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Saturday, April 23, 2005
U.S.: Investigate Rumsfeld, Tenet for Torture
(New York, April 24, 2005)—The United States should name a special prosecutor to investigate the culpability of Secretary of Defense Donald Rumsfeld and ex-CIA Director George Tenet in cases of detainee torture and abuse, Human Rights Watch said in releasing a new report today.
The soldiers at the bottom of the chain are taking the heat for Abu Ghraib and torture around the world, while the guys at the top who made the policies are going scot free. That’s simply not right.
Reed Brody, special counsel
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Getting Away with Torture? Command Responsibility for the U.S. Abuse of Detainees
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The report, Getting Away with Torture? Command Responsibility for the U.S. Abuse of Detainees, is issued on the eve of the first anniversary of the publication of the Abu Ghraib photos (April 28). It presents substantial evidence warranting criminal investigations of Rumsfeld and Tenet, as well as Lt. Gen. Ricardo Sanchez, formerly the top U.S. commander in Iraq, and Gen. Geoffrey Miller the former commander of the prison camp at Guantánamo Bay, Cuba.
“The soldiers at the bottom of the chain are taking the heat for Abu Ghraib and torture around the world, while the guys at the top who made the policies are going scot free,” said Reed Brody, special counsel for Human Rights Watch. “That’s simply not right.”
Human Rights Watch said that there was now overwhelming evidence that U.S. mistreatment and torture of Muslim prisoners took place not merely at Abu Ghraib but at facilities throughout Afghanistan and Iraq as well as at Guantánamo and at “secret locations” around the world, in violation of the Geneva Conventions and the laws against torture.
“This pattern of abuse across several countries did not result from the acts of individual soldiers who broke the rules,” said Brody. “It resulted from decisions made by senior U.S. officials to bend, ignore, or cast rules aside.”
Among Human Rights Watch’s findings:
Secretary Rumsfeld should be investigated for potential liability in war crimes and torture by US troops in Afghanistan, Iraq and Guantánamo under the doctrine of “command responsibility”—the legal principle that holds a superior responsible for crimes committed by his subordinates when he knew or should have known that they were being committed but fails to take reasonable measures to stop them. Secretary Rumsfeld approved interrogation techniques which violated the Geneva Conventions and the Convention against Torture, such as the use of guard dogs to frighten prisoners and painful “stress” positions. There is no evidence that, over a three-year period of mounting reports of abuse, Rumsfeld exerted his authority and warned those under his command that the mistreatment of prisoners must stop. Had he done so, many of the crimes committed by U.S. forces certainly could have been avoided.
Under George Tenet’s direction, and reportedly with his specific authorization, the CIA has “rendered” detainees to countries where they were tortured, making Tenet potentially liable as an accomplice to torture. The CIA has also “disappeared” detainees in secret locations and it is said to have used “waterboarding,” in which the detainee’s head is pushed under water until he believes he will drown, also reportedly with Tenet’s authorization.
Gen. Sanchez approved illegal interrogation methods—again, including the use of guard dogs to frighten prisoners—which were then applied by soldiers at Abu Ghraib. Gen. Sanchez does not appear to have intervened to stop the commission of war crimes and torture by soldiers under his direct command.
Gen. Miller, as commander at the tightly-controlled prison camp at Guantánamo Bay, Cuba, may bear responsibility for war crimes and acts of torture there. He may also bear responsibility for bringing illegal abusive interrogation tactics to Iraq.
Despite this evidence, Human Rights Watch said, the United States has deliberately shielded the architects of illegal detention policies through the refusal to allow an independent inquiry of prisoner abuse and the failure to undertake criminal investigations against those leaders who allowed the widespread criminal abuse of detainees to develop and persist. Rather, the Department of Defense has established a plethora of investigations, all but one in-house, looking down the chain of command. Prosecutions have commenced only against low-level soldiers and contractors.
“A year after Abu Ghraib, the United States continues to do what dictatorships and banana republics do the world over when their abuses are discovered—cover up the scandal and shift blame downwards,” said Brody. “A wall of immunity surrounds the architects of the policy that led to all these crimes.”
Human Rights Watch requested the appointment of a special prosecutor, saying that because Attorney General Alberto Gonzales was himself deeply involved in the policies leading to these alleged crimes, he had a conflict of interest preventing a proper investigation of detainee abuse. U.S. Department of Justice regulations call for the appointment of an outside counsel when such a conflict exists and the public interest warrants a prosecutor without links to the government.
Human Rights Watch also repeated its call to Congress and the president to establish a special commission, along the lines of the 9/11 Commission, to investigate the issue of prisoner abuse. Such a commission would hold hearings, have full subpoena power, and be empowered to recommend the creation of a special prosecutor to investigate possible criminal offenses, if the attorney general had not yet named one. Although Human Rights Watch said that existing evidence already necessitated criminal investigations, it emphasized that an independent commission could compel evidence that the government has continued to conceal, including the directives reportedly signed by President Bush authorizing the CIA to establish secret detention facilities and facilitating the “rendition” of suspects to brutal regimes.
John Bolton - Lamer, Bully, and the LAST person who should be our ambassador
"Bolton has harshly disparaged the United Nations in the past. In 1994, for example, he charged, “There’s no such thing as the United Nations,” saying that ‘’If the U.N. secretary building in New York lost 10 stories, it wouldn’t make a bit of difference.'’ Four years later, he attacked the international body again, saying, “many Republicans in Congress - and perhaps a majority - not only do not care about losing the General Assembly vote but actually see it as a ‘make my day’ outcome. Indeed, once the vote is lost, and the adverse consequences predicted by the U.N.’s supporters begin to occur, this will simply provide further evidence to many why nothing more should be paid to the U.N. system.” "
Bolton appears not only to a person who doesn't know how to trim a mustache, but also, must be mentally ill, i.e. suffer from schizophrenia, in that he says there is no such thing as the United Nations. He said this in 1994 in a videotaped talk.
Even Barbara Boxer brought this issue up...
http://www.washingtonpost.com/wp-dyn/articles/A43504-2005Apr11.html"It wasn't for lack of trying. Democrats repeatedly pressed Bolton, 56, to explain his criticisms of the United Nations, including those from a fiery speech about 10 years ago to the World Federalists. Sen. Barbara Boxer (D-Calif.) played a three-minute video clip in which Bolton said that "there's no such thing as the United Nations," and that if 10 floors of the 38-story U.N. headquarters building were eliminated, "it wouldn't make a bit of difference."
There are in fact, people who are saying that John Bolton is mentally ill and dangerous.
"Horrifying, personal John Bolton story
Fri Apr 15th, 2005 at 07:15:42 PDT
My best friend since college, Melody Townsel, was stationed in Kyrgyzstan on a US AID project. During her stay there, she became embroiled in a controversy in which the oh-so-diplomatic John Bolton was a key player. She described the incident in a letter to the Senate Foreign Relations Committee members (who have thus far responded with a yawn), and I wanted to share it with a larger audience.
Here's a small taste:
"Mr. Bolton proceeded to chase me through the halls of a Russian hotel -- throwing things at me, shoving threatening letters under my door and, generally, behaving like a madman."
More after the jump.
Diaries :: amyindallas's diary :: :: Trackback ::
Here's the entire text of her letter:
I'm writing to urge you to consider blocking in committee the nomination of John Bolton as ambassador to the UN.
In the late summer of 1994, I worked as the subcontracted leader of a US AID project in Kyrgyzstan officially awarded to a HUB primary contractor. My own employer was Black, Manafort, Stone & Kelly, and I reported directly to Republican leader Charlie Black.
After months of incompetence, poor contract performance, inadequate in-country funding, and a general lack of interest or support in our work from the prime contractor, I was forced to make US AID officials aware of the prime contractor's poor performance.
I flew from Kyrgyzstan to Moscow to meet with other Black Manafort employees who were leading or subcontracted to other US AID projects. While there, I met with US AID officials and expressed my concerns about the project -- chief among them, the prime contractor's inability to keep enough cash in country to allow us to pay bills, which directly resulted in armed threats by Kyrgyz contractors to me and my staff.
Within hours of sending a letter to US AID officials outlining my concerns, I met John Bolton, whom the prime contractor hired as legal counsel to represent them to US AID. And, so, within hours of dispatching that letter, my hell began.
Mr. Bolton proceeded to chase me through the halls of a Russian hotel -- throwing things at me, shoving threatening letters under my door and, generally, behaving like a madman. For nearly two weeks, while I awaited fresh direction from my company and from US AID, John Bolton hounded me in such an appalling way that I eventually retreated to my hotel room and stayed there. Mr. Bolton, of course, then routinely visited me there to pound on the door and shout threats.
When US AID asked me to return to Bishkek, Kyrgyzstan in advance of assuming leadership of a project in Kazakstan, I returned to my project to find that John Bolton had proceeded me by two days. Why? To meet with every other AID team leader as well as US foreign-service officials in Bishkek, claiming that I was under investigation for misuse of funds and likely was facing jail time. As US AID can confirm, nothing was further from the truth.
He indicated to key employees of or contractors to State that, based on his discussions with investigatory officials, I was headed for federal prison and, if they refused to cooperate with either him or the prime contractor's replacement team leader, they, too, would find themselves the subjects of federal investigation. As a further aside, he made unconscionable comments about my weight, my wardrobe and, with a couple of team leaders, my sexuality, hinting that I was a lesbian (for the record, I'm not).
When I resurfaced in Kyrgyzstan, I learned that he had done such a convincing job of smearing me that it took me weeks -- with the direct intervention of US AID officials -- to limit the damage. In fact, it was only US AID's appoinment of me as a project leader in Almaty, Kazakstan that largely put paid to the rumors Mr. Bolton maliciously circulated.
As a maligned whistleblower, I've learned firsthand the lengths Mr. Bolton will go to accomplish any goal he sets for himself. Truth flew out the window. Decency flew out the window. In his bid to smear me and promote the interests of his client, he went straight for the low road and stayed there.
John Bolton put me through hell -- and he did everything he could to intimidate, malign and threaten not just me, but anybody unwilling to go along with his version of events. His behavior back in 1994 wasn't just unforgivable, it was pathological.
I cannot believe that this is a man being seriously considered for any diplomatic position, let alone such a critical posting to the UN. Others you may call before your committee will be able to speak better to his stated dislike for and objection to stated UN goals. I write you to speak about the very character of the man.
It took me years to get over Mr. Bolton's actions in that Moscow hotel in 1994, his intensely personal attacks and his shocking attempts to malign my character.
I urge you from the bottom of my heart to use your ability to block Mr. Bolton's nomination in committee.
Dallas, TX 75208"
April 23, 2005
Scientists for the first time have successfully forced mice into a state of hibernation, which could lead to new methods to treat diseases such as cancer and possibly prevent death in humans.
Scientists at Fred Hutchinson Cancer Research Center described it as "hibernation on demand" in a mammal.
For their experiment, researchers exposed mice to high levels of a chemical known as hydrogen sulfide, which is normally produced by humans and thought to regulate body temperature and metabolic activity.
Within minutes the mice entered into a state of suspended animation. The team later revived the mice with no apparent ill effects.
If this hibernation-like state "could be replicated in humans, it could help buy time for critically ill patients on organ-transplant lists and in operating rooms, ERs and battlefields," said lead researcher, Mark Roth, a cell biologist at Fred Hutchinson.
The researchers report their overall metabolic rate dropped by 90 percent, which resulted in a reduced need for oxygen.
Roth believes if the technique could be replicated in human, it could be used used to treat people suffering from severe fevers of unknown origin within five years.
April 23, 2005
Forced hibernation can save human lives
Washington, April 22, 2005
Mice forced to breathe hydrogen sulphide — known best for its rotten egg smell — go into a kind of suspended animation, US researchers said on Thursday in a finding that may help save human lives.
Although hydrogen sulphide gas is toxic in high doses, it may activate some of the mechanisms that cause other animals to go into hibernation, they wrote in this week’s issue of the journal Science.
Finding a safe way to do this in humans could lead to new ways to treat cancer and prevent injury or death from blood loss, or help people undergo and recover from surgery better, said the team at Fred Hutchinson Cancer Research Center. “We think this may be a latent ability that all mammals have — potentially even humans — and we’re just harnessing it and turning it on and off, inducing a state of hibernation on demand,” said said Mark Roth, who led the study, in a statement.
Bears do it, amphibians do it, and people occasionally hibernate, too. Many cases have been documented of small children, and the occasional adult, reviving from near drowning in icy water after their body temperatures had dropped, their metabolism rate lowered and they had stopped breathing for more than an hour.
“Understanding the connections between random instances of seemingly miraculous, unexplained survival in so-called clinically dead humans and our ability to induce and reverse metabolic quiescence in model organisms could have dramatic implications for medical care,” Roth said. “In the end I suspect there will be clinical benefits and it will change the way medicine is practiced, because we will, in short, be able to buy patients time.”
Lowering metabolism reduces the need for oxygen. If this could be replicated in humans, it could help buy time for critically ill patients on organ-transplant lists and in operating rooms, emergency rooms and on battlefields, Roth said.
Cancer treatment might be improved, too, he said. If healthy tissue can be put into suspended animation, it might be possible to raise doses of radiation to kill tumour cells, Roth said.
Corpses keep coming from Iraq's river of death
Guerillas and thugs made the Iraqi town of Madain their home, and the results are only now surfacing, writes James Hider in Baghdad
April 23, 2005
ABU Qaddum lays out the pictures of mutilated bodies dredged from the Tigris River like a player dealing cards.
Some had their hands cut off, others were headless or burned. Another, with his tongue lolling out, was strangled. He thinks one bloated, slime-covered corpse might be that of his younger brother.
The shocking images come from Iraq's new killing fields - the small town of Madain, just 32km from Baghdad.
In other times the massacre might have prompted calls for international intervention. But there are already 150,000 US and British troops in Iraq and this was done under their noses.
Mr Qaddum's pictures are a terrifying testament to the chaos of Iraq.
Madain has had no police force since a mob of criminals and insurgents burned down the police station last year. The police fled.
Sunni guerillas quickly took over, running the town as their own criminal fiefdom and randomly killing Shia residents, whom they considered infidels and US sympathisers. Then they launched an all-out attempt to purge the town of its Shias.
News of this ethnic cleansing leaked out in confusing rumours. Shia officials spoke last weekend of a massive hostage-taking. But when Iraqi Interior Ministry commandos stormed the town they found car bombs, weapons and a training camp -- but no kidnappers and no hostages.
The whole story was dismissed as scaremongering. Then the photographs of the bodies emerged and with them the tale of Mr Qaddum -- a resident who survived the massacre and earlier this week alerted the President of Iraq, Jalal Talabani.
"I think there may be 300 bodies in the Tigris," he said yesterday.
He recounted how, for the past year, Sunni insurgents had built bases in abandoned farmhouses concealed in the lush river plains south of Baghdad.
First the gangs attacked Madain's police station. An armed mob torched the building and the police cars. Emboldened by the lack of a response from the US-led occupation, the guerillas then started using a former Republican Guard base as a training camp.
More guerillas dribbled in, many affiliated to the extremist group Ansa al-Sunna and led by a Syrian called Annas abu Ayman. They installed a reign of terror, kidnapping government employees and members of Shia political parties. Sometimes the bodies surfaced in the palm groves, more often they just vanished.
When US forces stormed the guerilla stronghold of Fallujah last November more fighters arrived in Madain, on the eastern fringes of a lawless area known as the Triangle of Death. During Ramadan last northern autumn, throngs of Sunni guerillas mustered around a mosque, denouncing Shias as traitors and spies, lambasting them for not joining the resistance.
Mr Qaddum said the Shias did not respond until the guerillas assassinated their leader, Sheik Mahmoud al-Madaini, as he headed to prayers. His car was intercepted by a convoy of 15 vehicles packed with gunmen, who riddled it with bullets. The sheik, his son and three others were killed.
The Shias went to Grand Ayatollah al-Sistani, their spiritual leader in the holy city of Najaf. Mr Qaddum said that the septuagenarian cleric, who is an avowed moderate, told them their relatives were martyrs but that they should stay their hand: the terrorists wanted the Shias to attack to spark a civil war -- which would be worse.
On February 10, a convoy of police finally arrived in Madain. At first the officers found the place calm. But news of their arrival had been leaked -- even Mr Qaddum knew that they were coming -- and the guerillas sprang a well-planned ambush.
Many officers died and the wounded who were captured were doused in petrol and burned to death. After that, the kidnapping and killing accelerated.
"They were taking two or three people a day, killing people in the street, going into people's houses to drag them out," Mr Qaddum said.
The guerillas also set up checkpoints on the road to Baghdad, executing government officials when they could find them, looting and burning lorries.
People were too scared to go to the market for fear of being seized. At night families stood guard in two-hour shifts. Six weeks ago Mr Qaddum's brother went to find a doctor for his sick wife and was never seen again.
The guerillas blew up a mosque and posted notices saying that Shias should leave town or die. The Shia political parties started a press campaign -- but it was dismissed by the Ministry of Interior, whose officials said that the whole affair was a tribal feud.
When Iraqi troops finally moved in they found no sign of the horror. They asked through loudspeakers for witnesses to show them where the terrorists and their hostages were. The Shias were too terrified to come forward, knowing that the troops could be gone in a week. The story was dismissed as exaggeration.
Then the first bodies were found. Some had drifted free of concrete slabs to which they had been tied before they were thrown in the river. A distraught father looking for his son heard about this and hired a Baghdad diver to investigate. The diver emerged, filled with horror, saying the river bed was thick with bodies.
So far 57 have been found, but Mr Qaddum - now a refugee living in another city under an assumed name - said local police were too afraid to retrieve more.
Locals want US troops to secure the area and send divers down for the rest.
US embassy and Iraqi government spokesmen said yesterday they were investigating the affair.
The New York Times > International > Middle East > Video Appears to Show Insurgents Kill a Downed Pilot
At 2 p.m. Thursday, a Bulgarian-owned Mi-8 transport helicopter was shot down near the town of Taji, 12 miles northwest of Baghdad, with 11 men aboard. There were three Bulgarian crew members; six Americans working for the security company Blackwater USA, under contract to the United States Diplomatic Security Service; and two Fijian former soldiers employed as door-gunners.
Initially, the United States military command announced that there were no survivors from the crash, the first shootdown of a commercial helicopter in the two-year-old war.
But as investigators combed through the wreckage on Friday and transported the bodies to the American base at Balad, north of Baghdad, the story took a cruel twist. A video posted on the Internet by the Islamic Army in Iraq, an insurgent group that has claimed responsibility for a succession of attacks in recent months, included a sequence that showed the execution of a survivor from the crash.
On Friday, the man shown being shot was identified as Lyubomir Kostov, a pilot on the downed craft. Mihail Mihailov, manager of Heli-Air Services, the Bulgarian company that owned the helicopter, said Mr. Kostov was the company's chief pilot, The Associated Press reported. Heli-Air operated the helicopter for SkyLink Air and Logistic Support, a Toronto-based company that chartered the aircraft.
On Friday, Blackwater released the names of the six Americans in the helicopter crash, and a seventh Blackwater employee who died Thursday when his armored vehicle hit a roadside bomb near Ramadi.
The dead were identified as Robert J. Gore, 23, of Nevada, Iowa; Curtis Hundley, 42, of Kernersville, N.C.; Steve McGovern, 24, of Lexington, Ky.; Jason Obert, 29, of Fountain, Colo.; David Patterson, 27, of Havelock, N.C.; Luke A. Petrik, 24, of Conneaut, Ohio; and Eric Smith, 31, of Waukesha, Wis.
Insurgent groups in Iraq have made heavy use of the Internet, posting videos showing ambushes, bombings and beheadings. Many of the videos have been chilling, showing in graphic detail the killings of captured Iraqis and foreigners. In this helicopter crash, the importance attached to videotaping was clear when the pilot was discovered lying in the grass. "Is the recorder on?" an off-camera man asked in Arabic.
Much about the attack suggests the insurgents are well organized, quick to react when targets present themselves, and just as quick to escape before superior American firepower can bear down.
Increasingly, this has been the profile of the rebels offered by senior American commanders, who say the insurgents match ruthlessness with a growing tactical sophistication. American officers said that their helicopters had reached the crash site in minutes from a base at Taji, but found the insurgents already gone.
An Islamic Army statement posted in mosques in Anbar Province on Friday claimed that the helicopter had been shot down with a Soviet-made Strela heat-seeking missile by an attacker who had waited three days on a rise in the desert for a chance to fire on a foreign aircraft.
A senior American military officer in Iraq confirmed that the helicopter was hit by a missile and that American investigators were investigating the wreckage in an attempt to determine what kind of missile was used.
The officer said the attacker had either been lucky in stationing himself near the helicopter's flight path, or there had been "detailed reconnaissance" by the insurgents.
Low-flying helicopters do much of the transport for military personnel and foreign civilians across Iraq, avoiding dangerous roads. The Bulgarian aircraft was flying from Baghdad's Green Zone, the American command compound, to an American base in Tikrit, along a heavily flown route that passes near Taji, an insurgent stronghold.
The end for the man identified as Mr. Kostov came quickly.
When the video surveyed the helicopter wreckage, showing two charred bodies, one with a pistol holster strapped to his thigh, one of the insurgents could be heard saying in Arabic, referring to the bodies, "Look at this filth," and "God is great!" He quickly added, "See if there are any Americans left."
About 300 yards away, across the stony desert, a stretch of tall grass was visible. It was there the attackers found the pilot.
"Silah? Silah?" - "Any weapons?" - the insurgent asked after hauling the pilot to his feet. Mr. Kostov, seeming not to understand Arabic, gave no answer. "Go! Go!" the insurgent said in English.
As the pilot hobbled forward, the insurgent intoned what amounted to a death sentence. "Carry out God's judgment," he said, just as the pilot turned around, raising his right hand in a protective gesture. Eighteen shots followed, with Mr. Kostov falling backward into the grass, dust plumes around him as the bullets struck.
China looms as the world’s next leading auto exporter
The big question in the long term is whether industrial nations will keep their markets open
Posted online: Saturday, April 23, 2005 at 0037 hours IST
SHANGHAI, APRIL 22: Industrial heartlands from the Great Lakes region to Germany, look out — here comes the Chinese auto industry.
A senior DaimlerChrysler executive, Ruediger Grube, disclosed at the Shanghai Auto Show on Thursday that the company intended to export small cars from China to the United States. Daimler is already in talks with one of its Chinese joint-venture partners to build a factory for the exports, he said, and would like to work out the details and make a final decision on the project in the second half of the year.
But any cars from such a venture would be only part of what now seems to be shaping up as a broad assault on global automotive markets by Chinese companies and the Chinese divisions of multinational companies.
China’s auto parts exports of everything from Delphi parking-brake components to Johnson Controls seat covers are already increasing to countries around the world. Sizable exports of fully assembled cars by Chinese-owned automakers like Hafei and Chery have already begun to developing nations in South America, Africa and West Asia.
Until recently, high costs for auto parts, a scarcity of top-quality steel, a shortage of experienced engineers and a history of uneven quality had prevented China from using its inexpensive labour to gain any significant share of the world automotive market.
But all these problems, including quality, are gradually being fixed, even as Chinese industrial workers, at $2 an hour or less including benefits, remain among the lowest paid in the world.
The prospect of fully built cars from China appearing in showrooms in the US and Europe risks international confrontations over China’s trade and currency policies.
The Chrysler unit of DaimlerChrysler does not now sell a very small sedan of the sort the company proposes to import from China; its smallest offering in the US is the slightly larger Dodge Neon. But the planning for such a car is likely to stir memories of how Japan and South Korea started by dominating the American subcompact market and then steadily moved to larger vehicles.
Some Chinese manufacturers complain of receiving many invitations to bid from European, American and Japanese automakers that have little intention of buying, but want to use the bids to demand much lower prices from long-established domestic suppliers. ‘‘These groups come in from Ford or GM,’’ said Todd Fortner, president of the Changshu Automotive Interiors Company.
The big question in the longer term whether industrial nations will keep their markets open to imports and avoid protectionism.
Lately, there is talk of China wanting to export Chinese made automobiles and trucks to the United States. As China is mounting a larger effort to introduce and sell even MORE products here in this country (as if their direct feed through the largest retailer in the USA, i.e. the Great Wall-O-China Mart was not already enough) it seems they have been pressured, or on their own, decided to start acting as if they are "one of the team" with regard to the "Intellectual Property Cartel".
I believe this stems from purely pragmatic concerns, and perhaps, they are responding to pressure from the other countries to adopt this lunatic agenda from the Copyright Cartel.
As evidence, please see the "WHITE PAPER" they have produced, which begins with
the statement below.
An intellectual property system is a basic legal system that promotes mankind's economic development, social progress, scientific and technological innovation and cultural prosperity. Because science and technology is developing rapidly worldwide and the pace of economic globalization is accelerating, the status of the intellectual property system in economic and social life has reached an all-time high. The protection of intellectual property rights (IPR) has drawn widespread attention in the international community. "
I am including the full text of the white paper, which comes from China Daily at the following link.
The following is released from The Information Office of the State Council, China's cabinet.
An intellectual property system is a basic legal system that promotes mankind's economic development, social progress, scientific and technological innovation and cultural prosperity. Because science and technology is developing rapidly worldwide and the pace of economic globalization is accelerating, the status of the intellectual property system in economic and social life has reached an all-time high. The protection of intellectual property rights (IPR) has drawn widespread attention in the international community.
China is a country with a long history of civilization. Over the past few thousand years, vast numbers of outstanding Chinese scientists, inventors, writers and artists have made enormous contributions to mankind's development and progress through their intellectual achievements. The Chinese Government and people are keenly aware of the value of inventions, creations, science and technology.
The IPR protection system was established at a comparatively late date in China, but has developed rapidly. Major progress has been made in IPR protection since the late 1970s, when China initiated reform and opening-up policies. Over time, an IPR system has been gradually established and is promoting healthy economic development and overall social progress.
In order to help the international community have a better understanding of the real situation regarding China's IPR protection and make a proper judgment, we give here a brief introduction to and explanation of related issues.
I Basic Situation of the Protection of Intellectual Property Rights
China has always adopted a responsible attitude to actively promoting IPR protection. While adhering to the international rules on IPR protection, China has decided on a level of IPR protection appropriate for its own national situation. It has made great efforts to balance the interests of intellectual property creators, users and the general public, so as to create a benign circle for the creation and use of intellectual property.
Major progress has been made in IPR protection in China over the past years thanks to concerted efforts made by people from many different sectors.
A relatively complete system of laws and regulations that covers a wide range of subjects and is in line with generally accepted international rules has been established and keeps improving. Since the 1980s, the State has promulgated and put into effect a number of laws and regulations covering the major contents of IPR protection. These include the "Patent Law of the People's Republic of China," "Trademark Law of the People's Republic of China," "Copyright Law of the People's Republic of China," "Regulations on the Protection of Computer Software," " Regulations on the Protection of Layout Designs of Integrated Circuits," "Regulations on the Collective Management of Copyright," "Regulations on the Management of Audio-Video Products," "Regulations on the Protection of New Varieties of Plants," "Regulations on the Protection of Intellectual Property Rights by the Customs," "Regulations on the Protection of Special Signs" and "Regulations on the Protection of Olympic Logos." China has also promulgated a series of relevant rules for the implementation of these laws and regulations and their legal interpretation.
As a result, the system of laws and regulations on IPR protection in China has been continuously improved. In 2001, around the time when China was admitted into the WTO, in order to provide effective legal protection for IPR, the country made comprehensive revisions to the laws and regulations regarding IPR protection and their legal interpretation. While more emphasis is given to promoting the progress of science and technology and innovation with regard to legislative intent, content of rights, standards of protection and means of legal remedy, the revisions brought the laws and regulations into conformity with the WTO's "Agreement on Trade-related Aspects of Intellectual Property Rights" and other international rules on IPR protection.
A co-ordinated and efficient work system and a law enforcement mechanism have been established and improved. In its practice of IPR protection, a two-way parallel protection mode - administrative and judicial protection - has emerged in China.
Several departments in China are assigned the duty of protecting IPR. They include primarily the State Intellectual Property Office, State Administration for Industry and Commerce, Press and Publication General Administration, State Copyright Bureau, Ministry of Culture, Ministry of Agriculture, State Forestry Administration, Ministry of Public Security, General Administration of Customs, Supreme People's Court and Supreme People's Procuratorate. For many years these departments have done effective work in their respective fields. To further strengthen IPR protection, in 2004 China established the State IPR Protection Work Team headed by a vice-premier of the State Council, responsible for planning and co-ordinating the work regarding IPR protection throughout the country. Its office, located in the Ministry of Commerce, handles the routine work of the team.
In recent years, the State has increased work contacts between administrative law enforcement organs and public security organs and people's procuratorates with respect to IPR protection. In October 2000, the relevant departments jointly issued the "Notice on Strengthening Co-operation and Co-ordination in the Work of Investigating and Dealing with Criminal Cases that Infringe Intellectual Property Rights," which contains clear provisions.
In July 2001, the State Council promulgated the "Regulations on the Transfer of Suspected Criminal Cases by Administrative Law Enforcement Organs," which includes clear provisions on how the administrative law enforcement organs should transfer suspected criminal cases to public security organs in a timely fashion.
In March 2004, the relevant departments jointly issued the "Opinions on Increasing Work Contacts between Administrative Law Enforcement Organs and Public Security Organs and People's Procuratorates." A work mechanism involving the co-ordination of administrative law enforcement and criminal law enforcement has been established, creating a joint power to deal with IPR infringements. This ensures that suspected criminal cases enter the judicial process promptly.
In recent years, the judicial organs have adjudicated a large number of IPR infringement cases according to law. In civil cases, the infringed parties have received timely compensation for their financial losses, and IPR-related crimes have been effectively combatted.
Administrative law enforcement has been strengthened in IPR protection. As gradual improvements are made to the legal system on IPR protection, China has shifted its focus from legislation to law enforcement. Administrative law enforcement has been enhanced through the combination of routine management and supervision with special crackdown campaigns. In August 2004, the Chinese Government decided to launch a special one-year campaign to protect IPR across the country from September 2004 to August 2005. It was decided at the national TV and telephone conference on rectification and standardization of the market economic order convened by the State Council on March 31, 2005 that the campaign should be extended to the end of 2005.
With unified planning, the relevant departments have investigated and dealt with major IPR infringement cases, focusing on major fields in the protection of trademark rights, copyright and patent rights, on major links in the import and export of goods, all types of exhibitions and wholesale markets of commodities and on key places where producers and sellers of counterfeit goods were known to be concentrated. Their swift action and strict law enforcement efforts have dealt a blow to IPR offenders, achieving positive results.
Efforts are being made to heighten the awareness of the general public about IPR. The Chinese Government attaches great importance to publicity concerning IPR. Beginning in 2004, the State designated the week from April 20 to 26 every year as the "week for publicizing the importance of IPR protection." By making wide use of newspapers, magazines, television, radio and the Internet through holding seminars and knowledge contests and making public interest advertisements, the government can carry out publicity campaigns and educate the general public about IPR protection. The aim is to create a social atmosphere in which labour, knowledge, talent and creation are respected and heighten the general public's awareness of IPR.
To actively fulfil the international obligations to protect IPR, China has taken an active approach to joining major international conventions and agreements on IPR protection. Following its accession to the World Intellectual Property Organization in 1980, China joined in succession more than 10 international conventions, treaties, agreements and protocols, such as the "Paris Convention for the Protection of Industrial Property," "Patent Co-operation Treaty," "Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedure," "Locarno Agreement Establishing an International Classification for Industrial Designs," "Madrid Agreement Concerning the International Registration of Marks," "Nice Agreement Concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks," "Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks," "Agreement on Trade-related Aspects of Intellectual Property Rights," "International Convention for the Protection of New Varieties of Plants," "Berne Convention for the Protection of Literary and Artistic Works," "Universal Copyright Convention," and "Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication."
While strictly executing its international obligations in IPR protection, China has devoted great efforts to adjusting and improving international rules regarding IPR protection in order to let all countries of the world share the fruits and benefits brought about by the progress of science and technology. In recent years, China has held talks and engaged in exchanges and co-operation with other countries, international organizations and foreign-invested enterprises in the field of IPR. At the suggestion of the United States, starting in 2003, China and the US have held a round-table conference on IPR every year and reached agreement on many IPR-related issues at the two round-table conferences. In 2004, China and the European Union held their first round of talks on IPR in Beijing. Initial agreement was reached by the two sides on matters of co-operation related to IPR. Relevant Chinese departments have established good co-operative relations with corresponding departments in several countries and international organizations such as the World Intellectual Property Organization and International Union for the Protection of New Varieties of Plants. In September 2003, a mechanism was established for regular contact and co-ordination between relevant Chinese departments and foreign-invested enterprises. Under the mechanism, a meeting is held every three months to solicit comments and suggestions from foreign-invested enterprises on issues relating to IPR protection.
II Patent Protection
With the establishment of the China Patent Office in 1980, China's patent work has developed continuously over 25 years. On April 1, 1985, the "Patent Law of the People's Republic of China" came into effect. Following that, China promulgated several patent-related laws and regulations, such as the "Rules for the Implementation of the Patent Law," "Regulations on Patent Commissioning," "Procedures for the Administrative Enforcement of Laws Concerning Patents" and "Regulations on the Implementation of Customs Protection of Patent Rights." China has twice made revisions to the "Patent Law" in the light of the requirements of social and economic development so as to enable it to improve continuously.
By mainly relying on its own resources, China has established a relatively complete and independent patent examination system in a short period of time. On January 1, 1994, China became a member state of the "Patent Co-operation Treaty." The China Patent Office is China's agency dealing with cases involving the Patent Co-operation Treaty, performing international patent searches and preliminary examinations. Meanwhile, China has established a fairly comprehensive system for patent work. Relevant departments of the State Council and local governments have established patent administrative organs in accordance with the provisions of the "Patent Law." China now has more than 5,000 people working in patent agencies and a service system mainly providing patent commissioning, patent information, patent technology transfer intermediary and patent technology evaluation services has taken initial shape.
China's patent work has come along in leaps and bounds. From April 1, 1985 to the end of 2004, the State Intellectual Property Office handled 2,284,925 patent applications with an average annual increase of 18.9 per cent. Of these, 1,874,358 were domestic applications, and 410,567 came from other countries, accounting for 82 and 18 per cent respectively. Patent applications in China had exceeded two million by March 17, 2004. It took China 15 years for patent applications to reach one million. But it took only four years for the number to double. In 2004, the State Intellectual Property Office handled 353,807 applications, an increase of 14.7 per cent over the previous year, which saw 308,487 applications. Of these, 278,943 were domestic applications, accounting for 78.8 per cent of the total and an increase of 11 per cent over the previous year, which saw 251,238 applications. Foreign applications numbered 74,864, accounting for 21.2 per cent of the total and an increase of 30.8 per cent over the previous year, which saw 57,249 applications. From 1994 to 2004, the State Intellectual Property Office handled, in total, 7,131 international applications for patent rights, of which 1,592 such applications were handled in 2004. International patent applications that entered China via the channel of the Patent Co-operation Treaty totalled 157,770. Of these, 32,438 applications were submitted in 2004.
By the end of 2004, the State Intellectual Property Office had approved 1,255,499 patents. Of these, 1,093,268 were domestic ones, and 162,231 were from other countries, accounting for 87.1 and 12.9 per cent of the total number of approved patents, respectively. The numbers of invention patents, utility model patents and exterior design patents that had been approved were 185,412, 651, 224 and 418,863, accounting for 14.8, 51.9 and 33.3 per cent respectively. In 2004, the State Intellectual Property Office approved 190,238 patents, an increase of 4.4 per cent over the previous year, which had 182,226. It approved 151,328 domestic patents, an increase of 1.2 per cent, compared with 149,588 in the previous year. At the same time, it approved 38,910 foreign patents, an increase of 19.2 per cent over the previous year, which saw 32,638.
The "Regulations on the Protection of Layout Design of Integrated Circuits" went into effect in China on October 1, 2001. By the end of 2004, the State Intellectual Property Office had received 682 applications for the registration of layout design of integrated circuits. It registered 571 of them, and issued related public notices as well as certificates to the applicants. In 2004 alone, the State Intellectual Property Office received 244 applications for the registration of layout design of integrated circuits. It registered 205 of them, and issued related public notices as well as certificates to the applicants.
In recent years, patent administration departments at all levels have strengthened administrative enforcement of the law in this respect. In particular, they have launched crackdowns on infringements of patent rights of food and medicines, which are closely connected with people's health and lives. They have made great efforts to investigate and deal with cases that infringe upon the patent rights of key technologies and cases that had widespread repercussions. They have also conscientiously investigated and dealt with infringements and counterfeits of patent rights of inventions, utility models and exterior designs. Following the State Council's unified plan, in August 2004, the State Intellectual Property Office issued the "Work Programme on Strengthening Enforcement of the Laws on Intellectual Property Rights and Launching a Special Law Enforcement Campaign." All subsidiary departments under the State Intellectual Property Office were mobilized to participate in the campaign. By the end of that year, local intellectual property offices had checked 10,251 industrial venues and examined 2,081,537 commodity items. By the end of 2004, local patent administration departments across the country had accepted 12,058 cases involving patent infringement and patent disputes, and 10,411 of the cases, or 86.3 per cent, were resolved. In 2004, local patent administration departments accepted 1,455 cases involving patent disputes, and 1, 215 of them were resolved. They also dealt with 3,965 cases of patent counterfeits, and 358 cases of unauthorized use of others' patents.
III Trademark Protection
Great progress has been made in China's trademark protection work since November 1, 1979, when China resumed the unified registration of trademarks. The "Trademark Law" went into effect on March 1, 1983. The Chinese Government promulgated the "Rules for the Implementation of the Trademark Law" in March 1983 to help with the implementation of the law and in 1988 revised it for the first time. In February 1993, the Standing Committee of the National People's Congress (NPC) made the first revision to the " Trademark Law" to include service trademarks in the work of trademark protection, strengthen efforts to crack down on trademark infringement and counterfeiting and improve trademark registration procedures. In July 1993, the Chinese Government made revisions to the "Rules for the Implementation of the Trademark Law" for the second time to bring collective trademarks and certification trademarks into the scope of legal protection of trademarks and added to it provisions on the protection of "trademarks well known to the public."
In October 2001, the NPC Standing Committee made revisions to the "Trademark Law" for the second time to include three-dimensional trademarks and colour combination trademarks in the scope of trademark protection and offer greater protection to well-known trademarks. The revised "Trademark Law" also stipulates that the trademark system shall be used to protect geographical marks, judicial examination shall be added for the certification process of trademark rights and greater efforts shall be made to crack down on trademark infringement and counterfeiting, thus bringing the relevant provisions of China's "Trademark Law" in line with the principles of the WTO's "Agreement on Trade-related Aspects of Intellectual Property Rights." In August 2002, the Chinese Government again revised the "Rules for the Implementation of the Trademark Law" and renamed it "Regulations for the Implementation of the Trademark Law."
In accordance with the provisions of the "Trademark Law" and the "Regulations for the Implementation of the Trademark Law," the State Administration for Industry and Commerce formulated or revised several administrative rules and regulations, including the "Trademark Assessment Rules," "Provisions on the Recognition and Protection of well-known Trademarks," "Procedures for the Management and Registration of Collective Trademarks and Certification Trademarks," "Procedures for the Implementation of the Madrid Agreement for the International Registration of Trademarks and "Procedures for the Administration of the Printing of Trademarks."
As improvements are made to the legal system concerning trademarks and as the general public's awareness of trademarks is heightened, applications for trademark registration in China have soared in recent years. In 1980, applications for trademark registration were only a little more than 20,000. The number reached 132,000 in 1993. In the four years from 2000 to 2004, applications for trademark registration quickly exceeded the key marks of 200,000, 300,000, 400,000 and 500,000 and came to 1,906,000 finally. It means an additional 256,000 applications were submitted in these four years over the total submitted during the 20 years from 1980 to 1999. It accounts for 53.6 per cent of the total number of applications submitted from 1980 to 2004. In 2004, 588,000 applications were filed for trademark registration, 136,000 more than the previous year and an increase of 30 per cent. The number of applications in 2004 was 2.17 times that in 2001, when China joined the WTO. By the end of 2004, China had had 2,240,000 registered trademarks.
As the investment environment in China has constantly improved, especially after China joined the WTO, both the number of applications for trademark registration from foreigners and the number of registered foreign trademarks have kept increasing. In 1982, there were 1,565 foreign applications for trademark registration in China. The number exceeded 20,000 in 1993 and exceeded 60,000 in 2004. Before 1979, only 20 countries and regions had 5,130 trademarks registered in China. By the end of 2004, 129 countries and regions had had 403,000 trademarks registered in China, almost a 79-fold increase over that in 1979, accounting for 18 per cent of the total number of registered trademarks in China.
China has actively fulfilled its obligations to protect internationally well-known trademarks since it joined the "Paris Convention for the Protection of Industrial Property." In handling cases involving objections and disputes over ownership of trademarks as well as trademark management, the State Administration for Industry and Commerce has certified more than 400 well-known trademarks, effectively protecting according to law the legitimate rights and interests of owners of foreign and Chinese well-known trademarks. In 2004 alone, it certified and offered protection to 153 well-known trademarks, of which 28 were brand-names of foreign enterprises. Meanwhile, administrative organs of industry and commerce at all levels regard the protection of well-known trademarks as their priority and have made greater efforts to protect them. They have severely cracked down on all kinds of illegal acts that have infringed upon the rights and interests of well-known trademarks.
For years, administrative organs of industry and commerce at all levels across China have fully exploited their advantages in trademark administrative law enforcement: Complete networks, simple procedures and high efficiency. Focusing on the protection of the right to exclusive use of registered trademarks and dutifully carrying out their responsibilities, they have investigated and dealt with a large number of trademark infringement and counterfeiting cases, effectively protecting the right to exclusive use of registered trademarks of both foreign and domestic trademark owners and safeguarding the legitimate rights and interests of consumers. From 2001 to 2004, administrative organs of industry and commerce at all levels across China dealt with 169,600 cases that violated trademark laws and regulations. Of these, 113,000 cases involved trademark infringement and counterfeiting (12,000 cases involved foreign trademarks) and 56,600 cases were other types of violations of trademark laws and regulations. They confiscated and destroyed 529 million pieces (sets) of counterfeiting trademark logos and transferred 286 cases involving 300 people to judicial organs to pursue their criminal responsibilities. In 2004, in accordance with the unified plan and arrangement of the State Council on IPR protection and that of the State Administration for Industry and Commerce on the protection of the right to exclusive use of registered trademarks, administrative organs of industry and commerce at all levels across China launched three special campaigns that focused on the protection of well-known and foreign-related trademarks and on dealing with infringements of trademarks of food and medicine. The campaigns effectively protected the right to exclusive use of registered trademarks. According to statistics, in 2004, administrative organs of industry and commerce across China investigated and dealt with 51,851 law-violation cases involving trademarks. Of these, 5,494 concerned foreign trademarks, a 1.6-fold increase over that in 2003. Of the 51,851 cases they investigated, 11,680 were common violations of the trademark laws and regulations. The rest of the cases, altogether 40,171, involved trademark infringement or counterfeiting, an increase of 51.66 per cent over 2003. They confiscated and disposed of 38,951,800 pieces (sets) of illegal trademark logos, confiscated 280,800 tools such as molds and press plates used for the infringement and confiscated and destroyed 5638.53 tons of items that had been used for the infringement. They transferred to judicial organs 96 cases involving 82 people to pursue their legal responsibilities.
IV Copyright Protection
China's legal system for copyright protection was gradually established in the 1990s, with the implementation of the "Copyright Law" as a hallmark in this process. In recent years, China has made revisions to the "Copyright Law." It has also promulgated a number of regulations with legal effect, such as "Regulations on the Protection of Computer Software," "Regulations for the Implementation of the Copyright Law," "Procedures for the Implementation of Administrative Sanctions Concerning Copyright" and "Regulations on the Collective Management of Copyright." The promulgation and implementation of these legal documents have laid a solid legal foundation for copyright protection.
At present, China has formed a three-level copyright administrative management system: The State Copyright Bureau, copyright bureaux at the provincial level and the prefectural (city) level. Governments of various provinces, autonomous regions and municipalities directly under central government have constantly consolidated their copyright administrative management departments and made improvements to the system of copyright administrative management and law enforcement.
In recent years, China's copyright administrative management departments at all levels have strengthened their administrative enforcement of the copyright law. They have increased co-operation with other government departments, such as the departments of public security, industry and commerce, customs, press and publications, and cultural departments. As a result, a mechanism of law enforcement, whereby different departments are co-ordinated in combating copyright infringement and piracy has gradually taken shape. The copyright administrative management departments have always maintained the pressure on copyright infringement and piracy. They have launched several campaigns to crack down on pirated discs, textbooks, reference books, software, illegal duplication and selling of audio-video products, selling of smuggled audio-video products and Internet infringement practices. Positive achievements have been made. According to incomplete statistics, from 1995 to 2004, copyright administrative management departments at all levels confiscated 350 million pirated copies, accepted 51,368 cases of infringement and resolved 49,983 of them. In 2004, they accepted 9,691 cases of infringement, resolved 9,497 of them and imposed administrative sanctions on the infringers in 7,986 cases. These included the investigation and punishment of two Chinese enterprises that had infringed upon the copyright of the Microsoft Corporation of the United States and other major cases.
While establishing and improving its copyright legal system and strengthening its copyright administrative management, China also attaches great importance to the establishment of a copyright public service system. At present, China has established a copyright public management and service system consisting of copyright collective management organs, copyright agencies, copyright protection associations, professional associations and organizations of copyright holders. In 1988, the Copyright Agency of China was established. In 1990, the Copyright Research Society of China was established and its name was changed to the Copyright Society of China in 2002. In 1993 the China Copyright Society of Works of Music was established. And in 1998, the Copyright Protection Centre of China was established. At present, writers' associations, such as China Federation of Literary and Art Circles, China Writers' Association and China Film Association as well as professional associations of book publishers, producers of audio-video products and software developers have established their own copyright protection organizations. Copyright societies have been established in more than 20 provinces, autonomous regions and municipalities directly under the central government as well as some major cities. Preparatory work is under way to establish China's collective copyright management organizations of books and audio-video products.
V. Intellectual Property Rights Protection for Audio and Video Products
Persistent piracy of audio and video products in spite of repeated bans is a problem of international significance. The Chinese Government attaches great importance to IPR protection for audio and video products, treats crackdown on piracy of audio and video products as an important task in IPR protection and has made continuous efforts to carry it out. In recent years, China has gradually established a whole set of systems for the management of audio and video products, which mainly includes an IPR protection system, audio and video business licence system, exclusive publication right system, duplication authorization system, SID code system, censorship system for imported audio and video products, the system of rewards for informants, the system of uniform anti-counterfeit labels for audio and video products, the system of registration and filing of audio and video products in storehouses and the system of inspection of, reporting on and keeping the public informed of illegal audio and video products.
In August 1994, the government promulgated the "Regulations on the Administration of Audio and Video Products" and amended it in December 2001. In accordance with the relevant laws and regulations, including the "General Principles of the Civil Law," "Copyright Law," "Criminal Law" and "Regulations on the Administration of Audio and Video Products," the Press and Publication General Administration, Ministry of Culture, General Administration of Customs and Ministry of Commerce respectively and jointly issued a series of administrative regulations, such as the "Regulations on the Administration of Publication of Audio and Video Products," "Measures for the Administration of Wholesale, Retail and Renting of Audio and Video Products," "Measures for the Administration of Import of Audio and Video Products" and "Measures for the Administration of China-Foreign Cooperative Distribution Enterprises of Audio-video Products," providing both legal and administrative groundwork for the business and protection of audio and video products.
In light of the rapidly developing audio-video market, the government has, step by step, readjusted its administration of the audio-video industry. The "Regulations on the Administration of Audio and Video Products" provides for the division of functions in the administration of the industry. In 1998, the State Council further sorted out the administrative system on the principle of "streamlining, efficiency and unification," clearly assigning the administration of audio-video products' production, publication and duplication to the Press and Publication General Administration; and that of wholesale, retail, renting, showing and import of audio-video products to the Ministry of Culture. Following the suit of the central government, the local governments have also readjusted their administrative systems in this regard. So far, China has initially established market management networks at the central, provincial, prefectural and county levels. In most areas, investigation squads have been set up to keep watch on cultural markets, including the market for audio and video products. They sincerely perform the duties of supervision and administration of the audio-video market.
Since the 1990s, the publication market supervision authorities and cultural administration authorities have co-operated closely with other relevant departments in making sustained efforts to enforce order in the audio-video market. As a result, the audio-video market has been gradually improved, the number of pirated audio-video products clearly reduced and the circulation of authorized copies greatly increased. According to incomplete statistics, from 1994 to 2004, nine CD duplicating enterprises had their duplication business licences revoked and 200 illegal CD production lines were discovered. In August 2004, under the unified arrangement of the special IPR protection campaign, the Ministry of Culture drew up an overall plan for an intensive crackdown on infringements in the audio-video industry, in accordance with which it guided and co-ordinated with key cities and areas in strengthening law enforcement and discovering and closing down a large number of underground storehouses and distribution networks of illegal audio-video products. In 2004, cultural market inspecting and management authorities throughout the country inspected audio-video businesses on 555,368 occasions, confiscating 154 million illegal copies of audio-video works. On January 12, 2005, the Ministry of Culture and the Office of the National Working Group on Intellectual Property Rights Protection launched a nationwide campaign to destroy illegal audio-video products, during which over 63.35 million copies of such products were destroyed.
VI. Protection of New Varieties of Agricultural and Forestry Plants
Proceeding from the actual conditions of China and on the basis of earnestly summing up and borrowing from international experience, the Chinese Government has set up and carried out a series of systems and measures for the protection of new varieties of plants, thus fully guaranteeing the legitimate rights and interests of the investment bodies involved. On October 1, 1997, the government began implementing the "Regulations on the Protection of New Varieties of Plants," greatly expanding the scope of IPR protection in China.
To supplement the implementation of the "Regulations on the Protection of New Varieties of Plants," the Chinese Government has in succession promulgated and implemented such regulations as the "Rules for the Implementation of the Regulations on the Protection of New Varieties of Plants (Agriculture)," "Rules for the Implementation of the Regulations on the Protection of New Varieties of Plants (Forestry)," "Regulations on Agency of New Agricultural Plant Variety Rights," "Regulations on Handling Cases of Infringement of New Agricultural Plant Variety Rights," and "Regulations of the Ministry of Agriculture on the Work of the Re-examination Board for New Varieties of Plants," providing legal guarantees for the rapid development of new varieties of plants.
In recent years, the government has set up the Office of Protection of New Varieties of Plants and the Re-examination Board for New Varieties of Plants at the Ministry of Agriculture and State Forestry Administration, respectively, forming an institutional protection system combining examination and approval agencies, law-enforcement organizations, intermediary service organizations and other rights protection organizations. Meanwhile, a technological support system has been established, which includes the Centre for the Preservation of Breeding Materials of New Varieties of Agricultural Plants, Centre for the Testing of New Varieties of Plants and its 14 sub-centres, and the Centre for the Testing of New Varieties of Forest Plants and its five sub-centres and two molecule determination laboratories. To ensure scientific and authoritative examination of plant variety rights and drawing on the international standards for testing new varieties of plants, the relevant authorities have, based on the actual conditions of China, formulated guides for testing 57 new varieties of plants, including corn, rice, poplar and peony, of which 18 have been promulgated and implemented as national or industrial standards.
The government has issued and implemented five lists of protected new varieties of agricultural plants and four lists of protected new varieties of forest plants, which cover 119 genera and species, including 41 agricultural plants and 78 forest plants. The numbers are far higher than the minimum numbers required by the "International Convention for the Protection of New Varieties of Plants."
By the end of 2004, the Ministry of Agriculture had handled 2,046 applications for plant variety rights. The number of applications handled in 1999 was 115 and by 2004 it had reached 735, indicating an average annual increase of 44.9 per cent. Among all the applications, there were 1,875 for field crops, 87 for vegetables, 52 for fruit trees and 32 for decorative plants. A total of 2,174 applications were from scientific, technological and educational institutions and 772 from enterprises and individuals, which included 32 from foreign enterprises and individuals. After examination, 503 applications were granted the variety rights.
By the end of 2004, the State Forestry Administration had handled 305 applications for variety rights, including 64 from France, Germany, the Netherlands, Belgium and the United States and granted 72 new plant variety rights. These plants included the Chinese rose, peony, Christmas flower, azalea, poplar, Chinese chestnut, apricot, eucalyptus and walnut. Of them, 253 applications were for decorative arbors, accounting for 82.95 per cent of the total. The applications were mainly from Chinese research institutions, foreign individuals engaged in breeding and Chinese universities, which accounted for 50.2 per cent, 14.4 per cent and 11.1 per cent respectively of the total.
Since 2001, the government began experimental law enforcement on the protection of new varieties of plants in 12 selected provinces and municipalities and then gradually spread the work across the country. By the end of 2004, 17 provinces, autonomous regions and municipalities directly under the central government had handled 863 cases of infringement of new agricultural plant variety rights and faking new agricultural plant varieties.
VII. Customs Protection of Intellectual Property Rights
In September 1994, China began to carry out border protection of IPR. At present, Chinese customs houses have established a complete system of IPR-related law enforcement measures, which includes such links as examination of customs declaration bills and certificates, inspection of imported and exported goods, detention and investigation of right-infringing goods, punishment of illegal importers and exporters and disposal of right-infringing goods.
In October 1995, China promulgated and implemented its first ever "Regulations on the Protection of Intellectual Property Rights by the Customs," and began to establish its system of IPR customs protection in accordance with the WTO rules. In 2000, the NPC Standing Committee amended the "Customs Law of the People's Republic of China," defining the functions of IPR customs protection from a legal perspective. In December 2003, the Chinese Government promulgated the revised "Regulations on the Protection of Intellectual Property Rights by the Customs," which strengthened the customs houses' power in investigating and dealing with right-infringing goods, reduced the burden on the proprietors of intellectual properties in seeking customs protection and defined the functions of the customs houses, the judicial and other administrative organizations. Later, the General Administration of Customs formulated the "Measures for Implementation" of the revised regulations, which clearly provided for such issues mentioned in the revised regulations as keeping business secrets, filing of international registered trademarks, collecting and returning of security deposits and the payment of relevant fees by the proprietors. In September 2004, the Chinese Government promulgated the "Regulations on Implementation of Administrative Penalties," which clearly provided administrative penalties for infringements on IPR in importation and exportation. The "Interpretations on Several Issues in Practical Application of Laws in Criminal Cases of Infringement on Intellectual Property Rights" was promulgated by the Supreme People's Court and the Supreme People's Procuratorate in December 2004, which further clearly stipulated the legal responsibilities of agencies importing or exporting right-infringing goods. By then, a legal system for IPR customs protection geared to the needs of economic and social development had been basically established.
China has established and improved its law enforcement mechanism for IPR customs protection. Firstly, it has established a central filing system for IPR customs protection. As long as the IPR proprietors have filed their IPR with the General Administration of Customs, the port customs have the power to detain imported or exported goods that infringe the filed IPR. By the end of 2004, the General Administration of Customs had confirmed 6,257 files of IPR for customs protection. Secondly, a model combining active protection with passive protection is implemented in law enforcement. Besides detaining import or export goods suspected of IPR infringement, customs can also investigate and deal with illegal import and export of right-infringing goods within the scope of their powers and duties. Thirdly, law enforcement organizations have been founded and improved and the building of IPR law enforcement teams enhanced. By the end of 2004, all customs houses directly under the General Administration of Customs had set up relevant departments for the management of IPR protection and 11 of them had set up special organizations for IPR protection. Some customs houses with adequate conditions had stationed liaison officers on site. A system of IPR law enforcement has taken shape on three levels, namely, the General Administration of Customs, customs houses directly under it, and grass-roots customs posts.
To curb right infringements and piracy in import and export links, the port customs all over China focus law enforcement on import and export of fake and pirated products. From 1996 to 2004, the Chinese customs ferreted out 4,361 cases of right infringement in import and export, which involved 630 million yuan (US$76 million). Since 2000, the number of cases discovered by the customs has increased by 30 per cent annually. Customs have effectively cracked down on the illegal import and export of right-infringing goods, preserving order at ports and safeguarding the interests of proprietors.
In offering IPR border protection, Chinese customs attach great importance to liaison and co-operation with proprietors and relevant organizations and associations of proprietors and have enhanced their communication and co-ordination with IPR authorities and their co-operation and exchanges with foreign border law enforcement authorities. So far, Chinese customs have signed memorandums of co-operation on IPR protection with such proprietors' organizations as the Motion Picture Association of America and have co-operated with them successfully. Chinese customs have co-operated on many occasions in law enforcement with IPR-related administrative and criminal law enforcement authorities, such as IPR management authorities and public security organs, effectively cracking down on illegal and criminal IPR infringement. Chinese customs have signed agreements of mutual assistance in administrative law enforcement with the customs of the European Union countries, the United States and other countries, which contain the provisions on IPR customs protection. Chinese customs have also actively conducted information exchange and law enforcement co-operation regarding IPR protection with the customs services of other countries.
VIII. Public Security Organs Act on Criminal Infringement of Intellectual Property Rights
In recent years, the Chinese public security organs have adopted a series of measures to crack down on all kinds of criminal IPR infringement, continuously enhanced their law enforcement standards and abilities, and safeguarded the sound development of the socialist market economy.
In 1998, to step up the fight against criminal IPR infringement, and in accordance with the provisions of the "Criminal Procedure Law," the Ministry of Public Security established a specialized department to organize, guide and co-ordinate the fight against criminal IPR infringement, and supervise the handling of serious cases. Local public security organs at all levels, from the top downward, have set up specialized investigation teams for receiving, filing and investigating such criminal cases. From 2000 to 2004, Chinese public security organs cracked 5,305 cases of criminal infringement on IPR, which involved nearly 2.2 billion yuan (US$266 million), and arrested 7,100 suspects. Among them, there were 4,269 cases concerning infringement on the exclusive rights of trademark ownership, which involved 1.18 billion yuan (US$143 million), and 5,564 suspects were arrested. A number of suspects were found guilty of the production and sale of fake or inferior products and illegal business operation, and sentenced accordingly.
Since November 2004, the Ministry of Public Security has launched a one-year national campaign against criminal infringement on the exclusive rights of trademark ownership, cracking some cases of criminal IPR infringement that were of widespread and baneful repercussions and involved large amounts of money. These cases included: Production of fake Gillette razor blades cracked by the public security organs of Zhejiang Province, production of fake Adidas and Nike sports shoes cracked by the public security organs of Fujian Province, production of fake Cisco (USA) electronic products cracked by the public security organs of Guangdong Province, and production of fake brand-name liquors, including Wuliangye, cracked by the public security organs of Sichuan Province.
As more and more foreign companies are investing, selling their products and building enterprises and R&D centres in China, the Chinese public security organs have gradually established a system of regular communication and co-ordination with IPR proprietors, earnestly listening to their opinions and suggestions. Since December 2002, together with relevant associations of enterprises with foreign investment, the Ministry of Public Security has held three forums on the "Protection of Intellectual Property Rights" and published forum declarations, improving communication and co-ordination in this field.
In view of increasing transnational and cross-border criminal cases of IPR infringement, the Chinese public security organs attach great importance to international law enforcement co-operation in the fight against IPR infringement, and have conducted co-operation with the law enforcement organizations of various countries in assisting in investigation and collection of evidence, exchange of information and judicial assistance. In July 2004, working together with the Immigration and Customs Enforcement of the Department of Homeland Security of the United States, Chinese public security organs successfully cracked a serious case of suspected sale of pirated DVDs in Shanghai, arrested seven suspects headed by an American citizen, raided three places where pirated DVDs were hidden, and confiscated over 210,000 pirated DVDs.
IX. Judicial Protection of Intellectual Property Rights
In recent years, the Chinese procuratorial organs have conscientiously exercised their duty of examination of arrests and prosecutions in cases of criminal IPR infringement, as well as legal supervision over relevant criminal lawsuits in accordance with law and handled a large number of cases of suspected criminal IPR infringement. From 2000 to 2004, the procuratorial organs at all levels approved the arrests of 2,533 people suspected of criminal IPR infringement, and instituted prosecutions against 2,566 suspects. In 2004, the arrests of 602 people suspected of criminal IPR infringement were approved, and prosecutions against 638 suspects were instituted. In the same year, procuratorial organs around China launched a special drive to supervise cases involving production of fake products and IPR infringement. During which they urged relevant administrative law enforcement organs to transfer suspected criminal cases to public security organs according to law, supervised the filing of cases that should have been filed by public security organs according to law, made sure that suspected criminal cases entered judicial proceedings in time, and investigated some criminal cases of conniving and covering up production and sale of fake products and of IPR infringement involving government functionaries abusing their powers.
For many years, the Chinese people's courts at all levels have continuously strengthened work in IPR-related civil and criminal trials under the principle of "justice and efficiency." Through handling a large number of IPR-related cases, they have protected the legitimate rights and interests of Chinese and foreign IPR proprietors equally, punished acts of IPR infringement and severely cracked down on criminal IPR infringements, making unremitting efforts to realize social fairness and justice.
Since the handling of the first case of a technological contract dispute in 1981, Chinese courts have continuously expanded the range of IPR-related trials to include cases concerning copyright, trademarks, patents, unfair competition, computer software, new varieties of plants and integrated circuit layout designs, thus establishing the status of court trials in the handling of IPR-related cases. From 1998 to 2004, courts throughout the country concluded 38,228 IPR-related civil cases of first instance and 2,057 criminal cases of first instance involving IPR infringement in accordance with Section Seven, Chapter III of the "Specific Provisions" of the "Criminal Law," handing down sentences to 2,375 criminals. Among these cases, in 2004, 8,332 civil IPR-related cases of first instance and 385 criminal cases of first instance involving IPR infringement in accordance with Section Seven, Chapter III of the "Specific Provisions" of the "Criminal Law" were concluded, and 528 criminals were punished. In the same year, the Chinese courts also concluded 932 criminal cases of production and sale of fake or inferior goods, punishing 1,453 criminals involved, and concluded 1,434 criminal cases of illegal business operation, punishing 2,103 criminals. A considerable proportion of the above two types of cases also involved criminal IPR infringement.
To correctly apply laws and make law enforcement standards coherent, and based on its experience in handling IPR-related cases, the Supreme People's Court of China has formulated a series of relevant judicial interpretations in accordance with the law, and improved a series of important IPR-related law application principles, which have played an important role in the timely settlement of new problems emerging from the handling of IPR-related cases and in guiding the correct handling of IPR-related cases by the people's courts at all levels. For example, the "Several Provisions on Law Application for Stopping Patent Infringement before Litigation" promulgated by the Supreme People's Court in June 2001 provided judicial measures for stopping right infringements and effectively preventing more losses on the part of proprietors. The "Interpretation of Several Issues Regarding Specific Law Application in Handling Cases of Illegal Publications" promulgated by the Supreme People's Court in December 1998 defined the standards of condemnation and penalty for criminal offences of copyright infringement. The "Interpretation of Several Issues Regarding Specific Law Application in Handling Criminal Cases of Intellectual Property Rights Infringement" jointly promulgated by the Supreme People's Court and the Supreme People's Procuratorate in December 2004 properly reduced the culpability standards for the crimes of IPR infringement strictly in accordance with the provisions of the "Criminal Law" and in light of China's actual conditions and judicial reality, increased the applicability of the relevant provisions of the "Criminal Law," and provided a concrete applicable legal basis for handling criminal cases of IPR infringement, and was thus of great significance for effectively cracking down on crimes of IPR infringement.
The Chinese courts put special emphasis on the professional training of IPR judges. After many years of judicial practice and systematic training, a contingent has been formed of highly competent IPR judges who speak foreign languages, and have an intimate knowledge of the law, rich judicial experience and expertise in science and technology. Relatively complete IPR-related judicial departments have been gradually established, providing a strong personnel and organizational guarantee for effective IPR-related judicial work.
The Chinese courts have continuously enhanced international exchanges and co-operation in the field of IPR-related judicature, learning and borrowing from the useful experience and successful practices of foreign countries. The Supreme People's Court actively conducts friendly co-operation with the World Intellectual Property Organization and European Union, and has hosted several seminars and training courses on IPR, the results of which have been encouraging. These seminars and training courses have effectively promoted the enhancement of China's IPR judicial protection, and continuously pushed the level of its IPR-related judicial work to a new high.
Practice over the past two decades and more has shown that the Chinese Government has made concerted efforts to protect IPR. China has achieved a noticeably great improvement in IPR protection, which took developed countries several decades and even over a century to attain. However, the Chinese Government is clearly aware that, in a large developing country with a population of 1.3 billion, relatively backward economy and low level of science and technology, a complete IPR protection system cannot be established overnight. China has a long way to go in this regard, and faces a tough task when it comes to IPR protection.
At present, there are still IPR infringements in certain areas and fields in China, some of which are very serious. The awareness of the importance of IPR in Chinese society as a whole needs to be further enhanced. Meanwhile, China's IPR protection work is facing new challenges in the course of economic globalization and the rapid development of science and technology worldwide. In accordance with the requirements of the concept of scientific development, the Chinese Government will adopt more effective policies and measures in the process of building a xiaokang society one that is comprehensively better-off and developing a harmonious society, while at the same time exerting efforts to raise its IPR protection work to a new level.
For many years China has received active support and assistance from the international community in the establishment of its IPR protection system. In the future, the Chinese Government will continue to earnestly execute its international obligations in this regard, enhance its co-operation with various countries and international organizations with a more active, open attitude, and join together with them in promoting the establishment of a sound system and environment favourable for IPR protection."
I think this is scary !
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