A Comment on Chinese Legal Environment of Online Copyright Protection

One of the most significant achievements of the Uruguay Round was the negotiation of “the Agreement on Trade-Related Aspects of Intellectual Property Rights” (hereinafter TRIPS Agreement), which requires all World Trade Organization (WTO) Members to provide certain minimum standards of protection for patents, copyrights, trademarks, trade secrets, geographical indications, and other forms of intellectual property. The Agreement also requires countries to provide effective IPR enforcement. The TRIPS Agreement is the first broadly subscribed multilateral intellectual property agreement that is subject to mandatory dispute settlement provisions.

Developed countries were required to fully implement the TRIPS Agreement as of January 1, 1996, while developing countries were given a transition period for many obligations until January 1, 2000. Ensuring that developing countries are in full compliance with the TRIPS Agreement obligations now that this transition period has come to an end is one of the Bush Administration’s highest IPR priorities. The least developed countries have until January 1, 2006, to implement the TRIPS Agreement.

However, in order to address the concerns raised by the least developed countries, the United States suggested, and all other WTO members agreed, to extend the transition period for 10 years, until 2016, for the least developed countries to implement their TRIPS obligations for patent and data protection for pharmaceutical products.

Developing countries continue to make progress toward full implementation of their TRIPS obligations. Nevertheless, certain countries are still in the process of finalizing implementing legislation and establishing adequate IPR enforcement mechanisms. Every year, the US Government provides extensive technical assistance and training on the implementation of the TRIPS Agreement to a large number of US trading partners. Such assistance is provided by a number of US Government agencies, including the US Patent and Trademark Office, the US Copyright Office, the Department of State, the US Agency for International Development, US Customs and Border Protection, the Department of Justice, and the Department of Commerce.

This assistance is provided on a country-by-country basis, as well as in group seminars, including those cosponsored with the World Intellectual Property Organization (WIPO) and the WTO. In addition, US industry is actively involved in providing specific enforcement-oriented training in key markets around the world. Technical assistance involves the review of, and drafting assistance on, laws concerning intellectual property and enforcement. Training programs usually cover the substantive provisions of the TRIPS Agreement, including IPR enforcement.⁸

The Internet has undergone explosive growth and, coupled with the increased availability of broadband connections, serves as an extremely efficient global distribution network for pirated products. The explosive growth of copyright piracy on the Internet is a serious problem.

An important first step in the fight against Internet piracy was achieved at WIPO when it concluded two copyright treaties in 1996: “the WIPO Copyright Treaty” (WCT) and “the WIPO Performances and Phonograms Treaty” (WPPT) (collectively, the “WIPO Internet Treaties”).

The WIPO Internet Treaties help to raise the minimum standards of intellectual property protection around the world, particularly with respect to Internet-based delivery of copyrighted works. They clarify exclusive rights in the online environment and specifically prohibit the devices and services intended to circumvent technological protection measures for copyrighted works.

Both treaties entered into force in 2002. As of April 29, 2005, there are 51 members of the WCT and 49 members of the WPPT; this number will rise significantly when the EU joins, which, by internal arrangement, is expected to occur when the last five EU Member States complete their implementation processes.

Many countries have implemented in their national laws key provisions of these treaties even though they have not yet formally ratified them. At this point, therefore, the WIPO Internet Treaties are now part of the international IPR legal regime and represent the consensus view of the world community that the vital framework of protection under existing agreements, including the TRIPS Agreement, should be supplemented to eliminate any remaining gaps in copyright protection on the Internet that could impede the development of electronic commerce.

In order to realize the enormous potential of the Internet, a growing number of countries are implementing the WIPO Internet Treaties and creating a legal environment conducive to investment and growth in Internet-related businesses and technologies.⁹