Jun 28, 2019
Protecting intellectual property (IP) rights is a pressing issue for countries around the globe, especially in China. Countries face continuing controversies over the extent and nature of intellectual property rights. International law has implemented many regulations and recommendations surrounding IP protection; however, no matter how good laws may be on paper, problems with implementation still arise. Meanwhile, laws are often inadequately executed. Laws on intellectual property rights in India and China are similar to systems in Western countries; but, there are important differences. Some of the main countries tasked with IP protection are counterfeit goods, privacy, and fraud. This article will discuss some of the major differences between India’s and China’s intellectual property climates.
Intellectual Property Rights in India
India’s intellectual property protections began to develop during the British Raj. This period saw the Trademark Act of 1940, the Designs Act of 1911, and the Copyright Act of 1709. The first Patent Act was put in place in 1856 and reestablished in 1859. Only India’s parliament can pass laws dealing with patents, designs, copyrights, inventions, and trademarks. This was established by Entry 49, List 1 of the 7th Schedule, and Article 246 of India’s Constitution. India has signed onto the Berne Convention, the Paris Convention, the Madrid Protocol, and the Patent Cooperation Treaty. India has also been a member of the World Trade Organization (WTO) since 1995.
India’s 1970 Patents Act and 2003 Patent Rules outlined laws dealing with patents. The Patent Registrar is a subsection of India’s Ministry of Commerce and Industry. Patents are valid for 20 years from the filing date with an annual renewal fee. India’s Patent Law also operates under a first to file rule. India’s laws regulating designs are the 2000 Designs Act and the 2001 Designs Rules. Under Indian law, designs are valid for up to 10 years with a possible renewal of 5 extra years. Indian trademark laws include the Trademarks Act of 1999 and the 2002 Trademark Rules.
The Controller General of Patents, Designs, and Trademarks is the regulatory authority for patents. It operates under the Department of Industrial Policy and Promotion. Indian police now have enforcement powers for trademark laws. This includes searching premises and seizing suspected counterfeit goods without the need for warrants. Trade names are also a form of a trademark under Indian law. They’re complete with protections regardless of existing trade names for anyone looking to trade using their surname. Indian trademarks are valid for 10 years. They can be renewed indefinitely for an additional 10-year period.
Intellectual Property Rights in China
In China, intellectual property rights began with the “four modernization” policy, which Deng Xiaoping launched in 1978. As the Chinese economy developed, the government added IP rights provisions into law. Three decades later, China has established an intellectual property system. It has also passed national laws on intellectual property rights. China established institutions that are responsible for developing and monitoring legal compliance. The country joined the WTO in 2001. China has also signed the Berne Convention, the Paris Convention, the Madrid Protocol, and the Patent Cooperation Treaty. However, it’s not currently a signatory of the Hague Agreement, which protects designs in several countries using only one filing.
In China, registrations are made with the National Copyright Administration, responsible for the enforcement of copyright-related issues. In India, registration can help prove ownership during criminal proceedings against copyright infringers. However, usually, registration isn’t necessary when filing a copyright infringement claim. When registrations are made, they’re made with the Copyright Office. China’s Patent Law covers utility models and designs (known as design patents). Invention patents offer protection for up to 20 years, and utility models are protected for 10. Both are subject to annual fees.
Chinese Patent Law uses a first to file principle. This means that if two individuals apply for a patent on the same invention, the first filer will receive it. Registering foreign businesses in compliance with the Madrid Protocol takes approximately 18 months. Direct registrations using China’s domestic system can take up to four years, and trademarks are valid for 10 years. They can be renewed indefinitely for an extra 10-year period.
International IP Legislation
The World Trade Organization (WTO) requires nations to pass intellectual property laws in line with certain standards. This means there should be a few major differences between the intellectual property laws of developed nations. This includes India and China. Both India and China are signatories of the Berne Convention. Copyright law is based on the 1990 Chinese Copyright Law and the Copyright Implementing Regulations passed in 2002. No requirement to register copyright exists in India or China. However, registration is recommended in case firms must prove ownership in legal disputes.
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