While imperial China was a notably inventive place, formal intellectual property protections analogous to those in the West failed to emerge there of their own accord. The deep influence of Confucianism on imperial Chinese society brought about a culture that subordinated individual desires to group harmony and perceived original creations as products not of individual people but of the society to which they belonged. Moreover, Confucianism's influence on education and literature rendered verbatim copying not merely an accepted practice but a fundamental aspect of scholarship. Buddhism's close connection to the emergence of printing in China also served to delay by centuries the first claims by authors of ownership interests in their works. Accordingly, the impetus for China's modern intellectual property regime came from abroad. After China's defeat in the Opium War, foreign investment in China increased dramatically and Western commercial interests began to press China for the legal recognition of their intellectual property rights. An effective enforcement regime, however, eluded China until the birth of the PRC. Since the late 1970s, the PRC has taken efforts to integrate China's intellectual property regime with international institutions. China acceded to TRIPS in 1999 and joined the WTO in 2001. In tandem with these legal developments, China's economy has rapidly become the world's second largest, a fact attributable largely to foreign direct investment. China's economic rise especially affects foreign holders of intellectual property rights. Commentators, however, differ starkly in their assessments of the ability of China's intellectual property institutions to combat infringement. On the one hand, China's apologists claim that such institutions are -- or imminently will be -- sufficient to provide for the just and efficient resolution of disputes arising out of infringement. On the other hand, China's critics, particularly those in the United States, contend that China's intellectual property regime fails to deter and remedy infringement. Ultimately, the views of China's apologists are misleading. China's specialized intellectual property tribunals have proven to be relatively effective, but insufficient resources, judicial corruption, and the inability of judges to act independent of the Chinese Communist Party hinder the effectiveness of China's judiciary. China's fragmented administrative enforcement bureaucracy, which handles the overwhelming majority of disputes arising out of infringement, suffers from a host of problems that work to the detriment of right holders. Criminal enforcement almost always results in convictions, yet procedural inefficiencies render such convictions frustratingly difficult to achieve. These shortcomings may be attributed to certain historical phenomena. Specifically, the Chinese state, in administering China's intellectual property regime, has adopted an approach that comports with Confucianism's elevation of state prerogatives at the expense of individual interests. Trends in patent law reform, trade secret litigation, and trademark enforcement bolster this conception of the Chinese state's motivations. Foreign right holders, therefore, cannot reasonably expect China's intellectual property regime to serve their interest in combating infringement. Consequently, foreign victims of infringement should seek to reverse the trend of anemic foreign litigation in China and employ China's courts, especially the intellectual property tribunals, to vindicate their rights. Indeed, the Chinese government appears disinclined to take foreign perspectives under consideration in drafting new intellectual property legislation, a trend that may render the courts the only venue where foreign right holders can air their grievances. Finally, foreign right holders might also attempt to initiate private criminal prosecutions against infringers, although this avenue of enforcement is less likely to deliver favorable results.
Matthew A. Marcucci,
Navigating Unfamiliar Terrain: Reconciling Conflicting Impressions of China’s Intellectual Property Regime in an Effort to Aid Foreign Right Holders,
23 Fordham Intell. Prop. Media & Ent. L.J. 1395
Available at: http://ir.lawnet.fordham.edu/iplj/vol23/iss4/6