FRONTIERS OF LAW IN CHINA

FRONTIERS OF LAW IN CHINA VOL. 10 DECEMBER 2015 NO. 4 DOI 10.3868/s050-004-015-0040-5 ARTICLE ON RESTRUCTURING THE CHINESE IPR REGIME FROM ETHNIC GROUP PROSPECT Ushur Mohammd * This article discusses the restructuring of the Chinese intellectual property rights (IPR) regime by addressing the dilemmas of the Chinese IPR regime, namely, enhanced IPR legislation versus weak enforcement, trade-related aspects of intellectual property rights plus (TRIPS+) arrangements versus lack of traditional knowledge (TK) protection, unified state agencies versus interests of other nationalities. This article also proposes that China should fully participate in the process of international IPR rule making, resist TRIPS+ moves in cooperation with other TK rich states, promote TK protection, and modify administrative structures to incorporate the interests of all nationalities in China by reforming the state agencies to guarantee proper minority representation, fulfill China s promise to the international conventions regarding minority representation, establishment of NGOs for diversity purposes, emphasis on TK protection, and promotion of setting up education programs. INTRODUCTION... 733 I.DILEMMA OF THE CHINESE IPR REGIME IN THE CONTEXT OF TK DEBATE... 735 A. The Enhanced Protection of IPR Legislation vs the Weak IPR Enforcement... 737 B. Trips+ Arrangements vs Lack of Protection for TK... 739 C. TK Protection under Unified State Agencies vs Interests of Other Nationalities... 741 II. POSSIBLE WAYS OUT FROM THE DILEMMAS OF THE CHINESE IPR REGIME... 744 A. Fully Participate in the Making of IPR Rules and Conventions... 744 B. Resist Trips+ Moves in Cooperation with Other TK Rich States and Promote TK Protection... 746 C. Modify Administrative Structure to Incorporate the Interests of All Ethnic Groups in China... 749 1. Reform the State Agencies to Include Proper Minority Representation... 749 2. Fulfill China s Promise to the International Conventions regarding Minorities and Open Door for Establishing NGO for Inter-Ethnic Dialogue... 750 3. Establish a Moderate IPR Regime Inclusive of TK Protection... 751 * Ushur Mohammd, Ph.D and Lecture, at Law School, Xinjiang Normal University, Urumqi 830054, China. Contact: elterish@hotmail.com

2015] ON RESTRUCTURING THE CHINESE IPR REGIME FROM ETHNIC GROUP PROSPECT 733 4. Set up Educational Programs to Promote the Capacity Building of Ethnic Groups... 752 CONCLUSION... 754 INTRODUCTION In the era of globalization characterized by the financial business capital domination, TK communities exploring ways out of the Modernization Dilemma, and the surge in numbers of the international legal regimes with more overlaps and conflicts, the present IPR regimes have come to the very crossroad of restructuring, according to FENG Xiang, who said, Intellectual property is demising. Or at least, that form of intellectual property rights (IPR) as taught at our law schools and propagated by powerful state machines has come to its end. 1 The restructuring of IPR regimes is stimulated by the declining copying costs powered by the breakthroughs in technology, strong IPR protection in TRIPS+, modernization dilemmas of the Traditional Knowledge (TK) communities, and surging TK protection demands. In this very crossroad leading to the future of IPR regimes, the institutional difficulties on TK protection are mainly the conflict between the Capitalist commodity production and the development of both the cultural diversity of ethnicities and human knowledge, and the prejudice of IPR regimes to TK, manifested as the lack of institutional representation for TK communities, and western financial business capital s hegemony on the protection discourse. In conventional IPR literature, IPR protections are based on the presumption that the exclusive rights they grant are incentives to innovation and creation, and that those protections will provide a just reward for the intellectual labors of the author or inventor. 2 In contrast, TK protections are related to the dire reality of North-South information and economic inequity, the marginalization of the TK communities in the process of globalization, the cry for the prevention of the appropriation of TK by those outside the TK communities. In the age of globalization, Intellectual superpowers, while promoting TRIPS+ protection standards to widen their stakes on IPR, have been denying protection for TK of the indigenous communities 3 by reasoning on the conventional IPR literature that TK fails to meet the criteria of IPR protection, due to the inability to identify a particular author/inventor to award rights to, lack of sufficient originality/inventive step, and other 1 FENG Xiang, The End of Intellectual Property, 2(1) International Critical Thought 99, 99 (2012). 2 David R. Hansen, Protection of Traditional Knowledge: Trade Barriers and the Public Comain, 58 Journal of the Copyright Society of the U.S.A. 757, 761 (2011). 3 At the 2009 WIPO regional Seminar on TK protections, the Indonesian representative Damos Dumoli Agusman made the point by claiming that if the knowledge assets of developed countries are internationally protected, why are the developing countries not, refer to an introduction to core concepts and objectives: What are the TK, GRS, and TCEs? Why should they receive legal protection?, (Dec. 16, 2009) (wipo/iptk/bkk/09/topic1/1), available at http://www.wipo.int/edocs/mdocs/tk/en/wipo_iptk_bkk_09/ wipo_iptk_bkk_09_topic1_1.pdf (last visited Nov. 13, 2015).

734 FRONTIERS OF LAW IN CHINA [Vol. 10: 732 technical requirements for IPR protection (e.g. the fixation requirement for copyright protection and utility requirement for patent protection) in the realm of TK protection. 4 In the meantime, indigenous communities, although scattered all over the globe with a variety of concerns on the protection of TK, have been trying to advance the course of protection either by offering justifications on the legitimization of TK as a valuable resource, meaning to preserve certain elements of the concerned culture, countermeasure to the ever widening gap between the North and South by calling for clearly delineating the nature of TK s unique attributes, locating the specific coverage voids that exist in traditional intellectual property law, and formulating sui generis laws designed to address those unique attributes and legal voids 5 similar to the sui generis laws adopted in many nation states to protect semiconductor chips or software. Until now, the arguments for and against TK protection from both parties are based on conventional IPR literature. Shubha Gosh has categorized basic positions into the traditional knowledge debate, as the public domain position, the appropriation position, and the moral rights position. 6 Public domain position approaches the creation of IPR in TK as a path leading to the destruction of traditional structures and institutions. Moral rights position extols the virtues of TK and the long history of creating and disseminating TK within traditional structures. Appropriation position advocates the beneficial uses of TK by market mechanism. 7 All of the three different approaches to the TK debate favor the intellectual superpowers and pays little attention to the indigenous representation. Therefore, in the course of restructuring IPR regimes, indigenous representation should be taken seriously to adjust the disproportionate favor to the intellectual superpowers, to promote the total well-being of both the strong and weak. The essence of the TK protection argument is the differences in understanding the value of the institutional efficiency and institutional justice of the legal system. Present IPR regimes are missing the necessary institutional justice values of the system by playing too much weight on the institutional efficiency values. In the theory of Law, TK should and can absolutely enjoy IPR protection. The intellectual property regime constitutes an essential aspect of the Chinese Reform. It was introduced into mainland China where private property rights and the rule of law were yet to be firmly established. The legislative efforts were in part led by the Sino-US trade negotiations as well as China s entry into the WTO. Regardless of the factors that played its parts in the formation and making of the Chinese IPR regime, it can be 4 Daniel Gervais, Traditional Knowledge & Intellectual Property: A TRIPs Compatible Approach, 2005 Michigan State Law Review 137, 141 (2005). 5 See http://www.wipo.int/documents/en/meetings/2002/igc/pdf/grtkf_ic_4_8.pdf (last visited Nov. 13, 2015). 6 Shubha Ghosh, Traditional Knowledge, Patents and the New Mercantilism, 85 Journal of the Patent and Trademark Office Society 885, 885 (2003). 7 See Ghosh, fn. 6.

2015] ON RESTRUCTURING THE CHINESE IPR REGIME FROM ETHNIC GROUP PROSPECT 735 characterized as enhanced protection model from the legislative prospect and weak protection model from the enforcement prospect, with a huge gap between the two. 8 Since the planting of IPR regime into Chinese law regime, China has been a good pupil of the intellectual superpowers, doing little for the harmonization of the planted system with the real conditions of China, and in particular, Chinese voice in the debate over TK protection has been very fragile, disproportionate to the volume of Chinese economy and Chinese TK. The IPR law system of the socialist China should abandon the prejudice against TK, recognize a specific group as the subject of property rights for a certain kind of TK, recognize and respect the political, economic, cultural, and social values of TK which is of more significance than the commercial development, institutionally incorporate reasonable representation, and realize the localization of IPR laws in China. China as a multi-national state, not only is a stake holder in the TK debate, taking side with the South with its huge reservoir of TK, but also has to incorporate the interests of nationalities in the course of restructuring its IPR regime. The constitution of the PRC and the ethnic policy with implications of the affirmative action, the principle of the socialist regional national autonomy and the unity and being in power of all nationalities in China, and even the fair and orderly market competition, necessitates the justice value that is new and different from the traditional IPR, an end to the international legal doctrines and prejudices that were based on the hegemony of the financial business capital and the west. Otherwise, not only the substantial realization of equal protection to the disadvantaged and minority TK communities, but also the constitutional principles and ethnic policy is impossible. I.DILEMMA OF THE CHINESE IPR REGIME IN THE CONTEXT OF TK DEBATE TK protection has been the efforts of the South to counter the dominance of IPR protection by the developed countries. Far from protecting TK, IPR regimes have facilitated appropriation of TK by individuals and groups that are external to the TK generating community resulting both in an inequitable situation in which the knowledge is used, including for commercial purposes, without attribution or compensation to the knowledge generating communities, 9 but with higher prices for the products and services to the indigenous communities who were the real creators of the TK. TK concerned scholars argue that WTO regime, in particular, the IPR regime is being used by the 8 By 2004, even then the legislation intensity reached the same level of Western democracies with an index of 3.857, the enforcement intensity was very low with an index of 0.657, representing one third of the legislation with failing enforcement. Refer to XU chunming, 知识产权制度与经济增长关系的实证研究 (An Empirical Study on the Relation between the IPR Regime and Economic Development), Intellectual Property Publishing House (Beijing), at 43 69 (2009). 9 J. Janewa OseiTutu, A Sui Deneris Regime for Traditional Knowledge: The Cultural Divide in Intellectual Property Law, 15 Marquette Intellectual Property Law Review 147, 150 (2011).

736 FRONTIERS OF LAW IN CHINA [Vol. 10: 732 intellectual superpowers for reverse piracy 10 in confrontation with the main impetus for the establishment of the WTO and of TRIPS. James Boyle described the big picture of International (in some respects national) landscape in IPR protection by noting that the author concept stands as a gate through which one must pass in order to acquire intellectual property rights. At the moment, this is a gate that tends disproportionately to favor the developed countries' contributions to science and culture. 11 Protection of TK has been a component of national laws and a recognized issue for decades. Scholars and policy makers regard TK protections as a way to provide important rights to TK generating indigenous groups, who have in many cases been left out as a result of the current international IPR systems. 12 Recently national laws granting TK protection have now been followed by regional initiatives and proposed international enforcement mechanisms, e.g. in October 2000, WIPO established the Intergovernmental Committee on Intellectual Property and Genetic Resources, TK and Folklore ( IGC ), with the goal of, among other things, elaborating on an international framework for TK protection, and the development of a system of community or collective rights to protect TK. 13 But, TK protection has won little recognition in the discussions of the WTO and TRIPS related discussions due to the opposition from the side of the US and EU, and the marginalization of WIPO on IPR landscape. Therefore, it is critical to address the concerns of indigenous communities in a dire situation in the age of globalization to the appropriation of their TK, the manipulation of their identity, the desire to sustain traditional ways of existence unaffected by the attempts of the intellectual superpowers, and the long-promised capacity building of the indigenous communities by the treaties of the IPR regimes. Although, TK protection has been a focus of debate on the international stage between the North and South, little attention has been directed for the protection of ethnic nationals TK in China. In the context of IPR regime transformation, and TK protection outcries, Chinese IPR regime should be formulated to the real conditions of China. The experiences, main concerns of minority nationals and their interests in the manipulation of their identity, culture, and TK should be incorporated into the dominant social narrative, which until recently has largely been defined and pictured by Han conceptions. Uyghur scholars in the field of Uyghur medicine regrets the present term of Chinese medicine (zhongyi), for Chinese medicine is a compound composing of all national medicines 10 Vandana Shiva, Stolen Harvest: The Hijacking of the Global Food Supply, South End Press, at 21 36 (2000). For an expression of a skeptical view, see Someshwar Singh, U.S. Not Sure What Is Bio-Piracy, available at http://www.twnside.org.sg/title/whats.html (last visited Nov. 13, 2015). 11 James Boyle & Shamans, Software and Spleens: Law and the Construction of the Information Society, Harvard University Press (Cambridge), at 125 (1996). 12 See Hansen, fn. 2. 13 WIPO, Matters Concerning Intellectual Property & Genetic Resources, Traditional knowldge & Folklore (Aug. 25, 2000) (7, WO/GA/26/6), available at http://www.wipo.int/edocs/mdocs/govbody/en/wo ga 26/wo ga 26 6.pdf (last visited Nov. 13, 2015).

2015] ON RESTRUCTURING THE CHINESE IPR REGIME FROM ETHNIC GROUP PROSPECT 737 including Han medicine. But, Han medicine improperly dominates the term which should be corrected. TK of nationalities in China is also splendid, of huge market potential and vital for the maintaining of the group identity and well-being. Because more than 85% of the world s poor rely on biological resources and its related TK as their basic source of livelihood, 14 ethnic nationalities in the frontier regions of China relies on TK and TK related resources in every aspect of daily life. Traditional medicine (TM) is the most reliable and cheapest means to secure medical treatment for nationalities in the rural countryside. In the course of history, indigenous communities, especially the minority nationalities developed environment friendly, cheap and easy reach knowledge of healing from the environment feeding them. For nationalities that have been more marginalized in the process of globalization, the continued availability of TM is of great concern and value. In spite of the economic successes in China, ethnic regions are more marginalized than ever, and TM is the only available means of healing for the villagers in the frontier regions. In a personal trip to Kashgar in July, 2013, to my great shock, even though Rural Cooperative Medical Care programs put in place, there are villagers who can t afford the personal costs of the program, in extreme instances these villagers even fail to buy the cheapest tablets for diarrhea, not to mention the availability of formal medical treatment in hospitals. In the last three decades, too much favor has been directed for the building of western style IPR system relying on the conventional IPR literature while neglecting the real needs of society, rich TK and TK related communities in China. Regarding the TK debate and ethno-national reality of China, addressing the dilemmas of Chinese IPR regime is vital for the success of Chinese reform which is going to be deepened in order to harmonize Chinese society. Here are the dilemmas that to be addressed: A. The Enhanced Protection of IPR Legislation vs the Weak IPR Enforcement As a country where private property rights and the rule of law yet to be firmly established, the conflict between enhanced IPR legislation and weak law enforcement is a couple of conflicts directing to the future of intellectual property regimes. The IPR legislation in China meets the standards set out in the TRIPS agreement and in some respects lives up to the requirements of the newly set up ACTA (Anti-Counterfeiting Trade Agreement). 15 It is important to make clear what kind of IPR protection fits China well. Intellectual superpowers and their agents in the academic argue that it is in China s 14 Seeding Solutions. Volume 1. Policy options for genetic resources. People, Plants, and Patents revisited. Issued by The Crucible II Group. Co-published by the International Development Research Centre, the International Plant Genetic Resources Institute, and the Dag Hammarskjöd Foundation, Litopixel, Rome, Italy, 121, (2000). 15 CUI Guobin, 反假冒贸易协议与中国知识产权法的比较研究 (A Comparative Study on the ACTA and Chinese IPR law), 8 电子知识产权 (Electronic Intellectual property), (2011).

738 FRONTIERS OF LAW IN CHINA [Vol. 10: 732 interest to promote strong IPR protection, China should try her best to set up strong IPR protection regime as the second largest economy. However, they neglected the fact that China has achieved great economic success when its IPR law enforcement is weak, and it is not only the experience of China, but also the experience of intellectual superpowers including the US in the process of economic power building. 16 The fact that the rule makers of the West still prefer doing business in China illustrates IPR protection is only a bargaining instrument of the global capitalism, what the global capitalism care most is the market manipulation, especially the manipulation of the making of information. 17 Although IPR infringement is our daily bread, the global capitalism are still making large sums of money which is impossible without the Chinese market with great potential and the Chinese consumer s great eagerness to the western style of life. 18 For example, Turkish TV Series welcomed the widespread infringement since the end of 2009 in Xinjiang to the degree that almost no Uyghur failed to watch infringed Turkish TV series. With the Turkish films being more and more popular by infringement, the Turkish way of dressing, and Turkish food flooded Xinjiang market, especially the upper end of Uyghur consumers which is a challenge for the new emerging industries owned by the indigenous Uyghur business owners. In other words, the film infringing activities made a free advertisement to the related Turkish industries in Xinjiang. The same rule can be applied to the practice of global capitalism in China and other emerging economies in the South. Furthermore, the developments promised by strong IPR protection and the incentives which IPR regimes provide for innovation is not countable with firm data either. Contrary to the conventional IPR literature, technological breakthroughs have little to do with IPR protection. Most of the breakthroughs come into being as a result of public founded projects. Without IPR protection, even the private sponsored projects would not fall short, for global capitalism is more concerned with market manipulation rather than IPR. Therefore, it is probably safe to say that the proposition connecting economic power building, technological transfer and strong IPR protection is a weak one. Putting it in the words of Prof. FENG Xiang, Contrary to the cliché criticism and wishful expectation Rather, the lower forms of IPR protection represent a strong and lively competitive market economy, and hence a high degree of maturity of the legal 16 Siva Vaidhyanathan, Copyrights and Copy Wrongs: The Rise of Intellectual Property and How It Threatens Creativity, New York University Press (New York), at 50 80 (2001); Shubha Ghosh, The Merits of Ownership; or, How I Learned to Stop Worrying and Love Intellectual Property, 15 Harvard Journal of Law and Technology 453, (2002). 17 As a result of the media fighting against the new potentials of digital technologies, a subculture of creativity is rising, which consists of artists, lawyers, and scholars who want to fight against the stifling nature of these increased copyright protections and continue to build an RW mainstream culture. The Free Culture movement, led by scholars such as Lessig, aims to build a bottom-up, participatory structure to society and culture, rather than a top-down, closed, proprietary structure. Available at http://wiki.freeculture.org/free Culture Manifesto (last visited Nov. 13, 2015). 18 See FENG, fn. 1.

2015] ON RESTRUCTURING THE CHINESE IPR REGIME FROM ETHNIC GROUP PROSPECT 739 system 19 B. Trips+ Arrangements vs Lack of Protection for TK As the Russian proverb states Expensive medicines are always good: if not for the patient, at least for the druggist. the intellectual superpowers are always in search for widening their edges through globalization. TRIPS and TRIPS+ arrangements have been the most debated mechanisms favoring the benefits of intellectual superpowers. While the intellectual superpowers push for TRIPS+ regimes, TK protection has failed to get its way into the framework of the TRIPS agreement due to both the strong resistance of US and EU, and the transfer of the IPR related decision making from the WIPO to the WTO since the implementation of TRIPS. WTO and WIPO are the most important platforms to discuss issues of IPR, their functions can be compared to those of the UN Security Council and UN general assembly. Until now, although TK protection has received favor in the discussions of the WIPO, and WIPO implemented fact find missions to find the intellectual property needs and expectations of indigenous communities resulting in a report (WIPO Report on Intellectual Property Needs and Expectations of Traditional Knowledge Holders), it is not clear what normative guidelines WIPO envisions in identifying the needs and expectations of TK holders and beneficiaries, 20 the resolutions of the WIPO is not binding on the member states just as the resolutions of the UN general assembly do. On this account, TRIPS and other treaties of the WTO should be given priority on the debate over TK protections. The recognition TK protection has received in the meetings of WIPO and other regional mechanisms, has little effects on the intellectual superpowers, while member states of the WTO have to follow the minimum rules set out in the TRIPS and decisions of the dispute settlement body of the WTO. WTO provided the intellectual superpowers to advance their stakes by the Iron teeth of the TRIPS regime. Although TRIPS provides a playing ground for the member states to shape the law to meet the political, social, economic and other policy goals, the degree of freedom given to member states is not remarkable and can take the new world order of trade and intellectual property in many directions, at least in theory, the directions are tightly controlled by the intellectual superpowers leaving little room for the states of the South after the implementation of TRIPS. Even if the developed countries, especially the US, Japan, and the EU dominated the drafting of the TRIPS agreement, and have been getting the most out of the agreement through the mechanism of the World Trade Organization (WTO) and various bilateral or multilateral mechanisms, but due to the greediness of the global capitalism, even in the face of large numbers of people suffering from the lack of medicine and food in 19 Id. 20 See Ghosh, fn. 6.

740 FRONTIERS OF LAW IN CHINA [Vol. 10: 732 developing and underdeveloped states, especially in sub-saharan Africa, these powers do not hesitate to push toward upgrading the requirements set out in the agreement by every means. For example, in 1998, after lobbying by the copyright industry, US Congress passed the Sonny Bono Copyright Term Extension Act (CTEA), which gave copyright owners another twenty years of protection. 21 The Anti-Counterfeiting Trade Agreement (ACTA) is another recent step taken by the developed countries towards TRIPS+ mechanisms that excluded the states of the South from the process of drafting. As a result of the exclusion from the making of the ACTA, the agreement affects the States of the South, including China, after its implementation. They will have to deal with the pressures to comply with the ACTA rules or other similar rules. 22 Whether it is the CTEA or the ACTA or other moves advanced by the intellectual superpowers, they can always provide seemingly sound reasons for the moves. However, regarding the protection of TK, current theories of property acquisition grounded on the dominant, liberal individualist view of the property law, whether economic or non-economic, fail to take into account the prospect of group-oriented claims of custody and control that are so critical to the protection of indigenous cultural property. 23 The same principles and reasoning applicable to the benefit of the intellectual superpowers should not be applied in the same way. For example, while wine and spirits of France granted perpetual protection by geographical indications regime, the same protection is denied from the TK communities for their TK. As professor Shubha Ghosh pointed out, the creation of an appropriate system for the protection of TK should be guided by the goal of empowering traditionally subordinated groups. Empowerment involves structuring rights over TK that address the balance between ownership and control. 24 Although this normative goal is consistent with Article 8(1) of the TRIPS allowing to adopt measures necessary to promote the public interest in sectors of vital importance to their socio-economic development. In contrast to the TRIPS + arrangements by the intellectual superpowers, however, WIPO in cooperation with stake-holding states, NGO, and indigenous communities have worked a lot to come up with a workable scheme on TK protection, little has been achieved yet due to its marginalization after the adoption of TRIPS. The WTO as the most influential trade organization TRIPS at its core has been controlled by the intellectual superpowers and TK communities has won little voice in its related discussions. China, the second largest economy and one of the fastest growing economies, has not yet vocally supported the TK communities so far, an abnormal situation to occur in power politics and in sharp contrast to the pioneering role that India has played in the TK debate. As the second largest economy and a country with huge TK and TK-related resources, 21 Neil Weinstock Netanel, Copyright s Paradox, Oxford University Press (New York), at 57 (2008). 22 See CUI, fn. 15. 23 Id. 24 See Ghosh, fn. 6.

2015] ON RESTRUCTURING THE CHINESE IPR REGIME FROM ETHNIC GROUP PROSPECT 741 the inaction on the part of China to the protection of TK reflects the lack of democratic discourse in the course of Chinese legislation and making significant decisions in Chinese politics. In the context of restructuring Chinese IPR regime, China has to develop its own stand on the questions of IPR in accordance to the overall interest of all nationalities by democratic procedure. C. TK Protection under Unified State Agencies vs Interests of Other Nationalities All the debates have been done on TK protection to the present day are concerned with state representation for the TK generating indigenous communities, ignoring the lack of representation of ethnic nationals not only in the states of the North, but also the states of the South. In other words, group interests of ethnic nationalities were not awarded enough recognition both on the debates on international TK protection, and in the framework of domestic IPR protection. China is a multi-national state that harbors 56 ethnic groups differentiated under the Stalinist nationality theory. 25 Due to historical and political reasons, there are quite misconceptions and prejudices between the majority Han Chinese and other ethnic groups. Although before the debut of reform poorness and relative justice were the main theme of Chinese society, it began to change with the deepening of reform. Economic capacity building has become the center of the Chinese policy with little attention to the capacity building of the minority ethnic groups. Minority ethnic groups were provided inadequate education 26 and consequently far less job opportunities. 27 After three decades of reform, even though China has risen as the second largest economy, but ethnic frontier regions, especially the ethnic groups in those regions won little share from the fruits of reform. Making the ever worsening situations more undesirable is the recent trend that most companies, especially those big state-owned enterprises and some private giants began to move into the previously minority regions 25 There are some difference between China and democratic West regarding ethnicity and nationality due to the practice of Stalinist nationality ideology in China, the term used in china to minority groups is not ethnic group but nationality. 26 China claims it pays special treatment for minorities in China, but many real time figures dispute these claims, e.g. the most prestigious universities in China totally refuses the enrolment of Uyghur students who have finished high school in Uyghur language schools, and even those students who come out from bilingual schools have been denied admission opportunities to these universities, all the admission opportunities for Tsinghua for the last ten years have been granted to Han schools in Xinjiang Uyghur Autonomous Region with Zero admission opportunities to Uyghur and Kazak language schools. The number of Han students taking college entrance examinations every year in Xinjiang where the Han makes only 38% of the total population outnumbers Uyghur, Kazak, Kirgiz and Mongol students by three times. 27 For detailed information on job opportunities look for on the official notices about the Civil Service Personnel exams and Special teaching post recruiting exams in Xinjiang which were the only left options for minority graduates to get an official job opportunity, while most Han students gets their job positions even six-to nine months before graduation and with more recruiting opportunities on the CSP or STP exams than their minority counterparts.

742 FRONTIERS OF LAW IN CHINA [Vol. 10: 732 with the aim of appropriating their TK and TK-related resources. For instance, Wuhan Renfu in cooperation with the Xinjiang Uyghur Medical Hospital in Urumqi set up the Xinjiang Uyghur Medicine Ltd in March, 2001, with ten herbicide formula and 19 ready formula 28 and registered capital of RMB35 million, received financial and policy support from the local government and have been making excessive profits but very little contribution to the local labor market and R&D of the Uyghur medicine. The participation of Renfu and other Chinese magnates to the appropriation and marketing of Uyghur medicine caused the soaring price of Uyghur medicines and have been enjoying market domination in prescriptions of Uyghur medical hospitals by administrative means in Xinjiang, while ordinary Uyghurs have to look for cheaper medicines from Pakistan and India or for tablets with various unknown effects or mimic drugs or medicinal material from self-educated pharmaceutics. The concentration of Uyghur drug stores, mostly filled with unregistered Uyghur medicines from different parts of Xinjiang just a street away from the Xinjiang General Hospital may demonstrate the alienation of formal Uyghur medicine from the daily medicine consumption of ordinary Uyghurs, 29 giving way for the unreliable medicine practitioners. Just as the Indian scientists in the US applied for US patent on TK of Indigenous communities in India, these so-called minority representatives have been making full use of their positions, and lack of knowledge on the part of Chinese state IPR agencies on traditional TK of ethnic groups, which is an inevitable result of ethnic representation in the state agencies, such as the head of Uyghur medicine research institute owns twenty six patents on Uyghur medicine, while his institution owns only two. 30 Although China is a multi-ethnic state with splendid cultural wealth and heritage, 31 the IPR regime of China is organized mainly around the Han discourse, 32 e.g. Sart has been a derogative nickname for Uyghur, but got trade mark registration. 33 There are also trademarks that totally identical in Uyghur (may be the case for other ethnic groups in 28 These formulas are the common formula of the Uyghur community for thousands of year and some of the formula are common to Uyghur, Indian and Urdu medicine such as Dawayi mixki, there are many grievances towards the company among Uyghur medical practitioners and the Uyghur public as well. Many Uyghur interviewed claim the former head of the Uyghur medical hospital sold out the most precious formulas to the outside company for his own personal benefit. 29 There are at least 12 Uyghur medicine drug stores in the neighborhood of the Xinjiang General hospital (also called as Hospital NO. 2), and there are five to six street vendors selling mimicked Uyghur medicines or selling medicinal raw materials for self-preparation of drugs. 30 See State Patent Office for patent search, available at http://211.157.104.87:8080/sipo/zljs/ hyjs-jieguo.jsp (last visited Nov. 13, 2015). 31 There are more than 180 kind Nan (Uyghur Bread), not to mention other cultural heritages of Uyghur people and other minority nationalities in China. 32 For example what is illegible for trademark registration in Chinese can be registered in Uyghur, for there are no representatives of Uyghurs in related national IPR agencies. 33 Refer to Registration No: 5645101 http://sbcx.saic.gov.cn/trade/servlet?search=ti_reg&reg NO=5645101& IntCls=9&iYeCode=0 (last visited Nov. 13, 2015).

2015] ON RESTRUCTURING THE CHINESE IPR REGIME FROM ETHNIC GROUP PROSPECT 743 China), but slightly differs in Chinese writing got registration even in the same category. 34 Taking all ethnic and power structure of China into account, the differentiating interests there exists cannot be neglected in the era of globalization. The failure in the dealing of TK related disputes may cause remarkable disturbances and even tragedies at any moment. 35 For example, the different fate of WANG Loubin s undertakings on Uyghur and Kazak Folk songs being handled as a political issue that cannot be discussed, needless to say handing through the justice system as did in the case of the Hezhi folk song the Boat Song of Wusuli River. Although WANG Luobin contributed to inter-ethnic cultural exchange, an act that should be appreciated by documenting (translation is being done by others) and slightly modifying Uyghur and Kazak folk (modified only one song) songs into Chinese, caused discontent among Chinese and Uyghur intellectual 36 by claiming authorship for the Traditional songs sung by Uyghurs or Kazaks for hundreds of years. 37 Even the decedents of WANG Luobin sued the Xinhua Bookstore Jiuzhang, in Jiangxi province for selling a book containing the so called copyrighted works of WANG Luobin for false paternity and the publisher Jindun Publishing house as a joint defendant. 38 In contrast to the favor that WANG Luobin has received in Xinjiang, the artists in the case of Boat song of the Wusuli River did not have a happy ending by the decisions of the Beijing second intermediate People s court and higher Peoples court of Beijing placing liability on artist Gousong and CCTV for claiming authorship and inappropriate introduction of the concerned work. 39 While court decisions on the Boat Song of the Wusuli River are 34 Uyghur 12 Mukam has got official recognition for protection as non- material cultural heritage of humanity, it represents the glory of Uyghur art (songs and music), but mukam related trademarks are very common, even at the same category. Refer to trade mark registration No. 5155816(41) MUKAM, NO. 1382992(41) 木卡姆 MUKAM; NO. 6293831(31) 模卡木 MUKAM. See State Patent Office, http://211.157.104.87:8080/sipo/zljs/hyjs-jieguo.jsp. (last visited Nov. 13, 2015). 35 The unrests just before and after the Beijing Olympics in Tibet and Xinjiang Uyghur Autonomous Region may manifest the delicacy of the handling of the interests of different groups in China. 36 Refer to 中国音乐 (Chinese music) Issue 2, 1994 in which four articles regarding the WANG Luobin dispute has been published. These are Xiaoming, 实事求是 我们的准则 (Seeking Truth from Facts Is Our Principle); XIAO Renwu, 人民 只有人民才是民歌之父 (People and Only People Are the Father of Folk Songs); MENG You, 民歌的 著作权 读 王洛宾作品自选集 想到的 (Copyright of the Folk Songs A Few Thoughts on the Collections of WANG Luobin); LU Cheng, 在那遥远的地方 是怎样产生的 (How Was the Song That Farway Place Made?). 37 Renowened Uyghur singger Keram Abdigul claims that those songs are the songs sung by my grand fathers grandfather, not of WANG Luobin, please refer to CHEN Gang, 最有力的辩词 谈王洛宾和民歌著作权 (The Most Powerful Argument: On the WANG Luobin and Folk Songs Copyright), 1 人民音乐 (People s Music), (1995). 38 QI Jian, 王洛宾之子起诉书店和出版社侵犯著作权 (Son of WANG Luobin Sued Bookstore and the Publisher for Copyright Infringement), China Intellectual Property Daily, Mar. 2, 2007. 39 For the details of the Boat Song of Wusuli River, refer to Beijing Second Intermediate People s Court (2001) No. 223 civil decision and Beijing Higher People s Court (2003) final decision NO. 246.

744 FRONTIERS OF LAW IN CHINA [Vol. 10: 732 welcomed by groups concerned for the protection of nationality heritages in China, worked for the building of the authority of law and set up an ideal model in dealing with nationality related disputes in a multi-national state, the high favor for WANG Luobin by the state agencies resulted in the long lasting contention of the neutrality of government agencies and harmed the government s representation claims for the benefits of all ethnic groups in China. Only if the government had refrained from interfering the dispute and look for the settlement of the dispute through judicial institutions, separating the contributions of WANG Luobin from his cheeky claims for authorship, it would have worked for the benefit of government and all related parties concerned. In a multi-ethnic state such as China, the dominant narrative of discourse does not necessarily reflect the reality of the TK protections, for it means differently for the minority ethnic groups than to the dominate group. For instance, in the case of WANG Luobin, most publications take his contributions as very important for the development, and even to the preservation of the folk songs; eventually, he appeared as a hero a model for opening up the virgin 40 soils of the frontier regions of China where ethnic nationals prospered and created unique forms of art. For the ethnic minorities, the concepts of development and preservation in the dominate discourse cannot be established, for the songs have been here disseminating and improving among the community as large as the size of a medium sized state in Europe in population, and there is no any danger of disappearance in sight which makes WANG s work insignificant. In addition, even to the introduction of ethnic folk songs into Han community, respect to the original form of expression which is also the point of regret among ethnic intellectuals should be in place. 41 II. POSSIBLE WAYS OUT FROM THE DILEMMAS OF THE CHINESE IPR REGIME After being a good pupil of the intellectual superpowers over thirty years, it is time for China to design an inclusive IPR regime that most fits its conditions and reflects the diversity of interests inside the state. To this end, the following suggestions are intended to provide possible ways out from the dilemmas of the Chinese IPR regime at the crossroad of transformation: A. Fully Participate in the Making of IPR Rules and Conventions At the crossroad of IPR transformation, China is part of the new Empire Michael Hardt stipulated. The new Empire is a community that the creation, manipulation and distribution of information define essential economic, political and cultural aspects of a society 42. The emerging Empire is a great challenge for the South in particular, and more 40 LIANG Maochun, 王洛宾的西部民歌的历史定位问题 (On the Historical Positions of WANG Luobin s Chinese West Folk Songs), 4 福建艺术 (Fujian Arts), (2005). 41 Id. 42 See FENG, fn. 1.

2015] ON RESTRUCTURING THE CHINESE IPR REGIME FROM ETHNIC GROUP PROSPECT 745 a precious chance to formulate the working rules of the Empire. The exclusion of China from the drafting of ACTA is a constant reminder that China cannot afford to fall behind again in participating rule making. Joseph Needham Puzzle reminds that authorities in China should be attentive for the trends in international politics as well as in international law-making. Even though, over the last thirty years Chinese economy has grown much to influence every entity on the globe, but alarmingly with little Chinese voice on IPR-related seminars and discussions on different platforms. Only if China provides full support for the initiatives by outspoken advocates of TK protection as India and Brazil do, the protection of TK would have met its spring. Therefore, China cannot remain silent any more during the IPR rule-making process, especially it is in China s best interest to speak up for the protection of TK. Looking back on the IPR regimes of the intellectual superpowers, they were pirates too in the present terminology they easily attach to China and other developing states when it comes to the IPR protection. For example, what did the US do with regard to the copyright protection before the 80 s of the last century? Did the US protect the copyright of the European authors and publishers as they are asking us to do? Has the US been protecting the TK of foreign countries as they are doing American TK in the process of patent applications? What is the attitude of the US to the convention on Genetic resources and biological diversity compared to their support for patents on life forms? From the answers to these questions, it is not difficult to refer that the intellectual superpowers is not as law observing as they claim. What is true is the reality that they make rules and judge depending on their interests and their internal politics, market manipulation is their eternal goal in promoting strong IPR protection. Then what is left for China is to thoroughly revalue its IPR regime to its state interests and conditions of the Chinese society. It does not mean that we should lower the standards of IPR protection in China, but the main point to make is that China has already done too much on legislation, further legislation depending on the conventional IPR literature and to cope with the criticisms on the Chinese law enforcement is contrary to the Chinese interest. The inefficient law enforcement in China, partly due to the present relative poorness of the Chinese public, excessive western monopoly on modern intellectual works and more and more invading trend of the western life style into China, and partly to the absence of private property since the forming of the communist regime in China. When looking for ways to come out from the dilemmas of enhanced protection of IPR legislation and inefficient law enforcement, we should counter it with the excessive monopoly by the western intellectual superpowers. Whenever the pair conflict between mass infringement and excessive monopoly addressed properly, Chinese are more law observing than their western counterparts. For example, following the breakthroughs in mobile communication, as Android became the dominant mobile system and as mobile

746 FRONTIERS OF LAW IN CHINA [Vol. 10: 732 communication overplayed PC based communication, Microsoft and other expensive software giants began to adapt new marketing strategies by providing cheap versions of windows and office to the South, trying to make the office series compatible with operating systems as android and IOS of Apple. In other words, more competition and enhanced purchasing power of the relatively poor countries may serve to reconcile the conflicts between strong IPR protection and weak law enforcement. Therefore, there should be reasonable balance between the investment of the right holders and the profit they are allowed to make in the new empire. Especially, without IPR protection in developing countries, intellectual superpowers can strike the balance merely in their state, their claim for the strict protection of IPR in other countries for the sake of more investment, encouraging innovative endeavor and technological transfer could not be established on firm data. To be more specific, the development of Chinese economy in the last three decades could not be attributed for the plantation of the IPR regime into China, on the contrary, the fast-growing sectors of Chinese economy are only the sectors where conventional IPR literature is on decay. For instance, internet-related sectors not only bring threat in the West where innovation is encouraged, but also threating every institutions of Chinese society in spite of the fact that free innovation is not of favor in China, where Chinese government plays strict grip to control the dissemination of information. The failure of government sponsored search engine jike.com which ranked 17th in the Alexa ranking 2013, 43 which got nearly RMB2 billion 44 from the state in a period of three years ended up doors closed in October 2013. At the same time those private IT companies such as Baidu, 360, Soguo, and Soso which have been defending firms from the accusations of different IPR holders for infringement, managed to dominate the Chinese search market even under the toughest regulations of internet in china. The compelling driving force for these private companies is to have some share from the boosting developments in an age of disruptive innovation accompanied by the desire of Chinese people for better living standards that could not be stopped. 45 B. Resist Trips+ Moves in Cooperation with Other TK Rich States and Promote TK Protection Looking back at the course of debate on TK, Intellectual superpowers do not care about the well-being of communities marginalized before and after the implementation of the TRIPS agreement, what do they care about is making excessive profits and finalizing their edge on knowledge over other communities as long as possible. The present 43 See http://top.chinaz.com/list.aspx?p=2&t=254&fn=alexa, for more information on the search engine ranking in china (last visited Nov. 31, 2015). 44 See http://tech.ifeng.com/internet/detail_2013_05/27/25744101_0.shtml (last visited Nov. 13, 2015). 45 HU Xijin, 世界是谁? 中国是谁? 我们是谁? (What Are the World? Who Are China? Who Are We?), a lecture presented in Tsinghua University, on Nov. 7, 2013.

2015] ON RESTRUCTURING THE CHINESE IPR REGIME FROM ETHNIC GROUP PROSPECT 747 international IPR regime which was based over the TRIPS agreement awards excessive favor to the intellectual superpowers who dominated the process of drafting of the TRIPS. Therefore, the future IPR regime, which is going to be formulated, should be one of inclusive nature reflecting the interests of different communities, drafted under the full participation of different interest groups, especially those whose interest are at stake on the base of full knowledge on what is going to be drafted and what effects would occur after its implementation. Although states and communities in developing countries regretted just after the implementation of the TRIPS that they have made too much confessions to the intellectual superpowers on the belief that they can obtain technological transfer and trade opportunities claimed to be denied by the intellectual superpowers without these confessions in access to the WTO. It is out of reach to the states concerned to pull out from the TRIPS to build another inclusive regime that could be referred from the ever growing influence of TRIPS and the marginalization of WIPO since the end of the last century. It is desirable at the crossroad of IPR transformation to resist any essential TRIPS+ movements advocated by intellectual superpowers by counter arguing them on the protection of TK on the one hand, and following the trends of more liberalization by the breakthroughs in technology, especially due to the lowering cost of reproduction to almost zero. When concerned with the Chinese IPR regime, even though Chinese economy witnessed the greatest leap in three decades, China is still far from being an intellectual superpower, which is mainly due to the very fact that China made knowledge is far behind the material development it achieved on the one hand, and the falseness of the promises of the intellectual superpowers when advocating strong IPR protection to the south on the other. It is certain that the developments and technological transfer that occurred during the last three decades of Chinese reform is not because of the formation of the Chinese IPR regime; however, because of the huge market potential China could provide for the intellectual superpowers who are more concerned on the market manipulation than anything else when making decisions whether to enter a foreign market. If they were really concerned with the implementation of strong IPR regime, countries with strong IPR protection mechanism but small market value would have received large amounts of foreign investment and technological transfers. But up till now, it is not the case anyway. For example, since the disintegration of the former Soviet Union, the former soviet states in Central Asia went through different forms of nation building, As Kirgizstan is a WTO member since December 20, 1998, and Tajikistan since March 2, 2013 46, the only two but the most poor states in Central Asia, although adopted free market mechanism and strong IPR protection laws in accord with the WTO rules, per capita GDP of these states have not seen any remarkable growth since independence, while more authoritarian and Non WTO member states as Kazakhstan and Turkmenistan, 46 See http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited Nov. 13, 2015).