Author: dong,
Publishing House: Lixin Accounting Publishing House
ISBN: 7542909665
Executive summary:
Taking intellectual property rights and world trade as the research object, this book analyzes the relationship between intellectual property rights protection and world trade, points out the shortcomings of the original international protection system of intellectual property rights, reveals the important role of GATT and WTO in the development of the international system of intellectual property rights, introduces in detail the basic contents of the Agreement on Trade-related Intellectual Property Rights and its influence on the intellectual property rights systems of various countries, and discusses some trade-related intellectual property rights issues to be further solved, fully explaining the role of the international system of intellectual property rights in increasingly complex international trade. In addition, this book also introduces and analyzes some common intellectual property issues in world trade, especially the parallel import of intellectual property rights and the gray market, and lists a large number of practical cases.
Directory:
Chapter I Intellectual Property Rights and Their Functions and Impacts on World Trade
Section 1 Overview of Intellectual Property Rights
Section 2 The Role of Intellectual Property Rights in Economic Growth
Section III Influence of Intellectual Property Rights on World Trade and Cause Analysis
Chapter II Development of International Protection System for Intellectual Property Rights
Section 1 Intellectual Property Protection System
Section 2 World Intellectual Property Organization and its major international conventions
Section III New Development of WIPO's International Coordination of Intellectual Property Rights
Section IV Problems and Shortcomings of the Original International Convention on Intellectual Property Rights
Chapter III Uruguay Round of Intellectual Property Negotiations of the General Agreement on Tariffs and Trade
Section I Overview of Uruguay Round Intellectual Property Negotiations
The second part: the influence of the United States on the Uruguay Round of intellectual property negotiations.
Section III Progress of Uruguay Round Intellectual Property Negotiations
Chapter IV Basic Contents of the Agreement on Trade-Related Aspects of Intellectual Property Rights
Section 1 Main provisions of the Agreement on Trade-related Aspects of Intellectual Property Rights
Section 2 Other provisions of the Convention included in the Agreement on Trade-related Aspects of Intellectual Property Rights
Section 3 Prevention and settlement of intellectual property disputes in the World Trade Organization
Chapter V Main features and significance of the Agreement on Trade-related Aspects of Intellectual Property Rights.
Section 1 Main features of trade-related intellectual property agreements
Section II Significance of the Agreement on Trade-Related Aspects of Intellectual Property Rights
Chapter VI Commitments and Efforts of WTO Members in Implementing the Agreement on Intellectual Property Rights
Section 1 Inspection of WTO Members' Performance
Section II Commitments and Efforts of Members
Chapter VII Research on Trade-related Intellectual Property Rights
Section 1 International Protection of Geographical Indications
Section 2 Protection of Unpublished Information
Section 3 Border Protection of Intellectual Property Rights
Section 4 Special Protection of Well-known Trademarks
Section 5 Competition Restrictions in Contract Licensing
Chapter VIII Parallel Import and Grey Market Sales of Intellectual Property Rights in International Trade
Section 1 Parallel import of patented goods
Section 2 Parallel Import of Trademarks and Grey Market Sales
Section III Typical Cases of Parallel Import of American Trademarks
Section 4 Parallel Import of Copyright
Chapter IX Intellectual Property System in China
Section 1 Establishment and Development of Intellectual Property System in China
Section 2 China Patent System
Section III Trademark System in China
Section IV Copyright System in China
Section 5 Law Enforcement System of Intellectual Property Protection in China
Section VI Other Laws and Regulations on the Protection of Intellectual Property Rights in China
Section 7 Civil Litigation and Relief of Intellectual Property Rights in China
Section 8 Criminal Procedure of Intellectual Property Protection in China
Section 9 Protection Measures for Intellectual Property Border in China
Appendix I Agreement on Trade-related Aspects of Intellectual Property Rights of the World Trade Organization
Appendix II Paris Convention for the Protection of Industrial Property
Appendix III Berne Convention for the Protection of Literary and Artistic Works
Appendix IV universal copyright convention
Appendix V International Conventions for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations
The influence of international intellectual property protection on China's foreign trade and its countermeasures.
With the rise of China's economy, China is actively developing trade relations with other countries in the world, and "Made in China" has attracted more and more attention from the international community. At the same time, China officially became a member of the WTO on 2 00 1, fully fulfilling its commitments when it joined the WTO. China will undertake the rights and obligations in the field of intellectual property rights, fully implement the Agreement on Intellectual Property Rights and protect the development of international trade and intellectual property rights from infringement. So as to realize the commitment of GATT and WTO to reduce tariffs, eliminate discriminatory treatment and other trade barriers, and gradually realize trade liberalization. However, the work of GATT and WT0 focuses on the negotiation of tariff concessions and the implementation of the general principle of eliminating quantitative restrictions, and has not completely restricted a large number of non-tariff barriers in international trade. At present, the protection of international intellectual property rights and abuse of rights are not only the main obstacles to the liberalization of international trade, but also the main factors restricting the development of China's foreign trade.
First, the strengthening of international intellectual property protection has restricted China's foreign trade.
China's foreign trade grew rapidly in 2004. On the basis of 2 1 18% in 2002 and 37 1 1% in 2003, China's foreign trade increased by 35 17% in 2004. The total import and export volume exceeded100 billion USD for the first time, reaching1154.8 billion USD, and jumped from the fourth place in 2003 to the third place in world trade. The annual increase of import and export exceeded $654.38+000 billion in 2002, $200 billion and $30 billion in 2003. [ 1]
The above data reflects the rapid development of China's foreign trade, but at the same time, the news of China enterprises encountering intellectual property disputes in domestic and foreign markets is endless, and intellectual property rights have become an unavoidable focus for China enterprises to participate in international competition. With the development of science and technology, the relationship between intellectual property rights and international trade is increasingly close. Therefore, while vigorously encouraging the development of knowledge and technology-intensive industries, all countries attach great importance to the protection of intellectual property rights of exported goods and technologies. Intellectual property, in the eyes of some enterprises, has become an untouchable forbidden area, while in the eyes of the general public, it has become a monopoly and a "law of the jungle" under modern civilization. But in any case, it is not uncommon for domestic enterprises to suffer both economic and reputation losses due to intellectual property issues, and the alarm of attaching importance to "intellectual property rights" has sounded in our ears.
While China is accelerating its integration into the global economy, the intellectual property crisis has given us a red light. June, 5438+October, 2005 10. Shortly after China's entry into WTO, the international giant Intel sued the voice card produced by a company in China for infringing its patent. Soon after that, Sanyo began a dispute with Shenzhen BYD about battery patent. In February, American Electronic Entertainment Association (ESA) submitted a report from International Intellectual Property Protection Union (IIPA) to American business representatives, pointing out that China, together with Malaysia and Russia, became the three countries with the most serious game software piracy in the world. China has become the largest producer, consumer and exporter of fake and shoddy products in the world. When more and more China enterprises and China products play an important role in the global market, the intellectual property crisis casts a shadow over this globalization process. The intellectual property pressure from the United States, the European Union, Japan, South Korea and other patent powers has set a high threshold for China. By suppressing China enterprises and China products through intellectual property rights, China enterprises have entered a strange circle of internationalization: production-patent restriction of multinational companies-paying huge patent license fees and infringement fees-copying.
The strengthening of international intellectual property protection affects the globalization process of enterprises in China, because China enterprises lack independent intellectual property rights and have to pay huge patent fees, or because the huge costs arising from intellectual property litigation greatly increase the costs of enterprises, significantly reduce the competitiveness of China products in the international market, and affect the foreign direct investment and transnational production of China enterprises. At the micro level, intellectual property barriers reduce the market competitiveness, market share and profit margin of products by paying huge patent royalties and infringement fees, which is the short-term effect of intellectual property rights; In the long run, the reduction of capital accumulation caused by the reduction of corporate profits will lead to insufficient investment in technology research and development, and it will be impossible to fundamentally improve the technology structure and product structure of enterprises, which will inevitably lead to the desperate situation of enterprises in the era of technology as the core competitiveness. At the macro level, the whole related industries will reduce the production and sales of products in a short time because of intellectual property barriers. In the marketing era with the market as its lifeblood, the industry will not be able to resist the industrial shrinkage brought about by the shrinking market. If this situation continues for a long time, the industry will eventually die out in the competition. This has a great influence on the development of national economy, international economic sovereignty and the future position of China's science and technology in the world. Undoubtedly, when the global economy enters the era of industrial restructuring, China enterprises lacking intellectual property rights will not be able to change the unfavorable situation at the end of the industrial chain and downstream of the value chain, and will be subject to people in globalization.
Second, the impact of strengthening international intellectual property protection on China's foreign trade.
Intellectual property refers to the exclusive rights that citizens or legal persons enjoy according to law for their inventions, achievements and works in the fields of science, technology, culture and art. That is, people have the right to enjoy the intellectual achievements created by Bai himself through intellectual activities according to law. The intellectual property rights referred to in the Agreement on Trade-related Intellectual Property Rights of the World Trade Organization include: copyright and related rights, trademark rights, geographical indications rights, industrial design rights, patent rights, layout-design rights of integrated circuits, and exclusive rights of undisclosed information. [2] When intellectual property can independently become the transaction object, other transactions in international trade are related to intellectual property.
It can not only be used as the object of trade, that is, the so-called intellectual property trade, but also profoundly affects the international trade in goods and services. The carrier of trade in goods-goods, the carrier of trade in services-intangible assets are inextricably linked with intellectual property rights. [3]
Regarding the impact of intellectual property protection on international trade, it is generally believed that the higher the degree of intellectual property protection in a country, the higher the level of international trade development. They believe that since the 1980s, the proportion of technology, knowledge and capital in international trade has increased year by year, and the transfer of goods related to intellectual property rights has also been increasing, doubling every five years on average. The research report of GATT also claims that 2% of world trade (that is, nearly $80 billion) belongs to counterfeiting and imitation trade. Infringement has seriously affected the normal operation of international trade, and the trade interests of countries are closely related to intellectual property protection. [4] We believe that the growth of intellectual property rights and trade in goods or services related to intellectual property rights has had a significant impact on international trade, but whether this is necessarily related to intellectual property protection remains to be studied.
Intellectual property protection has become a hot topic in the current society, and it seems that it has become a consensus to strengthen the intellectual property protection system. However, the purpose of formulating intellectual property protection system is not to protect intellectual property itself, but to stimulate innovation, safeguard social equity, and then promote all-round social and economic progress. It is in the process of achieving the above-mentioned goals that unilaterally strengthening intellectual property protection may go into a misunderstanding, which is not conducive to realizing the original intention of the intellectual property system.
Excessive intellectual property protection hinders economic growth and technological progress.
The intellectual property system of technological innovation is usually praised by its supporters as a progressive driving force to promote economic growth and technological innovation. But the fundamental driving force of innovation comes from competition, and intellectual property protection is essentially monopoly. Monopoly can provide incentives for innovation, but it can also encourage former innovators to rely on monopoly to obtain high profits, thus weakening the driving force of technological innovation. The greater the protection of intellectual property rights, the higher the monopoly income of innovators in the past, and the motivation for further innovation tends to weaken. In the modern financial market where financial innovations emerge one after another, once an innovative financial instrument comes out, other financial institutions will immediately follow suit, but the pace of financial innovation has not slowed down. Software, computer and semiconductor industries are the industries with the most concentrated technological innovation at present. However, when patent protection was quite weak in the past, the technological innovation speed of these industries was not slow, and many decisive technological innovations currently used were developed at that time. However, after the United States federal court ruled to strengthen the protection of software patents in the 1980s, software development lacked creativity, because software enterprises that obtained monopoly rights could make huge profits only by developing and upgrading their products. What consumers get is no longer brand-new software, but only the first version of a certain software. Many research results show that the strict intellectual property protection system has not changed the number of innovations, but only changed the direction of innovation.
(B) Strict protection of intellectual property rights will stimulate the moral awareness of enterprises.
The correct use of venture intellectual property rights can attack competitors and protect the position of enterprises in market competition. However, in today's increasingly intensified international intellectual property protection environment, enterprises in developed countries have a strong incentive to use the strict intellectual property protection system to set obstacles for their competitors, not to engage in innovation themselves, and not to let competitors engage in innovation to win competitive advantages. The practice of some market players is extortion. For example, registered trademark incidents emerge one after another, and even a world-renowned big company like Siemens can't avoid customs. Hisense's registered trademark makes Hisense, which wants to explore the European market, almost shut out of the German market and has no chance to participate in the competition. For most enterprises in China, the competitiveness of Chinese enterprises is still very weak. Coupled with the influence of intellectual property protection in developed countries, we can only slowly update and create state-owned technologies, or illegally steal intellectual property rights from other countries to achieve development.
(c) Excessive intellectual property protection will worsen innovation.
The harsh conditions of intellectual property protection force innovators not to focus on innovation, but to avoid stepping on "infringement" mines. The setting of patent projects in the United States is becoming more and more detailed. People used to patent every new software, but now they patent almost every code. On the surface, it is beneficial to protect the interests of inventors, but in fact it greatly hinders the overall technological innovation. Because in this way, no matter who wants to make achievements in the software field, they should consider whether the coding used in the software infringes the patent rights of others. At present, China should get more support and help from developed countries in terms of capital, especially technology, so as to narrow the gap with developed countries more quickly. Excessive protection of intellectual property rights, on the one hand, increases the actual cost of technology introduction in China, on the other hand, it also increases the psychological burden of enterprises in the process of independent knowledge innovation, and always hesitates for fear of "infringement", which hinders the technological progress and innovation process of Chinese enterprises.
(d) Developed countries can use intellectual property protection to capture the interests of developing countries.
Developed countries have knowledge advantages, and they will combine the characteristics of international trade protection-intellectual property barriers are hidden, discriminatory and retaliatory, and use the characteristics of intellectual property rights to plunder developing countries.
The combination of intellectual property rights and technical standards greatly improves the technical difficulty of standards, which makes developing countries that passively accept standards have to pay high patent fees to meet relevant standards. This technical standard is reasonable and legal under the cover of intellectual property rights, which makes enterprises seldom consider whether the formulation and implementation of this technical standard are reasonable. For example, the United States can use the retaliatory characteristics of intellectual property rights to protect itself and attack its opponents. Retaliation mainly means that some countries take advantage of the relevant provisions in their own trade laws to retaliate against other countries on the grounds that the protection of intellectual property rights in other countries does not completely affect normal trade. Among them, clause 30 1 and clause 337 of Meichao are the most representative. The super 30 1 clause in the domestic trade law of the United States stipulates that the United States will retaliate against countries that believe that unfair trade practices have been committed against the United States, including practices that the United States believes are insufficient in protecting intellectual property rights. Retaliation measures include raising tariffs on imported goods or adopting import restrictions, and taxing or restricting the services of relevant countries until the trade treaty signed by the two countries is terminated. Section 337, also known as the unfair trade practices clause, is the section 337 of the US Customs and Goods Tax Law 1930, and is currently the section 337 of the 1988 Comprehensive Trade Law 1337, which mainly controls the products imported by foreign manufacturers into the United States that infringe the intellectual property rights of the United States. If the Section 337 investigation is established, the exporter's products may be permanently excluded from the US market.
(E) There are problems of interest transfer in the implementation of intellectual property protection.
The main owner of intellectual property rights is modern industry, and one of the characteristics of modern industry is that the sales market of most enterprises spans multiple administrative regions, which leads to the fact that the beneficiaries and the cost bearers in the implementation of intellectual property rights system do not completely overlap. The beneficiary is the enterprise, and the government at the place of sale needs to pay a higher execution cost, but the tax increased by the beneficiary enterprise may not be available to the government at the place of sale that pays the execution cost, thus causing the problem of interest transmission. Some kind of transfer payment mechanism between regions in China can partially solve the above problems, but there is no such mechanism in the world. As we all know, in China, those western multinational companies who advocate strict protection of intellectual property rights benefit the most. These multinational companies also enjoy higher tax treatment than domestic enterprises, and tax evasion is also quite serious. If there are no other supporting measures, strengthening the protection of intellectual property rights beneficial to them will, to a certain extent, lead to the transfer of interests beneficial to the home country of multinational corporations.
Third, China's measures to strengthen international intellectual property protection
The forms of intellectual property barriers are complex and diverse, and the fields of activities in international trade are gradually expanding, the commodities involved are gradually increasing, and the impact on import and export trade of relevant countries is gradually deepening. As a developing country, China needs to introduce advanced intellectual property technology from developed countries and encourage export trade to promote economic development. Therefore, while developing trade, China will inevitably encounter various forms of intellectual property barriers. According to different intellectual property barriers, China should take different countermeasures.
(1) Establish an enterprise intellectual property strategy. The enterprise is our city.
The main body of market economy is also the main battlefield for the use of intellectual property rights. Since 1990s, foreign companies have applied for a large number of patents in response to the five-year plan put forward by China, setting patent traps in the future development fields of many industries in China, preventing China enterprises from independently developing technologies and controlling the development of these industries. In this regard, China enterprises and the government should fully realize the crisis and challenges faced by enterprises and national industries, and truly establish the awareness of intellectual property rights. We should not only attach importance to the intellectual property rights of foreigners, but also strengthen the development of independent intellectual property technologies and implement the patent deployment strategy. Implementing intellectual property strategy is an urgent need for China enterprises to integrate into the world economy. Intellectual property strategy refers to a series of strategies and means to use intellectual property protection system to fully safeguard their legitimate rights and interests, gain and maintain competitive advantages and curb competitors, and seek the best economic benefits. [6] Enterprise's intellectual property strategy refers to the strategies and means that enterprises use intellectual property protection to seek the best economic benefits in order to gain and maintain market competitive advantage. As far as China enterprises are concerned, many enterprises ignore the application of technology in product development and market development, and many products have low technology content, high consumption of raw materials and low efficiency. In this situation, only by establishing the operating mechanism of scientific and technological progress with enterprises as the main body and strengthening the strategic application of intellectual property rights of enterprises can we fundamentally change the defects in the protection and application of intellectual property rights of Chinese enterprises, truly improve their economic performance and enhance their international competitiveness.
(2) Enhance the independent innovation ability of enterprises. China enterprises face
The dilemma of intellectual property barriers is fundamentally the result of China enterprises' lack of technological innovation and core competitiveness. Therefore, enterprises should attach importance to their own technological innovation, realize the importance of intellectual property rights under the globalization of the world market, increase investment in technology research and development, and form the core competitiveness of enterprises. Actively promote the cooperation among enterprises, enterprises, scientific research institutions and universities, and realize the enjoyment of intellectual property rights by means of joint development, joint investment and joint protection. Enterprises should increase investment in scientific research, and the state should also choose strategic industries to support enterprise technology development.
(3) Actively responding to international intellectual property infringement lawsuits. China enterprises, especially foreign trade enterprises, should change their concepts, change their passive attitude towards intellectual property disputes in the past, and actively respond to international intellectual property infringement lawsuits. A considerable number of domestic enterprises have no infringement of their own, but they often give up the opportunity to respond for fear that litigation will affect the development of enterprises, and lose the opportunity to safeguard their own rights and interests in vain. Enterprises that infringe their rights also pay higher than normal infringement fees for one reason or another. At the same time, the business circles in China should also attach importance to the establishment and perfection of the Chamber of Commerce, and form an enterprise alliance with effective organization, coordination and extensive participation, which will help to strengthen the efforts to seek support from all sides, including the government.
(four) in-depth understanding of international rules and major national knowledge.
Legislation and practice of property law. China is a member of the WTO. Enterprises should pay attention to the provisions of WTO and TRIPS on intellectual property rights in foreign trade. At the same time, we should also understand the laws and practices of major trading countries on intellectual property rights, master their main legal provisions, legislative trends and court cases, and avoid hitting intellectual property barriers to the greatest extent. For example, the principle of exhaustion of intellectual property rights should be grasped by the principles adopted by major trading countries at present. If the target country adopts the regional principle, enterprises should pay special attention to intellectual property rights when conducting foreign trade activities.
Enterprises importing patented technology should make clear and detailed provisions on the parallel import of patented products when signing contracts. The nature of the license should be clearly stipulated in the contract. In the case of exclusive license, it should be stipulated in the contract that if the second party imports patented products without authorization in the future, the technology provider should be responsible for negotiating with the infringing third party. At the same time, it should be noted that the contract products should be produced and sold within the territory stipulated in the contract. If it needs to be exported to a third country with parallel patents outside the region, it should be approved by the patentee of the importing country. Foreign trade operators engaged in import business should pay attention to whether imported goods infringe the rights of domestic patentees. Where an imported product has a valid patent right in China, it shall be imported only after obtaining the permission of the patentee in that country. For some foreign enterprises to set up barriers and monopolize the market by using the intellectual property rights contained in the factual standard, domestic enterprises can unite to resist or resort to the court for settlement. If necessary, they can apply to the state to start the trade barrier investigation mechanism and investigate foreign technical barriers. For some countries that use domestic laws to retaliate against foreign products under the pretext of intellectual property rights, they can take anti-retaliation measures or resort to the WTO dispute settlement mechanism.
In addition, China should strengthen the study of TR IPS rules and abolish the export inspection system for customs protection of intellectual property rights. TR IPS agreement stipulates that intellectual property inspection can be carried out on exported goods, while intellectual property inspection on imported goods is the minimum standard stipulated by TR IPS. As a developing country, China is backward in overall scientific and technological level and is at a disadvantage in international protection of intellectual property rights. China only needs to meet the minimum standards stipulated in TR IPS agreement, so it can meet this standard and protect the interests of enterprises and countries to the maximum extent. Therefore, China should focus on import inspection, and export inspection can be cancelled, which is in line with China's economic development level and the minimum standards stipulated in TR IPS Agreement, and is conducive to improving customs administrative efficiency and preventing illegal foreign businessmen.
People use this to stop the export of our products.
(5) Accelerate the training and management of intellectual property talents. At present, the competition between enterprises and even countries is actually the competition of talents. Whoever has more talents can gain an advantage in the competition. With the full integration of China and the world economy, China enterprises will face more and more competition from international enterprises, especially when intellectual property barriers will restrict China's foreign trade more seriously. If China enterprises don't pay more attention to the cultivation of intellectual property talents, China enterprises will lose the market they need for future development because of the loss of "intellectual property talents".
In short, in the face of increasing international intellectual property protection, only by promoting intellectual property strategy, actively applying for patents, developing independent intellectual property rights and other measures can China enterprises avoid suffering, and the double-edged sword of intellectual property rights can be used by China itself. To this end, we must strengthen education and publicity, raise the awareness of intellectual property protection of the whole people, and formulate a national intellectual property strategy in order to enhance China's scientific and technological and economic competitiveness, better participate in international competition and win.
At the same time, we should recognize the so-called "trade liberalization" advocated by developed countries and thoroughly understand that developed countries protect their national interests through more subtle, retaliatory and overbearing intellectual property protection means in non-tariff barriers. Only in this way can we formulate corresponding countermeasures and use appropriate policy means to carry out reasonable attacks, so as to achieve the purpose of safeguarding our own national interests.