Implications and Conclusions
This study has examined the state of the intellectual property (IP) system in modern China through the lens of compliance with the World Trade Organisation (WTO) Agreement on Trade-Related Intellectual Property Rights (TRIPS) which China agreed upon accession to the WTO in December 2001. This chapter will first summarise the contents of the preceding chapters before discussing the dynamic process of increasing compliance which emerges from this study. I will then consider the wider implications of the study—for theories of compliance; for the WTO; for China’s trading partners; for the Chinese government; and for rights-holders seeking to protect their IP in China. Finally, I will offer some concluding thoughts on the significance of this study and the possible future for the Chinese intellectual property system.
Summary of Preceding Chapters
Chapter 1 outlined the development of intellectual property protection in China and in the international system more generally in order to highlight the importance of the TRIPS Agreement for international IP protection. This chapter also explained why compliance theory is potentially a useful tool with which to analyse the development of IP rights in contemporary China, compared to previous studies of the legal system in China. Finally, this chapter concluded with the key research questions that this study aimed to address. These key questions related to the characteristics of the TRIPS Agreement itself that may affect a WTO member’s compliance; the impact of WTO accession and TRIPS obligations on the IP system in China; China’s subsequent compliance with TRIPS commitments; and any outstanding areas of non-compliance and why and how they can be resolved.
© The Author(s) 2017 167
K. Thomas, Assessing Intellectual Property Compliance in Contemporary China, Palgrave Series in Asia and Pacific Studies,
Consequently, Chap. 2 outlined the key concepts and theories of compliance that were applied in this study and also examined previous work on compliance in China. The chapter concluded that previous studies into China’s compliance with its international commitments have focused solely on China without examining the characteristics of the obligations themselves. Equally, previous studies of compliance have predominantly focused on the specific international accord to the exclusion of country-specific factors affecting compliance. Therefore, it was argued that these two approaches should be combined into a more comprehensive approach to compliance by applying the inclusive model of compliance proposed by Jacobson and Brown Weiss (1998a). This comprehensive model of compliance was thus applied to the context of China’s compliance with the TRIPS Agreement in the subsequent chapters.
Chapter 3 examined the non-country-specific factors influencing compliance with the TRIPS Agreement. The most significant factors were found to be the perceived inequity and imprecision of TRIPS obligations, which arose due both to the drafting history of TRIPS and the nature of the TRIPS Agreement as a minimum standards agreement. The TRIPS Agreement was also found to have other minor characteristics influencing compliance such as the burden of notifications and the lack of sufficient incentives and cooperation which act against full compliance and the role of the TRIPS Council and WTO dispute resolution body which act to encourage compliance. In terms of other noncountry-specific factors outside of the TRIPS Agreement, the international environment and the nature of IP infringements as an activity were also considered in this chapter. As a global activity, the sheer number of countries and actors involved in infringements, as well as the short-term financial rewards from piracy, all discourage active implementation of TRIPS commitments. In addition, there is a lack of consensus in global opinion and even resentment towards certain developed countries and multinational corporations (MNCs) over the push for stronger international IP protection which hinders the subsequent adoption of higher universal standards of IP.
Chapter 4 then outlined the framework which I chose to use to assess compliance with the TRIPS Agreement and also introduced the specific research methods that were used in this study. A qualitative research strategy was designed which combined different methods of data collection: an initial questionnaire, detailed interviews and primary documentary data. The collected data was then codified and analysed in two main phases: 2005-6 and 2015. Details of the respondents who participated in the study were also broadly outlined in Chap. 4 and relevant ethical and practical issues, such as translation and linguistic equivalence, involved in conducting fieldwork in China were also considered.
In Chap. 5, China’s implementation of the TRIPS Agreement into domestic IP legislation and the implementation of TRIPS obligations into the domestic enforcement system were both considered. The chapter closed by examining how China’s TRIPS compliance has been formally challenged through use of the WTO’s dispute settlement mechanism focusing on the dispute initiated by the United States (US) in 2007 concerning enforcement measures in China and their compliance with TRIPS provisions. Overall, the chapter found that despite far-reaching legislative changes and amendments to implement TRIPS into domestic legislation, particularly during the period 1999-2002, full compliance with the TRIPS Agreement was still in doubt in a few limited areas. Furthermore, the effectiveness of the post-TRIPS system was still criticised by a number of respondents who had experienced the system in action.
The experiences of the respondents in 2005-6 were consequently considered in more detail in Chap. 6 which considered the operation of the post-TRIPS IP system at that time and attempted to explain the “enforcement gap” which was observed to exist between the comprehensive laws on paper and the lax enforcement practices witnessed on the ground. This enforcement gap was analysed using the China-specific factors under the categories taken directly from the comprehensive Jacobson and Brown Weiss (1998a) model of compliance, namely the headings of parameters, fundamental factors and proximate factors. Parameters such as previous behaviour and historical factors were not found to be significant influences on the 2005 post-TRIPS IP system, despite the emphasis by many previous commentators on cultural values such as Confucianism and socialism as primarily responsible for the current system. In contrast, several fundamental factors were held to be highly significant by respondents including the lack of awareness of IP rights, local protectionism and a lack of consistency in enforcement. Finally, several proximate factors were also identified as key contributors to the 2005 framework of IP protection in China. The most important of these were the inadequate penalties imposed on infringers of IP rights and the lack of effective powers exercised by the judiciary. Furthermore, the quality of personnel in the IP system was also an issue of concern for many respondents.
Chapter 7 then reported on the more recent changes made to the IP system. In the decade from roughly 2005-2015, not only were a number of legislative changes promulgated, 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. Then, factors contributing to the current state of the IP system were considered under the same headings as in Chap. 6 of parameters, fundamental factors and proximate factors, before the wider process of change was discussed. Respondents in 2015 concurred with the findings from a decade earlier that parameters such as previous behaviour and cultural values were not primary influences on the current IP system. Similarly, the key fundamental factors of lack of awareness, local protectionism, and inconsistent enforcement were still highlighted as significant contributory factors in the current IP system, although some improvements were noted in each of these areas. In terms of proximate factors considered in 2015, progress was also noted in the quality of the personnel within the IP system with particular praise for the introduction in late 2014 of the specialist IP courts. Nevertheless, concerns about inadequate damages still persisted from a decade earlier.