Opening a new vision as regards how to interpret Chinese IP law

2013/1/24By Zhang Wenliang and Yang Huaquan,[Patent]

With many years’ hard work, the book Intellectual Property Law in China written by Professor Qu Sanqiang was finally released by the Kluwer Law International in September 2012. The book is among the few masterpieces written by Chinese authors in English to fully and systematically interpret Chinese intellectual property law since the adoption of “reform and opening-up policy” in China. The release of the book not only exhibits the glorious achievements in the field of Chinese intellectual property law research, but also embodies the gradual maturation of Chinese intellectual property legal theory as well as legal system. Above all, following the arrival of the book, the intellectual property law concepts and legal system with Chinese characteristics will be introduced to the West, which furnishes a classical text for countries practicing other systems to learn of and understand the relevant Chinese legal conceptions and system.

Intellectual Property Law in China is deeply saturated with reason and experience. From the perspective of traditional Chinese culture, the book endeavors to search for the causes which led up to intellectual property taking root in China and unearth the philosophical and theoretical foundation lying beneath the intellectual property law system. It also seeks to explain the social economic laws governing the birth and development of intellectual property and offers proof that intellectual property protection is both a natural and a legal extension China’ s progress.

Following the vein of economic and social development, the book Intellectual Property Law in China investigates into the relationship between the “source” of Chinese traditional culture and the “stream” of western legal thoughts. In the second half of the 19th century, Chinese traditional culture and western legal thoughts mingled in the then China. It is too perplexing to answer whether Chinese intellectual property law system materializes due to the western conceptions or Chinese traditional notions engulf the essence of the western legal system; in such a confusing context, the book Intellectual Property Law in China depicts how the intellectual property system alienated by the western commodity economy found a way to survive on the Chinese soil and thus unlocked new visions of Chinese intellectual property protection system.

As of early the 1980s, China started to advance the policy of reform and opening-up; accordingly, the legal system regarding Chinese intellectual property protection has been gradually taking form. However, the contemporary Chinese intellectual property conceptions and the legal system founded thereupon are still deeply influenced by the West. In such a context, Chinese academia still gets accustomed to sticking to the “West- Centralism,” becomes fond of pondering upon Chinese intellectual property issues from the line of reasoning prevailing in the West and locates the notions, system and practice of Chinese intellectual property law protection within the context of the West tagged with “internationalization,” which weakens the independent quality of Chinese intellectual property law.

In a unique way, the book presents to readers a different pattern of thinking from a completely novel perspective. It concludes that the Chinese intellectual property legal system is largely imported from the West; however, the very incentive for the importation was not out of its own needs, but out of foreign pressure. The book maintains that Chinese intellectual property law system should not simply follow the western intellectual property concepts, but must coordinate with other important elements residing in Chinese society for the purpose of localization. Only in this way can a legal system be accepted by local culture and thus gain its authority.

The book is comprised of 7 parts and 40 chapters. Beginning with a deep summarization of the whole development process of Chinese intellectual property, the book explicitly points out that with a five-thousand-year splendid civilization, China has developed a distinct cultural tradition; when such a tradition was originally challenged by intellectual property; it appeared unprepared and thus could not sufficiently cope with the challenges. However, profound changes in the Chinese economy naturally demand the emergence of intellectual property internally, which subsequently contributed to the birth and absorption of external elements of intellectual property. As a result, there exists a need to seriously meditate upon Chinese intellectual property law system in order to learn about the various factors determining and influencing intellectual property, including political, economic, cultural and moral elements as well as their interrelation.

In its main body, the book elaborates in a systematical way on the fundamental theories of intellectual property, copyright, patent, trademark, and other forms of intellectual property. Moreover, the book also discusses protection of trade secrets, right to network dissemination of information, licensing of intellectual property, and international protection of intellectual property and competition law. The book specifically investigates judicial practice and procedural issues residing in intellectual property, and systematically introduces the remedies and criteria of liability concerning Chinese intellectual property law.

For sure, the most noteworthy and valuable aspect of the book is that it refers to a quite unique perspective and grasps the frontiers of Chinese intellectual property. The book has kept pace with current events, and endeavors to present the most recent knowledge to the readers from unique perspectives, in terms of both theoretical analysis and investigation into the relevant system and practice.

In the meanwhile, there is still some space for improvement in the book. For example, the book doesn’t follow its advocated novel perspectives consistently throughout all its chapters; some chapters of the book focus mostly on the introduction to legal provisions instead of conducting a critical analysis in the way the book strongly advocates. In addition, although “cases” are not yet an authoritative source of law in China, the cases developed over the long period of judicial practice can interpret and explain Chinese intellectual law to a certain extent. From the line of reasoning here, the values of recourse to cases are large in the course of interpreting Chinese intellectual property law. The book would be more persuasive if the investigation into Chinese intellectual property law was accompanied with a discussion of cases.

Nevertheless, the book deserves the attention from the legislature, judicature and academia, especially those in the field of intellectual property law wishing to learn about the jurisprudence and the legal system of intellectual property in China.

 

【Profile】

Prof. Qu Sanqiang is the Dean of Law School of Beijing Institute of Technology of the PRC, meanwhile he is also working at Beijing University Law School as a professor. For more than two decades, Prof. Qu devoted himself to the study of Domestic and Foreign Criminal Law, Criminology, Intellectual Property Law, Jurisprudence and Torts. His publications include books such as Intellectual Property Law, Copyright in China, To Steal a Book Is not an Elegant Offense, Modern IP Law in China, Property Law of China, Modern Copyright Law in China and several dozens of thesis, essays and book reviews covering a broad law field. In addition, he was also the chief editor of the Intellectual Property Review published by Peking University.

 

Zhang Wenliang Ph.D. candidate, Law School of Wuhan University, China; Ph.D. candidate, Law Faculty of Ghent University, Belgium.

Yang Huaquan, Lecturer, Law School of Beijing Institute of Technology, China; Director, Copyright Committee of Beijing Lawyers Association, China.

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