This book analyses how China has engaged in global IP governance and the implications of its engagement for global distributive justice. It investigates five cases on China’s IP engagement in geographical indications, the disclosure obligation, IP and standardisation, and its bilateral and multilateral IP engagement. It takes a regulation-oriented approach to examine substate and non-state actors involved in China’s global IP engagement, identifies principles that have guided or constrained its engagement, and discusses strategies actors have used in managing the principles. Its focus on engagement directs attention to processes instead of outcomes, which enables a more nuanced understanding of the role that China plays in global IP governance than the dichotomic categorisation of China either as a global IP rule-taker or rule-maker.
This book identifies two groups of strategies that China has used in its global IP engagement: forum and agenda-related strategies and principle-related strategies. The first group concerns questions of where and how China has advanced its IP agenda, including multi-forum engagement, dissembling, and more cohesive responsive engagement. The second group consists of strategies to achieve a certain principle or manage contesting principles, including modelling and balancing. It shows that China’s deployment of engagement strategies makes its IP system similar to those of the EU and the US. Its balancing strategy has led to constructed inconsistency of its IP positions across forums. This book argues that China still has some way to go to influence global IP agenda-setting in a way matching its status as the second largest economy.
Author(s): Wenting Cheng
Series: Palgrave Socio-Legal Studies
Publisher: Palgrave Macmillan
Year: 2023
Language: English
Pages: 304
City: Cham
Preface
Contents
Abbreviations
List of Figures
List of Tables
Part I Setting the Scene
1 Introduction
1.1 China: Between IP Theft and Assertive IP Power
1.2 The Development of Global IP Governance
1.3 IP and Distributive Justice
1.3.1 Egalitarian Principle of Distributive Justice
1.3.2 Utilitarian Principle of Distributive Justice
1.3.3 Entitlement-Based Principle of Distributive Justice
1.3.4 Global Distributive Justice and the Confucian Golden Principle
1.4 A Brief History of IP in China
1.4.1 IP in China’s Modern History and the Maoist Era
1.4.2 China’s Re-integration into the International IP System
1.4.3 China’s Global IP Engagement in the New Era
1.5 Case Selection, Analytical Framework, and Key Findings
1.5.1 Selection of Cases
1.5.2 Analytical Framework and Main Findings
1.5.3 A Focus on Engagement
References
Part II Case Studies
2 China Engages in International Regulation of Geographical Indications
2.1 Introduction
2.2 International GI System: Regime Complexity and Power Contestation
2.2.1 Mapping International GI Regime Complexity
2.2.2 TRIPS Provisions on GIs and Post-TRIPS GI Negotiations
2.2.3 Post-TRIPS GI Negotiations at the WTO
2.2.4 GI-Related Initiatives at WIPO
2.2.5 Failed GI Proposal in the Anti-Counterfeiting Trade Agreement
2.2.6 GIs in Bilateral FTAs
2.3 GIs in China: Legal Fragmentation and Regulatory Competition
2.3.1 From No Protection to Case-by-Case Protection
2.3.2 EU and US Influences on the Building of Chinese GI Institutions
2.3.3 TRIPS Compliance and Post-TRIPS GI Divergence
2.3.4 Implementing GI Regulation to China’s Advantage
2.3.5 Regulatory Competition and CNIPA’s Holistic Approach to GI Regulation
2.4 China’s Engagement with International GI Regulation
2.4.1 China’s Position at the WTO
2.4.2 China and the WIPO SCT
2.4.3 China’s Bilateral GI Engagement with the EU and US
2.4.3.1 EU–China GI Mutual Recognition
2.4.3.2 GIs in the US-China Economic and Trade Agreement
2.4.4 GI Provisions in Other Chinese FTAs/RTAs
2.4.4.1 Category I: FTAs Mentioning GIs in the Definition of Intellectual Property Rights
2.4.4.2 Category II: Listing GIs for Mutual Recognition
2.4.4.3 Category III: Miscellaneous
2.4.4.4 GI in Chinese Regional Trade Agreements: RCEP
2.5 Conclusion
References
3 China Engages in International Regulation of Disclosure Obligation
3.1 Introduction
3.2 Multilateral Negotiations on the Disclosure Obligation
3.2.1 Debates Over the Disclosure of the Origin of Genetic Resources
3.2.1.1 Is Patent Law a Solution to Guarantee ABS?
3.2.1.2 Voluntary Disclosure Versus Mandatory Disclosure
3.2.1.3 International Law Versus National Law
3.2.2 A Spectrum of Positions on the Disclosure Obligation
3.2.3 Disclosure Obligation Negotiations: From WTO to WIPO
3.3 China Navigating Multilateral Negotiations on the Disclosure Obligation
3.3.1 Context for China’s Engagement in the Disclosure Obligation
3.3.2 China’s Position at the TRIPS Council
3.4 Active Learning from Negotiations: Patent Law (2008)
3.4.1 The Disclosure Obligation in Patent Law (2008)
3.4.1.1 Weak Disclosure Obligation
3.4.1.2 Additional Protection for Genetic Resources: The Linkage Arrangement
3.4.2 Comparison of Chinese Law with Existing Proposals
3.5 China’s Engagement After Patent Law (2008)
3.5.1 China Engages in Multilateral Negotiations
3.5.1.1 China Promoting Substantive Negotiations at the TRIPS Council
3.5.1.2 China Supporting the Implementation of the Nagoya Protocol at the WTO
3.5.1.3 China as Part of the Coalition to Push Negotiations Forward
3.5.2 China Incorporates the Disclosure Obligation into FTAs
3.5.2.1 China–Peru FTA
3.5.2.2 China–Switzerland FTA
3.6 Conclusion
References
4 China Emerges in International Standardisation
4.1 Introduction
4.1.1 Standardisation as a Survival Kit in Competition
4.1.2 The North-South Contestation in International Standardisation
4.1.3 Standardisation as a Lifeline for Chinese ICT Firms
4.2 The DVD Case and Its Lessons
4.2.1 The Rise and Fall of the DVD Industry in China
4.2.2 Two Lessons from the DVD Case
4.2.3 Strategies to Avoid a Similar Trap
4.3 WAPI: Failed Attempts at Domestic and International Standardisation
4.3.1 Failure to Adopt WAPI as a Compulsory National Standard
4.3.2 The Journey for WAPI to Go Global
4.3.3 The Mobile Phone Market: A New Opportunity for WAPI?
4.3.4 A Standard Without a Market: The Implementation Game for WAPI
4.4 Discussion: Technological Hegemony or Technological Nationalism?
4.4.1 The US Strategy Against WAPI
4.4.2 Ex Ante Standards and the Compatibility Argument
4.4.3 Lessons Learned: China Embracing Inclusive Development in the ICT Sector
4.5 Conclusion
References
5 China’s Bilateral IP Engagement: A Look into the Chinese FTAs
5.1 Introduction
5.1.1 IP Provisions in Chinese FTAs: An Overview
5.1.2 China’s FTA Strategies in the Global Context
5.1.3 Categories of Chinese IP Provisions in Its FTAs
5.2 Chinese FTAs Defending TRIPS Standards
5.2.1 Passive-Defensive Chinese FTAs
5.2.2 Active Defensive Provisions in Chinese FTAs
5.3 Active Promotion of New Standards in Chinese FTAs
5.3.1 Protection of Genetic Resources and Traditional Knowledge
5.3.2 Intellectual Property and Public Health
5.3.3 Limit to ISP Liability
5.3.4 Active Promotion of Cooperation and Dispute Settlement
5.4 TRIPS-Plus Standards in Chinese FTAs
5.4.1 Data Exclusivity for Biologics
5.4.2 Protection for Designs
5.4.3 Abolition of ‘Visually Perceptible’ as a Trademark Registration Requirement
5.4.4 Border Measures
5.4.5 Additional Transparency Obligation
5.4.6 Calculation of Damages
5.4.7 Principle of Minimum Obligations
5.5 Conclusion
References
6 China and Multilateral IP Governance
6.1 Introduction
6.2 China and WIPO: A Tale of Reciprocity
6.2.1 History of Trust-Building and Technical Assistance
6.2.2 WIPO Beijing Office: A Response to Surging Chinese IP Applications
6.2.3 Beijing Treaty on Audiovisual Performances
6.2.4 WIPO’s Support for the Belt and Road Initiative
6.2.5 China Supports WIPO to Remain a Major Multilateral IP Forum
6.3 China and the TRIPS Agreement: Safeguarding Multilateralism Despite Limited Involvement in Agenda-Setting
6.3.1 China’s First WTO Proposal: IP in Standardisation
6.3.2 China and the WTO Negotiations on ‘IP Waiver’
6.4 Conclusion
References
Part III Discussion
7 Who Governs? Actors in China’s International IP Engagement
7.1 Introduction
7.2 Substate Actors
7.2.1 MOFCOM: The Checkpoint for China’s IP Engagement
7.2.2 SIPO: A New Node for International Patent Regulation
7.2.3 Rule-Implementing Actors: Judicial Activism
7.2.4 The Missing Actors in Developing Potential Engagement
7.2.5 Discussion
7.3 Non-state Actors
7.3.1 Chinese IP Epistemic Communities
7.3.1.1 IP Elites
7.3.1.2 IP Practitioners
7.3.2 Private Actors
7.4 Conclusion
References
8 Principles for China’s International IP Engagement
8.1 Introduction
8.2 Underpinnings for Domestic IP Protection: IP Instrumentalism
8.2.1 The Innovation Stimulation Theory
8.2.2 The Economic Contribution Theory
8.3 China’s Foreign Policy Principles
8.3.1 Non-alignment in the Independent Foreign Policy of Peace
8.3.2 China’s Support for Developing-Country Agendas
8.3.3 China’s Support for the Multilateral IP Regimes
8.4 The Development of Principles and Their Contestation
8.4.1 From IP Instrumentalism to the Entitlement-Based Theory
8.4.2 From ‘Keeping a Low Profile’ to ‘Striving for Achievements’
8.5 Summary
References
9 China’s Strategies to Engage in Global IP Governance
9.1 Introduction
9.2 Forum and Agenda-Related Strategies
9.2.1 Multi-forum Engagement
9.2.2 Dissembling
9.2.3 More Cohesive Responsive Engagement Than Active Promotion
9.3 Principle-Related Strategies
9.3.1 Modelling
9.3.1.1 Modelling for Foreign Policy Objectives
9.3.1.2 Modelling Rival Standards
9.3.1.3 Active Modelling and Model Export
9.3.2 Balancing
9.3.2.1 Reticence
9.3.2.2 Serving the Foreign Policy Priority
9.3.2.3 Rule Coexistence and Complexity
9.4 Potential Effects of the Strategies
9.4.1 Institutional Isomorphism and Constructed Inconsistency
9.4.2 Diminishing Resistance to TRIPS-Plus Standards
References
10 Conclusion
10.1 Effects of the Strategies: China’s IP System Increasingly Resembles Those of the US and/or the EU
10.2 Tipping Point for China to Become an International IP Rule-Maker?
10.3 China’s Global IP Engagement and Global Distributive Justice
Appendix 1: Multilateral Treaties Effective in China
Appendix 2: Intellectual Property Regulators in China
Appendix 3: IP Targets in the Action Plan for Further Implementing the National IP Strategy (2014–2020)
Appendix 4: Different Positions on the Disclosure Obligation Based on Relationship Between CBD and TRIPS
Index
