A letter to Canadian Embassy in Beijing[1]

Counselor, Culture

Canadian Embassy in Beijing

Dear Ms. Claire Huot,

As a SACS scholar of 2002, I visited Canada from May 6 to June 10, 2002. The cities I visited include Montreal, Ottawa-Hull, and Vancouver. My research topic for this program is “the New Development of the Intellectual Property Law in Canada”. During my visiting, I learnt a great deal about my research topic, especially about the patentability of biotechnological invention, the copyright protection in the Internet, the protection of industrial design, and the three dimensional trademark. Besides, after I came back to Beijing, I have reported some of my academic achievements to a conference. Now I am going to report you what I did and what I got in light of the cities above.

Montreal

Montreal is the first city I visited in Canada. In University of Quebec at Montreal, all of the SACS scholars of 2002 participated an orientation program. This program was really a start point for most scholars to begin their research works. For example, we listened to a report “Canada’s Foreign Policy” by Pierre Giquere, former Canadian Ambassador, and learnt a great deal about Canada’s foreign policy. Another example is that we got a lot of information about the Canadian studies concerning the Internet. In light of the information, I tentatively visited some websites relating to Canadian study.

Frankly speaking, the orientation program was not a great help for my research work. Any way, it was in Montreal that I confirmed my further visiting plan of Ottawa-Hull and Vancouver.

Ottawa-Hull

From May 13 to 14, I visited Ottawa-Hull region and had three meetings with the people from Intellectual Property Policy Directorate, Industrial Canada, Canadian Intellectual Property Office, Industrial Canada, and Information and Technology Trade Policy Division, Department of Foreign Affairs and International Trade.

In the morning of May 13, I had a meeting with Christina Sampogna, senior project leader of patents and biotechnology, patent policy directorate, Sanjay Venugopal, patent policy directorate, Malaka Hendela, and Bruce Richardson, corporate governance branch, Intellectual Property Policy Directorate, Industrial Canada.

During the meeting, Christina Sampogna and Sanjay Venugopal first introduced me the general structure of Canada Patent Law, and the new trend of the protection of biological invention. In this respect, there is a case concerning biotechnological invention pending in the Supreme Court of Canada. Then Malaka Hendela introduced me the current situation of the copyright protection concerning the Internet in Canada and the pending amendments of Canada copyright act. In December 1996, two new treaties World Intellectual Property Organization Copyright Treaty (WCT) and World Intellectual Property Organization Performance and Phonograms (WPPT) were adopted. Although WCT and WPPT are very important in the copyright protection in the Internet, Canada was neither an original signature of the treaties (Canada signed the treaties in 1997) and nor ratified the treaties yet. According to Malaka Hendela, now Canada is studying the possibility of ratification of the treaties and the amendment of Canada Copyright Law.

During the meeting, I discussed the new round WTO negotiation with Bruce Richardson. According to WTO Doha Ministerial Declaration, November 2001, the only topic for new round negotiation concerning intellectual property is geographical indication. In this respect, the members agree to negotiate the establishment of the multilateral system of notification and registration of geographical indication for wines and spirits. On the multilateral system of notification and registration, however, the view of EU is different from the view of the U. S. and Canada. For example, EU wants a binding system while the U.S. and Canada want an informal not binding system. According to Bruce Richardson, a binding system is burdensome for WTO members. Because there are many venues to protect geographical indication, the binding system in the international level is not the only choice. For example, in the U.S. and Canada, geographical indication is protected by trademark law as certificate mark. As for me, China, as a new member of WTO, should play an important role in the new round negotiation, including the negotiation concerning the geographical indication. However, only after we learnt well the view of EU and that of the U.S. and Canada and the reasoning behind the views, we can make up our view in light of China’s interests. In this respect, I can say that I have realized the view of the U.S. and Canada and the reasoning behind the view by the discussion with Bruce Richardson.

In the Morning of May 14, I had a meeting with Diane Brazeau, project officer, international affairs, Lisa Power, assistant director, trade mark branch, Heather Coulter-Bowen, Chief, industrial design examination division, and Gisele Tasse-Goodman, chief, copyright program, from Canadian Intellectual Property Office, Hull. In this meeting, we discussed in detail about the design protection and the three dimensional trademarks. Industrial design is a special subject matter in intellectual property system. It can be protected either by patent law or by copyright law, or by both or by special law. After a given design acquired distinctiveness in the market, that is it can indicate the source of the goods or service, it can be further protected by trademark law and unfair competition law. So the first question we discussed is how to protect design. Of cause, Canada has a special law to protect industrial design. This is different from China, which protects design by patent law and copyright law. As for me, protecting design by a special law is a better choice. The second question we discussed is three-dimensional trademark. Because China just amended its trademark law and began to protect three-dimensional trademark a few months ago, we spent most of our time to discuss how to protect three dimensional trademark, what is a three dimensional trademark, and the relationship between three dimensional trademark and industrial design. Thanks to the fruitful discussion and the materials related, I clarified my thoughts on industrial design and three-dimensional trademark and dissolved some of clouds hanging in my mind in this respect.

In the afternoon of May 14, I had a meeting with Catherine Dickson, director, information and technology trade policy division, Department of Foreign Affairs and International Trade. Ms. Catherine Dickson is a professional diplomat who participated many international negotiation concerning trade, and new technology. During the meeting, we discussed China’s membership of WTO, the problems China faces after it entered the WTO. We also discussed the prospect of the new WTO negotiation, especially the negotiation concerning geographical indication. Because WTO Doha Ministerial Declaration instructed TRIPS council to study the Relationship between TRIPS agreement (The Agreement on Trade Related Aspects of Intellectual Property Rights) and public health, TRIPS agreement and the Convention on Biological Diversity, the protection of traditional knowledge and folklore, we also discussed the possibility of negotiation on these issues in the frame of WTO.

Vancouver

I arrived in Vancouver on May 15 and did research work in University of British Columbia for more than three weeks. There are four important things that are worth of mention here.

First, it is in UBC that I carefully digested the materials I got from Intellectual Property Policy Directorate, Canadian Intellectual Property Office, and Department of Foreign Affairs and International Trade. Using those materials as clues, I further visited the websites of Canadian Intellectual Property Office, Intellectual Property Policy Directorate, and Department of Foreign Affairs and International Trade. From those websites, I read and downloaded many materials concerning the new development of the intellectual property law in Canada.

Second, I got Civil Code of Quebec from the Internet. China is under its way to enact its civil code. Professor Zheng Chengsi, the director of Intellectual Property Center, China Academy of Social Sciences, a member of Legal Committee, Standing Committee of National Peoples Congress, is a main drafter of China Civil Code. Specifically, he is in charge of the intellectual property part of the Civil Code. Before I left for Canada, Prof. Zheng asked me to get a copy of Civil Code of Quebec. According to him, Civil Code of Quebec is a model in this respect and worth of China to learn as an example. While I did research work in library, I found a useful home page for legal information. Through the home page of Canadian Legal Information Institute (www.canlii.org), I did find Civil Code of Quebec and many legal texts, cases, papers, and documents concerning Canadian legal system. I must say that this home page is really a useful guideline for my further study of Canadian legal system. I have shared the information about the websites with some scholars.

Third, I took fully advantage of the Law Library of UBC and discussed the new trend of intellectual property protection with some professors in Faculty of Law, UBC, such as Prof. Pittman Potter. The Law Library of UBC possesses plenty of the books and periodicals concerning intellectual property law. During three weeks, I skipped all of the books and periodicals in intellectual property law. While I met some important chapters or articles, I made copies on the basis of fair use allowed by copyright law. (This is very important for me because I am majored in intellectual property law.)

Fourth, I participated the 2002 Joint Meetings of U.S. Law and Society Association and the Canadian Law and Society Association. The meetings were held in Vancouver form May 30 to June 1. Invited by one of my friends, I delivered two speeches in two sessions “Chinese Law in Context 1” and “Chinese Law in Context 2”. In the first session, as one of three panelists, I spend half an hour on “ TRIPS Agreement and Intellectual Property Protection in China”. In order to become a member of WTO, China amended its patent law, copyright law, and trademark law in recent two years, and enacted a regulation on protection of integrated circuits. So I introduced in my speech the most important amendments in china’s intellectual property law and answered several questions from the audience. In the second session, I talked on the drafting of China Civil Code, such as the basic structure of the code, the intellectual property part in the code, the main content of the intellectual property part, and the relationship between the civil code and the patent law, trademark law, copyright law, and unfair competition law. The title of my speech is “China Civil Code and Intellectual Property Rights”. After my speech, I answered the questions and discussed several aspects on the code with the audience.

In the 2002 joint meetings above, I also participated some interesting sessions, such as “Law and Culture in Contemporary China”, “Legal Culture and Social Change in Asia”, “Technology, Globalization, and the Reach of Law”, “New Visual Technologies and Law: Empirical and Theoretical Perspectives”, “Law Making in Trade Tribunals: WTO, NAFTA”, “Communication Technology, Cyber Human Rights, and the Domain Name”, and “Legal Culture and the Rule of Law in East Asia”. I must say that during those sessions I was shocked by strong academic information, methodological information, and other information. Of course I myself also participated the Q&A positively, even discussed several questions I am interested with some of the panelists. By this way, I made some new friends.

Beijing

I came back to Beijing on June 11. Before I left for Canada, I was a co-organizer of a conference “Gene Resources, Traditional Knowledge, and the Expression of Folklore and Their Protection”. The conference was held from June 13 to 14. And there are about 60 participants who are from universities, research institutes, government agencies, and news agencies. In this conference, I delivered a speech on the relationship between TRIPS agreement and public health and the protection of geographical indication. The important point is that some of the ideas in my speech are from my experience in Canada. For example, in the 2002 joint meetings of the U.S. Law and Society Association and the Canadian Law and Society Association, I learnt some new views about TRIPS agreement and public health. And it was in the discussion with the people from Intellectual Property Policy Directorate, Industrial Canada, I realized the differences between EU and the U.S. and Canada on the protection of geographical indication. On the basis of my restudy, I reported those views and ideas to Chinese audiences in the conference in Beijing. Although my speech is an implement to the conference, it did arouse the interests of the audiences and they asked me to provide them a paper. Now I am drafting the paper.

In addition to the activities above, I am going to draft another paper on the protection of the three dimensional trademark. Again this shall be written on the basis of the materials I got from Canadian Intellectual Property Office.

Dear Ms. Claire Huot, I have reported you my main experience in Canada and some of its aftermath in Beijing. I do hope this letter will serve as my report of SACS scholar and meet your requirements for the report.

Sincerely your,

Li, Mingde

Institute of Law

China Academy of Social Sciences

[1]This is the report written by Prof. Li, Mingde as required by Canadian Embassy. As a scholar of Special Award for Canadian Studies (SACS), Prof. Li spent five weeks in Canada form May 6 to June 10, 2002