Abstract
The monograph IP Laws and Regimes in Major Asian Economies – Combing Through Thousand Threads of IP To Peace in Asia, published by Routledge in 2022, authored by Kung-Chung Liu, Professor of Law at Singapore Management University and Renmin University of China, is a must-read for those who are interested in intellectual property (IP) law in major Asian jurisdictions. The book is easily readable and accessible to lay persons and IP professionals alike.
This book is a timely and much-needed piece on IP laws and regimes in major Asian economies. There has been a shortage of literature that scrutinises IP laws across major Asian jurisdictions by ‘insiders’ who possess the necessary language skills, knowledge of theories and practical experience in the relevant sectors. Moreover, significant changes are taking place in Asia due to the advancement of the mega free trade agreements (FTA) of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Regional Comprehensive Economic Partnership (RCEP), which remain to be deciphered. Collaboration and tension co-exist in this region. For example, China relies heavily on geopolitical rivals for supplies of chips and IP-intensive goods, including Taiwan. China is also increasingly dependent on foreign expertise. Most Chinese patent filings are home-grown, but the share involving foreigners has risen from 4.8% to 5.9% since 2012. Scientists based in the EU, Japan and America are increasingly common partners with Chinese inventors. In 2020, China was responsible for 8.4% of total global cross-border payments for the use of IP, an all-time high. In a survey of policymakers, business leaders and other grandees from Southeast Asia published in 2022, 77% of respondents named China the most influential economic power in the region.
Apart from China, there are significant IP policy developments in other Asian jurisdictions. Led by Japan, the major Asian economies have adopted national IP strategies to promote the importance and commercialisation of IP. Korea has launched two Master Plans for National IP (2012–2016, 2017–2021), followed by Taiwan's Intellectual Property Strategy (2012). Singapore issued an IP Hub Master Plan in 2013 (updated in 2017) and Singapore IP Strategy 2030 in 2021. India introduced its National Intellectual Property Rights (IPR) Policy in 2016. The Thai government established a National IP Policy Committee in 2009 and published a 20-Year IP Roadmap in 2017.
The author has noted four aspects of IP law development in Asia. First, the sweeping criminalisation of copyright infringement. Second, the number of registered trademarks has been rising sharply. Third, the exercise of IP rights enjoys statutory exemption by competition laws. Lastly, the standards applicable to the FRAND (fair, reasonable and non-discriminatory) licensing of SEPs (standard essential patents) have been developed with Asian features.
Against the background of the co-existence of collaboration and tension, the book's purpose is to reflect on the features, problems and struggles of major Asian IP law regimes from common law and civil law traditions. It fills that gap of the shortage of literature. As its subtitle suggests, this book is also based on the belief that working on IP can contribute to peace in Asia. All these make this book essential and timely in the era of global tension.
The first chapter offers an overview of the modern Asian history of colonisation, its lasting impact, the introduction of IP laws in Asia and key features of Asian IP regimes. The following three chapters elaborate on the selective topics of patent, trademark and copyright laws by thoroughly working through statutory and case law. Chapter 5 examines the pre-established damages for copyright infringement and trademark counterfeiting and offers suggestions for Asian economies to consider. Chapter 6 provides a convincing discussion of the problems of the overprotection of trade secrets in some civil-law Asian economies, which, if unchecked, might spill over to common-law Asian economies through FTAs. Chapter 7 discusses China's development from an IP follower to a game-changer and provides suggestions for China to become a welcomed global IP power. Chapter 8 further discusses the roles that IP laws have played in the economic development of India and China and provides suggestions on how the two countries can learn from each other. Chapters 9 and 10 wrap up by examining Taiwan's challenge in establishing international exhaustion across all IP laws and Singapore's success story in utilising the IP regime to secure its position in global value chains.
Strength of the book
The book takes a comparative approach that covers Japan, Korea, Mainland China, Taiwan, Indonesia, Thailand (civil law), Hong Kong, India, Singapore and Malaysia (common law). The selection of the jurisdictions properly includes different sizes of economies with different developmental stages, thus ensuring the sampling of jurisdictions is representative of Asia. On top of a comprehensive overview of the features of the selected jurisdictions, the book stands out with its topic-specific and in-depth discussion of the crucial problems and characteristics in some jurisdictions. For example, the last two chapters examine one medium-sized (Taiwan) and one small-sized Asian economy (Singapore) in their respective struggles and success. They offer helpful insights for understanding the practical challenges, and the many concerns policymakers will face and have to deal with to improve their IP regimes.
Another unique strength of the book is its richness in various IP data, especially the 23 tables in Chapter 2, which are very informative. Readers can quickly grasp the gist of the development of the relevant IP sectors through those data. Some of the book's suggestions for the betterment of IP laws can be enlightening for the common law jurisdictions, which face the same challenges from technological advancement and novel forms of business organisation. For example, Chapter 4 advocates that new copyright exceptions and limitations need to be recognised in response to changing technological and commercial environments. Specifically, it proposes reverse engineering to be recognised as fair dealing. It continues to argue that the general fair use clause needs to be improved by incorporating the features of limitations and exceptions found in civil law and common law IP systems. The above discussion undoubtedly provides insights for countries like the UK when amending copyright law.
Contribution of the book
The book's most significant contribution is that it crystalises the experiences of Asian IP laws that can be useful for other economies in a similar situation. For example, Chapter 1 identifies the structural features, distinctive policies and tendencies of Asian IP systems. Chapter 2 concretely pinpoints what Asian IP patent experiences can offer. There are quite a few: the legacy of the Taiwan IP Office's grant of technology-related compulsory licenses in the Nippo Soda Topsin case and the Philips CD-R case, experiences in compulsory licensing for life-saving drugs, safeguards against expansive patent rights and against evergreening pharmaceutical patents and the recognition of the patentee licensor's active obligation to help the licensee to implement the patent. Chapter 3 encapsulates what Asian trademark regimes can shed light on the need and justification for compulsory trademark licenses and for applying trademark law in conformity with the overall legal order.
The book timely demonstrates that any development of national IP laws needs to be assessed against their respective political, economic and societal conditions. The most efficient IP law should be home-grown and suit the nation's needs. For example, Chapter 7 offers an in-depth discussion of China's role as a follower and a game changer. Chapter 10 discusses Singapore's advancing role in leveraging its IP in the global value chains. Moreover, the book provides a holistic picture of how economies compete and collaborate in regional development. Chapter 8 compares the development of IP-intensive industries and points out how India and China can learn from each other. It demonstrates that neighbouring countries can benefit from mutual understanding and differentiated development routes. Chapter 9 discusses Taiwan's international exhaustion of IP rights and provides another perspective on the study of collaboration between economies. Based on the national portrait of Asian economies, it puts forward ‘Asian models’, solidifying the so-called Asian awareness that will, hopefully, lead to peace and stability in the world's biggest continent.
Reading a more detailed analysis of the issues and features of the IP law system in selected Asian jurisdictions will be intriguing. For example, the effects and cures for the sweeping criminalisation of copyright infringement (Chapter 1 Section 3.1) and the effectiveness and drawbacks of specialised IP judges and chambers/courts (Chapter 1 Section 4.1). Given the volume of the book, it is understandable that it is almost impossible to tackle all the topics in one book. Hence, the author's next book as a follow-up project is much anticipated.
This book is a valuable reference for law students, scholars, practitioners and professionals interested in knowing about Asian IP laws and industries. It is also informative for law and policymakers to understand the struggles that the selected jurisdictions have been through and gain insights about finding ways to develop better Asian and even international IP laws.