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BYU Law Review

Abstract

For decades, the prevailing view in the United States and many Western countries has been that China does not appropriately respect intellectual property rights. These beliefs lie at the heart of President Donald Trump’s current trade war with China. Despite substantial geopolitical debate over differences between American an d Chinese attitudes towards intellectual property rights, and despite the critical effects that such attitudes have on international economic markets and the function of intellectual property systems, empirical evidence of these attitudes is largely lacking. This Article presents original experimental survey research that explores cross cross-cultural differences between American and Chinese attitudes towards intellectual property rights, personal property rights, and real property rights.

The results of the studies are somewhat counterintuitive. First, Chinese participants are found to have more consistent preferences towards different types of property rights than Americans. In a series of vignettes designed to test attitudes towards patented subject matter, copyrighted subject matter, tangible personal property, and real property, Chinese responses were more consistent and less context driven. Second, Americans do identify a preference for stronger intellectual property rights than Chinese, but only where infringement is committed by a private party for private benefit. Where infringement is conducted for public benefit, whether by a private or a governmental entity, Chinese and Americans tend to have the same attitudes towards intellectual property rights. Third , Americans display a lower regard for intellectual property rights than for tangible property rights in most contexts, a differential that is not echoed in Chinese responses. The distinctions that Americans draw based on the use to which property is put, and between intellectual property and tangible property, is not consistent with United States law.

Our experiments reveal that the ongoing debates over Chinese attitudes towards intellectual property rights miss the mark in certain regards. Chinese and American preferences for property rights are more similar than most have assumed, and the manners in which they differ are inconsistent with most proffered theories. These results provide important lessons for the future of international intellectual property rights relations, discourse, and enforcement.

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© 2020 Brigham Young University Law Review


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