Elgar Intellectual Property and Global Development series
Edited by Nari Lee, Niklas Bruun and Mingde Li
Chapter 3: Legal transplant of intellectual property rights in China: norm taker or norm maker?
China’s current IPR system has resulted from developments initiated during the 1970s. The process of establishing a Chinese IP regime demonstrates a vivid model of legal transplant. Nonetheless, there is a viewpoint that considers legal transplantation impossible because legal rules cannot be divorced from their culture or political context. This chapter examines how the legal transplant of IP laws has been interacting with the norms building in Chinese society. The central hypothesis is that IP legal transplant and IP norm building in China is not a passive process of accepting western rules, rather it is a dynamic process. The chapter demonstrates the interaction between governmental institutions and authorities, political and academic elites, state-owned and private companies, governments and international organizations and consumers in this process. The interaction among these groups also illustrates the actual evolution of Chinese IP norms. In this process, China is not only a norm taker, but also a norm maker. The rapid transplant of IP laws in China, in such a brief period of time, has led to a divergence between formal IP rules and actual IP norms as followed in practice. This divergence can explain the difficulty of enforcing IPRs in China.
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