An interesting recent series of discussions on Prof. Don Clarke’s China Law List regarding Chinese government liability for civil liability led me to reflect on several instances in conferences in China where I asked about Chinese government liability for patent infringement. 

Government liability for patent infringement in the US is governed by 28 U.S.C. 1498, which provides that a suit against the Government in the U.S. Court of Federal Claims is the exclusive remedy for patent holders who allege their patented invention has been infringed by the U.S. Government or by one acting for the Government. China lacks such a Court of Claims. However, it seems reasonably clear that the Chinese government can be held civilly liable.

What about Chinese government liability for IP infringement? I am not aware of any case brought by a foreigner against the Chinese government for infringement. I suspect most foreign companies would be concerned about the political cost of bringing such a case and would have a dim view of the likelihood of success in suing the Chinese government.

Steve McIntyre, an attorney with O’Melveny & Myers in Los Angeles has written an article on lawsuits against Chinese government agencies for copyright infringement, including suits by an alleged  “copyright troll” , 三面向 (san mian xiang).  San mian xiang had brought over 200 copyright lawsuits against on-line infringers on behalf of 150 authors.  The majority of these suits involved websites that were owned or controlled by Chinese government agencies.  The company’s practices of buying up copyright interests arguably help authors that often do not have adequate economic incentives to enforce their copyrights while at the same time holding the Chinese government accountable for copyright infringement. SMX’s practices are described in these two articles.

Steve has also written on government “fair use” defenses in copyright litigation, which he has kindly authorized me to post here.

Update of November 6, 2019: It would be interesting to compare the Chinese government approach to the handling of copyright infringement lawsuits against the Chinese government with similar controversies in the US involving state governments, including the pending Supreme court copyright case, Allen v. Cooper.