Can China be Forced to Enforce IP Rights?

  • Peter Ganea
Part of the MPI Studies on Intellectual Property, Competition and Tax Law book series (MSIP, volume 6)

Joseph Straus is one of the world's most renowned patent experts, but his expertise is by no means confined to patents. Inter alia, he actively participates in the political debate around IP in the context of globalization and economic development. Due to its sheer size, vast population and rapid industrializiation, the People's Republic of China is one of the most interesting and problematic countries in this respect. Holding honorary professorships with two renowned Chinese universities, Joseph Straus is a profound connoisseur of the country, not only from a legal but also from a social and economic perspective. This article is dedicated to one of the most debated issues in this context, namely the enforcement situation in China and the often-heard accusation that the People's Republic does not take its protection obligations under TRIPS seriously enough.

Rampant copyright piracy and counterfeiting during the past two decades has earned China the reputation of a safe harbor for IP infringers. In the 1990s, copyright piracy reached levels which prompted the US as the world's main exporter of copyright-sensitive entertainment products and software to threaten China with trade sanctions, and two times a trade war could only be averted the day before the punitive tariffs announced by the US would have entered in force. Each time, China promised to improve the protection regime, but what followed each agreement were rather short-term campaigns against infringers. The US complained that after a while, pirates could re-establish factories and re-launch illegal production of pirated reproductions. According to the USTR, the situation remained largely unchanged also after China's accession to the WTO in 2001. The reports on China continue to occupy the biggest part of the USTR's annual Priority Watch Lists of non-obedient countries in terms of IP protection. In spring 2007, the US filed two complaints against China before the WTO panel. One is directly related to the problem of rampant copyright and trademark infringement, the other indirectly related in that it accuses China of restricting access to the US film industry to the cultural market in China. The absence of legitimate copies would invite pirates to meet the domestic demand. China counters such accusations with reference to the efforts already spent and argues that counterfeiting and piracy would not form a singular Chinese problem but must be regarded as a worldwide phenomenon.


Supra Note Dispute Resolution Intangible Asset Criminal Prosecution Trips Agreement 
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© Springer-Verlag Berlin Heidelberg 2009

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  • Peter Ganea

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