Author is American IP lawyer/prof living in Beijing
The Obama administration is under fire from everyone these days, and no one seems to like the job that Treasury Secretary Tim Geithner has done over the past two years. Moreover, the administration is not about to move against China in an area where Geithner actually has some authority (e.g. currency).
Timmy must be one frustrated individual these days. In that context, I suppose I shouldnt be surprised that he has engaged in some gratuitous China bashing, perhaps to build up some populist credibility and, more importantly, to send a message to the U.S. corporate community that he feels their pain.
Geithner is no stranger to harsh words about China, although he doesnt usually venture into the area of intellectual property. A quick glance at the statements he made yesterday suggest that he should probably leave the topic out of his repertoire. Its not that his comments were full of factual inaccuracies or anything. I just found them mostly irrelevant, not to mention misleading.
Lets take a look at two comments from Geither (taken from Reuters):
They <China> have made possible systematic stealing of intellectual property of American companies and have not been very aggressive to put in place the basic protections for property rights that every serious economy needs over time, Geithner told a forum in Washington.
However one may criticize the remaining problems with Chinas intellectual property enforcement system, which are many and significant, this language systematic stealing, is quite inflammatory, albeit in a subtle manner.
Geithners language is rather sneaky. Is IP infringement stealing? Yes, it is a form of property theft, so using the term stealing is certainly appropriate, given the proper context. What about systematic? Sorry to go full lawyer on this, but that term denotes a method or plan. Who in this discussion would be in a position to implement a plan? None other than the government of China.
Therefore, when you put this language together, Geithner is saying that China has an intentional plan to steal intellectual property rights. Thats quite a sweeping statement. And yes, I note his use of the qualifier made possible, which one could say relates to a lack of enforcement. But even if Geithner is not saying that the government itself is the one doing the stealing, its still a damning indictment.
Is he right? Only partially, which is why I find his language misleading.
One could certainly make the case that China has intentionally gone after foreign IP in certain industrial sectors, often key areas like energy, environmental technology and automobiles. There is a case to be made there for a systematic approach.
But what about the stealing part? Although there have been cases where infringement has occurred and foreign IP has been invalidated, this does not rise to the level of an overall plan of outright theft, or if you prefer, a plan to allow outright theft.
However, perhaps Geithner is just referring to forced technology transfer, including the popular hot button issue, Chinas indigenous innovation policy?
Were seeing China continue to be very, very aggressive in a strategy they started several decades ago, which goes like this: you want to sell to our country, we want you to come produce here
if you want to come produce here, you need to transfer your technology to us[.]
Okay, so maybe Geithner is not accusing China of wholesale IP theft. Rather, he is saying that Chinas technology transfer policy is functionally equivalent to systematic stealing. So is this claim fair?
No, still misleading. Its true that Chinas tech transfer posture is aggressive, and its accurate to say that market access has been conditional on such tech transfers. But this ignores a few very important qualifiers. First, such conditionality only effects a few market sectors (I listed a few above). For the vast majority of U.S. investors in China, no one is forcing them to do anything with their IP.
Second, the only bona fide systematic program one could point to is the indigenous innovation program, which was altered after protests from foreign governments and a series of Sino-U.S. bilateral negotiations. This happened a while ago, so if Geithners comments are a reference to that policy, hes a bit out of date.
Third, although conditional tech transfer is anti-competitive and arguably unfair, its not stealing. Companies like GM or GE are not being forced to do anything. The choice whether to bring IP onshore may be a difficult one given market realities, but China is not (for the most part) illegally appropriating IP and giving it to a domestic firms.
In short, I find Geithners comments to be way over the top. He smoothly takes what are admittedly widespread problems with IP in this country (i.e. theft is common) and implies intent on behalf of government policy makers (i.e. systematic programs). What were left with is the suggestion that Beijing has an ongoing plan to rip off the IP rights of foreigners. Sorry, but thats going way too far rhetorically.
Geithner Talks Tough on China IP (for some reason) | China Hearsay
