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United States Court for China: an alternative mode of extraterritoriality

Selected Papers of The Jurist (法学家), Volume 5

Li Yang

The consular court, as the initial judicial institution of extraterritoriality, which aimed to issue regulations for protecting the Americans who lived in China, was not able to demonstrate the entire practice and intention of extraterritoriality. As an amended mode, the United States Court for China, which was constructed by the Western professional judicial system and designed to reform the consular court system, formed an alternative mode of extraterritoriality and acted in an outstanding role among those Western judicial institutions. According to Congress, special acts and professional judges, adhering to the basic principles of rule by law and following the judicial philosophy of sentence, depended on law rather than bias in favor of domestic concerns, while the practice of the professional judiciary mode achieved another goal and contributed to the ideology of legal imperialism spread throughout modern China. This may be considered as a homogenization of the judicial mode that relies on the rule of law. However, it is impossible to evade the fact of colonization in law. Keywords: United States Court for China; consular court; extraterritoriality; legal imperialism

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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.

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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.

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Asim Ansari and Yang Li

The field of “Big Data” is vast and rapidly evolving. In this chapter, strict attention is paid to challenges that are associated with making statistical inferences from big data. We characterize big data by the four Vs (volume, velocity, variety and veracity) and discuss the computational challenges in marketing applications using big data. We review stochastic approximation, variational Bayes, and the methods for wide data models.

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Bing Ren, Bin Yang and Ya Li

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Wei Liu, Mian Li, Jie Yang and Shaokun Wei

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Li Yang, Guo-hui Sun and Martin J. Eppler