Chapter Sixteen

Intellectual Property Law

1. Introduction
There is always a tension between regulation and protection when it comes to issues
concerning intellectual property (IP), in China just as elsewhere. Furthermore, at-
titudes towards IP are conditioned by the cultural setting of the countries concerned.
This means that particularly in a socialist country the regulation of these issues is
not simply a question of equity and balance of interests; but that there is always a
political dimension involved as a part of general social control.
Regulation of IP issues occurs in many forms, from the censorship of publications
and requirements for technology registration, to IP licensing control and official
approval of other contractual arrangements. Such regulation is more often than not
a prerequisite for protection. For instance registration of patents and trademarks,
and to a lesser extent copyright, is almost universally a precondition for protection.
China is no exception to this. However the power of regulation is exercised by a
myriad of government authorities at the central and local levels in China.
Although IP protection has developed rapidly in China, it has only done so
recently and largely in response to Western pressure, and as a means of attracting
foreign capital, know-how and other investment. In fact, until quite recently China,
like many other Asian countries, had sought to curtail the protection of IP rights.1
As late as in 1981 China declared that all products of technological innovation and
invention were the common heritage of mankind.2 This attitude towards IP rights and
technological innovation only began to change when it clearly became an obstacle to
China’s ambition to attract advanced foreign technologies and expertise and, more
recently, after realising that IP protection was also crucial for the development of
China’s own hi-tech markets and economy. Thus a modern legal framework for IP
protection started slowly but developed solidly and rapidly after China began to
implement its ‘open door’ policies in the late 1970s. While formal legal development

1
See Michael D. Pendleton, ‘Intellectual Property Regimes of Selected Asia-Pacific Jurisdictions’,
in K.C.D.M. Wilde & M. Rafiqul Islam (eds), International Transactions (Sydney: The Law
Book Company, 1993), at 361.
2
Id., at 362.

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has been rapid, impressive and in some ways admirable, the implementation of legal
protection of IP rights in China is far from perfect, and the protection promised on
paper has largely remained there until this day.
This Chapter mainly concerns the protection of IP in China; issues relating to IP
regulation are only dealt with if they are relevant to this examination. It begins with
a review of the rapid growth of the IP market and legal development in relation to
IP protection. It goes on to deal with the legal framework for different kinds of IP
rights, followed by an examination of the administrative and judicial mechanisms
for the enforcement of the IP protection law. The gap between rights on paper and
the reality of IP protection will, however, be analysed as a part of the case studies
in Chapter Eighteen.

2. Rapid Development of the IP Market and Legal Framework on

Protection
With a long history of civilisation and a record of some of the world’s greatest
inventions, including the Great Four Inventions (papermaking, gunpowder, printing
and the compass), it is not particularly surprising to learn that traditional China had
legal provisions regulating IP issues. However, as in the case of civil law in general,
such provisions were more about social control and the protection of the interests of
the Imperial Court than about IP rights.3 Again in line with civil law development,
the first modern legal system on IP protection was established through the law
reforms made during the Qing and Guomindang (KMT) periods at the turn of the
20th century. However, these ‘old’ laws were abolished when the PRC was founded
in 1949. While there were some ad hoc regulations on IP protection in the first 30
years of the People’s Republic, such as the 1957 Interim Regulations concerning the
Protection of Copyright in Published Works and the 1963 Provisional Regulations
on Trademarks, there was very little in the sense of a comprehensive legal regime
for IP protection by the time China launched its economic reform programs and
opened its doors to foreign investment in the late 1970s. The contemporary legal
system for IP protection is therefore a product of the last 25 years or so, and continues
to evolve until this day.
The first move towards IP protection occurred in 1979 as part of China’s efforts
to attract foreign investment, when China promulgated its Law on Sino-foreign
Joint Ventures.4 In March 1980 China submitted its application for membership

3
For a good summary of intellectual property protection in traditional China, see Qu Sanqiang,
Fundamentals of Intellectual Property Law (Zhishi Chanquanfa Yuanli) (Beijing: Procutorial
Press, 2004), Chapter 3; and Qu Sanqiang, Copyright in China (Beijing: Foreign Languages
Press, 2002), Chapter 1.
4
This Law was further implemented by a set of Implementation Rules issued in 1983. The two
laws, both revised twice since their issuance (see infra notes 50 & 51), allow foreign parties

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