The Politics of Piracy: Intellectual Property in Contemporary China

By Halbert, Debora J. | Law & Society Review, December 2006 | Go to article overview

The Politics of Piracy: Intellectual Property in Contemporary China


Halbert, Debora J., Law & Society Review


The Politics of Piracy: Intellectual Property in Contemporary China. By Andrew C. Mertha. Ithaca, NY: Cornell University Press, 2005. Pp. xvii+241. $32.50 cloth.

Mertha's book The Politics of Piracy maps out the hotly contested debate over intellectual property that has taken place between the United States and China over the past 20 years. Based upon years of fieldwork and hundreds of interviews with trade representatives, policy makers, and business owners in the United States and China, it is perhaps the definitive work on the relationship between the United States and China on issues of intellectual property. The text focuses primarily on how outside pressure impacted the development of Chinese intellectual property law and the evolution of a Chinese bureaucracy to deal with copyrights, patents, and trademarks. However, this text also sheds light on what types of diplomatic pressures successfully make an impact on Chinese policy. Thus, while Mertha focuses exclusively on intellectual property, the lessons learned can be more generally applied. The book offers an exhaustive description of several areas of Chinese bureaucracy that help clarify the decisionmaking structure of Chinese politics.

Mertha begins with a straightforward question: Has external pressure changed China's approach to intellectual property rights (p. 3)? The text is designed to answer this question while also describing the vast and complex bureaucracy in charge of intellectual property in China. The United States sought to change China's approach to intellectual property through negotiation and trade sanctions. Mertha follows the history of these negotiations in the first two chapters, ultimately concluding that intellectual property policy as implemented in China is a result of U.S. pressure. In fact, it is doubtful that China would have enacted intellectual property laws at all without U.S. pressure (p. 76).

The heart of Mertha's text follows the implementation of copyright, patent, and trademark laws through the maze of Chinese bureaucracy. There is a different bureaucratic structure in place for each type of intellectual property. By looking at the successes and failures of each regime, it is possible to get a sense for what has worked in terms of outside pressure. For example, outside pressure has not been as successful for copyright enforcement because of the politically sensitive nature of cultural materials. The Chinese have an interest in maintaining "social order" through censorship, including censorship of U.S. cultural goods (p. 152). While this may work to U.S. advantage because socalled pirated works will be targeted, it also puts U.S. industries in a touchy position because legitimate products can also be censored. To make matters worse, official limits on U.S. cultural products create the conditions for a black market in pirated cultural goods (p. 152). This catch-22 makes the use of U.S. pressure difficult. If too much is said, negotiators risk increasing Chinese barriers to the importation of legal goods. If too little is said, they risk losing market share to the black market. Either way, defining the appropriate use of outside pressure in the copyright arena has been politically charged and often backfires.

Unlike copyright, which is generally handled from the top down and is subject to political manipulation from higher levels of the bureaucracy, trademark enforcement is most effective because private firms representing foreign companies are able to work with local actors to conduct raids and confiscate goods (p. 200). Trademark enforcement works because local authorities are involved in the process. Mertha suggests that pressuring the Chinese government from above is not the most efficient option, but building coalitions at the local level is a helpful strategy. …

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