- 19 - Enforcement of Intellectual Property Rights in Developing Countries
adopted the Soviet doctrine, there was no place for an autonomous legal system, free from
politics and policy.
145
Orders of party leaders took over the role originally assigned to law.
146
Keller notes that because “[t]hroughout most of the Communist era, normative documents have
constituted the basis of normative administration . . . China's current legal order was in many
respects developed out of the pre-existing normative document system.”
147
How to reconcile the
entrenched Soviet-style system and the reformed law-making system of today is one of the
greatest politico-legal questions in China.
148
The highest court is the Supreme People’s Court (SPC) and it is the only one with the
formal competence to interpret NPC laws.
149
This Court may publish general interpretations and
commentaries that are seen as important supplements to the law.
150
These “opinions” come close
to general, binding rules, with an effect not dissimilar to that of legislation
151
The SPC is
responsible to the NPC and its Standing Committee and supervises the judicial work of the local
people’s courts, military courts and other special courts.
152
China's population, its geographical vastness, and social diversity frustrate a central
government’s attempts to rule by fiat. China’s leaders must increasingly build consensus for new
policies among party members, local and regional leaders, influential nonparty members, and the
population at large.
153
These factors should not be overlooked when examining the status of IPR
in China.
c. History of IPR in China
Culturally, China does not elevate IPR the same way Western nations do. In ancient
China new treatises were often created by “borrowing” from the classics and other scholars’
works and without formally crediting the sources.
154
During the beginning of the early imperial
dynastic period copying certain works was prohibited. But the limits on free copying were
145
Id.
146
Id.
147
Keller, supra note 11, at 722.
148
Otto, supra note 114, at 6.
149
Id. at 7.
150
Id.
151
Id. at 7.
152
China in Brief: Political System & State Structure: People’s Courts, at
http://www.china.org.cn/e-
china/politicalsystem/people-courts.htm
(last visited October 6, 2002).
153
U.S. Dept. of State, Background Note: China, at
http://www.state.gov/www/background_notes/china_0011_bgn.html
(last visited October 6, 2002).
154
Chung-Sen Yang & Judy Y.C. Chang, Recent Developments in Intellectual Property Law in the Republic of
China, 13 UCLA P
AC
. B
ASIN
L.J. 70, 70-71 (1994).
Convention