Unlike Western countries which rely on judicial measures to protect
intellectual property, China invented a unique administrative system of
enforcing adherence to IPR. Many experts believe side-stepping the courts and
not bogging down the judiciary is a more economical and a faster way of dealing
with IPR pirates and of educating people. However the less harsh penalties of
administrative justice is not always a big enough deterrent to stop intentional
IPR violation, say experts.
"One important issue in China is how the administrative system can integrate
with the criminal system," said Cohen. "Or when does the case become criminal?"
China's official data reveals that most of the country's IP cases are handled
by its unique administrative system rather than in civil or criminal courts. The
proportion of cases transferred from administrative authorities for criminal
prosecution also varies between regions. Moreover, China's IP cases tend to
cluster in particular regions. For example, more high-tech-related IP
infringements were found in Shenzhen while theft of trade secrets are
concentrated in more prosperous cities.
Given that the World Trade Organization (WTO) provides no guidelines on
administrative enforcement, China has moved into an uncharted area strewn with
new problems, such as uniform sentencing nationwide.
"When you look at a big country like China, or the United States, or Brazil
or India, there are always going to be different economic interests. So how do
you ensure a crime is treated the same?" said Cohen.
To solve this problem, he said that legal institutions need to determine
where the problems are and make sure "bad guys get punished more and little guys
don't get punished as much".
"Many people recognized there were major changes to China's law after China
joined the WTO. Almost all major IP laws were revised," he said.
To improve the country's law enforcement, however, Cohen believes that China
should give more consideration to the independence of its courts and questions
like when to bring in specialized prosecutors to handle IP cases.
As the specialization and globalization of IPR crimes has become a growing
trend worldwide, Cohen said that China and the United States could cooperate in
a variety of ways. He said that the role of business should never be
underestimated because intellectual property is primarily a private right.
"Many people in China and the United States assume that most of the
intellectual property activities in China involve foreigners suing Chinese. The
fact is, if you look at civil court statistics, 95 percent of the cases are
Chinese suing Chinese," he said.
Talking about America's 200-plus years of experiences in intellectual
property protection, Cohen said, "There is a lot of complexity in intellectual
property which can make it a challenge even to my own country. This is what we
should keep in mind."