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.
Open and collaborative innovation is often pitted against the closed model of innovation, which is controlled by a single entity or producer/seller-driven. As such, it is often claimed that intellectual property conflicts with open innovation. When combined with the predictions on disruptive innovation in the postscarcity world, an open and inclusive rights regime may be a better alternative than a closed, exclusive rights regime. This chapter explores whether such claims can be made with an example of 3D printing. This chapter argues that although it seems difficult to suggest that open innovation is better suited than an exclusive rights regime for disruptive innovation, there seems to be some need for regulatory clarity concerning rights over data files and data sets. The chapter concludes by warning against framing governance of the disruptive innovation solely from the perspective of intellectual property, as it may overemphasize the role of intellectual property and its doctrines, resulting in a self-fulfilling prophecy.
Digital technologies represented by the ubiquitous cloud computing, smart devices, and three-dimensional (3D) scanning and printing expand human experiences. These technologies at the digital frontier are used not only for business but also average people for education, communication and entertainment. Using 3D printing technology as an example, this chapter questions whether various doctrines in the intellectual property (IP) law should be reinvented or even if new ones are needed. As 3D printing utilises platforms that operate globally, it may require cross border sharing of data sets, data files or other information. This chapter questions in the context of patent law in particular, if disruptive technologies such as 3D printing technology indeed call for harmonisation, including new meanings for ‘making’ of patented invention.
Zhang Liguo and Nari Lee
This article examines the establishment of specialized intellectual property (IP) courts in China in 2014. It explores these courts in the context of the IP strategy driven by the national administration, with the aim of highlighting their Chinese characteristics. The article notes that the motivation for establishing these courts was to improve judicial protection of IP rights, a goal aligning with the major target set in the National Intellectual Property Strategy. The establishment of these IP courts was pushed forward by the highest authority to overcome procedural and political obstacles. It was conceived as a pilot scheme for carrying out judicial reform. As such, it is expected that the new measures adopted in these IP courts could later be extended to all other courts in China. One real and compelling reason for establishing specialized IP courts is the rapidly growing volume of IP disputes, which demands coherent and efficient rulings from courts with technologically competent judges. Although this move has yet to provide forum concentration at the appellate level, the specialized IP courts in China have integrated judicial resources and harmonized the interpretation of IP law. In the interim, they have given a clear signal that IP rights are private rights to be adjudicated by courts and implied that IP governance in China has become more market-oriented.
Nari Lee and Niklas Bruun
Nari Lee and Yang Li
The rapid pace of technological developments presents complexities for copyright law. The market for creative works and innovation is always undergoing changes. One result of concurrent changes in the dynamics of interdependent IP institutions is the emergences of new practices and entities that function within the traditional institutional boundaries, as well as in between. Both in Europe and in China, there are more IP rights covering innovations and creations that are privately held by so many different actors, with heterogeneous interests. To manage complex layers of rights and fragmented titles, various types of intermediaries are emerging. This chapter argues that collective management organisations (CMOs) seem to be one such organization that operates between the market and authorities in China. Commencing with a discussion of a recent Chinese dispute concerning the scope of collective administration agreements as an example, we compare how the relationship between CMOs and their members are regulated in China and in the EU. This chapter argues that the current Chinese CMO system seems to be failing in achieving the recognition necessary by the beneficiaries of such a system. The dispute also highlights that the successful implementation of a CMO requires that the perception held by all parties of CMOs are reconciled. We argue that, as CMOs provide a governance mechanism for exercising IP rights, it is important whether there is a vibrant market for copyright licences or not because this is a crucial consideration that enables a CMO to be successful. Without a healthy and functioning local market for content, a CMOs’ role is reduced to that of a collecting agency for a handful of foreign right-holders. We conclude that any proposal for future reform should consider that a successful and functional market with widely acceptable licensing practices is a crucial prerequisite for extending any operation of CMOs, such as extended collective licensing.
Yang Li and Nari Lee
Following the initial grant of a patent, the subsequent conclusion of contracts and acceptance of industry-specific customs and standards are adopted voluntarily by the relevant market participants. These agreements and practices are often a result of self-regulation by market participants. The activities of standard-setting organizations (SSOs), organisations that set standards for the use of standard essential patents (SEPs), are one such example of self-regulation. While patent rights are local, SSOs are often organizations consisting of multiple and heterogeneous participants. The guidelines, and other soft law policies, that SSOs voluntarily adopt are often likely to reflect the multi-territorial nature of the SSOs’ participants. When a dispute arises on the conditions set by SSOs over the assertion of SEPs, the problem is likely to include factual considerations that arise across various territories. As such, disputes surrounding SEPs force local courts to consider, not only local judicial standards and doctrines, but also those used elsewhere that may be relevant to understanding the complex facts of disputes. This chapter discusses how the Chinese courts interpret ‘fair, reasonable and non-discriminatory’ (FRAND) terms adopted by a European SSO; namely, the European Telecommunications Standards Institute (ETSI) The chapter explores in detail the dispute surrounding SEPs between Huawei and InterDigital in China, and analyses it in the context of similar cases surrounding SEPs and FRAND elsewhere. We argue that there seems to be a judicial globalization, whereby courts use foreign-developed principles in judging local disputes that have global commercial impacts. This is a result of the self-regulation of SSOs, and the Chinese court cases must be understood in the same vein. We conclude by arguing that this may be a next phase in the development of Chinese IP law, where local practices of governance have to be built after the initial norms have been transplant.