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Abstract

This comment presents a snapshot of the current state of intellectual property (“IP”) enforcement in China in light of a controversial new treaty designed to address the illicit, yet by all accounts thriving, industry of trade in pirated and counterfeit goods. Beginning with an overview of IP-intensive industries, this comment highlights the significance and value of this unique form of property, both to individuals and to national economies. This comment then shifts in focus to the areas of commerce most affected by counterfeiting and piracy, discussing China’s prevalent role in the epidemic, and its copycat subculture known as “Shanzhai.” Thereafter, a discussion of IP rights evolution in China is presented, coupled with a general historical exposition to provide insight into the ideologies that inform current Chinese attitudes towards IP. With this cultural analysis as a backdrop, this comment addresses ACTA, examining its relevance in light of similar treaties that have preceded it, and the curious absence of China in ACTA’s negotiation and drafting. In turn, this comment suggests that even if China were to become a signatory to the treaty, IP theft in China would likely continue as usual because history suggests that any positive changes in the enforcement of IP rights in China will come about through internal means, and not through the imposition of a stringent treaty by China’s more economically developed neighbors. Finally, this comment discusses one such internal change, a new Chinese tort law which is expected to have a positive and far reaching effect on the protection of IP in China.

 

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