China Could Come Around On International IP Law

Compliance with international intellectual property law may be on the horizon for China.

China Could Come Around On International IP Law
Credit: Wikimedia Commons

Is China “in denial” about IP theft, and if so, why?  Tyler Roney’s recent post on IP violations and the growth of the Chinese economy evokes some interesting ways to think about how China has reacted to the emergence of the global intellectual property regime.  First, China could deny the legitimacy of international intellectual property law. Alternatively, the CCP could outwardly accept the legitimacy of that law while privately sending signals that it has no intention to enforce.  Finally, it could genuinely struggle to comply with the dictates of the international intellectual property regime. In the end, there probably isn’t that much of a difference between the second and third options, as they effectively lead to the same place.

A century ago, the theft of intellectual property was understood as national heroism.  Inventors, whether in the defense or the purely economic sphere, were hailed for being able to replicate and reproduce inventions from other countries.  In the case of Imperial Germany, loose copyright and patent laws were credited with giving the Reich the capacity to quickly catch up with British industry.  In this sense, the Chinese desire to steal (in both the defense and civilian sectors) the intellectual property of other countries isn’t new. Rather, the international framework for monitoring and complaining about that theft is novel.

As Susan Sell has argued, international IP protection is, in and of itself, a power play on the part of major economic actors.  The construction and maintenance of the rule systems owes itself to the entrepreneurial behavior of private business, working not only through the U.S. government, but also through international institutions.  As such, power relations are embedded within the rules of the IP system, and within our entire way of talking about intellectual property.  This is one reason why the IP provisions of the Trans-Pacific Partnership have proven so controversial.

But adherence to international institutional frameworks isn’t entirely voluntary. The demands of international organizations (and, in bilateral terms, of the EU and the United States) require the Chinese government to develop a position on intellectual property, a set of policies designed to support that position, and the bureaucracy necessary to execute those policies. While this bureaucracy may lack power initially, over time the state acquires what amount to habits of compliance, where it becomes more problematic to step outside the expectations of the international regime than to stay within them.  In China Goes Global, David Shambaugh outlines this process with respect to China’s engagement with the various regimes of the liberal international economic order.  Thus, the development of a bureaucracy to manage IP rights, which China has begun, almost inevitably produces a policy shift towards compliance.

And this is why Tyler Roney’s final point (“China’s modern miracle would not have been possible without rampant theft of intellectual property; perhaps China will choose to—instead of ignoring it—embrace it”) is so interesting. The PRC has chosen not to openly challenge the international intellectual property regime, despite having ample ethical and strategic grounds for doing so. This suggests that the process outlined by Shambaugh will eventually lead to intellectual property compliance on the part of the PRC—the preferences of CCP leaders and the Chinese business community notwithstanding.