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  • Series: Elgar Intellectual Property and Global Development series x
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Edited by Nari Lee, Niklas Bruun and Mingde Li

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Nari Lee and Niklas Bruun

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Nari Lee

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.

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Peter K. Yu

The history of intellectual property laws in China is a history of legal transplants. From the introduction of intellectual property laws during the late Qing dynasty and the Republican era to the recent laws and amendments adopted by the People’s Republic, legal transplant was the primary means by which the modern Chinese intellectual property regime was established. This chapter begins with a brief history of the transplant of intellectual property laws in China. It then examines the drawbacks and benefits of legal transplants. The chapter further discusses four key questions that policymakers should consider when transplanting laws from abroad. The answers to these questions, in turn, may result in not only the transplant, but also transformation, of these laws. Although this chapter focuses on China, the discussion here is likely to be relevant to other jurisdictions.

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Niklas Bruun and Liguo Zhang

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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Mingde Li

In the protection of intellectual property rights, China is an importer of international norms. On the basis of the international intellectual property norms, China enacted its modern Trademark Law, Patent Law, Copyright Law, and Unfair Competition Law, and amended the laws thereafter. However, China is not a rigid importer of international norms, and has always tried to accommodate the norms into its special political, economic, and social structures. Due to this accommodation, some of the international norms have been transformed, misunderstood, and not functioned well in China. China is currently undergoing its third round revision of its intellectual property laws. This revision is an opportunity for China to reinterpret some of these intellectual property norms on the basis of its current social and economic development. It is also an opportunity to correct some of the misunderstandings that have arisen; such as removing the protection for video recordings, emphasizing the use of registered trademarks, and to provide the ‘likelihood of confusion doctrine’ as an objective standard for trademark infringement. The development of the Chinese intellectual property system is modelled primarily on continental European systems. However, it is not so difficult for China to accept intellectual property norms from the Anglo-American system either. In this respect, it is even possible for China to conceive some new norms, if necessary, for the country's social and economic development. In turn, it is possible that these new Chinese norms may contribute to international intellectual property rights standards

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Kan He

Originality is a basic, and one of the most important, concepts in copyright law. It determines whether a work can be protected by copyright. It is also a concept that is understood differently in many legal jurisdictions. For example, differing standards of originality may make a work copyrightable in one jurisdiction while the same work may be considered unprotected in another jurisdiction. Within the EU, this diversity hinders the fulfilment of the internal market. Accordingly, the EU and national governments have attempted to harmonize this concept, either by legislating upon the matter or by the interpretations made by the CJEU. During this process, it is notable that the organs of government within the EU must reconcile two legal traditions that cover almost all the countries in the world. These two legal traditions are the Anglo-Saxon common law tradition and the continental European civil law tradition. On this basis, it is argued in this chapter that a uniform interpretation of originality emerges in the EU. China, normally considered as a norm taker, transplanted the doctrine of originality from western countries: the meaning of which is still different in various jurisdictions. The various supreme courts have attempted to formulate a uniform interpretation of the concept. This chapter provides a comparative analysis on the emergence of a harmonized understanding of the originality requirement in the EU, and the emergence of a consensus on the concept in China. In Section 1, the efforts of European policymakers to harmonize the definition and standard of originality are discussed. It is fair to conclude that a uniform concept of originality, namely ‘an author’s own intellectual creation,’ was established through the CJEU’s interpretation. In Section 2, the concept of originality in China is presented with cases in China. In Section 3, a comparison between the EU’s concept of originality and China’s will be discussed from the perspective of norm giver and norm taker. In concluding, this chapter argues that each country may perform both the role as a norm giver and norm taker in the future concerning the shaping of the originality concept.

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Yuying Guan

During the ongoing third amendment of Chinese Copyright Law, a new provision for the use of orphan works was included in the draft proposed by the National Copyright Administration (NCAC). The orphan work issue was discussed in both the US and EU from 2006. The US Orphan Works Act 2008 failed to pass and was shelved till now. In contrast, the EU Orphan Works Directive was approved by the EU Parliament and Council of Ministers in late 2012 and the Member States successfully brought the Directive into force as domestic law by 29 October 2014. The Draft Amendment of the Chinese Copyright Law follows a similar core conceptual solution as the EU Orphan Works Directive. This solution provides that if the user has performed a “reasonably diligent search” for the copyright owner, but is unable to locate that owner, then that user enjoys an exemption from copyright infringement if, subsequently, the copyright owner establishes ownership and attempts to sue for copyright infringement. However, the background and the details are different for the EU and the Chinese orphan works proposals. The EU Directive covers the digitization and dissemination of orphan works but only for use in the public interest and by organizations acting in the public interest. The Chinese orphan works proposal, however, seeks to establish a lodge system, where any user can apply and deposit a fee for using orphan works. In this regard the Chinese approach is similar to the US proposal because there is no prohibition on commercial use and the substance of such a system is to create a non-exclusive statutory orphan works license for any user. This license, however, places limits on the right of reproduction and public transmission in the digital environment. China is adopting an innovation-driven policy, yet copyright protection is comparatively weaker than the western countries and to impose any new restriction on copyright holders now, such as granting a statutory license for orphan works on all users might discourage the creation of original works in the long run. There is a fair use exception under the present Chinese copyright regime for publicly accessible libraries to digitize their holdings for preservation purposes and to display their service objects within their premises. Therefore, China only needs to add an orphan works proposal establishing a statutory license for non-commercial users, such as public libraries, to transmit their orphan works to registered clients via the Internet. The specific implementation measures, such as the definition and scope of orphan works, the criteria defining a diligent search, the license application, the deposit fee, and the payment of remuneration once the right holder is identified or located, etc. should be stipulated in a regulation formulated by the administrative department of copyright under the State Council separately. Other related mechanisms such as a statutory levy and extended collective management also need more consideration and research.

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Lin Zhou and Rosa Maria Ballardini

China is generally considered to be a norm-taker, rather than a norm-maker, especially when it comes to intellectual property law. This article considers the resale right as an example and analyses the impact of the importation of norms in China by providing a view from a Chinese perspective, which is based on a comparative study of the enforcement of the resale right in Europe. Intellectual property (IP), as a mechanism to protect creators and innovators, is a cost that society needs to bear in order to enhance certain activities and encourage more innovation and creation. Chinese artists do not lack the skills and creativeness of famous art masters like Picasso, but they do lack several basic conditions, especially like a well-regulated art market and an effective legal environment that would enable them to achieve the status of a “Chinese Picasso”.

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Liguo Zhang and Max Oker-Blom

Trademark laws in China and Europe are currently going through major reforms. This chapter documents the current parallel trademark law reforms in China and the EU. The reforms are substantive as well as procedural; including broad institutional reforms on the institutional governance of OHIM in the EU, as well as procedural efficiencies for the Trademark Office (TMO) and the Trademark Review and Adjudication Board in China. The motivation and reasons are not the same because China, as a nation state, cannot be compared substantively with EU-wide trademark protection, such as the CTMR. However, focusing on the similarities in the reform proposals that focus on trademark use, this chapter observes that the reforms in China seem to be converging with the European system to a certain extent. The chapter concludes by noting that despite the absence of formal legal instruments between China and the EU, commonly faced problems may informally direct the attention of Chinese legislation towards the solutions used and adopted elsewhere, in this case Europe.