Chicago Journal of International Law


Deja vu all over again. Yogi Berra's classic remark seems particularly apt when discussing the status of intellectual property rights ("IPR') protection in China. It has been twenty years since, as newly appointed Assistant US Trade Representative ("USTR') for Japan and China, I set out with colleagues from USTR and other US government agencies on a six-year marathon series of negotiations with China on IPR and market access. Yet in the surveys conducted over the past several years by the American Chambers of Commerce in Beijing and Shanghai and by the US-China Business Council, US firms say that the biggest problems they face in China today are much the same as the complaints they raised in 1986, namely inadequate protection or enforcement of IPR- copyrights, patents, trademarks and trade secrets. There is, however, an important difference between the situation in 1986 and that of today, which is neatly captured in a classic Chinese phrase, "The mountains are high and the emperor is far away." In 1986, China's problems in IPR stemmed directly from the policies, laws, and conduct of the national government in Beijing. There was little legal protection for intellectual property. The existing trademark law was weak and routinely flouted. The patent law, enacted only the year before our talks began in 1985, provided no product patent protection for chemicals and pharmaceuticals. Most importantly, there was no copyright law at all, and the central government itself was the major pirate of US software. Government ministries, particularly the Ministry of Chemical Industries and the Ministry of Electronics and Machine Building, routinely-and legally, since there was no law to bar it-copied vast amounts of foreign software without compensation and distributed the copies widely to their client state-owned enterprises. [CONT]