Legal Transplant of Intellectual Property Rights in China

Authors: Liguo Zhang (University of Helsinki) and Niklas Bruun (Hanken School of Economics)

Modern IPR regime originated from Europe. China’s current IPR system has been transplanted from the Western. Nonetheless, some scholars believe that legal transplant is impossible and legal rules cannot be divorced from their culture or political context. This study examines how the legal transplant of IP laws has been interacting with the norm building in Chinese society. Our study finds that IP legal transplant and IP norm building in China is not a passive process of accepting western rules; rather it is a dynamic process. In this process, the law makers had to combat with the resistance from traditional ideology and dominant social cultures. The interaction between legislative bodies, judicial institutions, administrative authorities, political and academic elites, state own companies and private companies, foreign government and international organizations and consumers shaped the actual evolution of Chinese IP norms. Therefore China is not only a norm taker, but also a norm maker. Potentially the IP practice in China may create a new variety of IP regime due to its unique political, economic and cultural environments. Moreover, the legal transplant has led to the divergence between the formal IP rules and the actual IP norms as they are followed in practice. Our study attributes this divergence to the actual difficulty in enforcing IPRs in China.

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