Intellectual Property Rights in the P.R.C.: Impediments to Protection and the Need for the Rule of Law

Abstract

ARTICLES INTELLECTUAL PROPERTY RIGHTS IN THE P.R.C.: IMPEDIMENTS TO PROTECTION AND THE NEED FOR THE RULE OF LAW Jeffrey W. Berkmant INTRODUCTION As the one year anniversary of the historic February 26, 1995 intellectual property agreement between the People's Republic of China (P.R.C. or China) and the United States ap- proached,' the Associated Press carried a prophetic, if not amus- ing, story touching upon the success of the Agreement. The story, which was widely publicized in the Chinese state press, concerned a retailer of condoms and sex aids that was going out of business because of its inability to compete with counterfeit- ers. 2 While to some the tale of the Chinese condom store may be of interest in light of China's one-child policy or the govern- ment's desire to crackdown on pornography, the story's real im- port is that it is a barometer of the status of intellectual property rights in the P.R.C. In the classic half full, half empty debate, the story presages both negative and positive developments. On the one hand, the plight of Chinese business is the type of anecdotal evidence supporting the argument that infringement of intellec- tual property rights in China remains unchecked, which suggests that the 1995 MOU has failed to provide greater protection for t Teaching Fellow 1996-97, Stanford Law School. J.D., New York Law School; LL.M., New York University School of Law. I am grateful for the inspira- tion and guidance of Professors Jerome A. Cohen, William E. Nelson and Hugh T. Scogin. 1. See China-United States: Agreement Regarding Intellectual Property Rights, Feb. 26, 1995, 34 I.L.M. 881 (1995) [hereinafter 1995 MOU or the Agree- ment] (containing both the Letter and the Action Plan). 2. See Elaine Kurtenbach, Condoms Among Latest Targets of Chinese Crack- down on Counterfeits, A.P., Feb. 2, 1996, available in 1996 WL 4409759.