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A Comparison On Intellectual Property Laws Between Mainland China And Taiwan

Posted on:2009-03-20Degree:DoctorType:Dissertation
Country:ChinaCandidate:D Z XingFull Text:PDF
GTID:1116360242487880Subject:International Law
Abstract/Summary:PDF Full Text Request
Humans replace the method of override his rival from using the military force to manipulating the scientific knowledge. Therefore, the rules and regulations regarding intellectual property (intellectual property, abbreviated to as "IP") bloom accordingly. The contemporary IP laws originate from the England and the concerned legal systems reflect global desire to break through the border of sovereign and become one of most internationalized legal fields. However, under generally observation, eighty percent of intellectual properties registered in the third-world countries are owned by foreigners, multinational corporations mostly, and merely five percent of them are applied in the domestic production activities of the registered third-world countries. Considering that IP is the product under the political economy, developing countries are in a position with less sources, comparing with developed countries, to negotiate under a multi negotiation regarding the IP. While the human is going toward a direction opposite to the dream of establishing a united world, the World Trade Organization ("WTO") was incorporated then under the background and international reality that a conclusion of an international negotiation depends on the national power of the countries involved. Regardless of the background and conclusion process of the WTO establishment, after a series of conditions negotiation and benefits exchange, the countries involved in the negotiation reached a package of treaties expected to be accepted and complied with wholly with refusing any portions of them. The WTO, for now, becomes the only multinational organization which deals with trade rules under various economic bodies and pushes the world toward a untied one further. Accordingly, the protection of the intellectual property rights ("IPR") has undergone the initial stage, organization stage and the trade stage commencing from the execution of Trade Related Aspects of Intellectual Property ("TRIPS"). Whether the domestic protection of IPR in a nation or region complies with the international protection standards depends on whether that nation or region joins the WTO and has its regulations and rules modified accordingly to comply with the TRIPS.IPR as an exclusive rights conferred to a righter by a nation is granted with the characteristic of geographic limitation, namely, a nation can only provide the protection against the right within the territory in accordance with its domestic regulations; relatively, the righter asks a nation to grant the right or provide protection to his rights which is damaging by the others only within the territory in accordance with its domestic regulations. In other words, the domestic protection of IPR is void outside of the territory of the nation/region involved. Thus, the protection of the IPR is not supposed to be limited by geographic regions. That is the reason that TRIPS sets up the minimum standard of substantial provisions on protecting seven types of IPR. However, it is the WTO members' obligation to, at least, meet the minimum standard of protection requirements which the TRIPS set up against seven specific types of IPR, but not necessary for them to enact a law exactly identical to the provisions of the TRIPS (namely, a WTO member might enact a IPR-related regulation providing the protections higher than what the TRIPS requires). Therefore, the WTO members' domestic IPR-related regulations might be still different from each others even though fulfilling the requirements by the TRIPS. Developed countries expressed opinions and basic grounds different from those developing countries adopted in the process of negotiating for the TRIPS. The representatives from the involved countries had a series of intense arguments. The negotiation ended upon accepting the version proposed by the developed countries as a purpose to gain more bargain for the developing countries on benefits in other fields. Eventually, on the date of April 15,1994, The Uruguay Round agreements containing about sixty agreements and decisions totaling 550 pages was signed at the Marrakesh ministerial meeting. Due to the over-flexibility of partial provisions of the TRIPS and less enforceability thereof, the domestic regulations of the member countries without strong economic power and support by the multilateral pace function less than what they are expected to be. In summary, the TRIPS still has a great gap between what the developing countries expect and what the reality is.China, in 2001, and Taiwan, in 2002, joined the WTO as its members in turn. The regulators revised the original regulations and also enacted new ones to comply with the requirements of the TRIPS. Under the impact of globalization, the IPR-related "wars" have broken through the limitation of national border and expanded worldwide. However, due to the IPR's characteristic of geographic limitation, the discrepancy of IPR-related regulations exists between China and Taiwan. Researching the comparison of IPR-related regulations between China and Taiwan contributes to structure the foundation of the legal systems in both China and Taiwan. Thus, this research mainly focuses on four sectors: the comparison of IPR-related regulations between China and Taiwan, the analysis of the discrepancy, observation of revisions on both China and Taiwan domestic laws as a result of meeting the requirements by the TRIPS and also providing further suggestions for the future revision on China and Taiwan laws to keep their promises to comply with the TRIPS.This research is structured on the framework of the IPR-related regulations in China and Taiwan and the TRIPS. Besides the provisions concerned under the TRIPS, this research mainly discusses and elaborates patent, trademark, copyrights, layout-designs (topographies) of integrated circuits and undisclosed information.This research is subject to five limitations as following.1.The terms mentioned in this research would mainly refer to those commonly adopted by China regulations.2. The content of intellectual property rights discussed in this research is limited to seven types, including patents, copyrights, trademarks, geographical indications, industrial designs, layout-designs of integrated circuits and undisclosed information.3. This research focuses on the comparison of current regulations, but not on solutions and opinions on specific disputes.4. This research does not include the discussion of the World Intellectual Property Organization and Section 301 of the United States Trade Act.5. "China" mentioned in this research refers to merely the mainland of China.This research compares the legal systems in China and Taiwan after referring to the TRIPS and the IPR-related regulations in these two places and collecting and analyzing related documents. Thus, it adopts the research methods relating to legal explanation, documentation analysis and legal comparison.This research is divided into: 1. PreambleBefore further discussing the main topic and sub-one, this research confirms the matters in connection with the research purpose, motive, method, content, limitation and framework in its preamble in order to avoid any divergence from the contemplated topics.2. First Paragraph "Definitions and contents of IPR"Since discussing mainly on the IPR-related legal systems in China and Taiwan, this research begins with the definitions and contents of IPR as the foundations of IPR hereunder. This Paragraph briefs the concepts of the main types of IPR (namely, patents, trademarks, copyrights, layout-design of integrated circuits, undisclosed information, geographical indications, industrial designs, trade names, domain names and plant varieties) and the historical background of legislation of IPR-related regulations.3. Second Paragraph to Sixth Paragraph "The comparison of the regulations in China and Taiwan on patents, trademarks, copyrights, layout-designs of integrated circuits and undisclosed information.Besides structuring its main topic on the comparison of the IPR-related regulations in China and Taiwan by following the orders of patents in paragraph 2 (including industrial designs), trademark in paragraph 3 (including geographical indications), copyright in paragraph 4, layout-designs of integrated circuits in paragraph 5 and undisclosed information in paragraph 6, this research combining with the discussion of the TRIPS, also develops its subtopic in accordance with the comparison and analysis. However, the readers need to pay attention to that the comparisons under the aforementioned paragraphs focus mostly on the discrepancy but not the similarity, which is less important than the former. By the comparison, this research can not only compare the current regulations regarding five specific types of main IPR easily but also provide a general organization of the discrepancy of the legal systems in both places.4. Seventh Paragraph "The historical development of international protection of IPR and the latest development of the TRIPS"The subtopic of this research focuses on the adjustments on the IPR-related regulations in China and Taiwan under the requirements of the TRIPS and is analyzed on the basis of the summaries of previous six paragraphs. Therefore, this paragraph introduces the historical and latest development on international IPR protection for the purpose of elaborating the subtopic.This paragraph introduces in turn by the historical development of IPR international protection, briefing from the Paris Convention, Berne Convention, Rome Convention, and treaty on integrated circuits , basic principles and stipulations of the TRIPS and, finally, the latest development of the TRIPS in order to know the status quo of the TRIPS for now.5. Eighth Paragraph "The adjustment of IPR-related regulations in China and Taiwan under the requirements of the TRIPS"The subtopic of this research focuses on the adjustment of IPR-related regulations in China and Taiwan under the requirements, which leads to the discussions of the previous paragraphs, to organize the revisions on the IPR-related regulations in both places. This paragraph discusses the adjustments on patents, trademarks, copyrights, layout-designs of integrated circuit and undisclosed information sectors by China and Taiwan to comply with the TRIPS. 6. Ninth Paragraph "Suggestions and prospects"This research provides suggestions on the noncompliance in the current IPR-related regulations in China and Taiwan to the TRIPS, a summary of this research and also the prospects for any further researches later as well.This paragraph summarizes the adjustments regarding the IPR-related regulations in both places; furthermore, highlighting their noncompliance to the TRIPS for the reference and prospect of the future revision on the related regulations. Eventually, this paragraph also raises attentions to the portions of IPR-related regulations in both places remaining further review and brings out suggestions for the future researches on the similar topic.The completion of this research achieves the following eight purposes/goals.1. Comparing the mainly patent-related regulations in China with those in Taiwan and, then, bring out the discrepancy.2. Comparing the mainly trademark-related regulations in China with those in Taiwan and, then, bring out the discrepancy.3. Comparing the mainly copyrights-related regulations in China with those in Taiwan and, then, bring out the discrepancy.4. Comparing the mainly layout-design of integrated circuit-related regulations in China with those in Taiwan and, then, bring out the discrepancy.5. Comparing the mainly undisclosed information-related regulations in China with those in Taiwan and, then, bring out the discrepancy.6. The adjustments on China IPR-related regulations to meet the commitments to the TRIPS. 7. The adjustments on Taiwan IPR-related regulations to meet the commitments to the TRIPS.8. The further revisions on both China and Taiwan IPR-related regulations under the obligations of fulfilling the commitments to the TRIPS.
Keywords/Search Tags:Trade Related Aspects of Intellectual Property ("TRIPS"), Patent, Trademark, Copyright, Layout-Designs of Integrated Circuit, Undisclosed Information ("Trade Secret")
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