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Legal orientalism? The poor Chinese culture and US–China intellectual property disputes since the late Qing dynasty

Ken Shao

Keywords: China; intellectual property; legal orientalism; patent; Qing dynasty; TRIPS; US

From the nineteenth-century late Qing dynasty reform to China's endeavor to construct a twenty-first-century knowledge economy, intellectual property has frequently stuck out as a core agenda of China–foreign diplomatic and trading relations. Such a history is usually interpreted from two perspectives: one is an ‘infringement perspective’ in which China is understood as a notorious infringer of foreign intellectual property; the other is a ‘transplant perspective’ which argues that China's modern intellectual property laws emerge and progress as the consequence of foreign pressure. Both interpretations intend to hold that China's passive role in modern intellectual property law making is ultimately cultural – that is, the notion of intellectual property is alien to Chinese culture. This paper takes a completely different cultural perspective. Through micro-level historical details, it addresses the following fundamental question – was the authentic Chinese culture present or accessible by the Westerners (as well as many Chinese) in that part of history? In a broader context, it further addresses another crucial question – if the authentic Chinese culture is yet to be presented or accessible, shouldn't (legal) orientalism be regarded as a consequence of cultural unawareness rather than cultural prejudice?

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