China engages with the global intellectual property governance: The recent trend

• Author: Wenting Cheng
• Date: 01 July 2019
• Published date: 01 July 2019
• DOI: http://doi.org/10.1111/jwip.12122

Received: 6 August 2018

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Revised: 29 December 2018

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Accepted: 8 March 2019

DOI: 10.1111/jwip.12122

ORIGINAL ARTICLE

China engages with the global intellectual

property governance: The recent trend

Wenting Cheng

Visitor, School of Regulation and Global

Governance (RegNet), College of Asia and

Pacific, the Australian National University,

Canberra, Australia

Correspondence

Dr. Wenting Cheng, Visitor, School of

Regulation and Global Governance (RegNet),

College of Asia and Pacific, the Australian

National University, Canberra 2600,

Australia.

Email: wenting.cheng@anu.edu.au

Abstract

As China becomes the second largest economy in the world,

there have been increasing domestic demands requesting

China to engage with the global governance of various

issues more closely. In intellectual property (IP), China has

recently engaged with global IP governance both respon-

sively and actively. This paper answer the questions (a) how

did China respond to the global IP up‐ratchet which sets

higher IP standards; and (b) how did China actively promote

its agenda for the global IP governance. This paper argues

that China has a clearer and more consistent position in its

responsive engagement than in active engagement. In other

words, China is more affirmative in making defensive

coalitions opposing TRIPS‐plus standards proposed by

developed countries than promoting its own IP initiatives

regionally or plurilaterally. China's positions in these

defensive coalitions are the classic pro‐development, devel-

oping country positions. Its active IP engagement is more

diversified. Specifically, China keeps a low profile and does

not attempt to take the lead in IP negotiations at the

Regional Compressive Economic Partnership. By contrast,

China has emerged as a model exporter, focusing on IP

capacity building in its IP arrangements in the Belt and Road

Initiative (BRI) and BRICS.

KEYWORDS

ACTA, belt and road initiative (BRI), China, intellectual property (IP),

regional compressive economic partnership (RCEP)

J World Intellect Prop. 2019;22:146–161.wileyonlinelibrary.com/journal/jwip146

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© 2019 The Authors. The Journal of World Intellectual Property © 2019 John Wiley & Sons Ltd

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INTRODUCTION

As China becomes the second largest economy in the world, there has been an increasing demand for its more in‐

depth engagement in the global governance of various issues. President Xi articulated this demand when he

proposed to disseminate successful experiences from the free trade

zones:The global trade system has undergone the biggest restructure after the Uruguay Round in 1994. China is not only

an active participant and firm supporter for economic globalization but also an important builder of and a

major beneficiary of globalization. We cannot be bystanders and followers; instead, we have to be

participants and leaders. We will have China's voice heard in setting international standards, have the

Chinese characteristics integrated so that we can safeguard and expand Chinese interest in development.

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President Xi's call for China to be “participants and leaders”was implemented by levels of government in China

in many areas, including intellectual property (IP). IP has been a crucial issue in China's foreign relations in the past

four decades. The US and China negotiated bilaterally on IP from 1988 to 1996. IP was also central to China's

negotiations to reassume its membership in GATT (1986–2001). After China's accession to the WTO in 2001,

compliance with the multilateral IP system become the priority for China. Over time, IP was assimilated by China as

a system to promote innovation.

Although China has only been part of the international IP system for less than 40 years, mainly as a regulatory

importer, its emerging role in the global governance of IP should not be ignored. After a period of significant legal

transplants of IP rules since 1978, China has enacted comprehensive domestic IP legislation. Since 2011, more

patents were filed annually at the State Intellectual Property Office (SIPO) of China than at any other patent office

in the world (WIPO, 2012). IP also becomes an ultimate force to achieve Chinese national strategy of “innovation‐

driven development”.

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In 2015, China issued a policy aiming to build China as a leading IP power in the world. The

policy aimed at enhancing China's role in international IP rule‐making: “(China should) push forward construction of

more fair and reasonable international intellectual rules…and steer international IP rules to a direction that is more

generous, inclusive, balanced, and effective”.

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The roadmap to build China as an international IP rule‐maker was further articulated by Chinese IP epistemic

communities. Li and Cui (2015) suggested that “China should actively participate in the new round of restructuring

of international IP rule‐making, actively export IP values with Chinese characteristics, and continuously increase

China's discursive power in international IP negotiations”(p. 10). To realize this goal, specific measures were

proposed, including: (a) continue to use multilateralism to decide international IP issues; (b) ensure that plurilateral

IP negotiations remain open and transparent while trying to build alliances; and (c) seek leadership as well as seek a

“win‐win”situation in FTA negotiations (Li & Cui, 2015, pp. 15–16). In addition, Chen (2016) proposes that China

adopt a defensive position in response to the current up‐ratchet of international IP standards. Chen (2016) also

suggests that China should represent developing countries in international IP negotiations. Nonetheless, existing

Chinese literature focused on providing a blueprint of what China should do but fails to examine what China has

already done.

Regarding literature in English, recent research has begun to distinguish the role of emerging powers and other

developing countries in the international IP system. China is considered one of the rising/emerging powers in this

system (Yu, 2011b). Abbott, Correa, and Drahos (2013) proposes three scenarios for the roles of emerging powers

in the international patent system: Regulatory innovators, adaptive managers of the existing standards, and

modelers of standards set elsewhere. Among the three roles, Benoliel and Salama (2010) expects that the emerging

powers are more likely to be adaptive managers who assimilate and adapt to international IP standards set by the

developed countries than regulatory innovators reforming the international IP order. Such assimilation and

adaptation (or least the ambiguity about whether to assimilate and adapt) may happen because the proliferation of

inter‐governmental fora and the extension of transnational networks have led to a fragmented and polarized

CHENG

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