An overlap exists between China’s IP laws and its Anti-Unfair Competition Law in that the General Clause of the latter can and is expected to be used to protect IP rights (‘IPRs’) that are not specifically enumerated in existing IP laws. However, in applying the General Clause, current court practice fails to properly adhere to the separation of powers doctrine between the legislature and judiciary and adopts an excessively interventionist approach in creating ‘judge-made’ law. To address this, a functionalist analysis proposes, in consideration of both the extrinsic and intrinsic constraints of IP rights, that courts should generally avoid invoking the General Clause save in exceptional situations. On the one hand, the extrinsic constraints of IPRs dictate that the courts should, in principle, avoid applying the General Clause in so far as possible. Yet on the other hand, the intrinsic constraints permit exceptions in cases where the creators of the intellectual property do put adequate work into warranting legal recognition and protection, and where allowing free-riding will result in grossly inadequate incentives and underinvestment in product innovation and development, jeopardizing the evolution of legitimate business models and social welfare overall.
Contributor Notes
The authors wish to thank the following: Ge Jiangqiu, Lee Kay Han, Li Ruoqing, Shi Hongpeng, Yuan Guohe. If you have any questions, please contact the corresponding author, lichen@wustl.edu. Funding sources: Shanghai Pujiang Talent Program, ‘Innovation and Competition: Identification of Unfair Competition Behaviour in the Internet Age’ (18PJC005), the Program for Professors of Special Appointment (Eastern Scholar) at Shanghai Institutions of Higher Learning.
Purchase
Pay to Access Content (PDF download and unlimited online access)
Institutional Login
Log in with Open Athens, Shibboleth, or your institutional credentials
Personal login
Log in with your Elgar Online account
- 1 INTRODUCTION
- 2 THE RELATIONSHIP BETWEEN IP LAWS AND THE AUCL: A SHIFT FROM FORMALISM TO FUNCTIONALISM
- 3 THE SELF-RESTRAINT PRINCIPLE FOR APPLYING THE GENERAL CLAUSE AND IPRs’ EXTRINSIC CONSTRAINTS
- 4 EXCEPTIONAL APPLICATION OF THE GENERAL CLAUSE BASED ON IPRs’ INTRINSIC CONSTRAINTS
- 5 THE GENERAL CLAUSE IN PRACTICE: INCENTIVE-BASED STANDARD OF APPLICATION
- 6 CONCLUSION
| Since 2022 | Since May 2022 | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 254 | 254 | 22 |
| Full Text Views | 260 | 260 | 6 |
| PDF Downloads | 30 | 30 | 2 |
