China's economic rise and China's active development of trade relations with other countries in the world have attracted more and more attention from the international community. At the same time, China officially became a member of the WTO in 2 1, and fully fulfilled its commitments when it joined the WTO. It will assume its rights and obligations in the field of intellectual property rights, fully implement the TR IPS agreement, and protect the development of international trade and intellectual property rights from infringement. In order to realize that GATT and WTO are committed to reducing tariffs, eliminating discriminatory treatment and other trade barriers and gradually realizing trade liberalization. However, the work of GATT and WT focuses on the negotiation of tariff reduction in various countries and the implementation of the general principle of eliminating quantitative restrictions, and does not completely restrict the large number of non-tariff barriers in international trade. At present, the protection of international intellectual property rights and the abuse of rights have not only become a major obstacle to the liberalization of international trade, but also a major constraint to the development of foreign trade in China.
1. The strengthening of international intellectual property protection has restricted China's expansion of foreign trade
24 was another year of rapid growth of China's foreign trade. On the basis of an increase of 2118% in 22 and 3711% in 23, China's foreign trade increased by 3517% in 24. The total import and export volume exceeded $1, billion for the first time, reaching $1,154.8 billion, and its ranking in world trade rose from the fourth place in 23 to the third place. The annual increase in import and export exceeded $3 billion on the basis of more than $1 billion in 22 and $2 billion in 23. [1]
The above data reflects the rapid development of China's foreign trade, but at the same time, the news that China enterprises have encountered intellectual property disputes in domestic and overseas markets has come one after another, and intellectual property rights have become an unavoidable focus for China enterprises to participate in international competition. With the development of science and technology, the relationship between intellectual property rights and international trade is increasingly close. Therefore, while vigorously encouraging the development of knowledge and technology-intensive industries, all countries pay great attention to the intellectual property protection of export commodities and technologies. Intellectual property, in the eyes of some enterprises, has become an untouchable forbidden area, while in the eyes of the general public, it has become a monopoly, a "law of the jungle" under modern civilization. However, in any case, it is not uncommon for domestic enterprises to suffer both economic and reputation losses due to intellectual property issues, and the alarm of attaching importance to "intellectual property rights" has sounded in our ears.
While China is accelerating its integration into the global economy, the intellectual property crisis has given us a red light. In January, 25, shortly after China entered the WTO, the international giant Intel sued the voice card produced by a company in China for infringing its patent, and shortly after that, Japan Sanyo began a dispute with Shenzhen BYD about battery patent. In February, the American Electronic Entertainment Association (ESA) submitted a report from the International Intellectual Property Protection Alliance (IIPA) to American business representatives, pointing out that China, together with Malaysia and Russia, has become the three countries with the most serious game software piracy in the world. China has become the world's largest producer, consumer and exporter of counterfeit and genuine products. When more and more China enterprises and China products play an important role in the global market, the intellectual property crisis casts a shadow over this globalization process. The intellectual property pressure from the United States, the European Union, Japan, South Korea and other patent powers has set a high threshold for China. By suppressing China enterprises and China products through intellectual property rights, China enterprises have entered a strange circle of internationalization: production-patent restriction of multinational companies-payment of huge patent license fees and infringement fees-reproduction.
The strengthening of international intellectual property protection affects the globalization process of enterprises in China, because China enterprises lack independent intellectual property rights and have to pay huge patent fees, or because the huge fees generated by intellectual property litigation greatly increase the various costs of enterprises, which significantly reduces the competitiveness of China products in the international market, and also affects China enterprises' foreign direct investment and transnational production. At the micro level, intellectual property barriers reduce the market competitiveness of products, reduce market share and reduce profit margins by paying huge patent royalties and infringement fees, which is the short-term effect of intellectual property rights; In the long run, the reduced capital accumulation due to the decrease of enterprise profits will lead to the insufficient investment in technology research and development, and it is impossible to fundamentally improve the technology structure and product structure of enterprises, which will inevitably lead enterprises to a desperate situation in the era of technology as the core competitiveness. At the macro level, the whole related industries will reduce the production and sales of products in a short period of time because of intellectual property barriers. In the marketing era with the market as its lifeblood, the industry will not be able to resist the industrial shrinkage caused by the shrinking market. If this situation lasts for a long time, the industry will eventually die out in the competition. This has a great impact on the development of the national economy, international economic sovereignty and the future status of China's science and technology in the world. Undoubtedly, when the global economy enters the era of industrial restructuring, China enterprises lacking intellectual property rights will be unable to change the unfavorable situation that they are at the end of the industrial chain and downstream of the value chain, and will be subject to others in globalization.
II. Analysis of the Impact of Strengthening the Protection of International Intellectual Property Rights on China's Foreign Trade
Intellectual property rights refer to the exclusive rights that citizens or legal persons enjoy according to law for their inventions, achievements and works in the fields of science, technology, culture, art, etc., that is, the rights that people enjoy according to law for the intellectual achievements created by their mental activities. The intellectual property rights referred to in the Agreement on Trade-related Intellectual Property Rights of the World Trade Organization include: copyright and related rights, trademark rights, geographical indications rights, industrial design rights, patent rights, layout-design rights of integrated circuits, and exclusive rights of undisclosed information. [2] When intellectual property rights can become the object of transactions independently, other transactions in international trade are related to intellectual property rights.
it can not only be the object of trade itself, that is, the so-called intellectual property trade, but also profoundly affect the international trade in goods and services. The carrier of trade in goods-commodities, and the carrier of trade in services-intangible assets are inextricably linked with intellectual property rights. [3]
In terms of the impact of intellectual property protection on international trade, it is generally believed that the higher the degree of intellectual property protection in a country, the higher the level of development of international trade. They believe that since the 198s, the proportion of technology, knowledge and capital in international trade has increased year by year, and the transfer of goods related to intellectual property rights has also been increasing, doubling every five years on average. The GATT research report also claims that 2% (that is, nearly 8 billion US dollars) of world trade belongs to counterfeit and imitation trade. Serious infringement has affected the normal operation of international trade, and the trade interests of countries are closely related to intellectual property protection. [4] We believe that the growth of intellectual property rights and trade in goods or services related to intellectual property rights has had a significant impact on international trade, but whether this is necessarily related to intellectual property protection remains to be studied.
intellectual property protection has become a hot topic in current society, and it seems that strengthening the intellectual property protection system has become people's awareness. However, the purpose of formulating intellectual property protection system is not to protect intellectual property itself, but to stimulate innovation, safeguard social equity, and then promote all-round social and economic progress. It is precisely in achieving the above-mentioned goals that unilaterally strengthening intellectual property protection may go into a misunderstanding, which is not conducive to realizing the original intention of the intellectual property system.
(1) Excessive intellectual property protection hinders economic growth and technological innovation
The intellectual property system is usually praised by its proponents as a progressive driving force to promote economic growth and technological innovation. However, the fundamental driving force of innovation comes from competition, and intellectual property protection is essentially a monopoly. Monopoly can provide incentives for innovation, but it can also encourage former innovators to rely on monopoly to obtain high profits, thus weakening the driving force of technological innovation. The greater the intensity of intellectual property protection, the higher the monopoly income of innovators in the past, and the motivation for further innovation tends to weaken. In the modern financial market where financial innovations emerge one after another, once an innovative financial instrument comes out, other financial institutions will immediately follow suit, but the pace of financial innovation has not slowed down. Software, computer and semiconductor industries are the industries with the most concentrated technological innovation at present, but the speed of technological innovation in these industries was not slow when patent protection was quite weak in the past, and many decisive technological innovations currently used were developed at that time. However, after the United States federal court ruled in the 198s to strengthen the protection of software patents, software development was lacking in creativity, because the software enterprises that obtained monopoly rights only needed to develop and upgrade their products to make huge profits. What consumers get is no longer brand-new software, but only the first version of a certain software. Many research results show that the strict intellectual property protection system has not changed the number of innovations, but only changed the direction of innovation.
(II) Strict protection of intellectual property rights will inspire the morality of enterprises
Proper use of intellectual property rights can attack competitors and protect the position of enterprises in market competition. However, in today's increasingly intensified international intellectual property protection environment, enterprises in developed countries have a strong motivation to use the strict intellectual property protection system to set obstacles for competitors, not to engage in innovation themselves, and not to allow competitors to engage in innovation to win competitive advantages. Some market players' practices are even more blackmail, such as the endless incidents of registered trademarks, and even a world-famous big company like Siemens is not immune from customs. The registered trademark of Hisense makes Hisense, which wants to explore the European market, almost rejected from the German market and has no chance to participate in the competition. For most enterprises in China, the competitiveness of our enterprises is still very weak. Coupled with the influence of intellectual property protection in developed countries, we can only slowly update and create state-owned technologies, or illegally steal intellectual property rights from other countries to achieve development.
(3) excessively strict intellectual property protection will worsen the conditions for innovation
excessively strict intellectual property protection forces innovators not to focus on innovation, but to avoid stepping on "infringement" mines. The setting of patent projects in the United States is becoming more and more detailed. In the past, people set patents for every new software, but now they set patents for almost every code. On the surface, it is beneficial to protect the interests of inventors, but in fact it greatly hinders the overall technological innovation. Because in this way, no matter who wants to make achievements in the field of software, he should consider whether the coding used in the software infringes the patent rights of others. At present, China should get more support and help from developed countries in terms of capital, especially technology, in order to narrow the gap with developed countries more quickly. Excessive protection of intellectual property rights, on the one hand, increases the actual cost of importing technology in China, on the other hand, it also increases the psychological burden of enterprises in the process of independent knowledge innovation, and always hesitates for fear of "infringement", which hinders the process of technological progress and innovation of Chinese enterprises.
(D) Developed countries can use intellectual property protection to seize the interests of developing countries
Developed countries have the advantage of knowledge, and they will use the characteristics of intellectual property rights to plunder developing countries in combination with the characteristics of international trade protection-intellectual property barriers are hidden, discriminatory and retaliatory [5].
the combination of intellectual property rights and technical standards greatly improves the technical difficulty of standards, which makes developing countries that passively accept standards have to pay high royalties to meet relevant standards. This technical standard is reasonable and legal under the cover of intellectual property rights, which makes enterprises seldom consider whether the formulation and implementation of this technical standard is reasonable. For example, the United States can use the retaliatory characteristics of intellectual property rights to protect itself and attack its opponents. Retaliation mainly means that some countries take advantage of the relevant provisions in their domestic trade laws to retaliate against other countries on the grounds that the protection of intellectual property rights in other countries does not fully affect normal trade. Among them, the American super clause 31 and clause 337 are the most representative. The Super 31 clause in the domestic trade law of the United States stipulates that the United States will retaliate against countries that consider unfair trade practices against the United States, including those that the United States considers inadequate protection of intellectual property rights. Retaliation measures include raising tariffs on imported goods or adopting import restrictions, taxing or restricting the services of the countries concerned until the trade treaty signed by the two countries is terminated. Section 337 is section 337 of the United States Customs and Tax Act of 193, and it is currently section 1337 of the 1988 Comprehensive Trade Act revised in 1994. This section is also called the unfair trade practices clause, which mainly controls products imported by foreign manufacturers into the United States that infringe on American intellectual property rights. If the Section 337 investigation is established, the exporter's products may be permanently excluded from the US market.
(V) There is a problem of interest transfer in the implementation of intellectual property protection
The main holders of intellectual property rights are modern industries, and one of the characteristics of modern industries is that most enterprises' sales markets span multiple administrative regions, which leads to the fact that the beneficiaries and the cost-bearers in the implementation of the intellectual property system do not completely overlap. The beneficiary is the enterprise, and the government of the place of sale needs to pay a higher execution cost, and the tax revenue increased by the beneficiary enterprise may not be obtained by the government of the place of sale who pays the execution cost, thus causing the problem of interest transfer. The above-mentioned problems can be partially solved by some kind of transfer payment mechanism between domestic regions, but there is no such mechanism internationally. As we all know, in China, it is those western multinational companies that advocate strict protection of intellectual property rights and benefit the most. These multinational companies also enjoy higher tax treatment than domestic enterprises, and their tax evasion is also quite serious. If there are no other supporting measures, strengthening the protection of intellectual property rights that benefit them will, to a certain extent, result in the transfer of interests in favor of the home country of multinational corporations.
iii. China's countermeasures to strengthen international intellectual property protection
The forms of intellectual property barriers are complex and diverse, and the fields of activities in international trade are gradually expanding, the commodities involved are gradually increasing, and the impact on the import and export trade of relevant countries is gradually deepening. As a developing country, China needs to introduce advanced intellectual property technology from developed countries and encourage export trade to promote economic development. Therefore, while developing trade, China will inevitably encounter various forms of intellectual property barriers. In view of different intellectual property barriers, China should adopt different countermeasures.
(1) establish the enterprise intellectual property strategy. Enterprises are the
market in China.