The international symposium on 2016 IPR Nanhu Forum: International Conference on Intellectual Property Rights Protection and the Building of IP Power was held by Intellectual Property Research Center of ZUEL on April 23th-24th, in Beijing. During the two days’ conference, over 700 experts and scholars at home and abroad made a deeply discussion on four topics of “construction of intellectual property right system”, “improvement of intellectual property protection system and mechanism”, “trademark protection and brand competition”, “review and preview of the internet content industry over the past 10 years”, making a plan for the intellectual property rights protection and the building of IP power.
Keynote Speech of the Conference
Senior Justice Song Xiaoming, president of Intellectual Property Right Division of the Supreme People’s Court, executive deputy director of Judicial Protection Center for Intellectual Property, a special representative of Tao Kaiyuan, a Grand Justice of the Supreme People’s Court, Zhang Sujun, vice-president and a member of Party Committee of China Law Society, former vice-minister of Ministry of Justice of China, Professor Wang Jingchuan, president of Patent Protection Association Of China, former head of State Intellectual Property Office of China, honorary dean of School of intellectual property rights of ZUEL, all of them give a keynote speech successively. The keynote speech was presided over by Wu Handong, a senior professor and director of Intellectual Property Research Center of ZUEL.
Senior justice Song Xiaoming discussed the issues of intellectual property rights protection and the building of IP power in the following five ways. Firstly, how to do well in judicial protection for intellectual property; secondly, how to exert the leading role of justice in accordance with the central government’s policy; thirdly, how to make an adjustment of the role of law in the protection of intellectual property; fourthly, how to deal with the relationship of property rights, creditor's rights, equity and intellectual property; fifthly, the
intellectual property protection issues in the “internet plus” business mode.
Vice-president Zhang Sujun noted 2016IPR Nanhu Forum is closely connected with the main ideas of the Opinions on the Building of IP Power under New Circumstance. In order to lay a solid foundation on the building of IP power, we have developed a protection mode with judicial protection as the main, together with administrative protection, civil arbitration, social mediation and civil mediation, which conforms to our country's national conditions. This protection mode is beneficial to the building of IP power and will make contribution for the great rejuvenation of the Chinese nation.
Professor Wang Jingchuan offered four suggestions on intellectual property protection system. First, the country should accelerate the construction of substantial provisions on intellectual property law and improve the relevant rules to the infringement of intellectual property rights; second, the country should accelerate the procedural provisions and improve the procedural rules on intellectual property law, which should fully embody the principle of fairness and justice and improve the overall efficiency of administrative justice and justice protection; third, the country should accelerate to improve and expand the public policy on intellectual property; fourth, the country should make an amendment of judicial protection system and work mechanism for intellectual property and improve the administrative enforcement and judicial protection.
Professor Wu Handong also made a general interpretation on the topic of the building of IP power. He addressed, our country is transforming from the strategy of innovation-driven development to new normal of economic development, and then to supply-side economic structure reform, eagerly requiring the transformation of the country’s economic development mode. Intellectual property is a base of boosting the industry and an important factor to strengthen the country. The protection for it will contributeto the transformation of our country’s industries to intellectual property extensive industries. He thinks intellectual property extensive industries primarily focus on three ways: first, the extensity of intellectual property factor, which means the management relying on intellectual property, will make a development; second, the high dependence of intellectual property. That is, the existence of right is base and the protection of right is backing; third, the high-growth of the value of intellectual property which means that the intellectual property consists of the main body of wealth in the age of knowledge economy.
Keynote addresses to the conference
Joseph Straus, head of the Max-Planck Institute for Innovation and Competition of Germany, Professor Liu Chuntian, president of Intellectual Property Law Association, dean of Intellectual Property Academy of Renmin University of China, professor Nakayama Ichiro from Kokugakuin University of Japan, Guo Kaitian, senior vice-president of Tencent company, Park Rongji, senior professor of Dongguk University of South Korea, president of South Korea-China Intellectual Property Law Association, Mu Hong, president of Chofn IP company, as the invited guests, they delivered the excellent speeches.
Professor Joseph Straus gave a speech on taking the industry and national patent as an indicator for measuring the development. His speech is mainly based on a series of data comparisons, such as the statistic collected on the proportion of the research and development expenditure to the GDP at home and abroad, comparison of the quantity of patent application among five countries, comparison of patent research fields of top research and development invest agency in different industries complying with international standard industrial classification and the data of information communication technology which accounts for the biggest proportion in the global technology field.
Liu Chuntian raised ten questions to the theme of the conference: 1. the relationship between innovation and maintenance; 2. issues on intellectual property and civil law; 3. how to deal with the relationship between politics and business; 4. the relationship between statutory law and case law; 5. globalization and domestication; 6. the judicial protection and administrative enforcement; 7. the status quo of intellectual property judicial system and its development trend; 8. the demand for the objective development of our education on the intellectual property raised by the current situation during the period of transformation; 9. issues on the internationalization of intellectual property; 10. the diversified interest society and the scholar’s standpoint.
Professor Nakayama Ichiro from Kokugakuin University of Japan gave an emphasis on three issues of the protection of service invention. First, the reward of service invention. Different country has a different rule on the reward of service invention. Many companies think that only the service reward could bring an outstanding economic interest for the company, the company will give a reward to the employee; second, the historical evolution of service invention in Japan. The regulation of service invention has been existed in the early of 20th centuries. But the reward of service invention lacks of predictability. In addition, due to the information asymmetry between the employer and inventor, the current patent law replaces “reward” with “interests”, which is the reasonable interests rather than a reasonable reward; Third, the governmental guidance policy. In recent years, the government has issued many guidance outlines and blue papers on service invention and put forward the factors that influence the reasonable interests.
Guo Kaitian, senior vice-president of Tencent Company, delivered a speech on the status and prospect of internet content industry in China. He pointed out that at the base of the development in the past ten years, the internet has developed an internet industry of scale. Therefore, I would like to talk about the prospect of the content industry.
Park Rongji, professor of Dongguk University of South Korea, president of South Korea-China Intellectual Property Law Association, made a general introduction of obstacle factors for innovation in copyright law based on the research of copyright system and innovation in South Korea. He mainly talked about the significance and restrictive regulations of the moral rights of copyright, maintenance rights of identity, property rights of copyright.
Mu Hong, president of Chofn IP Company, deeply discussed the relationship among patent and science and technology and economy. First of all, he stressed that science and technology is the primary productive force. Every great growth or transformation of economy is driven by science and technology innovation as well as the active cooperation among inventors, scientists and research and development staff. Then, he analyzed the economic interests brought by patent for companies from the angle of economics. Lastly, he explained how to safeguard the company by applying the incentive mechanisms of intellectual property rights and intellectual property system.
Sub-Forum 1: The Construction of Intellectual Property System
In December 2015, “Several Opinions on The Building of Intellectual Property Power under New Circumstance”, released by the State Council, stated that the goal and direction of the development of intellectual property of our country at this stage are to transform our country from quantity of intellectual property to the quality of intellectual property. To achieve the goal, the acceleration of the construction of intellectual property system providing policy and system support for the development of intellectual property has become the common topic among legislature, judiciary, practice personnel and scholars. Focusing on the topic of the construction of intellectual property system, intellectual property workers in various fields from government, university, research agency and corporation made a wide and deep discussion on the current hot issues, which has an insignificant meaning to the improvement of intellectual property system of our country.
1, The guidance of cultural policy has become an inevitable trend
The improvement of intellectual property system cannot be achieved without the guidance of policy, law and regulation. Leaders and experts from government have brought up many suggestions. Rao Quan, head of Department of Policies and Regulations of Ministry of Culture, set forth four opinions about the three big problems of intellectual property existed in culture works in the strategy of the building of IP power. 1, strengthening the guidance of policy; 2, improving the service ability; 3, advancing the coordinated work; 4, gaining support from external resources. Yu Cike, head of Department of Copyright Administration of National Copyright Administration of China, thinks that we must work from the following two aspects to the building of copyright power. First, we need to establish a framework for the effective protection of copyright to protect the copyright in accordance with law, strict protection and moderate protection; second, we need to establish a framework for pushing the rapid development of copyright industry. Besides, we should improve the copyright law system, copyright enforcement system, copyright social service system and the system to cope with foreign-related copyright issues, laying equal stress on legislation and enforcement, service and regulation, home and abroad, offline and online, protection and development. Huang Qing, head of Department of Protection and Coordination of State Intellectual Property Office of China, said, to build the IP power, we should focus on three ways of environment, capability and performance and spare no effort to advance the transformation from quantity to quality, from big to strong; from the increasingly protection of intellectual property to the overall strict protection of it; from the transformation, application and single benefit to comprehensive benefits; from multi-leading of the management of intellectual property to relatively concentration; from active participation of international cooperation and communication of intellectual property to take the initiatives.
2, The amendment of Patent Law becomes the focus of attention
In December 2015, the office of state council initiated the amendment of Patent Law draft for public comments. It is the fourth revision of the Patent Law, which draws a wide attention from academic, judicial practice and business circles. Professor Zhang Ping, executive vice-President of Intellectual Property Academy of Peking University, shared her newest research results on the patent dilemma and responding system of internet open innovation. Combining with patent dispute prediction and liability identification of patent infringement of internet company, she made a brief but clear explanation about the vertically application as well as the law and system guarantee of the strategy of the open and innovation of intellectual property right. Wu Yan, senior engineer at Industry Development and Promotion Center of Ministry of Industry and Information Technology of China, made an explanation on the related problems of the establishment of the license of right. She pointed out, the application of patent is not only the goal of creative development, but also the important task of the system design of Patent Law. In addition, she also gave her advices for the amendment of Patent Law draft about adding a clause of annual fee deduction and deleting the provision that patentee shall clarify the royalties when they submit the application of license of right set forth in clause 1, article 82. Wang Meixin, a fellow of the Royal Society of Chemistry of UK and Professor at National Yunlin University of Science and Technology of Taiwan, Shen Dongxuan, president of Internet Division of Licensing Executives Society, they all made an analysis of business mode of intellectual property and operation mode of patent alliance, which have great referential significance for the intellectual property operation in our country. Liu Mingjiang, associate professor at Henan University of Animal Husbandry and Economy, made a concise evaluation about the revision in clause 1, article 83, set forth in the amendment of patent law draft. He talked about the licensee’s litigation status, preliminary temporary injunction, damages in the proceedings of patent infringement as well as some useful thinking.
3. Hard issues on the protection of IPR of sports events show
Since the dispute filed by Sina against Phoenix New Media on copyright infringement of Chinese Football Association Super League and unfair competition, the protection of IPR of sports events show has become the focus and hard issue of IPR. In this conference, intellectual property workers in different fields, combining with their own work, took a wide and profound discussion on relevant issues. Liu Youhua, associate-professor at Law School of Xiangtan University, deeply analyzed the copyright problems appearing in the broadcasting of sport events through steaming media, which could be looked as the challenges faced in the dissemination of works through steaming media. He also mentioned that we should learn from the classic cases of developed countries in the West, restoring a fair competition environment of the broadcast of sport events and weakening the administrative regulation. Shi Yueyang, deputy director of law affair of LETV, said, at present, the sport industry in China is generally growing well, but there are still many problems in practice. The prominent problems among them lie in three aspects. First, the dispute of the qualitative identification of object; second, the dispute of the way of protection; third, the dispute of the basis of right of claiming, which is the dispute between the right of communication and the broadcasting right of relevant information on the internet. Liu Zhengcao, director of right protection office of Tencent, expressed that “internet plus” expands the margins of emerging copyright industry like digital copyright. However, it also brings great challenges to us both in theory research and legal protection, such as the in-depth Hotlinking and aggregational service infringement.
The Sub-forum 2: The improvement of the intellectual property
protection system and mechanism
At the important stage of the implementation of country’s strategy of innovation-driven development, it is eager to take efforts to promote the improvement of the intellectual property protection system and mechanism. Taking the improvement of the intellectual property protection system and mechanism as the theme, experts in theoretical and practice field from home and abroad gathering here, correctly recognized the opportunities and challenges of the reform and development of intellectual property of our country from the overall situation of our national development and international vision. We not only pay attention to the judicial protection of intellectual property, but also explore the new field of the hot issues of protection of intellectual property, writing a new chapter in the international intellectual property protection system. The discussion of this forum shows the following four characteristics.
1．The judicial protection of intellectual property has obtained much attentions
In a macro viewpoint, the judicial protection of intellectual property is an important step of the country to implement the innovation-driven development strategy. In a micro view, the judicial protection of intellectual property is the last protective screen of the intellectual property protection system. Judicial protection should play a leading role in the legalization of intellectual property protection. We should actively promote the change that all cases concerning intellectual property right no matter what kind of civil case, criminal case or administrative case it is, it should be heard in intellectual property right court. In addition, we should improve the intellectual property protection mode by taking full use of each other’s advantages of administrative enforcement and judicial protection. Experts and scholars presented unanimously reaches an agreement that unified judicial judgment standard of intellectual property should be established so that it could better exert the influence of judicial system in building an innovative society.
2． The research of hot issues of intellectual property protection from a new view
Focusing on the problems and hot disputes, experts and scholars presented takes a targeted effort to deeply explore the current hot issues of intellectual property protection. Judicial adjudication of the operational mode of aggregator platform has arisen a heated discussion. Scholars made a deeply analysis of the non-applicability of the principle of technology neutrality, limitation of server principle and the feasibility of balance principle, rising a resonance among the guests. Experts and scholars have also exchanged their views on the scope of technical secrets and the unpublished knowledge identification, presenting a high value conclusion for reference.
3. Widening the international way of intellectual property protection
Many experts and scholars from China, South Korea, Japan and India have participated this forum. They launched an intense discussion on the intellectual property clause of TPP and made a deeply exchange of each country’s experience of intellectual property protection. Shi Wei, a distinguished professor sponsored by the program of The Recruitment Program of Global Experts at Nankai University, pointed out the reason that the United States advances the process of TPP is driven by its economy, public and foreign policy as well as the feedback of the independence of intellectual property of US. Scholars from South Korea, India and Japan strongly advocate that the communication and cooperation of intellectual property protection between countries should be strengthened in order to promote the great development of intellectual property protection around the world.
4. Correctly recognizing the opportunities and challenges of the reform and development of intellectual property in China
In facing the opportunities and challenges brought by economic new normal, we need to put into force the important step of building an innovative country and lay great important on improving the protection of intellectual property of innovation achievements made by inventors and innovation companies.
Sub-forum3: Trademark Protection and Brand Competition
Trademark, as a component of company’s brand that is an important sign for recognition, is a vital weapon for differing from other competitors and making a distinction. Trademark protection has become the priority of a company’s strategic brand management and the acquisition of competitive advantages in brand market. That is why the topic of trademark protection and brand competition is especially put forward in this forum. Experts in theoretical and practical field had a profound discussion on system construction of trademark protection, problems in judicial practice and industry operation of intellectual property, contributing their ideas for the brand strategy management of our country. This forum has the following four highlights.
1. Basic theory in trademark field has gained increasing attention
The current trademark protection system in our country is registration system. It has exerted huge effort in safeguarding trademark rights and maintaining the stability and harmony of companies. But, there are still some unhealthy phenomena, such as rush registration to trademark and hoard of registered trademark. Experts presented shared their views on the trademark registration system. They said, although this system is suitable to the basic conditions in China, we cannot neglect the situation of prior use of trademark. The aim of trademark law is to encourage people to actively foster goodwill rather than encourage people to take others’ goodwill by prior registration. How to balance the public interests and coordinate the conflict of rights of trademark is always the top debate of trademark protection. Experts and scholars have also expressed their opinions on this topic.
2. Hot and hard issues in judicial practice
According to the newest statistics unveiled by the Supreme People’s Court of China, trademark cases in judicial practice are mainly centered on the protection for rights owner. How to protect rights owner’s interests, how to identify trademark infringement and infringement defense, the concrete conditions for fair use. All those things are the typical problems in trademark cases. Taking the current hot case in trademark filed as an example, experts talked about their own opinions from practice experience and academic research on the determination of trademark infringement in judicial practice and the establishment of defense claim. Different ideas collide in here, promoting the further combination of theory and practice.
3. The construction of trademark protection system is presenting an all-dimensional integration
Based on the Trademark Law, experts have deeply analyzed the construction of trademark protection system. In addition, by analyzing the systems in Anti-Unfair Competition Law, copyright law and patent law, they discussed the feasibility of constructing a comprehensive trademark protection system. Wang Lianfeng is a professor at East China University of Political Science and Law and head of the Research Institute of Trademark Law. Taking the article 5 of the revised draft anti-unfair competition law for examination as an example, he analyzed the role of anti-unfair competition law in commercial mark protection. He suggests that it could make coordination in some relevant contents of anti-unfair competition law and trademark law. Li Shilin, the associate professor at School of Law of Huaqiao University analyzed if the “notice and takedown” rule is feasible in trademark law and how to improve this rule, giving a unique viewpoint.
4. Realistic analysis of the market-oriented operation and capitalization mode of the intellectual property right
Intellectual property right is a legal private right. Only through realistic transition and application could the legal private right become the realistic assets and useful productive force. From theoretical view, professor Llew Gibbons from the University of Toledo of US compares the technology and intellectual property as “uneasy marriage”. There are many uncertainties in the process of transformation from technology to intellectual property, then to wealth, concerning international rules, international law and relevant policies and regulations. There is a long way to go for the exploration of the transformation of intellectual property industry. From the practice experience, other scholars discussed the existed operation mode, such as the products produced by combining the trademark, patent with market and the two operational ways of market layout of trademark and patent, taking bitcoin, sovereign patent funds and jet plane of Honda of Japan for example. From those examples, they analyzed the achievements and shortcomings of the technology transformation. The transformation of technology of intellectual property right from private rights to concrete assets is still an important problem in the protection and innovation of intellectual property in the future.
Sub-forum 4: Review and preview of the Internet content industry over the past 10 years
Over the last 10 years, Internet content industry grows from nothing, then from weak to strong, which has become the core resource to push the revitalization of the industry of China. Nowadays, at the key stage of the rising of Internet industry, it is essential for us to look into the future of Internet industry while reviewing Internet content industry over the last 10 years. The development of Internet will inevitably bring right infringement, unfair competition and other issues. It is time to list those things about the protection of intellectual property of Internet content industry and the formulation of policies about the Internet industry competition on the agenda in order to explore a way for the future development.
1. The spring of “Internet plus” is approaching
At the beginning of the conference, Guo Kaitian, senior vice-president of Tencent, introduced the development trend of Internet in China. That is, the mobile Internet is becoming the most fundamental way for netizen to access to the Internet in China. Under the support of the national policy of “internet plus”, Internet content industry is wildly welcomed by Internet company and open platform is growing as the main Internet business mode. Then, he made a general introduction of the segments of content industry in China. Lastly, he prospected the future trend of Internet content industry in China. The content distribution mode will be greatly changed. They will be distributed online. The spread of content will be entirely beyond offline mode. The center of content industry will change from the right of reproduction to the right of communication. Streaming media consuming will be the leading consumption pattern.
Si Xiao, the general secretary of Tencent Research Institute, said that Internet impressively widens the space of imagination and market opportunities of content industry, changes the ways of production, communication and consumption of quality copyrighted content. Tencent has worked in this field for many years. At the same time of creating its own value, Tencent also promotes the development of the interactive entertainment industry.
Tao Jun, a judge from Beijing High People’s Court, firstly introduced the characteristics of the development of the internet business mode in his speech. He said, the development of Internet business mode shows the following characteristics. The scale economy pushes the upgrade of industry; the advance of technology promotes the innovation of mode; the diversification of subject leads to the difference of mode, which cause the conflicts between the lag of law and the innovation of industry raised in the dispute concerning the internet unfair competition. Besides, the principle regulation in the provision of anti-unfair competition increases the uncertainties of judicial practice. Finally, to solve those problems, he brought up the path design. Those measures include taking the “trial guide” as the guide, designing applicable regulation, exerting the internal and external coordination of law, easing the burden of proof, increasing the compensation and so on.
Shi Bisheng, lawyer at King & Wood Mallesons, a law firm, made a comment on article 13 of the Revised Draft of Anti-Unfair Competition Law for Examination which is exclusively drafted for internet issues from the viewpoint of judicial application. From the basic thinking of the application of anti-unfair competition law, he employs the incentive analysis method or consequence analysis method, which is an economic analysis method to provide some concrete suggestions for the reversion of article 13.
2., Review and preview of the legalization of online video
Lu Weina, head of the Research Institute of Interactive Entertainment of iResearch, reviewed the process of legalization of online video according to the change of the scale of online video market, market structure, the development of piracy and the promotion of the legalization. At the same time, she also analyzed the achievement of the legalization of online video and the influence of piracy.
According to the statistics, by 2015, the market scale of online video has reached more than 40billion, rising 61.2% over the last year. The overall market scale of online video maintains rapid growth. Moreover, some new growth point is emerging. First, market for paid video user is growing fast under the promotion of video companies. The number of paying user is growing dramatically. Second, the commoditizationof video advertisement appears. According to the varied demand of advertiser and the different user group, video companies has developed innovative marketing products with different types and has realized the accuracy and innovation of video advertisement, promoting the new increase of video advertisement; second, the online video industry is pursuing the perfect in its content. IP strategy, content operation as well as the promotion for self-made content, all those leaving more imaginary space for profit.
Zhang Qinkun, deputy secretary-general of Tencent Research Institute expressed that although there are various modes of online video piracy, there is a representative model in different period of different time. The appearance and development of new privacy mode doesn’t mean the disappearance of the existed modes. As the popularization of cloud storage, network TV-set top box, mobile terminal aggregation APP, the situation of network video piracy is becoming more complicated. If things go like this, the ecology of authentic network video industry will be seriously undermined. If this action was intimated, no company in the entire industry would purchase copyright but steal the link, which will at last lead to the detriment of the legal interests of producers of video, proprietors and the market order of original established by companies for many years. This kind of situation will finally lead to a vicious circle liking the bad money drives good money out of circulation.
Professor Xiong Qi from School of intellectual property rights of ZUEL, thinks that the industry and system share a relationship of mutual constraint and promotion. He reviewed the different development process of legislation, enforcement and justice of Internet copyright protection, then analyzed the difference of business pattern between Internet service provider and Internet content provider. In recent years, the emerging of aggregation platform and hotlink break the limitation between Internet service provider and Internet content provider. So, the rights of the communication of Internet information need to be redefined. At last, he thinks that new problems could be solved through the development of industry itself.