Hostname: page-component-78c5997874-lj6df Total loading time: 0 Render date: 2024-11-05T09:25:00.714Z Has data issue: false hasContentIssue false
  • English
  • Français

The Concept of Intellectual Property in the People's Republic of China: Inventors and Inventions

Published online by Cambridge University Press:  17 February 2009

Barden N. Gale
Get access Rights & Permissions [Opens in a new window]

Extract

This article will examine the constitution and evolution of the concept of “intellectual property” in the People's Republic of China through an analysis of policy regarding incentives for inventive activity – which in western legal systems would be generally covered by patent law. Hopefully, such an analysis will not only enable us to understand incentives for inventive activity in China, but also to understand crucial property concepts in China, especially “private” or “individual” ownership, during its “socialist transformation.” This, in turn, may shed additional light on the debate on the nature and future disposition of “bourgeois rights.”

Type
Research Article
Information
The China Quarterly , Volume 74 , June 1978 , pp. 334 - 355
Copyright
Copyright © The China Quarterly 1978

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

* The author wishes to acknowledge the extensive counsel and support of Professor R. Randle Edwards and Mr A. R. Dicks in the preparation of this article.

1. See discussion infra at notes 48–51.Google Scholar

2. This paper will focus on inventions (and inventors) as opposed to innovations (and innovators) because it is this type of activity and this type of person which most commonly fall under patent protection in the west and thus within the scope of intellectual property. The Chinese, on the other hand, in the absence of general sanctions on private property, have tended to use technical innovations synonymously with inventions.Google Scholar

3. See generally Hazard, John N., Communists and Their Law (Chicago: Chicago University Press, 1969), pp. 243–68 for a comparative discussion of the concept of intellectual property among the socialist states.Google Scholar

4. Ibid. p. 244 “Regulations on Awards for Inventions” (as adopted on 23 October 1963 at the 136th meeting of the plenary session of the State Council), Jen-min jih-pao (Jen-min), 2 December 1963, in Survey of China Mainland Press (SCMP), No. 3117, 11 December 1963, pp. 6–10.Google Scholar

5. The Chinese Constitution (1954), Article 10.Google Scholar

6. The two other groups are capitalist industrial managers and overseas Chinese investors in China.Google Scholar

7. For a discussion of “model contracts” which may have been used by the Chinese in 1957 to provide for payments to authors, see Tao-tai, Hsia. and Haun, Kathryn A., “Laws of the People's Republic of China on industrial and intellectual property,” Law and Contemporary Problems (Summer–Autumn 1973), p. 274 and pp. 288–90Google Scholar (This article is substantially the same as that appearing in Law and Policy in International Business, Vol. V, No. 737 (1973) written by the same authors). For a general discussion of trademarks in China see idem. pp. 284–88; Randt, Clark. Jr, “Trademark law in the PRC: case fables with morals for western traders,” U.S. China Business Review, Vol. 23, No. 3 (May–June 1975); andGoogle ScholarButler, J. I., “Trademarks in the PRC,” Trademark Reporter, Vol. 65, No. 89 (March–April 1975).Google Scholar

8. See Haun, Hsia., “Laws of the People's Republic of China,” pp. 284–88.Google Scholar

9. World Intellectual Property Organization, General Information (Geneva: World Intellectual Property Organization, n.d.), p. 5.Google Scholar

10. Ibid.

11. Ibid. pp. 5–6.

12. Ibid. p. 6.

13. “Regulations on Awards for Inventions,” Article 2.Google Scholar

14. “Provisional Regulations Governing Inventions and Patent Rights” (as passed by the Government Administration Council on 11 August 1950 at its 45th administrative meeting) in Chung-hua jen-min kung-ho-kuo fa-ling hui-pien (Collected Laws and Decrees of the People's Republic of China), Vol. 1, pp. 359–62.Google Scholar

15. “Government Administration Council Regulations Governing Awards for Production Related Inventions” (as passed by the Government Administration Council on 11 August 1950 at its 45th administrative meeting) in Chung-hua jen-min kung-ho-kuo fa-ling hui-pien (Collected Laws and Decrees of the People's Republic of China), Vol. 1, pp. 357–58.Google Scholar

16. “Provisional Regulations on Awards for Inventions, Technical Improvements and Rationalization Proposals Concerning Production” (as approved on 6 May 1954 by the Government Administration Council of the Central People's Government at its 215th administrative meeting), in Blaustein, Albert P., Fundamental Legal Documents of Communist China (South Hackensack, N.J.: Fred B. Rothman, 1962), pp. 523–33.Google Scholar

17. Although we cannot be absolutely sure that there was no previous official schedule of remuneration, we might conclude that by 1954, with the increasing socialization of industry in China, inventive activity had sufficiently come under the control of the state to warrant one.Google Scholar

18. “Regulations on Awards for Inventions,” pp. 6–10. “Regulations on Awards for Technical Improvements” (as adopted on 23 October 1963 at the 136th meeting of the plenary session of the State Council), Jen-min, 2 December 1963 in SCMP No. 3117, 11 December 1963, pp. 10–14.Google Scholar

19. Compare “Regulations on Awards for Inventions,” Article 16 with “Provisional Regulations on Awards for Inventions, Technical Improvements and Rationalization Proposals Concerning Production,” Article 7.Google Scholar

20. Ulf, Andefelt, International Patent Legislation and Developing Countries (The Hague: Martinus Mijhoff, 1971), p. 18.Google Scholar

21. Ibid. p. 22.

22. Penrose, Edith, The Economics of the International Patent System (Baltimore: Johns Hopkins Press, 1951).Google Scholar

23. See Anderfelt., , International Patent Legislation and Developing Countries, and Ayyangar, N. Rajagopala., Report on the Revision of the Patents Law (of India), n.p., 1959.Google Scholar

24. , Anderfelt, International Patent Legislation and Developing Countries, p. 57.Google Scholar

25. Ibid. p. 219.

26. Anderson, Wroe, Tepestra, Vern and Shapiro, Stanley (eds), Patents and Progress (Homewood, Illinois: Richard D. Irwin, 1965), p. xi.Google Scholar

27. Anderfelt, , International Patent Legislation and Developing Countries, p. 63.Google Scholar

28. Ibid. One objection to this alternative is the arbitrariness inherent in the registration and awards procedure.

29. Ibid. See also, Frost, George E., “Patent rights and the stimulation of technical change,” in Anderson, et al. (eds), Patents and Progress, p. 61.Google Scholar

30. Frost, , “Patent rights and the stimulation of technical change,” pp. 62–64.Google Scholar

31. See supra, note 3.Google Scholar

32. Marx, K., Early Writings (Bottomore, T. transl. & ed., 1963), p. 157.Google Scholar

33. Hazard, , Communists and Their Law, p. 254.Google Scholar

34. Editorial, “Encourage inventions and technical improvements by rewards in order to promote development of our production and construction,” Jen-min, 2 December 1963 in SCMP, No. 3117, 11 December 1963, p. 15.Google Scholar

35. Ibid.

36. “Regulations on Awards For Inventions,” Article 23.Google Scholar

37. K'o-ch'un, Liao, “The doctrine of ‘knowledge belongs to the individual and achievement belongs to the public’ must be repudiated,” Jen-min, 19 March 1971 in SCMP, No. 4870, 1 April 1971, pp. 165–66.Google Scholar

38. Orleans, Leo A., “Research and development in Communist China: mood, management and measurement,” in An Economic Profile of Mainland China, Joint Economic Committee of the U.S. Congress, 1967 (New York: Frederick A. Praeger, 1968), p. 563.Google Scholar

39. “Launch scientific research work to stimulate the development of mining production,” Jen-min, 15 March 1973 in SCMP, No. 5342, 27 March 1973, p. 54.Google Scholar

40. Donnithorne, Audrey, China's Economic System (London: George Allen and Unwin, 1967), p. 408; “Science industry cooperation helps Peking facilities,” New China News Agency (NCNA), 2 April 1965.Google Scholar

41. “Refuting the theory that technology is something mysterious,” Jen-min, 8 December 1970, in SCMP, No. 4804 (1970), p. 35;Google Scholar“Mass technological innovations movement sweeps China,” NCNA, 26 August 1973, in SCMP, No. 73–36 (1973), p. 161;Google Scholar“Vigorous drive for technical innovations in Peking,” NCNA, 23 July 1974, in Survey of People's Republic of China Press (SPRCP), No. 74–31 (1974), p. 183;Google Scholar“Technical innovations in Peking commercial enterprises,” NCNA, 19 January 1976, p. 12;Google Scholar“Mass scientific experimentation in Chinese countryside,” NCNA, 13 February 1976, p. 5;Google Scholar“Socialist China develops science and technology through mass movement,” NCNA, 20 April 1976, p. 18.Google Scholar

42. Stephen Andors, “Revolution and modernization,” in Friedman, Edward and Selden, Mark (eds), America's Asia: Dissenting Essays on Asian–American Relations (New York: Vintage Books, 1969), p. 408.Google Scholar

43. “Refuting the theory that technology is something mysterious,” Jen-min, 8 December 1970 in SCMP, No. 4804, 22 December 1970, pp. 35–40.Google Scholar

44. “Cracks northeast China innovator and worker-engineer,” NCNA, 14 January 1973, p. 1.Google Scholar

45. For a survey of the types of material incentives that have existed in China see Charles Hoffman, Work Incentives, Practices and Policy in the People's Republic of China, 1953–1965 (Albany: State University of New York Press, 1967), andGoogle ScholarRiskin, Carl, “Worker's incentives in Chinese industry,” in China: A Reassessment of the Economy (Washington: Government Printing Office, 1975).Google Scholar

46. Hsia and Haun, “Laws of the People's Republic of China,” p. 282.Google Scholar

47. Chinese Constitution (1975), Article IX.Google Scholar

48. See e.g. Ch'un-ch'iao, Chang, “On exercising the all-round dictatorship over the bourgeoisie,” Peking Review, 4 April 1975, p. 5, and Yen, Chi, “Ideological weapon for restricting bourgeois right,” Peking Review, 30 May 1975, p. 7.Google Scholar

49. “Bourgeois rights and capitalist roaders,” Kung-min jih-pao (Worker's Daily), 24 March 1976, transl. SPRCP, No. 76–23 (1976), p. 61 at p. 63.Google Scholar

50. Ibid.

51. It should be noted that the recent criticism of private ownership of knowledge and its attendant system of material incentives was part of an even larger controversy over how the entire field of scientific research is to be governed. A campaign was recently being waged against the elitist nature of such research, instead, counselling an “open door” policy of integration of the experts with the masses. The direct criticisms of researchers was that they were seeking “personal fame and gain,” reminiscent of the early 1970s. See: “Great mass debate in Chinese scientific technological field,” NCNA, 4 April 1976, p. 6at p. 8; “Link up the station with factories, conduct open door research,” Jen-min, 4 December 1975, in SPRCP, No. 76–3 (1976), p. 157. The recent reemphasis on scientific research has quelled such criticism, however. See infra, note 81.Google Scholar

52. Hazard, Communists and Their Law, p. 199.Google Scholar

53. See Chinese Constitution (1975), Articles V and IX.Google Scholar

54. Ibid.

55. Hazard, Communists and Their Laws, p. 251.Google Scholar

56. “Regulations on Awards for Inventions,” Article 10.Google Scholar

57. See supra, note 45; Andors, “Revolution and modernization;” and Donnithorne, China's Economic System, p. 212.Google Scholar

58. “Provisional Regulations Governing Inventions and Patent Rights,” Article 1.Google Scholar

59. “Government Administration Council Regulations Governing Awards for Production Related Inventions,” preamble, p. 357.Google Scholar

60. “Provisional Regulations Governing Inventions and Patent Rights,” Articles 4 and 6. For a more comprehensive analysis of the 1950 law, see Hsia and Haun, “Laws of the People's Republic of China,” pp. 278–80.Google Scholar

61. “Provisional Regulations Governing Inventions and Patent Rights,” Article 9.Google Scholar

62. “Provisional Regulations on Awards for Inventions, Technical Improvements, and Rationalization Proposals Concerning Production.”Google Scholar

63. Ibid. Article 1.

64. Ibid. Article 3.

65. Ibid. Article 16.

66. Ibid. Articles 27, 7 and 8. Note: In contrast, awards for technical improvements and rationalization proposals were given only for a one-year period (article 8). The system of instalment payments lends some credence to the theory that awards might be considered as deferred wages.

67. Ibid. Article 17.

68. See supra, notes 4 and 18. For a contemporary theoretical discussion of the 1963 regulations, see Huai, Kuan, “Legal measures for supporting and promoting inventions and technological improvements,” Cheng-fa yen-chiu (Political and Legal Study), No. 3, August 1964.Google Scholar

69. “Regulations on Awards for Inventions,” Article 1.Google Scholar

70. “Regulations on Awards for Technical Improvements,” Article 1.Google Scholar

71. “Regulations on Awards for Inventions,” Article 16; “Regulations on Awards for Technical Improvements,” Article 20.Google Scholar

72. “Regulations on Awards for Inventions,” Article 17. This is similar to “Provisional Regulations on Awards for Inventions, Technical Improvements and Rationalization Proposals Concerning Production,” Article 9.Google Scholar

73. “Regulations on Awards for Technical Improvements,” Article 21.Google Scholar

74. “Regulations on Awards for Inventions,” Article 23.Google Scholar

75. See discussion supra, at notes 45–51.Google Scholar

76. See supra, note 65; “Regulations on Awards for Inventions,” Article 16; and “Regulations on Awards for Technical Improvements,” Article 20.Google Scholar

77. Labour Laws and Regulations of the People's Republic of China (Peking: Foreign Language Press, 1956).Google Scholar

78. For example, see: “Outstanding woman innovator in Chinese electrical industry,” NCNA, 13 March 1973 in SCMP, No. 5340, 23 March 1973, pp. 180–81.Google Scholar

79. See discussion supra, notes 45–51.Google Scholar

80. “Launch scientific research work to stimulate the development of mining production,” Jen-min, 15 March 1973 in SCMP, No. 5342, 27 March 1973, p. 54.Google Scholar

81. For example, see: “Northeast China worker-engineer makes new innovations,” NCNA, 31 January 1973 in SCMP, No. 5314, 14 February 1973, pp. 101–102; “Outstanding woman innovator in Chinese electrical industry”; “Demonstrations of new cutters promotes technical innovations in northwest China,” NCNA, 4 October 1975 in SPRCP, No. 75–41 (1975), p. 76; “Mass drive in China's scientific experiments,” NCNA, 19 January 1976, p. 13; “China's Universities – important bases for scientific research,” NCNA, 4 October 1975 in SPRCP, No. 75–43 (1975), p. 22.Google Scholar

82. “China plans 1978 parley to revive scientific work,” New York Times, 23 September 1977, p. A3.Google Scholar

83. “Industrial innovations give big results, says trade union leader,” NCNA, 7 January 1957 in SCMP, No. 1447, 10 January 1957, pp. 12–13.Google Scholar

84. “Encourage inventions and technical improvements by rewards in order to promote development of our production and construction,” p. 15.Google Scholar

85. Shu-jen, Sun, “The danger of bourgeois fame-and-wealth thinking to scientific undertakings,” Kuang-ming jih-pao, 15 October 1964, in SCMP, No. 3334, 10 November 1964, p. 5.Google Scholar

86. Orleans, “Research and development in Communist China,” pp. 575–76.Google Scholar

87. “China's unique road for developing science and technology,” NCNA, 17 October 1966, in SCMP, No. 3805, 21 October 1966, p. 24.Google Scholar

88. See generally NCNA releases November 1966 and March 1967.Google Scholar

89. Richman, Barry M., Industrial Society in Communist China (New York: Random House, 1969), p. 786.Google Scholar

90. “Fully mobilize the masses to reform regulations and systems – an investigation report on the insecticide workshop of Chu Chou chemical works,” Jen-min, 29 August 1971 in SCMP, No. 4973, 13 September 1971, pp. 22–23; “What should be depended upon to bring initiative into full play,” Hung-ch'i (Red Flag), 1 January 1974, in Survey of China Mainland Magazines, No. 74–01 (1974), p. 98; “A set of ‘regulations’ for accelerating the restoration of capitalism,” Jen-min, 31 May 1976, in SPRCP, No. 76–23 (1976), p. 238.Google Scholar

91. “Great mass debate in Chinese scientific technological field,” p. 8.Google Scholar

92. “Crack northeast China worker-engineer”; “A man ahead of time – technical innovator Yang Meng-huan,” NCNA, 29 July 1974, in SPRCP, No. 74–32 (1974), p. 84.Google Scholar

93. “Outstanding woman innovator in Chinese electrical industry”; “Northeast China city improves design of products,” NCNA, 13 August 1972, in SCMP, No. 5202, 24 August 1972, p. 149.Google Scholar

94. “Regulations on Awards for Inventions,” Articles 4 and 6. One recent news release described a mass scientific drive as taking place under “unified leadership” on four levels – county, commune, brigade, and team – involving 13,000,000 people. “Mass drive in China's scientific experiments,” p. 13.Google Scholar

95. “Northeast China worker-engineer makes new innovations.”Google Scholar

96. “Regulations on Awards for Technical Improvements,” Article 4. There were precedents for this type of organization, e.g. “Government Administration Council Regulations Governing Awards for Production Related Inventions,” Article 4: “Provisional Regulations on Awards for Inventions, Technical Improvements and Rationalization Proposals Concerning Production,” Article 32.Google Scholar

97. “Regulations on Awards for Technical Improvements,” Article 5.Google Scholar

98. See, generally, NCNA releases between 19 January and 2 February 1976.Google Scholar

99. Richman, Industrial Society in Communist China, p. 785.Google Scholar

100. Ibid.

101. E.g. “Launch scientific research work to stimulate the development of mining production,” Jen-min, 15 March 1973, in SCMP, No. 5342, 27 March 1973, p. 54.Google Scholar

102. There is some indication that withholding of research data, if not inventions, is a problem in China today. See, e.g. “Great mass debate in Chinese scientific technological field,” p. 8.Google Scholar

103. See discussion supra, notes 45–51 and 88.Google Scholar