The Emperor Is Far Away: China's Enforcement of Intellectual Property Rights Protection, 1986-2006

By Massey, Joseph A. | Chicago Journal of International Law, Summer 2006 | Go to article overview

The Emperor Is Far Away: China's Enforcement of Intellectual Property Rights Protection, 1986-2006


Massey, Joseph A., Chicago Journal of International Law


"Déjà vu all over again." Yogi Berra's classic remark seems particularly apt when discussing the status of intellectual property rights ("IPR") protection in China. It has been twenty years since, as newly appointed Assistant US Trade Representative ("USTR") for Japan and China, I set out with colleagues from USTR and other US government agencies on a six-year marathon series of negotiations with China on IPR and market access. Yet in the surveys conducted over the past several years by the American Chambers of Commerce in Beijing and Shanghai and by the US-China Business Council, US firms say that the biggest problems they face in China today are much the same as the complaints they raised in 1986, namely inadequate protection or enforcement of IPR1-copyrights, patents, trademarks and trade secrets.

There is, however, an important difference between the situation in 1986 and that of today, which is neatly captured in a classic Chinese phrase, "The mountains are high and the emperor is far away."

In 1986, China's problems in IPR stemmed directly from the policies, laws, and conduct of the national government in Beijing. There was little legal protection for intellectual property. The existing trademark law was weak and routinely flouted. The patent law, enacted only the year before our talks began in 1985, provided no product patent protection for chemicals and pharmaceuticals." Most importantly, there was no copyright law at all, and the central government itself was the major pirate of US software. Government ministries, particularly the Ministry of Chemical Industries and the Ministry of Electronics and Machine Building, routinely-and legally, since there was no law to bar it-copied vast amounts of foreign software without compensation and distributed the copies widely to their client state-owned enterprises.3

Today, after four bilateral US-China agreements on IPR protection (1989,4 1992,5 1995,6 and 19967) and China's accession to the World Trade Organization ("WTO"), piracy in China is no longer primarily the result of the Beijing government's own actions. Rather, the major continuing issue has been Beijing's failure to get its laws and international obligations adequately and effectively enforced. Chinese provincial authorities, "far away over the mountains," benefit financially or politically from the proceeds of piracy or, instead, turn a blind eye to powerful local interests that do. At the same time, the judicial process often fails to impose deterrent penalties against piracy.

In 1986, the primary objective of US negotiators was to get Beijing to take the necessary first step: to establish the legal foundations for a Chinese IPR regime consistent with international norms. This included enacting or strengthening domestic laws (and their implementing regulations) and acceding to major international intellectual property agreements such as the Berne Copyright8 and Geneva Phonograms Conventions.9 To achieve this required strong and sustained pressure from the US government. Five issues in the negotiating environment in the late 1980's contributed to that pressure.

First was the escalating friction with Japan over competition in high technology industries. The US government was acutely concerned that China not be a repeat of the US experience with Japan. Parts of Japan's IPR regime played supporting roles in tilting the competitive playing field, inducing or in some cases compelling the transfer to Japanese rivals of key US technologies. These included the government's mandated cap on royalty payments, compulsory licensing policies, and patent procedures that enabled Japanese firms to surround foreign rivals' core patents with peripheral patents as a means to compel cross-licensing. The result was all too often to deny the US or other foreign firms the competitive advantage in the Japanese market that they would otherwise enjoy based on their technology.

Second, in the latter half of the 1980's the US began to run a rapidly increasing trade deficit with China, second only to that with Japan. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Emperor Is Far Away: China's Enforcement of Intellectual Property Rights Protection, 1986-2006
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.