Books whose title includes the phrase “intellectual property” seem to be wholly denied to best-seller lists or book sales ranking. However, this statement was reversed at the end of 2009, for on the weekly book sales ranking of some Beijing urban newspapers and on some bookstores’ (such as Beijing Xidan Books Building) best-seller lists, a book entitled Power Contest – Record of China-U.S. IP Negotiations had been at the top for a long time.

 

In the “books best favored by or having most influence on white collars” survey in the December 19 issue of Qianjiang Evening News, six books, including Power Contest, were listed.

 

The popularity of the book even surprised its author, Wu Haimin, who is now the president of the Beijing Times. However, no one has expected that this 2009 IP-related best-seller was finished as early as March 1997.

 

 

In 1992, Wu Haimin, invited by the Tariffs and Trade Division of the Department of International Relations and Economic Affairs of the Ministry of Foreign Trade and Economic Cooperation (MOFTEC), participated in the negotiations for China’s entry into the General Agreement on Tariffs and Trade (GATT), and decided to write a book celebrating China’s GATT accession. The book was due out at the end of 1994, when China was originally expected to enter the WTO. A few months later， however, China failed in the GATT accession negotiation due to American obstacles, and Wu had to stop his work in the Tariffs and Trade Division and give up his writing plan.

 

In the following long trek towards the resumption of GATT, two other tough talks between China and the U.S. were in full swing: China’s market access negotiations and intellectual property right negotiations. Sensitive to intellectual property issues, Wu saw an important theme commonly interwoven in the three negotiations: intellectual property. He then changed his writing plan to record the IP negotiations between China and the U.S. through interviews and personal attendances. He told this journalist: “I have been interested in copyright since1988 and wrote a book titled On the Way to Berne, which served as the knowledge reserve for my later creations.”

 

  With the unique perspectives of intellectual property and the first-hand data acquired, Wu Haimin finished the manuscript of Talking to the U.S. (renamed to Power Contest when published in 2009) after three years of interviews and writings. As a journalist himself, Wu deeply understood what the book would mean to him, and knew it should not be published too hastily.

 

He handed the manuscript to Zhang Yuejiao (the then Director-general of the Department of Treaties and Law of the MOFTEC and one of the chief negotiators of the China-U.S. IP negotiation and market access negotiation; and the now Chinese judge at the WTO court), and received a high degree recognition from her, as well as a suggestion of submitting the manuscript to Long Yongtu for review. “I had been filled with confidence until I received the letter from Mr. Long. He clarified to me the possible consequences of the publication of my book, and asked me not to do it,” said Wu. “I still have this letter now.” 

 

The letter goes: “As far as I know, this record of trade negotiations marks the first time in China that such full and accurate data and voluminous articles have been compiled. Thank you for your hard work.” But Mr. Long also pointed out that the book was unpublishable at the time: “The Sino-U.S. relations are in a particularly subtle stage at the moment. Charlene Barshefsky and Lee Sands are in power and confronting us. Publication of your book will possibly bring negative effects on our politics and diplomacy with the U.S.” He specifically noted that this was not his personal idea. “I have reported to Minister Wu Yi, and she also asks you to put overall national interests into prior consideration and not to have it published.” Mr. Long concluded his letter with a serious objection: “Since I have asked for the opinions of Minister Wu, I kindly ask you to take it as our final opinion.” Wu Haimin was so depressed by the letter, but he saw the sense later and put the manuscript aside. Hence, it started the 12-year dust sealing history of the great book!  

 

12 years have passed; Wu Haimin was engaged in his Beijing Times work and almost forgot the book. When his A Memorandum of Copyright in China was reprinted, he thought of the manuscript 12 years ago. “I spent a whole day searching the dust-covered disks in my old house, and was so excited to find the one that saved my manuscript,” said Wu. After serious editions and strict examinations and approvals, the book that ever slipped from the author’s mind was finally presented to the public.

 

 

Power Contest became popular as soon as it came out. Interestingly, it was classified by all the lists into “literature”, instead of “social science”, and stayed with those pure literary works. Actually, the book seemed to be more of a novel than a record, where the China-U.S. IP negotiation was portrayed detailedly and vividly by sufficient first-hand materials. Negotiation representatives were no longer “cold” officials, but ordinary and passionate people shouldered with great responsibilities. Written so realistically, the book even made readers doubt about the authenticity of the scenes described. Some Netizens commented that, “how can the negotiators act like this? It must be made up.”

 

“Only when you were there do you would know that the quarreling, striking the table or abusing each other did happen. When I said in my book that Dong Baolin pounded the table angrily and cried ‘down with U.S. imperialism,’ I was describing a real occurrence that I witnessed with my own eyes,” said Wu Haimin.

 

Wu Haimin is so lucky to have these experiences, but he said that such luck would probably never come again. He explained to this journalist: “I attended the negotiations not as a journalist, but was invited to interview and report under that special historical environment. I don’t think in the future, any ‘outsiders’ will have the chance to attend such negotiations, let alone to record and publish them.” In Wu’s words, this book is unique and inimitable.

 

12 years late though, the good book finally sees the light of day. But is the book outdated from the present perspectives? Has the lucky author any new ideas about IP development in China and the Sino-U.S. relationship?

 

 

Wu: No, it isn’t. It is true that this book partially serves as resource materials since it records the things happened 12 years ago, but it still has realistic significance and the warning significance for our future work. There are two central themes in the book: Sino-U.S. IP Negotiations and the Sino-U.S. relationship. These two themes have existed over the past 12 years and some problems have even become more conspicuous currently. Trade frictions between China and the U.S., such as the conflict over steel pipes, tires and art paper, have surface. IP frictions between the two countries are still on-going and new issues like “sue to the WTO” have emerged.   

 

In addition, some problems mentioned in this book are actually more outstanding in today’s environment. 12 years ago our earlier Chinese people were only concerned about the negotiation itself and didn’t realize the importance of IP negotiations or the significance of intellectual property upon national interests and social development. “Intellectual property” was a new word to them. But with the development of the Chinese economy, it has made more and more contributions to the economy, and its importance has been gradually recognized by people. At this moment, people can find reasons from this book as to why the two countries could spend so much time in IP negotiations and will have a better understanding of its importance and to a certain degree push IP development in China. Therefore, I think this book is of great realistic significance.

 

I’m sure these two problems will continue to exist for a long time; especially with the growing economic strength of China, frictions between China and the United States are becoming aggravated. That’s why I say that this book is of warning significance. For example, it tells us we should never slacken the efforts in constituting and improving the IP legal system in China.

 

 

Wu: My book recorded three negotiations: GATT resumption negotiations, market access negotiations and IP negotiations, and the focus was finally put on IP negotiations. In fact, there was no interrelation among these three negotiations; they were mixed together under that special historical environment. IP negotiations between the two countries actually started during the early reform and opening up and relevant provisions were stipulated to in the Sino-U.S. High Energy Physics Agreement signed at that time. For a period after that, the negotiations were focused on the cooperation of specific projects without relevance to trade. Then came the revision of the Special 301 Provisions, which attached IP to trade, and became the “legal” argument of the United States began to interfere in China’s internal affairs, such as requiring China to speed up national legislation. In this way, IP negotiations penetrated into market access negotiations. When GATT assumption negotiations were held, due to the existence of the Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Chinese side requested to rejoin the GATT, but the U.S. urged us to clean up market access issues first. Then it turned back again to IP negotiations. Therefore, it was the United States’ Special 301 Provisions that interlaced the three negotiations.  

 

An interesting thing is that these three negotiations were held at the same time and by the same people.

 

Wu: It was not a coincidence, but a necessity. Actually there were two necessities here. On one hand, it was a natural result of the U.S. economic structural adjustment. Technology and culture enjoy a large proportion in the economy, but technological and cultural achievements are easy to copy or steal, which sometimes causes devastating economic losses. Therefore, the U.S. naturally requires its trade partners to offer special protection over its intellectual property. On the other hand, to fit into the world market and to enter into the WTO, China had to introduce other countries’ high technological and cultural products and give them good protection. And to transform from “Made in China” to “Created in China”, we shall not simply imitate foreign brands or products, but try to make more creations and pay special attention to IP protection. Lincoln ever said that, “the Patent System adds the fuel of interest to the fire of genius.” Intellectual property is truly related to the creativity of a nation.

 

 

Wu: Yes. The Copenhagen Climate Conference held in December gives us a good example of the principle of “common but differentiated responsibilities”. For example, the responsibility of climate protection is shared by countries in the world, but is differentiated between developed countries and developing countries. So are IP negotiations. IP protection is a common task for all countries, but in different countries the protection can be at different levels. China started IP legislation in 1979. Developed countries spent several hundred years in developing IP legislation, but we only consumed less than two decades. With regards to IP law enforcement, the Chinese government has also made great efforts and taken many effective measures. Therefore, I think the principle of “common but differentiated responsibilities” should have been applied to the IP negotiations.

 

 

Wu: Everyone left me with a deep and distinctive impression. I gave the most pages to Wu Yi because she stood for our country’s standpoint and image. I also liked Tong Zhiguang very much. He had such a strong personality. I’m sure his big tobacco pipe must have left deep a impression on readers. I also used many words describing Duan Ruichun, who had been in the IP negotiations with the United States in the area of science and technology before the promulgation of the Special 301 Provisions. Duan was very handsome, courteous, and represented China’s image. He knew how to liven up the negotiations and to compass his purpose in a smart way. Another vivid description is Zhang Yuejiao. She attended most negotiations and did the most concrete work. She was both a MOFTEC expert and a jurist, and had insightful views of intellectual property.

 

 

Wu: This was indeed a coincidence and I did pay special attention to them. When I was writing the book, I found that the negotiations were really a little bit “feminine”. We have Wu Yi, and they have Carla A. Hills and Charlene Barshefsky. Although Lee Sands was male, he had a very important women assistant: Deborah Lehr. Another woman was the American chief representative, who was mainly talking with Long Yongtu in Geneva about China’s GATT resumption. Maybe readers will wonder why there are so many women negotiators. I think women were more affecting and impressive. They could move others with their tears. Lehr even took out her family album and introduced her kids and nanny to Chinese representatives; partially a show, and partially an outpouring of her true feelings.

 

 

Wu: Not at all (Smile). Of course, different people had different feelings. Some negotiators had been in this area of work for many years and certainly they were easily bored. I wrote in my book that Dong Baolin was even reluctant to enter the negotiations room and American negotiators were so eager to go home at Christmas that they were singing in the hall of the MOFTEC. You can see they were all fed up with the negotiations. But I cherished that experience very much. Everything was fresh to me and I could not endure missing any detail of the negotiations. Then I observed it and analyzed it with a journalist’s eye, without any pressure on me. What I recorded is accurate and objective. It is a true mirror of history. Another point is that if the negotiations were really boring, I would use vivid descriptions to attract more readers. After all, who will read a boring book that records boring things?  

 

 

Wu: I think the most wonderful negotiations were between Wu Yi and Hills, and between Tong Zhiguang and Hills. In my eyes, Hills was an “iron lady”. She was considered an impassable barrier in international negotiations and had “defeated” many opponents. Chinese negotiators also considered her a “hard bone”; a big trial. Another highlight was the Chinese side’s big fight back led by Wu Yi during her second attendance.

 

 

Wu: National interest, definitely. National interest is not a virtual thing, but substantive, and can be accurate to decimal points. When a negotiator sat before the negotiation table, he was stripped of all personal interests and became a representative of his country. He must clearly know how to play the cards!

 

 

Wu: Surely! Intellectual property in China is in essence an innate need of the country’s domestic development and opening up. However, if it were not for international negotiations, intellectual property in China could never have achieved such fast development. In other words, it is the international negotiations that urge us to develop intellectual property. The promulgation of China’s Copyright Law and Patent Law is, to a certain degree, driven by the Sino-U.S. IP negotiations.

 

 

Wu: Great changes have taken place. Several major laws have been amended and law enforcement has been strengthened. Moreover, I think people have raised copyright awareness. 20 year ago, it was the time of “collective unconsciousness of copyright” and piracy was everywhere. But now it’s the era of the awakening of people’s IP protection consciousness, which, in my opinion, is very important. Without the awakening of people’s IP protection consciousness, IP protection would be empty talk no matter how comprehensive or rigorous the legislation is.   

 

But there are still many problems, such as the irreconcilable conflict between scientific and technological development and IP protection.