Intellectual Property in the Global Trading System

Transcription

1 Wei Shi Intellectual Property in the Global Trading System EU-China Perspective Springer

2 1 Introduction The Context within which this Book is Located Areas of Generic Tension Legal Transplants in a Multicultural World A Nexus of World Trade and Intellectual Property Location of Topic within this Context Focus on China Focus on Enforcement What is at Stake Objectives EU-China Interaction in Normative Integration The Creation of the Six-Step Approach Significance of this Book Research Methodology Research Strategy Research Sources Chapter Outline 21 2 The Justification for IPR Protection Intellectual Property and Economic Growth - An Economic Analysis An Outlook on Theory of Economics and Law IPR: Incentive for Innovation? IPR: Stimulator of Trade Flow? IPR: Engine of Technology Transfer? The Optimal Level of Protection IPR and WTO Agreement - A Legal Analysis The Legal Concepts of IPR The International Architecture of Protection The "Transplant" of TRIPs: A Comparative Law Perspective IPR and Development Policy - A Political Analysis Ideology of IPR Protection Development-related Aspects for IPR (DRIPs) Diplomacy in the IPR Protection Conclusion 65

3 X 3 China's Response to the Multilateral Context of TRIPs Tortuous Journey towards WTO Membership Implementation Law Reform Programme Emergence of the Intellectual Property Regime Legal Reform Evaluation Enforcement Shortcomings Cultural Perspective Institutional Perspective Economic Perspective Conclusion ; Cultural Perplexity in Intellectual Property: How to Undo the Gordian Knot Focusing Accurately on the Targeted Problems Confucius Confusion: Is Stealing a Book an Elegant Offence? New Cultural Perspective ' Insight into the Economic Spectrum Experience of Japan Analysis of Japan's IP Law and Policy Confucian Values and the Intellectual Creation Tolerant IPR Policy and the Economic Blooming Up Experience of Korea "Eastern Decorum" and Economic Miracle From "Breaking" to "Preaching": Role Shift in IPR Protection Preliminary Reflections China's Enforcement Problem: Clues to the Perennial Conundrum Fostering a Shift in China from Rule by Law to Rule of Law Facilitating the Conversion of China from an "IP Imitation" to an "IP Creation" Nation Promoting Transformation of China from Perceived Infringer to Unfortunate Victim Conclusion Economic Insufficiency as the Striking Point The Paradox of Cultural Determinism Transitional Dilemma: When Utilitarianism Meets IPR EU-China Interaction in Normative Integration Introduction Matrix of Concerns within Integrations EU Integration and its Impact upon China China's Integration and its Impact on the EU Same Hierarchy, Different Dimension IPR Enforcement Antitheses IPR Enforcement in the EU IPR Enforcement in China 172

4 XI Implications of EU Action Plan towards China Outstanding Issues towards Utilising Flexibilities Exhaustion of Rights: Article 6 of TRIPs and Parallel Imports Compulsory Licensing: Daylight Robbery or Timely Help? Fair Use of Copyright: Where is the Bottom Line? Conclusion Harmony or Coercion? EU-China Trade Relations and IPR Modalities of Trade Relations Theoretical Dimensions Overview of Trade Relations Pending Challenges Comparative Analysis: Sino-U.S. Negotiations America's Concerns China's Response Lessons to be Learned EU-China IPR Negotiations Characteristics of EU-China IPR Framework of EU-China IPR Roles of Non-Governmental Organisations Feasible Approaches: Negotiation Strategies Cultural Characteristics in Commercial Negotiations TPR: Settling Dispute with Gentleness DSB: Additional Form of Leverage Six-Step Strategy Step One: Leniency rather than Coercion Step Two: From "Tying Practice" to Undiscounted Policy Step Three: "Casting a Long Line to Catch a Big Fish" Instead of "Killing the Goose that Lays Golden Eggs" Step Four: From "Massive Offensive" to "Defeat in Detail": Establish the IP Special Regions and IP Special Industries Step Five: From "Pierre Cardin" to "Hisense": Promote the Role Conversion Step Six: From Freerider to Stakeholder: When Beijing Embraces the Olympics Conclusion US-China IPR Debate: A Cat-and-Mouse Game EU's "Six-Step Strategy" Prospective Trend: Smooth Sailing or Choppy Waves? Conclusion 283 Intellectual Property in World Trade: Justification and Harmonisation 283 Intellectual Property in World Trade: Development and Enforcement 284 Intellectual Property in World Trade: Integration and Cooperation 285

5 XII Appendix 287 Sample for Questions around which Interviews are Conducted 287 Sample for Questions in Semi-Structured Interviews 288 List of Charts 290 Selected Bibliography 295 Index : 315