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John Marshall Review of Intellectual Property Law




The debate on China's piracy and counterfeiting problems has been ongoing for more than two decades. However, in the past few years, this debate has taken on a new sense of urgency and significance. In August 2008, the City of Beijing will host the Summer Olympic Games. Two years later, the 2010 World Expo will be held in Shanghai. In addition, two World Trade Organization dispute settlement panels were recently established to resolve disputes between China and the United States over inadequate enforcement of intellectual property rights and inadequate market access to U.S. media products. All of these developments, of course, take place against a background of China's rise to emerging world power status.

Although the Olympics, the World Expo, and the two WTO dispute settlement panels all constitute new developments in the U.S.-China intellectual property debate, the existing debate is not that different from the debate in the late 1990s when I began studying intellectual property protection in China. While some commentators have attributed China's piracy and counterfeiting problems to the lack of political will on the part of Chinese authorities, others have cited the many political, social, economic, cultural, judicial, and technological problems that have arisen as a result of the country's rapid economic transformation and accession to the WTO.

This Essay, however, advances a different explanation, which I briefly touched upon in previous writings. It argues that the failure to resolve piracy and counterfeiting problems in China can be partly attributed to the lack of political will on the part of U.S. policymakers and the American public to put intellectual property protection at the very top of the U.S.-China agenda. In other words, it is not only the Chinese who lack political will, as many critics have claimed, but the Americans as well. To illustrate this argument, this Essay examines three questions I always ask when I engage in debate with U.S. scholars and policymakers over intellectual property protection in China. It is the hope that the ensuing discussion will underscore the policy complexities involved in the U.S.-China intellectual property debate.

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John Marshall Law School (IL)

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