The enforcement of intellectual property rights in China and the United States: Law & society and criminological perspectives

This dissertation, a comparative study of the enforcement of intellectual property rights (IPR) in the United States and China, focuses on the roles, characteristics, and consequences of criminal enforcement of IPR. Analysis reveals unexpected consequences of transplantation and use of Western intellectual property law in Chinese contexts. Above all, macro-level cultural, economic, political, and legal factors result in a general lack of IPR consciousness as natural and inalienable private property rights among Chinese.;Specifics of criminal enforcement in the United States and China have been influenced by several mid- and micro-level situational factors. In particular, sizable similarities across the foci of criminal enforcement in the United States and China indicate that economic conditions are determinant forces for not only the overall IP enforcement strength of a country, but also for enforcement targets. These economic conditions include the following: (a) vehement business lobbying and the consequent capture of enforcement agencies by a handful of top foreign trademark corporations; (b) the size and market concentration level of top firms in an industry; and (c) trade association lobbying efforts, including foreign copyright associations exerting pressure on China through trade negotiations. Political factors also frame the targets of criminal enforcement in China. These factors include state interference for tax interests in tobacco and alcohol industries and public policies to fight against counterfeits that pose health and safety threats. Political factors have a strong impact in China due to the close intertwining of politics and law and the absence of judicial independence. Under the influence of these economic and political factors, there is an overrepresentation in China of criminal IP cases involving a small number of large top foreign companies, state-owned enterprises in state-controlled industries, products carrying health or safety threats, and other regulated industries such as the publication industry.;A trend toward criminalization in China has arisen amidst strains on "system capacity." Analysis reveals that entrenched problems of the Chinese criminal judicial system and unfair and unequal enforcement issues have accompanied the increasing criminalization of IP infringement control. These findings support Sally Falk-Moore's observation that external legislative efforts often bring about unexpected consequences because of existing strength within more localized social structures and norms. Finally, this study offers recommendations concerning what China might learn from U.S. enforcement reform programs as China strives for more effective IP enforcement.