Philadelphia: University of Pennsylvania Press, 2019. 298 pp. (Tables, graphs, figures.) US$69.95, cloth. ISBN 978-0-8122-5106-7.
Intellectual property rights (IPRs) in China are a Pandora’s box, with authors offering readers varying takes on the topic, based on different philosophies. At least that is what Zhenqing Zhang conceives of in his work as the theoretical context of most writings on intellectual property. Yet, one can never overestimate the significance of this topic, not simply because IPRs have been a perpetual theme in Sino-US trade talks since China’s reform era initiated by Deng Xiaoping, a situation which has now morphed into a bitter and acrimonious trade war. More importantly, such bilateral IP negotiations assume political contingency: they constitute an interaction “between the world’s biggest democracy and one of the world’s few remaining communist countries, and probably between the world’s incumbent superpower and its ambitious possible successor” (18). IPRs are also topical because the area remains understudied in a non-normative sense: aside from ample legal studies that focus on the adoption and the interpretation of IP rules in China, there is a dearth of insightful work that cuts into the socio-political context of the malperformance of China’s implementation of its comprehensive commitments to IP standards. This book is a timely work that elaborates on the underlying dichotomy between China’s IP legislation and enforcement. Specifically, the arguments in the book are manifestly empirical in terms of their first-hand sources in the form of interviews with government officials, IP right-holders, and IP infringers. As IPRs in China are multifaceted and characteristic of a diversified portfolio, the book covers three classical subjects of IP and is structured in terms of both the policy and the practice of patents, copyright, and trademarks.
Chapter 1 offers a historical account of the development of China’s patent regime. The chapter does not merely employ a lingua franca (i.e., the materials and descriptive framework IP readers are familiar with) to register the ups and downs of China’s legislation. Instead, the author relies on declassified documents and policy-maker records to provide a vivid account of Chinese daily bureaucracy and politics coalescing around patent law-making, revealing how hierarchical governance and diplomatic repercussions helped Chinese legislators overcome the internal tensions between lobbying groups. Chapter 2 then goes on to pinpoint the crux of the enforcement problem: Chinese top leadership’s genuine purpose behind the ruse of establishing a patent regime is to facilitate a thriving innovation industry rather than protect patents as they are. In tandem with the shared roles of courts and government bodies in institution building, there is insurmountable tension between pro-patent players (such as foreign companies) and anti-patent players (such as state-owned enterprises). A reader may perceive, in fact, a dichotomy between the aforementioned policy goal and enforcement of patent protection: China prioritizes pragmatic policy instruments over a purely legalistic understanding of patent protection.
Chapter 3 turns to China’s legislative history regarding copyrights. Similar to the account of patent legislation, the author juxtaposes the domestic tension and the international pressure that precipitated China’s adoption of copyright law. Nevertheless, a distinct feature of copyright law is its inherent connection with China’s program of ideological and cultural control, such that any exploration of the subject may be sensitive. In that connection, it is important to note that China’s copyright development reflects a “struggle for the freedom of expression” (88). Chapter 4 is dedicated to the study of how, under that copyright framework, China’s propaganda system influenced the cultural industry and was influenced by the need to reform the political and economic infrastructure of that industry. By virtue of solid data and personal accounts, the author is able to depict both political and mundane factors that helped shape the background of China’s copyright legislation. These empirical details help conceptualize a distorted cultural market entailing the production and distribution of copyrighted works.
Chapter 5 documents the relatively incontrovertible process of envisioning China’s trademark law. The implied key argument here is that compared with the obstacles in copyright and patent legislation at home, the progress of China’s trademark legislation proceeded relatively smoothly, thanks to pressure from the Sino-US IP negotiations, though trademark was not a pivotal element in that package. Albeit without real external pressure, the need for market reforms, coupled with trademark holders’ claims for protection, prompted the advent of trademark law. Here the role of international negotiations is highlighted. Chapter 6 delineates, with full and accurate detail, the development of relevant government institutions that steer and regulate product quality and market competition, the efforts of various enterprises in developing their market strategies, as well as the attitudes of consumers towards trademark and product qualities. In particular, the authors points to the sharp contrast between the market status of state-owned enterprises and that of private companies as a focal point of the regulatory basis of trademark in China.
The book offers a meaningful contribution to the understanding of IPRs through a historical lens that encompasses both a macro and a micro perspective of the political economy of IPRs in China. This dynamic portrayal of modern Chinese history is underpinned by “state-society interaction in IPR enforcement in China” (226). However, there are some caveats. First, the theoretical arguments the author introduces in the introductory chapter and summarizes in the concluding chapter are lacking in nuance, though they are largely extenuated by the comprehensive details found in the six main chapters. For one thing, the examination of the development of trademark legislation along with samples of Chinese trademark law seems to degenerate into a largely descriptive account. And due to the lack of theorization throughout the text, some policy implications cannot be drawn. For instance, whilst the author encourages the Chinese state to “promote individual rights and civil liberties” (232), the book doesn’t really elucidate the relationship between copyright and restrictions on free expression. Last but not least, the book carries that epochal hallmark of simplistic optimism—though mingled with mild caution—about the prospect of China’s political future during the reform era. That era is definitely over, somewhat abruptly and unexpectedly for many China observers. The uncertainties of IPRs in China and their implications for the world need to be further explored.
Ge Chen
Durham Law School, Durham