The Utter Stupidity of the ‘China Doesn’t Care About Intellectual Property’ Argument

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The iPad trademark settlement between Apple and Proview has given some anencephalic pundits out there the chance to beat China’s intellectual property regime about the head and shoulders. I assume they are enjoying themselves, but their ignorance is all too obvious.

The one bit of verbiage that is once again making the rounds, and forcing me to up my blood pressure meds, is the classic  “China doesn’t care about intellectual property protection.” There are several variations of this phrase, and the latest connection to real world events is that the Proview settlement, referred to in these accounts as a “payoff” to “extortion,” is evidence that China’s commitment to IP protection is insincere and sorely lacking. Now that the Snow Leopard trademark infringement suit has gotten a bit of attention, that case is also being thrown out as additional “evidence.”

{Pardon me for a moment while I take a momentary George Will-ian pause and utter a disdainful “Well.”}

These people are idiots. As we already know, the iPad trademark dispute was not really an IP case, so using it to bolster an opinion about China’s IP regime is an exercise in irrelevance. One could argue that China’s contract law regarding agency, for example, was lacking in some way (this is why Apple lost its case in Shenzhen after all), but no one is actually engaging in such a cogent discussion. Requesting that critics remain in the realm of the relevant is apparently asking too much.

Neither the iPad nor Snow Leopard case involves trademark squatting, although I’ve noticed that many commentators have that “fact” firmly stuffed into their pea brains at this point, not to be easily dislodged by drugs, electroconvulsive therapy, or {gasp} a logical, fact-based argument. It’s fair to criticize the trademark holders in these two cases; one breached a contract, and the other seems like an obvious opportunist looking for a payout. However, in each instance, the IP owners acquired the trademark legally and, apparently, in good faith. Neither scenario, therefore, could possibly be used to effectively criticize China’s intellectual property system.

Setting aside these two cases as fundamentally flawed evidence in any argument against China’s IP system, what about the general contention that the PRC “doesn’t care” about IP protection? That could still be true notwithstanding Apple’s situation, right?

Bollocks.

First of all, any statement that a nation “doesn’t care” about something is puerile on its face. Countries do not “care” about anything. They have fiscal priorities, cultural norms, and legal systems. These are all fair game for criticism, and least when those arguments are made with some intelligence.

For example, one could say that China does not spend enough money on IP enforcement. Perhaps, although I’ve often wondered what an average American would say to Chinese criticism of U.S. spending on, say, poverty or education. “America doesn’t care about poor people,” they might say, and they may be right at that. The problem with the fiscal priority game is that a response comes so easily: “Yes, we care about IP, but we care about [subways, health care, tax breaks for farmers] even more. Why do you think you know better how we should spend our money?”

If Beijing threw more money at IP protection, things would certainly improve. Peter Ford has a great article in today’s Christian Science Monitor about what happened here when the government decided to crack down on enforcement during a recent meeting of the World Intellectual Property Organization (WIPO):

“There was a big meeting. Important people came from abroad,” explained one salesgirl at the fabled Silk Street Market in downtown Beijing who said she had been ordered by market managers to hide all her counterfeit jeans for two weeks. “Policemen came every day,” she said on Monday. “Now we’ve been told they won’t come back.”

We have seen this kind of thing before. The same thing happened during the Olympics: a temporary crack down, and then things went back to normal. Other criticisms notwithstanding, however, one still has to admit that special police details cost money.

The fiscal argument also runs into another problem. If a country is criticized for only spending x – 1 instead of x, who’s to say what that magic x figure should be? What about all the time, effort and resources that China has put towards its IP enforcement regime, particularly since it joined the WTO over a decade ago? All those new laws, new judges, better training for officials, all those new patent and trademark examiners — the list is a long one. Even a grinning idiot would be better off with a grudging admission that yes, China cares about IP, just perhaps not quite enough.

Furthermore, some also argue that China’s cultural attitude towards IP infringement differs fundamentally from that of the West. This is intellectual laziness. A cursory look at the history of the United States reveals a Western nation that was very cavalier about copyright and patent infringement in its early years when its economy was developing. One can also look at current levels of online copyright infringement in the West as well for additional evidence against the culture argument. When was the last time you paid money for music?

Perhaps the most persuasive indictment of China’s IP system concerns the enforcement regime and the laws that support it, particularly in specific instances when the system is used in furtherance of the country’s industrial policy. Yes, China has and does use its IP regime to its own benefit, sometimes to the detriment of foreign IP owners, and while it is fair to criticize all forms of protectionism, we should not be surprised. Has the U.S. not used the international IP system to the benefit of American pharmaceutical companies, movie studios, and software developers?

Everyone can agree that China has a long way to go in adequately protecting IP rights, but detractors do themselves a disservice by using empty language that is intended to provoke an emotional response, as opposed to relying on one of the arguments noted above. I suggest a permanent ban of the “Country Z doesn’t care about policy A” formulation, if not the idiots who use it.

3 responses on “The Utter Stupidity of the ‘China Doesn’t Care About Intellectual Property’ Argument

  1. Marius Van Andel

    Just for the record, since about 1999, I have bought just about all my clothing at the Silk Market and its predecessor street market, which, by the way, were much more fun as they strung along the streets through the two diplomatic quarters.

    So I would suffer greatly if it were closed, as its Shanghai equivalent on HuaiHai Lu was.

    Having said that, there would be nothing easier for China to close this market if it chose to and make access to the illicit wares much more difficult.

  2. No you sir are an idiot

    Shenyang J-11 copied well in excess of contractual agreements, Shanghai world expo song, fake Rolls royce Phantom from Geely. This article is full of red herrings and words third graders feel make them sound smart when they insult people with them. All these are things that could have easily been stopped without great expenditures. Copying is at the heart of the government.

  3. John Smith

    Based on my experience of about a decade of working in/with/for various IT-type Chinese companies, including SOE, I can categorically state that China does most definitely care a great deal about IPR.

    With Chinese Characteristics, of course.

    In ‘my’ field, the standard practice/level of protection of IP can only be describes as paranoid.

    Of course, it depends on what you mean by IP and IPR. This depends on the actual possession of the IP.

    For example, after the SOE I most recently worked for had stolen various IP from the US military, they guarded this IP very well, certainly compared to what I’ve seen at various US/EU multinationals.
    Same goes for the German code that they bought from another SOE, which, after ‘innovating’ [meaning change names of the modules, interfaces and most importantly, the name after the (c) sign] said IP, this was again guarded in the most neurotic of ways. These are typical examples.

    Of course, guarding/respecting somebody else’s IP/IPR, well…. If there is an immediate cash advantage in doing so, then yeah, the 3rd party’s IP will at least appear to be protected/respected, that is, until payment has been received, after which “their” IP/IPR reverts to “our” IP/IPR (contract, schmontract!) and then protection is paramount, of course!

    Maybe my experiences have just been statistically ‘unfortunate’, like 10 out of 10 means nada, just a ‘bad’ sample, but I won’t hold my breath waiting to find out I’m wrong, thankyouverymucheversokindly.

    And maybe it is different in other industries, who knows…?