What May Validate Intellectual Property in a Traditional Chinese Mind? Examining the U.S.-China IP Disputes through a Historical Inquiry

One of the most significant issues of today’s world is the intellectual property (IP) dispute between the developing countries and the developed. The TRIPs and the IP policies of the developed countries in the rest of the world have been vehemently criticised because the interests of the poor are not treated equally. Under this background, academic researches on the validation of IP laws shall not merely examine whether the developing countries are applying IP laws in line with the demand of the developed but try to scrutinize whether the current international IP regime per se can be validated. This paper will examine from China’s perspective the extent to which an IP regime reflecting high international standards can be validated in developing countries. Two aspects will be analyzed together: first, my recent research on the indigenous development of intellectual property concepts in pre-modern China; second, the U.S.-China IP negotiation since the 1980s. As this paper will point out, social and legal practice recognizing intellectual property rights (IPRs) developed in China long before our modern times began. However, quite contrary to the 16-17 centuries Western Europe where guild monopoly was strong, in China the IPRs and the public interests were to a certain degree within balance and there has never been developed a strong property-focused justification comparable to the IP rhetoric created by London booksellers in the early 18-century England. Although the pre-modern China’s IP practice is far from perfect, it helps us to understand why China was once the leading global figure in terms of education, technology and economy. This is constructive: a good IP system shall not merely start from protecting the IP owners but from protecting both the interests of the IP owners and the users of the intellectual works. The U.S.-China IP negotiation since the 1980s does not take into consideration the above historical inquiry. So far, China has been viewed by the U.S. as a total alien of IPRs. The U.S. therefore actively plays a role of ‘missionary’, indoctrinating the Chinese with the present American IP perspectives which leans to the interests of its dominant industries. The result is that the U.S. has forced China to produce a high level IP regime favouring the U.S. interests while in practice China is reluctant to fully enforce these laws, fearing that these laws may stifle its own energy of creativity. The above analysis will suggest that to promote their own knowledge economy, the developing countries must think more deeply about the validation of IP regime from the perspective of ‘balance’ rather than the IP theories put forward by the developed countries. The developing countries therefore shall have more rights to design their own IP regime reflecting some internationally workable common grounds.