以下文章来源于中伦文德律师事务所 ，作者ZLWD

The U.S. National Institutes of Health (NIH) signed a deal with the World Health Organization (WHO)’s COVID-19 Technology Access Pool (C-TAP) and the Medicines Patent Pool (MPP) that allows manufacturers greater access to key COVID-19 technologies owned by NIH.

The licensing agreement offers 11 technologies under transparent, global and non-exclusive licenses. They include “the stabilized spike protein used in currently available COVID-19 vaccines, research tools for vaccine, therapeutic and diagnostic development as well as early-stage vaccine candidates and diagnostics.”

The agreement came just prior to the U.S.-chaired Global COVID-19 Summit taking place today.

Maaza Seyoum, global south convenor of the People’s Vaccine Alliance, called the announcement a “glimmer of hope” in a sea of other disappointments relating to sharing of funds and technology to fight the pandemic. The organization said of the NIH’s decision to share its technology in an emailed statement on May 12, the United States will finally share some of the publicly funded innovations needed to produce COVID-19 vaccines with the world. But this is just a first step. Pharmaceutical companies must be compelled to follow suit. There is no excuse for private monopolies on lifesaving public science in a pandemic.

“I welcome the generous contribution NIH has made to C-TAP and its example of solidarity and sharing,” said Dr Tedros Adhanom Ghebreyesus, WHO Director-General. “Whether it’s today’s pandemic or tomorrow’s health emergency, it’s through sharing and empowering lower-income countries to manufacture their own health tools that we can ensure a healthier future for everyone.” 

NIH will not collect royalties on sales of products licensed in 49 countries classified by the United Nations as Least Developed Countries. The 11 technologies include:

-Prefusion spike proteins (Vaccine Development)

-Structure-Based Design of Spike Immunogens (Research Tool for Vaccine Development)

-Pseudotyping Plasmid (Research Tool for Vaccine Development)

-ACE2 Dimer construct (Research Tool for Drug Development)

-Synthetic humanized llama nanobody library and related use  (Research Tool for Drug and Diagnostic Development)

-Newcastle Disease Virus-Like Particles Displaying -Prefusion-Stabilized Spikes (Vaccine Candidate)

-Parainfluenza virus 3 based vaccine (Vaccine Candidate)

-A VSV-EBOV-Based Vaccine (Vaccine Candidate)

-RNASEH-Assisted Detection Assay for RNA (Diagnostic)

-Detection of SARS-CoV-2 and other RNA Virus (Diagnostic)

-High-Throughput Diagnostic Test (Diagnostic)

The United States also committed $200 million more to the pandemic preparedness and global health security financial intermediary fund (FIF) at the World Bank in 2022, bringing the U.S. total pledge to the FIF to $450 million to date, as well as to rapid review of generic products for global COVID-19 response, among a number of other commitments. About 40 countries and dozens of NGOs made commitments as part of today’s Summit.

ZLWD Commentary：

In contrast to developed countries that have been able to effectively manage the risks posed by the COVID-19 pandemic within their societies and provide health care to their populations, underdeveloped countries and regions cannot combat the challenges posed by the pandemic on their own. This licensing agreement between the NIH and the WHO is a powerful safeguard against the pandemic in these regions and will help to reduce the technical costs of the pandemic in developing countries.

How to find potential licensees, how to be more efficient in licensing, how to identify relevant royalties-these lingering problems will be gone after the landing of the patent open license system. In an effort to ensure the smooth and fast execution of the system, the China National Intellectual Property Administration (CNIPA) recently released the Trial Program on Patent Open License, a national document drafted based on the experience of local forerunners.

Since being added to the newly-revised Chinese Patent Law (Note: effective from June 1, 2021), the patent open license system has been in the spotlight. Patentees may publish a declaration to license their patents on CNIPA gazettes. Anyone willing to accord with the asking prices and terms may quickly acquire the relevant patent license. Different from the traditional mode in one v. one, the open license system adapts an impartial, easy and fast mode in one v. many, which bridges supply and demand, improves efficiency of negotiations and curbs systematic transaction cost.

Zhejiang is one of the first provinces in trying their hand at the patent open license system. In October 2021, Zhejiang published information on 379 patents owned by the province's 24 universities and research institutes, inviting all companies in the province to acquire open licenses without paying a dime. Through an accurate matching system, Zhejiang IP Office pushed the information to a first batch of 6,365 companies, right now resulting in 306 patent license documents recorded.

"Our company's machines could only weave surface textiles with thickness between 2mm and 3mm. Though we had been trying to develop better machines for years, success was still elusive," says Ni Zhiqi, Vice General Manager of Huzhou Hyundai Textile Machinery Company. "Thanks to the pushed information, we found Professor Wu Zhenyu of Zhejiang Sci-Tech University, the first inventor of a patent titled 'A thread carrier and its feedback system for controlling 3D weaving and tying threads'. The patent, which we are licensed to use free of charge, could solve our technical problem effectively and is expected to generate 30% more in revenues for us."

"Chinese universities own a massive amount of quality patents. With the gap on the information of technologies, products and market demand not bridged, these patents are usually not commercialized in time," says Cao Xinming, Director of IP Research Center, Zhongnan University of Economics and Law. "The patent open license system accelerates patent commercialization, graduating rights to profits. SMEs have a broader technology supply channel, acquire new technologies at lower costs, which definitely could propel their quality development."

Based on the 'trial and error' attempted by some local authorities, the system is expected to arrive nationwide this year. Under the terms of the Program, by the end of 2022, over 100 universities, research institutes, state-owned enterprises will join the trial. More than 1,000 patent license agreements are expected to conclude.

"The Program sets out the basic principles in following the market trend, strengthening service innovation, enhancing integrated working of different policies, which means respecting market rules, encouraging governments' assumption of leader role, stressing respective parties fully playing to their strength, coordinating moves with each other," says a principal of CNIPA's IP Use and Promotion Department. "To work with the implementation of the patent open license system, CNIPA, for the first time ever, released statistics on patent royalties of various sectors of the national economy last year, offering an important reference for reasonably identifying royalties. Currently, a pricing guideline specifically for open license scenarios is being drafted based on research findings on patent evaluation."

The Program has specific measures to ensure all details covered. For example, regarding bridging supply and demand, it encourages universities and research institutes to select only patented technologies with market potential, extensive range of use, practical, ideal for universal use geographically. In addition, the Program provides that participating local authorities shall define formats of patent licensing information, check to-be-published information and publish licensing information; be responsible for guiding pricing tactics, offer support for transactions, help seek better profits for licenses in a reasonable and effective fashion; improve incentive and regulating measures, mediate disputes by law.

The patent open license system is certainly welcomed by patentees right now. As we have learned, besides universities, a number of large companies have filed their declaration of patent open license. "This is a common practice in the international market. Large companies may use the open license system to improve negotiation efficiency as well as expand their reach in supply chain," says Cao.

The 14th Five-Year National Plan for IP Protection and Application requires the establishment and improvement of patent open license system and its operating mechanism. Currently the system is in an important transitional period before full operation as well as in a critical period for 'trial and error'. Local trial work will gather more practical experiences for the eventual operation.

ZLWD Commentary：

The one-to-multiple licensing model is an innovation model that greatly benefits both inventors and users, not only by maximising the use of existing unused patents, but also by making it easier for companies to obtain the patents they need and create innovative technology projects. It is believed that such a model of innovation, if adopted nationally, will further promote innovation and encourage more talented people to apply for patents.

The 42nd session of WIPO's Standing Committee on Copyright and Related Rights (SCCR) takes place in Geneva from May 9- 13, 2022. It is the first full meeting since the start of the pandemic. It will take place in hybrid format, with in-person participation in Geneva and online.

SCCR meetings are attended by government officials from member countries and registered observer organisations, including industry representatives and organisations (e.g. the Electronic Information for Libraries).

As a first step, the Secretariat will provide a toolkit on preservation work carried out by cultural heritage institutions to provide guidance to countries that are in the process of revising their copyright laws. The toolkit will be developed by the authors of the WIPO study on limitations and exceptions for libraries, archives and museums. Research has shown that copyright laws in many countries simply do not meet the needs of modern preservation.

Preservation was identified as a priority theme at the 2019 WIPO Regional Symposium and L&E International Conference. The issue is urgent. For example, in 2021, Africa lost some of its historical documents to a devastating fire at the University of Cape Town. Some items were not digitally backed up due to copyright impediments. The Electronic Information for Libraries League (EIFL) says that the preservation toolkit is a practical step in the right direction.

Secondly, the cross-border use of copyrighted works is a tricky topic, involving the sending and receiving of copyrighted material across multiple jurisdictions. Experts and member states will discuss this issue and possible solutions. At previous SCCR meetings, libraries and archives have provided extensive evidence that information is also denied when the copyright exception ceases to apply at the border. EIFL believes that only WIPO, as an international organisation, can address these international issues.

Third, the Secretariat will entrust a third party to define the research exceptions in the national copyright law, including modern research methods such as text and data mining (TDM).

The WIPO will drive discussion on this topic so that researchers around the world can become active contributors to global research projects and can make findings that benefit groups in a wide range of areas, including health, education, agriculture, and finance.

The proposal was strongly supported by the Group of Latin America and Caribbean Countries (GRULAC). Developed countries, as presented. Particularly developed countries who continue being adamant against any work towards a globally binding instrument to support education, research, and cultural heritage organisations worldwide opposed the proposal. 

ZLWD Commentary：

Malicious registered trademark is one of the main obstacles to the development of innovation and serious damage to the market order, which is not only illegal but also affects the integrity of the industry. The CNIPA's initiative to crack down and resolutely reject is an important guarantee to fundamentally curb the malicious registered trademark.

On 26 May, the China Copyright Association held the launch of the Report on Copyright Protection and Development of Chinese Online Literature in 2021 online. After more than 20 years of development, online literature has become an integral part of China's literary creation. At the conference, Yu Cike, executive vice president of the China Copyright Association, released the Report on Copyright Protection and Development of Chinese Online Literature in 2021. The report showed that as of December 2021, the scale of China's online literature users reached RMB 502 million, accounting for 48.6% of the overall number of Internet users; the scale of the industry reached RMB 35.8 billion, up 24.1% year-on-year; the scale of China's digital culture industry reached RMB 784.16 billion, up 14.7% year-on-year; the IP full copyright operation of online literature affected the combined game, film, animation and music market of about The IP full copyright operation of online literature influenced the combined market of games, film and television, animation, music, etc. to approximately RMB 303.7 billion, i.e. the scope of influence of online literature and its IP operation on the digital culture industry was nearly 40%.

Meanwhile, the report shows that in recent years, Internet information technology has continued to advance, driving innovation and development in the industry while also allowing piracy to become more insidious and take on more diverse forms. Online literature is facing three major problems of piracy and infringement, namely the difficulty of curbing piracy on platforms, search engines and application markets. Further strengthening copyright protection has become an industry-wide consensus for online literature.

Hu Bang Sheng, member of the Party Group and Secretary of the Secretariat of the Chinese Writers' Association, said that after more than 20 years of rapid development, online literature has entered a critical stage of transformation and upgrading, and some new situations and problems facing the development of online literature, especially the protection and development of copyright of online literature, need to be given high attention. Respecting and protecting copyright is an important guarantee for online literature to build a new development pattern, promote high-quality development and safeguard the rights and interests of online writers.

The report also calls for the implementation of the deployment of the 14th Five-Year Plan for Copyright Work and the further improvement of the administrative copyright protection system; the consolidation of the main responsibilities of search engines, app markets and other platforms to cut off the piracy chain; the full recognition of the value of works of online literature and the increase of compensation and punishment; and the strengthening of technological anti-piracy measures. We should also improve the copyright chain of online literature. A multi-pronged approach, with the participation of multiple parties, should be adopted to jointly build and improve the ecology of copyright protection for online literature and lead the high-quality development of the industry.

In recent years, government authorities have made great efforts to rectify the situation, online literary platforms have upgraded their rights, and users' awareness of copyright is gradually being raised, with online literary copyright protection entering a stage of "government-led, industry self-regulation and technology-enabled" ecological governance. Data shows that in 2021, copyright enforcement and supervision departments at all levels investigated and handled 1,031 cases of online infringement, disposed of and removed 1.197 million infringing and pirated links, and effectively cleaned up the online copyright environment.

Hence, online literature platforms have also been upgrading their copyright protection mechanisms to accelerate the process of copyright licensing in the industry. In April this year, a number of writers and online literature platforms jointly launched the "National Anti-Piracy Alliance", a public reporting platform for piracy, with the aim of mobilizing the entire industry to report key infringement channels such as search engines, application markets and browsers, and to promote the rectification of infringement channels through universal supervision.

ZLWD Commentary：

Nowadays, online literature is the new popular culture, and its easier access and constant flow of creative talent are important factors in the market's continued development. However, while enjoying the benefits of online literature, it is also important to protect the rights of authors at the source in order to sustain the long-term innovation and development of online literature. With authors, readers and the government all working hard to protect the online copyright environment, it is believed that piracy can be tackled more intensively.

Recently, in accordance with the requirements of the notice on continuously deepening the "Blue Sky" special rectification action in the intellectual property agency industry issued by the CNIPA, the intellectual property management departments of 31 provinces, autonomous regions, municipalities directly under the central government and Xinjiang production and Construction Corps have formulated and issued local "Blue Sky" action plans in combination with local conditions, and launched their implementation in a timely manner. The "Blue Sky" action in 2022 includes six key tasks: continuously strengthening the crackdown on key illegal agency behaviors, effectively strengthening the comprehensive management of platform based intellectual property service institutions, comprehensively strengthening the supervision of intellectual property agency employees, strengthening the guidance of innovation subjects and social supervision, strengthening policy coordination and linkage, and strengthening the role of industry self-discipline. Five types of illegal agency behaviors, including acting as an agent for abnormal patent applications, malicious trademark applications, unqualified patent agents, forging and altering official documents, and soliciting business by improper means, will be taken as key remediation contents.

Focusing on the key tasks of the "Blue Sky" action, all localities have taken a series of targeted measures to adapt to local conditions, actively innovate and intensify efforts. Tianjin, Shanxi, Jilin, Shanghai, Zhejiang, Ningxia, Xinjiang and other places will comprehensively verify the information of enterprises whose business scope includes intellectual property agency through various enterprise credit information publicity systems, and check whether there are acts such as unqualified agency, leasing and lending qualification or long-term failure to meet the establishment conditions. Inner Mongolia, Liaoning, Jiangxi, Henan and other places will intensify the investigation and punishment of irregular patent applications and malicious trademark acts and supervise the agencies to conduct comprehensive self-examination and self-correction on the pending applications they represent. Beijing, Shandong, Guangxi, Shaanxi and other places will carry out graded and classified supervision based on credit, reduce the random inspection frequency of institutions with good credit, and strengthen the inspection of institutions with credit risks and established under the notification commitment system. Hebei, Jiangsu, Hunan and Sichuan will continue to solidly promote the pilot work of patent agency credit evaluation management. Heilongjiang, Fujian, Hubei, Yunnan, Qinghai, Tibet and other places will explore the establishment of a "whitelist" system for patent and trademark agents, clarify the inclusion conditions, procedures and exit mechanism, and provide corresponding facilitation measures and preferential policies to encourage agencies to operate legally and normatively. Anhui, Guizhou, Gansu and other places will guide local enterprises to optimize and carefully select agencies by printing agency rosters and publishing agency quality data. Guangdong, Chongqing, Hainan and other places will further accelerate entrusted law enforcement and decentralization of law enforcement powers, strengthen the guarantee of regulatory forces, and improve the efficiency of handling cases.

In the next step, the CNIPA will continue to strengthen overall planning and coordination, strengthen supervision, regularly inform local work progress, timely promote useful experience, promote the "Blue Sky" action to achieve greater results, and provide strong support for comprehensively promoting the high-quality development of intellectual property service industry and the construction of an intellectual property power.

ZLWD Commentary：

The series of targeted measures taken by the "blue sky" action are comprehensive and efficient, which not only reflects the state's serious attitude towards intellectual property protection, but also will bring a strong warning to enterprises with a sense of luck. From this point of view, by improving the safeguard mechanism and strengthening the efficiency of handling cases, we will comprehensively promote the construction of a powerful intellectual property country.

Recently, the Shanghai Intellectual Property Court (hereinafter referred to as the SIPC) rejected the appeal against the dispute over trademark infringement between the appellant Zhejiang Wufangzhai Industrial Co., Ltd. (hereinafter referred to as the wufangzhai company) and the appellees Shanghai suxiege Industrial Co., Ltd. (hereinafter referred to as the suxiege company) and Shanghai Yingli Industrial Co., Ltd. (hereinafter referred to as the Yingli company), and upheld the original final verdict.

Wufangzhai company claimed to the court of first instance that "wufangzhai" was founded in 1921, and its registered trademark has a high reputation. It was once recognized as a "Chinese time-honored brand" and a well-known trademark. In 2018, the law enforcement officers of Shanghai Jing'an District market supervision and administration bureau investigated and punished the gift boxes sold by suxiego company with the words and graphic trademarks including "wufangzhai". The zongzi in the gift box involved came from the authorized agent of wufangzhai, but wufangzhai has never produced or authorized other companies to produce and sell such gift boxes.

According to the investigation, Yingli company provided zongzi and gift boxes, and suxiege company carried out combined sales. Therefore, the acts of suxiege company and Yingli company infringed the exclusive rights of wufangzhai company's No. 9720610 "Wufang" trademark, No. 10379873 "delicious Wufang" trademark and No. 331907 "wufangzhai" trademark, and should be jointly liable. In addition, Yingli company sold zongzi gift boxes and used the same trademark on the same goods, infringing the exclusive right to use the trademark "wufangzhai" No. 3781249. Wufangzhai company requested the court to order suxiege company and Yingli company to immediately stop producing, selling and immediately destroy the packaging boxes and commodities with the above trademark marks, and jointly compensate for the economic losses and reasonable expenses totaling 300,000 Chinese Yuan.

The court of first instance held that the zongzi in the gift box involved in the case came from the authorized seller of wufangzhai and were genuine. During the trial, wufangzhai company confirmed that the round pattern of “wufangzhai old man” picture and the production date were printed on the vacuum packaged zongzi in bulk, and the packaging, shelf life and quality of the bulk zongzi were no different from those in the gift box. It can be seen that the act of using basically the same logo as the registered trademark on the package of the gift box involved in the case has not damaged the function of indicating the source of the trademark, nor the function of ensuring the quality of the trademark. Therefore, the acts of suxiege company and Yingli company have not infringed the rights of registered trademarks No. 9720610, 10379873 and 331907. Suxiege company prominently marked "Wufang", "delicious Wufang" and "wufangzhai" on the gift boxes involved in the case, which constituted a use act in the sense of trademark law. Without the permission of the trademark registrant, Suxiege company used the same trademark as the registered trademark on the same commodity, infringing the exclusive right of wufangzhai company to use the registered trademark No. 3781249. Considering the popularity of the trademark involved, the subjective fault degree of the infringer, the impact of the infringement, the attorney fees paid by wufangzhai company and other factors, and considering that the zongzi in the gift box involved really came from wufangzhai company, the compensation amount and reasonable expenses are determined to be 30000 yuan.

Wufangzhai company refused to accept the verdict of the first instance and appealed to the Shanghai Intellectual Property Court, requesting that Suxiege company and Yingli company jointly compensate 150,000 yuan for economic losses according to law.

After hearing the case, the Shanghai Intellectual Property Court held that in this case, Suxiege company and Yingli company would put the bulk zongzi from wufangzhai company into the gift box involved in the case whose source was unknown but whose appearance was similar to the authentic gift box of wufangzhai company, and then sell them in the name of wufangzhai zongzi gift box. The words "wufangzhai", "delicious Wufang" and "Wufang" were used on the outer package of the gift box involved in the case, which were similar to or basically the same as the registered trademark. The two companies infringe upon the exclusive right to use the registered trademarks No. 9720610, 10379873 and 331907 of wufangzhai company and shall be liable for compensation.

The reasons are as follows:

1. Although the bulk zongzi are authentic, the zongzi gift box accused of infringement is different from the authentic zongzi gift box of wufangzhai company in terms of packaging and sales price;

2. From the category of goods approved for use of registered trademarks, gift box zongzi is also a kind of zongzi goods, so the behaviors of Suxiege company and Yingli company belong to the use of trademarks similar to the registered trademarks on the same kind of goods;

3. Putting the bulk zongzi into counterfeit gift boxes for external sales will cause confusion and misunderstanding of the gift box rice dumplings by the relevant public, damage the relationship between the registered trademark on the gift box and the source indication of the goods in the gift box, encroach on the market share of the authentic gift box rice dumplings, and have an impact on the business reputation of wufangzhai company.

Therefore, the court of first instance held that the acts of Suxiege company and Yingli company did not infringe the rights of No. 9720610, 10379873 and 331907 registered trademarks, which was an error of applicable law and should be corrected. In addition, according to the existing evidence, the sales volume of Suxiege company and Yingli company is small, the profit is not high, the average price difference between the bulk zongzi and gift box zongzi of wufangzhai company is not large, and Suxiege company and Yingli company did buy the bulk zongzi of wufangzhai company, which did not cause great losses to wufangzhai company.

In summary, the Shanghai Intellectual Property Court held that the act of sub packaging and selling authentic "wufangzhai" zongzi constituted trademark infringement, but after considering the circumstances of the case, it upheld the amount of compensation in the original trial, so it made the above judgment.

ZLWD Commentary：

This case serves as a warning to the company. Although the gift boxes sold by Suxiege company and Yingli company contain authentic authorized wufangzhai zongzi, their outer packaging gift boxes are not authentic. The judgment reasons of this case specifically separate the products from the product packaging, and warn the companies in the market not to take chances. They should standardize and reasonably obtain the comprehensive authorization of goods, and be strict in trademark infringement caused by mistakes.

On May 30, Tencent's NFT (non-fungible token) trading software Huan He and Beijing Huangcheng art trading center jointly sold Xu Beihong's digital ink horse collection, causing a dispute. Prior to this, Xu Beihong Art Museum issued a copyright statement, saying that "some digital platforms sell relevant digital collections in the name of Mr. Xu Beihong. Some of the original works of these digital collections are counterfeit works, some can not provide complete traceability evidence, and some works have nothing to do with Mr. Xu Beihong". These phenomena seriously damage the rights and interests of consumers. It infringed Xu Beihong's reputation and intellectual property rights obtained by Xu Beihong's descendants according to law, and said that it did not authorize Huan He to sell Xu Beihong's digital collections.

In the copyright statement, Xu Beihong Art Museum pointed out that Times Beihong (Beijing) Culture and Art Center is an independent culture and art center authorized by Xu Beihong's descendants, and is the operator and art partner of Xu Beihong Art Museum. According to the authorization, the center has the qualification to safeguard Xu Beihong's legal rights and his works, including but not limited to Xu Beihong's rights of reputation, name, integrity of works, combating counterfeit works, combating malicious business practices, etc.

In this regard, Fangli Li, associate director of the national copyright trade base of Renmin University of China, believes that according to the provisions of China's copyright law, the term of protection of copyright is the author's lifetime and 50 years after his death, but his personal rights are not limited. It has been 50 years since Xu Beihong passed away. From the perspective of copyright, his works have passed the copyright protection period and entered the public domain. Therefore, the sale of NFT collections of Xu Beihong's works does not need to be authorized by the Art Center, but Xu Beihong's personal rights to his works, that is, the right of authorship and the right to protect the integrity of his works, should be respected. She stressed that, in practice, for the convenience of digitalization and the high fidelity of digital collections, the sale of digital collections of Xu Beihong's works needs to establish cooperative relations with the owner or collector of works, so it is often necessary to obtain the authorization of the owner or collector of works. The method, duration, consideration and other contents of this authorization shall be negotiated and agreed by both parties.

If a counterfeit work is issued, it will infringe upon Xu Beihong's name right and the rights and interests of consumers. The issuer must bear the liability for infringement. In case of a large amount, the issuer may constitute a crime of fraud, and the distribution platform may also bear joint and several liability. For the source of works, the NFT sales platform should first clarify the ownership of the works sold, review whether the works are still within the copyright protection period, and require the publisher to provide the copyright authorization certificate for the works that are still within the copyright protection period. Secondly, it should be clarified that the authenticity of the works sold, and require the distributor to provide work identification certificates to prevent the distribution of counterfeit works. Therefore, the selling platform of NFTs should have the responsibility to strengthen the prior review, and ensure the legitimacy of the source of rights by requiring users to upload ownership certificates, authorization certificates and other materials. If a work clearly belongs to an infringing work, it shall not be put on.

ZLWD Commentary：

In this case, although the copyright protection period of Xu Beihong's paintings has expired, the publisher should respect the independent culture and art center authorized by his descendants when selling relevant digital collections, and make communication and agreement in advance, instead of ignoring Xu Beihong's personal rights after the expiration of the copyright protection period. On the other hand, Xu Beihong's works have a wide range of influence and dissemination. The distributor should strictly trace the source of his works and resolutely crack down on counterfeit works.

Due to the copyright ownership, infringement disputes and other issues of the original artwork "Like a Tiger with Wings", Mr. Feng, the designer, went to court with the Window of the World in Changsha. Recently, the people's Court of Kaifu District, Changsha City accepted the case. At present, the case is still under further trial.

Changsha Window of the World is a comprehensive large-scale cultural theme park jointly invested and built by Hunan TV & Radio Media Co., Ltd., Shenzhen Overseas Chinese town Holding Co., Ltd. and Hong Kong CTS group. It was accused this time of plagiarizing a sculpture at the gate of the park. Its appearance is almost the same as Mr. Feng's work "Like a Tiger with Wings".

It is reported that the overall design of the work "Like a Tiger with Wings" is composed of a tiger, white clouds and green mountains. Mr. Feng said that the creativity of this work combines the picture of a thousand miles of rivers and mountains with the literal meaning of "like a tiger with wings". It is to create a Chinese style fashion play in the year of the tiger, with the implication that green mountains and waters can soar.

According to the registration certificate displayed by Mr. Feng, the creation completion date of the work is October 10, 2021, the first publication / distribution / production time is December 16, 2021, and the registration date is December 27, 2021.

Mr. Feng told the media that at the end of last year, a staff member who claimed to be the Window of the World in Changsha contacted him about the IP cooperation of "Like a Tiger with Wings", but later terminated further negotiations on the grounds of "not doing this topic this year". However, in March this year, Mr. Feng found that the image of the work "Like a Tiger with Wings" has stood impressively at the door of the Window of the World in Changsha, attracting tourists. In addition, the window of the world in Changsha has also released copies using similar elements of "Like a Tiger with Wings" on its official WeChat official account and microblog platforms. Mr. Feng said that the two sides had communicated on the matter but did not reach a consensus on the amount of compensation.

In an interview with the media, the staff of Changsha Window of the World also admitted that the sculpture infringement was caused by the negligence of management and the weak copyright awareness of the staff. The company has also made internal treatment to prevent this kind of thing from happening again. The staff member said that after receiving the mediation letter from the court, the company quickly removed the sculptures in the park, deleted and removed the publicity documents related to the work, contacted the original author of the work at the first time, communicated and apologized with him for many times, and also proposed relevant compensation matters. However, since the two sides cannot reach an agreement on the amount of compensation, the judicial process has been taken, and the final judgment of the court shall prevail.

Regarding the infringement determination of Changsha Window of the World in this incident, Kaixin Ruan, an associate professor of East China University of political science and law, said that the unauthorized use of other people's art works by Changsha world window obviously infringes copyright. Making art works into three-dimensional sculptures from graphic design is a reproduction act in the copyright law and is suspected of infringing upon the reproduction right of the obligee. The act of placing a copy of an infringing art work in a park for public display is suspected of infringing upon the exhibition right of the obligee. The act of disseminating art works in WeChat official account and microblog is suspected of infringing the obligee's right to information network communication. In the process of using other people's works, the author's identity information is not reasonably marked, which is suspected of infringing the right of authorship of the obligee.　　

The matter triggered discussion among net-citizens on the microblog platform. People have expressed that we should respect the original and safeguard the rights and interests of the author. It can be seen that the public's awareness of intellectual property rights has been continuously improved in recent years. The increasingly favorable social atmosphere for intellectual property protection has enabled more and more individuals to stand up and protect their rights and interests. Mr. Feng said that although he is only a small designer, it is still necessary to speak out in behalf of the development of the industry and respect for clients.

Kaixin Ruan suggested that if the obligee wins the lawsuit in copyright infringement litigation, the court will support the obligee's rights protection cost within a reasonable range. The cost of safeguarding rights is part of the compensation for damages, and the obligee should also provide corresponding evidence to the court to prove it. It is suggested that the obligee should hire a professional attorney to help him protect his rights. Reasonable attorney fees belong to the cost of protecting rights and can be awarded by the court.

ZLWD Commentary：

Although the staff of Changsha Window of the World admitted the infringement caused by the negligence of management and the staff's weak awareness of copyright, no one actively realized whether they had been authorized in the process of identifying the use of graphic design, making three-dimensional sculpture, and then public exhibition. It can be seen that Changsha Window of the World, as a large theme park, did not emphasize the importance of intellectual property rights when training and selecting employees.

In order to thoroughly implement the spirit of General Secretary Xi Jinping's important speech at the 25th collective study of the Political Bureau of the Central Committee, implement Premier Li Keqiang's important instruction on the protection of intellectual property rights, and in accordance with the relevant requirements of the Opinions on Strengthening the Protection of Intellectual Property Rights (hereinafter referred to as the Opinions) issued by the General Office of the CPC Central Committee and the General Office of the State Council, the CNIPA has taken the lead in promoting the construction of national intellectual property protection demonstration Areas. With the consent of the State Council, the CNIPA (SIPO) has recently issued the Construction Plan for National Intellectual Property Protection Demonstration Areas (hereinafter referred to as "the Plan"), which intends to select and construct a number of national intellectual property protection demonstration Areas nationwide and accelerate the creation of a number of highlands for intellectual property protection.

ZLWD Commentary：

The National Intellectual Property Protection Demonstration Area is an important window for China to further expand and open up to the outside world and strengthen the protection of intellectual property rights. Strengthening intellectual property protection is not only an "immediate need" for innovation-driven development, but also a "standard" for international trade, and plays an indispensable and important role in improving the innovation and competitiveness of international competition and promoting a high level of opening up to the outside world.

Recently, the Guangxi Market Supervision Bureau issued the "Guangxi Patent Open Licensing Pilot Work Plan" to smooth the transformation channels of patent achievements, amplify the role of the patent system and boost the high-quality development of Guangxi's economy. The implementation of the patent open licensing system is an important element of the latest revision of the Patent Law of the People's Republic of China, which has been in force since June 1, 2021. Open licensing is a new system whereby the patent owner voluntarily declares and the State Intellectual Property Office announces, specifying in advance the manner and standard of payment of royalties, and anyone can conveniently obtain a license for the implementation of the patent by paying a fee according to the declared price. As a special licence, unlike the traditional "one-to-one" personalised negotiation model such as the general licence and exclusive licence, the open licence enables the right holder to obtain a "one-to-multiple" licence easily and quickly, which is conducive to promoting information matching and reducing systemic transaction costs.

ZLWD Commentary：

The Guangxi Market Supervision Bureau researched and formulated the "Guangxi Patent Open Licensing Pilot Work Plan", which clarifies the overall requirements, expected objectives, pilot tasks, progress arrangements and working measures, and also provides patent open licensing (pilot) contracts (reference samples), especially to build a patent licensing information release platform, promote supply-demand docking, do a good job of relevant supporting services and improve incentive measures, etc. Such measures will help restart the patents of universities, research institutes and enterprises, simplify the procedures and costs of patent licensing transactions, promote the transformation and application of Guangxi's patents and promote high-quality economic and social development.

This Newsletter is produced by Economic and Legal Development Research Centre for Guangdong-Hong Kong-Macao Greater Bay Area For Your Reference Only.

Editorial Board: Wei LIN，Simon TANG，Lisi ZHOU，Yu DENG，Yuming LI，Oyagi，Gong CHEN，Ning NING，Zhao LIU，Xiaoyun Su

All Information published in this Newsletter is from open source.

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