___A challenge and new moment for relations between China and the EU
I. IntroductionThe economic relationship between China and the EU has been considerably reinforced since China’s Reform and opening in 1980s, especially after the entrance of China into WTO in 2001. The two world-influencing entities have more and more incorporated as an economic interest community.
However, the conflicts from protection of Intellectual Property Rights between them play as an unharmonious tone, which has slowed down the pace to a higher degree of cooperation and common prosperity.
There are criticisms to China’s legal protection system of IPR from the EU and complains on exorbitantly high technical standards of the EU from China, which result in IPR problems more and more complex and difficult to resolved.
The objective of this article is to find out what are essential reasons for conflicts and try to propose some doable means to eliminate these conflicts.
II. Economic relationship and IPR conflictsChina has developed more and more influentially important economically and politically in the world and the EU offers the largest market in the world, which enjoys world leadership in key technologies and skills[1].
The EU and China benefit from globalization and share common interests in its success. On the other side, it presents challenges to both and brings further responsibilities, in which, IPR protection disputes shows a headache for both presently.
A position paper[2] edited and published by European Union Chamber of Commerce in China states that 70% of EU enterprises investigated thought that in the past year there had not been any improvement of China’s performance of IPR law. At the end of June 2004, the EU wrote in the Accession Position Paper about market status of China that there existed leaks in the system of protection of IPR and related products, which means that the EU has linked IPR of China protection system with the market status. EU trade Chief Peter Mandelson noted that even CCTV of China trenched IPR when using materials without paying anything[3].
III. Underlying reasons for conflictsDisputes between China and the EU in respect of IPR originats superficially from different level of protection, but we should never overlook the essence of IPR and the potential crisis and threats that, which are underlying reasons, it may bring to the balance of economic powers, common economic prosperity in between.
1. IPR: new technical barriers to trade(TBT)A new trend of combination with IPR is the main feature of TBT China is confronted presently from the EU.
IPR related TBT has brought a great deal of restrictions to development of firms and national economy of China. For example, on 31 April 2002, A Child-Resistant Bill (CR Bill) was passed by the EU Parliament, which provided that cigarette lighters at price of less than 2 Euro should not be permitted to enter into the EU market without child-resistant equipments[4]. As the same, Chinese companies had to pay a great sum of fees to use the relevant patents. What’s more, on 13 February 2003, the EU passed two Directives, the WEEE[5] and the RoHS[6], of which the implementation brought an extremely negative influence to the exportation of such products of China.
The EU find a new approach to get maximum interest by transforming technology to patent, patent to standard, and standard to monopoly.
2. IPR and antitrust lawFrom the perspective of economics, IPR is a temporary monopoly on the use or exploitation of that good from invention and innovation[7]. However, competition is a basic mechanism of the market economy and needs suppliers to be independent of each other, each subject to the competitive pressure exerted by the others. In area of international trade, emphasizing IPR monopoly rights too much will restrict free competition.
At present, there has not been an intact antitrust law yet in China. It is not turgidly speaking that IPR related antitrust law which is suitable for requirements of development of Socialist Market Economy and future era of knowledge economy is at the bud stage, or is nearly blank.
Comparatively, there has been an effective and completed antitrust legal system in the EU. The antitrust area covers two prohibition rules set out in the EC Treaty. First, agreements between two or more firms which restrict competition are prohibited by Article 81 of the Treaty. Second, firms in a dominant position may not abuse that position[8]. The EU antitrust provisions are applied in more and more ECJ cases and Commission decisions related with IPR in recent years. For example, on June 15, 2005, the European Commission ended its long-running investigation of AstraZeneca's behavior on the "proton pump inhibitor" market by imposing fines of €60 million ($72 million), which is a major step in the development of the way the antitrust rules are applied to IPR in the EU[9].
3. IPR versus State economic securityThe IPR system takes effect of almost every area for a State at different level as a kind of legal system, which is able to facilitate or conflict with State interest and economic security in great deal, especially for the more vulnerable developing countries.
It is proved practically that multinational corporations have played a positive part in development of China, and made extrusive contribution for economic prosperity and cultivation of persons with ability[10]. Obviously the influence of the battle of IPR to the State security is unbearable to be ignored, which deals with more all-win and common prosperity than counterwork. In particular for China, the greatest developing country with considerable capability of innovation, IPR protection should be considered as a means to boost up state economy and enrich technical strength.
IV. Cooperation and dialogs between China and the EUThe EU has been holding a more relatively kindly attitude than others such as the US and Japan. Cooperation and dialogs have been launched from the end of 1990s and are working comparatively favorably nowadays.
China-EU Cooperation program on IPR was signed by Chinese government and the EU Commission on 7 May 1996, in which the EU would invest 4.8 million Euro to provide necessary funds for IPR related institutions of China, for example, universities, academies, governmental offices and other relevant institutions.
Yi Xiaozhun, Vice Minister of Commerce of China, met Benita Ferrero-Waldner, European Commissioner for External Relations and European Neighborhood Policy, in Beijing on Jan. 17, 2007, and signed the agreement on finance for 3 cooperation projects: China-EU law school, Second Stage of China-EU IPR Protection, which will emphasize on improvement of effectiveness of IPR protection in China, and the China-EU Business Management Training[11].
In recent years, there have been a number of important economic dialogues covering IPR, market access, and general product and food safety, etc, established between the EU Commission and China. Especially, on 30 October 2003, both sides reached an agreement on a structured dialogue related with IPR, where all-encompassing issues, bilateral and multilateral, related to the protection and the enforcement of IPR can be discussed.
Dialog mechanism helps to promote regulatory cooperation and convergence and is important in managing an increasingly complex relationship.
V. Further essential measures for cooperationTo solve IPR problems thoroughly and essentially, reforms and constructions , under the dialog regime, in the following areas should be paid more attention to.
First, Elimination of IPR technical barriers. IPR related technical barriers are being utilized by the EU as a favorable trade weapon to defend its economic interest. A crucial measure to be adopted by China and the EU for harmonizing conflicts caused by IPR related TBT has been put on the desks of the two economies, as not only China will be suffered by such trade obstacles, the EU will be encountered the same question along with technical development of China and gradually deepened relation between China and the EU.
Second, perfect antitrust law. Antitrust law, namely a flawless antitrust code, is crucial and indispensable for China in which all rules should be applicable to IPR and there should be a suit of effective administrative structure for management and implementation. Antitrust law, as closely related with economy, will be challenged by knowledge economy and enriched by IPR, which pressurizes every developing country to perfect domestic antitrust law to maintain internal market order.
Third, Establishment of IPR security system under WTO. Article 73 of TRIPS Agreement regulates exceptional clauses of security, which is initially established for developed countries to blockade technologies towards developing countries[12], but, on the other side, they can also assistant developing countries like China to establish security system of IPR and resolve specific problems in the specific period. A flawless security system is the premise of fair trade between China and the EU.
VI. ConclusionIPR has become the central issue for economic and trade relations between China and the EU, which is a challenge to relationship between China and the EU. However, a fair and effective resolution will bring this partnership into a new stage.
Taking long views, on basis of continuing deepening full-scope strategic partnership, both China and the EU should, obeying the legal framework of TRIPS, by dialogs, negotiation, consultation and further understanding and trust, examine strictly behaviors of IPR tort and abuse, take material steps to eliminate IPR related TBT, put an end to monopolies on technical trade, and protect respective state interest and economic security, especially emphasizing on interest of China as a developing country to realize a balance between the two economies, accordingly, bringing along co-prosperity of China and the EU.
REFERENCESl Scholarly Treatise
Zheng Chengsi, To Discuss IPR. Law Press, Beijing. 1988.
Liu Maolin. Economic analysis of IPR, Law Press, December 1996.
David I. Bainbridge. Intellectual property. Harlow : Longman, 2002.
Rationality, Crisis and Future Model of IPR. Edited by Li Yang. Beijing. Law Press. 2003.
TRIPS and fronter issues of IPR protection in China. Edited by Tang Anban. Beijing. Law Press. 2004.
Xue Hong and Zheng Chengsi. Chinese intellectual property law in the 21st century. Hong Kong : Sweet & Maxwell Asia, c2002.
Global intellectual property rights : knowledge, access, and development. Edited by Peter Drahos and Ruth Mayne. England. Oxford, 2002.
Chen Meizhang, Facilitation of Chinese patent system to technical improvement and economic development. Research on Patent Law. IPR Press, December,1999.
l Scholarly Essay
Shahram Shoraka. World Trade Dispute Resolution and Developing Countries: Constructing a Framework for Fair Adjudication in the WTO. MJIEL. Vol. 3. Issue 2 . 2006.
Wesley A. Cann. Creating Standards and Accountability for the Use of WTO Security Exception: Reducing the Role of Power based Relations and Establishing a New Balance between Sovereignty and Multilateralism. Yale Journal of International Law. Vol. 26(2001). No.4. pp413-485.
Zhang Biwu. A comparison of TRIPS with ole and new legal system of IPR in China.China Science and Technology Information. Feb, 2006.
Wang Hong. IPR protection and free competition. Mediation, Arbitration and Litigation. Vol.16. No.93. pp53-55.
Xu Xiangming. Antitrust control to abuses of IPR. Journal of Huaibei Coal Industry Teachers College, Vol.25 No.5, Oct.2004.
Xu XiuXia, Influence and countermeasure of IPR protection of China after entrance into WTO. Min Bai Study. 2001(5).
Xiao Feng. An analysis of actuality and motivated power of technical development in China. Future and Development. 2001(4).
Zhang Zhicheng. Comments on IPR strategy of multinational corporations, IPR Review of Peking University. Col.3. Law Press. August, 2003.
l Reports
Integrating Intellectual Property Rights and Development Policy.Report of the Commission on Intellectual Property Rights of the UK. Published in London. November 2002 (2nd Edition). Available on http://www.iprcommission.org/.
European Antitrust Review. Prepared by Gibson, Dunn & Crutcher’s European antitrust ractice Group april 2005 - april 2006. Published in October 2006.
Competition Law-Antitrust law and policy in a global marketinsight,An effects-based approach to technology transfer agreements.By David Wood and Isabel Davies.published in the May 2004 issue of Competition Law Insight.
Strengthening Protection of Intellectual Property in Developing Countries.World Bank Discussion Paper(sWDP-112). Edited by Wolfgang E. Siebeck. First printed in December 1990. Washington, D.C..
l Website
Ministry of Commerce of PRC: http://www.mofcom.gov.cn/
The EU Chamber of Commerce in China: http://www.europeanchamber.com.cn/
EUR-Lex: http://eur-lex.europa.eu/en/index.htm
--------------------------------------------------------------------------------
[1] EU – China: Closer partners, growing responsibilities. COM (2006) 632 final.
[2] 2004 European Business In China Position Paper
[3] See http://www.europeanchamber.com.cn/
[4] See Child-resistance for lighters. Safety requirements and test methods, EN 13869:2002
[5] Waste Electrical and Electronic Equipment Directive . Directive 2002/96/EC.
[6] Restriction of Hazardous Substances Directive . Directive 2002/95/EC.
[7] Mark A. Lemley, "Property, Intellectual Property, and Free Riding" (Abstract); see Table 1: 4-5.
[8] See Article 82 of the EC Treaty.
[9] See European Commission Raises Stakes in IP/Antitrust Battle, available on http://www.gibsondunn.com/.
[10] Zhang Zhicheng. Comments on IPR strategy of multinational corporations, IPR Review of Peking University. Col.3. Law Press. August, 2003.
[11] See website of ministry of commerce of the PRC, http://www.mofcom.gov.cn/.
[12] Wesley A. Cann. Creating Standards and Accountability for the Use of WTO Security Exception: Reducing the Role of Power based Relations and Establishing a New Balance between Sovereignty and Multilateralism, Yale Journal of International Law, Vol. 26(2001), No.4,pp413-485.
I. IntroductionThe economic relationship between China and the EU has been considerably reinforced since China’s Reform and opening in 1980s, especially after the entrance of China into WTO in 2001. The two world-influencing entities have more and more incorporated as an economic interest community.
However, the conflicts from protection of Intellectual Property Rights between them play as an unharmonious tone, which has slowed down the pace to a higher degree of cooperation and common prosperity.
There are criticisms to China’s legal protection system of IPR from the EU and complains on exorbitantly high technical standards of the EU from China, which result in IPR problems more and more complex and difficult to resolved.
The objective of this article is to find out what are essential reasons for conflicts and try to propose some doable means to eliminate these conflicts.
II. Economic relationship and IPR conflictsChina has developed more and more influentially important economically and politically in the world and the EU offers the largest market in the world, which enjoys world leadership in key technologies and skills[1].
The EU and China benefit from globalization and share common interests in its success. On the other side, it presents challenges to both and brings further responsibilities, in which, IPR protection disputes shows a headache for both presently.
A position paper[2] edited and published by European Union Chamber of Commerce in China states that 70% of EU enterprises investigated thought that in the past year there had not been any improvement of China’s performance of IPR law. At the end of June 2004, the EU wrote in the Accession Position Paper about market status of China that there existed leaks in the system of protection of IPR and related products, which means that the EU has linked IPR of China protection system with the market status. EU trade Chief Peter Mandelson noted that even CCTV of China trenched IPR when using materials without paying anything[3].
III. Underlying reasons for conflictsDisputes between China and the EU in respect of IPR originats superficially from different level of protection, but we should never overlook the essence of IPR and the potential crisis and threats that, which are underlying reasons, it may bring to the balance of economic powers, common economic prosperity in between.
1. IPR: new technical barriers to trade(TBT)A new trend of combination with IPR is the main feature of TBT China is confronted presently from the EU.
IPR related TBT has brought a great deal of restrictions to development of firms and national economy of China. For example, on 31 April 2002, A Child-Resistant Bill (CR Bill) was passed by the EU Parliament, which provided that cigarette lighters at price of less than 2 Euro should not be permitted to enter into the EU market without child-resistant equipments[4]. As the same, Chinese companies had to pay a great sum of fees to use the relevant patents. What’s more, on 13 February 2003, the EU passed two Directives, the WEEE[5] and the RoHS[6], of which the implementation brought an extremely negative influence to the exportation of such products of China.
The EU find a new approach to get maximum interest by transforming technology to patent, patent to standard, and standard to monopoly.
2. IPR and antitrust lawFrom the perspective of economics, IPR is a temporary monopoly on the use or exploitation of that good from invention and innovation[7]. However, competition is a basic mechanism of the market economy and needs suppliers to be independent of each other, each subject to the competitive pressure exerted by the others. In area of international trade, emphasizing IPR monopoly rights too much will restrict free competition.
At present, there has not been an intact antitrust law yet in China. It is not turgidly speaking that IPR related antitrust law which is suitable for requirements of development of Socialist Market Economy and future era of knowledge economy is at the bud stage, or is nearly blank.
Comparatively, there has been an effective and completed antitrust legal system in the EU. The antitrust area covers two prohibition rules set out in the EC Treaty. First, agreements between two or more firms which restrict competition are prohibited by Article 81 of the Treaty. Second, firms in a dominant position may not abuse that position[8]. The EU antitrust provisions are applied in more and more ECJ cases and Commission decisions related with IPR in recent years. For example, on June 15, 2005, the European Commission ended its long-running investigation of AstraZeneca's behavior on the "proton pump inhibitor" market by imposing fines of €60 million ($72 million), which is a major step in the development of the way the antitrust rules are applied to IPR in the EU[9].
3. IPR versus State economic securityThe IPR system takes effect of almost every area for a State at different level as a kind of legal system, which is able to facilitate or conflict with State interest and economic security in great deal, especially for the more vulnerable developing countries.
It is proved practically that multinational corporations have played a positive part in development of China, and made extrusive contribution for economic prosperity and cultivation of persons with ability[10]. Obviously the influence of the battle of IPR to the State security is unbearable to be ignored, which deals with more all-win and common prosperity than counterwork. In particular for China, the greatest developing country with considerable capability of innovation, IPR protection should be considered as a means to boost up state economy and enrich technical strength.
IV. Cooperation and dialogs between China and the EUThe EU has been holding a more relatively kindly attitude than others such as the US and Japan. Cooperation and dialogs have been launched from the end of 1990s and are working comparatively favorably nowadays.
China-EU Cooperation program on IPR was signed by Chinese government and the EU Commission on 7 May 1996, in which the EU would invest 4.8 million Euro to provide necessary funds for IPR related institutions of China, for example, universities, academies, governmental offices and other relevant institutions.
Yi Xiaozhun, Vice Minister of Commerce of China, met Benita Ferrero-Waldner, European Commissioner for External Relations and European Neighborhood Policy, in Beijing on Jan. 17, 2007, and signed the agreement on finance for 3 cooperation projects: China-EU law school, Second Stage of China-EU IPR Protection, which will emphasize on improvement of effectiveness of IPR protection in China, and the China-EU Business Management Training[11].
In recent years, there have been a number of important economic dialogues covering IPR, market access, and general product and food safety, etc, established between the EU Commission and China. Especially, on 30 October 2003, both sides reached an agreement on a structured dialogue related with IPR, where all-encompassing issues, bilateral and multilateral, related to the protection and the enforcement of IPR can be discussed.
Dialog mechanism helps to promote regulatory cooperation and convergence and is important in managing an increasingly complex relationship.
V. Further essential measures for cooperationTo solve IPR problems thoroughly and essentially, reforms and constructions , under the dialog regime, in the following areas should be paid more attention to.
First, Elimination of IPR technical barriers. IPR related technical barriers are being utilized by the EU as a favorable trade weapon to defend its economic interest. A crucial measure to be adopted by China and the EU for harmonizing conflicts caused by IPR related TBT has been put on the desks of the two economies, as not only China will be suffered by such trade obstacles, the EU will be encountered the same question along with technical development of China and gradually deepened relation between China and the EU.
Second, perfect antitrust law. Antitrust law, namely a flawless antitrust code, is crucial and indispensable for China in which all rules should be applicable to IPR and there should be a suit of effective administrative structure for management and implementation. Antitrust law, as closely related with economy, will be challenged by knowledge economy and enriched by IPR, which pressurizes every developing country to perfect domestic antitrust law to maintain internal market order.
Third, Establishment of IPR security system under WTO. Article 73 of TRIPS Agreement regulates exceptional clauses of security, which is initially established for developed countries to blockade technologies towards developing countries[12], but, on the other side, they can also assistant developing countries like China to establish security system of IPR and resolve specific problems in the specific period. A flawless security system is the premise of fair trade between China and the EU.
VI. ConclusionIPR has become the central issue for economic and trade relations between China and the EU, which is a challenge to relationship between China and the EU. However, a fair and effective resolution will bring this partnership into a new stage.
Taking long views, on basis of continuing deepening full-scope strategic partnership, both China and the EU should, obeying the legal framework of TRIPS, by dialogs, negotiation, consultation and further understanding and trust, examine strictly behaviors of IPR tort and abuse, take material steps to eliminate IPR related TBT, put an end to monopolies on technical trade, and protect respective state interest and economic security, especially emphasizing on interest of China as a developing country to realize a balance between the two economies, accordingly, bringing along co-prosperity of China and the EU.
REFERENCESl Scholarly Treatise
Zheng Chengsi, To Discuss IPR. Law Press, Beijing. 1988.
Liu Maolin. Economic analysis of IPR, Law Press, December 1996.
David I. Bainbridge. Intellectual property. Harlow : Longman, 2002.
Rationality, Crisis and Future Model of IPR. Edited by Li Yang. Beijing. Law Press. 2003.
TRIPS and fronter issues of IPR protection in China. Edited by Tang Anban. Beijing. Law Press. 2004.
Xue Hong and Zheng Chengsi. Chinese intellectual property law in the 21st century. Hong Kong : Sweet & Maxwell Asia, c2002.
Global intellectual property rights : knowledge, access, and development. Edited by Peter Drahos and Ruth Mayne. England. Oxford, 2002.
Chen Meizhang, Facilitation of Chinese patent system to technical improvement and economic development. Research on Patent Law. IPR Press, December,1999.
l Scholarly Essay
Shahram Shoraka. World Trade Dispute Resolution and Developing Countries: Constructing a Framework for Fair Adjudication in the WTO. MJIEL. Vol. 3. Issue 2 . 2006.
Wesley A. Cann. Creating Standards and Accountability for the Use of WTO Security Exception: Reducing the Role of Power based Relations and Establishing a New Balance between Sovereignty and Multilateralism. Yale Journal of International Law. Vol. 26(2001). No.4. pp413-485.
Zhang Biwu. A comparison of TRIPS with ole and new legal system of IPR in China.China Science and Technology Information. Feb, 2006.
Wang Hong. IPR protection and free competition. Mediation, Arbitration and Litigation. Vol.16. No.93. pp53-55.
Xu Xiangming. Antitrust control to abuses of IPR. Journal of Huaibei Coal Industry Teachers College, Vol.25 No.5, Oct.2004.
Xu XiuXia, Influence and countermeasure of IPR protection of China after entrance into WTO. Min Bai Study. 2001(5).
Xiao Feng. An analysis of actuality and motivated power of technical development in China. Future and Development. 2001(4).
Zhang Zhicheng. Comments on IPR strategy of multinational corporations, IPR Review of Peking University. Col.3. Law Press. August, 2003.
l Reports
Integrating Intellectual Property Rights and Development Policy.Report of the Commission on Intellectual Property Rights of the UK. Published in London. November 2002 (2nd Edition). Available on http://www.iprcommission.org/.
European Antitrust Review. Prepared by Gibson, Dunn & Crutcher’s European antitrust ractice Group april 2005 - april 2006. Published in October 2006.
Competition Law-Antitrust law and policy in a global marketinsight,An effects-based approach to technology transfer agreements.By David Wood and Isabel Davies.published in the May 2004 issue of Competition Law Insight.
Strengthening Protection of Intellectual Property in Developing Countries.World Bank Discussion Paper(sWDP-112). Edited by Wolfgang E. Siebeck. First printed in December 1990. Washington, D.C..
l Website
Ministry of Commerce of PRC: http://www.mofcom.gov.cn/
The EU Chamber of Commerce in China: http://www.europeanchamber.com.cn/
EUR-Lex: http://eur-lex.europa.eu/en/index.htm
--------------------------------------------------------------------------------
[1] EU – China: Closer partners, growing responsibilities. COM (2006) 632 final.
[2] 2004 European Business In China Position Paper
[3] See http://www.europeanchamber.com.cn/
[4] See Child-resistance for lighters. Safety requirements and test methods, EN 13869:2002
[5] Waste Electrical and Electronic Equipment Directive . Directive 2002/96/EC.
[6] Restriction of Hazardous Substances Directive . Directive 2002/95/EC.
[7] Mark A. Lemley, "Property, Intellectual Property, and Free Riding" (Abstract); see Table 1: 4-5.
[8] See Article 82 of the EC Treaty.
[9] See European Commission Raises Stakes in IP/Antitrust Battle, available on http://www.gibsondunn.com/.
[10] Zhang Zhicheng. Comments on IPR strategy of multinational corporations, IPR Review of Peking University. Col.3. Law Press. August, 2003.
[11] See website of ministry of commerce of the PRC, http://www.mofcom.gov.cn/.
[12] Wesley A. Cann. Creating Standards and Accountability for the Use of WTO Security Exception: Reducing the Role of Power based Relations and Establishing a New Balance between Sovereignty and Multilateralism, Yale Journal of International Law, Vol. 26(2001), No.4,pp413-485.
没有评论:
发表评论