Intellectual Property Law in China – China’s Historical and Cultural Interpretation of IP Rights
The main purpose of this article is to provide some clarity, and to delve into the history of intellectual property throughout China’s history to provide information on Chinese intellectual property law for sellers.
Intellectual Property Law in Ancient China: The Tang Dynasty
For decades, China has been one of, if not the, main hub of investment opportunity outside of the United States. Companies such as Amazon, Alibaba, and eBay provide easy access to individuals in addition to larger companies as active sellers globally. Since websites such as these are so easily accessible, it is not only important for professionals in the field of law or business to learn the ins and outs of how intellectual property rights are practiced and maintained, but is important for all sellers to know.
China has been no stranger to the concept of intellectual property. As early as 835 A.D, the Chinese Emperor instituted the country’s first copyright regulation. Although obviously this law could not be as comprehensive as in today’s legal atmosphere, it still prohibited people from producing art that depicted realistic or natural events. Trademarks started to become more commonplace throughout the Tang Dynasty (618-907 A.D.) through labeling in order to recognize their goods and property.
Trademarks: The Ming Dynasty
The Ming Dynasty (1368-1644 A.D.), further developed this system which introduced the recording of trademarks throughout more territory. Approximately a century later, Confucian principles redacted the progress that was made previously in the realm of IP law. As a philosophy of valuing the community over the individual, Confucianism in juxtaposition to the western idea of Capitalism provided a different perspective of what individual rights were, where the state to a high degree valued individualistic tendencies, as long as they benefited the whole of the society.
Intellectual Property Law: Post-Maoist China
The copyright laws of the 1950’s prevented Chinese publishers from paying or seeking permission from foreign rights-holders to use their works, unless they were from another socialist nation[1]. However, through the 1970’s, China went through a sort of overhaul of thought. Intellectual property brought China and the United States together under the 1979 bilateral agreement to protect American trademarks, copyrights, as well as patents across the world in China. From that vantage point, China started to get involved with other organizations, for example the World Intellectual Property Organization.
This improvement came to a head in 2000, when the US China Relations Act was signed and normalized trade relations between the US and China a permanent installation[2].
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All of this history is not meant to discourage: in fact, China has taken many steps towards positive change even through a restrictive atmosphere to advocate for the abetment of more comprehensive, global, and long-term change in intellectual property rights and laws. Although there has been some kickback and issues with intellectual property between the United States and China, there has been a lot of movement forward.
Current Status of Chinese Intellectual Property for Sellers
One way that China is moving forwards is through combatting “local judicial protectionism”[3]; this refers to the fact that people taking legal action locally have a much higher probability of winning their cases. Even though this is an issue, if these cases reach past the local level, this bias seems to no longer be an issue. The institution of the Supreme Court’s Intellectual Property Division has helped dramatically to make sure the process remains above board. This has created a domino effect, where short thereafter, cities such as Nanjing, Beijing, and Shanghai to name a few, also created similar establishments to oversee these issues.
“Small Damage Awards”[4] have also been another problem that has a solution on the rise. Previously, cases where money for damages is being sought after were deemed unconstructive, because the money received with a win was not nearly enough to pay for the damages; “some estimates indicate that patent holders currently receive around 36 percent of the damages they seek in litigation”[5]. In response, President Xi Jinping has upped the price tag for these cases, and they would increase substantially from “current levels, between 10,000 RMB to 1 million RMB ($1,550 to $155,000), to between 100,000 RMB and 5 million RMB ($155,000 to $775,000”[6]. Not only is this significant in terms of payment, but it is highly symbolic for the industry as a whole and has served as an indication of future improvements on intellectual property globally.
Large Companies and the Media: A Myth
Lastly, the widespread media coverage of high profile companies such as “Apple, Samsung, Sony, and Dell”[7] have firstly increased with every case, and secondly, have created a mistaken preconceived notion that you must expect a disappointing outcome. Basically, these company’s globally visible cases from the U.S. in China have a tendency to dishearten people and cause assumptions that foreign countries and individuals from those countries have a lesser chance of winning a trial for their intellectual property rights; however, this is strictly myth.
Intellectual Property Law in China – Conclusion
Individuals living in China have been at the forefront of this movement for stricter laws relating to intellectual property rights as well. The connection between China and the U.S. is therefore even more strengthened with the same goal of heightening the policies that protect your rights.
Adina is a summer associate with Rosenbaum Famularo, PC.
She graduated with a bachelor’s degree in Political Science, with a minor in Chinese Language from Trinity College. She will begin law school at New England Law, Boston in August 2018.
This article is to provide helpful information and does not take the form of legal advice or replace a lawyer’s recommendation.
Intellectual Property Law in China
[1] JIPEL NYU[2] https://www.cfr.org/timeline/us-relations-china
[3] https://thediplomat.com/2018/01/chinas-progress-on-intellectual-property-rights-yes-really/
[4] ibid
[5] ibid
[6] ibid
[7] ibid