On 1 July 1997, China assumed sovereignty from Britain over Hong Kong. However, in accordance with the Basic Law which is Hong Kong's primary constitutional document from that date forward, Hong Kong will retain for at least the next 50 years its own system of laws as a distinct regime from those of China under the 'one country, two systems' principle. Thus, all IPR laws (other than the copyright law which is extended from the UK and falls away altogether if not replaced) will continue in force. For the same reason, IPRs in China (such as trade mark or patent registrations) will continue to have no enforceable effect in Hong Kong or vice versa.
IPR proprietors will therefore, for the time being, need to maintain and develop their Hong Kong as well as their Chinese IPR portfolios. In fact, under the proposed new laws outlined below, they will need to pay more attention than before to the registration of patents and registered designs.
These new laws have been under discussion for some time. A Sino-British Joint Liaison Group meeting in Beijing at the beginning of November 1995 reached agreement on the localization of Hong Kong's laws for the protection of patents, registered designs and copyrights. Prior to that, the Hong Kong Government had conducted lengthy consultation with interested groups for local IPR laws which would provide for the proper protection of IPRs beyond 1997.
Further, in order to meet its responsibilities as a member of the World Trade Organisation, the Hong Kong Government updated its local laws according to the requirements of TRIPS. To this effect, the Intellectual Property (World Trade Organisation Amendment) Ordinance (WTO Ordinance) was passed in May 1996 and its provisions brought fully into effect by December 1996. All of the changes which it introduced are confirmed by the new legislation outlined below.
After publication of draft bills for consultation in 1996, the Hong Kong Government introduced a Patents Bill, Copyright Bill and Registered Designs Bill on 7 June 1996, 21 February 1997 and 7 March 1997 respectively. These Bills have now been passed into law and all became effective on 27 June 1997 (the last working day before the Handover). On 20th June 1997, the Administration published rules covering (i) transitional procedures as well as (ii) the mechanisms for the new Patents and Design Registries.
A draft Trade Marks Bill has also been circulated for public consultation. However, changes to the territory's laws on trade marks and unregistered designs, whilst slated for an overhaul, will not be implemented until after the transition.
To conclude, the new laws should, when viewed in conjunction with other IPR protections such as the common law remedies of passing off and trade secrets misuse and the Layout-Design (Topography) of Integrated Circuits Ordinance provide a comprehensive regime of IP rights and better means of enforcement to protect such rights. Basing the laws as much as possible on UK statutes allows easy reference to UK case precedent, to counter-balance the likely long-term convergence with Chinese laws, particularly after China joins the WTO and must then conform its laws to the standards of TRIPs. Quite when and how that happens is, of course another story.
To gain further insight into the major effects of the above new laws, please view our latest articles covering Patents Ordinance, Registered Designs Ordinance, Copyright Ordinance and the Draft Trade Marks Bill. Please use either a text based search or if you are browsing the Business Monitor web site, use the "other articles" link to view our entire archive.
Additionally, further information may be obtained via Linklaters & Paines Hong Kong office or via any of the other nine Linklaters & Paines offices world-wide, located in Singapore, Tokyo, London, Brussels, Paris, Frankfurt, New York, Washington D.C. and Moscow.
c Linklaters & Paines 1997 - Tel +852 2842 4888
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