WORLD TRADE
ORGANIZATIONIP/C/W/362/Add.2
18 October 2002
(02-5678)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Follow-up questions by Japan
Addendum
By means of a communication from the Permanent Mission of Japan, dated 14 October 2002,
the Secretariat has received a copy of the following follow-up questions that Japan has communicated
to the People's Republic of China.  These questions follow up China's responses to initial questionscirculated in documents IP/C/W/374 and IP/C/W/374/Add.2.
_______________
CHINA
Questions 1-5 and 16-18 are based on the responses from China dated 19 September 2002 in
document IP/C/W/372/Add.2.  Questions 6-15 are ba sed on the responses from China in document
IP/C/W/374.
A. C
OPYRIGHT
1. Regarding Answer 2, please explain who decides whether each cases apply to "justifiable
extent" stipulated in Article 22(7) of the Copyrigh t Law in line with the so-called "three-step test".
Furthermore, please provide clear interpretation and criteria of "justifiable extent".
2. Regarding Answer 3, concerning Article 22(9) of the Copyright Law, if a "free-of-charge live
performance of a published work, where fees are not charged on the public, and nor are paymentsmade to the performers" is performed for profit (such as a performance at a department store to attract
consumers where fees are not charged from the consumers, and nor are payments made to the
performers), does this article apply to such performance?  (We consider such case exceeds the scope
of the "three-step test".)
3. Regarding Answer 4, concerning Article 39.3 of the Copyright Law, please explain how to
declare "that such exploitation is not permitted".
4. Regarding Answers 5 and 6, please explain following questions referring to the concrete
contents of regulation:
(1) Is there any government authority which is in charge of dispute arbitration between
broadcasting organizations and right holders over the payment of remuneration?  If
so, does the State Council play such role?
(2) When will the regulation of the remuneration come into effect?IP/C/W/362/Add.2
Page 2
(3) How do broadcasting organizations distribute the remuneration to right holders?
5. Regarding Answer 12, please provide the "recommendation" referred in the response 12.
Please explain what measures have been taken in  response to the recommendation.  (How much has
the Supreme People's Court decreased the amount of damages to which criminal procedure isapplicable?)
B. T
RADEMARKS
6. (i) Regarding Answer 11, in the Trademar k Law Implementing Regulations, Article 5.1,
it is written that in determining whether a tradem ark is well-known, any objection in registering the
trademark or appeal for a retrial is taken into account.  Please explain the relationship between thisArticle 5.1 of the Trademark Law Implementing Regulations and Article 16.2 of the TRIPS
Agreement.
(ii) Please explain the time schedule of the specific procedural rules on determination of
the well-known trademarks.
(iii) According to Answer 9 to the United States, information on the list of well-known
trademarks and the website mentioned in the question are not accurate, and the Trademark Office
does not have an official website.  Does China plan to make an accurate reference list of well-known
trademarks including those of foreign companies?
(iv) And Japan would like to confirm whether the requirements stipulated in Article 14 of
the Trademark Law are limited only to the situation in China or are applied to the situation in the
countries other than China as well.
7. Regarding Answer 12, please indicate the goods prescribed by Article 6 of Trademark Law
and please explain the relationship between Article 6 and Article 11.2 of Trademark Law (e.g.
whether Article 11, which stipulates the register of trademark having acquired distinctiveness through
use, is applied to the goods prescribed by Article 6).
D. P
ATENT
8. Regarding Answer 15, in Japan, the government does not designate agents, nor do Japan
believes it to be international practice.  Please explain whether or not the fact that in China, foreign
applicants must carry out procedures through an attorney designated by the Chinese government is incompliance with Article 3 of the TRIPS Agreement on National Treatment.
9. Regarding Answer 16, Japan's question concerns the actual average length of period for
obtaining rights, not time limits.  Please provide some statistical or other information, if any, that
explains the length of period for the grant of patent right in China is reasonable.
E. U
NDISCLOSED INFORMATION
10. Regarding Answer 22, please confirm that the definition of the undisclosed information (trade
secret) of Article 39.2 of TRIPS and the definitions of Article 10 of the Anti-unfair Competition Law
can be regarded the same.  In addition, Japan would appreciate statistical or other information about
the violation of undisclosed information protection.IP/C/W/362/Add.2
Page 3
F. ENFORCEMENT
11. Regarding Answer 24, please provide information on who bears the cost for confiscation and
disposal (including storage) of trademark infringing goods undertaken by enforcement agencies
including the Customs.
12. Regarding Answer 25, please provide information on the recommendation to judicial
authorities regarding the threshold (under paragraph 304 of China's TRIPS Commitment(WT/L/432))
and the progress of this recommendation, in detail.
13. Regarding Answer 28(ii), regarding Article 56 of the Trademark Law and Article 48 of the
Copyright Law, please explain why China sets a limit for compensation (500,000 yuan in RMB) and
how this amount can be justified under Articles 41.1 and 45 of the TRIPS Agreement.
14. Regarding Answer 30(i), please explain in detail China's activities against local protection and
its developments.
H. OTHERS
15. Regarding Answer 58, if the Technology Import/Export Control Regulation is related to
discrimination between foreign licensors and Chinese licensors on the Enforcement of IPRs, Japan
considers that this regulation is not consistent with Article 3.1 of the TRIPS Agreement.  Please
confirm whether the restriction on a foreigner's licensor under this Regulation, including therestriction under Article 24 and that of a domestic licensor under the Civil Law is the same.
(Questions from 16-18 are based on the responses from China dated 19 September 2002 in document
IP/C/W/374/Add.2).
B. E
NFORCEMENT
16. Regarding Answer 13, National Copyright Ad ministration require the person who allege
his/her right is infringed to produce evidence to establish location of factories producing pirated goods
and the amount of damage in order to apply administrative penalty prescribed in Article 47.  (Unless
such evidence is produced, National Copyright Administration will never apply administrative
penalty).  Please explain the reason imposing such heavy burden on right holders is consistent withArticle 41(2) of the TRIPS Agreement stipulating "procedures concerning the enforcement of
intellectual property rights shall not be unnecessarily complicated or costly".  (Such burden on right
holders seems to be too heavy that they must establish location of the factories and the amount of
damage in order that National Copyright Administration order the infringing act to be ceased,
confiscate unlawful income, confiscate or destroy the infringing copies, and impose a fine, even
though Article 11.4 of the Copyright Law is taken into account.)
17. Regarding Answer 14, Japan's original question is to make clear "why" Article 217 of the
Criminal Law is consistent with Article 61 of the TRIPS Agreement.  Supreme people's Court's
notification of 17 December 1998 limits the scope of infringement extremely.  Due to this
notification, even though intentional copyright piracy on a commercial scale occurs, it is almost
impossible to apply criminal penalties.  Please ex plain the reason "why" such situations are consistent
with Article 61 of the TRIPS Agreement stipulating "Members shall provide for criminal proceduresand penalties to be applied at least in cases of copyright piracy on a commercial scale"?
18. Regarding Answer 15, concerning Article 47 of the Copyright Law, what kind of acts are
considered to be the subject of the administrative or criminal penalty?  Please explain relevant articles
of the Criminal Law and their judicial interpretation as well as a couple of instances thereof.
__________