examples above, both the successful and unsuccessful cases happened in the same issue area (trademark) and the same geographic region (N Province). A natural question arises: while it is true that effective enforcement is more likely to arise in issue areas where the state capacity is stronger (such as the issue of patent), what explains the variation between effective and ineffective enforcement in the same issue area, where state capacity stays constant? Is it possible that at least under some circumstances, the state willingly enforces IPR? Since 2002, the Chinese State Council Intellectual Property Rights Working Group has nominated the top ten representative IPR enforcement cases of the year. Out of the 100 cases from 2002 to 2012, 80 percent were trademark and copyright cases. According to an IPR official, “[During the selection of those representative cases], I understand that people may criticize us as picking up the showcases. They may even criticize us as ‘acting’ (zuoxiu). However, even though it is really acting, I think that it is good acting. We want to demonstrate to the public that even in those difficult issue areas, the situation is not that dismal. There is still hope.”15 I find that even in those issue areas where state capacity is widely regarded as weaker (such as trademark), effective IPR enforcement is still likely to happen when the interests of the Chinese state, business actors, and the public are better aligned with one another. Societal actors do not just exert pressure on the Chinese state to enforce IPR. They also manage to persuade the state that enforcing IPR is to its benefit. While the bureaucratic politics argument deserves credit for offering a more thorough study of the variation of IPR enforcement in China, the analysis could be even more thorough if the variation across different Chinese societal actors was also incorporated.
Culturalist Argument
As one of the pioneering researchers of Chinese IPR policy, William Alford stresses the importance of the historical and cultural contexts in which IPR laws operate in China.16 This culturalist argument attributes the ineffective enforcement of IPR policy in China to the prevalent ideologies in the country. Specifically, three historical-cultural factors are particularly responsible: the first is the legacy of Confucian culture, which regards copying others’ work as a necessary and justified means to disseminate knowledge; the second is China’s resentment of the developed countries’ forcing China to adopt IPR laws in both the pre-1949 era and the 1980s and 1990s; and the third is the legacy of the planned economy era, when the results of any innovative activities were regarded as collective benefits for the public.
In the early twenty-first century, scholars further developed the aforementioned argument by investigating the role of Chinese consumer culture. Although not supported by sufficient empirical data, Gordon Cheung promisingly pointed out that the Chinese IPR issue should be understood as a “side effect of the general modernization and social changes of China.” He argued that the rampancy of IPR infringement in China should be explained as a “culmination of consumer culture with rapid market development and poor administrative implementation of IPR protections.”17 Fan Yang offered a more nuanced analysis of Chinese consumer culture by tracing the interactions between the country’s efforts in indigenous innovation (zizhu chuangxin) and counterfeit culture. Putting the Chinese IPR issue under the scenario of globalization, Yang argued that IPR infringement in China should be understood as resulting from the unequal relationship between capitalism’s global expansion and the Chinese local forces’ endeavor to advance their economic gains. As part of the defiance against the global IPR regime, the “copycat brand” phenomenon, also known as Shanzhai, in China contains certain elements of creativity although disparaged by the mainstream IPR holders as counterfeiting.18
It is true that political and consumer culture exerts an important influence on the formulation of Chinese IPR policy in the contemporary era, but the following significant facts should not be neglected when considering the culturalist argument: culture is constantly changing and is inevitably affected by the political and economic environment from which it originates. One can hardly argue that there have been no significant changes in Chinese political culture from before the late 1970s, when the reform and opening policy was adopted, to the beginning of the twenty-first century. Therefore, a simplistic understanding of culture cannot capture the complexity of culture as a multidimensional phenomenon.
Specifically, both Chinese IPR holders and Chinese IPR infringers share the same Confucian cultural tradition and operate their business in the same market environment, but why do they differ in terms of real IPR actions? If Confucian cultural tradition and market-driven consumer culture in China work against IPR in a uniform way, why do some business actors have a strong inclination to protect IPR while many others do not? Is it possible for Confucian culture to take on new meaning with the introduction of a market mechanism? Is it possible that different actors take different attitudes toward IPR protection because of their different positions in the market environment? The above two real-world examples demonstrate that attitudes vary among the different business actors: the response of IPR holders (The China No. 1 Pencil Company in the first case and Company C in the second case) was serious, but the IPR infringers (such as Company X in the second case) put profit making at the top of their agenda. The IPR holders certainly wanted to protect their intellectual property, but their complaints yielded different results. In that light, Confucian tradition and market-driven consumer culture alone are not sufficient to explain the different actors’ attitudes toward IPR. A more sophisticated explanation is desired.
Likewise, many common Chinese people with strong nationalistic sentiments interpret IPR as a means of Western countries’ economic invasion. However, the two real-world examples show that the common people’s attitude toward IPR is more sophisticated than assumed. While the female workers of Company X in the second case believed that protecting IPR hurt their interests, the high school students and their families in the first case believed that IPR protection was vital to safeguard their interests. The contrast indicates that common Chinese people may interpret IPR in different ways due to their personal relationship with IPR. Researchers will thus invite the following questions: Is it possible that at least some Chinese people are less hostile to IPR because they benefit from observing the IPR norms? Perhaps more important, is it possible that the IPR norms are better observed under some circumstances because the market reform is more thorough and market order sounder? It is, therefore, important to unravel the mechanism that creates the different attitudes.
Culturalist scholars such as William Alford are also right in emphasizing the ideological legacy from the Mao era that works against the diffusion of IPR norms in China. However, China has engaged in market reform since the late 1970s. Although Communist hardliners never ceased to critique the market reform scheme harshly, it is unlikely that China will reverse the trend of economic reform. Therefore, the ideological legacy from the Mao era is not the only ideology that matters in the implementation of Chinese IPR policy. Other scholars such as Fan Yang enriched the culturalist argument by analyzing how various ideas interact with one another over the Chinese IPR issue. Following that analysis, some other questions may arise: If the result of IPR enforcement is dependent on the competition among different ideologies in China, under what circumstances would one ideology take the upper hand over others? Which political and social groups in China are more likely to follow what kind of ideology? What is the power ratio among those groups when it comes to protecting IPR from being infringed? While the culturalist argument rightly brings ideational factors into perspective, further efforts are needed to study the much more pluralistic real situation on the ground.
Hence, my study advocates for an evolutionary perspective over time. For example, during my interview with a prominent IPR scholar with the Chinese Academy of Social Sciences (CASS), the scholar recalled the experience of his mentor, the late Professor Zheng Chengsi (1944–2006), who was respected as a forerunner of IPR studies in contemporary China. According to the scholar, “When Professor Zheng started to study IPR law in the 1980s, there was no meaningful IPR to infringe upon. The notion of IPR was literally nonexistent for most people in China. It was a hard time for him. When I started to study IPR law in the 1990s and educate the younger generation of IPR professionals in the early twenty-first century, my students and I met a lot of difficulty as well because IPR infringement became so rampant. The level of people’s respect for IPR
