customs cases to criminal authorities, and has taken some steps to pursue administrative actions against end-user software piracy. China recently posted an IPR ombudsman to its Embassy in Washington, who has facilitated contacts between U.S. government officials and their counterparts in Beijing, and been a source of information for U.S. businesses, including small and medium-size companies.
China has also sought to expand enforcement cooperation as agreed at the 2004 and 2005 JCCT meetings. In response to a proposal from China's General Administration of Customs (GAC), U.S. Customs and Border Protection (CBP) is developing a plan under which CBP will cooperate with GAC to affect a four-part customs cooperation program aimed at improving administrative IPR border enforcement in both countries. A key element of the proposal is a possible data exchange process through which, on an initial trial basis, CBP and GAC will share information permissible by law, e.g., names of manufacturers, addresses, and descriptions of the goods relating to suspected violators. In addition, CBP and GAC plan to exchange statistical information on IPR border seizures within each country. Each country will appoint a contact to receive and act on information provided regarding IPR-infringing goods. CBP and GAC will also work to conduct technical exchanges on topics such as legislative/regulatory improvements, risk modeling and IPR recordation administration. U.S. Immigration and Customs Enforcement is also working to increase cooperation with China's Ministry of Public Security through the Joint Liaison Group.
China is also taking steps to meet its 2005 JCCT commitment to submit a legislative package to the National People's Congress in June 2006 for China to join the WIPO Internet Treaties. However, the U.S. government has numerous, serious concerns regarding the current draft regulations which would govern aspects of copyright protection over the Internet. For example:
- The draft only provides legal protections and remedies relating to technological protection measures (TPMs) that prevent or restrict the making available to the public of a work (e.g., passwords). It provides neither legal protections nor remedies to prevent circumvention of copy-control TPMs. Its exception to protection against circumvention remains overbroad. Without such protections and remedies, the United States is concerned that China will not provide effective protection against copyright infringement on the Internet.
- The United States has concerns about several broad limitations on rights. These provisions should be reconsidered in the light of the tests for limitations and exceptions to copyright prescribed by the WIPO Internet Treaties and TRIPS.
- The notice and take down measures for a copyright holder appear overly burdensome and rigid. As the Internet becomes a more popular means for distributing copyrighted material such as music, it is critical that these regulations include effective and efficient means of notifying Internet service providers and taking down infringing material.
China needs to address these concerns before finalizing its implementing measures. The United States is pleased that at the 2006 JCCT, China requested a strengthening of communication and cooperation on domestic measures that will enable China to join the WIPO Internet Treaties.
