On
October 1, 2007, Real Right Law of the People's Republic
of China will enter into effect
This
law was adopted at the 5th session of the Tenth National
People's Congress on March 16, 2007. According to Article
2 of this law, “this Law shall apply to the civil relationships
generated from the attribution and utilization of the res.
The term "res" as mentioned in these Measures
includes realties and chattels. In case there is any provision
that certain right shall be taken as an object of real right,
this provision shall apply. The term "real right"
as mentioned in this Law refers to the exclusive right of
direct control enjoyed by the holder according to law over
a specific res, including ownership, right to manufacture
and real rights for security. Chapter 17 of this law prescribes
pledge of intellectual property right.
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On
May 1, 2007, Regulations of PRC for the Administration
of Commercial Franchise Operations will enter into
effect
According
to Article 3 of this regulation, “Commercial Franchising
refers to the arrangement whereby an enterprise, by entering
into a contract, authorizes other business operator to use
its registered trademark, trade name, patent, know-how and
other business operating resources. The Franchisee shall
conduct the business under the standardized business system
of the Franchiser according to the provisions of the agreement
and pay the Franchiser the relevant fees. This regulation
will enhance the protection of intellectual property rights
in commercial franchise operations in China.
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On
April 5, 2007, Interpretation of the Supreme People’s
Court and the Supreme People’s Procuratorate on Several
Issues in the Concrete Application of the Law in Handling
Criminal Cases of Intellectual Property Infringement
entered into effect
This
interpretation was adopted at the 1422nd Meeting of the
Adjudication Commission of the Supreme People’s Court and
75th Meeting of the Supreme People’s Procuratorate on April
4, 2007. This interpretation provides more enhanced protection
on intellectual property rights with prescriptions in the
following three aspects.
(1)
The threshold for Prosecution of IPR Violators is notably
lowered.
According
Article 1, “where for profit-making purposes and without
the permission of the copyright owner there is reproduction
and distribution of a literary work, a musical, cinematographic,
television, or video recording work, computer software or
other works, and the total quantity of reproductions is
500 units or more, this shall constitute “other serious
circumstances” pursuant tot Article 217 of the Criminal
Code; where the total quantiy of reproductions is 2500 units
or more, this shall constitute “other exceptionally serious
circumstances” under Article 217 of the Criminal Code.”
According
to Article 217, “when there are other serious circumstances,
the violator is to be sentenced to not more than three years
of fixed-term imprisonment, criminal detention, and may
in addition or exclusively be sentenced to a fine; when
the amount of the illicit income is huge or when there are
other particularly serious circumstances, he is to be sentenced
to not less than three years and not more than seven years
of fixed-term imprisonment and a fine.”
(2)
The amount of the fine for intellectual property crimes
is defined
According
to Article 4, “in determining the fine for intellectual
property crimes, the People’s Courts shall comprehensively
take into account the illegal income, the illegal turnover,
the damage caused to the rights owner, the harm to society
and other circumstances of the crime. The amount of the
fine shall generally range from one time up to five times
the illegal income or 50 percent up to one time the illegal
turnover.”
(3)
The criteria on convicting and sentencing of crimes of units
and that of individual offenders are unified
According
to Article 6, “if a unit engages in activities that constitute
a crime under Articles 213 to 219 of the Criminal Code,
it shall be convicted and sentenced in accordance with the
corresponding criteria for individual offenders set forth
in the Interpretation of the Supreme People’s Court and
the Supreme People’s Procuratorate on Several Issues in
the Concrete Application of the Law in Handling Criminal
Cases of Intellectual Property Infringement and this Interpretation.”
.
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