Washington International Law Journal


Multinational corporations and other foreigners bringing foreign direct investment to China have been willing to operate at a loss and risk having their intellectual property rights (“IPR”) infringed without recourse to effective legal protection, because they see a pay-off in the long run. As market reforms deepen and China’s economy continues to develop, so too will the power of judicial protection of IPR strengthen, the argument goes. This long-term outlook expects acceptable levels of legal protections for IPR to emerge and that significant competitive advantage will be enjoyed by those firmly established in Chinese markets when that happens. But what is the current state of intellectual property (“IP”) protection in China? How are political and social forces influencing judicial reform, and to what effect? In the following article, former Vice-President of the Supreme People’s Court of China, Cao Jianming, addresses these questions, acknowledging problems while affirming the gradual progress that has been made. The article itself is an embodiment of one trend of gradual improvement of judicial enforcement of IPR—regular training for the judges across the country engaged in the specialized work of IP adjudication. His article is based on a speech he gave at a January 2007 symposium on IP adjudication in Wuxi, Jiangsu Province, China. Cao gave his remarks after the fifth anniversary of China's accession to the WTO, no doubt finding it an opportune time to reflect on China’s progress. China’s membership in the WTO brought with it reforms supporting increased IPR protection—a multitude of laws and regulations were repealed, reviewed, revised, and created to conform to the WTO’s GATT-TRIPS requirements. Cao explains some specific improvements provided to IPR protection by Supreme People’s Court (“SPC”) “Interpretations”—regulatory documents issued by the SPC that have binding effect on the adjudicatory work of all courts. He also notes the significant improvement in transparency that results from the publication of IP cases across the country on a single website. Cao summarizes the key tasks ahead for the judiciary, though, significantly, he does not discuss reform of its fundamentally weak institutional structure.

First Page