China Should Play a Leading Role of Intellectual Property Right in the Construction of the“Belt and Road”

Qian Peiyao

(East China University of Political Science and Law,Shanghai 201620)

Abstract：There are many countries along the“Belt and Road”route,although the market is vast,the levels of IPR development are uneven and generally low.Therefore,Chinese enterprises have both opportunities and risks in overseas markets.The problems of IPR in the construction of the“Belt and Road”needs to play the role of multiple subjects,particularly,China should play a leading role.Only by focusing on the output of rules,the cultivation of talents,the construction of international service platform and the promotion of other countries to join relevant conventions,can the differences of regional IPR system be effectively coordinated

Keywords：the“Belt and Road”;IPR;leadership

The“Belt and Road”connects the three continents of Asia,Europe and Africa and their adjacent oceans,including developed countries,developing countries and less developed countries.Due to the diverse types of countries along the belt and road,regional cooperation often adopts different standards and shows different characteristics,and the development of IPR is uneven.The rational and orderly development of international trade is inseparable from the strong protection ofintellectualproperty rights[1],however,there are significant differences in the legal traditions and legal sources of various countries,and even some countries still use religious laws.Different countries adopt different intellectual property rights systems,the institutional differences lead to conflicts and contradictions in international trade,which is not conducive to the sustainable and stable development of the“Belt and Road”[2].With the improvement of Chinese international discourse power,China should play a leading role in the IPR issues arising in the construction of the“Belt and Road”,promote and strengthen the IPR communication and cooperation among countries along the“Belt and Road”route,so as to make innovative resources interconnected and economic elements flow rapidly.

I.The Necessity of China Playing a Leading Role

According to the“World IPR Index”released by the world IPR organization,the IPR index of countries along the“Belt and Road”is relatively low,which because the“Belt and Road”is mostly composed of developing countries,and the IPR system is very imperfect or even missing compared with developed countries.Among them,central Asian countries have the lowest IPR index,such as Uzbekistan,Iran and Turkmenistan,followed by south Asian countries,and Southeast Asian countries such as Singapore and Malaysia have higher IPR index.This characteristic makes the IPR problem of countries along the route different.In the international cooperation of IPR protection,collision and contradiction are inevitable.It is a challenge must be addressed for China that how to actively coordinate various contradictions in regional intellectual property system,overcome obstacles and promote countries to realize value and interests in international protection cooperation in the process of international IPR protection.

Because of lacking IPR protection in many countries,Chinese products are also violated[3].In recent years,Chinese products have become more and more popular in countries along the“Belt and Road”route,as mentioned above,central Asian countries have the lowest IPR index,which made Chinese products have been relatively seriously violated in this region.Such as the trademark“Flying Pigeon”bicycle was maliciously registered by Indonesian enterprise,and“Lenovo”computer also encountered a similar situation.If Chinese enterprises do not actively apply for trademarks and patents,the lack of effective intellectual property rights system and effective law enforcement in countries along the“Belt and Road”route will lead to wanton infringement.

Therefore,whether to maintain the coordinated development of intellectual property rights in the construction of the“Belt and Road”or to protect domestic products from being infringed in other countries'markets,it is necessary for China to be the“Belt and Road”advocate and assume the responsibility of a major country,play a leading role,export effective rules to other countries,build an international service platform,and promote other countries to enter relevant conventions.

II.China Benefits from Playing a Leading Role

China has always taken a leading,inclusive and win-win attitude in the IPR cooperation among countries along the“Belt and Road”route,it has played a leading role and benefited from this.In July 2016,China hosted High-Level Conference on IntellectualProperty forCountries Along the“Belt and Road”in Beijing,the meeting adopted the“Common Initiatives for Strengthening Cooperation between Countries along the“Belt and Road”in the Field of Intellectual Property”;In May 2017,China held the first“Belt and Road Forum (BRF)for International Cooperation”in Beijing,and signed the“Agreement on Strengthening Belt and Road Cooperation Between the Government of The People's Republic of China and WIPO”with WIPO.

China has taken the initiative to carry out cooperation to promote IPR protection in countries along the Belt and Road,and its image as a responsible great power has been recognized by countries along the Belt and Road.For example,in 2017,the state intellectual property office signed a memorandum of understanding on cooperation in the field of intellectual property with the ministry of industry and handicrafts of Cambodia,and patents for inventions authorized by China can be directly registered and go into effect directly in Cambodia.Similarly,the memorandum of understanding on cooperation in the field of intellectual property signed with Laos in April 2018 allows Chinese patent holders to avoid complicated review procedures and save a lot of time and cost.

According to data released by the state intellectual property office on April 22nd,2019,China granted 3,299 patents in 17 countries along the“Belt and Road”route in 2018,up 10.6%year-onyear.In addition,49 countries along the“Belt and Road”conducted patent authorizing and applicating activities in China in 2018.The number of authorizations and applications reached 14,877 and 22,290 respectively,up 7.8%and 4.9%year-on-year,respectively.

The above data shows that Chinese good IPR system operation along the“Belt and Road”benefits many parties,and countries along the route are attracted to China to layout patents in order to maintain their market competitiveness.From this point of view,not only China has been benefited from its leading role,but the countries along the route also have been benefited from it.

III.Proposals for China to Play a Leading Role

(i)ExportingChineseIntellectualPropertyperty RulesRules

Firstly,as the main body of market competition,countries along the“Belt and Road”need a relatively uniform and stable rule,the inconsistent rule will only bring the unpredictability and risk of trading.For example,India's tendency to impose compulsory licensing of medicines would greatly harm the interests of the patentee and is highly unreasonable.Secondly,international consensus has been basically reached on the formation of a relatively unified intellectual property system.When WIPO,ASEAN WIPO,Eurasian patent organization and European patent organization play active roles in various countries,countries along the'Belt and Road'route will be more acceptable.Finally,after more than 30 years of development,China has formed a relatively complete intellectual property system,promoted economic construction through the protection of intellectual property rights,and made great achievements in the fields of independent intellectual property rights such as high-speed railway,aerospace and nuclear energy,which has been recognized by all countries.

At the same time,it should be noted that the purpose of exporting China's intellectual property rules is to build a reasonable intellectual property system,on the basis of meeting the requirements of internationally recognized intellectual property rights protection,regional intellectual property policies should be fully and deeply studied according to the national conditions of different countries and different protection modes should be implemented.For countries with a high level of intellectual property development,such as Russia and Singapore,China should make full use of its advantages to jointly build regional integration and globalization of intellectual property with them.For the countries with a low level of intellectual property development,such as the Philippines and the Congo,China should not just instill its own rules,but need to discuss and negotiate with them to put up intellectual property systems that suit their own countries'nationalconditionsand conform to international trends.

(ii)Helping Other Countries to Train Related Personnelonnel

On the basis of mutual benefit and win-win results,China can provide other countries with documents,equipment,teachers and even distance education related to intellectual property rights,so as to help other countries train relevant intellectual property rights professionals[4].Through frequent and effective communication and cooperation,the development of intellectual property rights of other countries can be incorporated into China's DNA,and countries with weak intellectual property protection can be helped to improve the level of intellectual property protection.For example,in April 2015,Tongji University,entrusted by the state intellectual property office of China,conducted a one-week professional training for the heads of 34 intellectual property offices from various countries,and achieve good results.

In terms of patent examination,the relevant institutions of some countries are too bloated or simple,and the relevant personnel are not professional,with weak examination ability and low examination efficiency.As one of the five largest intellectual property offices in the world,the state intellectual property office of China should encourage the countries along the Belt and Road to conduct business communication and cooperation,entrust relevant Chinese personnel with some of their patent examination work on preferential terms to improve the efficiency of examination.

(iii) Actively Establishing Bilateral or MultilateralIPR Cooperation and Coordination Mechanisms

As mentioned above,China has reached summit forum for international cooperation on several occasions,and signed memoranda of cooperation with Cambodia,Laos and other countries.In addition,other forms of international dialogue should continue to be strengthened.Soft or random coordination has its own uncertainties and elasticity,and hard or institutional coordination can actually consolidate the results of discussions[5].As a matter of fact,the formulation of international multilateral rules means that the friendly dialogue and consultation between the two sides turn into multilateral agreements,and then continue to reach multilateral agreements.China can adopt the above approach in the process of constructing the'Belt and Road'intellectual property system.As the largest developing country,China has had a discourse power in years of international dialogue.It can conduct consultations and dialogues in key areas with important countries within the scope of the'Belt and Road'first and establish several free trade zones with them to play an exemplary role,then gradually increase the number of intellectual property clauses in the FTA,improve the precision of the clauses and gradually form the independent chapter of the FTA[6].Some provisions on IPR cooperation should be included in the FTA to gradually form a bilateral,multilateral and regional consensus,laying a foundation for the conclusion of a unified and extensive IPR treaty in the future.

(iv) Promoting Other Countries to Accede to Relevant Conventions

At present,the common international practice is to use international conventions related to intellectual property rights to realize the protection of intellectual property rights between countries[7].There are still a large number of countries along the“Belt and Road”with low level of intellectual property development have not yet joined the TRIPS agreement,which undoubtedly increases the difficulties of cooperation among countries,and is not conducive to other countries'intellectual achievements obtaining better protection of intellectual property rights in the above-mentioned countries,and also brings risks of legal and policy instability in the“Belt and Road”region.China should encourage and help them to integrate into the internationally recognized legal system of intellectual property as soon as possible,ensure the intellectual achievements are authorized and protected by countries along the route,and reduce the risks caused by the absence of relevant.

(v) Creating a Unified the“Belt and Road”IPR Information Center

At present,there haven’t been comprehensive international intellectual property information sharing platform,and China can play a leading role in this part by taking advantage of considerable manpower and material resources in advance.By collecting and integrating the intellectual property information resources in countries along the“Belt and Road”,a unified“Belt and Road'intellectual property information center is established,which includes information of intellectual property laws,cases,patents and trademarks in various countries,and provides information retrieval,inquiry,display and other services related to intellectual property for enterprises of various countries[8].At the same time,countries need to be encouraged and guided to actively share and exchange intellectual property information within their own laws.