I was attracted by some compelling terminology in the abstract of this new book by Qiaoling He – legal transplantation, industry-specific contexts and intellectual property enforcement – which align with my research interests, but I was new to the concept of “greyscale legality.” What this book attempts to do is measure the greyscale of the Chinese IP enforcement during legal transplantation through the investigation of specific industries. According to the author, “The feature of greyness is linked closely to the complexity of law enforcement during transplantation… The interplay between textual and contextual factors in shaping this greyness is where we must look to understand the variant industry-specific effects” (p. 14).

The term “legal greyness,” according to the author, implies two primary theoretical considerations: (1) interpretive and operative ambiguities within legal concepts and rules; (2) the interaction between legal texts and real-world contexts. The author states that other studies have overlooked the latter and confused the two, a “shortcoming” she attempts “to rectify … by providing a systematic analysis of how these two categories of factors interact in legal practice and offer a meaningful framework for comparisons across cases” (p. 16). She claims that “the emphasis on the interplay between legal texts and industry contexts offers a new perspective from which to explain observed variances in IP law enforcement across industries” (p.14). To achieve this goal, He devotes three chapters to explore six Chinese industries: chemical drugs, telecom equipment, biomedicine, medical devices, traditional Chinese medicine, and film and TV. She conducted extensive empirical research by interviewing a large number of industrial representatives to seek their views on how important IP, or patents, are in their R&D and in the protection of their intellectual assets.

It is not new to take an industry-specific approach in studying IP law, and many scholars have written on this topic. My own research since 2002 has also incorporated the industry-specific approach (see Imitation to Innovation in China: The Role of Patents in Biotechnology and Pharmaceutical Industries [Edward Elgar, 2010]). The consensus in the literature is that IP’s role and the level of its enforcement vary depending on the industry – they are strongest in the industries with heavy capital investment and lengthy R&D, such as pharmaceutical and film, and weakest in the industries with less capital investment and short invention cycles, like software development. Had the author exhausted the literature review on this topic she would not claim that the industry-specific approach adopted in her work is a new perspective that is particularly suitable for China as a case study (p. 18). Notwithstanding, she brings two unique contributions to this discourse. First, she further divides the broad health industry into four sub-industries – chemical drugs, biomedicine, medical equipment and traditional Chinese medicine – and finds that each of them represents a different level of “greyness reduction,” from the highest to the lowest. This division allows people to assess the role of IP not only from a broad industrial perspective, but also based on different R&D stages, types of invention and components within one broad industry. Second, the author applies the industry-specific approach to analyse the reduction of greyness in IP enforcement, which, to my knowledge, has not been done before, and allows readers to view from a micro-perspective how the enforcement effect of IP law can be impacted by the distinctive nature and actual operation of different industries.

He’s efforts in conducting extensive field studies through interviewing the industrial representatives are admirable and valuable as they help to understand how IP laws are perceived and enforced in practice. Regrettably, however, the study was limited to interviews and employed no surveys or other methods, raising doubts as to whether the interviewees’ personal views could represent the stance of the whole industry. Furthermore, all interviews were carried out at least ten years ago, making those data and observations less reliable and relevant to the assessment of the current situation of Chinese industries and IP enforcement, which have undergone enormous transformation in the past decade. In fact, the datedness is also apparent in the literature review as most sources cited are over ten years old, many even from 1980s. For example, the figures of R&D spending and patent filings were taken from the statistics in 2014 (pp. 17–18).

Possibly due to this, many of the author’s analyses and conclusions no longer fully reflect the current reality of Chinese industries and IP enforcement. For example, on one hand, He claims that the book “stands as a rebuttal to Eurocentric views that blame the complexities of legal transplantations on the contextual ‘weaknesses’ of developing countries alone” (p. 16). On the other hand, her view that “compared with Western societies, national contexts in China do not provide as much support for IPR enforcement” (p. 37) seems to be more supportive, rather than critical, of the Eurocentric view. Specifically, He attributes China’s weakness of law enforcement to the lack of three mechanisms: sophisticated enforcement techniques; participatory process or consensus; and judicial experience (e.g. pp. 37, 143). However, the sources supporting this attribution are largely from the 1990s or early 2000s (pp. 38–40), which are unrepresentative of, and even contrary to, the reality that in the past decade the Chinese government has invested heavily in IP enforcement, by establishing an IP Tribunal at the Supreme People’s Court, four specialist IP courts, one IP Prosecution Office within the Supreme People’s Procuratorate, 30 IP tribunals in the local courts, and many Internet Courts to cope with the ever-increasing number of cases (361,000 in 2024). Most IP judges are generally regarded as highly professionally trained and skilful, and China has the world’s largest team of patent examiners working on the highest number of patent applications. Last but not least, the use of the unqualified and undefined terms of “Western” and “non-Western” (e.g. pp. 34–37) may also fall into the Eurocentric narrative of Chinese IP enforcement and defeat He’s own endeavour for a more contextual analysis of the law.

In sum, this book deserves to be lauded for its effort in connecting IP law with the social study of greyscale legality and for the rich empirical studies of the interaction between China’s IP enforcement within the context of specific industries. This represents a valuable resource for legal scholars and sociologists interested in researching this topic in pre-2016 China.