Intellectual property law--what it is, and how it is implemented and enforced in China--is a topic of critical importance for both foreign and Chinese companies. Generally speaking, intellectual property law deals with the rules for securing and enforcing legal rights to inventions, designs, and artistic works.
Just as the law protects ownership of personal property and real estate, so too does it protect the exclusive control of intangible assets. The purpose of these laws is to give an incentive for people to develop creative works that benefit society, by ensuring they can profit from their works without fear of misappropriation by others.
Perhaps no Asian country currently attracts more interest from foreign inventors and investors than China. In many cases, however, this avid interest in foreign investment is not based on a reliable knowledge of China's legal framework and of protection of technology in particular. In a jurisdiction where the laws are complemented and interpreted by numerous guidelines and circulars issued by ministries or courts, such knowledge and awareness is all the more important.
Objectives of intellectual property law
The stated objective of most intellectual property law (with the exception of trademarks) is to "Promote progress." By exchanging limited exclusive rights for disclosure of inventions and creative works, society and the patentee/copyright owner mutually benefit, and an incentive is created for inventors and authors to create and disclose their work. Some commentators have noted that the objective of intellectual property legislators and those who support its implementation appears to be "absolute protection".
"If some intellectual property is desirable because it encourages innovation, they reason, more is better. The thinking is that creators will not have sufficient incentive to invent unless they are legally entitled to capture the full social value of their inventions". This absolute protection or full value view treats intellectual property as another type of "real" property, typically adopting its law and rhetoric. Other recent developments in intellectual property law, such as the America Invents Act, stress international harmonization. Recently there has also been much debate over the desirability of using intellectual property rights to protect cultural heritage, including intangible ones, as well as over risks of commodification derived from this possibility. The issue still remains open in legal scholarship.
Reasons for Intellectual Property Law
The WIPO treaty and several related international agreements underline that the protection of intellectual property rights is essential to maintaining economic growth. The WIPO Intellectual Property Handbook gives two reasons for intellectual property laws:
(1) to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations.
(2) to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development.
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