Assessing the Post-TRIPS Intellectual Property System in China in the Short Term: Exploring the Enforcement Gap

Abstract

The experiences of the respondents in 2005–6 are considered in detail in this chapter which considers the operation of the intellectual property (IP) system at that time after accession to the World Trade Organisation (WTO) in 2001 and after China had undertaken radical legislative upgrades in order to comply with the Agreement on Trade-Related Intellectual Property Rights (TRIPS). This chapter attempts 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 is analysed using the China-specific factors under the categories taken directly from the comprehensive Brown Weiss and Jacobson (1998) model of compliance, namely the headings of parameters, fundamental factors and proximate factors. Parameters such as previous behaviour and historical factors are 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. In contrast, several fundamental factors are 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 are also identified as key contributors to the 2005 framework of IP protection in China. The most important ones are 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 is also an issue of concern for many respondents.