From Pirates to Partners (Episode II): Protecting Intellectual Property in Post-WTO China

In From Pirates to Partners: Protecting Intellectual Property in China in the Twenty-First Century, I criticized the ineffectiveness and short-sightedness of the U.S.-China intellectual property policy. As I argued, the approach taken by the administration in the 1980s and early 1990s had created a cycle of futility in which China and the United States repeatedly threatened each other with trade wars only to back down in the eleventh hour with a compromise that did not provide sustainable improvements in intellectual property protection. Since I wrote that article five years ago, China has joined the WTO and undertook a complete overhaul of its intellectual property system. Because of China\u27s WTO membership, the United States can no longer impose unilateral sanctions on the country, as it threatened to do a decade ago. Instead, the United States has to resolve the dispute through the WTO dispute settlement process. As the U.S. administration is currently reviewing its options and preparing for a possible WTO dispute against China, it is timely and important to reopen the debate about how to design an effective American intellectual property policy toward China. This article begins by challenging the conventional view that the intellectual property law amendments introduced in China in the wake of WTO accession were mostly introduced to conform Chinese intellectual property laws to WTO standards. It argues that many of the amendments were created as responses to the emerging socialist market economy and the rapidly-changing local conditions in the country. In addition, the article takes on the recent proposals for the U.S. administration to file a formal complaint with the WTO Dispute Settlement Body over inadequate enforcement of intellectual property rights in China and explains why the United States should not do so. The article then explores alternative protection strategies by presenting five case studies in which intellectual property rights holders were able to protect their assets without relying on intellectual property laws. It questions the effectiveness of the litigious approach taken by foreign businesses while exploring differences between the Chinese and Western legal cultures. The article concludes by examining the progress China made in the intellectual property arena by focusing on three widely-reported incidents: the unauthorized reproduction, translation, and adaptation of Harry Potter novels, the State Intellectual Property Office\u27s recent decision to invalidate Pfizer\u27s patent in Viagra, and the Chinese authorities\u27 heightened effort to protect trademarks used in relation to the 2008 Beijing Olympics