Intellectual Property in Imperial China
It is widely accepted that there was “no comprehensive, centrally promulgated, formal legal protection for either proprietary symbols or inventions” in imperial China, despite some evidence of limited protection of brand names and controls regarding publications (Alford 1996, p. 15). On the contrary, these feeble efforts made to protect intellectual property were regarded as solely aimed at maintaining the state’s authority by controlling the dissemination of ideas (Yu 2002, p. 5). It is also undeniable that several commentators have been bemused by the lack of rudimentary intellectual property protection in imperial China, given China’s considerable advances in science and technology.
Furthermore, despite some scanty evidence suggesting that the concept of intellectual property was ingrained in imperial society, the written legal codes did not reflect the private proprietary rights of intellectual property. In the Qing dynasty, the formal legal Code “dealt with almost all aspects of a citizen’s and an official’s life”, but all “in penal form and China had no other (civil) code of law” (Tay 1969, p. 160). In fact, “the law was only secondarily interested in defending the rights- especially the economic rights- of one individual or group against another individual or group and not at all in defending such rights against the state” (Bodde and Morris 1967, p. 4). This concurs with the finding that the scant intellectual property protection that did exist in imperial
China was not concerned “with the rights of individuals or their claims for their own sake, but with the social order and the interests of the State” (Tay 1969, p. 161). In other words, Qing legal codes did not cover individual rights as modern conceptions of IP do.
In the late Qing dynasty, international pressure to introduce protection for intellectual property in China began to gain momentum in the late nineteenth century following the Paris Convention on Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886), as discussed above. Pressure on China from Western powers to improve intellectual property protection also increased at this time as many Chinese traders used foreign trademarks in order to avoid taxes to which Chinese, but not foreign, goods were subject (Feder 1996, p. 233). By the turn of the twentieth century, there were some efforts within the treaty ports to register marks belonging to foreign nationals, but without effective enforcement powers, these efforts proved worthless (Alford 1996, p. 35). Furthermore, treaties concluded with Britain, Japan and the US in the early twentieth century7 included clauses on intellectual property, but these provisions were unclear and contradictory.
China did make some effort at this time to bring Chinese law in line with Western jurisprudence in order to escape from the extraterritorial regime, specifically by establishing a Law Codification Commission in 1904 (Lee 1969, p. 136). This process of westernisation focused on Japan as a recommended model for reform (Chen 2000, p. 22). China also attempted to introduce some basic intellectual property laws during the final years of the Qing Dynasty, such as the Law of Authorship of 1910, but the short life of this law meant that any evidence of its implementation was absent (Qu 2002, p. 22). Thus, despite this period from the late nineteenth to the early twentieth century of “unprecedented international attention to intellectual property” (Alford 1996, p. 34), no effective formal legal measures were instituted to protect intellectual property in imperial China.