Editorial: Back to black: justice.cn

Here's the Guest Editorial for JIPLP's October 2015 issue, by editorial board member Alexander Tsoutsanis. Alexander, who writes about and litigates IP, is also a Senior Lecturer at the University of Amsterdam, a lawyer at DLA Piper and also sits on the editorial board of this journal.

China rocks -- at least with all things digital. Today, China is known not only for the Great Wall but also for great products. For example, in the field of smartphones Huawei now outranks Microsoft, shipping 30+ million devices in the second quarter alone. Another manufacturer making headlines is Meizu, offering devices with twice the specs of iPhone, at half the price. Unlike clones of the past, this is not Chinese industry free-riding on Western innovation. Things are now the other way round, with China leading the way with innovative consumer electronics: bit for bit (etc), pixel for pixel, with better bang for less buck. Recent European Patent Office figures show that the number of patent applications filed by Chinese inventors is up 18%, totalling 26,472 patent filings in 2014. That is the year's biggest increase, China being the only country in the world showing double digit growth in EPO patent filings.

This is a big change from the past, with Western manufacturers suffering from counterfeits and trade mark grabbing. Back then the IP community was motivated to help China enhance the effectiveness of IP protection. Europe also helped, together with the US, Japan and other industrial leaders. For example through the EU-China “IPR2 project”, a five-year project aimed at improving IPR enforcement in China by providing technical assistance to Chinese legislative and judicial agencies and institutions. In 2011, I was one of those providing such assistance, speaking at a seminar in Beijing on enacting new legislation aimed at curbing trade mark grabbing. Some progress was made: in 2013 China adopted legislation providing for “good faith” intent, and prohibiting “bad faith” trade mark filings. This came into force in 2014: 2–0 for Good v Bad.

At least in the field of IP, China is doing just things in just about the right time. Much of its progress can be attributed to the efforts of the West promoting change, for better, not for worse. Other areas of the law are not so lucky: human rights for example. This summer China enacted a “national security law”. According to the UN High Commissioner for Human Rights, the broad scope and language of the new law raises many concerns, leaving the “door wide open” for further restrictions of rights and freedoms as well as “tighter control” of civil society. This is lawmaking making things worse, not better. In the same month the new law entered into force, China detained, arrested, held incommunicado and summoned no fewer than 233 lawyers, staff and human rights activists. The New York Times dubbed it “China's Crackdown on lawyers and rights.”

While lawyers are not above the law, they do play a fundamental role in protecting fundamental rights, such as the right of an arrested citizen to seek counsel. This universal right enjoys universal recognition. It echoes in the Universal Declaration of Human Rights, the EU Charter and the sixth Amendment. The right to seek counsel should be observed, anywhere anytime, regardless whether it involves arrests made by Starsky and Hutch in the streets of California, Demolition Man in Shenzhen or Men in Black in Beijing. Yet many of the arrested were deprived of the right to seek counsel.

China's poor track-record in the field of human rights is matched by the poor efforts of the West in fostering change. Even though (intellectual) property rights are also classified as human rights, there is a striking inequality in the way the West advances its Economic v Human Rights agenda. Two points are relevant. First, history. Trade has always been a priority in the field of international cooperation. Old-school IP lawyers know this well. Iconic treaties in the field of intellectual property like the Paris and Berne Conventions, date from 1883 and 1886. That is 60+ years before the Universal Declaration of Human Rights came along. Secondly, industry involvement. Silicon Valley industry has always played a key role in fostering grass roots debate about intellectual property and privacy rights for example, whenever its suits their own agenda. During the debate about SOPA-PIPA in the US, Wikipedia, Mozilla and Google went ‘black’, voicing concerns about civil liberties being affected. Today, Mountain View & co take a different view on other fundamental rights, such as those now at stake in China, resorting to business as usual. That is plain wrong. If all men are created equal, and all fundamental rights are equal, why doesn't Silicon Valley go back to black?