Seminar: The Non-market Approach to Intellectual Property in the Case of China

The United States has alleged that China’s state-led intellectual property (IP) policies and practices have not only distorted the market but also been harmful to China’s trading partners. Some have similarly argued that the principal beneficiaries of these non-market policies and practices are Chinese companies moving up the value chain at the expense of China’s trading partners and their workers and businesses. While this line of criticisms sounds plausible, it oversimplifies the relationship between IP and the market by assuming that the operation of IP system is free from government intervention. In fact, IP itself is a government intervention into the market to solve the problem of public goods under-production. If non-market factors are entirely undesirable in the economy, the justification of the whole IP system would not exist.  This paper introduces the non-market approach to IP policies by examining China’s relevant practices in detail. After comparing different viewpoints on the relations between IP and the market taken by China and western market economies, this article analyzes IP’s role to level playing field domestically and internationally. This study aims to provide a more comprehensive understanding of government intervention into the markets for creativity and innovation in the global setting. 

Jyh-An Lee is a Professor and Executive Director of the Centre for Legal Innovation and Digital Society (CLINDS) at The Chinese University of Hong Kong Faculty of Law. He has been a faculty member of the CUHK EMBA program since 2018. Professor Lee also coaches the New Ventures Legal Team (NVLT), a clinical support group collaborating with the University’s Pre-Incubation Centre for startup companies. He was the LLB Programme Director and Assistant Dean for Undergraduate Studies from 2019 to 2021. 

Professor Lee holds a J.S.D. from Stanford Law School and an LL.M from Harvard Law School. He has published on various aspects of intellectual property and Internet law. His research appears in academic journals, such as the Wake Forest Law Review, Oregon Law Review, Columbia Journal of Law & the Arts, Duke Law & Technology Review, Virginia Journal of International Law, Michigan Technology Law Review, Vanderbilt Journal of Entertainment & Technology Law, Vanderbilt Journal of Transnational Law, Minnesota Journal of Law, Science & Technology, Jurimetrics, Boston University Journal of Science & Technology Law, Cardozo Arts & Entertainment Law Review, European Intellectual Property Review (EIPR), Computer Law & Security Review, etc. His authored and edited books include Nonprofit Organizations and the Intellectual Commons (Edward Elgar, 2012), Intellectual Property Law in China (Wolters Kluwer, 2nd edn, 2021, co-authored with Peter Ganea, Danny Friedmann, and Douglas Clark), and Artificial Intelligence and Intellectual Property (Oxford University Press, 2021, co-edited with Reto M. Hilty and Kung-Chung Liu). 

During his studies at Stanford Law School, he was a John M. Olin Fellow in Law and Economics. Prior to joining the Chinese University of Hong Kong, he taught at National Chengchi University and was an Associate Research Fellow at the Center for Information Technology Innovation at Academia Sinica in Taiwan. He was the Legal Lead and Co-Lead of Creative Commons Taiwan (2011–2014) and an advisory committee member for Copyright Amendment at the Taiwan Intellectual Property Office (TIPO) at the Ministry of Economic Affairs (2011–2014). Professor Lee has been the Legal Lead of the Creative Commons Hong Kong Chapter since October 2018. He is currently a member of the European Center for E-Commerce & Internet Law advisory board, which is affiliated with the University of Vienna. Since 2016, he has held a panelist position for the Asian Domain Name Dispute Resolution Centre (ADNDRC). Professor Lee has been featured on ABC News, BBC News, Bloomberg News, Financial Times, Fortune, and South China Morning Post as an expert on intellectual property and Internet law. His works have been cited by the US Court of Appeals for the Fifth Circuit, UK High Court of Justice, and the US International Trade Commission. Before starting his academic career, he was a practicing lawyer in Taiwan, specializing in technology and business transactions.