Mertha, Andrew. (2006). The Politics of Piracy: Intellectual Property in Contemporary China. Reviewed by Dexin Tian, Bowling Green State University

Mertha, Andrew. (2006). The Politics of Piracy: Intellectual Property in Contemporary China. Singapore: Singapore University Press. Pp. xvii + 241         ISBN 9971-69-337-2 Reviewed by Dexin Tian Bowling Green State University September 11, 2007 Intellectual property rights (IPR) comprise three dimensions: patents, copyright, and trademarks. China’s IPR policy is both problematic and complex. In his book, The Politics of Piracy: Intellectual Property in Contemporary China, Andrew Mertha challenges the recent rhetoric that argues for a simple correlation between greater external pressure and better Chinese domestic compliance with international norms and U.S. demands; He argues that the existing analyses fail to probe deeply enough into the country’s complex matrix of functional institutions and local political networks. Based on his field research in China and personal interviews with hundreds of people of both current and former U.S. IPR related officials and their Chinese counterparts, Mertha asks the question: “What has been the impact of external pressure on China’s IPR policy making and implementation processes” (p. 3)? I will first describe how this question is answered in each part of the book and then offer my critical comments on the book. The book consists of seven chapters and an index. The preface is impressive in that Mertha has had a six-year long fieldwork experience in Sichuan, Guizhou, Yunnan, Jiangsu, Shanghai, and Chongqing in China since the late 1990s. He has obtained fruitful first-hand data from extensive interviews with people from the Office of United States Trade Representative (USTR), the Department of Commerce, and the International Intellectual Property Alliance, and the like on the U.S. side, and scholars, lawyers, businesspeople, private investigation agencies as well as some pirates themselves on the Chinese side. With this book, he intends to shed some light on the often misunderstood and highly sensitive issue of the politics of piracy in China by offering a chronologically grounded analysis of the political and organizational development of IPR in China. The first chapter, entitled “Foreign Pressure and China’s IPR Regime,” outlines the topics to be covered in the book and lays the groundwork for discussing China’s IPR regime in the following chapters. The first topic is the conceptualization of foreign pressure, which comes from various countries but mainly from the United States in the form of trade sanctions, revoking China’s most-favored nation status, and blocking China’s entry into international organizations like the World Trade Organization (WTO). Admitting that U.S. pressure may succeed in making China promulgate IPR-related laws and regulations, Mertha argues that the enforcement of IPR actually hinges on the domain of China’s complex bureaucracies and local IPR enforcement agencies. The second topic is the politics of China’s IPR regime, which comprises three distinct clusters of bureaucracies, respectively, responsible for patents, copyright, and trademarks of IPR. Finally, Mertha generalizes the significance of his research by saying that IPR provides a typical window into the policymaking and policy enforcement processes of contemporary China, and the Chinese experience can be instructive and applicable to many other developing and post-socialist countries. Chapter 2, entitled “The Structure and Process of Exogenous Pressure,” provides a summary of the IPR negotiations between the United States and China. As a result of the 1988 Omnibus Trade and Competitiveness Act in the United States, USTR was put in charge of providing Congress with an annual report on unfair trade practices abroad under Section 301 of the Trade Act of 1974. China has always been at the top of the “priority watch country” list in the Special 301 Report, and U.S.-China IPR negotiations occurred in 1979, 1989, 1995, and 1996. To Mertha, the substantive content of the U.S. demands in the negotiations overwhelmingly represent the interests of those industries that either complain the most or influence USTR the most. The Chinese side has brought little to the negotiations table except for some counter-demands or desires to change the status quo as little as possible. It is true that U.S. pressure has successfully framed the negotiation issues and ultimately influenced the Chinese laws and regulations, but this does not automatically translate into effective policy implementation and enforcement. The following three chapters, entitled “Patents and Faux Consolidation of China’s Administrative Patent Regime,” “The Copyright Problem,” and “Trademarks and Anti-counterfeiting" form the heart of Mertha’s text that traces the history, cultural context and ongoing economic implications of patent, copyright, and trademark laws through the maze of the Chinese bureaucracy. Due to historical, cultural, and economic reasons, the idea of establishing a consolidated IPR regime combining patents, copyright, and trademarks under an umbrella organization has never materialized. Instead, there is a different bureaucratic structure for each type of IPR featuring institutional fragmentation. China established its National Patent Bureau (later changed to State Intellectual Property Office, SIPO for short) in 1979 mainly due to foreign pressure. SIPO was constantly transferred from one administrative superior institution to another—from State Science and Technology Commission (SSTC, 1980-1982), to State Economic Commission (SEC, 1982-1988), back to SSTC (1988-1993), and then to the State Council (1993- the present) in the past decades. Such transfers have made it politically weak and set it institutionally adrift. For instance, the patent bureaus at the provincial levels have their immediate leadership association with SSTC instead of SIPO and only receive so-called "professional guidance" from SIPO. Similarly, China’s National Copyright Administration (NCA) was established in 1985 and its first copyright law took effect in 1991, which was revised again in 2001 with frequent pressure from the United States. However, NCA is fragmented and dependent on its various host bureaucracies. Organizationally, it is a ministry-level institution directly under the jurisdiction of the State Council, but in reality NCA remains a subordinate organization to both the Ministry of Culture (MOC) and the National Press and Publication Administration (NPPA), which are more concerned with cultural, ideological, and value-laden media than IPR. Due to its scarcity in power and resources, NCA has to ally with other institutions such as the China Copyright Protection Center affiliated with NPPA and the Anti-Piracy Alliance affiliated with Provincial Press and Publication Bureaus. Different from patents and copyright, trademark enforcement has won more success for three principal reasons. First, the trademark management system and subsystem extends from the State Administration of Industry and Commerce (SAIC) at the national level all the way down to the Administration of Industry and Commerce (AIC) at the provincial, township, and even village levels. Second, the State Quality Technical Supervision Bureau (SQTSB), which is mainly responsible for maintaining product quality and overall standardization, has carved out a substantial niche in the crackdown against counterfeit products in China. The competition between the two systems and their subsystems is over the lucrative gains in the crackdown, but it has enhanced China’s trademark enforcement to some extent. Finally, there has been lateral influence from foreign trademark holders with commercial operations in China. They hire detectives to collect evidence and submit it to local trademark enforcement agencies. Through offering gifts, banquets, or even late evening massages, these foreign trademark holders have effectively persuaded the local bureaucrats to protect their trademarks. The last two chapters, entitled “Evaluating the Argument and Analysis” and “Casting a Wider Net” summarize the theme, justify the argument, and elaborate on the significance of the research. To Mertha, exogenous pressure from both top-down demands of USTR and lateral efforts of foreign companies did result in China’s promulgation of its IPR laws and regulations and the establishment of the IPR regime. However, enforcement effectiveness is overwhelmingly observed outside the courtrooms and the offices of the IPR bureaucracies but hinges on local agencies rewarded by side payments from foreign IPR holders. The conclusions of this study provide insight into the politics of contemporary China and offer instructive lessons for IPR disputes in similar countries. The book, on the one hand, is a valuable contribution to the study of IPR in China from the politico-administrative perspective, which has been either neglected or misinterpreted. Conventional literature usually takes the legal-judicial perspective and emphasizes top-down legal IPR protection in China. Mertha’s findings reveal that top-down U.S. pressure is successful in establishing laws and regulations on paper, but full implementation of the laws and regulations requires the existence of functional organizations at all levels that are sufficiently funded. This observation is both important for scholars to recognize and instructive to future U.S. IPR negotiators as to whom to talk to and what to address. On the other hand, Mertha has touched upon the crux of the issue by locating a serious policy problem with China’s IPR regime and by explicating the complicated bureaucratic structure in the Chinese patent, copyright, and trademark administrative organizations. By outlining the structure of each organization and exposing the institutional fragmentation featuring scarcity, embeddedness, and dependency, Mertha has successfully convinced the reader of his argument regarding the significance of external influence and the Chinese mentality of passive resistance. Meanwhile, Mertha’s finding based on his extensive and in-depth interviews with the usually cautious Chinese regarding sensitive topics has made an unprecedented contribution to the study of the Chinese bureaucracy by providing an extensive road map into the maze-like IPR regime in China. However, it is clear that Mertha needs to integrate a cultural explanation into his research. He has treated China as a pure pirate country and posits that any positive change in China’s IPR policy is the result of external pressure like the official USTR or the private foreign IPR holders. Although these ideas are largely supported by his findings, these findings can only serve some practical and short-term purposes. To resolve the IPR issue in China from a long-term point of view, he should also take both the Chinese IPR holders and consumers into consideration. Foreign IPR holders may have their commercial operations in China for some periods of time, but the Chinese IPR holders are there and will be there for a much longer period of time. Actually, for thousands of years, the concept of individualized or private IPR has been nonexistent in Chinese history, but the Chinese have also produced centuries of innovation and inventions like paper making and block printing, to name just two, which have benefited human beings all over the world, without any form of protection of their patents or copyright. Thus, it is also necessary for Mertha to address the deeply-rooted Chinese cultural values that are historically resistant to IPR protection and discuss ways to awaken the national awareness of the significance of IPR protection to make his findings more far reaching and meaningful. About the Reviewer Dexin Tian is a PhD student in the School of Communication Studies at Bowling Green State University. His major is intercultural communication, and his research interest is copyright infringement and protection in China.