China's Intellectual Property Rights: Current Research Paper

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[. . .] On the other hand, The Chinese Confucian philosophies are revolved around the rules of human norms and social structures. The one aspect that has been dominant in Chinese societies is the preference of fulfilling all societal obligations in harmony with personal obligations. The latter always takes preference over the former so much so that history has shown the Chinese abandoning personal interests for the fulfilment social and political of ones. This is hence where IPR comes in as one of the important phenomena[footnoteRef:5]. [5: Ibid However, China's progress in the IPR arena is not complete. China faces a number of issues regarding enforcement of the IPR laws it has enacted, and balancing those enforcement issues with economic growth and development presents many unique challenges. China must address issues of localization and enact significant judicial reform in order to bring the IPR reality in line with the text of the Chinese Laws. Until China does so, it will continue to face criticism from developed nations regarding its IPR climate. Also see: Li, Y. (2002). The Wolf Has Come: Are China's Intellectual Property Industries Prepared for the WTO? 20 UCLA Pac. Basin L.J. 77, 103.]

When we talk about the importance of IPR, we can see that the state and government of China has played a pivotal role over the years in its development. The very first record of the use of trademarks is dated back to 2698 BC when the earliest form of pottery surfaced in the region. The first official records of the trademarks were also present during the Han Dynasty era that expanded from 206 BC to AD220 and were primarily used to offer the customers a form of protection on their purchases and investments. The first form of copyright was also found in this era when certain writings and copying of these writings were restricted by the state primarily because the wanted to manage the impact and perceptions of the literate individuals in the region but also to protect the authenticity and precision of the writings. Even though, these earlier standards in Chinese history do not accurately depict what IPRs stand for today, but provide a good insight and proof of the recognition of intellectual rights. The difference here was that most of the value for these rights was placed on the society as opposed to the individual. Copying and sharing of all literary and technological works was also disallowed by the state. There is little to no record showing the protection of the rights of inventors though, and throughout the 1800s patent laws were only designed to protect the Chinese traders. It was only a brief period during 1923-28 that Americans were also granted patents but the rule of Guomingdang party in 1928 saw the establishment of new copyright, patent and trademark rights that were restricted only to the locals[footnoteRef:6]. [6: Ibid The reforms China is facing, ultimately, will benefit both the Chinese people and foreign entities who want access to the Chinese market. As IPR enforcement is strengthened in China, China's domestic enterprises will begin to be able to develop technology and compete on a global scale, while foreign companies will be able to enter the Chinese markets with more certainty regarding the protection of their intellectual property. In the end, intellectual property protection, once seen as antithetical to China's Confucian legacy, may prove the very means through which China achieves harmony in the global community. Also see: Li, Y. (2002). The Wolf Has Come: Are China's Intellectual Property Industries Prepared for the WTO? 20 UCLA Pac. Basin L.J. 77, 103.]

Let's fast forward to the era of disorder that the world knew as World War II. This era was heavily influenced by various Japanese occupations and the elevated tension and clashes between the Nationalist Chinese governments and the Chinese Communists. In this era, in the reign of Mao Zedong, the Communists (who eventually drove out the Nationalists) abolished the established IPRs at the time and implemented what is known as the Provisional Regulations on the Protection of Invention Rights and Patent Right of 1950. Here, the rights of the inventors were recognized in the form of official certificates and financial reimbursement. The use and copying of inventions as well as writings was still controlled by the government however. The foreign investors and traders could also be granted patent law in this time based on the assessment decisions made by the Commission of Finance and Economics. This did not grant more than a dozen patents to foreigners on that era however[footnoteRef:7]. [7: Xue Hong; Zheng Chengsi (2002). Chinese Intellectual Property Law: In the 21st Century. Sweet & Maxwell Asia. Also see: Bird, R.C. (2006). Defending Intellectual Property Rights in the BRIC Economies, 43 Am. Bus. L.J. 317, 318.]

The darkest and slowest growth of IPRs in China was observed during the Great Leap Forward in 1958 as well as the 1966-67 Cultural Revolution in the region. All previously established IPRs were completely abolished and the prior patent regulations were replaced by the 'Regulations to Encourage Inventions' and 'the Regulations to Encourage Improvements in Technology'. The state owned the rights for all inventions in both. The Cultural Revolution was perhaps the biggest drawback for the intellectuals in China. This is where the 1963 IPRs and set of laws were abolished and the likes of scientists, inventors and even law enforcement officers/lawyers/judiciary were damned for not following the ideals and standards of the Communist philosophy. The Cultural Revolution ended with the arrest and destroyed influence of the "Gang of Four" in 1976. It was form here onwards, especially since 1978, which the Chinese were able to implement drastic alternatives in their economic laws, IPR laws and foreign relations form the era of Deng Xiaoping. China soon started to partake in the IPR ventures with international organizations and have led to three decades of complete revolutionizing of the IPRs implemented within the region from the legal and social perspective (Gulbransen,). These last three decades will be the background upon which the next section for current issues will be based[footnoteRef:8]. [8: Ibid 4 Also see: Slate, R. (2006). Judicial Copyright Enforcement in China: Shaping World Opinion on TRIPS Compliance, 31 N.C.J. Int'l L. & Com. Reg. 665, 686.]

Current Issues

Stopping Abuse and Attaining Redress

Taking Legal Action

There have been growing incidents in recent years reporting the claim from foreign investors that many local Chinese companies have purposely registered similar trademarks and other IPRs in order to bargain a profitable transfer cost. The most troubling claim by these locals has been that the original product or service infringes or breaches the prior-registered IPRs, which has also proven to be an effective way of blocking foreign investments in the industry. The problem for foreign entities thus becomes that they are ultimately engaged in pricey and prolonged registration and cancelation activities. Hence, for all foreign entities, the current line of action if to first formerly register and protect an IPR with China before initiating new brands or services in the region. One of the most popular and important protection mechanisms for foreign investors is the use of licence agreements that list the results when a case of cessation surfaces. The important aspect of these agreements is that they are designed based on foreign laws with definite considerations for some obligatory pre-requisites of Chinese law like apt cross-border royalties payments made. Another aspect that the Chinese state has adopted to stop abuse has been to send warning notes to the local infringers even though these are not foolproof as possible raid activities can be implemented by the infringers as a consequence[footnoteRef:9]. [9: Moynihan, M., Stephanie Mitchell, S., Pavin, D., Koppitz, R. Zhang, T., Cheetham, S. And Simon Rodwell (Ed.). (2004). Intellectual Property Rights in China: Risk Assessment, Avoidance Strategy and Problem Solving ('The China IPR Guidelines'). The UK China IPR Forum, China-Britain Business Council.]

The involvement of appropriate IPR Abuse Authorities

Counterfeiting is one of the infringements that quite a few private and state-owned authorities in China are designed to fight against[footnoteRef:10]. This particular aspect of encompassing input from the private sector, the judicial sector and the state has grown to be a trait for all IPR rulings in China which is an encouraging contrast to the region's historical treatment of IPRs. Some of the state-owned or government-supported authorities operating successfully in China include the following: [10: Slate, R. (2006). Judicial Copyright Enforcement in China: Shaping World Opinion on TRIPS Compliance, 31 N.C.J. Int'l L. & Com. Reg. 665, 686.]

Public Security Bureau (PSB): criminal enforcement

General Administration of Customs: cross border protection

National Copyright Administration (NCA): copyrights

State Intellectual Property Office (SIPO): patents

State Food & Drug Administration (SFDA): pharmaceuticals

State Administration for Industry and Commerce (SAIC): trademarks, anti-unfair competition, anti-counterfeiting

Ministry of Information Industry (MII): layout designs of integrated circuits

Ministry of Agriculture and State Administration of Forestry: plant varieties

Ministry of Commerce (MofCom): a useful source of IPR advice in its own right and for… [END OF PREVIEW]

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China's Intellectual Property Rights: Current.  (2011, September 14).  Retrieved December 12, 2019, from https://www.essaytown.com/subjects/paper/china-intellectual-property-rights/6133195

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"China's Intellectual Property Rights: Current."  Essaytown.com.  September 14, 2011.  Accessed December 12, 2019.
https://www.essaytown.com/subjects/paper/china-intellectual-property-rights/6133195.