Intellectual Property, Antimonopoly Law and Sustainable Development in China

WIPO-WTO Colloquium Papers, Special Edition (2022)

Peking University School of Transnational Law Research Paper

35 Pages Posted: 2 Sep 2021 Last revised: 14 Oct 2022

See all articles by Joy Y Xiang

Joy Y Xiang

Peking University School of Transnational Law

Date Written: July 15, 2021

Abstract


This paper explores whether and how China’s anti-monopoly law can be leveraged to improve access to sustainable technologies and therefore, foster sustainable development in China.

Being the world’s second-largest economy and a top greenhouse gas emitter, China needs to (and we need China to) promote sustainable development. China has announced ambitious goals for tackling climate change and building sustainable development, investing heavily in sustainable technologies. Meanwhile, China has been building up its Intellectual Property (“IP”) regime, in both IP registrations and enforcements, and is on the way to becoming an IP powerhouse. In addition, China promulgated its first antimonopoly law in 2008. The law has expansive objectives, going beyond the conventional goals for competition law. The law explicitly recognizes refusal to deal and excessive pricing without justified reasons as actionable causes. In particular, in November 2020, China published the Provisions on Prohibiting IP Abuses that Eliminate and Restrict Competition, which recognizes IP as essential facilities. China's approach seems much different from those of the two leading competition law jurisdictions: the United States (“US”) and the European Union (“EU”). The US antitrust law regime has walked away from considering IP essential facilities, and the EU competition law regime is open to do so only in exceptional circumstances. Therefore, the Chinese antimonopoly law regime may have a higher tendency to find restricting access to IP-protected technologies as actionable under its antimonopoly law and regulations. As a large developing country, China's approach may be considered by developing countries who need to access essential technologies yet experience challenges such as being unable to get a license or facing unreasonably high prices.

Keywords: Intellectual Property, Competition Law and Policy, Refusal to License, Essential Facilities, Excessive Pricing, Sustainable Technology, Sustainable Development, Climate Change

Suggested Citation

Xiang, Joy, Intellectual Property, Antimonopoly Law and Sustainable Development in China (July 15, 2021). WIPO-WTO Colloquium Papers, Special Edition (2022), Peking University School of Transnational Law Research Paper, Available at SSRN: https://ssrn.com/abstract=3915312

Joy Xiang (Contact Author)

Peking University School of Transnational Law ( email )

University Town,
Xili, Nanshan District
Shenzhen, Guangdong 518055
China

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