Innovation in the Information Age: The United States, China, and the Struggle Over Intellectual Property in the 21st Century

KAL RAUSTIALA*

Innovation is a key driver of economic success in the 21st century—and therefore a key driver of national power. Many commentators view technology and innovation as the core arena in which the two largest economies and superpowers—the United States and China—will battle in the decades to come. The United States is the world’s leading proponent of strict intellectual property regulation. It has consistently sought to strengthen IP law and enforcement in a range of international forums, including many trade and investment treaties. China, by contrast, has long been seen, by the West at least, as the world’s leading IP scofflaw. Conversely, many Chinese observers—indeed, many observers around the world—believe the United States is an IP bully that pushes inappropriate legal standards on other nations in an effort to serve the narrow interests of key domestic constituencies. Chinese practice suggests that the Chinese government and Chinese society prefer a more balanced (the United States would say lax) approach to global IP protection. Even that balance is currently in flux, however. China has in recent years begun to devote much more attention to domestic IP protection. Nonetheless, there is substantial (though shrinking) divergence in how the United States and China approach IP law today, and this contrast reflects major differences in national interest and economic conditions. At the same time, American history suggests that convergence in IP law and policy will continue to occur, and may well accelerate, as the Chinese economy expands and matures. This is especially true in the increasingly vital and contentious high technology sector. Ultimately, American and Chinese IP approaches to IP law and policy—and the battles over them—cannot be disentangled from the larger relationship between the world’s two largest economies.

* Promise Institute Professor of Comparative and International Law, UCLA Law School & Director, UCLA Burkle Center for International Relations. My thanks to participants in two workshops held at the University of Pennsylvania Law School and the Penn Center in Beijing, and to Doug Lichtman, Neil Netanel, Haochen Sun, Loke-Khoon Tan, Xiyin Tang, Chris Sprigman, Alex Wang, and Christopher Yoo for helpful comments on earlier drafts. Charlotte Lesinske, Patrick Hulme, Lucy Jackson, and Nicolas Baltaxe of UCLA Law School provided able research assistance.