Inclosure 5 in No. 1.
Memorandum.
PRACTICALLY the only points of difference between the two drafts relating to China are-
1. The proviso of Article I of the Japanese draft restricting the scope of the protection afforded by the Convention in respect to patents and designs, trade-marks and copyrights; and
2. The provisions of Article III of the Japanese draft still further restricting the protection afforded to copyrights:
(a) By restricting the right of translation, and
(b) By limiting the protection to works published for the first time after the date of the operation of the Convention.
The Department draft calls for the full protection accorded by the provisions of the Japanese law for all industrial and literary property.
The differences noted have a twofold bearing which the Department refers to as (1) actual rights, which are those rights gained under the law by actual registration; and (2) potential rights, by which is meant the right to register.
In respect to (A) patents and designs, the provisions of the law and of the Japanese proposal seem to nearly coincide, the only difference being that in the former the protection does not extend to articles publicly known or used before the application for a patent, while in the latter the expression used is "prior to such patent or registration"; a difference in time that may amount to one year.
In respect to (B) trade-marks, the provisions of the Japanese draft not only restrict the potential rights (the right to register) to a period of three years, but would also deny protection in China to trade-marks actually registered in Japan, if such trade-marks had been pirated for a period of more than three years.
The provisions of the Japanese law (and the Department draft) would carry the period of protection, actual and potential, back to 1897.
In respect to (C) copyrights, by the provisions of Article I of the Japanese draft, the right of literary property, actual and potential, would date from the time of registration of such rights. The provisions of Japanese law and of the Department draft would be the same, except that the potential rights (right to register) would be carried back to 1905.
But the further restrictions of Article III (second paragraph) deny protection even to works already copyrighted in Japan (actual rights) prior to the date of the operation of the Convention, as well as denying the right to register to any but works published for the first time after this date.
The provisions of Japanese law and the Department draft would extend the scope of protection, actual and potential, back to 1905, the date of the existing Copyright Convention between Japan and the United States.
The denial of the right of translation (Article III, paragraph 1) is regarded by the Department as unusual and illiberal. It was yielded as a matter of fact in the existing Convention of 1905, but by no means as a matter of course or without equivalent.
The provisions relating to first publication after the operation of the proposed Convention, may seem parallel to those of the existing Convention, but as a matter of fact they bar out all rights acquired under the existing Convention and prior to the operation of the new.
The proviso to Article I of the Japanese draft should therefore be struck out in toto, as well as Article III (the first paragraph only being allowed to stand in return for some equivalent). The Convention would then give American property rights in China the full protection of the Japanese law and existing Convention. (See the Memorandum attached.)
Convention (Foreign Office Draft). Inventions, designs, trade-marks, and copyrights duly patented or registered shall enjoy in all parts of China the same protection as in the country of patent or registration, provided that such protection shall not extend to any invention or design publicly known or used in China prior to such patent or registration,
nor to any trade-mark actually used by another person for at least three years prior to the operation of the present Convention.
9
Patent Law (1899).
The following inventions are not patentable:-
(4) Articles which have been publicly known or publicly used before the application for a patent
N.B.-The Courts have decided that this must be interpreted to mean "known or used in Japan.") (See Hall)
Trade-Mark Law (1899).
The following cannot be registered as trade-marks :-
(4) Those identical with or similar to marks already registered by another.
(5) Those which are identical with or similar to marks used by another before the operation of this law (i.e., 1899).
N.B.-It has been decided (by the Supreme Court) that no protection against infringement of a trade-mark can be granted, nor can it be recognized in any way, unless it has been actually registered in the Japanese Patent Bureau.
Foreign Office Draft. Nor to any work of literature or art already reproduced in China prior to such registration.
Article III. The mutual protection does not carry with it the right to reserve the right of translation.
The provisions of this Convention concerning mutual protection of copyrights shall apply only to works published for the first time after this Convention takes effect.
the
Copyright Convention (1905). Shall enjoy the protection of copyright
on the same basis as subjects or citizens of the other, subject to provisions of Article II of this Convention.
Article II.-
may without authorization translate and print and publish such translations.
(N.B.--By exchange of notes in connection with above Convention of 1905, "published for the first time after the operation of this Convention" was interpreted to mean "published".)
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476
Inclosure 5 in No. 1.
Memorandum.
PRACTICALLY the only points of difference between the two drafts relating to China are-
1. The proviso of Article I of the Japanese draft restricting the scope of the protection afforded by the Convention in respect to patents and designs, trade- marks and copyrights; and
2. The provisions of Article III of the Japanese draft still further restricting the protection afforded to copyrights:
(a.) By restricting the right of translation, and
(b.) By limiting the protection to works published for the first time after the
date of the operation of the Convention.
The Department draft calls for the full protection accorded by the provisions of the Japanese law for all industrial and literary property,
The differences noted have a twofold bearing which the Department refers to as (1) actual rights, which are those rights gained under the law by actual registration; and (2) potential rights, by which is meant the right to register.
In respect to (A) patents and designs, the provisions of the law and of the Japanese proposal seem to nearly coincide, the only difference being that in the former the protection does not extend to articles publicly known or used before the application for a patent, while in the latter the expression used is "prior to such patent or registration"; a difference in time that may amount to one year.
In respect to (B) trade-marks, the provisions of the Japanese draft not only restrict the potential rights (the right to register) to a period of three years, but would also deny protection in China to trade-marks actually registered in Japan, if such trade-marks had been pirated for a period of more than three years.
The provisions of the Japanese law (and the Department draft) would carry the period of protection, actual and potential, back to 1897.
In respect to (C) copyrights, by the provisions of Article I of the Japanese draft, the right of literary property, actual and potential, would date from the time of registration of such rights. The provisions of Japanese law and of the Department draft would be the saine, except that the potential rights (right to register) would be carried back to 1905.
But the further restrictions of Article III (second paragrapli) deny protection even to works already copyrighted in Japan (actual rights) prior to the date of the operation of the Convention, as well as denying the right to register to any but works published for the first time after this date.
The provisions of Japanese law and the Department draft would extend the scope of protection, actual and potential, back to 1905, the date of the existing Copyright Convention between Japan and the United States.
The denial of the right of translation (Article III, paragraph 1) is regarded by the Department as unusual and illiberal. It was yielded as a matter of fact in the existing Convention of 1905, but by no means as a matter of course or without equivalent.
The provisions relating to first publication after the operation of the proposed Convention, may seem parallel to those of the existing Convention, but as a matter of fact they bar out all rights acquired under the existing Convention and prior to the operation of the new.
The proviso to Article I of the Japanese draft should therefore be struck out in toto, as well as Article III (the first paragraph only being allowed to stand in return for some equivalent). The Convention would then give American property rights in China the full protection of the Japanese law and existing Convention. (See the Memorandum. attached.)
Convention (Foreign Office Draft). Inventions, designs, trade-marks, and copyrights duly patented or regis- tered shall enjoy in all parts of China the same protection .. as in the country of patent or registration, provided that such protection shall not extend to any invention or design publicly know or used in China prior to such patent or registration,
nor to any trade-mark actually used by another person for at least three years prior to the operation of the present Convention.
9
Patent Law (1899).
The following inventions are not patontable:-
(4.) Articles which have been publicly known or publicly used before the appli- cation for a patent
N.B.-The Courts have decided that this must be interpreted to mean "known or used in Japan.") (See Hall)
Trade-Mark Law (1899).
The following cannot be registered as trade-marks :--
(4.) Those identical with or similar to marks already registered by another.
(5.) Those which are identical with or similar to marks used by another before the operation of this law (ie., 1899).
N.B.-It has been decided (by the Supreme Court) that no protection against infringement of a trade-mark can be granted, nor can it be recognized in any way, unless it has been actually registered in the Japanese Patent Bureau.
Foreign Office Draft. Nor to any work of literature or art already reproduced in China prior to such registration.
Article III.The mutual protection does not carry with it the right to reserve the right of translation.
The provisions of this Convention concerning mutual protection of copyrights shall apply only to works published for the first time after this Convention takes effect.
the
Copyright Convention (1905). Shall enjoy the protection of copyright
on the same basis as subjects or citizens of the other, subject to provisions of Article II of this Con- vention.
Article II.-. tion translate
such translations.
6C
وو
may without authoriza and print and publish
(N.B.--By exchange of notes in con- nection with above Convention of 1905,
pablished "published for the first time after the was interpreted to mean operation of this Convention.")
D;
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476
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