Exploring the Enforcement Gap Using the Comprehensive Model of Compliance
According to the comprehensive model of compliance outlined previously, in addition to the characteristics of the activity involved, the characteristics of the accord and the international environment, there are various country-specific factors which should be considered in analysing China’s compliance with the provisions of the TRIPS Agreement. Under this model, these country-specific factors can be divided into three categories: parameters, fundamental factors and proximate factors. It is immediately clear that these categories may not be mutually exclusive and indeed, there is a considerable overlap between some of the factors.
On the questionnaire sent to respondents in 2005, the factors which may have contributed to the state of the IP system in China at that time were
Table 6.2 Factors contributing to the IP system as ranked by respondents
|
Rank |
Factor |
Average score |
|
1 |
Lack of public awareness of IP rights |
4.44 |
|
2 |
Local protectionism |
4.13 |
|
3 |
Inadequate penalties |
3.96 |
|
4 |
Lack of consistency in enforcement |
3.8 |
|
5 |
Weak judicial enforcement |
3.76 |
|
6 |
Lack of powers to enforce court judgments |
3.73 |
|
7 |
Lack of trained and experienced legal personnel |
3.71 |
|
8 |
Length of the process |
3.24 |
|
9 |
Lack of transparency |
3.11 |
|
10 |
Lack of the concept of individual rights in China |
3 |
|
11 |
The role of the government in the economy |
2.89 |
|
12 |
Over-reliance on public enforcement mechanisms |
2.84 |
|
13 |
Lack of a unified agency for dealing with IP |
2.76 |
|
14 |
Perception that IP only benefits foreigners |
2.42 |
|
15 |
Influence of socialism |
1.78 |
|
16 |
Influence of Confucianism |
1.09 |
divided into four broad categories: social and cultural factors, economic factors, political factors and factors specific to the legal system (see Appendix 1 for a copy of the questionnaire used in the 2005 study). Specifically, question 15 listed 16 factors which had been previously cited in the literature as responsible for the state of the modern intellectual property system in China. Respondents were asked to rate the contribution of each of these factors on a scale from 0 to 6, where 0 represented no contribution and 6 signified a major contribution to the IP system in China. The results of question 15 in terms of the respondents’ ranking of these factors is summarised in Table 6.2.
These country-specific factors contributing to the state of China’s TRIPS compliance in 2005-6, and the “enforcement gap” which was observed, will now be analysed in more detail.
