Lars S. Smith's blog
As I mentioned in a previous post, I was invited to visit China by the President of Zhongnan University of Economics and Law, to lecture to graduate students in the Center for Studies of Intellectual Property Rights (referred to as the IP center, or the IPRCN). This visit was coordinated by Professor Llew Gibbons, who is a Fulbright Lecturer at Zhongnan University. I was asked to lecture to Professor Gibbons's students, all of whom are law school graduates at the university to obtain either a masters or Ph.D. in intellectual property law. He is teaching a survey course on U.S. intellectual property law, and so I used the opportunity to lecture on two issues: the derivative work right under the U.S. Copyright Act, which led nicely into my second lecture on IP protection for data stored in radio frequency identification chips (RFID).
I was very impressed by the knowledge and interest of the students. They were well schooled in the basics of U.S. IP law, participated in class discussions, and asked excellent questions. Obviously Professor Gibbons had done a great job over the last few months teaching the students, getting them over their fears of talking in class. My favorite part of the RFID lecture was when one student stood up (they all stood when asking or answering questions - I should make my US students do that!) and told me he disagreed with my analysis. In fact I had skipped over an issue on database protection under US copyright law in order to shorten the presentation, and the student caught the leap in the logic. What was impressive is that even though Chinese students generally believe that it is rude to disagree with a professor, this student had become comfortable enough in this class to be able to challenge the information being provided. We had a great exchange, and it allowed us to tease out a more nuanced issued related to U.S. copyright law, and allowed me to compare U.S. law and EU law. We then discussed what the Chinese position on database protection was (similar to U.S. law, as it turns out). It was a great teaching moment for the student and the class, and a neat experience for me. I look forward to teaching the students at the IPRCN, should I be fortunate enough to be invited back.
As visitors to China, Professor Gibbons and I were given a rare opportunity this week to observe a copyright case in the Wuhan Intermediate People's Court. While the courts are generally open to Chinese citizens, foreigners are not allowed to observe without permission of the court. Professor Gibbons' research assistant at Zhongnan University of Economics and Law was able to obtain this permission for us. In order to improve the handling of IP disputes, China has created a special system for trying cases involving intellectual property. Cases are heard in The Intellectual Property Trial Chamber of Intermediate People's Courts, not a lower trial court. The Intermediate People's Court is an intermediate court of appeal, although it is the court of first instance for IP cases. I found the following site on the web that seems to do a nice job of explaining the court system.
We observed a copyright case involving the allegedly infringing broadcast of a Chinese movie. The local Wuhan TV station had broadcast a 2003 film made in Hong Kong (it was described to me as a Chinese James Bond type movie). They edited the movie extensively by adding in advertisements, and had a commentator talk about the movie during the breaks. The plaintiff was the Hong Kong distributor, and allegedly its producer. The Wuhan company had licensed the film from a Beijing company, which had apparently obtained rights to the movie in mainland China. The two main disputed issues were whether the Hong Kong company could prove it was the owner of the copyright, and whether adding the advertising and commentary created a derivative work that infringed the copyright.
The case was heard by a panel of 3 judges. The panel was lead by a presiding judge, although one of the other judges had direct responsibility for the case. As I understood the procedure, the case consisted of two basic phases, the cross examination of evidence, and the debate. The cross examination phase had 3 parts. First, the lawyers gave their opening statements; second, they presented their arguments about the disputed evidence; and third, the judges examined the lawyers about the facts. Interestingly, there were no witnesses, not even a witness box. Apparently IP cases are handled almost entirely by documentary evidence. While it is possible to have witnesses testify, it is rare, because the Chinese civil courts do not have the power to compel testimony, according to the presiding judge. He was quite surprised, and impressed, with the subpoena and contempt powers an American judge has to force people to come to court. Discovery is now possible in China, and so the only evidence that is examined is the disputed evidence.
The second phase was the debate, or what I would call closing arguments. The debate period is literally a debate, because both sides have an opportunity to rebut the other side's arguments. The trial lasted about 2 hours. I would compare the trial to a summary judgment hearing in our system. The judges took the case under advisement, and told us they expected to issue a decision within a month or so.
Here are a couple of pictures from the court:
Picture with Judge responsible for case.
On a more trivial note, my visit continues to be fascinating. I visited the Great Wall and the Ming Tombs over the weekend. The wall is a tremendous structure - much like the Forbidden City, it is difficult to appreciate its size without actually visiting. According to my limited knowledge of its history, the Great Wall started out as a collection of separate walls that were later joined together by various emperors. Although the Great Wall was apparently never directly breached by invaders from the North, it could be surmounted with the assistance of a well-placed bribe to a sentry. I visited the Great Wall at Badaling, which is just outside of Beijing. It's a busy tourist location, so we arrived at 8:30 to beat the crowds. By the time we left at 10:30, it was hard to maneuver on the wall. Afterwards, we visited the Ming Tombs, specifically the Ding Ling tomb site, the underground tomb of the Wenli emperor, which has been fully excavated. Unfortunately, the site suffered under the cultural revolution, so much of the contents were lost. Even so, it is an impressive site. Further updates to follow about my attendance at a trial involving a copyright dispute, and a Chinese tea ceremony.
Today I got to visit the Forbidden City. It is difficult to explain how huge a site it is. I was going to spend a lot of time explaining the dimensions and scope of it, but I'll be lazy and just insert a link to the wikipedia site. It is clear that the Chinese government has spent a great deal of time and effort to renovate the facility. Some of the throne rooms are still closed for renovations, so I missed the opportunity to see how a University should treat its faculty. However, I did learn how the faculty should properly kowtow to the dean. According to my host, Professor Llew Gibbons who is in China as a Fulbright lecturer, the coffee shop in the Emperor's garden used to be a Starbucks, but is now a locally branded Chinese coffee shop. The prices remain about the same (I did not have a cup, so I don't know how it tastes). So much for American trademark hegemony. On the flip side, Kentucky residents will be proud to know that KFC is the largest fast food chain restaurant in China, with over 2,500 outlets (including some Pizza Huts), according to the China Daily newspaper. In an article I read it said that most of Yum! Brands profits will come from China this year.
Professor Gibbons and I did have Peking Duck at the Li Qun Roast Duck restaurant off the beaten path in a houtong area. A "houtong" is a residential neighborhood from the Qing dynasty, where four homes share a common courtyard. While they were prevalent throughout Beijing in the past, many have been destroyed in preparation for the Olympic games, being replaced by more modern facilities. This houtong is located right near the Qianmen gate area near Tiananmen Square. The food was terrific. It was not your typical touristy Beijing Duck restaurant. Afterward, we walked around Tiananmen Square, and were accosted by vendors every 5 feet. I finally broke down and bought what I believe to be fully licensed 2008 Beijing Olympics kites and a hat. No really. I'll post a picture when I can.
I was fortunate enough to receive an invitation to lecture at the Center for Intellectual Property Rights at Zhongnan University of Economics and Law, one of the top 100 universities in China according to the Minister of Education. It is the home the National Center for the Study of Intellectual Property. Zhongnan is unique in that intellectual property is its own school; it is not part of the school of law. This shows the new emphasis that China has on intellectual property rights. The University is fortunate to have an internationally known intellectual property scholar as its president.
However, I am not yet in Wuhan, but staying a few days in Beijing. And what was I faced with, but a case of famous mark dilution, at least under US law. Please see the attached image. Can you identify the famous U.S. trademarks? The text under the symbols reads in English "Jewelry & Jade Garden," so no likelihood of confusion.
I walked around near my hotel a little, before heading back to finish grading (pathetic, I know). My first impression of the city is that is a very developed, cosmopolitan city, much like most other capital cities. However, I don't think I ever had the opportunity to eat fried scorpion on a stick anywhere else. And, no, I did not eat any. I am a gastronomic wimp.Tomorrow, I will visit the Forbidden City and the summer palace, and hopefully have some Peking Duck (Is that a geographic indication of origin?). More updates to follow.