On the Limitations of a “Dual System” Approach to IPRs: A Critical Evaluation of the Administrative Dominant Copyright Protection Regime in Contemporary China

Ms Zheng Zhong

Abstract

Recently in many western countries, a number of academic commentators have identified several shortcomings with the conventional judicial protection model in the field of copyright. As an alternative, the administrative process has been applauded as “a new arena for copyright decision-making” and “one institution that can play an important role in fine-tuning the scope of copyright”.

In contrast, in China, administrative agencies have played an important role since the establishment of copyright regime, and together with the courts formed the so-called “dual system”. The bipolar mechanism has played an important role in the process of establishing a legal regime in a very limited period and protecting copyright against rampant piracies, counterfeits and other infringements. However, on the negative side, administrative protection currently dominates the dualism and induces multiple problems.

This paper seeks to comment on the current administrative dominant copyright protection regime in China, especially to explore two particular limitations – agency overlap and minoritarian bias. The analysis is based on some concepts of an institutional approach to law, notably Neil Komesar’s theory. Hopefully, in a provisional way this suggests the analytic value of these concepts in a very different political and legal context.

Admittedly, the Chinese experience is not offered as a cautionary tale for international commentators contemplating an expanded role for administrative agencies in the field of copyright. However, I do believe that China might provide some hints as to possible drawbacks of an uncritical adoption of an administrative protection approach.

Conference Paper (pdf)