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China: Intellectual Property Infringement, Indigenous Innovation Policies, and Frameworks for Measuring the Effects on the U.S United States International Trade Commission China: Intellectual Property Infringement, Indigenous Innovation Policies, and Frameworks for Measuring the Effects on the U.S. Economy Investigation No. 332-514 USITC Publication 4199 November 2010 U.S. International Trade Commission COMMISSIONERS Deanna Tanner Okun, Chairman Irving A. Williamson, Vice Chairman Charlotte R. Lane Daniel R. Pearson Shara L. Aranoff Dean A. Pinkert Karen Laney Acting Director of Operations Robert Carr Robert B. Koopman Acting Director, Office of Industries Director of Economics Address all communications to Secretary to the Commission United States International Trade Commission Washington, DC 20436 U.S. International Trade Commission Washington, DC 20436 www.usitc.gov China: Intellectual Property Infringement, Indigenous Innovation Policies, and Frameworks for Measuring the Effects on the U.S. Economy Investigation No. 332-514 USITC Publication 4199 November 2010 Project Leaders Katherine Linton Alexander Hammer [email protected] [email protected] Deputy Project Leader Jeremy Wise [email protected] Office of Industries Renee Berry, Laura Bloodgood, Jeffery Clark, Shannon Gaffney, Cathy Jabara, John Kitzmiller, Elizabeth Nesbitt, George Serletis, Donald Sussman, and Isaac Wohl Office of Economics Robert Feinberg, Michael Ferrantino, Kyle Johnson, and Tani Fukui Office of the General Counsel Sidney Rosenzweig Special Assistance from Joseph Cooter, Alison Gosney, Dong Hong, Kyle Hutzler, Lara Loewenstein, Kathryn Lundquist, and Donnette Rimmer Primary Reviewers Lynn Levine and Brian Allen Administrative Support Lynette Gabourel, Phyllis Boone, Nadine Siler, and Sharon Greenfield Under the Direction of Robert Carr, Chief Natural Resources and Metals Division ABSTRACT Intellectual property rights (IPR) infringement in China reduces market opportunities and undermines the profitability of U.S. firms when sales of products and technologies are undercut by competition from illegal, lower-cost imitations. Intellectual property (IP) is often the most valuable asset that a company holds, but many companies, particularly smaller ones, lack the resources and expertise necessary to protect their IP in China. “Indigenous innovation” policies, which promote the development, commercialization, and purchase of Chinese products and technologies, may also be disadvantaging U.S. and other foreign firms and creating new barriers to foreign direct investment (FDI) and exports to China. China’s World Trade Organization (WTO) accession in 2001 marked a milestone in the country’s integration in the global economy. China has developed into one of the world’s most important growth markets and is now the second-largest U.S. trading partner (after Canada). As one important aspect of WTO accession, China committed to complying with the requirements of the WTO Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. However, IPR infringement in China—including violations of copyrights, trademarks, patents, and trade secrets—remains a central area of U.S. concern in the bilateral trade relationship. This is the first of two reports requested by the U.S. Senate Committee on Finance (Committee) on the effects of IPR infringement and indigenous innovation policies in China on U.S. jobs and the U.S. economy. In this report, the U.S. International Trade Commission (Commission or USITC) was requested to describe the principal types of reported IPR infringement in China, describe Chinese indigenous innovation policies, and outline an analytic framework for determining the effects of both IPR infringement and indigenous innovation policies on the U.S. i CONTENTS Page Abstract ................................................................................................................................... i Acronyms ............................................................................................................................... ix Executive Summary....................................................................................................... xiii Chapter 1 Introduction ............................................................................................. 1-1 Scope and approach............................................................................................................. 1-2 Organization........................................................................................................................ 1-3 Key concepts: IPR and indigenous innovation in China..................................................... 1-4 Copyrights........................................................................................................................ 1-4 Trademarks ...................................................................................................................... 1-5 Patents............................................................................................................................. 1-6 Trade secrets.................................................................................................................... 1-7 Indigenous innovation..................................................................................................... 1-7 IPR enforcement in China................................................................................................... 1-8 Administrative enforcement............................................................................................ 1-8 Criminal prosecution....................................................................................................... 1-9 Civil litigation.................................................................................................................. 1-11 Customs enforcement...................................................................................................... 1-13 Chapter 2 U.S.-China IP-Related Trade and Investment ............ 2-1 The U.S.-China IP-related trade and investment relationship............................................. 2-1 U.S. economic strength and the importance of innovation............................................. 2-1 China’s growing manufacturing capacity and IPR infringement ................................... 2-2 China as a global manufacturing hub......................................................................... 2-2 China’s transition toward greater innovation............................................................. 2-3 Growing economic engagement and the IPR challenge................................................. 2-3 U.S.-China IP-related flows ................................................................................................ 2-5 Challenges to defining IP-sensitive products ................................................................. 2-5 Merchandise goods......................................................................................................... 2-6 Advanced technology products.................................................................................. 2-6 Trademarked and copyrighted goods......................................................................... 2-9 Royalties and license fees............................................................................................... 2-11 Foreign direct investment............................................................................................... 2-12 Chapter 3 Copyright Piracy and Trademark Counterfeiting in China ..................................................................................................................... 3-1 Copyright piracy in China..................................................................................................... 3-1 Industries affected by piracy ............................................................................................ 3-2 Where and how piracy occurs .......................................................................................... 3-3 iii CONTENTSContinued Page Chapter 3 Copyright Piracy and Trademark Counterfeiting in China—Continued Physical piracy............................................................................................................. 3-3 Digital piracy................................................................................................................ 3-4 Contributors to piracy........................................................................................................ 3-6 Criminal groups............................................................................................................ 3-6 Business enterprises..................................................................................................... 3-7 Universities and libraries.............................................................................................. 3-7 Consumers.................................................................................................................... 3-8 Copyright enforcement overview...................................................................................... 3-8 Recent trends in copyright enforcement............................................................................ 3-10 The impact of market access restrictions .......................................................................... 3-12 Foreign industry strategies for operating in a high-piracy market .................................... 3-13 Trademark counterfeiting in China......................................................................................
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