The Treaty as to Commercial Relations of 1903: China and Extraterritoriality

Abstract

The history of United States and Chinese intellectual property relations formally began with the signing of the Treaty as to Commercial Relations in 1903. The next three years saw the Chinese government frequently present revised versions of the 1903 Treaty’s implementation terms, with the 1905 Shangpu Draft responding to foreign merchant requests by removing its commitment to extraterritoriality—a regime whereby Western citizens in China were subject solely to the laws of their own country and not to Chinese laws. In this article, I document the intellectual property violations by Americans and Europeans in China, and how the legal case made by China for the removal of extraterritoriality, specifically for intellectual property violations, was a sign in itself that China was increasingly attentive to the mechanisms and constraints involved in legal reform. The collapse of the negotiations in 1906 would serve as a critical juncture in the commitment and interest of China to pursue intellectual property reform, with the US and China not signing another treaty concerning copyright until 1946. The refusal by the US to compromise on extraterritoriality contributed, in part, to the ‘four decades of inaction’ in intellectual property affairs.