Elgar Intellectual Property and Global Development series
Edited by Nari Lee, Niklas Bruun and Mingde Li
Chapter 1: Intellectual property law in China – from legal transplant to governance
Intellectual property (IP) law aims to foster innovation and creativity in a society by granting private rights to the exclusive use of an object as defined by such rights. Due to the role they play in generating added value in international trade, IP laws are increasingly made and influenced by international norms. Generally these norms are imposed by conditions set out in international agreements, such as the TRIPs Agreement. Increasingly governments are actively using the rhetoric of intellectual property rights (IPR) to steer innovation and cultural policy in order to improve national competitiveness in the global economy. Various nations on the Asian continent, by design as well as by force, have embedded laws and legal systems based on European models. The introduction of modern IP law to China provides one example of the legal transplant of a European legal system that and illustrates the process of adaptation and rejection of transplanted systems and norms across cultures. This chapter argues that the perspective of governance may provide a more thorough comparative analysis of Chinese and European IP law. If legal transplant is a narrative used to explain the first wave of normative changes in Chinese IP law and IP law reforms, this chapter argues that the perspective of governance may better explain the second wave of normative changes in Chinese IP law.