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

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American University Law Review Volume 67 | Issue 4 Article 3 2018 A Half-Century Of Scholarship On The hineseC Intellectual Property System Peter K. Yu Texas A&M University School of Law, [email protected] Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Intellectual Property Law Commons, and the International Law Commons Recommended Citation Yu, Peter K. (2018) "A Half-Century Of Scholarship On The hineC se Intellectual Property System," American University Law Review: Vol. 67 : Iss. 4 , Article 3. Available at: http://digitalcommons.wcl.american.edu/aulr/vol67/iss4/3 This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. A Half-Century Of Scholarship On The hineseC Intellectual Property System Keywords Modern Patent Law, WIPO, Trade Act of 1974, Chinese intellectual property system. This article is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol67/iss4/3 A HALF-CENTURY OF SCHOLARSHIP ON THE CHINESE INTELLECTUAL PROPERTY SYSTEM PETER K. YU* 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. TABLE OF CONTENTS Introduction ...................................................................................... 1046 I. A Chronology-Based Taxonomy ............................................ 1052 A. Prehistoric Development ................................................ 1052 B. Imitation and Transplantation ....................................... 1058 C. Standardization and Customization ............................... 1064 * 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. 1045 1046 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:1045 D. Integration and Assimilation .......................................... 1074 E. Indigenization and Transformation ............................... 1079 F. Closing Observations ....................................................... 1087 II. An Interdisciplinary Turn ...................................................... 1090 A. Philosophy and Culture .................................................. 1092 B. Economics, Innovation, and Cultural Industries ........... 1098 C. Politics and International Relations ............................... 1107 D. Summary .......................................................................... 1117 III. Lessons .................................................................................... 1117 A. China Scholars ................................................................. 1117 B. Intellectual Property Scholars ........................................ 1120 IV. Challenges............................................................................... 1125 V. Future Directions.................................................................... 1133 Conclusion ........................................................................................ 1139 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 1. Trademark Law of the People’s Republic of China (promulgated by the Standing Comm. Nat’l People’s Cong., Aug. 23, 1982, effective Mar. 1, 1983) (China) [hereinafter 1982 Trademark Law]. 2. Patent Law of the People’s Republic of China (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 12, 1984, effective Apr. 1, 1985) (China). 3. Since its adoption, the Patent Law has been amended in September 1992, August 2000, and December 2008. The fourth revision of the Patent Law is currently under consideration. 4. Copyright Law of the People’s Republic of China (promulgated by the Standing Comm. Nat’l People’s Cong., Sept. 7, 1990, effective June 1, 1991) (China) [hereinafter 1990 Copyright Law]. 5. Law of the People’s Republic of China Against Unfair Competition (promulgated by the Standing Comm. Nat’l People’s Cong., Sept. 2, 1993, effective Dec. 1, 1993) (China). 6. Since its adoption, the Copyright Law has been amended in October 2001 and February 2010. The last amendment was not a complete overhaul, but was adopted 2018] A HALF-CENTURY OF SCHOLARSHIP 1047 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 primarily to implement a WTO panel report. See Peter K. Yu, The TRIPS Enforcement Dispute, 89 NEB. L. REV. 1046, 1097–98 (2011) (discussing the amendment of Article 4 of the Chinese Copyright Law in an effort to comply with the WTO panel report). 7. Law of the People’s Republic of China Against Unfair Competition (promulgated by the Standing Comm. Nat’l People’s Cong., Nov. 4, 2017, effective Jan. 1, 2018) (China). 8. Press Release, World Trade Org., WTO Ministerial Conference Approves China’s Accession (Nov. 11, 2001), https://www.wto.org/english/news_e/pres01_e/pr252_e.htm. 9. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299 [hereinafter TRIPS Agreement]. 10. See infra text accompanying notes 288–95 (discussing the scholarship covering these topics). 11. For the Author’s discussions of the RCEP negotiations, see generally Peter K. Yu, TPP, RCEP, and the Crossvergence of Asian Intellectual Property Standards, in GOVERNING SCIENCE AND TECHNOLOGY UNDER THE INTERNATIONAL ECONOMIC ORDER: REGULATORY DIVERGENCE AND CONVERGENCE IN THE AGE OF MEGAREGIONALS 277 (Peng Shin-yi et al. eds., 2018); Peter K. Yu, TPP, RCEP and the Future of Copyright Normsetting in the Asia- Pacific, in MAKING COPYRIGHT WORK FOR THE ASIAN PACIFIC? JUXTAPOSING HARMONISATION WITH FLEXIBILITY (Susan Corbett & Jessica Lai eds., forthcoming 2018); Peter K. Yu, The RCEP and Trans-Pacific Intellectual Property Norms, 50 VAND. J. TRANSNAT’L L. 673 (2017). 12. Patent Cooperation Treaty, June 19, 1970, 28 U.S.T. 7645, 1160 U.N.T.S. 231. 13. Who Filed the Most PCT Patent Applications in 2017?, WORLD INTELLECTUAL PROP. ORG., http://www.wipo.int/export/sites/www/ipstats/en/docs/infographic_pct_201 7.pdf (last visited May 9, 2018). 1048 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:1045 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
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