. /.WORLD TRADE
ORGANIZATIONIP/C/W/365/Add.1
10 October 2002
(02-5481)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Follow-up questions by the United States
Addendum
By means of a communication from the Permanent Mission of the United States, dated
18 September 2002, the Secretariat has received a copy of the following follow-up questions that theUnited States has communicated to China.  These questions supplement those posed by the United
States in document IP/C/W/365.
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A. C
OPYRIGHT
1. Does the unauthorized creation of a copy of a copyrighted work in the temporary memory of
a computer in China infringe the reproduction right pr ovided for in Article 10(5) of China's Copyright
Law?
2. How does the activity permitted without the permission of the rightholder by Article 17 of
China's Regulations for Computer Software Protection comply with Article 13 of TRIPS?
3. Please provide a copy of the State Council's request to the Supreme People's Court to lower
the thresholds for criminal copyright violations, and any response of the Supreme People's Court to
that request.
4. With respect to your response to the above question, please advise what steps the State
Council will now take to lower the criminal threshold for copyright cases, such as:
(a) requesting an interpretation from the National People's Congress;
(b) revising prior guidance on criminal prosecution;
(c) requesting that the Supreme People's Procuratorate, Ministry of Public Security and
SPC issue a new revised interpretation regarding criminal thresholds with the support
of NCAC.
5. Please provide a copy of any other interpretations of the copyright provisions of China's
criminal code promulgated by other agencies, such as the Ministry of Public Security, National
Copyright Administration of China, and the Supreme People's Procuratorate.IP/C/W/365/Add.1
Page 2
6. Regarding the compulsory license for textbooks in Article 23 of China's Copyright Law:
(a) Does Article 23 apply to works created before the provision became effective?  If not,
what was the effective date of Article 23?
(b) What procedure must a rightholder follow in order to make the necessary advance
declaration that uses otherwise allowed under Article 23 are not permitted?  How is
this procedure consistent with Berne Articl e 5, as incorporated in TRIPS Article 9,
which requires that the exercise and enjoyment of rights not be subject to any
formality?
(c) If Article 23 applies to works created before the date the provision became effective,
how is it possible for a rightholder to make an advance declaration that uses
otherwise allowed under Article 23 are not permitted?  How is this procedureconsistent with Berne Article 5, as incorporated in TRIPS Article 9, which requires
that the exercise and enjoyment of rights not be subject to any formality?
(d) Are there any limits to the size or substantiality of the portions of works that may be
used pursuant to Article 23?  If so, what standards will be applied in determining
whether a particular use has exceeded those limits?
B. T
RADEMARKS
7. In light of revisions to the Trademark law, how will China ensure fair and non-discriminatory
treatment of foreign well known marks, during:
(a) the trademark registration process;
(b) administrative enforcement by the Chinese Trademark Office as well as other
agencies, such as AQSIQ [Administrat ion for Quality Supervision Import and
Quarantine];  and
(c) criminal enforcement, including referrals by administrative agencies to criminal
enforcement?
8. What regulations [fagui], ministerial rules [guizhang] by the Chinese Trademark Office or
other agencies will be revised as a result of China's intention to provide national treatment to foreign
well known marks?
9. With respect to the question above, will China revise the April 2001 guidance on criminal
enforcement, which lowered thresholds for fore ign well known marks, to recognize that such
thresholds should be lowered for all well-known marks, or will well-known marks be divided into
different categories?
10. Please provide a list of the well-know marks that are given enhanced enforcement by national
provincial and local administrative and criminal enforcement agencies.
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