Summary and Conclusion

In terms of the overall changes observed in China’s post-TRIPS intellectual property system in the long-term, it is clear that steady progress has continued to be made since the implementation of TRIPS standards into domestic legislation in the few years immediately following formal accession in December 2001. Furthermore, it is clear to even a casual observer of China’s legal system that not only were a number of legislative changes promulgated in the decade between 2005 and 2015, but significant changes were also made to the enforcement framework in China. These changes were mirrored by noteworthy shifts in both the attitude and awareness of IP in wider Chinese society as well as a substantial increase in the number of domestic Chinese rights-holders influencing the operation and effectiveness of the wider IP system.

In terms of the IP-related legislation, all of the major laws were subject to at least one change or amendment during this period from 2005 to 2015, but enforcement options open to rights-holders in China remain essentially unchanged as the main IP agencies have not changed in terms of bureaucratic structure over the past decade. Nevertheless, the specialist IP courts established in Beijing, Shanghai and Guangdong in late 2014 have been pinpointed as a very positive initiative for the effectiveness of the IP system. The perception of bias against foreign rights-holders which existed in 2005 is no longer relevant as win rates for foreign and domestic plaintiffs are now virtually identical. However, inadequate damages still deter some rights-holders from pursuing enforcement through the civil courts. Criminal enforcement has grown in use over the past decade but more cases could potentially be transferred to criminal liability in order to increase the deterrent effect to future infringers.

Alongside changes in the legislation and enforcement aspects of the IP system, there has also been a noteworthy proliferation in domestic Chinese registrations for IP, particularly patents, although some respondents were sceptical about the quality of some of the filings and also about the ability of domestic enterprises to fully exploit their IP. Overall, it is clear the changes made in the legislation relevant to IP, the improvements in the enforcement mechanisms, as well as the surge in the number of domestic IP rights-holders in the past decade have all led to an improved and more effective intellectual property system in China. By applying the comprehensive model of compliance proposed by Jacobson and Brown Weiss (1998), the state of the IP system in 2015 can be explained by key parameters, fundamental factors and proximate factors. As in 2005, those factors classed as parameters were not identified by respondents as very significant, apart from the vast size of China which was felt to contribute to problems in consistent implementation across the country and cultural values such as Confucianism and socialism which were not felt to be significant factors in the current system. In terms of fundamental factors, the three most significant factors were awareness of IP rights, local protectionism and a lack of consistency in enforcement. These factors had all been pinpointed in 2005 as key to the effectiveness of China’s IP system and although some progress had been made in the intervening decade, these factors remained of concern to respondents in 2015.

There were also some evident changes in the significance of proximate factors affecting the current IP system in China. Respondents seemed less concerned about the knowledge levels of relevant personnel, but the workload of key personnel such as judges was a concern for several respondents. The QBPC remains an important positive influence according to many respondents, but some concerns linger over the resourcing of key agencies such as the AIC. Finally, the process of China’s IP system adapting to local conditions over the past decade and longer has largely resulted from a combination of increased commitment from the central government to move towards an innovation-based economy and a surge in domestic rights-holders who are also increasingly pressuring for more effective protection of their valuable intellectual property. The transplanted norms in the post-TRIPS legislation have also been naturally internalised over time and external pressure has also shifted from coercion towards cooperation. Overall, China’s IP system has adapted to the TRIPS Agreement in the longer term through a series of incremental changes and improvements and Chap. 8 will consider how these improvements can be sustained and deepened over time.

< Prev   CONTENTS   Source   Next >