Table of Contents

Governance of Intellectual Property Rights in China and Europe

Governance of Intellectual Property Rights in China and Europe

Elgar Intellectual Property and Global Development series

Edited by Nari Lee, Niklas Bruun and Mingde Li

Intellectual property law performs a number of complex functions in society. To foster innovation and creativity in a society, governments are actively using intellectual property law as a means of governance. Both in China and in Europe, intellectual property law is used to further innovation and cultural policies to increase national competitiveness in a global economy. Due to its impact on global trade, intellectual property laws are increasingly made and influenced by international norms. Against the backdrop of this dynamic global intellectual property norm competition and interaction, this book explores governance of intellectual property rights in China and Europe. This book examines and compares the series of intellectual property law and system reforms in China and Europe. Through the analysis, this book argues that a successful governance of intellectual property rights require not only the adoption of a set of norms but also transformation of the perspectives and the implementing institutions.

Chapter 3: Legal transplant of intellectual property rights in China: norm taker or norm maker?

Niklas Bruun and Liguo Zhang

Subjects: law - academic, asian law, intellectual property law

Abstract

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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