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1.3.1. History of Intellectual Property in China Ancient Times Copyright According to Chinese historians, the history of copyright in China can be draw from the rise of printing during the Tang Dynasty (AD 618-906). However, there is evidence from the establishment of the Zhou dynasty in 1122 BC of interest in the ways in which commodities were identified, concern from the Qin era with the distribution of written materials, and attention from the Han dynasty (206 BC-AD 220) to barring the unauthorised reproduction of the Classics. Nonetheless it is with the advent of printing during the Tang period that one first finds substantial, sustained efforts to regulate publication and republication. Historians locate the invention of woodblock printing between 590 and 650 and the development of movable type by Bi Sheng at around the year 1000. [Footnote: The first book printed by means of blocks dates back to AD 868. L. J. Brahm, Intellectual Property Law in the People's Republic of China,63.] What appears to have been one of the earliest such measures was issued in AD 835 by the Wenzong Emperor in the form of an edict, which, as was routine, became part of the Tang code. The decree prohibited the unauthorised reproduction by persons of calendars, almanacs, and related items that might be used for prognostication, which, it observed, were being copied in great quantity in the Southwest and distributed throughout China. In 1009, the Zhenzong Emperor, concerned about the proliferation of undesirable printed materials, ordered private printers to submit works they would publish to local officials for prepublication review and registration. The penalties crafted by the state to enforce the prepublication review system underscored its objectives. Persons failing to obtain official approval prior to printing works that were neither subject to exclusive state control nor banned altogether might suffer one hundred blows with a heavy bamboo cane and the destruction of their printing blocks. Those who reproduced controlled or prohibited items risked far greater punishment. The unauthorised reproduction of astronomical charts, for example, called for a 3,000-li (i.e., approximately 500-mile) exile. Trademark Even though that the first trademark law appeared in China in the late Zhou Dynasty, the first reliable evidence of a trademark is in the Song Dynasty (AD 960-1269). However, there is no historical records supporting that any particular legal protection was in force at that time. [Footnote: Z. Chengsi, Chinese Intellectual Property and Technology Transfer Law, 21.] According to Zheng Chengsi, the first case of passing off or unfair competition appeared in 1736. In this case, the local government of Suzhou Prefecture punished a manufacturer who was selling his goods under another's trademark. [Footnote: id] Patents The word in Chinese for patent contains two characters meaning "monopoly or exclusive controlling advantage". The origin of these two characters goes right back to the late Zhou Dynasty (1111-222 BC). The practice of privileges granted to merchants in the medieval times in Europe, was the topic of a debate during the Western Han Dynasty (206 BC-AD 220) involving a royal monopoly over the production and trade in iron and salt. [Footnote: id at 51]. Modern Times Until the seventeenth century, there was little trade between China and Western countries. The issues of intellectual property did not rise in a trade confined to items such as opium, tea, and raw silk, sold as bulk commodities, rather than under brand names. As foreign economic involvement in China expanded, after the Opium War (1839-42), however, during the latter nineteenth century, charges of the unauthorised use of foreign trade names and trademarks began to arise. [Footnote: Morse, International Relations, 3:378.] At the first, these seem chiefly to have taken the form of the improper use by Chinese merchants of the names of Western business in order to avoid paying the likin (internal tax to which Chinese, but not foreigners, were subject or to secure internal transit permits. Hao, Commercial Revolution, 263. The advent of the international treaties on intellectual property, the Paris Convention of 1883 dealing with trademark and patent and the Berne Convention on copyright promulgated in 1886, foreign merchants expected that their trademark registered at home would be maintained in China. [Footnote: Alford, at 34.] However, it was evident by century's end that a range of foreign trademark were, at least in the eyes of their holders, increasingly being abused. [Footnote: id at 35.] The Chinese government understood that such treaties could influence negatively on the Chinese economy its education system and, therefore, refused to adopt those conventions [Footnote: Chengsi, at 88] Despite of the lack of legislation on intellectual property, there have been cases like in Shanghai, where a group of businessmen organised an association for the protection of their trademark and the non-use of similar marks amongst themselves. [Footnote: Chengsi, at 21.] Interestingly, in 1859, Hong Rengan, leader of Taiping Heavenly Kingdom movement, suggest a genuine patent system with a protection term of five years and a ten year term for inventions. However, the movement failed and their ideas never could put on practice. [Footnote: id] In the first years of the new century, commercial agreements were concluded between China, in one side, and the United States, Britain and Japan, separately, addressing on intellectual property issues. Those agreements assured the protection of British and American trademarks against infringement by Chinese subjects. The treaty of 1903 between the united States and China, the Sino-American Treaty of Trade and Navigation, stated that China would provided a limited term of patent protection "to citizens of the United States, in respect of articles the sale of which is lawful in China, which do not infringe on previous inventions of Chinese subjects, in the same manner as patents are to be issued to subjects of China." [Footnote: Alford, at 37-38.] Nonetheless, the use of imperial edicts to protect the exclusive rights of printers, publishers and authors continued being the only way of protection. [Footnote: Brahm, at 63.] Copyright In 1910, the first Copyright in China was promulgated. It was known as the Author's Rights in the Great Qing Empire. [Footnote: Chengsi, at 87.] This law was based on the Japan's Copyright Law. [Footnote: Brahm, at 64.] However, the Qing Copyright Law was in force only for one year. [Footnote: In this point, there are two different views. According to L.J. Brahm, the 1910 Copyright Law was abolished in 1949. On the hand, Z. Chengsi states that after the 1910 Law, that lasted only for one year, further legislation on copyright was approved.] The second true Chinese copyright law was enacted in 1915 by the Northern Warlords of China. This law, Law on Authors' Rights, which was almost identical, went on for twelve years. The Kuomingtang government approved, in 1928, a new copyright law, Law on Authors' Right. Despite of these laws held clauses similar to other copyright laws at that time, interestingly, all of these three laws contained a registration requirements to enjoy the protection of such laws. [Footnote: Chengsi, at 87.] After the establishment of the People’s Republic of China, there was no Copyright Law until the Copyright Law in 1991. Nonetheless, the Decisions Concerning the Improvement and Development of Publishing, adopted by the first National Publications Conference, ruled matters such as plagiarism, “copyright page”, remuneration, and the protection of the interests of authors. Three standard contracts provided by the People’s Publishing House could be used to determine rights and obligations of authors and publishers instead. [Footnote: id, at 88-89] Intending to enact a copyright law for the People’s Republic of China, a draft of such a law was presented in 1979. It was amended several times until the enactment of the present copyright law. [Footnote: Until 1988, the Seventeenth Draft was presented. The copyright law draft was continuously amended during monthly reviews. Brahm, at 64.] Trademark In 1904, during the Late Qing Dynasty (AD 1644-1911), the first true Chinese trademak law, Trial Implementing Regulations for the Registration of Trademarks, was decreed. [Footnote: Chegsi, at 21.] The protection provided under these regulations were mostly used by foreign trademark owners, especially Japanese businessmen [Footnote: id.] The administration of these regulations and the subsequent law in 1923 were in foreign hands. For instance, the Northern Warlords' trademark law of 1923 conferred jurisdiction to settle trademark disputes to foreign consulates. [Footnote: Brahm, at 5.] The 1923 trademark law gave a twenty year protection term, which could be renewed for another twenty years. [Footnote: Chengsi, at 22.] The Kuomingtang or Nationalist government enacted in 1931 the third Chinese trademark law adopting foreign trademark laws. For example, the good classification table used in 1931 law was the same as that in its Japanese counterpart. [Footnote: Brahm, at 5.] The 1931 trademark law included an opposition procedure and re-examination rules. Near the end of the Nationalist government in 1949, 46,000 trademark had been registered and almost half of them were owned by foreigners. [Footnote: Chengsi, at 22.] After the new government of the People's Republic of China came to power, it published the Provisional Regulations on Trademark Registration. These regulations were promulgated to be provisional in a transitional period in China, the socialist transformation period. [Footnote: Chengsi, at 22.] In 1963, the State Council released the Regulations Governing Trademark and Implementing Rules. To adjust the capitalist concept of a trademark, the State Council considered trademark as a means of quality control. The regulations stated that a trademark was 'a distinctive sign representing the quality of the goods bearing it...'. [Footnote: Brahm, at 5.] The 1963 regulations, to put on practice such idea, gave the authority to supervise and control over the quality of registered trademark goods to the relevant authorities. It also made mandatory to register all trademarks using by undertakings doing business in China. [Footnote: Chengsi, at 23 et seq.] The regulations were in force until 1983, when the Trademark Law in force was promulgated. Patents The first patent law ever existed in China was the Regulations to Promote Industrial Technology promulgated by the Emperor Guang Xui in 1899. This patent law was in force for only two months, so that it could not be applied. No patent law was in force until one year after the overthrow of the last dynasty, Qing Dynasty, when the Interim Regulations on Awards for Devices was published by the Central Government of the new Republic of China. Under these regulations 692 patents were granted. [Footnote: id, at 52.] Before 1949, when was established the People's Republic of China, in 1944, the Kuomingtang government enacted the third Chinese patent law, the Patent Law of the Republic of China. However, only a few patents were granted under this law. [Footnote: id.]
In 1950, the Government Administrative Council promulgated the Interim Regulations concerning Protection of Patents and Inventions, which as the Provisional Trademark Regulations, was thought to be temporary. Under the regulations invention certificates and patents were the two kinds of exclusive rights granted. However, the appilcant could choose only one of them. The subsequent regulations, the 1963 Regulations concerning Awards for Inventions stated that "all the inventions are the property of the State; all enterprises (both State owned and collectives) are free to make use of them when they think fit".[Footnote: Art. 23 of the 1963 Regulations, as cited in Chengsi, supra, 53 The difference between the 1963 Regulations invention protection system and the same in the Soviet Union was that the exclusive right that Soviet State reserved in case of a licence agreement with a foreign entreprise did not existed in China. Therefore, the invention, in theory, came into public domain and no royalties might be paid for a foreign undertaking using the invention. The regulations were amended in 1978, but no actual changes were introduced. Perception of this reform amongst people was that this system favoured only the lazy, those enterprises which with no restrictions were entitled to use another's invention. This situation continued until 1984 when the present patent law was promulgated. [Footnote: Chengsi,
William P. Alford, To Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilization, Stanford University Press, Stanford, California, 1995. (pp. 9-14)
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