Towards a Dynamic Model of Compliance
Analysing IP in China Using Theories of Compliance
In general, it is widely recognised that operationalising compliance is problematic as there is a need to differentiate between implementation, compliance and effectiveness (Jacobson and Brown Weiss 1998b, p. 4). This is confirmed by preliminary analysis of China’s compliance with the TRIPS Agreement. Although the majority of TRIPS obligations were swiftly implemented into China’s formal domestic legislation, there was still some uncertainty about whether this constituted full compliance. Furthermore, China may be fully complying with its TRIPS commitments, but the IP system may be ineffective at tackling the underlying problem of infringements. Thus, the issue may not be one of China’s compliance, but rather one of the efficacies of the TRIPS Agreement in combating the problem it was designed to resolve. In addition, wider issues than merely China’s TRIPS compliance are involved in analysis of the current IP system in China.
The comprehensive model of compliance applied in this study was initially formulated to account for compliance with international environmental accords (Jacobson and Brown Weiss 1998a). Thus, it is important to consider to what extent this model may be applicable to international intellectual property agreements, specifically the TRIPS Agreement. Clearly, there are differences in the significance of some key factors. For example, pressure from non-governmental organisations (NGOs) was considered crucial to increased compliance in the environmental arena, but NGOs are not as influential in the IP field. In addition, it is difficult to analyse all factors within the rigid framework of the existing model as many categories or key factors overlap. For example, the lack of consistency in enforcement was considered as a political/institutional factor, but could also be seen as attributable to a lack of administrative capacity in the enforcement system, or to a lack of training amongst the relevant personnel. Similarly, although respondents in this study did not consider cultural factors to be significant, attitudes and values did play a part, and it is difficult to distinguish between the direct cultural influences of Confucianism and socialism and their indirect influence on contemporary values in Chinese society.
Therefore, can the basic structure of the existing model of compliance, incorporating both non-country- and country-specific factors, as well as consideration of implementation, compliance and effectiveness as separate components remain valid for the context of compliance with the TRIPS Agreement, specifically in China? It is contended in this study that the basic structure of the model is applicable to analysis of compliance with international IP agreements, but that several modifications of the key factors are necessary to reflect the different context of compliance. The distinct elements of the model of compliance will be reviewed below in order to outline the specific refinements necessary for the existing model.