part of the "intellectual property criminal threshold of China", this article makes explanations to the meaning of the’commercial scale", makes conclusion the criminal threshold in the Article 46 of TRIPS to quality standards and quantity standards, and further points out that the subjective requirements in the counterfeit and pirate crimes are "deliberate" and "for commercial purpose". In the second part "customs’disposition measures to infringing goods", the article combs and concludes the connotation and extension of Article 59 in TRIPS, and then the article concludes the main principles of Article 59. In the third part "the copyright protection of illegal works", the article concludes and combs the connotation and extension of the "works that are prohibited from publishing and distribution by law" in Article 4 of Copyright Law of P. R. C and makes clarifications and explanations to the meaning of Article 5 of Berne Convention, combining with some scholars’ comments in China. At last, the article makes conclusion to the significance and enlightenment of this lawsuit to intellectual property protection and enforcement to China.