Competition and cooperation in IPR

Updated: 2011-12-09 16:36

By Liu Yongpei (

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It has been 10 years since China joined the World Trade Organization (WTO) in 2001. This emerging economy has been working hard and making progress on intellectual property protection (IPR), but developed countries still find fault time and again. In recent summit meetings of the Asia Pacific Economic Cooperation (APEC) and East Asia Summit (EAS), US President Barack Obama once again said that China should "play by the rules."

People have many misreadings regarding intellectual property (IP), the main one linking IP to morality. In the US, among both the media and public opinion, the word "theft" or "steal" is used to describe the behaviors of infringement of intellectual property, and such ideology has covered up the essence of IP, leaving only moral criticizing. Such ideological conflicts are not good for solving the problems.

Actually, intellectual property is instrumental. Even the "intellectual property clause" in the United States Constitution only allocates IP as an instrument to "promote progress in science and technology." Besides, in various countries' laws, they apply to a principle that whenever a new item of IP is established, it should be explicitly stipulated by law rather than as a basic right. Such principle is a choice of policy, aiming to promote innovation in the field of technology. Therefore, granting of a patent can be regarded as an instrumental approach without any natural moral superiority.

Furthermore, intellectual property is also an economic product and should fit with a certain economic growth level. Taking UK, a forerunner in IP patent systems, as an example, in its early patent law, it encouraged people to "steal" good technology and process discovered in foreign countries into the UK to apply for patents. A similar case happened in the US, where the works of Charles Dickens had been "stolen" for publishing and sale on a large scale, and such pirating actions created the fame of Dickens in the US.

The US usually contains China in intellectual property policy to get maximum profits through a series of steps in legislature, government, media and leadership. For instance, United States International Trade Commissions(USITC)released two reports in November 2010 and May 2011, which refer to evaluations of China's infringement of intellectual property and policies promoting its domestic innovations. Some US media also tarnish China's image with pirated discs and fake brands as China's current situation of intellectual property. Actually, piracy is a global problem, even difficult to cure in the US.

In addition, the downsizing of manufacturing often leaves the US feeling upset. The US would like to be the brain with ideas and creations, while China is the body that only makes efforts of strength and hard work. The perfect match would be "created in US and made in China," which turns China into its factory. That way, it can both maintain the high quality of American lifestyle, and leave the hard work and pollution in China. If China tries to break out of such an imbalance, disputes will arise. Like the self-dependent innovation policy in China, although it is an evitable choice for China, but always become a target for US to criticizing.

We have to admit that China still has a lot of problems on the intellectual property issue. Information, as a kind of property, is first born in the Western concept and rooted in the privately owned system in the West. While in China, the concept of "sharing" information has a long history, therefore, there is no superiority or inferiority between the private and the public, it can be regarded as a kind of cultural heritage. Until the current market-oriented economy, the concept of "public" was a utopian fantasy in China, with the concept of "private" becoming popular, even being praised.

Nonetheless, once China started intellectual property protection, it achieved great success. In 1982 and 1984, China passed the Trademark Act and Patent Law, and in 1990, the Copyright Law was passed. Moreover, triple revisions were done since the patent law passed in 1984. Intellectual property protection in Western countries has experienced evolution for over hundreds of years, but it only took several decades in China to reach such achievements.

At the 22nd conference of China-US Joint Commission on Commerce and Trade (JCCT), a new cooperation framework agreement on intellectual property was signed between US and China. Although some are hackneyed themes, it also has some new content. China still has many pressures from the US, but the recent period seems to a temporary equilibrium state for both countries. The agreement mainly refers to the enforcement problem, including setting up a high-level central government enforcement structure led by Vice Premier Wang Qishan, and China will enhance its ability to crack down on intellectual property rights infringement that started in 2010.

However, developed countries should realize that intellectual property has national boundaries because it is inevitable to have different characteristics according to culture, economics and system among countries. China's road is imitative innovation, which is also encouraged by the intellectual property law. Imitation is an inevitable process to creation, and only in this way China can have a chance to finally solve the problem. In the process of dealing with property rights disputes, we should solve the problem case by case and avoid politics and ideology.

Liu Yongpei is a Ph.D, executive director of Legal Experiential Education Center, Shanghai Jiaotong University, and Director & Attorney at Law of Intellectual Property Department, Yingke Law Firm. The views expressed here do not necessarily reflect those of the China Daily website.