Stratic Advice on Intellectual Property Investment in Asia
苏冉
IssueⅠ: Legal framework of protection on software copyright in P.R.C and Singapore
A) P.R.C
In conjunction with China’s astonishing economic growth over the past two decades, especially after the entrance to WTO, China has steadily improved its legal framework on Software Copyright by checking and clearing large-scale regulations both in domestic and international activities.
Frankly speaking, China joined in three vital international treaties relate to copyright: the Berne Convention , TRIPs and Universal Copyright Convention. Moreover, China and US signed MOU especially for software in January 1992. All these Conventions are regarded as a milestone to reflect China’s dramatic promotion and strong determination to build a satisfactory environment for foreign software investors.
Similarly to US, P.R.C has chosen to protect software under copyright law rather than trademark, patent, or contract law. One year after Copyright Law Amendment in 2001, Chinese Council corrected its software-specific “Computer Software Protection Rules” , to deal with new problems prevailing in software protection nowadays. Under the Rule, software is defined as two particular types: computer program and their relevant documentation. Furthermore, since MOU came into force, computer software is protected as a literary work. Third, according to the conditional nation treatment here, foreigners are required to comply with “connecting factor”, to sum up, either first publication or nationality/residence of the author in China or in any of these countries ,between the work and China or a country who is a member of the WTO, or the Berne Convention. So, despite your software products first being published in US, you can still enjoy the original copyright and the legal protection on in China.
Except from the above rules, other laws also have supportive stipulation on the protection of software copyrights as follows:
(a)The General Principle of Civil Law, the country’s current basic civil law, has authorized the author’s copyright in general;
(b)The Criminal Code has a section of articles referring to piracy offences, with “Dual Punishment Principle” in front of copyright encroachment;
(c)The newly amended Foreign Trade Law (adopted in Feb).
B) Singapore
The general legal framework of software copyright protection in Singapore is almost the same as P.R.C, but with some characteristics of its own. Actually, different from P.R.C based on Civil law background, laws and litigations in Singapore are principally modeled on the English system under Common law system till nowadays. Pursuant to certain legal revolutions, modern copyright legislation contains the same international conventions as P.R.C: the Berne Conventions, Universal Copyright Convention, and TRIPs. But, Singapore signed ASEAN Framework on Intellectual Property Cooperation and the WIPO Copyright Treaty as a member of ASEAN. Turning to its domestic laws, the latest Copyright Act 1999(revised edition) is the principle one, with some other relevant regulations for enforcement. And it also definites software program into literary work under protection. In addition, Singapore owes large resources of case laws so as to make its legal conditions more particular than that in P.R.C.
The amended Act is first purposed to address issues arising from the use of copyright materials in a digital environment, especially provide legal certainty for the use of copyright in cyberspace. For instance, the extension of concept “reproduction” .Second, the Act plays another role in enhancing performer’s rights, offering two new defenses to allegations of copyright infringement. Therefore, merely surfing the Web doesn’t constitute software copyright infringement, if it’s necessary to browse. Even , Singapore passed the Electronic Transactions Act 1998 to give statutory protection of Network Service Providers. At these points, Singapore seemingly forwards a step further than P.R.C, declining its attention on encouraging the growth of a knowledge-based economy and promoting E-commerce and creative innovations. Last but the most significant point, Singapore and the United State signed a bilateral free trade agreement (FTA) on May 6th 2003, and entered it into force from January 1st 2004. Virtually, this is the first FTA between US and an Asia country .So it’s doubtlessly the greatest advantage for Singapore to attract US investors, apart from other Asian countries. They would encourage the entrepreneurship, investment, job creation and growth in our own technology, science and creative industries as well as set the stage for Singapore’s emergence as a global IP hub.
Issue Ⅱ: Implementation on Software Copyright Law in P.R.C and Singapore
Sufficient and effective enforcement is more useful and practical than recorded documents, with no exception to P.R.C and Singapore.
(ⅰ)Role of Government
A)P.R.C
Learned from Annual Report on the Protection of Intellectual Property Right in China during the past 5 years by the head officer Jingchuan Wang in TableⅠ , you can see copyright administration at various levels make remarkable progress in encouraging innovation, promoting industrial development, regulating market order, and even improving the opening-up policy.
As a matter of fact, the People’s Courts, the People’s Prosecution Department, National Copyright Administration Centre and Public Security compose the backbone of the implementation of copyright law in China with civil remedies, criminal sensations and administrative punishments, such as fine. And border enforcement assistance to copyright owners by the Customs and Excise Department is also available.
TableⅠ:
The Administration on Software Copyright In P.R.C
Year Registration Prosecute Cases Resolved Cases Resolved Cases Rate Seized Pirates(M) Top 1 Region of Piracy
1999 1,041 1,616 1,515 93.75% 20.14 Shenzhen
2000 3,300 2,457 1,980 95.30% 32.60 Guangdong
2001 4,620 2,683 2,327 97.52% 61.75 Guangdong
2002 4,860 2,740 2,604 99.02% 67.90 Guangdong
2003 5,020 6,120 5,793 97.64% 73.28 Beijing
Statistics from NCAC (National Copyright Administration Centre
Fortunately, China has begun to regard software as an industry with strategic significance while formulating effective policies in areas including anti-piracy and anti-monopoly. To adapt to the legal framework, China has shifted its attention upon educating software users and strengthening the law. “Government departments are being asked to show a good example in using copyrighted software only and make software budget each year”. For example, Beijing, Shanghai, Guangdong buy over 3,000 software products every year through public bidding. What’s more, the National Software Government Procurement Regulation will probably act in the near future. Eventually, Chinese government is trying to treat all software companies equal in P.R.C, no matter domestic or foreign countries.
Nevertheless, given China’s vast geography and population, it would be an awesome task for the central government to manage pirating activities throughout the entire country. On the other hand, due to lack of resources, the lack of judicial expertise, the unpredictability of trial outcomes, and large costs, litigation in Chinese courts remains a risky and expensive response to Chinese copyright violations. Another administrative difficulty arises from the increasing decentralization of the Chinese government. Much of China's copyright enforcement takes place at the provincial and local levels; the national government lacks the resources and control to effectively monitor nationwide pirating activity and to impose national enforcement policies.
B) Singapore
Switching to Singapore, the Intellectual Property Office of Singapore (IPOS) is its senior administration department, and it leads Singapore to the success in copyright infrastructure. Singapore has announced a number of meaningful standards through requirements for tough penalties to combat piracy and counterfeiting, including, in civil cases, procedures for seizure and destruction of pirated and counterfeit products, and a requirement to provide for statutory and actual damages to remedy such practices. There has been a rule in Singapore that government could only allowed to use copyrighted software since 1996. In order to obtain efficiency, Singapore maintain civil remedies and criminal penalties for circumvention of technology protection measures, and it also has in place implementation allowing for border seizures of infringing articles by customs officials. For example, the copyright infringement is punished with a maximum fine of S$100,000 or five years’ imprisonment or both. So, in comparison to P.R.C, the least time for imprisonment is shorter .But due to the judge’s free power under common law system, the court is increasingly harsh in their sentencing in respect of infringement of copyright. In other words, criminal obligation will become heavier with more limitation in Singapore.
In the contrast with Chinese administrative punishments, Singapore has a large scope of interlocutory remedies to fill in the blank area between civil remedies and criminal sensations, and they are three main types:
(a) the interlocutory injunction---It is an injunction obtained before the trail often with the main objective of maintaining the Stats quo between the parties pending the outcome of the trail. The interlocutory injunction may be in a mandatory or prohibitory form.
(b) the Anton Piller Order---It’s developed from Anton Piller KG v.Mfg Processes Ltd as a safeguard system of evidence for avoiding the defendant to destroy and hide the evidence of copyright infringement, if the plaintiff shows an extremely strong prima facie that his right are being interfered with, or the damage, potential or actual are very serious to the plaintiff, or even there must be clear evidence to proof the defendants faults.
(c) the Norwich Pharmacal Order.---The further expansion of Anton Piller Order to raise over the privilege against self-incrimination from Rank Film Distributors Ltd v. Video Information Centre Virtually . However, case law in Singapore has now established that where the privilege against self-incrimination exists, an undertaking from the plaintiff/ applicant not to use the information obtained in criminal proceedings is not an adequate safeguard for the defendant’s privilege against self-crimination. Singapore courts have also held that they don’t have the power to order that the information be inadmissible in any subsequent criminal prosecution.
Relying on common law foundation, people in Singapore prefer to a lawsuit rather than mediation while more mediation in P.R.C, once in the face of a dispute. Consequently, it would like to be more time and energy consuming somehow, for it costs at least one year of a civil procedure in the High Court of Singapore.
Last but not least, along with legsilation changes, Singapore Administration departments are also mounting a public campaign targeting both consumers and businesses to increase their awareness on the benefits and other implications of the new laws. There’s broad-based public awareness initiatives like the HIP Alliance’s year-long anti-piracy campaign? “The Real thing is the Right thing”, and brain Wave, Singapore’s first reality television show on IP.
(ⅱ)Role of Anti- Piracy Organizations
Both P.R.C and Singapore joined in Business Software Alliance (BSA) ,and WIPO several years ago and established domestic anti-piracy alliances at their own respective locality. The alliances played an active part in combating piracy and protecting the interests of right holders. They always declare laws, promulgate routine reports of current protection on TV, newspapers, and Website and show different points between pirate and authorized products. In the contrast with P.R.C, Singapore has other special disputes resolution organs under its common law system, including the small claims tribunals, E-commerce disputes centre. What’s more, Singapore collaborates with other ASAEN countries to harmonize IP rights with international and regional organizations such as the Office of Harmonization of the Internal Market (OHIM), the European Union, the French National Office of Industrial Property, and IP Australia.
(ⅲ)Introduction of Judgments in Precedent Cases
A) P.R.C
In a landmark verdict on April 16, 1996 against Beijing JuRen Computer, the Beijing No.1 Intermediate Court delivered judgment in favor of the Business Software Alliance (BSA) upholding the plaintiffs' intellectual property rights and ordering the defendant to (a) publicly apologize to the plaintiff; (b) pay over RMB600,000 (US$70,000) in damages, including court costs and accounting costs; (c) pay additional fines directly to the court. The court also ordered the defendant to undertake not to infringe intellectual property rights in the future, and the law enforcement officials to confiscate all computers and software seized during the raid on the defendant's premises. In another case, the same court rendered a judgment against Beijing Giant Computer Co. for software copyright infringement. These were the first cases decided in favor of a US plaintiff in a Chinese court.
汉中市人民政府办公室关于印发汉中市城镇职工超大病补充医疗保险管理试行办法的通知
陕西省汉中市人民政府办公室
汉政办发〔2008〕79号
汉中市人民政府办公室关于印发汉中市城镇职工超大病补充医疗保险管理试行办法的通知
各县区人民政府，汉中经济开发区管委会，市政府各工作部门、直属机构：
《汉中市城镇职工超大病补充医疗保险管理试行办法》已经市政府同意，现印发给你们，请结合实际，认真贯彻执行。
二○○八年七月二十九日
汉中市城镇职工超大病补充医疗保险
管理试行办法
第一条 为切实解决城镇职工基本医疗保险参保人员超过大病统筹医疗保险基金最高支付限额以上部分的医疗费用，根据《国务院关于建立城镇职工基本医疗保险制度的决定》（国发〔1998〕44号）和《汉中市人民政府关于印发〈汉中市城镇职工基本医疗保险实施方案〉及十项配套规定的通知》（汉政发〔1999〕64号）的有关规定，制定本办法。
第二条 凡同时参加了城镇职工基本医疗保险和大病医疗保险的参保人员，可享受超大病补充医疗保险待遇。
第三条 市社会保险业务经办机构作为超大病补充医疗保险的投保人，从参保单位和参保人员当年缴纳的120元大病统筹基金中提取30元作为超大病补充医疗保险费，统一向承办大病补充医疗保险的商业保险公司投保；符合本办法第二条的参保人员为被保险人。
第四条 被保险人的权利与义务：（一）参保单位和被保险人有按时足额缴纳大病统筹基金的义务；（二）参保单位和被保险人按规定缴纳城镇职工基本医疗保险保险费和大病统筹金后，被保险人享有超大病补充医疗保险待遇的权利；（三）参保单位和被保险人不按时足额缴费者，被保险人不得享受超大病医疗保险待遇。
第五条 市社会保险业务经办机构有向参保单位和被保险人征收大病统筹基金的权利；有向商业保险公司按时缴纳保费的责任。承办超大病补充医疗保险的商业保险公司有向被保险人（投保人）收取保费的权利，有承担被保险人享受超大病补充医疗保险待遇的义务。
第六条 超大病补充医疗保险医疗费，是指被保险人在一个参保年度内，超过大病医疗保险统筹基金最高支付限额以上的、符合城镇职工医疗保险报销范围的医疗费用。
第七条 被保险人在一个参保年度内发生超过大病医疗保险最高支付限额的医疗费用时，应在医疗终结后30日内由被保险人或亲属提出申请，填写《汉中市城镇职工超大病补充医疗保险申请表》；同时提供医疗机构出具的诊断证明、医疗费发票（原件及复印件）以及住院费用结算清单等相关资料，报医疗保险经办机构审核。经审核后由医疗保险经办机构按月汇总后转交给承办超大病补充医疗保险的商业保险公司，保险公司应在15个工作日内向医疗保险经办机构办理给付划款手续。由医疗保险经办机构兑付被保险人或被保险人亲属。超大病补充医疗保险给付标准暂定为：退休人员95%，在职职工90%。
超大病补充医疗保险给付的最高限额为每人每年度8万元。
第八条 超大病补充医疗保险的缴费标准、给付比例和最高给付限额，可根据超大病补充医疗保险基金年度收支执行情况进行调整。调整办法由市劳动保障行政部门商市财政部门确定。
第九条 劳动保障、财政部门和商业保险公司要加强协作，密切配合。充分发挥商业补充医疗保险的优势，提高保障水平，切实为降低参保职工大病患者个人负担发挥积极作用。
第十条 本办法由市劳动和社会保障局解释。
第十一条 本办法从2008年1月1日起先在市本级试行，待条件成熟时在全市推行。
