The End of Intellectual Property (Excerpt)

• Author: Chinalawdigest

The question is therefore: why IPR protection is such a difficult business, and why do the laws tend to stay on the books and not be followed in real life? There are several explanations, specifically directed at China, as if loose enforcement were a uniquely Chinese phenomenon and hence worth our consideration here.

Is IPR protection a matter of economic transition and development? The accepted wisdom for some commentators is that, when eventually China turns into a sophisticated market economy with more advanced technology, Chinese enterprises and proprietors will demand stricter IPR protection, and law enforcement will be in better shape. This optimistic expectation, however, has nothing to bear it out. China today is much more of a market economy than two decades ago, being full of entrepreneurship, technical innovation and private proprietorship (70% of the nation’s gross domestic product, GDP, is now created by the private sector). Yet piracy and passing-off are flourishing as never before. There is no indication that such activities will abate any time soon. In fact, as discussed below, the market seems quite comfortable with IPR violations. Business operators and chief executive officers (CEOs), authors and publishers, innovators and proprietors alike, must be ready for even fewer IPR barriers and monopolies to come.

Moreover, this hypothesis of economic transition is a circular argument. It is based on an untested assumption of “natural” symbiosis between higher IPR protection and advanced economic development, and from there it reaches sweeping conclusions on China and other emergent economies. So the argument is better viewed as ideological propaganda. As such, it wields tremendous power and is crucial to the sustenance of the dominant “rule of law” (fa zhi) ideology embraced by both the Chinese government and its critics. But it has nothing to do with the reality of market competition or technical progress.

Another common problematic explanation has to do with certain cultures and values. In the case of China, the traditional culture, or more specifically the nation’s political culture, is said to be hindering full commitment to modern intellectual property. This verdict can be applied to all non-western societies where IPR protection is held not up the WTO rules (TRIPS Agreement), for instance. True, since China “bade farewell to revolution” in the 1980s, a good range of traditional values and practices have revived, including...