The Politics of Intellectual Property Protection in China

By Hong Pang

Intellectual Property (IP) protection is a new issue in international trade negotiation and disputes. It covers not only border measures, but also mandates threshold national regulatory standards and means of enforcing those standards, and thus puts international agreements and negotiations into the center of domestic political battles, especially for developing countries. This project examines how Chinese national political dynamics as well as international pressure influenced the timing, mechanism and outcome of China's legislation and enforcement of IP protection. This project is a part of a larger study that examines the variance in IP protection world-wide, especially in middle-income developing countries facing the competing domestic interests of entrenched “pirate” industries and emerging inventors and artists—the would-be beneficiaries from a stronger IP regime. Using the process tracing approach, this case study aims to show the interaction of different influences as well as the pathway through which a certain implementation outcome arises, which is hard to detect in statistical analysis.

In the first two weeks of my trip, I was able to visit University Service Center (USC) at Chinese University of Hong Kong (CUHK). During my visit, I browsed the collection of Chinese journals, learned about the relevant debates on the policy of intellectual property protection and got prepared for the interviews conducted in Beijing later. I also collected some statistics on IP (including patent, trademark and copyrights) application, registration as well as IP enforcement cases (including administrative, civil and criminal enforcement cases). I was also able to contact some Hong Kong-based IP lawyers located in Hong Kong.

After I left Hong Kong, I visited Beijing and worked full-time for about one month and a half, mainly interviewing three groups. The first group is scholars, specializing in law as well as international relations and political science. I visited Peking University, Tsinghua University, Renmin University and Chinese Academy of Social Science and their departments in law, international relations, public policy and management, journalism and communication. I discussed my projects with these scholars, asked for their suggestions, got their recommendations to other interviewees, and consulted their impressions on Chinese IP legislation and enforcement efforts. Since some of the scholars are the members of consulting committees for IP legislation, I was able to learn about the important changes in the laws, and the back-and-forth involved in the legislative process. I was also invited to audit one of their internal discussions on the recent revision of Chinese Patent Law.

The second group is lawyers, both those working in foreign law firms and Chinese law firms. I was able to learn their opinions about Chinese legislation and enforcement efforts and their opinions on the (in)efficiency of IP protection in China and the reasons. I was also able to learn with what issues, development and inefficiency these lawyers and their clients are concerned and interested.

The third group is representatives from enterprises and industrial associations. I talked with people working in the software, recording, and film industries on the development, characteristics and structure of each industry, the situation of IP protection in each industry, what IP protection issue is of most concern. I also talked with people from Chinese industrial associations and international industrial associations, including China Software Alliance and International Federation of the Phonographic Industry on their associations, their efforts to help member companies to protect their IP rights, and their impression on Chinese government’s effort to protect IP through both legislation and various enforcement means.

Most importantly, a much broader network was developed through this trip. Almost all of the interviewees are willing to be a reference to another potential interviewee and are willing to make themselves available for another talk or email consultation in a near future. I have talked with some junior government officials in some relevant bureaucracies both to consult the feasibility of my project and to establish a network that I hope to use to contact senior officials in the future. Although I ran out of time to interview senior government officials, I was able to connect with those in Chinese bureaucracies relevant for IP protection (including Ministry of Commerce, State Intellectual Property Office, Ministry of Culture, General Administration of Press and Publication, State Administration of Radio Film and Television, Beijing Intermediate People's Court of Justice) have been developed for future interviews.

After collecting various data and publications as well as interviewing elites, I found that my original research design—looking at China’s evolving history of IP protection by dividing it into four periods, treating them as individual observations respectively and comparing them—was too broad. Thanks to the fieldwork, I am able to find that there are variances in IP protection level across different industries and different provinces/regions over time and there is evolution in the importance and popularity for different means of IP protection. These variances are interesting to explore in China and I will follow these directions in my future research. Thanks to the fieldwork, I am able to make my research more focused. Here are the several general impressions I have after the fieldwork:

The lack of consistent and accurate measurement for IP protection level still impeded the research program. Most of the interviewees thought that the current measurement (using the number of enforcement actions per year) cannot measure the enforcement level of IP protection accurately since we do not know the number of total infringement actions, we do not consider the effect of the cost of infringement on enforcement level of IP protection, and/or we do not know the effectiveness of enforcement actions. Relatively speaking, data of piracy rate (if available) would better capture the effectiveness of IP protection, although it also involves some problems when relevant institutes estimated it. I will use piracy rate as measurement of IP protection level when it is available and use data of piracy rate estimated by different sources as robustness check.

The difficulty of measuring the IP protection level accurately has made most of studies on IP protection in China rely excessively on anecdotal evidence from media and lawyers without a comparative context and therefore treat “deficient IP enforcement in China” as an irrefutable proposition. Both the popular media and legal scholars are more likely to focus on areas where there are problems, rather than spending time investigating whether or not the system functions as it is supposed to in a comparative context. One way to solve this problem would be to compare inside China, over time, across different types of IP, and across different sectors. Therefore, it will be interesting to explore the variance in IP protection level among various industries. For example, there has been more obvious improvement in copyright protection in software than in motion pictures and sound recordings in China over the past decade. Why there have been different levels of copyright protection in these industries, why certain effective policies could be made and implemented in certain industry but not others, and why to “steal certain books” is not an “elegant offense” are the research questions which interest me now and which I will pursue to answer in my next stage of fieldwork. Here several factors may work in the story: the role of foreign and indigenous industrial associations, the structure of Chinese IP-related bureaucracy and cross-bureaucracy relationship in different areas, national industrial policies, the characteristics of various industries, market structure and ownership structure of Chinese characteristics in those industries and etc.

Similarly, it will be interesting to explore the different IP protection level among provinces. Furthermore, there has been a movement of infringement center from cities on the eastern coast to those in the central China. The level of economic development and household income, the strength of development in certain industry in certain area, the enforcement strength, the cost and benefits of producing counterfeits, the ideological change in certain area and etc. may be interesting factors to explore. The provincial variance in China and the movement of infringement center may have implication on the situation among countries.

Finally, it will also be interesting to explore the changes in IP protection behaviors (including administrative, civil and criminal means) by IP-owners in China. Bureaucratic interests and incentives, cleavage among various bureaucracies in the process of legislation and implementation, the cost of referring to certain means and etc. may be interesting factors to explore.

Original grant announcement.