Spotlight on China: Piracy, Enforcement, and the Balance Dilemma in Intellectual Property Law

Abstract

The aftermath of the TRIPS Agreement has been marked by various schools of thoughts on reform of the international intellectual property law regime. The focus of these reform impetuses has, in particular, been on the impact of TRIPS on the international community as well as on other areas such as health, environment, agriculture, and education. The focus on theses areas that were thitherto not regarded as related to intellectual property, however, has increasingly pressurized policymakers to preserve the goals and objectives behind TRIPS while realizing sustainable development and economic welfare goals. This multitude of goals and objectives has also required policymakers to balance interests intrinsic in the intellectual property law regime against a variety of interests that touch upon wider economic and societal issues. Based on these complex requirements, this paper sets out to systematically and theoretically contribute to the establishment of a balanced intellectual property law regime by analyzing the role and relevance of piracy and counterfeiting for such a balanced intellectual property law regime.

The starting point of this paper is an analysis of the terminology and concept of "balance" in intellectual property law and policy as well as in legal and economic theory. The phenomenon of piracy and counterfeiting is then presented as indication and evidence that the current global intellectual property law regime is out of balance. This line of argument is substantiated by reference to the development of the Chinese intellectual property law system and to the losing battle against piracy in the Chinese market. The paper then presents lessons from the piracy phenomenon in China before postulating a balanced approach to international intellectual property law. The paper concludes by offering suggestions how and to what extent an amendment of the international intellectual property order - notably the TRIPS Agreement - can promote the interests of least and less developed countries while realizing sustainable development and economic welfare goals.

Keywords: Intellectual property, TRIPS, piracy, China, law and economics