A research on the cognitive differences of intellectual property between China and America
(Intellectual Property Research Center, Zhongnan University of Economics and Law, Wuhan 430073，Hubei, China）
Abstract:There is a strong contrast between the Chinese government and the United States government on evaluation of the intellectual property protection in China. In most years, China has been listed by Special 301 Report of the United States in Priority Watch List or as a Priority Foreign Country in terms of weak intellectual property protection. However, the Chinese government believes that the situation of intellectual property protection in China has improved obviously. Meanwhile the awareness of intellectual property rights in the whole society has generally increased. Simultaneously, the work of intellectual property has made great progress. This paper takes the United States Special 301 Report as the research object and analyzes the causes of this contrast by means of using literature analysis method and comparative research method. The result of this analysis shows that the United States Special 301 Report does not accurately evaluate the status of intellectual property protection in China.
The main reasons for this contrast are: (1) There is a cognitive difference between China and the United States on standards for protection of intellectual property. Reasonable standards for protection of intellectual property should strike a balance between stimulating innovation and safeguarding the public interest of society. However, the rational standards of intellectual property protection in various countries are different due to the inconsistency of factors such as the level of innovation in each country and the rule of law environment. The United States has also adopted different standards of protection at different stages of development in history. At this stage, however, the United States advocates that different countries should apply the same standards of intellectual property protection and the laws of the United States should be treated as a criterion for judging the status of intellectual property protection in other countries. the United States hopes that all countries in the world will apply the highest level of intellectual property protection standards. Unlike the United States, China advocates that the standards of intellectual property protection in all countries of the world should not be uniform. The protection standards for intellectual property should be fit with the level of social and economic development of a country. On the premise of fulfilling the obligation of "minimum protection standard" established by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), China should gradually adjust its intellectual property protection standards in accordance with national conditions and specific stages of development.
(2) There is a cognitive difference between China and the United States on intellectual property policy. China puts forward the strategic goal of building an innovative country, takes strengthening its independent innovation ability and acquiring independent intellectual property as its core and closely integrates it with national security. The United States Special 301 Report argues that the emphasis on independent innovation and independent intellectual property will lead to actually differential treatment of United States rights holders, thus creating barriers to market access and often putting foreign firms at a disadvantage. The controversy between China and the United States on independent innovation and independent intellectual property policy is a distinct embodiment of the key position of intellectual property in international competition. Both China and the United States recognize the importance of intellectual property rights for national security. The purpose of China's independent intellectual property policy is to reduce its dependence on foreign technology, to improve China's ability to participate in international market competition, and to maintain national economic security. The scope of cyber security reviews in the United States often also involves intellectual property.
(3) There is cognitive difference between China and the United States on the effectiveness of intellectual property protection. Since the protection of intellectual property in United States is stronger than China, there are certain situations in which it is illegal according to the US law but legal in accordance with Chinese law. China and the United States have a huge cognitive difference about the situation of trademark infringement in China's export link. The root cause lies in the different provisions of whether or not foreign-related OEM processing constitutes trademark infringement. In addition, in the software field, the measurement methods for software piracy rates are not consistent, resulting in large differences in statistical results. The US Special 301 Report is greatly influenced by US interest groups. These interest groups, from the perspective of safeguarding their own industrial interests, often exaggerate facts and losses to highlight their own victim image.
The United States has formed its own characteristics in intellectual property cognition, because it attaches importance to maintaining its dominant position in international competition with intellectual property rights. How to link the technological superiority of the United States with the protection of intellectual property rights and national interests is the main task of successive US governments. In the internal policy, the United States has strengthened the protection of intellectual property rights by modifying the law. In terms of foreign policy, the United States gradually evolves its intellectual property policy into a trade policy and an industrial policy, and applies it in bilateral or multilateral trade relations, thereby realizing the international extension of US intellectual property policy.
The above conclusions can provide China with the following inspirations in its reply to the US’s Special 301 Clauses: (1) Since various non-government intellectual property organizations in US have important right to speak in the Special 301 Report, China should attach great importance to the inter-communication of civil organizations. (2) From a procedural point of view, the Special 301 Report provides a channel for stakeholders to express their opinions. We must pay attention to the procedural rules of the "Special 301 Clauses" and make full use of the various channels provided by them to express China's position and appeals. (3) We must pay attention to the strategies and methods of independent intellectual property rights policies. We can learn from the American experience and adopt a more insidious and indirect approach to avoid publicly discriminating against foreign companies and products through mandatory legislation. (4) We ought to participate in international legislative activities on new topics of intellectual property actively. We should enhance the right to speak in the process of international rulemaking and transformation, and maximize the national interests of our country.
Keywords:intellectual property; cognitive differences; Special 301 Report