This comparative study analyzes the targets, consequences, and influence factors of the criminal enforcement of intellectual property rights in the United States and China. The analysis reveals unexpected consequences when transplanting Western intellectual property law in Chinese contexts. Similarities in criminal enforcement between the two countries indicate that economic factors that are determinant forces in both the United States and China. These factors include such business practices as: (1) vehement business lobbying and the capture of enforcement agencies by top trademark corporations; (2) the size and market concentration level of top firms in an industry; and (3) trade association lobbying efforts, including foreign copyright associations exerting pressure on China. Political factors also influence criminal enforcement in China. These factors include: (1) state interference to protect tax interests in tobacco and alcohol industries; (2) public policies to fight against counterfeits that pose health and safety threats; and (3) other political goals, such as control of the media and importation restrictions on publications. In order to promote IPR protection while reducing business capture, instrumental usage by the state, and unequal enforcement, this article recommends China (1) develop IP-related industries, (2) cultivate the IPR consciousness of citizens and companies, (3) establish respect for rights and rules, (4) encourage the mobilization of private rights by private entities, (5) allow citizen supervision of governmental activities, and (6) move from proactive administrative and criminal enforcement to civil enforcement.
The Policy and Targets of Criminal Enforcement of Intellectual Property Rights in China and the United States,
24 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wilj/vol24/iss1/14