A Half-Century of Scholarship on the Chinese Intellectual Property System

67 Am. U. L. Rev. 1045 (2018).

*Copyright © 2018 Peter K. Yu. Professor of Law, Professor of Communication, and Director, Center for Law and Intellectual Property, Texas A&M University. The Author would like to thank the past and present members of the American University Law Review, which has published a number of his works on the Chinese intellectual property system. He is also grateful to Mark Cohen for his valuable comments and suggestions. This Article is dedicated to those who anticipate the importance of Chinese intellectual property law and policy before the subject has garnered wide policy, scholarly, and public attention and to those who courageously embrace research projects in this area even when they fall outside the mainstream.

Today, the Chinese intellectual property system has garnered considerable global policy and scholarly attention. To help develop a more sophisticated, complex, and nuanced understanding, this Article reviews the past five decades of English-language scholarship on the system. It begins by creating a taxonomy of this body of literature based on the most common method—chronology. It then turns to an alternative method of organizing and categorizing scholarly literature—disciplinary focus. The second half of the Article identifies the continuing challenges to researchers studying the Chinese intellectual property system. It further explains why it is important for intellectual property scholars to study China and for China scholars to study intellectual property developments. The Article concludes with some observations on the future directions in scholarship on the Chinese intellectual property system.

Introduction

The first modern Chinese intellectual property law was established in August 1982, offering protection to trademarks.¹ Although that law was primitive by today’s standards, it launched China’s journey into the world of modern intellectual property protection. Two years later, China adopted a modern patent law,² which has since been revised three times and is currently undergoing yet another revision.³ In the early 1990s, China also adopted a copyright law⁴ and a law against unfair competition.⁵ While the former is currently being amended for the third time,⁶ the latter recently underwent its first complete overhaul.⁷

In December 2001, China became the 143rd member of the World Trade Organization (WTO).⁸ Such membership requires the country to, among other obligations, abide by the Agreement on Trade-Related Aspects of Intellectual Property Rights⁹ (TRIPS Agreement), the most comprehensive intellectual property agreement ever adopted by the international community. In the past decade, China has also actively participated in the negotiation of bilateral, regional, and plurilateral trade agreements,¹⁰ including most notably the Regional Comprehensive Economic Partnership (RCEP).¹¹

Today, the Chinese intellectual property system has garnered considerable global policy and scholarly attention. Based on the statistics compiled by the World Intellectual Property Organization (WIPO), China had the world’s second largest number of international applications filed through the Patent Cooperation Treaty¹² in 2017, behind only the United States.¹³ Among corporate applicants, China-based Huawei Technologies and ZTE Corporation had the first and second largest volume of international patent applications, respectively.¹⁴ For the same year, China ranked third in the number of international trademark applications¹⁵ under the Madrid Agreement Concerning the International Registration of Marks and its related protocol.¹⁶

Despite these rather impressive figures, many policymakers, commentators, and industry representatives continue to question the quality of patents issued by the State Intellectual Property Office of China (SIPO).¹⁷ They also lament the country’s inadequate levels of intellectual property protection, which do not compare favorably with those offered by other world leaders, such as the European Union or the United States.¹⁸ Only last year, the United States Trade Representative (USTR) launched an investigation of China under section 301 of the Trade Act of 1974.¹⁹ This investigation focused on Chinese laws, policies, and practices in the areas of intellectual property, innovation, and technology development.²⁰ In the past two years, the USTR also placed Alibaba’s Taobao on his list of notorious online markets.²¹

Regardless of one’s assessment of the Chinese intellectual property system, there is no denying that China has made considerable progress since the establishment of its modern intellectual property system in the early 1980s. Indeed, no other country in history has achieved as much in the intellectual property field in only three short decades.²² To a large extent, China is now entering a new, and somewhat unprecedented, stage of development that warrants serious review and rethinking. Not only has the country moved away from utilizing legal transplants to modernize its intellectual property system,²³ it has also reached a crossroads that requires the country to devise its own intellectual property strategy.²⁴

As I noted in a recent special issue on the first thirty-five years of the Chinese intellectual property system, that system is now entering the proverbial middle age.²⁵ It will therefore be interesting to see whether the system will start hitting its prime or facing a hard-to-predict mid-life crisis.²⁶ Should the system hit its prime, it will make China an even stronger global competitor than it is today. Such competition in turn will lead to even more intense scrutiny. By contrast, if the system is facing the proverbial mid-life crisis, its developments will become erratic and perplexing. These developments will equally attract attention. In short, regardless of its developments, China will feature prominently in future international intellectual property debates.

To help develop a more sophisticated, complex, and nuanced understanding of the Chinese intellectual property system, this Article reviews the past five decades of English-language scholarship on the system. Part I creates a taxonomy of this body of literature based on the most common method—chronology. This Part contends that the scholarship in the past half-century can be separated into five broad phases that at times have been punctuated by isolated major incidents. Each phase contains a fairly distinctive body of scholarship.

Part II turns to an alternative method of organizing and categorizing scholarship on the Chinese intellectual property system—disciplinary focus. While most scholarship in this area has focused on law and policy, this Part identifies three other broadly defined multi-disciplinary clusters within which an expanding body of scholarship has emerged: (1) philosophy and culture; (2) economics, innovation, and cultural industries; and (3) politics and international relations. Described as the interdisciplinary turn in scholarship on the Chinese intellectual property system, this Part not only highlights the scholarship’s growing richness, diversity, and sophistication, but also its increasing inter- and multi-disciplinarity. The latter development is particularly interesting because scholarship on the Chinese intellectual property system became more inter- and multi-disciplinary just when intellectual property scholarship in other areas moved in the same direction.

Part III identifies the continuing challenges to researchers studying the Chinese intellectual property system. Taking note of the considerably improved environment for undertaking research in this area, brought about in part by the transparency requirements of the TRIPS Agreement,²⁷ this Part contends that the challenges confronting researchers on the Chinese intellectual property system have greatly reduced. Nevertheless, many challenges still remain and have continued to hinder researchers in this area.

Part IV explores why it is imperative to study the Chinese intellectual property system and its rapidly changing developments. This Part underscores both the need for intellectual property scholars to study China and for China scholars to study intellectual property developments. This Part shows that scholarship on the Chinese intellectual property system should be seen as facilitating a two-way dialogue. This dialogue not only allows China scholars to explore how the country addresses an issue that is of great importance to the outside world, but also enables intellectual property scholars to examine a system that has become increasingly influential at the global level.²⁸

Part V concludes with some observations on the future directions in scholarship on the Chinese intellectual property system. While these observations build on nearly two decades of my research and are undeniably personal, they draw on developments that have already begun in the area of Chinese legal scholarship or intellectual property scholarship in general. By exploring these future directions, this Article aims to convey the impression that scholarship on the Chinese intellectual property system will only become richer, more diverse, and more sophisticated in the future. Such richness, diversity, and sophistication are certainly not what many early scholars on the Chinese intellectual property system expected when they started studying this system a half-century ago.

I. A Chronology-Based Taxonomy

Chronology provides the easiest method to create a taxonomy of scholarship on the Chinese intellectual property system. Thus far, fairly distinctive bodies of scholarship have emerged in five disparate phases: (1) prehistoric development; (2) imitation and transplantation; (3) standardization and customization; (4) integration and assimilation; and (5) indigenization and transformation. This Part discusses each phase in turn and shows how these phases are interrelated, episodic, and cyclical. Section I.F offers four closing observations linking the five phases together.

A. Prehistoric Development

The first phase concerns those intellectual property developments that occurred before the establishment of the modern Chinese intellectual property system. While this phase is described as “prehistoric development”—due largely to the Article’s specific focus—whether this phase is categorized as prehistoric or simply historical will largely depend on perspective and focus. The further back in history researchers trace the Chinese intellectual property system to indigenous notions,²⁹ the less they would prefer the term “prehistoric development.”

As with any historical research involving prehistory, determining when prehistory ends and history begins is not that difficult. Given this Article’s focus on the modern Chinese intellectual property system, the prehistoric phase understandably ended with the system’s establishment. Notwithstanding this logical endpoint, it remains unclear when prehistory actually began. Indeed, because this phase could go back as far as the researcher’s interests and attention allow, this Section merely offers suggestions on some possible starting points.

Although Western commentators widely believe that indigenous notions of intellectual property rights did not exist in China³⁰ before foreign powers introduced these rights through gunboat diplomacy, trade pressures, legal assistance, or other forceful means,³¹ Chinese scholars have questioned those beliefs, which they find culturally stereotypical at times.³² The most informative source documenting the existence of indigenous notions of intellectual property rights in China is a Chinese-language anthology put together by Zhou Lin and Li Mingshan.³³ Covering the Song, Yuan, Ming, and Qing dynasties and the Republican and Communist eras, this highly valuable volume collected historical documents that showed indigenous copyright notions in China.³⁴

Thus far, most scholarship on the Chinese intellectual property system traced the system’s origin to the late Qing period. For example, some commentators emphasized the laws adopted by the Qing government, such as the Great Qing Copyright Law of 1910 (Da Qing Zhuzuoquan Lu).³⁵ Meanwhile, others traced the system earlier to new measures introduced during the short-lived Hundred-Day Reform (1898)³⁶ or the somewhat territorially limited Taiping Rebellion (1850–1864).³⁷ Those researchers who were willing to go further in time even caught glimpses of intellectual property protection in those rights that Emperor Wu of the Han dynasty (Han Wudi) granted to individual merchants to “smelt iron, distill salt, and mint coin” more than two millennia ago.³⁸

That researchers have located primitive forms of intellectual property rights in early Chinese history is unsurprising. After all, commentators have traced the Western intellectual property system to the Venetian Republic in the fifteenth century³⁹ or even earlier.⁴⁰ They have also considered the Statute of Monopolies of 1624 the origin of the Anglo-American patent system.⁴¹ Moreover, many pioneering inventions have emerged throughout the nearly five millennia of Chinese civilization,⁴² such as the compass, gunpowder, papermaking, and woodblock printing.⁴³ Such inventions have inevitably raised questions about the incentive structure or arrangement that led to their creation in the first place. It is also worth noting that, even though the term “intellectual property” was not translated into Chinese until the 1970s,⁴⁴ the Chinese term “zhishi chanquan” can be traced back to “a very ancient historical record, ‘Guo-Yu,’ which was written some 3,000 years ago in the late Zhou Dynasty.”⁴⁵

In short, a growing volume of literature has revealed a much longer and richer history of intellectual property developments in China than many Western scholars have suggested in the 1980s and 1990s. Notwithstanding this body of scholarship, this Part focuses on the research published in only the past fifty years—that is, a period starting only a decade before the establishment of the modern Chinese intellectual property system. Such a durational focus has three justifications. First, it will make the scholarship review conducted in this Article more manageable. Second, reaching back to a decade before the establishment of the modern Chinese intellectual property system will enable us to capture most, if not all, of the scholarship on the preparatory work that was undertaken to establish this system. Finally, having a more limited focus is highly practical because English-language scholarship on the Chinese intellectual property system was very rare before the mid-1970s.⁴⁶

Within the first decade or so of the past half-century, very little English-language scholarship can be found. Hsia Tao-tai and Kathryn Haun provided a pioneering analysis of the attitudes within China toward industrial, literary, and artistic property.⁴⁷ It is notable that their study was published in 1973, the year when China sent its first delegation to WIPO.⁴⁸ Five years later, Barden Gale published an article examining the concept of “intellectual property” in China.⁴⁹ That article analyzed the historical policies that had provided incentives for inventive and innovative activities.⁵⁰

On occasion, researchers focused on a specific branch of intellectual property rights, as opposed to the entire field. In the trademark area, Heinz Dawid examined the 1950 Provisional Regulations Concerning the Registration of Trademarks and the 1963 Regulations Concerning the Control of Trademarks.⁵¹ Although the latter was abolished during the Cultural Revolution (1966–1976), it was subsequently restored and remained in force until the adoption of the 1982 Trademark Law.⁵² John Butler also offered a treatise-like analysis of the 1963 Regulations.⁵³ Such article-by-article analysis, while rare in this phase, had become more popular in later phases. Indeed, books and treatises on Chinese intellectual property law began to appear after this phase.⁵⁴

In the copyright area, Dietrich Loeber explored how authors and their publications were protected in China in the 1970s, drawing on interviews and field research conducted shortly before the end of the Cultural Revolution.⁵⁵ His research was illuminating because China would not adopt a modern copyright law until more than a decade later.⁵⁶ In a memorial lecture sponsored by the Copyright Society of the U.S.A., Jon Baumgarten, a former general counsel of the U.S. Copyright Office, also shared observations on the changing U.S.-China copyright relations<⁵⁷ following the signing of the Agreement on Trade Relations Between the United States of America and the People’s Republic of China⁵⁸ (“1979 Agreement”) in July 1979.

B. Imitation and Transplantation

The second phase began with the establishment of the modern Chinese intellectual property system. Like its predecessor, this phase included several possible starting points. The phase could begin with the Third Plenary Session of the Eleventh Central Committee in December 1978,⁵⁹ in which Deng Xiaoping and his fellow leaders made a decisive push for the “Four Modernizations” to develop China’s world-class strengths in agriculture, industry, science and technology, and national defense by 2000.⁶⁰ The leaders also normalized the country’s diplomatic and commercial relationships with the United States, Japan, and other Western developed countries.⁶¹ Without these policy reversals, it is quite certain that China would not have developed the modern intellectual property system so quickly after the end of the Cultural Revolution.⁶² Indeed, sufficient evidence existed to document the gradual expansion of domestic governmental support for the establishment of this new system. As Andrew Mertha recounted chronologically,

In 1978, . . . the State Council charged the State Science and Technology Commission (SSTC) with developing a patent system for China. In March 1979, the drafting group of the Chinese Patent Law was established. [In June 1979, the Chinese Patent Office, or State Patent Bureau, was established, assuming the responsibilities of the drafting group.] On October 17 of the same year, the formal request for the establishment of a patent system in China was submitted to the State Council by the SSTC. On January 14, 1980, the State Council approved the request, and on March 3, China became a member of [WIPO].⁶³

The second possible starting point is the signing of the 1979 Agreement, which entered into force on February 1, 1980.⁶⁴ This agreement is significant in the intellectual property context because it called for the reciprocal protection of copyrights, patents, and trademarks owned by the nationals of the other party.⁶⁵ The agreement is equally noteworthy in the international context because it created in China “an international legal obligation for intellectual property rights protection before [the country] had established a domestic intellectual property protection system.”⁶⁶

The third possible starting point is the beginning of China’s WIPO membership. China joined this U.N. specialized agency on March 3, 1980 and became a member three months later.⁶⁷ Although the country was unable to join the agency before reestablishing international ties, its involvement in the organization actually began much earlier. As Professor Mertha recounted,

As early as November 1973, after the Chinese delegation to [WIPO] returned to Beijing, delegation leader Ren Jiaxin, who would later become Chief Justice of China’s Supreme Court, proposed the establishment of a patent system in China. According to the People’s Daily,

This was the first time that New China has sent representatives to an international conference related to intellectual property rights. At that time, many people in China found the term “Intellectual Property” rather unfamiliar. The [China Council for the Promotion of International Trade (CCPIT)] had rendered it, for the first time, into the Chinese equivalent, zhishi chanquan.<⁶⁸

The last possible starting point is the adoption of the 1982 Trademark Law.⁶⁹ Using this historic milestone as the beginning is quite popular among legal researchers. After all, the Trademark Law was the first statute in the modern Chinese intellectual property system. From a research standpoint, the early adoption of a new trademark law in China is noteworthy because such adoption showed that trademark law reform did not face as much domestic resistance as reform in the copyright or patent area. As Peter Feng explained, trademarks “were a state planning tool before they became a marketing device and private property.”⁷⁰ As such, they “survived China’s socialist transformation of the 1950s, and registration continued even during the Cultural Revolution.”⁷¹

In view of the existence of these four starting points, it has been rather difficult to determine the beginning of the second phase. It has also been quite challenging to determine what scholarship would fall within this particular phase. Typically, scholarship on new laws and policies emerge when they are proposed or considered, not after they have been adopted. Researchers therefore often have to reach back to scholarship published before the chosen starting point.

For analytical convenience and effectiveness, this Section focuses on scholarship that has been published since China’s reopening to the outside world in the late 1970s. The use of literature from that period can be easily justified by the researchers’ tendency to use the beginning of China’s WIPO membership or the 1982 Trademark Law as the starting point of this second phase. The choice of this earlier starting point also makes great sense considering that the country’s reopening marked the critical juncture at which foreign researchers became curious about the Chinese legal system, resulting in a growing volume of English-language scholarship on this system.⁷²

Similar to publications in the previous phase, scholarship in this second phase tended to be rather straightforward; it focused mostly on newly emerging laws and policies. For instance, the adoption of the 1982 Trademark Law and the 1984 Patent Law sparked a significant volume of literature.<⁷³ A notable example is a special issue collecting articles on the new Patent Law that Maria Lin guest-edited for the AIPLA Quarterly Journal.⁷⁴ In addition to scholarship in the trademark and patent areas, one could find scholarship exploring the upcoming Copyright Law,⁷⁵ even though that body of scholarship remained scant until the law’s late adoption in the early 1990s.⁷⁶ Some commentators also explored the protection of computer software, which at that time could be offered through either copyright law or a sui generis regime.⁷⁷

Apart from the three main branches of intellectual property law, some commentators broadened the research focus to cover law relating to foreign investment, technology licensing and transfer, and dispute settlement⁷⁸—topics that were of great practical importance to attorneys who had clients doing business in China.⁷⁹ Because little English-language scholarship on the Chinese intellectual property system appeared before this phase, most scholarship in the second phase offered a historical overview of developments in the relevant areas.⁸⁰

Complementing this body of scholarship was a helpful report the Far Eastern Law Division of the Library of Congress prepared for the Special House Subcommittee on U.S. Trade with China.⁸¹ Written in 1984 by Hsia Tao-tai, who co-authored one of the pioneering articles mentioned in the previous Section,⁸² this highly influential report provided in-depth analysis of the 1984 Patent Law and the much-needed contextual background surrounding its development.⁸³ Particularly commendable is the report’s inclusion of Chinese-language sources⁸⁴ that helped bridge the rather significant language and access barriers encountered by virtually all early scholars of the Chinese intellectual property system.⁸⁵

C. Standardization and Customization

The third phase began in the early 1990s. Covering issues both inside and outside China, this phase featured scholarship on the United States’ aggressive intellectual property policy toward China and China’s active preparation for WTO accession. At the beginning of this phase, China made a dedicated effort to reintegrate with the outside world following the international crisis precipitated by its handling of the 1989 student protests in Tiananmen Square.⁸⁶ The protests and their aftermath not only resulted in sanctions from the international community,⁸⁷ but also led foreign policymakers and commentators to view China with a different lens—with greater emphasis on the rule of law⁸⁸ and human rights protection, for instance.⁸⁹

In the intellectual property area, the international sanctions and heightened global scrutiny greatly complicated policy and scholarly discussions.⁹⁰ For example, on May 19, 1989, China and the United States signed the first intellectual property-related memorandum of understanding (“MOU”) after China reopened to the outside world.⁹¹ Focusing mostly on copyright protection and addressing software protection in particular,⁹² this MOU “paved the way for the eventual adoption of the Copyright Law in September 1990 and a separate set of computer software regulations the year after.”⁹³ Yet, scholarship from both Chinese and non-Chinese intellectual property scholars seldom mentions this MOU.⁹⁴

Similar complications arose with respect to scholarship on the adoption of the 1990 Copyright Law. Although the U.S. government and copyright industries had been lobbying heavily for this law since the mid-1980s,⁹⁵ they remained reluctant to recognize its adoption as a success. Their reluctance was due largely to the strained diplomatic relationship between China and the United States and the suspension of bilateral talks “in 1989 and 1990 as part of the U.S. sanctions.”⁹⁶ This lack of governmental engagement, in turn, caused U.S. policymakers and scholars to pay little attention to the compromise facilitating the adoption of the 1990 Copyright Law⁹⁷—namely, the denial of copyright protection to censored works. This compromise proved to be problematic for U.S. copyright industries down the road.⁹⁸ As the next Section will discuss, Article 4 of the 1990 Copyright Law, which stated that “works the publication and/or dissemination of which are prohibited by law shall not be protected by this Law,”⁹⁹ would eventually become a key part of the WTO complaint the United States was to file more than a decade and a half later.¹⁰⁰

Notwithstanding the considerable complications in the early part of this phase, two specific developments radically changed the discourse on the Chinese intellectual property system. First, on April 26, 1991, the USTR designated China as a priority foreign country for the first time.¹⁰¹ This designation indicated that China “ha[d] the most onerous or egregious acts, policies, or practices that . . . deny adequate and effective intellectual property rights or . . . fair and equitable market access to [intellectual property rights holders].”¹⁰² Such designation paved the way for the first Bush administration’s announcement of $1.5 billion of retaliatory tariffs on “Chinese textiles, shoes, electronic instruments, and pharmaceuticals” in January 1992.¹⁰³

Second, and more crucial for Chinese legal research, the economic conditions in China changed rapidly following Deng Xiaoping’s visit to Guangzhou, Shenzhen, and Zhuhai in January 1992.¹⁰⁴ In the wake of this so-called “southern tour” (nanxun),¹⁰⁵ China not only accelerated the opening up of its economy, but also actively prepared for WTO accession.

To capture these two pathbreaking developments, this Section highlights two distinct strands of scholarship. The first strand concerned the American intellectual property policy toward China. Prescient, informative, and of great practical relevance, this strand of scholarship was largely sparked by the USTR’s designation of China as a priority foreign country in April 1991, a designation that would soon repeat on June 30, 1994, and April 30, 1996.¹⁰⁶ The scholarship also covered other actions that the USTR had imposed on China or threatened the country with, such as economic sanctions, trade wars, non-renewal of most-favored-nation status, and opposition to China’s entry into the WTO.¹⁰⁷

In addition, this strand of scholarship documented the back-and-forth engagement between China and the United States, including the multiple threats and counterthreats, the signing of the Memorandum of Understanding on the Protection of Intellectual Property in January 1992,¹⁰⁸ the adoption of the Agreement Regarding Intellectual Property Rights in February 1995,¹⁰⁹ and the exchange of a report on the 1995 Agreement in June 1996.¹¹⁰ Although these bilateral instruments, in my view, have been largely ineffective—creating what I have referred to as a “cycle of futility”¹¹¹—they have presented highly attractive topics for research on the Chinese intellectual property system.¹¹²

Before the early 1990s, scholarship on the Chinese intellectual property system did not focus much on American intellectual property policy toward China¹¹³ or issues relating to intellectual property enforcement in the country.¹¹⁴ This prior scholarship seemed to have taken for granted (somewhat naïvely) that China would effectively enforce intellectual property laws once they had been put in place. The scholarship after the mid-1990s, however, no longer make this misguided assumption.¹¹⁵ Instead, a growing volume of literature closely examined the piracy and counterfeiting problems in China and proposed solutions to address them.

Specifically, the scholarship covered the introduction of a special enforcement period through the 1995 Agreement,¹¹⁶ the reinstatement of this period in June 1996,¹¹⁷ and the various enforcement campaigns that China subsequently launched. This coverage shows that policymakers and commentators started to become aware that the intellectual property problems in China were less about the lack of intellectual property laws than about the failure to enforce those laws.¹¹⁸ As the USTR noted in the 2001 National Trade Estimate Report, shortly before China’s admission to the WTO, rampant intellectual property violations in the country were largely attributed to “poor enforcement of existing laws and regulations, combined with weak punishments.”¹¹⁹

Another major strand of scholarship appearing in this phase focused on those changes China made to the intellectual property system in its run-up to WTO accession.¹²⁰ This strand of scholarship complemented and reinforced the previous strand of scholarship, because WTO accession and related reforms helped address the concerns the U.S. government and intellectual property industries had over inadequate intellectual property protection in China. Because WTO reforms are often examined together, this strand of scholarship inevitably touched on China’s “reform and open” (gaige kaifang) policies. These policies garnered even more policy, scholarly, and media attention following the Asian financial crisis in the late 1990s.¹²¹ While this crisis deeply affected countries such as Japan, South Korea, and other leading Asian economies, China’s economy managed to grow on a steady pace.¹²²

The discussion of WTO-related developments in this phase is complex and challenging. Not only did scholars need to capture fast-pace developments, which were often moving targets, they also had to address the substantial changes that were simultaneously occurring in the international intellectual property regime in the early to mid‑1990s. These changes included, most notably, those caused by the arrival of the TRIPS Agreement¹²³ and the mainstreaming of the internet.¹²⁴ Taking note of these changes, some scholarship in this phase not only focused on domestic intellectual property reforms in China, but also featured discussion of the dramatic changes within the international intellectual property regime.¹²⁵

When considered together, these two major strands of scholarship reveal a clean break from scholarship in the previous phase. While there were occasional articles covering the transition of the Chinese intellectual property system from the mid-1980s,¹²⁶ scholarship in this phase seems to have broken the timeline and jumpstarted with a new direction. This new direction was generated externally by the United States’ aggressive intellectual property policy toward China, internally by reforms that China eagerly undertook in its effort to join the WTO, or both.

D. Integration and Assimilation

The fourth phase began with China’s accession to the WTO. Unlike the first three phases, this phase is the most clearly identifiable. At the Doha Ministerial Conference in November 2001, WTO members approved the proposal to admit China to the international trading body.¹²⁷ After fifteen years of exhaustive negotiations,¹²⁸ China formally became the organization’s 143rd member on December 11, 2001.¹²⁹

In this phase, the scholarship built heavily on scholarship in the previous phase. Indeed, the overlap between these two phases has led researchers to lump together the two phases in their analyses. Combining these two phases is also an approach I have taken in past scholarship.¹³⁰ While the previous phase covered the customization and standardization efforts before China’s WTO accession, the present phase focused on post-accession developments.¹³¹

Notwithstanding the continuity from the pre-accession phase to the post-accession phase, this Part separates scholarship in the customization and standardization phase from scholarship in the integration and assimilation phase. Such separation makes salient the latter’s focus on China’s integration efforts and legal and policy responses following WTO accession. For instance, a significant volume of scholarship in the integration and assimilation phase analyzed the amendments China adopted shortly before WTO accession.¹³² These amendments included the Second Amendment to the Patent Law, the First Amendment to the Copyright Law, and the Second Amendment to the Trademark Law, which China adopted in August 2000, October 2001, and October 2001, respectively.¹³³

One major incident that attracted considerable policy and scholarly attention in this phase was the U.S.-China WTO dispute over the lack of protection and enforcement of intellectual property rights under the TRIPS Agreement.¹³⁴ This dispute marked the first time the United States used the mandatory WTO dispute settlement process to address the massive piracy and counterfeiting problems in China.¹³⁵ Filed on April 16, 2007, the United States’ complaint included four issues: (1) the high thresholds for criminal procedures and penalties in the intellectual property area; (2) the failure of the Chinese customs authorities to properly dispose of infringing goods seized at the border; (3) the denial of copyright protection to works that have not been authorized for publication or dissemination within China; and (4) the unavailability of criminal procedures and penalties for infringing activities that involved either reproduction or distribution, but not both.¹³⁶

By the time the WTO Dispute Settlement Body established a panel to address the complaint, the two parties had already resolved the fourth claim.¹³⁷ As a result, the panel considered only the three remaining claims. In January 2009, after some initial delay, the WTO panel finally released its long-awaited report.¹³⁸ While China prevailed on the claim concerning criminal thresholds,¹³⁹ the United States won the censorship claim.¹⁴⁰ The remaining customs claim was somewhat divided between the two parties,¹⁴¹ with each side declaring victory.¹⁴² With a 2–1 outcome, neither China nor the United States appealed the panel decision to the WTO Appellate Body.¹⁴³

Although scholarship on this dispute existed long before the release of the WTO panel report,¹⁴⁴ most commentaries emerged after the report and well into the next phase of indigenization and transformation.¹⁴⁵ A notable collection of articles on this report was published as a special issue on “The WTO China—IPR Case in Perspective” in the Journal of World Intellectual Property.<¹⁴⁶ These “post-mortems” not only assessed the dispute’s outcome and its ramifications for the WTO and its TRIPS Agreement, but also covered many different aspects of the WTO panel report, including interpretive methodology,¹⁴⁷ TRIPS flexibilities,¹⁴⁸ border measures,¹⁴⁹ and freedom of expression.¹⁵⁰

Another major incident that received considerable policy, scholarly, and media attention worldwide was the Beijing Olympics in August 2008.¹⁵¹ The hosting of this world sporting event was a great source of national pride among the Chinese populace.¹⁵² In the view of one commentator, such hosting “not only would help position the country in the global economy, but might also trickle ripple effects to accelerate reforms in the country,” including intellectual property reforms.¹⁵³ Scholarship covering the Beijing Olympics therefore discussed issues ranging from international integration to trademark protection to intellectual property enforcement.¹⁵⁴

Notwithstanding the significance of both the WTO panel report and the Beijing Olympics, the timing of these events has presented some taxonomical challenges for scholarship in this phase. Although both events were held just when China was changing its intellectual property system from a transplant-based model to one focusing on independent innovation, scholarship regarding these events fit much better here than in the next phase of indigenization and transformation.

From a chronological standpoint, the United States filed the WTO complaint in this phase even though the WTO panel did not release its report until two years later. Likewise, China had been planning the Beijing Olympics since its winning bid in July 2001.¹⁵⁵ Those years of planning took place long before the development of the National Intellectual Property Strategy.

From a research standpoint, the scholarship on both events also tie well to scholarship in this phase. Both the WTO panel report and the Beijing Olympics reflected China’s effort to assimilate international standards and to integrate with the outside world. Scholarship on the latter, in particular, foregrounded issues about global integration. Because the International Olympic Committee had dictated many new intellectual property standards the same way the WTO did,¹⁵⁶ the scholarship on the Beijing Olympics and post-WTO accession adjustments bore remarkable similarities.

E. Indigenization and Transformation

The last phase began with the State Council’s release of the National Intellectual Property Strategy in June 2008,¹⁵⁷ a couple of months before the Beijing Olympics. This nationwide strategy provided a comprehensive plan to improve the creation, utilization, protection, and administration of intellectual property rights.¹⁵⁸ Specifically, paragraph 7 emphasized the need for active development of independent or self-controlled intellectual property (zizhu zhishi chanquan).¹⁵⁹ As this Section will discuss further, this emphasis would eventually cause policymakers and commentators from the United States, Europe, and other parts of the world to link its discussion to protectionist indigenous innovation policies.¹⁶⁰

The origin of China’s National Intellectual Property Strategy traced back to the mid-2000s when government leaders began to consider major changes to move the economy forward. These laws were well aware of the need to develop a new overall economic strategy to “avoid what policymakers and commentators have described as the ‘middle-income trap’—the proverbial state of development at which a country is stuck after it has attained a certain level of wealth, but has yet to catch up with its more developed counterparts.”¹⁶¹

In February 2006, the State Council released the National Long-term Scientific and Technological Development Program, formally declaring its commitment to turn China into an innovation-based economy within fifteen years.¹⁶² Since then, top Chinese leaders increasingly recognized the economic and strategic significance of a well-functioning intellectual property system. As the State Intellectual Property Office recounted in its 2008 report,

During the Ninth Collective Study of the 17th [Chinese Communist Party] Politburo, General Secretary Hu Jintao stressed specifically the importance of sticking to innovation with Chinese characteristics, energetically implementing the strategy of making the country prosperous with science and technology, the strategy of capitalizing on talent to make the country strong, IP [intellectual property] strategy, and accelerating the construction of innovative country. When addressing the Party’s meeting mobilizing the study and practice of scientific outlook on development, Premier Wen Jiabao said, “One thing necessary to stress is to concretely strengthen IPR [intellectual property right] protection. In the new era, competition of world science and technology as well as economy is mainly competition of IPRs. Underscoring IP protection is underscoring and inspiring innovation.” . . . Vice Premier Wang Qishan published an article in his own name entitled China no longer tolerates piracy, infringement on the Chinese version of the Wall Street Journal . . . .¹⁶³

Although there had been lengthy policy discussion, scholarship on the National Intellectual Property Strategy did not emerge in intellectual property literature until after the launch of the new strategy.¹⁶⁴ Until then, that strategy was occasionally mentioned. Moreover, because China released its National Intellectual Property Strategy only a few months before the adoption of the Third Amendment to the Patent Law in December 2008,¹⁶⁵ scholarship in this phase often discussed the two topics together.¹⁶⁶

From a research standpoint, the development of this amendment was particularly noteworthy, as it reflected China’s eagerness to make adjustment to its intellectual property system based mostly on internal needs, as opposed to external demands.¹⁶⁷ Up to that point, intellectual property reforms in China focused primarily on compliance with external norms. The development of the strategy and the new patent law amendment also redirected scholarship on the Chinese intellectual property system. Instead of continuing to address issues that are of great concern to foreign governments and rights holders—such as the massive piracy and counterfeiting problems in China—scholarship emerging after this point has turned to other issues that are equally interesting and significant to Chinese policymakers and the local populace.

In this phase of indigenization and transformation—which is still ongoing—the scholarship has focused mostly on law and policy changes that China has introduced to implement and “perfect” its National Intellectual Property Strategy. In addition to the latest round of amendments to the copyright, patent, trademark, and unfair competition laws, scholarship in this phase has covered new topics such as indigenous innovation¹⁶⁸—a topic that has greatly troubled foreign governments and intellectual property industries.¹⁶⁹ Indeed, China’s
new indigenous innovation policies were so problematic that the
Trump administration launched a section 301 investigation of China
in August 2017.¹⁷⁰ The WTO complaint that the USTR recently filed also underscored the concerns raised by these policies.¹⁷¹ Focusing on Articles 3 and 28 of the TRIPS Agreement,¹⁷² the complaint alleged that “China deprive[d] foreign intellectual property rights holders of the ability to protect their intellectual property rights in China as well as freely negotiate market-based terms in licensing and other technology-related contracts.”¹⁷³

As I noted in prior scholarship, indigenous innovation is actually not the best term to describe the focus of China’s new policies.¹⁷⁴ A better term is independent, self-driven, or self-controlled innovation. After all, as far as those policies are concerned, the innovation involved does not have to be homegrown or indigenous. As I noted in an earlier article,

As with many other Chinese terms, the term “zizhu zhishi chanquan” does not translate well from Chinese to English. While [“zi”] can be easily translated to “self,” “zhu” is much more complicated. As a noun, the word refers to “master,” “owner,” or “host.” As a verb, the word refers to “direct” or “manage.” As an adjective, the word refers to “chief” or “main.” Thus, policymakers, commentators, and the media have translated “zizhu” to “self-relied,” “self-driven,” “self-controlled,” “self-owned,” “indigenous,” “homegrown,” or “independent.” Out of all the terms, the word “independent” seems to best capture the term’s original meaning while preserving its useful Western connotations.¹⁷⁵

Thus, when the term is put in the right cultural, linguistic, and historic contexts, its emphasis is on independence, self-reliance, and control.¹⁷⁶ To some extent, the term zizhu zhishi chanquan and the introduction of the National Intellectual Property Strategy reflected the Chinese leaders’ frustration with the massive foreign control of intellectual property rights, the licensing of which had drained a considerable amount of the country’s foreign exchange reserves.¹⁷⁷ Regardless of one’s terminology, however, scholarship in this phase has focused on two related issues: (1) how China’s new strategy has affected, or will affect, foreign businesses; and (2) whether that strategy complies with WTO and other international standards.

One major strand of scholarship that the ongoing discussion of independent innovation has sparked concerns the innovation models and innovative capabilities of Chinese companies, especially those of the national champions in the high-technology area.¹⁷⁸ Although this body of scholarship, which Section II.B will discuss in greater detail,¹⁷⁹ originates from mostly business and management scholars, it has been well received by legal scholars and has attracted considerable attention from those conducting empirical research or policy analyses.¹⁸⁰

An additional, but somewhat limited, strand of scholarship in this phase pertains to China’s changing position in the international trading and intellectual property systems.¹⁸¹ As China is slowly moving from its oft-discussed roles of a norm-breaker and a norm-taker to the new roles of a norm-shaker and a norm-maker, this body of literature has become quite significant.¹⁸² Because the literature involves not only legal scholars but also those interested in geopolitics and international relations, Section II.C will provide further discussion.¹⁸³

F. Closing Observations

The previous Sections have discussed the five phases in which fairly distinctive bodies of scholarship on the Chinese intellectual property system have emerged. To enrich our understanding of the evolution of this system, and to bring the five disparate phases closer to each other, this Section offers four closing observations.

First, as the previous Sections have shown, the separation between the different phases is not always clear-cut. For example, scholarship in the third phase of customization and standardization and the fourth phase of integration and assimilation overlapped considerably, with WTO accession being the main divide. Similarly, scholarship on the WTO panel report and the Beijing Olympics fit better with the fourth phase, even though both events occurred after the beginning of the fifth phase of indigenization and transformation. For researchers studying the Chinese intellectual property system, understanding the continuity from phase to phase and the historical contexts behind each phase will likely be essential. After all, this system has been developing in an incremental fashion. As many commentators have noted, such incremental developments can be vividly captured by the phrase “groping for stones to cross the river” (mozhe shitou guohe),¹⁸⁴ a concept endorsed by Deng Xiaoping.¹⁸⁵

Second, even though the phases discussed in this Part are arranged by chronological order, they have been episodic and punctuated by isolated major incidents. Similar to what Bruce Ackerman has coined “constitutional moments,”¹⁸⁶ these incidents have attracted so much scholarly attention that they have inevitably colored scholarship in the relevant phase. Indeed, China scholars are accustomed to discussing incidents.¹⁸⁷ Key incidents explored in the previous Sections included the signing of the 1979 Agreement; the adoption of the trademark, patent, and copyright laws in the 1980s and early 1990s; the U.S.-China trade wars in the early to mid-1990s; China’s WTO accession; the U.S.-China TRIPS dispute; the Beijing Olympics; the adoption of the National Intellectual Property Strategy; and China’s active involvement in or exclusion from bilateral, regional, and plurilateral trade negotiations.

Third, it remains unclear what phase, or phases, will follow the fifth phase of indigenization and transformation, which is still ongoing. Indeed, it will be quite difficult to predict how the Chinese or international intellectual property system will evolve in the future. Adrian Johns showed provocatively how “profound shift[s] in the relation between creativity and commerce”¹⁸⁸ had occurred “about once every century, in fact, since the end of the Middle Ages.”¹⁸⁹ As he reminded us,

The last major [turning point] occurred at the height of the industrial age, and catalyzed the invention of intellectual property. Before that, another took place in the Enlightenment, when it led to the emergence of the first modern copyright system and the first modern patents regime. And before that, there was the creation of piracy in the 1660s–1680s. By extrapolation, we are already overdue to experience another revolution of the same magnitude. If it does happen in the near future, it may well bring down the curtain on what will then, in retrospect, come to be seen as a coherent epoch of about 150 years: the era of intellectual property.¹⁹⁰

Professor Johns’s prognostication, while provocative, seems to be well supported by all the ongoing and pathbreaking developments surrounding digital communication, Big Data, Internet of Things, 3D printing, blockchains, artificial intelligence, robotics, autonomous vehicles, nanotechnology, and synthetic biology.¹⁹¹

Finally, scholarship on the Chinese intellectual property system has been cyclical. As a result, the scholarship in one phase can easily engage with the scholarship in another. For instance, the discussion of China’s responses to U.S. trade policy in the third phase of customization and standardization easily brings to mind similar responses regarding the various commercial treaties that China signed in the wake of its defeat following the Boxer Uprising in 1900.¹⁹² A notable example is the 1903 Treaty Between the United States and China for the Extension of the Commercial Relations Between Them,¹⁹³ which has been frequently mentioned in scholarship on the early history of the Chinese intellectual property system. Referred to by some commentators as the Shanghai Treaty based on the place of signing, this treaty built upon the newly adopted Paris Convention for the Protection of Industrial Property,¹⁹⁴ to which the United States acceded in 1887.¹⁹⁵ It granted copyright, patent, and trademark protection to Americans in return for reciprocal protection to the Chinese.¹⁹⁶ As William Alford observed, this treaty had the distinction of being “one of the first efforts by the United States anywhere to use its strength bilaterally to bring about greater intellectual property protection.”¹⁹⁷

Taken together, these four closing observations have shown that scholarship on the Chinese intellectual property system has been interrelated, episodic, and cyclical. Although these observations are by no means exhaustive, they provide useful insights into the five distinct phases of developments that the Chinese intellectual property system has seen thus far.

II. An Interdisciplinary Turn

The previous Part has provided a chronology-based taxonomy of scholarship on the Chinese intellectual property system. Although most scholarship in this area has focused on law and policy, the scholarship in the past two decades have brought with them scholars from many other disciplines. To some extent, the increasingly interdisciplinary nature of scholarship on the Chinese intellectual property system has paralleled a similarly interdisciplinary turn in intellectual property scholarship in other areas.¹⁹⁸ As the profile of intellectual property law and policy rises, scholars in other disciplines have become attracted to this fast-growing field.¹⁹⁹ With the arrival of these scholars, scholarship on the Chinese intellectual property system has become more inter- and multi-disciplinary as a result.

Thus far, intellectual property scholarship has featured many disciplines. To highlight the growing inter- and multi-disciplinary interests, the WIPO Journal has devoted the first issue of each volume to a different area of disciplinary focus. The areas that the journal has covered in its past eight volumes are law and policy, economics, political science and international relations, culture, history, geography, philosophy, and development studies.²⁰⁰ Although the limited length and scope of this Part do not allow for a comprehensive analysis of the different disciplinary engagement with the Chinese intellectual property system, this Part illustrates the interdisciplinary turn in scholarship by focusing on three broadly defined multi-disciplinary clusters within which scholarship on the Chinese intellectual property system has emerged outside the area of law and policy: (1) philosophy and culture; (2) economics, innovation, and creative industries; and (3) politics and international relations.

A. Philosophy and Culture

Chinese philosophy and culture has been an important entry point to understanding not only intellectual property law and policy in China, but also the Chinese legal system in general.²⁰¹ It is not uncommon for scholars in both areas to discuss the historic distinction between li (rituals or rites) and fa (law and punishment) in Chinese culture.²⁰² Such distinctions trace back to the age-old tension between Confucianism and Legalism.²⁰³ While the former focuses on normative roles, responsibilities, obligations, and a wide range of political, social, and familial relationships, the latter sought to use penal law, physical punishment, threats, and coercion to maintain public order.²⁰⁴

As far as intellectual property scholarship is concerned, one of the seminal works on the Chinese intellectual property system is William Alford’s To Steal a Book Is an Elegant Offense.²⁰⁵ Although this work covered not only Chinese philosophy but also political culture, it has been most widely cited for its discussion of the interplay between Confucian culture and intellectual property reforms in China.²⁰⁶ As I noted in earlier writings,²⁰⁷ there is both a strong form and a weak form of Professor Alford’s culture-based argument:

The strong form states that Confucianism militates against intellectual property reforms in China. It accounts for the failure of the many reforms pushed by foreign countries and intellectual property rights holders to induce improvements in intellectual property protection and enforcement. . . . [By contrast, t]he weak form . . . states that Confucianism has prevented the Western notion of intellectual property rights from taking root in China. . . . [It] does not suggest any incompatibility between Confucianism and the Western notion of intellectual property rights. Nor does it contend that Confucianism will militate against intellectual property reforms. Thus, if such reforms are to be introduced—either internally through the borrowing of foreign ideas or externally in response to foreign pressure—these reforms may help China establish an exogenously developed intellectual property system.²⁰⁸

While the reality on Chinese soil is unlikely to support the strong form of Professor Alford’s culture-based argument,²⁰⁹ many Chinese scholars have equally questioned the weak form of that argument.²¹⁰ After all, if intellectual property standards are related to legal or norm-based incentives that the country has provided to promote creativity and innovation throughout its millennia-long existence, it likely will be an overstatement to suggest the lack of indigenous notions of intellectual property rights in China.

Regardless of one’s reaction to culture-based arguments, however, there is no denying that Chinese culture has contributed to the success and failure of the country’s intellectual property reforms. As far as such culture is concerned, Confucianism provides the immediate jumping off point for intellectual property scholars. Indeed, a considerable volume of English-language scholarship on the Chinese intellectual property system has been devoted to the Confucian impact on intellectual property reforms.²¹¹ While this type of scholarship has provided culture-based analyses that are both insightful and appealing to Western readers, it is ill-advised to equate Confucianism with Chinese culture. Indeed, an exclusive focus on Confucianism would create a rather incomplete picture of the impact of Chinese culture on intellectual property developments.

To begin with, three dominant schools of philosophy existed in traditional Chinese culture: Buddhism, Confucianism, and Daoism (which derived from the teachings of Laozi and Zhuangzi). Commentators have described these three schools collectively as sanjiao (three schools of teachings or three religions).²¹² Although few commentators have discussed the linkage between Buddhism and intellectual property developments in China,²¹³ I am not yet aware of any scholar providing a Daoist analysis of intellectual property law and policy in China.²¹⁴

Even if one is to focus narrowly on only Confucianism, there remains the oft-raised question concerning which Confucius best represents Chinese culture. Are we focusing on the Confucius from the Analects,²¹⁵ which provided a record of “selected sayings” collected by his students? Or are we discussing the Confucius from Neo‑Confucianism as propounded by Zhu Xi (1130–1200), a highly prominent Confucian scholar in the Song dynasty?²¹⁶ As Theodore de Bary wrote,

“Whose Confucianism are we talking about?” If it is the original teachings of Confucius in the Analects, then almost nothing said about Confucianism today speaks to that. Indeed even the anti-Confucian diatribes earlier in [the twentieth] century spoke rarely to Confucius’ own views but only to later adaptations or distortions of them.²¹⁷

Likewise, in his introduction to the Analects, Arthur Waley clarified that “[t]he Confucius of whom I shall speak here is the Confucius of the Analects.”²¹⁸ He further reminded us of Chinese historian Gu Jiegang’s helpful admonition that scholars should study “one Confucius at a time.”²¹⁹ In short, any discussion of Confucian influence on the Chinese intellectual property system requires researchers to determine in advance which Confucius they want to focus on.

As if these issues were not complicated enough, Chinese history has been filled with many different schools of thought beyond Confucianism, Buddhism, and Daoism. In the last chapter of Historical Records (Shiji), Sima Qian, the grand historian in the Han dynasty (206 B.C.–220 A.D.), recalled an essay of his late father classifying Chinese philosophies into six dominant schools: Yin-Yang, Confucianism (or, more properly, Rujia), Mohism (Mojia), School of Names, Dialecticians, or Logicians (Mingjia), Legalism (Fajia), and Daoism.²²⁰ Also present in the Chinese territory are many minority cultures and beliefs, including those of the Zhuang, Hui, Uygur, Yi, Tibetan, Miao, Manchu, Mongol, and Buyei.²²¹

A few years ago, when I put together a special issue on intellectual property and culture for the WIPO Journal, I went outside Confucianism to explore whether other Asian philosophy would provide useful insight into intellectual property developments in China.²²² Specifically, my article focused on the Yin-Yang School, the first school of thought mentioned in Historical Records.²²³ Highlighting the duality that often appears in both Chinese and international intellectual property laws and policies, that article argued that the Yin-Yang School’s “focus on contexts, relationships and adaptiveness and its high tolerance for contradictions have made it particularly well-equipped to address the ongoing intellectual property challenges concerning both emerging economies and the digital environment.”²²⁴

While the analysis of the philosophical basis of Chinese intellectual property law and policy has thus far remained limited to only scholars with deep knowledge of Chinese philosophy or culture, a better linkage between the notions of intellectual property rights and such philosophy or culture can be quite beneficial. After all, cultural barriers have provided a prevailing explanation for the failure of externally induced intellectual property reforms in China.²²⁵ Commentators have also noted repeatedly the need to increase public consciousness of intellectual property rights.²²⁶ Thus, if cultural barriers and the lack of public consciousness indeed accounted for China’s massive piracy and counterfeiting problems, scholars studying the Chinese intellectual property system would have to acquire a deeper understanding of Chinese philosophy or culture before they could further evaluate the strengths and weaknesses of the proposed intellectual property reforms.

B. Economics, Innovation, and Cultural Industries

The second area worth highlighting concerns economic issues relating to intellectual property protection and enforcement in China and the country’s growing intellectual property industries. These issues include economic growth, industrial development, technological innovation, and foreign investment. They are of great interest to economists, researchers in business or management schools, and those in schools or departments focusing on innovation and creative industries. Although there was very limited, if any, early scholarship on the economics of intellectual property rights in China, scholarship in this area has greatly expanded as scholars with economic training or interests in industrial development entered the intellectual property field.

One of the most widely cited early economic analyses of the Chinese intellectual property system is a book chapter written by Keith Maskus, Sean Dougherty, and Andrew Mertha.²²⁷ This chapter examined the relationship between intellectual property protection and economic development in China.²²⁸ While the chapter is insightful on its own, it is particularly illuminating when read together with the other chapters in the edited volume, all of which featured the latest empirical research on intellectual property and development conducted by World Bank economists.²²⁹

Thus far, economists have shown how stronger intellectual property protection could lead to an increase in foreign direct investment. Their research demonstrates that such a positive link requires the presence of two key preconditions: a strong imitative capacity and a large market.²³⁰ While China undoubtedly possesses both preconditions, it has presented a “puzzle” to economists. As Professor Maskus rightly observed in the World Bank volume, if stronger intellectual property protection always led to more foreign direct investment, “recent [investment] flows to developing economies would have gone largely to sub-Saharan Africa and Eastern Europe . . . [rather than] Brazil, China, and other high-growth, large-market developing economies with weak protection.”²³¹

To be sure, weak intellectual property protection could undermine, and has undermined, China’s appeal to foreign investors.²³² Nevertheless, other attractive location advantages, such as low labor costs and a large market, have more than compensated for the country’s shortcomings in the intellectual property field.²³³ To a large extent, the China case has shown the limits of using intellectual property reforms to attract foreign direct investment.

Another book that has similar contextual significance for scholarship on the Chinese intellectual property system is an excellent collection of articles Hiroyuki Odagiri, Akira Goto, Atsushi Sunami, and Richard Nelson put together to examine the role of the intellectual property regime in the development and catch-up process.²³⁴ Titled Intellectual Property Rights, Development, and Catch-up: An International Comparative Study, this edited volume provided comparative studies on the catch-up processes that developed, emerging, and large developing countries had experienced.²³⁵ While the book included only one chapter on China²³⁶—which featured the catch-up story of Huawei Technologies²³⁷—its concluding chapter and the other country and industrial studies in the volume provided useful insights into the challenges and opportunities confronting the Chinese intellectual property system.²³⁸ Together, these chapters underscored the need to consider the impact of the intellectual property regime on the catch-up process “in conjunction with [industrial] and other government policies.”²³⁹

Apart from these two edited volumes, there are other noteworthy economic analyses of the Chinese intellectual property system. Albert Hu and Gary Jefferson explored the cause of China’s rising patenting activities that eventually generated what they referred to as “a great wall of patents.”²⁴⁰ More recently, Professor Hu, Zhang Peng, and Zhao Lijing provided a critical follow-up examination of China’s patent surge of the early 2010s, when China surpassed the United States as the country filing the largest volume of patent applications.²⁴¹ In addition, Deli Yang undertook comparative study of the Chinese and U.S. patent systems to examine pendency, grant ratios, and issues relating to national treatment.²⁴² Qian Yi also utilized sales data in the Chinese footwear industry to explore ways to optimize enforcement against counterfeit trademarked goods.²⁴³

Taken together, all of these economic analyses highlighted the tremendous benefits provided by research on the economic dimension of the Chinese intellectual property system. Research in this area is badly needed, considering how little economic research has been conducted on the Chinese intellectual property system both inside and outside the country until the past decade or so. As Maskus, Dougherty, and Mertha lamented in the mid-2000s,

University scholarship in China (and in other countries) in IPRs is overwhelmingly addressed to legal issues. Many scholars are actively involved in assessing shortcomings in the law and in drafting revisions, and they also participate in training new intellectual property lawyers. Few economists study the processes of technical change in China and how they are affected by market structure, competition, and exposure to foreign technologies and investment. Fewer still examine the relationship between IPRs, technical development, and growth. Accordingly, economists in China either remain unaware of IPR issues or are skeptical about the potential for IPRs to increase technological advance and business development.²⁴⁴

While economic research has been essential to the intellectual property field,²⁴⁵ comparative research can provide especially valuable insight into the appropriate international minimum standards for both protection and enforcement of intellectual property rights. Because most developing countries have limited resources to enforce these rights²⁴⁶—and considerable tradeoffs existed between intellectual property protection and other competing public needs—the costs to sectors unrelated to intellectual property could easily make the introduction of higher standards of intellectual property protection and enforcement highly undesirable.<²⁴⁷ It is therefore inevitable that developing countries, China included, will have to conduct holistic cost-benefit analyses before they explore whether to strengthen intellectual property protection and enforcement.

Finally, as Section I.E has noted, a fascinating body of scholarship emerged in the mid-2000s and the early 2010s to examine the fast-growing innovative capabilities of Chinese firms. In Run of the Red Queen, Dan Breznitz and Michael Murphree located in China “a remarkably profitable and sustainable model of innovation . . . [that] makes China into a critical part of the world innovation system, but . . . does not rely on China excelling in cutting-edge novel-product [research and development].”²⁴⁸ As they observed, “like the Red Queen [in Lewis Carroll’s Through the Looking-Glass], [China] runs as fast as possible in order to remain at the cusp of the global technology frontier without actually advancing the frontier itself.”²⁴⁹ While the emergence of this alternative form of innovation has raised intriguing questions concerning economic development, industrial strategy, and global competitiveness, the book explained why the Chinese model could complement the breakthrough innovation model embraced by the United States and other developed countries.²⁵⁰ As Breznitz and Murphree observed,

China needed Apple to develop the concept and definition of the iPod and the iPhone, but Apple cannot produce and sell these products without China. In the world of flexible mass production, the Red Queen country [referring to China or other countries with a similar innovation model] needs the novel-product innovators to keep churning out new ideas, and the novel-product-innovating countries need the Red Queen country to keep innovating on almost every aspect of production and delivery.²⁵¹

Similarly, other scholars have articulated new theories of innovation to capture the innovative activities in China. In Dragons at Your Door,²⁵² Zeng Ming and Peter Williamson advanced the concept of “cost innovation” and discussed its global implications.²⁵³ As they pointed out,

[t]he new competition from China is . . . disruptive because it threatens to obsolete much of the established firms’ assets, capabilities, and experience base by changing the accepted rules of the game, undermining traditional profit models, and growing parts of the market that incumbents are poorly equipped to serve.²⁵⁴

In the authors’ view, “[f]ar from being a zero-sum game . . . , the emergence of Chinese companies as significant players in the global market promises new benefits to the world’s consumers and new opportunities to those established companies that choose the right responses and execute them well.”²⁵⁵

In Chinnovation,²⁵⁶ Tan Yinglan explored how Chinese innovators are changing the world by focusing on “process innovation”²⁵⁷ and other forms of innovation and entrepreneurship.²⁵⁸ As he explained,

Most of China’s companies are in the stage of process innovation. Start-ups typically learn and adopt business models from other geographies and adapt them locally. Companies are trying to move into technological innovation via research and development by building on their existing knowledge, the way semiconductor firms are moving into thin film in 2010. Most Chinese firms are still using existing technology to create products, rather than creating the technology itself (as is done in the United States). This makes China tech markets symbiotic and complementary with the U.S. market and those in some other countries.²⁵⁹

Although all of these discussions suggest that the alternative forms of innovation found in Chinese firms complement the breakthrough innovation embraced by the United States and other intellectual property powers in the developed world, a better understanding of these alternatives will enable us to improve the design and calibration of the international intellectual property regime. To some extent, the analyses surrounding alternative forms of Chinese innovation make researchers question whether the existing TRIPS-based intellectual property standards provide the most suitable arrangements for China. After all, those problems that are indicative of China’s lack of progress in developing a robust intellectual property system could easily have reflected the mismatch between the existing international intellectual property standards and the many alternative forms of innovation that can now be found in the country. There is indeed no easy way to tell whether the former or the latter is the case. Fortunately, this emerging body of scholarship will help shed light on this difficult question.

Finally, alongside these three notable books, a growing volume of scholarship has emerged to discuss China’s changing innovative capabilities, thereby calling into question the hitherto somewhat one-sided discourse on China’s status as a pirate nation.²⁶⁰ Shaun Rein boldly declared “the end of copycat China,”²⁶¹ building on his earlier work on “the end of cheap China.”²⁶² As he observed, “Chinese companies no longer just copycat business models from America and Europe. They still grab low-hanging fruit but focus more on innovation.”²⁶³ Drawing on statistical materials, Denis Fred Simon and Cao Cong critically examined the rapid expansion of China’s science and technology capabilities, focusing in particular on the contributions provided by an increasingly large and well-educated talent pool.²⁶⁴ In addition, a number of books examined the rising middle class and the expanded interest in luxury goods in China.²⁶⁵ A growing volume of scholarship also covered the active development of China’s cultural industries.²⁶⁶ Such development provided an intriguing contrast with the “shanzhai” phenomenon that began appearing in the late 2000s.²⁶⁷

C. Politics and International Relations

In the past decades, scholars have heavily utilized political science literature to develop a better understanding of the Chinese legal system. This literature has been particularly insightful because there is no clear-cut distinction between law and policy from a Marxist standpoint.²⁶⁸ Not only is law a “concrete formulation of the Party’s policy,”²⁶⁹ but “law will wither away together with the state” in future Communist society.²⁷⁰ Throughout Chinese history, law has been consistently used as a political or administrative tool.²⁷¹ Although law was abolished during the Cultural Revolution, its subsequent restoration²⁷² has precipitated many difficult questions concerning what law is and whether researchers should understand legal development through Chinese politics.²⁷³

Interestingly, despite the importance of politics to the development of Chinese laws and legal institutions, few scholars have devoted attention to studying the political dimension of the Chinese intellectual property system.²⁷⁴ There are a few notable exceptions, however. In The Politics of Piracy, Andrew Mertha offered a pioneering book showing how the organizational structures and complexities within Chinese government agencies could affect the implementation and enforcement of intellectual property laws.²⁷⁵ More attractively, this book—through its separate chapters on the domestic patent, copyright, and trademark systems—showed how the differences in organizational structures and complexities have affected the respective system to a different degree.²⁷⁶ The book explained not only the behavior of these agencies, but also the success or failure of select campaigns or reforms. Particularly noteworthy is the book’s discussion of the “interbureaucratic competition”²⁷⁷ between two trademark enforcement agencies—namely the State Administration for Industry and Commerce and the Quality Technical Supervision Bureau.²⁷⁸

A few years later, Martin Dimitrov published an equally informative book, covering the capacity of government agencies to enforce intellectual property rights.²⁷⁹ Drawing on personal interviews, newspaper articles, and comparative statistics, this book showed that intellectual property enforcement through police raids and campaigns in China had been high in volume, yet low in quality (as measured by constituency, transparency, and procedural fairness).²⁸⁰ By contrast, enforcement through local intellectual property litigation had been high in quality, but low in volume.²⁸¹ This book is illuminating because it covered a wide variety of government agencies within the elaborate intellectual property enforcement apparatus in China, including the General Administration of Customs; the General Administration of Quality Supervision, Inspection, and Quarantine; the National Copyright Administration; the Public Security Bureau; the State Administration for Industry and Commerce; the State Food and Drug Administration; the State Intellectual Property Office; and the State Tobacco Monopoly Administration.²⁸²

One topic that has thus far received only limited—but slowly growing—coverage is China’s role in the international intellectual property regime. This topic is what brought international relations scholars to this area. The limited coverage can be largely explained by China’s hitherto low profile in the international trading and intellectual property systems.²⁸³ Until recently, few scholars—domestic and foreign alike—have actively studied the interface between the Chinese and international intellectual property systems. For those scholars who managed to study this interface, the focus tends to be on the impact of foreign pressure on domestic intellectual property reforms—that is, Western impact and Chinese response.²⁸⁴ The focus rarely goes the other way around.

Nevertheless, there has been a growing volume of scholarship on China’s increasing role in the international trading system.²⁸⁵ Thanks to the marriage of intellectual property with trade via the TRIPS Agreement²⁸⁶ and China’s growing emphasis on independent innovation, this role has an increasingly important intellectual property component. A case in point is scholarship on China’s role in the WTO, which has included a growing volume of scholarship covering intellectual property issues.²⁸⁷

In the past decade, commentators have also paid greater attention to the development of bilateral and regional trade agreements China has established with its trading partners.²⁸⁸ These agreements include China’s bilateral agreements with Chile, Pakistan, New Zealand, Singapore, Peru, Costa Rica, Iceland, Switzerland, South Korea, Australia, Georgia, and the Maldives.²⁸⁹ The analyses of these agreements have provided useful contrasts to the existing discussions of free trade agreements or economic partnership agreements established by the European Union and the United States.²⁹⁰

Apart from bilateral free trade agreements, China has also actively negotiated regional trade agreements. In November 2000, China established the ASEAN-China Free Trade Area with the ten members of the Association of Southeast Asian Nations (ASEAN).²⁹¹ China has also actively participated in the RCEP negotiations, a mega-regional trade agreement that is now being developed between ASEAN, Australia, China, India, Japan, New Zealand, and South Korea under the ASEAN+6 framework.²⁹²

A related topic that has garnered considerable scholarly interest and attention concerns China’s exclusion from the negotiations for the Anti-Counterfeiting Trade Agreement²⁹³ (ACTA) and the Trans-Pacific Partnership (TPP).²⁹⁴ While the scholarship in this area,²⁹⁵ like scholarship on China and the WTO, is not always limited to intellectual property, this body of scholarship has provided important insight into China’s emerging role in international intellectual property normsetting.

From a geopolitical standpoint, having a good grasp of China’s normsetting activities can be quite beneficial. After all, there has been growing discussion of the “Beijing Consensus”²⁹⁶—or what noted Chinese economist Hu Angang modestly called the “Beijing Proposal.”²⁹⁷ Thus far, those frustrated with the existing international economic system have touted the Beijing Consensus as a viable alternative to the Washington Consensus.²⁹⁸ While the Washington Consensus emphasizes free market reforms as a path to economic prosperity,²⁹⁹ the Beijing Consensus suggests that economic growth “comes from the state directing development to some degree, avoiding the kind of chaos that comes from rapid economic opening, and thus allowing a nation to build its economic strength.”³⁰⁰ In the intellectual property area, the tension and rivalry between the Beijing and Washington Consensuses deserve policy and scholarly attention because the TRIPS-based international intellectual property regime was built upon the latter set of policy recommendations.³⁰¹

The discussion of China’s growing role in the international trading and intellectual property systems is also timely and important when it is tied to the ongoing exploration of developments in the G-2 (Group of 2)³⁰² or the BRICS countries.³⁰³ Since its creation, the term “BRICS” has been used to refer to Brazil, Russia, India, China, and South Africa—and, for some, also other large developed countries.³⁰⁴ In April 2011, China invited South Africa to join Brazil, India, and Russia for the first time in Sanya to discuss issues that could benefit from greater cooperation.³⁰⁵ Since then, an annual BRICS summit has taken place in New Delhi (India), Durban (South Africa), Fortaleza (Brazil), Ufa (Russia), Goa (India), and Xiamen (China).³⁰⁶ Although the popularity and collective influence of the BRICS countries have slightly declined in the past few years, the BRICS concept has continued to garner considerable academic and policy attention.³⁰⁷ In the area of international intellectual property normsetting, some BRICS countries—such as Brazil, China, and India—have also played rather influential roles, even though they have not yet utilized their collective clout as a single bloc.³⁰⁸

D. Summary

This Part has identified three broadly defined multi-disciplinary clusters within which scholarship on the Chinese intellectual property system has been developed outside the area of law and policy. Although the discussion in this Part is by no means exhaustive, it provides a good indication of the different types of research that have slowly emerged to cover the Chinese intellectual property system. Such emergence is welcome, because inter- and multi-disciplinary research brings with it different interests, assumptions, preoccupations, concepts, methodologies, vocabularies, and research questions.

From a research standpoint, the interdisciplinary turn in scholarship on the Chinese intellectual property system is noteworthy because it bears strong resemblance to a similar interdisciplinary turn in intellectual property scholarship in other areas. With the adoption of the TRIPS Agreement, the increased salience of internet-based activities, and the raising profile of intellectual property research, scholars have paid growing attention to developments in the intellectual property area. As scholars become more interested in this area, some of them have also chosen to conduct research on the Chinese intellectual property system.

III. Lessons

A. China Scholars

In view of the growing volume of scholarship on the Chinese intellectual property system, an instructive question to ponder is what this body of scholarship can teach China scholars. While it is hard to explain who constitute China scholars, this Article broadly defines the term to cover not only Sinologists or China hands,³⁰⁹ but also those studying China and its developments. This broadly defined group could draw at least three sets of lessons from scholarship on the Chinese intellectual property system.

First, this body of scholarship has covered developments in an area in which China has faced considerable pressure from the outside world, most notably the United States.³¹⁰ For instance, those studying Chinese law will find scholarship on the Chinese intellectual property system filled with rich discussions of the transplant of foreign laws and policies.<³¹¹ Similarly, those studying U.S.-China trade or diplomatic relations will find intellectual property an important area through which one can better understand the dynamics concerning the engagement between the two countries.³¹²

Second, intellectual property is a highly specialized area of economic regulation that has progressed very rapidly in China. Indeed, intellectual property developments have provided an excellent window into the rapid development of economic laws and policies since China accelerated its reintegration with the global economy in the early 1990s. Given the tremendous difficulty in studying the varying aspects of economic laws and policies, a focus on intellectual property developments will make research projects more manageable. Indeed, intellectual property developments provide “an excellent window into the policymaking and policy enforcement processes of contemporary China.”³¹³

Third, the intellectual property area provides international benchmarks against which Chinese developments can be easily measured against those in the rest of the world—for both good and bad.³¹⁴ To be sure, scholars studying China can debate whether the existing TRIPS-based international intellectual property standards suit the country’s specific local conditions or cultural background. Nevertheless, the existence of two sets of initially drastically different standards inside and outside China enables researchers to make the much-needed comparison.³¹⁵ Indeed, a vast divide existed between early socialist regulations relating to intellectual property in the 1960s and 1970s³¹⁶ and the TRIPS-based intellectual property system that China has today.³¹⁷ Even after China reopened its economy to the outside world, the development of the early modern intellectual property laws in the 1980s, most notably 1982 Trademark Law and the 1984 Patent Law, was filled with back-and-forth debates about the different ways to introduce intellectual property rights.³¹⁸ Those debates not only explained the design of those laws, but also reflected the strengths and weaknesses of the current international intellectual property regime.

B. Intellectual Property Scholars

The previous Section has explored what China scholars can learn from developments in the intellectual property area. This Section asks the reverse question about what developments in China can teach intellectual property scholars. There are at least five specific lessons.

First, scholarship on the Chinese intellectual property system provides updates on the latest developments in a country that has a growing influence on the international intellectual property community. Whether the focus is on the massive piracy and counterfeiting problem, the millions of patents that Chinese applicants file annually,³¹⁹ or the new international intellectual property norms that China has helped establish through the RCEP negotiations,³²⁰ intellectual property developments involving China are likely to have considerable impacts at the domestic, regional, and international levels. For those studying the competition between China and the United States—or, for that matter, between China and other countries—scholarship on the Chinese intellectual property system will provide useful information about the state of bilateral competition, opportunities for increased cooperation, and possibilities for greater rivalry or confrontation. Although scholarship on the Chinese intellectual property system has thus far focused on the impact of the international intellectual property regime on China—the primary focus of the first four phases³²¹—it is high time that researchers undertook more in-depth study of China’s impact on the international intellectual property regime.³²²

Second, scholarship on the Chinese intellectual property system encourages researchers to think more deeply about the different justifications for and treatment of intellectual property rights in non-market economies. Although intellectual property laws in China have been repeatedly revamped to ensure compliance with the TRIPS-based international minimum standards,³²³ a historical analysis of the early developments of the Chinese intellectual property system provides especially helpful insights into the different ways to promote creativity and innovation.³²⁴ The limited scholarship in the first two phases also raises important questions about the compatibility and mismatch between intellectual property rights and what commentators have referred to as “socialist legality with Chinese characteristics.”³²⁵ While China—or, for that matter, other socialist economies—may not protect intellectual property rights to the same extent as Western developed countries, it will be hard to justify the claim that socialist countries do not offer any protection to these rights. As scholarship in the first phase has shown, even during the Mao Zedong era, China offered protection through inventors’ certificates (faming zhengshu),³²⁶ payments to authors or inventors,³²⁷ and non-property-based protection of these creators (similar to moral rights in Western jurisdictions).³²⁸

Third, scholarship on the Chinese intellectual property system provides an attractive forum for scholars to undertake comparative intellectual property research.³²⁹ In this increasingly globalized world, such scholarship is urgently needed.³³⁰ In a recent article, Irene Calboli called on U.S. intellectual property scholars to engage more actively in comparative legal analysis.³³¹ As she explained,

[such] analysis can offer additional information about diverse perspectives on the justification of intellectual property norms and the application of these norms in different national contexts. This information is relevant to all scholars, including all of us in the U.S., for a more comprehensive evaluation of a variety of intellectual property issues, as intellectual property laws remain territorial laws despite decades of intensive international harmonization.³³²

Fourth, scholarship on the Chinese intellectual property system enables researchers to appreciate the significant challenges confronting the developing world as well as evaluate the potential benefits provided by intellectual property reforms. While scholarship in the first three phases has shown China’s reluctance to introduce stronger intellectual property protection, scholarship in later phases reflect China’s changing position. Today, there is no denying that the country “has benefited from the TRIPS-based intellectual property system [even though] the country would not have reached its current position had it implemented the TRIPS Agreement to the fullest extent.”³³³ Thus far, the TRIPS Agreement has been a “mixed bag” because it can help and simultaneously hurt developing countries.³³⁴ Moreover, as I noted in previous works, China is in the process of crossing over from the pirating side of the intellectual property divide to the other more promising side.³³⁵ If so, the Chinese experience may inform the experience of other similarly situated, or even smaller, developing countries.³³⁶ As Professor Mertha observed, “The Chinese case is instructive because China is similar to many developing and postsocialist countries and, therefore, it is possible to make inferences from the Chinese experience to explain intellectual property development (or the lack thereof) in these other countries.”³³⁷

Finally, by analyzing developments in another country, scholarship on the Chinese intellectual property system invites scholars to question intellectual property developments within their own countries or other third countries. After all, comparative legal analysis has always been a two-way street. In the context of legal transplants, commentators have noted how the transplant of a law often provides an opportunity for policymakers to undertake reform and to determine how a law should be adapted and assimilated.³³⁸ The transplant process may also allow the recipient country to become a donor in turn by sharing valuable comparative lessons and experiences.³³⁹

IV. Challenges

The previous Part has underscored the importance and benefits of conducting research on the Chinese intellectual property system to both China and intellectual property scholars. This Part turns to the different challenges confronting research in this area. While some challenges were particularly daunting at the formative stages of the modern Chinese intellectual property system, they have since subsided considerably. Others, however, have remained.

The challenges that scholars most widely discussed in the early days of the Chinese intellectual property system was the lack of availability of research materials concerning that system. Those challenges were particularly acute before China reopened its economy to the outside world. As George Ginsburgs observed,

The study of Communist Chinese law is fraught with many difficulties. Not the least of these is the problem of getting enough reliable data on what the law is and how the legal system operates on the mainland. Under the circumstances, watchers of the China scene have tried by various means to supplement the meagre fund of available information. Those able to visit China on more or less protracted jaunts have brought back personal impressions from conversations with ordinary Chinese citizens as well as officials and party cadres. Some have even managed to obtain permission to observe sessions of the local people’s courts at work and have shared their experiences with their less fortunate colleagues. Systematic interviewing of Chinese refugees in Hong Kong and Macao has also contributed to the sum total of our knowledge of legal life behind the so-called Bamboo Curtain. Finally, perusal of what has been published on legal developments in Communist China in foreign languages has helped further flesh out the picture.³⁴⁰

Even in the 1980s and 1990s, many legal or normative documents remained classified as neibu—that is, as internal documents that foreign researchers could neither use nor access.³⁴¹

The lack of such materials not only explains the limited scholarship on the Chinese intellectual property system in the first two phases,³⁴² but also calls for considerable appreciation of the pioneering efforts that early scholars of the Chinese intellectual property system undertook. Although scholarship in this area has changed considerably—often for the better—there is no denying that later researchers, myself included, have greatly benefited from the precious scholarship of previous researchers. In the area of Chinese intellectual property research—or, more broadly, Chinese legal research—the aphorism that “we are standing on the shoulders of giants” cannot be more accurate.³⁴³

Although materials have been difficult to find in the first two phases, the accessibility of these materials has greatly increased in later phases, especially after China’s accession to the WTO. Article 63 of the TRIPS Agreement specifically includes transparency obligations, which require the publication or making available of laws, regulations, “final judicial decisions and administrative rulings of general application.”³⁴⁴ As a result of such obligations and the related preparation for WTO accession, many of the laws, regulations, and judicial decisions concerning the Chinese intellectual property system have become accessible online. While some of these research materials appear in only Chinese, a growing volume of materials has now become available in both Chinese and English. As the quality of automated translation technology continues to improve, the linguistic barrier to research on the Chinese intellectual property system will reduce accordingly.³⁴⁵ Better still, the WIPO Intellectual Property Laws and Treaties Database (WIPO Lex) has made available the English-language versions of many Chinese intellectual property laws and regulations.³⁴⁶ A number of data sources and case databases, such as Beida Fabao and CIELA, have also emerged to facilitate research on intellectual property cases in China.³⁴⁷

The second challenge concerns the lack of understanding of the Chinese intellectual property system, attributable to factors that range from language to culture to simply distance. A vivid example is a keynote presentation that I once heard from a Nobel laureate who will remain nameless. During the question-and-answer session, I asked the expert whether his view about China would differ based on the vastly different regional developments within the country. Shockingly, the expert told me in a room full of conference attendees that he had been to only Beijing and Shanghai and his analysis about China would unfortunately have to be based on those two cities. While I respect the scholar’s candor and understand his reluctance to make claims beyond what he had experienced firsthand, there are inherent problems in using Beijing or Shanghai as proxies to study China. More importantly, if this noted scholar has faced such a daunting challenge despite his firsthand experience in China, one has to imagine the even greater challenges confronting those scholars who have not yet visited China and have only obtained information from scholarly literature—or, worse, short media reports.

Indeed, as shown by the research on the historical development of the Chinese intellectual property system, it remains difficult for scholars studying this system to fully understand the politically driven or related developments unless they have a good grasp of the Chinese political landscape.³⁴⁸ For instance, without understanding the structure of the Chinese government,³⁴⁹ the problem relating to partial decentralization,³⁵⁰ the handling of budgets and personnel,³⁵¹ and the complex conditions in local economies,³⁵² the analysis of the Chinese enforcement infrastructures is at best superficial, if not completely off base.

The third challenge pertains to the “moving target” nature of developments concerning the Chinese intellectual property system, similar to the challenge of studying international intellectual property normsetting through the ever-changing plurilateral intellectual property negotiations, which have moved from ACTA to the TPP to the RCEP to now the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).³⁵³ Since the adoption of modern Chinese intellectual property laws in the 1980s and 1990s, the patent and trademark laws have been revised three times, the copyright law twice, and the anti-unfair competition law once. At the moment, China is already exploring the Fourth Amendment to the Patent Law, while it is working hard to finish revising copyright law for the third time. In August 2008, China also introduced an anti-monopoly law,³⁵⁴ which has serious ramifications for the protection and licensing of intellectual property rights.

The final challenge relates to the implicit bias that has creeped into any discussion of the Chinese intellectual property system. As this Part has noted earlier, many foreign researchers of intellectual property laws and policies in China still have a rather limited understanding of the country.<³⁵⁵ As a result, their views have inevitably been colored by what they have read through scholarly literature, the mass media, or other sources. While these sources are not always biased,³⁵⁶ the scholars’ lack of understanding has made it particularly difficult for them to determine whether the views expressed by others are in line with the reality.³⁵⁷ These challenges are the most daunting when exploring highly polarized topics, such as those concerning whether the United States should impose sanctions on China, file a WTO complaint, or even initiate a trade war.³⁵⁸ Given the contentiousness of many debates concerning the Chinese intellectual property system, implicit bias will remain a continuing challenge for researchers in this area.

V. Future Directions

Part I has identified five phases in which fairly distinct bodies of scholarship on the Chinese intellectual property system have been developed. Although new phases will appear as the system continues to evolve, the conclusion of that Part has not discussed what phase, or phases, will emerge after the fifth phase of indigenization and transformation.³⁵⁹ Indeed, it will be difficult to predict what the future will hold for not only the Chinese intellectual property system, but also the international intellectual property system. Despite the inherent difficulty in making predictions, it will be useful to offer some brief observations on the future directions of scholarship on the Chinese intellectual property system. Although these observations are inevitably personal, they draw on developments that have already begun in the area of Chinese legal scholarship or intellectual property scholarship in general.

First, scholars studying the Chinese intellectual property system are likely to pay greater attention to international intellectual property developments involving China. Thus far, a growing number of scholars have already explored the development of China’s free trade agreements, the exclusion of China in both the ACTA and TPP negotiations, and China’s active role in the RCEP negotiations.³⁶⁰ In the future, scholars studying the Chinese intellectual property system will pay even greater attention to the regional or international intellectual property norms that China sought to create or shape. They will also be highly interested in any new initiatives that China has undertaken—an obvious example being the “one belt one road” or belt-and-road initiative.³⁶¹

Second, scholars studying the Chinese intellectual property system will undertake more research on intra-country developments. While intellectual property scholars will continue to explore issues that are important to the country as a whole, they will conduct more research on the country’s internal developments, thanks to the active participation and growing support of provincial intellectual property offices in China, the arrival of new regionally based developments, and the increased volume of data concerning provinces, prefectures, counties, townships, and villages. Such a shift from nation-based analyses to finer-grained analyses will greatly enhance our understanding of the Chinese intellectual property system.³⁶² After all, the wide divergences within China suggest the pointlessness of analyzing China as if the country were homogenous.³⁶³ What is true for one province often does not hold for many others.³⁶⁴

Third, scholars studying the Chinese intellectual property system will inevitably focus more on developments in specialized areas. Indeed, Chinese legal scholarship has already become more specialized today than it was two decades ago. Gone are those books and articles studying the overall Chinese legal system, which are common in the 1960s, 1970s, and 1980s. Appearing in their stead are books and articles covering a specific body of law, or even some specific domestic legal problems.³⁶⁵ While this type of scholarship enables foreign researchers to actively engage their Chinese counterparts on specific laws, policies, cases, and topics, the more specialized focus takes away opportunities for scholars to identify larger trends and developments concerning the Chinese intellectual property system.

Fourth, in the past decade, scholars in this area have begun to study those spillover issues that do not fit squarely within the intellectual property field. Section I.E already discusses the interrelationship between intellectual property and indigenous innovation.³⁶⁶ In the early to mid-1990s, especially during the U.S.-China negotiations, intellectual property protection is often discussed alongside market access.³⁶⁷ Today, policymakers and scholars have devoted considerable attention to intellectual property-conditioned government incentives—that is, measures that the government has provided to promote creativity and innovation.³⁶⁸ As the Chinese intellectual property system becomes more complex, researchers will devote more time and effort to studying measures complementary to the intellectual property system.

Fifth, scholars in this area, especially those in China, will inevitably devote attention, energy, and resources to the growing waves of intellectual property problems that now arise in the developed world and at the global level. We have already seen Chinese scholars undertaking research on problems posed by the internet and the digital revolution³⁶⁹—problems that are explored by non-Chinese scholars and that will affect virtually any part of the world. Likewise, research concerning Big Data, Internet of Things, blockchains, 3D printing, artificial intelligence, robotics, autonomous vehicles, nanotechnology, and synthetic biology can be classified as generic. While it will still be instructive to explore whether these problems will affect China to the same extent as they will affect other parts of the world, there is no denying that much of the research in these emerging areas is global in scope. In short, scholars in China may just be conducting research on the same or highly similar topics as scholars in other countries. As a result, scholarship on the Chinese intellectual property system that we find in this area may just be a subset of the overall body of scholarship—featuring Chinese perspectives or China-based examples, perhaps.

Finally, there has been an active and growing discussion of new modes of innovation in the past decade. For instance, intellectual property scholars have explored how we can develop incentives for innovation outside the intellectual property system. Indeed, the so-called “IP without IP” literature has become increasingly important and popular in Europe and the United States.³⁷⁰ Only time will tell whether scholars studying the Chinese intellectual property system will also proceed in the same direction. While Chinese scholars have often embraced research topics that are considered cutting-edge abroad—especially in Europe or the United States—the ongoing academic and policy discussions in China seem to have focused on the potential benefits and the much-needed calibration of the intellectual property system. Due to the structure of Chinese academic institutions, the funding support for research projects, and the country’s continued large-scale piracy and counterfeiting problems, Chinese academe seems to have not yet experienced the same divide between intellectual property attorneys and policymakers on the one hand and intellectual property scholars on the other.³⁷¹ While the former advocate a maximalist view of intellectual property protection, the latter prefer the opposite. In China, if the scholarship focuses on the limitations and exceptions in the intellectual property system, those limitations and exceptions tend to be justified based on the needs for either development or social equality, as opposed to new “IP without IP” innovation models.³⁷²

Conclusion

In examining the past half-century of scholarship on the Chinese intellectual property system, this study has shown how historical developments have heavily influenced scholarship in this area—both in phases and through isolated major incidents. This study has also shown that scholarship in this area has undergone an interdisciplinary turn. As a result, scholarship on the Chinese intellectual property system has become richer, more diverse, and more sophisticated.

While it is impossible to cover all scholarship on the Chinese intellectual property system in the past fifty years, this Article seeks to capture the changing developments in the field. It has also devoted greater coverage to those works that were published before the mid-1990s and in non-legal disciplines.³⁷³ After all, those works tend to be less familiar to scholars studying the Chinese intellectual property system, especially those in the legal discipline.

Today, China is at a crossroads concerning what type of intellectual property law and policy it should adopt. Owing to the changing political environment in the United States and the now significantly different expectations of China at the international level,³⁷⁴ the U.S.-China intellectual property relations are also at a crossroads. The wide range of scholarship discussed in this Article will no doubt provide useful insights into the different ways to address challenges and opportunities that are slowly emerging at these crossroads. It is my hope that the systematic analysis provided in this Article will make it easier for us to locate the relevant scholarship.

A Half-Century of Scholarship on the Chinese Intellectual Property System

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