How to Assess Compliance with the TRIPS Agreement: Concepts and Methods
The Concept of “Compliance”
Defining the Concept of “Compliance”
A broad concept is necessary to be able to fully evaluate China’s interactions with the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS). This may be provided by the concept of “compliance,” which is a key term with its origins in international law (Chan 2006, p. 4). Compliance and law are “conceptually linked because law explicitly aims to produce compliance with its rules: legal rules set the standard by which compliance is gauged” (Raustiala and Slaughter 2002, p. 538). Indeed, the concept of compliance has become a “central preoccupation” in international law scholarship in recent years (Howse and Teitel 2010) and has also been increasingly used by political scientists and those in the field of international relations since the 1980s. However, despite such academic attention, there is still little consensus regarding the nature of compliance and how it can be measured. This chapter will first attempt to define the concept of compliance before reviewing and categorising some of the existing theories of compliance. The comprehensive framework of compliance which will be used in this study will then be introduced and previous studies of compliance in the Chinese context will also be outlined.
Compliance is desirable not only to tackle the problem that the rule was created for in the first place, but also “both to protect the rule and to protect the entire system of rules” (Fisher 1981, p. 21). In other words, China’s compliance with the TRIPS Agreement is sought after not only to contend with the problem of intellectual property (IP) infringements, but also to protect the TRIPS Agreement itself and the entire World Trade Organisation (WTO) system. As a result, China’s compliance with the TRIPS Agreement is worthy of study for various reasons, not only to analyse the development of the IP system in the People’s Republic of China (PRC), but also to judge the effectiveness of imposing international IP standards through the framework of the WTO.
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K. Thomas, Assessing Intellectual Property Compliance in Contemporary China, Palgrave Series in Asia and Pacific Studies,
However, operationalising compliance as a variable is problematic. It is clear that “one cannot simply read domestic legislation to determine whether countries are complying” (Jacobson and Brown Weiss 1998a, p. 2). The substantive measures that the state takes in order to make the specific international accords applicable to domestic law should rather be referred to under the concept of implementation or what has also been descriptively called “paper compliance” (Webster 2014). However, it is clear that compliance goes beyond mere implementation of international commitments into domestic law; compliance “refers to whether countries in fact adhere to the provisions of the accord and to the implementing measures that they have instituted” (Jacobson and Brown Weiss 1998a, p. 4). In other words, to what extent are the substantive laws on paper actually applied and upheld in practice? Compliance also needs to be differentiated from effectiveness, which is related to compliance but is not identical. Effectiveness can be seen from two perspectives: in achieving the stated objectives of the treaty and in addressing the problems that led to the treaty. Effectiveness may be achieved without compliance and equally, compliance might be fully achieved without effectiveness. Thus, “compliance” is a difficult concept both to define and to measure.
Furthermore, even with a clear definition of the concept, compliance is difficult to assess in practice. This is because it is clear that perfect compliance never occurs; “in reality, there is a level of acceptable practical compliance in the light of regime norms and procedures” (Kent 1999, p. 232). Therefore, despite an abstract concept of full and complete compliance, something less than this is usually accepted in most international accords. Even within a specific international accord, there may not be a fixed judgement of what level of compliance is acceptable. “Consequently, what is compliance to some may not be regarded as such by others. Seen in this light, the nature of compliance and the standards for measuring compliance are by and large relative rather than absolute” (Chan 2006, p. 66). These variations in the standard of acceptable compliance have implications for the study of China’s compliance with its TRIPS obligations as, “in the end, assessing the extent of compliance is a matter of judgment” (Jacobson and Brown Weiss 1998a, p. 4). However, despite these difficulties in objectively analysing compliance, it is still an important aim.