In contemporary economies, knowledge assets and intellectual capital have superseded land, labour and capital as leading factors of production. Given the outstanding importance of knowledge industries for innovation and economic development, intellectual property law and policy have become the most crucial tools to regulate the key economic resource of the future. With the awakening of the People’s Republic of China to the global economy, the world has witnessed a gradual re-orientation of Chinese intellectual property policy towards a better protection of national and economic interests for the promotion of domestic innovation and development. This gradual re-orientation of Chinese intellectual property policy, however, is embedded into the larger context of a rethinking of the purposes and rationales of intellectual property rights. The world has not only witnessed the progressive internationalization of intellectual property law since the early days of industrialization but also the progressive digitization and technization of civilization. These global developments have exerted external pressures on the intellectual property regime thereby challenging the right to existence of intellectual property protection. At the same time, the gradual re-orientation of Chinese intellectual property policy is also embedded into the larger context of the political economy of international intellectual property protection.
It is discussed in a great paper by Andrea Wechsler ‘Intellectual Property Law in the P.R. China: A powerful Economic Tool for Innovation and Development’, Max Planck Institute for Intellectual Property, Competition & Tax Law Research Paper No. 09-02, November 12, 2008. It aims at critically analyzing the evolution and present state of Chinese intellectual property policy with reference to the larger context of a rethinking of the purposes and rationales of intellectual property rights and the larger context of the political economy of international intellectual property protection. It relies on both socio-legal and economic methodology and, thus, considers law in the context of broader social, political, and economic theories. The Agreement on Trade-Related Aspects of Intellectual Property (TRIPs) is an integral part of the World Trade Organization (WTO)’s Agreement. Therefore this treaty (TRIPs) is a hybrid form which for most countries decreases the maneuvering space in the field of IP protection policy. This paper provides an introduction to the purposes of international intellectual property protection by looking at intellectual property protection in historical perspective, by analyzing today’s intellectual property law and policy as integral part of international trade policy, and by elaborating upon the future of intellectual property rationales. The second part looks at the political economy of intellectual property protection through both an analysis of the economics and politics of intellectual property protection and an analysis of the interrelationship of intellectual property protection and economic development in the P.R. China. The final part of the paper discusses three phases of modern Chinese intellectual property policy in the light of the international intellectual property development.
It shows how the Chinese government has changed its perception of intellectual property from a Fremdkörper that was transplanted in China from abroad, to uneasiness about the foreign pressure to reform its IP system in order for it to enter WTO, to China’s autonomous realization that IP protection is crucial to foster innovation and development, as evidenced by China’s third amendment to its patent law (effective October 1, 2009). China is gradually opting for more country and industry specific intellectual property rights.
In the concluding note China has gone a long way towards a modern IP policy for the establishment of a modern legal IP system. The development of Chinese IP policy gets even more so remarkable when considering comments of GUO Shoukang in 1997 where he stated that only 40 years ago he had not even once encountered the term “intellectual property” during his legal education in China. Chinese modern and proactive intellectual property policy will eventually contribute to the emergence of the P.R. China as a potent force in reshaping the global intellectual property landscape.