Legal Transplantation of Intellectual Property Rights in China: Resistance, Adaptation and Reconciliation

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• 作者：Liguo Zhang ; Niklas Bruun
• 关键词：Comparative law ; Legal transplant ; Chinese law ; Chinese intellectual property law ; Law and norms
• 刊名：IIC - International Review of Intellectual Property and Competition Law
• 出版年：2017
• 出版时间：February 2017
• 年：2017
• 卷：48
• 期：1
• 页码：4-41
• 全文大小：
• 刊物主题：International IT and Media Law, Intellectual Property Law;
• 出版者：Springer Berlin Heidelberg
• ISSN：2195-0237
• 卷排序：48

文摘

China’s current intellectual property rights (IPRs) system has been developed through the transplantation of the concept and models from the Western world following its socialist market economy reforms in the late 1970s. The process of establishing an IP regime in China thus reflects a vivid model of legal transplantation. This study examines how China’s IP regime has been shaped and how the legal transplantation of IP laws has interacted with norm building concerning IPRs in Chinese society. In China, local social norms inherently conflict with the idea of IPRs. China’s IP norms have been shaped by the convergence of political, economic, cultural and legal factors. Therefore, in transplanting foreign IP laws, China has also created its own legal and social norms, which diverge from those of the source of legal transplantation. In this process, China is thus not only a norm taker but also a norm maker. The resistance to the legal transplantation of IPRs has led to a divergence between the formal IP rules in China and the actual IP norms as they are followed in practice, which has resulted in difficulty in the enforcement of IP laws. The achievement of convergence between IP laws and IP norms in China will ultimately require improvements in IP governance and the establishment of rule-of-law norms in China.