Assessing Intellectual Property Compliance in Contemporary China: The World Trade Organisation TRIPS Agreement

208 Pages·2017·0.63 MB·English

by  Kristie Thomas (auth.)

PALGRAVE SERIES IN
ASIA AND PACIFIC STUDIES
Assessing Intellectual Property
Compliance in Contemporary China
The World Trade Organisation
TRIPS Agreement
Kristie Thomas
Palgrave Series in Asia and Pacific Studies
Series Editors
May Tan-Mullins
The University of Nottingham Ningbo Chin
Ningbo, China
Adam Knee
The University of Nottingham Ningbo Chin
Ningbo, China
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Kristie Thomas
Assessing Intellectual
Property Compliance
in Contemporary
China
The World Trade Organisation TRIPS Agreement
Kristie Thomas
Aston University
Birmingham, UK
Palgrave Series in Asia and Pacific Studies
ISBN 978-981-10-3071-0 ISBN 978-981-10-3072-7 (eBook)
DOI 10.1007/978-981-10-3072-7
Library of Congress Control Number: 2016958728
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P
reface
When I commenced my doctoral research in 2004, the topic of China’s
potential compliance with its World Trade Organization (WTO) commitments
was of great scholarly interest and also fitted well with my own academic back-
ground in both law and Chinese Studies. With China’s accession to the WTO
on 11 December 2001, China formally committed to comply fully with the
WTO Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) immediately and without any transition period. This commitment
to comply with the stringent TRIPS standards was a major undertaking for a
country in which modern intellectual property (IP) laws had only begun to be
drafted in the 1980s, and thus China’s subsequent compliance with the TRIPS
Agreement was of significant interest to various groups of stakeholders—the
WTO itself, trading partners and rights-holders. Although I was not an expert
on IP law, I also found China’s IP system and attempts to comply with the
TRIPS Agreement to be a fascinating area for research.
It quickly became clear that China swiftly amended its legislation to trans-
plant TRIPS-compliant rules into the domestic IP system. However, a gap was
soon perceived between the substantive legislation and enforcement practices
experienced by rights-holders on the ground. I explored this “enforcement
gap” in my first phase of fieldwork in 2005–6 through the use of a survey as well
as a series of follow-up interviews with a wide variety of business and legal pro-
fessionals working on the ground in China. IP remained a key area of interest
in the intervening decade, and then I returned to China for a second phase of
fieldwork in early 2015 in order to see how the post-TRIPS IP system was being
adapted to local conditions in the longer term. With WTO accession already 15
years in the past, this book can now provide a powerful and unique perspective
both of the short-term transplant of TRIPS standards into the formal substan-
tive law and of the longer-term adaptation of these standards into local enforce-
ment practices through the voices of those actually working within the system.
This study would not have been possible without generous financial support
from Nottingham University Business School to whom I am very grateful. Not
only did I receive funding for my doctoral study, but I was also the recipient of
v
vi PREFACE
significant internal research funding to support my 2015 fieldwork in China,
as well as a semester of study leave which enabled me to write up my find-
ings. I am also grateful to the University of Nottingham’s Institute of Asia and
Pacific Studies which also offered a small grant to support my 2015 fieldwork. I
would also like to express my thanks to Christy Liu and Jingyi (Jane) Yuan who
offered invaluable practical guidance and research assistance in both phases of
the research study. I am also hugely indebted to the scores of individuals in
China and beyond who generously gave their time to participate in this study
and to share their experiences so candidly. This study would not have been
possible without them, although they must remain anonymous. Finally, thanks
to my family, in particular my husband, Gordon, not only for supporting my
fieldwork but also for putting up with my grumpiness throughout the writing
process.
Aston University Kristie Thomas
Birmingham, UK
c
ontents
1 Introduction 1
Part I How to Assess Compliance with the TRIPS
Agreement: Concepts and Methods 23
2 The Concept of “Compliance” 25
3 The TRIPS Agreement: Developing Global Rules for 
Intellectual Property Protection 43
4 A Framework for Assessing Compliance with the TRIPS
Agreement 67
Part II Assessing Compliance with the TRIPS Agreement
in China 83
5 Implementing the TRIPS Agreement in China 85
6 Assessing the Post-TRIPS Intellectual Property System
in China in the Short Term: Exploring the 
Enforcement Gap 105
7 Assessing the Post-TRIPS Intellectual Property System
in China in the Long Term: Adapting to Local Conditions 139
vii
viii CONTENTS
8 Implications and Conclusions 167
Appendix 1: Questionnaire on Intellectual Property in China 187
Appendix 2: Sample Interview Questions 193
Index 195
L f
ist of igures
Fig. 2.1 Jacobson and Brown Weiss’ comprehensive model of factors
that affect implementation, compliance and effectiveness 32
Fig. 6.1 Severity of problems in the 2005 post-TRIPS IP system
as ranked by respondents 107
Fig. 8.1 Dynamic model of China’s compliance with the TRIPS agreement
and key influences on China’s intention and capacity to comply 176
ix