What positions do you hold in China?
I hold a number of positions. I am professor of law at Renmin University of China [the People’s University], and dean of the Intellectual Property Academy there. I am also director of the Intellectual Property Teaching and Research Center at the university.
|Professor Liu Chuntian|
Renmin University is a pioneer in the field of Chinese IP law. It was the first university to have a programme focused on IP and many influential attorneys in government, academia and private practice are graduates of this programme.
I have a number of other IP-related roles as well, including chairperson of the China Intellectual Property Law Society, vice-chairman and director of the Academic Committee of China Copyright Society, and vice-chairperson of the China Trademark Association.
What sparked your interest in IP?
I think my background helped to show me the importance of technology and IP. I was born in 1949, the year the People’s Republic of China was established and I grew up during the Cultural Revolution. I lived in Beijing, but I also spent some time in Jiangxi Province, working in the countryside. Later, I moved to the city and worked with factory workers. After the Cultural Revolution, the reforms started and in 1978 I was in the first class of students to be admitted to university in the country.
When I lived in the countryside, I noticed that the tools that people used were the same as the ones you would find in museums. These tools have been used for some 2000 years, since the Han dynasty, and they had not changed.
Those tools emphasised that China at that time was still largely an agricultural society and not very advanced. During that time, a lot of people were talking about reform and change and trying to figure out how to modernise the country.
During my studies, I continued to think about technology and how to modernise the country. When I was a student, WIPO held a seminar at Renmin University in 1984. It was during this seminar where I got to learn in greater detail these ideas about IP. There, I saw the importance of having a mechanism in society to put technology and knowledge to work and commerce, and how we need to have a good system so that these innovations could be commercialised and used to improve people’s lives. That is how I made the decision to pursue a career in IP.
How has IP in China changed since you started teaching?
IP has changed a lot. In 1985, I completed my postgraduate programme and started to teach a new class, simply titled “intellectual property”. This was a very new concept at the time; people would sometimes talk about patents, but they did not have a bigger concept of intellectual property.
However, in 1986, China passed a new law, the General Principles of the Civil Code. The law identified a number of civil rights, including property rights and IP rights. This was the first time that a law in China specifically identified IP as a property right.
"In traditional Chinese culture, people always thought highly of labourers: if you work hard, people will give you a lot of respect. However, people didn’t really value creation."
I also think people’s perceptions about IP have changed and they have a better understanding of its importance. In an agricultural society, people tend to think that only labour can lead to property. However, in an industrial society, we start valuing the idea of IP and promoting innovation. People begin to understand that the act of inventing and creating can also create property, and innovation can lead to rewards.
I agree with this idea and I think it is an important change in China. In traditional Chinese culture, people always thought highly of labourers: if you work hard, people will give you a lot of respect. However, people didn’t really value creation. Still, creating new things and new ideas are important, because these new things can change the mode of production, increase efficiency, and it can have significant impact on society. The thinking should be to move from rewarding labour to rewarding creation.
Has legal education changed in China along with the growth of IP?
Definitely. When I first started teaching, there was no theory and practice of intellectual property, and people had very limited knowledge about IP. Back then, much of the studying looked to other places, like the US, Europe, or WIPO as best practices because we had very little Chinese IP law. Nowadays, Chinese IP practice is very complex, as complex as these other developed countries, due to the rise of IP disputes and refinement of laws. Nowadays, the IP disputes you see in China are very much like the ones you will see in developed foreign countries.
There is a shared interest in IP among the public, the intellectuals, entrepreneurs, and the government. I think interest in IP is high in China, because it connects two things: ideas, and the market. Ideas and technology are constantly changing, and the market has to respond to these technologies. At the same time, the market changes technology and the demand for it.
The role of IP in the legal education reflects its importance. In 1986, I was on a committee with the Ministry of Education on the law school curriculum, and I proposed that we have IP as one of the core components. They accepted my proposal, and since then, IP has been one of the 14 core courses for all law students in the country.
I am still involved with the direction of the law school curriculum. I am the chief editor of the committee that reviews the IP textbooks that are recommended for law school instruction.
What was your involvement with the National IP Strategy?
I participated in the drafting of the National IP Strategy. In the early part of the process, the State Intellectual Property Office (SIPO) divided the research into 20 subjects, and these were assigned to various institutions. Renmin University was asked to research the protection of IP and abuse of IP. Our report, IP Protection and Prohibition of Abuse of IPRs , attracted a lot of attention from the State Council.
What did they find was so noteworthy about the report?
Renmin University’s report touched on macro issues, like why we should encourage more innovation, and why we should protect IP, and what lines we can draw against the abuse of IP. It had some high-level discussions as to why we should have a national IP strategy.
What do you think of the National IP strategy so far?
I think the strategy is a good one but there are some difficulties in implementation. While the plan is called the National IP strategy, the only office specifically tasked to implement it is SIPO. However, SIPO can’t do this alone; it has to coordinate between 29 ministry-level government agencies. This can be a difficult task, because SIPO is only at the vice-ministry level.
"Plans like the National IP strategy require a very high level of coordination between the government agencies and I think there are some difficulties in achieving this."
One example of this is SIPO’s need to coordinate with the State-owned Assets Supervision and Administration Commission (SASAC). SASAC is a ministry-level agency, and it is very influential because it manages all the state-owned assets, including the state-owned companies. Some parts of the National IP Strategy have to be implemented by the large state-owned companies, but SIPO cannot directly work with the companies. Instead it has to coordinate with SASAC, which has its own responsibilities and goals.
Plans like the National IP strategy require a very high level of coordination between the government agencies and I think there are some difficulties in achieving this. Japan has a similar IP strategy, but its plan is led by the Prime Minister’s office, which has a lot more influence than SIPO within the Chinese government.
What do you think about the recent draft revision to the Copyright Act?
I think the recent draft addresses a lot of the concerns of writers and authors and will help their industries mature. Statutory licensing was a big issue. The TV and radio stations wanted statutory licences, but they might not be the fairest arrangement. Authors, musicians, and writers said that their rights needed more protection. The concern is that if we don’t protect their rights and let others use their works without their consent then they will feel disrespected. Also, with statutory licences, the creators will have limited power to negotiate for compensation.
The second amendment removes this statutory licence, and doing so improves the position of writers and authors and it will improve the licensing scheme.
What developments in Chinese IP law will be the most important in the next few years?
In the next few years, three major IP acts: the Patent, Copyright, and Trade Mark Acts, will be revised. My primary concern with all three amendments involves the role of administrative agencies in enforcement matters. There is a push by some administrative agencies to give more power to the local agencies, and I am concerned that this might hurt the balance of power and the rule of law by giving them too much power. If the local agencies are given more power, there is greater concern for abuse, and that they will set up burdens and hurdles to businesses.
Instead of increasing the power of the local agencies, I think the courts should have more say in enforcement matters. If the administrative agencies are given more power, then there is some concern that the courts might become more like an administrative agency instead of acting as an independent judiciary.
Are there any changes that you would like to see in Chinese IP law?
Related to our earlier discussion, I think enforcement is a key concern.
After the global economic crisis, people question the economic and development models in developed countries. Because of this people say that the Chinese model of governance might be useful. The China model emphasises the size of government and authority.
"I am concerned whether giving administrative agencies more power to enforce is consistent with the rule of law"
One concern is that the government will be further involved in enforcing private rights, but the use of government power to enforce private rights might not be consistent with the idea of rule of law, because the rule of law is concerned with issues such as checks and balances.
Specifically, this issue arises with the use of administrative enforcement. I am concerned whether giving administrative agencies more power to enforce is consistent with the rule of law and can also comply with the need for due process. Instead, I think that the judiciary should take a bigger role in these enforcement actions, and let private parties use the courts to protect their own rights to ensure that due process requirements are satisfied.
What do you think China’s IP system will be like in 10 years?
I think it depends on a number of factors. One is the continual growth of private enterprises in China. Second is how the government views the rule of law and how they want to build up the rule of law in the country will have an effect on not just IP. Third, I think the international elements and China’s involvement in organisations like WIPO and the international economy will have a major effect on IP in China.
Overall, I am optimistic. As long as we continue to have an open policy toward these issues, we will have more development in the right direction.
We need to continue to encourage more private enterprise and entrepreneurs, because when we have these powerful players in the system, then we will have this legitimate need to protect their IP rights.