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Do Not Kill the Goose That Lays Golden Eggs: the Reasons of the Deficiencies in China’S Intellectual Property Rights Protection

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DO NOT KILL THE GOOSE THAT LAYS GOLDEN EGGS: THE REASONS OF THE DEFICIENCIES IN CHINA’S INTELLECTUAL PROPERTY RIGHTS PROTECTION XIUYI ZHENG MPhil University of York Law March 2015 Abstract China’s intellectual property protection, which has been considered weak and discussed for decades, is playing an increasingly significant role in global trading. In the past decades, China has made great strikes in its intellectual property rights (IPR) protection, while its performance is still not satisfactory, especially in the eyes of developed countries. Before taking any further coercive strategies, both developed countries and China should look into the reasons of the deficiencies in China’s IPR protection so that measures could be taken more efficiently. This thesis will focus on the detailed history of the development of China’s IPR protection with a historical method, thus justifying the theory that late start and slow development are the main two reasons of the deficiencies in China’s IPR system. The concept of IPR did not exist in China until the end of 19th century due to the influence of Confucianism. The weak awareness of IPR lasted till now. From the day that western forces brought the idea of IPR into China to the establishment of a genuine protection system, China experienced a violent social turbulence with many changes in regimes and guiding ideologies. Meanwhile, Chinese government was continuously in the dilemma: whether they should pursuit a better IPR protection system or learn advanced knowledge and technologies from developed countries. All these factors slowed down the development of IPR in China. A comparative study will be applied in this part to show the different processes in China and other regions or countries. In modern China, its “double-tracked system” and comparatively low level of economic development are the main reasons of the deficiencies in its IPR protection. 2 Table of Contents Abstract .............................................................................................................................................. 2 Acknowledgements ........................................................................................................................... 4 Author’s Declaration ........................................................................................................................ 5 Chapter One Introduction .............................................................................................................. 6 Chapter Two The Absence of IPR in Ancient China ................................................................... 9 1. Literature Review: Alford and Wei Shi .............................................................................. 10 2. An Introduction to Confucianism ........................................................................................ 17 a. The Rectification of Names ......................................................................................... 19 b. Human-heartedness ..................................................................................................... 20 c. Righteousness ............................................................................................................... 21 3. The awareness of IPR, the concept of IPR and IPR protection in ancient China ........... 22 4. National Control of Certain Intellectual Products .............................................................. 24 5. An Important Period—the Song Dynasty ............................................................................ 25 6. Historical Records of Seeming IPR Protection ................................................................... 27 7. Why the sprout of IPR did not develop? .............................................................................. 34 a. the Keju exam and Shi ................................................................................................ 34 b. Business and Businessmen .......................................................................................... 37 8. Conclusion ............................................................................................................................... 39 Chapter Three Difficult Initiation (the end of imperial China—the foundation of PRC) ...... 42 1. Brief Introduction to the History Background .................................................................... 43 2. The Emerge of Intellectual Property Law in China ........................................................... 49 a. The Sino-Western Trade Contacts .................................................................................. 49 b. The emergence of Sino-Western Intellectual Property Right (IPR) issue ................... 51 c. The Copyright Negotiation between China and Western Countries ............................ 52 d. The debate for copyright protection between the public and the government ........... 54 e. Learning from the West .................................................................................................... 57 3. Advance toward Modernisation ........................................................................................... 60 Two Codes .............................................................................................................................. 60 The Dream of Being Prosperous and Strong ...................................................................... 66 The Efforts by the Nationalist Party ................................................................................... 67 The Attitude of the Communist Party ................................................................................. 69 Chapter Four Slow Development of IPR in New China (1949—1978) ...................................... 74 1. 1949-1966: The Embryonic Stage of IPR protection system. ....................................... 75 2. The strange phenomenon of intellectual property during the cultural revolution .... 78 3. Development in Other Areas in the Same Period .......................................................... 82 a. Taiwan .......................................................................................................................... 82 b. Janpan ........................................................................................................................... 86 Chapter Five The New Modern China ......................................................................................... 90 1. Developments in Modern China ...................................................................................... 90 a. 1978-2001 The Development Stage ............................................................................. 90 b. 2001-2008 The International Stage ............................................................................ 94 c. The National Strategic Stage ...................................................................................... 94 2. The Reasons of the Rapid Development ......................................................................... 95 3. IPR Protection and Economic Development .................................................................. 98 4. The problem that need to be solved .............................................................................. 103 a. Weak Awareness of IPR ............................................................................................ 103 b. The Shortcomings of the “Double-track System” ................................................... 107 c. The Lack of Professional Talents ............................................................................. 113 d. The Low Level of Economic Development .............................................................. 117 Chapter Six Conclusion ............................................................................................................... 131 Bibliography .................................................................................................................................. 132 3 Acknowledgements I would like to sincerely thank my supervisor Professor Simon Halliday for his continuous patience and support in my study and the help during my hard time. I also want to thank my beloved parents. They work really hard to support my study and care about me in all aspects. Without them, I would not be able to complete my research. 4 Author’s Declaration This thesis has been submitted to the University of York to fulfil the requirements for the MPhil degree in Law. This thesis is the author’s original work of under the supervision of Professor Simon Halliday. Any material that has been published has been referenced in this work. This work has not previously been presented for an award at this, or any other, University. 5 Chapter One Introduction Over the past decades, with a rapidly increased economic growth, China has been actively involved in worldwide trading and cooperation. Currently China is seen to hold main economic and political power in the world given its significant role in reshaping the global economy. Despite such prominent development, China still faces problems in many other aspects. For instance, intellectual property rights (IPR) protection is one of the most popular topic which has been discussed for years both domestically and internationally. In order to develop extensive cooperation with other countries and to join the World Trade Organisation (WTO), China established a relatively mature IPR protection mechanism.1 Although the legislation
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