Impressive Progress in China’s IPR Protection and Enforcement

来源: 中国外经贸  文章作者:未知  发布时间:2012-09-13 20:33 点击量:

Peter k. Yu Founding Director of the Intellectual Property Law Center at Drake University

  Peter K. Yu holds the Kern Family Chair in Intellectual Property Law and is the founding director of the Intellectual Property Law Center at Drake University Law School.?Before joining Drake University, he founded the nationally-renowned Intellectual Property & Communications Law Program at Michigan State University, at which he held faculty appointments in law, communication arts and sciences, and Asian studies.?

  Born and raised in Hong Kong, Professor Yu is a leading expert in international intellectual property and communications law.?He also writes and lectures extensively on international trade, international and comparative law, and the transition of the legal systems in China and Hong Kong.?A prolific scholar and an award-winning teacher, he is the author or editor of five books and more than 100 law review articles and book chapters.?He serves as the general editor of The WIPO Journal and the editor of two book series.

  How do you comment on China’s progress in the protection and enforcement of intellectual property rights in the past three decades?

  The progress China has made in the past three decades is impressive by any standard. No country has ever built such an elaborate intellectual property system from the ground up in the same period of time. That is indeed a historical achievement! It is also breathtaking to see China has now focused on the development of an innovation-based economy. The country has come such a long way. There is no doubt that further progress can still be made. This is true for any intellectual property system – in China, Europe, Japan or the United States. In assessing China’s progress, we need to be objective about how much progress a country could realistically make based on what other countries have accomplished in the past. We can’t measure progress based on an idealistic yardstick.

  Over the past decades, pushed by some countries, intellectual property rights protection level has been on the rise worldwide. However, different countries’ developments are highly uneven. How should intellectual property rights protection be integrated with each country’s national conditions? What are the principles to be followed?

  By now, it is clear that a one-size-fits-all approach – or, more precisely, a super-size-fits-all approach – enshrined in the TRIPS Agreement and other international intellectual property treaties do not work well for most developing countries. It is also problematic that the existing international intellectual property system privileges innovation models currently deployed in developed countries without being sensitive to the fact that these countries have used very different innovation models during the formative period of their development.

  In integrating international intellectual property standards into the national system, it is important to take a holistic, evidence-based and flexible approach. It needs to consider both issues within the intellectual property system and those lying at the intersection of the system. For example, integration efforts could consider intellectual property issues relating to public health, biological diversity, agricultural productivity, food security, environmental sustainability, scientific research, wealth distribution and human rights protection.

  In addition, laws and policies should be introduced only when they are supported by empirical evidence produced by independent experts familiar with the country’s local conditions. Impact studies, including both ex ante and ex post assessments, will be useful. Greater disclosure of these studies could also facilitate peer evaluation, which in turn would help provide further improvement to the assessed laws and policies.

  Finally, it will be useful to explore the safeguards, flexibilities, limitations and exceptions available in the existing international intellectual property system. Such exploration should include the evaluation of foreign policy measures – proposed or otherwise – that have been abandoned not because of their lack of merit, but because of internal politics, incompatible industry structure or differing market conditions. It would also be useful to evaluate whether China has any unique form of innovation that is not properly captured within the existing international intellectual property system. Cumulative and sequential innovations, for example, deserve greater policy attention.

  Online right infringement happens frequently in China. What’s your opinion on this issue? Is online right infringement a global issue? Could you please share some of your or your country’s experience of protecting intellection property rights online?

  Infringement on rights online happens frequently throughout the world. It is not only a global issue, but also an issue of first impression – due in large part to the advent of new technologies, the emergence of new market structures, the arrival of new business models, and shifts in lifestyles, social norms and consumer preferences.

  Courts in the United States, members of the Europe Union and other developed countries are now inundated with cases addressing secondary copyright liability. There are also repeated outcries about the adverse impact of heightened enforcement standards on innovation, education, competition, free speech, free press, privacy and other civil liberties. Although laws in the area have begun to converge in the developed world, there is still no international consensus on how intellectual property rights should be protected on the Internet. It is also important to separate this new issue from other issues that have traditionally dominated the U.S.-China intellectual property debate, such as piracy and counterfeiting on a commercial scale.

  At the fourth round of Sino-US Strategic and Economic Dialogue, China and the US pledged to strengthen cooperation on intellectual property rights protection. Taking the intellectual property rights judiciary as an example, how should China and the US facilitate their cooperation?

  The cooperation between Chinese and U.S. judges is very important. Judges could share with each other their experience, knowledge, best practices, judicial philosophy and ethical standards. They could also discuss both the leading and most challenging cases in their home country. Although networking among judges at the bilateral and international levels remains important, it may be worth staging mock trials and appeals that allow judges to decide leading cases from the other country.

  For example, Chinese judges could decide in front of U.S. judges leading intellectual property cases from the U.S. Supreme Court or the U.S. Court of Appeals for the Federal Circuit. Likewise, U.S. judges could decide leading Chinese intellectual property cases in front of Chinese judges. Through these mock adjudications, Chinese and U.S. judges will understand better why cases are decided in a certain way abroad and how judicial philosophy and experience differ between Chinese and U.S. judges. They could also engage in follow-up discussions to explore the strengths and weaknesses of the others’ approaches.

  There is simply no absolute yardstick by which one could determine whether a case has been decided correctly or not. This is particularly true considering the inevitable differences in national conditions, constitutional constraints and the type of legal system (civil law versus common law)。 The “shoe is on the other foot” test seems to be a workable approach to facilitate cooperation, communication and learning.

  Although China has made great achievements in promoting the development of intellectual property rights system, the country still faces many challenges. What should the government do to tackle the challenges?

  The typical responses to these challenges are law, enforcement, education and market development. However, there are many other things the government could do.

  At the domestic level, the government could focus on the further development of local IP industries. In addition to protection and enforcement, Chinese firms need to learn to better exploit, license, commercialize and manage their IP assets. The government could also explain better to foreign governments and businesses about how promotion of indigenous innovation would not necessarily lead to discrimination against foreign firms. The former (promotion of indigenous innovation) is an urgent need of China and a mutually beneficial outcome, while the latter (discrimination against foreign firms) is a key concern of the United States and an outcome that is also inconsistent with WTO rules.

  In addition, the government needs to consider the introduction of safeguards, balancing measures and correction mechanisms that can facilitate transfer of technology and prevent anti-competitive behavior and abuse of rights. Those measures are particularly important to China, in view of its highly uneven economic and technological developments and concerns about the country’s long-term stability. As a matter of national policy, it would be ill advised to establish an intellectual property system that facilitates development in the more economically developed areas at the expense of other less developed areas.

  Finally, the country could consider improvements in areas that do not fall solely within the IP domain, such as corruption, local protectionism and the rule of law. Such improvements will likely require substantial investment of political capital. They will also require greater coordination among governmental agencies – coordination at both the vertical level and the horizontal level.

  At the international level, the government could assume a more assertive role in shaping the international IP system. It could also work more closely with its counterparts from other major developing countries. As shown by intellectual property developments in China in the past 30 years, domestic intellectual property systems are often developed against a background of international rules and standards. The more participation China has in shaping these rules and standards, the greater will be its ability to recalibrate the existing system based on its historical traditions, cultural backgrounds, ideological values and socio-economic conditions.


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