WORLD TRADE
ORGANIZATIONIP/C/W/362/Add.1
10 October 2002
(02-5472)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Follow-up and additional questions from Japan
Addendum
By means of a communication from the Permanent Mission of Japan, dated
16 September 2002, the Secretariat has received a copy of the following additional questions that
Japan has communicated to the People's Republic of China and follow-up and additional questions
that it has communicated to the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu.
These questions follow up China's responses to initial questions circulated in document IP/C/W/374
and Chinese Taipei's responses to initial questions circulated in document IP/C/W/373.
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CHINA
A. COPYRIGHT
1. According to Article 11 bis of the Berne Convention, authors shall be granted the exclusive
rights of broadcasting.  However, Article 42 and Article 43 of the Copyright Law do not grant such
right.  Please explain the consistency between Article 11 bis of the Berne Convention and Article 42
and Article 43 of the Copyright Law.
2. Please explain the detailed criteria concerning "justifiable extent" stipulated in Article 22(7)
of the Copyright Law.
3. Concerning Article 22(9) of the Copyright Law, please explain the reason why the
performances for non-profit-making purposes are not exempted from copyright.
4. Please explain why the meaning of "the copyright owner has declared that such exploitation is
not permitted" stipulated in Article 39(3) of the Copyright Law.
5. Concerning Article 42 and Article 43 of the Copyright Law, in the absence of agreement
about the remuneration, the court-like judicial procedure may be necessary in order to decide the
amount of remuneration.  Please explain which concer ning government authority will play such role.
6. Concerning Article 42 and Article 43 of the Copyright Law, please explain the progress of
creating the remuneration table which broadcasting organizations' payment.IP/C/W/362/Add.1
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7. What is the difference between "a cinematographic work to which are assimilated works
expressed by a process analogous to cinematography" in Article 10(7) and "video-recording" in
Article 46(8)?
8. Concerning Article 41 of the Copyright Law, please explain the reason why phonograms
producers are not granted the right of a single equitable remuneration for the use of phonograms forbroadcasting.
9. Concerning Article 50 of the Copyright Law, it seems to be impossible to "make a ruling
within forty-eight hours".  Please explain how these provisions work, referring to actual examples.
10. Please explain the progress of new enforcement regulations of the Copyright Law.  Please
confirm that the Regulations concerning the implementation of international copyright treaties are
abolished.  Please explain the reasons why the Chinese Government did not provide these regulations
for the review.
11. Please confirm it could be understood that judicial interpretation issued by the Supreme
People's court is based on the competence given to the Supreme People's court and that the judicial
interpretation is substantially rather amendment of laws and regulations than exercise of judicial
power.  It would be very much appreciated if the Chinese Government could provide us with the
judicial interpretation.
12. Please explain the progress of the Chinese Government's commitments at the time of
accession to WTO, that "China's administrative authority would recommend that the judicial authority
make necessary adjustments to lower the thresholds so as to address these concerns"
(WT/ACC/CHN/49 para 304).
B. E
NFORCEMENT
13. It can be considered that administrative procedures are most effective ones concerning the
enforcement of intellectual property rights.  However,  in order to initiate the procedure, right holders
must produce identities of infringers, location of factories producing pirated goods, and the amount of
damage.  Moreover, proving these issues are not only difficult but also costly.  Please explain the
reason why such situations are consistent with Article 41(2) of the TRIPS Agreement that "proceduresconcerning the enforcement of intellectual property rights shall not be unnecessarily complicated or
costly".
14. According to Supreme people's court's notification of 17 December 1998 which concerns
copyright infringement, the scope of criminal puni shment stipulated in Article 217 of the Criminal
Law is extremely limited.  Please explain the consistency between this notification and Article 61 of
the TRIPS Agreement that "Members shall provide for criminal procedures and penalties to be
applied at least in cases of copyright piracy on a commercial scale".
15. Please explain the meaning of "where the act also prejudices the public interests" in Article 47
of the Copyright Law.  Who are entitled to determine and what criteria would be used?  Does this
procedure require the injured person's application?  According to Article 47 of the Copyright Law,
"the act which constitutes a crime" will be prosecuted.  Please explain in detail what kind of acts
"constitutes a crime" which is referred to Article 47 of the Copyright Law.  Which provisions inCriminal Law would be applied to such acts?  Are there any detailed criteria to decide whether the
police handles the case?  Please explain the consistency between Article 47 of the Copyright Law of
China and Article 41.2 of the TRIPS Agreement stipulating "Procedures concerning the enforcement
of intellectual property rights shall be fair and equitable"?IP/C/W/362/Add.1
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FOLLOW-UP QUESTIONS TO CHINESE TAIPEI
A. COPYRIGHT
1. Concerning the submitted answer 4 and 5 regarding Article 106 ter of the Copyright Law, please
provide us detailed criteria to decide the scope of "has begun the exploitation".  Please also explain
the consistency between Article 106 ter and Article 18 of Berne Convention.  In this connection,
Article 70.4 of the TRIPS Agreement stipulates that the equitable remuneration is at least necessary in
such cases as described in Article 106 ter of the Copyright Law.  Therefore please discuss how
Article 70.4 of TRIPS Agreement is implemented in the Copyright Law.
B. TRADEMARK
2. Concerning the submitted answer 7 regarding Article 16.2 and 16.3 of the TRIPS Agreement,
please explain, if any, criteria or interpretation for the judgment of well-known trademark.
C. GEOGRAPHICAL INDICATIONS
3. Concerning the submitted answer 8.2 regarding Article 23.1 of the TRIPS Agreement, please
provide the specific products, if same protection provided under the Article 23.1 would be given to
the products other than wine and spirits.
D. PATENT
4. Concerning the submitted answer 9, does Chinese Taipei allow to claim a priority based on a
PCT international application only for Australia?  If so, is this treatment inconsistent with Article 4 of
the TRIPS Agreement, i.e.  Most-Favored-Nation Trea tment?  If it is consistent with the Article 4 of
the TRIPS Agreement, please explain the grounds.
E. UNDISCLOSED INFORMATION
5. Concerning the submitted answer 13 regarding Article 39.3 of the TRIPS Agreement, please
explain whether the specific terms of protection or prohibition for disclose of the Undisclosed
Information submitted to the government are provided in the relevant laws and regulations, such as
the Trade Secret Law, the Civil Servant Law, the Criminal Law and other relevant laws.
F. ENFORCEMENT
6. Concerning the submitted answer 16 regarding the Code of Civil Procedures, please explain
how the document in a "non-public manner" is dealt with by the court in the statute and/or practice.
7. Concerning the submitted answer 17.(i), does the concept of "injured parties" in Article 88 of
the Copyright Law cover not only right holders but also licensees?  Please explain the differences
between "right holders" in Article 42 of TRIPS Agreement and "injured parties" in Article 88 of the
Copyright Law.
7-2 Concerning the submitted answer 17(ii), your civil proceedings are to effective remedies
against patent infringement in terms of Article  41.1 of the TRIPS Agreement.  Please indicate
statistical or other information of remedies for patent infringement, including the number of incidents,
the number of injunctions and the level of compensations of damages.IP/C/W/362/Add.1
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8. Concerning the submitted answer 18.(2) regarding Article 90 bis of the Copyright Law,
according to Article 90 bis, right holders are required to prepare large amount of deposit in order to get
an injunction order, and consequently it is quite difficult for them to apply the injunction order.  This
provision might be inconsistent with Article 53.1 of the TRIPS Agreement since this deposit system
unreasonably deters recourse to the injunction procedure.  Please explain the consistency betweenArticle 90 bis of the Copyright Law and Article 53.1 of the TRIPS Agreement.  Please explain what
measures your authority will take in order to stop the export of infringed goods effectively in relation
to Article 53.1 of the TRIPS Agreement.
ADDITIONAL QUESTIONS TO CHINESE TAIPEI
A. C
OPYRIGHT
1. Does Article 22(reproduction right) cover the temporary copies such as the storage in RAM?
If it is the case, please explain how your authority draws the line between the temporary copies to be
covered under the reproduction right and the ones that are not, referring to the actual cases.
2. Judging from Article 29 and Article 60 of the Copyright Law, it is understood that the right of
rental is not accorded to authors of cinematographic works.  Does the situation in Chinese Taipei clear
the "impairment test" under Article 11 of TRIPS Agreement for not granting the right to the authors?
If your authority believes that it is the case, please explain why, referring to the relevant information
such as the number of video-rental shops.
3. Game software has two aspects.  One is that of a cinematographic work and the other is that
of computer software.  Do the authors of game software have the right of rental?  Please explain
whether or not Article 60 of the Copyright Law is applied to game software.
4. Please explain if Copyright Law provides broadcasting organization with the right stipulated
in the first sentence of Article 14.3 of the TRIPS Agreement.  If not, the first sentence of Article 24 of
the Copyright Law might be inconsistent with Article 14.3 of the TRIPS Agreement since Article 14.3of TRIPS Agreement covers the rebroadcasting right.  If your authority believes that Article 24 meets
the obligation under TRIPS Agreement, please explain why.
5. The time-limit of requesting compensation for infringement in Article 89 bis might have the
same effect as the "unreasonable time-limit" in Article 41 of the TRIPS Agreement.  Please explain
the consistency between Article 89 bis of the Copyright Law and Article 41 of TRIPS Agreement.
6. Please explain the scope of "derivative works" in Article 106 quater  of the Copyright Law.
For example, please let us know whether the follow ing examples fall under the concept of "derivative
works" in Article 106 quater .  (a) Japanese cinema with Chinese caption, (b) Japanese cartoon with
Chinese translation,  (c) Combination CD consisting of several Japanese songs.  Please explain the
consistency of this Article with Article 18 of Bern Convention as well.
7. Please explain the purpose and scope of "fair use of a work" in Article 65 of the Copyright
Law, since Article 65 might allow the wider "limitation and exception" than Article 13 of TRIPSAgreement.
8. Please explain the consistency between Article 26 of the Copyright Law and
Article 11 bis(1)(iii) of Bern Convention.
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