Intellectual Property and Public Policy: Application of Flexibilities in the International IP and Trade system --Limitation and Exceptions for Education Research and Development Fuli Chen Director of Department of Treaty &Law MOFCOM P.R. China

Main Topics Overall Situation of IPR in China General Rules of Limitation and Exception on IPR Limitations and Exceptions of IPR in International Level Limitations and Exceptions of IPR in National Level New Challenge

Overall Situations of IPR in China Status of China’s IPR Related Legislation International Cooperation on IPR Protection in China Enforcement of Intellectual Property Rights in China

General Rules of Limitation and Exception on IPR Some Elements of Limitation and Exception Rule Classifications of Limitation and Exception

Some Elements of Limitation and Exception Rule Exclusive Rights and the Freedom of Recreation Private Rights and Policy of Public Education Private Rights and Development of Economy Private Rights and Trade

Classifications of Limitation and Exception Reasonable Use Statutory Use Compulsory Use

Limitations and Exceptions of IPR in International Level Berne Convention art.9 Paris Convention art.5 TRIPS art.31 WCT Preamble art.10

Berne Convention art.9.2 (2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

Paris Convention art.5 A. (2) Each country of the Union shall have the right to take legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work.

TRIPS art.31 Where the law of a Member allows for other use of the subject matter of a patent without the authorization of the right holder, including use by the government or third parties authorized by the government, the following provisions shall be respected:

WCT Preamble Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention

WCT art.10 Limitations and Exceptions (1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. (2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author

Limitations and Exceptions of IPR in National Level US Copyright Act 1976 sec.107 FR Intellectual Property Code art BR Copyright Design and Patent Law Irish Copyright and Related Rights Code

Limitations and Exceptions of IPR in China Copyright Law section 4: Limitations on Rights Patent Law CHAPTER 6 Compulsory License for Exploitation of Patent Regulations on the Protection of Layout- Designs of Integrated Circuits art.25

Copyright Law section 4: Limitations on Rights Article 22 In the following cases, a work may be exploited without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work shall be mentioned and the other rights enjoyed by the copyright owner by virtue of this Law shall not be prejudiced:

Copyright Law section 4: Limitations on Rights (l) use of a published work for the purposes of the user's own private study, research or self-entertainment (6) translation, or reproduction in a small quantity of copies, of a published work for use by teachers or scientific researchers, in classroom teaching or scientific research, provided that the translation or reproduction shall not be published or distributed (8) reproduction of a work in its collections by a library, archive, memorial hall, museum, art gallery or any similar institution, for the purposes of the display, or preservation of a copy, of the work

Copyright Law section 4: Limitations on Rights Article 23 In compiling and publishing textbooks for implementing the nine-year compulsory education and the national educational program, parts of published works, short written works, music works or single copies of works of painting or photographic works may be compiled into textbooks without the authorization from the authors, except where the authors have declared in advance the use thereof is not permitted, with remuneration paid according to the regulations, the name of the author and the title of the work indicated and without prejudice to other rights enjoyed by the copyright owners according to this Law. The above limitations on rights shall be applicable also to the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations.

Patent Law CHAPTER 6 Compulsory License for Exploitation of Patent Article 48 Where any entity which is qualified to exploit the invention or utility model has made a request for authorization from the patentee of an invention or a utility model to exploit its or his patent on reasonable terms and has been unable to obtain such authorization within a reasonable period of time, the Patent Administration under the State Council may, upon the application of that entity, grant a compulsory license to exploit the patent for the invention or utility model

Patent Law CHAPTER 6 Compulsory License for Exploitation of Patent Article 49 Where a national emergency or an extraordinary state of affairs occurs, or where the public interest so requires, the Patent Administration under the State Council may grant a compulsory license to exploit the patent of invention or utility model

Patent Law CHAPTER 6 Compulsory License for Exploitation of Patent Article 50 Where a patented invention or utility model is technically more advanced than another invention or utility model that was patented earlier and the exploitation of the later invention or utility model is dependent on the exploitation of the earlier invention or utility model, the Patent Administration Under the State Council may, upon the application of the later patentee, grant a compulsory license to exploit the earlier invention or utility model

Regulations on the Protection of Layout- Designs of Integrated Circuits Article 25. In the case of a national emergency, or in any extraordinary state of affairs, or for the purposes of public interests, or where it is determined according to the law by the people's court or the supervision and inspection department against unfair competition that there is unfair competition on the part of the holder of the right of layout-design and there is a need to give remedy, the intellectual property administration department of the State Council may grant a non-voluntary license to exploit the layout-design

New Challenge Internet Era for Protection of IPR

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