China: Rule-taker or Rule-maker in the International Intellectual Property System?

Abstract

Intellectual property has been a crucial issue for China in the past four decades. Internationally, it was central to China’s fifteen-year negotiation on its accession to the WTO and has been a priority in China-US bilateral relations. Domestically, changes in the regulation and use of intellectual property reflect a larger picture of rapid economic and social transition in China. Initially, China was a rule-taker in intellectual property, experiencing pressure from abroad to do much more on intellectual property. In response, China enacted comprehensive domestic intellectual property laws. From 2001, the Chinese Trademark Office was registering more trademarks than any other office in the world and from 2011, the State Intellectual Property Office of China (SIPO) became the world's largest patent office. Today the Chinese government promotes intellectual property protection in its national strategy of “innovation-driven development” and seeks to transform China into the world’s leading intellectual property power. This thesis focuses on whether the large-scale deployment of intellectual property by China in various markets means that it has become a regulatory power in intellectual property, in the sense of being an agenda setter and source of global influence over IP rules. The UK in the nineteenth century and the US in the twentieth were regulatory IP powers in this sense. China’s regulatory and international influence over IP rules is tracked empirically through case studies on geographical indications (Chapter 3), the disclosure obligation (Chapter 4), and intellectual property and standardization (Chapter 5), along with an examination of China’s international IP engagement at the bilateral level (Chapter 6) and plurilateral and multilateral levels (Chapter 7). This thesis also analyses the roles of sub-state actors and non-state actors in China’s international intellectual property engagement (Chapter 8). This thesis argues that China’s role in international intellectual property regulation is more nuanced and complicated than a binary categorization of “rule-maker” or “rule-taker”. China’s international IP engagement is guided by a group of key principles, specifically the principles of IP instrumentalism and a set of foreign policy principles. These principles have been implemented through a process of modeling, while potential conflicts have been minimized through a strategy of balancing. The effects of modeling are compliance and institutional isomorphism which makes the Chinese IP system similar to those of developed countries. Balancing leads to constructed inconsistency and has led China into keeping a low-profile in international policy debates on intellectual property.