Protecting the Public Interest Through Intellectual Property Law: The Creative Approach of Chinese Judges

Minnesota Journal of International Law, 2022

Volume 31, Issue 1, p.185-231

Abstract: Today, Chinese judges play a leading role in the global protection of intellectual property (IP) rights. With China’s judiciary handling more intellectual property lawsuits than any other jurisdiction, their work is prominent not only for its quantity but also for its quality. While acting to safeguard IP owners’ private interests, Chinese judges have also in their rulings effectively protected public interests by creatively breaking through the confinements of certain statutory provisions. This article makes the first comprehensive theoretical study of the creative approach developed by Chinese judges to protecting the public interest through IP law. The article identifies that through the creative destruction of the civil law tradition, Chinese judges have made important contributions to protecting the public interest. When interpreting the nature and scope of limitations on IP rights, they have made appropriate deviations from the civil law tradition to proactively protect the public interest. In doing so, they have developed creative legal methods to ascertain the myriad public interests implicated in limitations on IP rights. They also properly align IP law with technological developments. This article compares these Chinese reforms with the United States’ reforms of IP systems, which have focused on codifying common law doctrines. It further presents jurisprudential justifications for affording civil law judges greater autonomy to protect the public interest through IP law.

View the full article here: https://minnjil.org/wp-content/uploads/2022/06/Haochen-Sun_v31_i1_185_231.pdf