Towards year end of 2008, the PRC Government announced the repeal of the tax incentive allowing for the importation of equipment free of duty and VAT for encouraged foreign investment enterprises (FIEs). At the same time, the refund available for VAT paid on domestic equipment purchases was also repealed. This was in conjunction with the reform of the VAT system, discussed in an earlier blog on this site.

The PRC government now has issued two notices grandfathering the old VAT benefits until the middle of this year, one for the imported equipment and one for the domestic equipment.

Stephen Nelson, Partner, & Alice Zhang, Taxation

 

Continue Reading Import Tax and VAT on Equipment in China: Update

Jing Gang, Partner, and Wang Huapeng – Securities & Capital Markets Group 

1.The importance of foreign companies listing in China.

1.1 Permitting and attracting foreign enterprises to list on domestic stock exchanges is the norm on international capital markets.

From a global perspective, major securities exchanges are sparing no effort in attracting foreign enterprises to list, with foreign enterprises well represented on their lists of listed companies.

Continue Reading Listing of foreign enterprises in China: Future Possibilities

Mia Qu, Bessie Ye, Nick Wang of King & Wood’s Intellectual Property Group

As 2009 begins and the economic crisis has hit most major markets globally, the Supreme People’s Court of the People’s Republic of China (“Supreme Court”) is studying how to adjust judicial policy on intellectual property rights (“IPRs”). The new policies will outline developing trends in the legal protection of IPR in China that may occur this year: Continue Reading 2009: New Trends in China’s Judicial Protection of Intellectual Property Rights

Kalley Chen, Dai Chen and Xu Zifeng  King & Wood Mallesons’ Security Group

Australia has had a range of general and sector-specific privacy laws for 20 years. At the Federal level, the Privacy Act 1988 (Cth) initially regulated the way in which Commonwealth agencies dealt with the personal information of Australians. The scope of the Privacy Act was expanded to also cover the handling of individuals’ credit information and, more broadly in 2001, to cover all private sector organisations and the way in which they collect, use and disclose personal information. Individual States and Territories of Australia also have specific privacy laws that regulate the way State-based agencies deal with personal information, and laws relating to privacy are also found in a variety of legislative contexts. Continue Reading Privacy Overhaul Imminent for Australia–A Reference to China

Xu Jing, Partner and Zhao Ye, Associate, IP Litigation

According to the fundamental principles of Chinese courts concerning software resale, the resalability of software under different sales models may also be different.

A. Traditional sales model

Under the traditional model, the supplier sells to their clients a CD-Rom or floppy disk containing the software and enters into an agreement with the clients on the scope of license. Continue Reading Software Resale: A China IP Puzzle Part II

 

In recent years, second hand trading of software has experienced substantial growth and the legal issues involved in such transactions have also caught the eyes of the players in the industry. Generally, the legality of software resale is decided by whether the distribution rights of the copyright owners are exhausted upon the transaction. However, it is difficult to decide when a transaction should be regarded as "licensing" and when the transaction should be deemed as a "sale". As the number of software resale cases brought before the courts increases, the courts’ understanding of the nature of software trading develops. Various jurisdictions have formed their own approach on differentiating an act of sale from that of licensing.

Common copyrighted products such as books or CDs can be resold because most countries adapt the "doctrine of exhaustion of distribution rights" in their copyright law, namely once a copyright owner publicly distributes his/her original work or the copies of such work by way of "sale" or "gifting", the distribution right will be deemed exhausted and the owner may not reclaim such right.

 

Xu Jing, Partner and Zhao Ye, Associate, IP Litigation

 

Continue Reading Software Resale: A China IP Puzzle Part I

In recent years, search engine providers, P2P website or other Internet service providers are often challenged in the courts by content owners. While the legal actions brought by international record companies are constant headaches for major Chinese search engine providers, including Baidu, Yahoo and Sogou, international search engine giants like Google and YouTube have also been struggling to resolve various lawsuits internationally.

These cases raise the same issues for legislators and judges in all jurisdictions — how to evaluate the business models of Internet Service Providers or Online Service Providers ("ISPs" or "OSPs", collectively "ISPs") and the responsibilities and obligations for copyright protection of the ISPs?

In 2007, the US Ninth Circuit Court of the State of California rendered its judgment for Perfect 10, Inc. v. CCBill LLC. The California Court granted CCBill LLC immunity under the Safe Harbor Principle on the ground that the notice for removal sent by Perfect 10, Inc. failed to provide sufficient information and could not be deemed as effective notice. The intention of the US Congress when adopting the Safe Harbor Principle was to ensure that liabilities are shared fairly between the parties by requiring the copyright owner to bear the burden of proving the existence of infringement.  These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. The California Court’s decision has been interpreted by US legal professionals as another affirmation of the application of "Safe Harbor Principle" to ISPs.
 

He Wei, Partner and Wang Yaxi, Associate, Intellectual Property

 

Continue Reading Perfect 10, Inc. v. CCBill LLC — Insights on the Applications of the Safe Harbor Principle and how this is applied in China

There has been a great deal of media coverage in China in the past weeks regarding the impact of Microsoft’s making available its Windows Genuine Advantage (hereafter, “WGA”) to users with Chinese language versions of Windows operating systems. For users going to Microsoft for many of its software updates (excluding some security updates), a validation is required where WGA would notify the user if unlicensed Microsoft Windows software was found on the user’s computer. Microsoft contends that WGA has been made available to warn users of the presence of unlicensed software and to give them the opportunity to purchase licensed software which would then allow them to have the benefits associated with said software, such as product support and ongoing software updates.

 

Shi Yusheng, Partner, IP Litigation

Mr. Shi Yusheng has also discussed this issue recently on CCTV – 9’s Dialogue

 

Continue Reading Microsoft’s Windows Genuine Advantage Initiative and the Protection of Intellectual Property Rights in China

Under the United Nation’s Framework Convention on Climate Change (UNFCCC), “developed country Parties should provide new and additional financial resources to support the transfer of technology and take all practical steps to promote, facilitate and finance the transfer of, or access to, environmentally sound technologies and know how to developing country Parties.” However, a UNFCCC report revealed that a large portion of developing nations do not take advantage of CDM projects to import technology.
 

As long as technology transfer from developed countries is a convenient low-cost means for China to reduce GHG emissions, why doesn’t China have more CDM projects that involve technology transfer? [continue reading to see our analysis]
 

Wang Rui, Partner, International Trade

 

Continue Reading Clean Development Mechanism: Untapped Potential