Chicago Journal of International Law


Counterfeiting and the piracy of consumer goods in China are serious and globally recognized problems. Despite concerns expressed by the US and past efforts, China has been unable to enforce IP rights effectively for decades. As a result, American businesses seeking to sell IP-protected goods in China suffer tens of billions of dollars in losses every year. This Comment aims to determine and assess what measures the US may take to reduce IP infringement in China in the short term. China's weak IP enforcement record is a result of both long-term and short-term causes. Short-term causes (that is, causes that could be remedied within the next five years) include problems with China's nascent judicial system, local protectionism and economic dependence on IP infringement, under-deterrence, market access limitations, and the vagueness of the TRIPS Agreement. However, the various proposals found in existing literature for improving China's IP enforcement record fail to adequately tackle these short-term causes and are therefore unlikely to produce an immediate benefit. The US should adopt a three-pronged approach to improve China's IP enforcement record. First, the US should file a WTO complaint alleging an Article 63.1 violation. Article 63.1 imposes transparency standards on the adjudicative processes and regulations of WTO member states. Second, the US and China should conclude a bilateral agreement providing incentives for joint ventures between American and Chinese companies. Joint ventures will give Chinese companies an incentive to enforce their IP rights since they will then hold an ownership stake. Third, the US should, either by filing a WTO complaint or through bilateral negotiations, seek to reduce China's current market access barriers. However, because China's IP enforcement problem is largely a result of long-term causes, there may be little the US can realistically do to bring about immediate and marked improvement in the effectiveness of China's IP enforcement.

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