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The two major domestic laws in the US legal system - "Special Section 301" and "337 Survey" perform their duties for seeking comprehensive protection of intellectual property rights. The former mainly targets the intellectual property system of other countries and mandates other countries' effectively product protection of the United States; The latter is used between the United States and other countries' trade, the United States will investigate and sanction foreign companies as well as the related products which constitute infringement, and exclude infringing products and related enterprises from the national market. It targets the enterprises of other countries and their products rather than the government of other countries. The combination of these two major domestic laws allows US intellectual property to be well protected while maintaining its competitiveness for a long time. Due to the wide applicability of the “Special Section 301”, the simplicity of the procedure, the rigorous relief measures and the limited right of the defendant to counterclaim, the number of “307 Survey” initiated by the United States in recent years remains high including more than one third of the cases targeting Chinese products.

Since the 1980s, the “337 Survey” has become an important tool for US companies to protect the intellectual property of their companies. The development of the domestic legal system of intellectual property in the United States has been perfected and has become a leader in intellectual property legislation in various countries of the world. On this basis, the United States has increased the investigation of companies that infringe on its intellectual property rights. This fundamentally strengthens the function of intellectual property protection in the United States. US government curbs foreign trade exports to the Unites States in order to adapt to the needs of the US new trade protectionism economic policy and foreign trade policy.

Li and Chen ’20 [June 2020; Wei Li, Intellectual Property Institute, Jinan University, Guangzhou, Guangdong Province, People’s Republic of China; Yichao Chen, School of Law, Jinan University, Guangzhou, Guangdong Province, People’s Republic of China; "A Study of the Influence of Intellectual Property on China–U.S. Trade Relations"; Sage Journals; https://journals.sagepub.com/doi/pdf/10.1177/2158244020915899; accessed 7-1-2024; Lowell-EL]

Regarding research on the current situation of intellectual property trade barriers built by America, the details of trade investigations carried out in the country are discussed in most cases. He Xingqiang (2008) analyzed the reasons why America has built an intellectual property trade barrier since 2004 and then proposed the viewpoint that China–U.S. trade disputes occur as driven by intellectual property business groups in America under the background in which the American government intensifies intellectual property protection. Liao Li (2015) deemed that law enforcement efforts in intellectual property continue to increase unilaterally, biliterally, and regionally in America. For example, law enforcement criteria for intellectual property stipulated in the Trans-Pacific Partnership Agreement (TPP) are enormously more rigorous than the standards provided in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In addition, Cui Riming (2007) systematically summarized the causes of China–U.S. trade friction in moving toward intellectual property protection. He considered that America turn to novel means, such as the Section 337 Investigation, in the circumstance that conventional trade remedy measures such as anti-dumping no longer satisfy the need to suppress products “Made in China.” By virtue of such new means with certain required characteristics, America is able to more effectively suppress Chinese products and enterprises. Moreover, studies by Xu Yuan (2011) found that the intellectual property barrier, with the feature of fierce market aggressiveness, mostly takes form with enterprises as its subjects in new and high-tech fields. Despite non-uniform judging standards, unbalanced settings among various countries and the absence of institutional constraints create a rather solid legal foundation and a higher level of concealment.

In Figure 2, an increase-decrease-increase fluctuation appears from Orders 1 to 4 when DLNBT responds to DLNIPPS and, subsequent to which, it remains stationary. The reason is that because the strength of Chinese intellectual property protection increases in the short term, China may exert certain technological restrictions over imports from America or possess certain technological superiorities in exports to America, such that America inevitably takes measures to safeguard imports and exports in the long run to prevent the occurrence of dumping, among others. The response of DLNBT to DIV slightly declines in Orders 1 to 2 and then tends to be stationary. Such a phenomenon illustrates that the intellectual property trade barrier established by America has a direct influence on China–U.S. trade. In view of the American economic strength, it has the ability to control the level of China–U.S. trade to a certain degree through trade investigations and additional tariffs. Furthermore, such a conclusion conforms to the process of the 2018 China–U.S. trade war.

Nine types of interplay listed in Figure 2 were also observed to eventually be inclined to be stationary, indicating that impulse response functions based on the VAR model have their own significance. In addition, when one variable changes, the other variable should be adjusted through a mechanism during a certain period to again ensure their coordination.

“We’re still seeing major issues with regard to transparency,” Vidal, under secretary of commerce for intellectual property, told Bloomberg TV in an interview in Shanghai on Thursday. “It’s about transparency in terms of judicial decisions, and transparency in terms of enforcement.”

Vidal raised the issue with Vice Premier Ding Xuexiang in Beijing earlier this week amid a flurry of visits by US and EU officials who complained over China’s manufacturing capacity and treatment of foreign firms. President Biden on Wednesday proposed raising tariffs on Chinese steel and aluminum as he sought to woo US steel workers ahead of November’s election, a move criticized by Beijing as arbitrary.

U.S. observers have long complained that Chinese firms steal intellectual property (IP) from American companies, universities, and research institutions.¹ Most of these complaints stress that the government of the People’s Republic of China (PRC) directs this theft. Other analysts focus on military applications of the theft. Both arguments are true, but presume that the problem’s ultimate source is policy. It is not. The fundamental source of the problem is China’s political system. The current Chinese political, legal, economic, and business structure disincentivizes innovation in favor of acquisition and imitation both domestically and internationally. IP theft is not simply a longstanding Chinese government policy; it is an inherent feature of the Chinese Party-State-Economy. Therefore, addressing the problem is far more challenging than most American policy makers and business leaders understand. This essay is for anyone who wants to defend U.S. IP from theft. My intention is to help Americans understand the origins, character, and scope of the threat, as well as some possible mitigations. Sadly, no comprehensive, effective, short-term solution exists.

IP theft is endemic to the Chinese political-economic system internally as well as externally. Therefore, to fully comprehend the threat and why it is impossible to eradicate, U.S. policy makers and business leaders must understand the massive incentives all Chinese companies face to steal IP. I start by examining those incentives, which stem from the PRC’s Party-State system. Next, I explain why that system discourages innovation, despite the frequently articulated contrary intentions of Chinese leadership. Third, I outline the connection between lack of innovation and IP theft. Finally, I conclude with recommendations for the U.S. government and private sector.

Ian Bremmer's Quick Take: Hi everybody. Ian Bremmer here and a Quick Take to kick off your week. US Secretary of State Tony Blinken in the Middle East right now. But he just came from China, Beijing and Shanghai, and the US-China relationship is what I'm thinking about. Want to give you a state of play. It continues to be better managed and more stable than we've seen in a long time. Now, not clear that would necessarily be the case, given the number of issues and places where we have friction between these two countries. Just over the course of the last couple weeks, you've got President Biden, putting new tariffs on Chinese steel, opening a new investigation into Chinese shipbuilding. You've got this anti TikTok policy that's coming down from US Congress. You've got $2 billion in additional military aid for Taiwan from the United States. You've also got lots of criticism from the Americans on ongoing Chinese support, dual use technologies for the Russians, allowing them to better fight the war in Ukraine. Given all of that, is the relationship starting to become much more confrontational? And the answer is not really. It's true that the Chinese foreign minister said that the Americans need to choose between having a relationship of containment and a relationship of partnership, and it's certainly true that the Americans would rather have it both ways. They want to have partnership in areas where it suits the Americans, and containment in areas where it suits the Americans. The Americans getting away with more than that than other countries can because the US is the most powerful country in the world and ultimately the Chinese need Americans more than Americans need China. Still, there's a lot of interdependence, and there is an ability to push back. How much is China actually doing that? And the answer is there's been very little direct Chinese tit for tat, despite all of the policies I just mentioned. It is true that overnight, the Chinese Foreign Ministry said that there would be resolute and forceful measures if the supplemental support for Taiwan, which is a red line for the Chinese, is signed and Taiwanese assistance from the US moves ahead, and I suspect that means we're going to see some more sanctions from China against US defense contractors. That is largely symbolic. It is a tit for tat. But on all the other policies I've mentioned that the Americans have just brought against China, we've seen Chinese focus on making their country and their economy more resilient against American efforts to contain, but not hitting the Americans back, not calibrated, moves of sanctions or reciprocal investigations. In fact, the Chinese have been pretty stable. Also. We saw that Xi Jinping still met with Secretary of State Blinken directly, a meeting that would be very easy for the Chinese government to take down, and historically certainly wouldn't have been present if there had been a lot of tension in the relationship. They chose not to do that. And in fact, Blinken went to a record store, you know, he plays guitar and sings, and he's into music. And the coverage from the Chinese state media of that trip was very humanizing, was very friendly, frankly, better coverage of a US secretary of state than I've seen at any point since Xi Jinping has been in power. That's something it's very easy for the Chinese government to put their thumb on the scale if they want to show that they're unhappy with where the US relationship is. I think about Obama and the town hall, that he wanted to put together and the Chinese unwilling to give him the kind of coverage that the Americans at the time had wanted. You know, this is a lesser official from the US and is still getting, frankly, tremendous treatment from the Chinese government. I think that matters a lot. Having said all of that, this is a relationship that is becoming more challenging to manage. And that's true because in the United States, whether you're Democrat or Republican, one of the very few things you can agree on in foreign policy is that there is a benefit in going after China. So the policy from the US is not just about Biden making decisions himself, but it's also about members of Congress. It's about governors. It's about the media. All of whom are taking their own shots. And they're not coordinated. Where from China, if Xi Jinping wants it, everyone basically rose in the same direction. Now, there are lots of American corporations and banks that are sending their CEOs, making trips with China right now. And there's much more people to people engagement between the two countries, something that Chinese officials are strongly focused on. There's a lot more communication and cooperation on things like climate, as well as in response to America's fentanyl crisis, where the Chinese are shutting down the labs, the companies that have been exporting the precursor chemicals. Those things matter. They are engaged. There's also a lot of willingness of the United States, at the highest level, to provide more information to China, just on what the Americans are seeing happening around a confrontation in the Middle East that China would like to see a cease-fire for, so would the Americans at this point. And also, the Chinese don't have a lot of high level diplomats and a lot of ability to collect information that the Americans do. And when high level Americans are talking to their Chinese counterparts about the Middle East, the Chinese are very much in taking notes mode and appreciating that they're getting that information from the US. So overall, I continue to see a lot of high level engagement that is very constructive. But coming against a relationship that has virtually no trust and where the baseline of conflict is going to pop up in a lot of different ways and a lot of different places around the world. Over time it's going to be harder to maintain that stable floor on US-China relations. But for now, I think we're likely to continue to see it, at least until elections in November. That's it for me. I'll talk to you all real soon.

The relationship between the United States and China is undoubtedly the most consequential of all relationships for the global order today. Together, the United States and China account for more than 45 per cent of global output and nearly a quarter of world trade. Despite the diversion of US trade from China because of the trade and technology wars initiated under President Trump — but also prosecuted under President Biden — their economies remain closely linked through trade and international financial ties. Importantly, they have deeply interdependent economic relations with the East Asian economies on which the whole Asia Pacific region’s economic prosperity is built. They have more common interest in cooperation on meeting the global threat of climate change than any other two countries on the planet.

At the same time, these two superpowers are shaping up to an awkward and unstable military-strategic face-off across the Pacific. In this week’s lead article, David Lampton and Thomas Fingar point out that ‘[no] foreign policy challenge is more important [for the United States], or difficult, than finding a way to simultaneously deter and engage China without provoking unwanted behaviours’. They also acknowledge that ‘… this requires understanding the perceptions and priorities now shaping Beijing’s actions’.

From 2018 to 2023, U.S.-China relations were in a linear downward spiral. The trade war, the pandemic, growing technology competition, rising tensions in the South China Sea and the Taiwan Strait, and contrasting approaches to the Russia-Ukraine conflict have collectively fed a sense of fatalism that the countries were heading toward the abyss of outright economic decoupling and a disastrous military conflict. The summit meeting between Presidents Joe Biden and Xi Jinping held in November near San Francisco, just in advance of the APEC Economic Leaders’ Week, was the culmination of a year-long process that calmed the waters. The two sides announced a range of deliverables on economic and security issues and tried to convey a sense that they could effectively manage their differences. Although the United States and China are still engaged in a comprehensive contest for power and over setting the global rules of the game, guardrails are gradually being created, and as a result, the likelihood of the most disastrous outcomes has receded. Moreover, even though the chances of a genuine thaw that resolves fundamental differences and leads to greater cooperation are low, there also are underappreciated sources of structural stability that could keep relations from further deteriorating in the coming years. Nevertheless, it will take active diplomacy and some good luck to keep ties from fraying in 2024. Surpassing Low Expectations During their four-hour meeting on the Filoli Estate in Woodside, California, both Biden and Xi appeared to stick to their original positions on technology and economic security, Taiwan, Ukraine, human rights, and several other issues. At the same time, they were able to produce a series of deliverables exceeding the expectations of most analysts. Based on the readouts from the White House and People’s Republic of China (PRC) media (Xinhua, Caixin), it appears that, at a minimum, the two sides agreed to several actions: Resume military-to-military dialogue through a variety of channels and on a number of specific topics. Commit to accelerate efforts to expand renewable energy and reduce carbon emissions, including from methane and other greenhouse gases, in accordance with the joint statement issued at Sunnylands just before the bilateral meeting. Restore and expand cooperation on countering the production and trafficking of fentanyl and other narcotics. Step up discussions to minimize risks related to artificial intelligence. Push for more direct flights between the two countries and expand people-to-people exchanges. Begin consultations aimed at renewing the U.S.-China Science and Technology Cooperation Agreement, which is set to expire in late February 2024. Beyond specific actions, the two sides adjusted the tone of how they frame the relationship.

The desire to stabilize relations is genuine on both sides. In the days following the San Francisco summit, one felt a palpable sense of relief in both bureaucracies that the meeting, which capped off months of shuttle diplomacy, was a success. During my trip to China in December, nearly everyone I encountered — from policy experts to businesspeople to students and cab drivers — asked whether U.S.-China relations might improve in the coming months. This interest wasn’t surprising given many Chinese believe their country’s development and economic fate still heavily depend on good relations with the United States and the West.

U.S. trade with China has grown enormously in recent decades and is crucial for both countries. Today, China is one of the largest export markets for U.S. goods and services, and the United States is the top export market for China. This trade has brought lower prices to U.S. consumers and higher profits for American corporations, but it has also come with costs. The optimism that accompanied China’s entry into the World Trade Organization (WTO) twenty years ago has vanished as Beijing continues to embrace state-led development, pouring subsidies into targeted industries to the detriment of U.S. and foreign companies. Though U.S. consumers have benefited from the flood of cheaper goods from China, millions of Americans have lost their jobs due to import competition. Meanwhile, investment by Chinese companies is raising national security concerns. The United States has long accused China of pressuring American companies to hand over their technology, or of pilfering it outright. How to respond to China now sits at the center of the U.S. political debate, with President Joe Biden following his predecessor, Donald Trump, in adopting an aggressive economic approach. For thirty years following the establishment of the People’s Republic of China in 1949, there was virtually no trade between the two countries; Washington had severed ties with the communist government in Beijing. China began a decades-long process of economic reform in the late 1970s under the leadership of Deng Xiaoping. His government loosened state control over the economy and allowed private industry to develop. In 1979, the United States and China normalized relations as Chinese policymakers aimed to boost trade and investment, and in 1986 Beijing applied to rejoin the General Agreement on Tariffs and Trade, the WTO’s predecessor. After protracted negotiations with the United States and other WTO members, China joined the organization in December 2001. As a condition of admission, Beijing committed to a sweeping set of economic reforms, including steep tariff cuts for imported goods, protections for intellectual property (IP), and transparency around its laws and regulations. At the time, U.S. President Bill Clinton and his advisors contended that bringing China into the global trading system would not only benefit the United States, but also foster economic and ultimately democratic reform in China. Still, the move was opposed by U.S. labor unions and many congressional Democrats, who argued [PDF] that China’s weak worker and environmental protections would incentivize similar practices elsewhere and bring about a “race to the bottom.” Even before China joined the WTO, trade between the two countries was growing. But WTO membership ensured “permanent normal trade relations,” thereby providing U.S. and foreign companies additional certainty that they could produce in China and export to the United States. Trade surged: the value of U.S. goods imports from China rose from about $100 billion in 2001 to more than $400 billion in 2023. This leap in imports is due in part to China’s critical position in global supply chains; Chinese factories assemble products for export to the United States using components from all over the world. U.S. consumers have benefited from lower prices, and U.S. companies have profited immensely from access to China’s market. In a 2019 study, economists Xavier Jaravel and Erick Sager found that increased trade with China boosted the annual purchasing power of the average U.S. household by $1,500 between 2000 and 2007. China is now the third-largest export market for the United States, behind Canada and Mexico. A 2023 report by the U.S.-China Business Council, an industry group, found that exports to China supported more than one million jobs in the United States, or about 0.5 percent of the civilian labor force. American companies earn hundreds of billions of dollars annually from sales in China—money they can then invest in their U.S. operations. Chinese companies have invested tens of billions of dollars in the United States, though this investment has dwindled in recent years amid heightened U.S. government scrutiny. For China, the gains from trade with the United States and the rest of the world have been tremendous. Since 2001, China’s economy has grown more than five-fold, adjusted for inflation, and it is now the world’s second largest, behind only the United States. (By some measures, it is the largest.) Hundreds of millions of people have escaped extreme poverty as a result of this growth.

New tariffs imposed by the United States on China are politically motivated and are not likely to lead to an uncontrolled trade war, analysts said on Wednesday (May 15).

Following a review of tariffs imposed during a trade war between Washington and Beijing, the White House announced on Tuesday that it is hiking tariffs on US$18 billion worth of imports from China, targeting strategic sectors like electric vehicles (EVs), batteries, steel and critical minerals.

On May 14, U.S. Trade Representative Katherine Tai released a review report on the Section 301 tariffs imposed on China and issued a statement indicating that President Joe Biden had directed her to take further action. This includes imposing additional tariffs of 25 percent to 100 percent on strategic products from China, such as electric vehicles, solar cells, and medical supplies. Subsequently, the White House announced new tariffs on $18 billion worth of Chinese imports. 

After a period of noticeable easing, China-U.S. relations seem to be becoming tense again. However, given the scope and scale of these new tariffs, along with the Biden administration’s strategic considerations, there is little need to worry about a new trade war between the United States and China this year – even factoring in potential Chinese countermeasures. But next year remains uncertain.

The annual survey conducted by the China General Chamber of Commerce in the U.S. found that nearly 60% of companies aim to maintain a stable level of investment and that about 30% plan to boost it.

“A notable degree of long-term optimism persisted, with the majority expressing positive future revenue expectations,” CGCC said, adding that the survey reflected “a commendable sense of optimism, determination, and resilience.”

FORTUNATELY, THERE IS a sound alternative to the current knee-jerk China hawkishness—one that recognizes the real challenges that China poses yet relies less on self-flagellation and beggar-thy-neighbor bellicosity and more on America’s traditional, proven strengths.

First, the United States should embrace unilateral tariff reform. Most obviously, the administration should immediately lift the Trump-Biden tariffs on imports from China, which cover goods wholly unrelated to national security, harm the U.S. economy, and fail to discipline China’s mercantilism, all while emboldening CCP hardliners. Other tariffs on industrial inputs, raw materials, and capital goods—which undermine both American manufacturers’ global competitiveness and relations with key allies—should also be lifted.

China’s property market, which accounts for about 30 percent of China’s gross domestic product (GDP), has been in freefall since the collapse of Evergrande Bank in the Fall of 2021. The fallout from that, as well as the disastrous “Zero COVID” policies of President Xi Jinping, has prompted the largest correction of China’s economy in recent history.

There are now serious discussions among China experts that China is collapsing.

Speculation about the on-and-off U.S.-Chinese trade talks centers on whether the two sides will eventually settle for a truce or push for a “complete deal,” which U.S. President Donald Trump remains adamant he will obtain. Any grand bargain will require progress on a key structural issue: intellectual property (IP) rights. According to some reports, Chinese IP theft has cost the United States $225 billion to $600 billion a year. No wonder, then, that getting China to better protect IP is a point of rare consensus among both the White House and the Democratic leadership.

But history tells us to be cautious; Washington’s demands are unrealistic. Countries do not enact strong IP rights systems until their ability to innovate at home displaces reliance on outside knowledge. The United States’ own centurylong drift toward strong protections is a case in point.

U.S.-China relations are at their worst in decades, experts routinely declare. A long list of disagreements includes Taiwan, Russia and the semiconductor trade. Is there still any hope for collaboration between the two powerful countries?

A forum organized by the Asia Society's new Center for China Analysis on “China’s Future: What It Means for Asia and the World” in New York on Monday highlighted at least two areas that are still of promise: the fight against cancer and the push to a carbon neutral future.

Campbell told Washington's Stimson Center think tank China needed to reassure investors and others that it has a plan for its economy and would not be looking to create frictions that could escalate in unpredictable and dangerous ways.

"It's very hard for China to take certain steps without harming its own economy," Campbell said. "And I think we now understand that economic performance is central right now to what is important to President Xi."

In addition, many 'end of the world' narratives interpellate subjects of white privilege by assuming that readers are not (currently) affected by the harms distributed unequally by global structures of environmental racism. For instance, Barnosky and Hadley) state, if you are anything like we are, you probably think of pollution as somebody else's problem…you probably don't live near a tannery, mine dump or any other source of pollution'. For many people of color, living near a source of pollution may be nearly inescapable as a result of structural-material discrimination, including zoning practices and the accessibility of housing. 30 Viewing ecological harms as 'someone else's problem' is a privilege afforded to those who have never been forced contemplate the destruction of their communities or worlds.31 At the same time, these authors - along with many others working in the genre - invoke narratives akin to 'all lives matter' or 'colour-blindness’ that erase unequal distributions of harm and threat. For instance, during their international travels for scientific research and leisure, Barnosky and Hadley (italics ours) describe a dawning awareness that the problems we were writing about were everybody's problems no one was escaping the impacts. . . including us'. They go on to frame as equivalent flooding in Pakistan that displaced 20 million people and killed 2000 with the inconveniences caused by the temporary flooding of the New York subway system in 2012. In addition, they cite evidence of endocrine disruption in American girls caused by pollution, stating that the youngest of the cohort are African American and Latina but that "the most dramatic increase is in Caucasian girls. In this framing, even though BIPOC children remain most adversely affected, white children are pushed to the foreground and framed as more urgently threatened in relative terms. These comparisons background the disproportionate burden of ecological harm born by BIPOC, and reflect a stark calculus of the relative value of white and BIPOC lives. The 'all lives matter' logic employed here constructs a universal human frailty in which responsibility for ecological threats is attributed to humans' in general, and the assignment of specific culpability is avoided. While Newitz avers that assigning blame [for ecological harm] is less important than figuring out how to. .. survive, we argue that accurately attributing responsibility is crucial to opening up futures in which it is possible to dismantle the structural oppressions that unequally distribute harms and chances for collective survival.

Preoccupation with the subjects of whiteness in end of the world' discourses is also reflected in the framing of BIPOC communities as threats to the survival of 'humanity'. These fears are perhaps most simply and starkly expressed in anxieties over population decline within predominantly white countries, paired with palpable fear of rising birth rates amongst BIPOC communities. Chillingly, such fears are often connected to the mere biological survival of BIPOC, and the reproductive capacities of Black and Brown bodies - especially those coded as "female', and therefore fertile' within colonial gender binaries. For instance, in his treatise on "over'-population, American settler science writer Alan Weisman addresses the 'problem' raised by the likely significant increase of survival rates (especially amongst children) as a result of widely-available cures for illnesses such as malaria or HIV. Since, he avers, it would be "unconscionable to withhold these vaccines, Weisman suggests that malaria and HIV research funding should also promote family planning - that is, control of BIPOC fertility - since 'there's no vaccine against extinction' Here, BIPOC survival and reproductivity is literally - even if not strictly intentionally - framed as an incurable disease that could culminate in 'extinction'. Although some of these discussions examine total growth in human populations globally,38 much of this research focuses on relative population sizes, usually of BIPOC-majority places to those inscribed as white. For instance, British doctor John Guillebaud predicts a 'birth dearth' in Europe while likening 'unremitting population growth' in other parts of the world to "the doctrine of the cancer cell' 39 Although these regions are described in various ways throughout the genre - for instance, as 'poor' or 'developing', the areas slated for growth are almost always BIPOC-majority. For example, Hungarian demographer Paul Demeny argues that Europe's population is steadily shrinking 'while nearby populations explode. Drawing on Demeny's work, Homer-Dixon warns of a future 3:1 demographic ratio between North Africa/West Asia and Europe, along with 70% growth in Bangladesh, 140% growth in Kenya, and a doubling of the populations of Iraq, Saudi Arabia, Pakistan, and Nigeria. Directly after sharing these statistics, he appends a list of international news reports referring to, for example, clashes between Indigenous communities in Kenya, riots in Shanghai, and murder rates in Mexico. In so doing, he directly juxtaposes BIPOC population growth with stereotypes of violence and 'incivility'.

Admittedly, a framework that delves deeper into actual or potential harms to the author or their creative environments may not sit well with advocates for an expansive public domain. 293 As Professor Lessig and others have argued, culture is typically conceived of as a social text, a shared referent between individuals in a society that grows in meaning and value as it is freely used. 294 The more a cultural referent is used and reused, the more it is enriched, diversified, and increased in value. 295 While in theory fair use should balance the public's interest in access to cultural referents against the incentives necessary for creators to produce and develop them, these commentators believe fair use's fact-intensive inquiry "in practice becomes the right to hire a lawyer," thus stifling creative progress. 296 Thus, these scholars advocate for a fair use test that minimizes consideration of the potential harms to authors in favor of greater public access. 297

While arguments for expanding the settler public domain may dismiss or refocus the second factor by making broad assumptions about the nature of authorship, these arguments may not fully account for the loss of creativity that may result as creators and their creative networks - particularly Indigenous ones - lose confidence that their investments in creativity will be protected.