Outline of the Research Project

As this chapter has explained, protection of intellectual property rights by individual nations has evolved over many centuries and has emerged as worthy of international consideration only in the past hundred years or so. Furthermore, the concept of intellectual property rights in China has also developed beyond recognition over the past hundred years and is now acknowledged to be an area of crucial importance for the modern Chinese legal system. As intellectual property became more and more significant for the international trading system in the 1980s and 1990s, the TRIPS Agreement began to emerge from the Uruguay Round of trade negotiations that led to the establishment of the WTO. The TRIPS Agreement represented an important step in the development of international IP rights as the Agreement included provisions on enforcement previously neglected by international IP Conventions. Compliance with the TRIPS Agreement by individual WTO members is thus highly significant as it affirms the legitimacy of the TRIPS Agreement and the WTO system of rules as a whole, and continues to be of interest even as we enter the post-TRIPS era of international intellectual property rule-making.

Accession to the WTO and the associated commitment to fully comply with the provisions of the TRIPS Agreement is also highly significant for China. Despite previous attempts to introduce a comprehensive system of protection for IP rights in China, the pre-WTO intellectual property system was still subject to strong criticism from key trading partners such as the US. Thus, the impact of the TRIPS Agreement was hoped to not only assist with the continuing development of the IP system, but also to alleviate IP-related tensions with trading partners, as well as to contribute towards economic development in China. As a result, it can be seen that compliance with the TRIPS Agreement would signify an important step forward for the intellectual property system in China.

As WTO entry took place in December 2001, the time is now pertinent to make a systematic attempt to evaluate the post-WTO system of intellectual property protection in China. Thus, compliance theory can be a useful tool with which to examine both the immediate short-term impact of TRIPS accession on the IP system in China and also the continuing effects on the current system. Existing theories of compliance from both international law and international relations will be discussed in more detail in Chap. 2. Previous studies of the legal system in China have largely relied on subjective judgements about the effectiveness of the system without any attempt to provide an overall model of the development of this system in response to external and internal influences, and this study aims to rectify this deficit.

The key research questions which I will be attempting to answer in this study are thus as follows: what are the characteristics of the TRIPS Agreement that may affect a member’s compliance with it? What has the impact of WTO accession and related TRIPS obligations been on the IP system in China in both the short term and the longer term? How effective is the current system of IP protection in China? Is China fully complying with its obligations under the TRIPS Agreement? If there are continuing areas of non-compliance, what are they and why is China not fully complying with TRIPS? How can any outstanding areas of non-compliance with TRIPS be resolved?

In order to address these questions, the remainder of the book will be structured as follows: Part I will consider how to assess ‘compliance’ with the TRIPS Agreement generally by outlining the key concepts and methods. Chapter 2, the first in this section, will outline the central concept of compliance and key theories and models of compliance that have been proposed in both international law and international relations literature before identifying a comprehensive model of compliance to be applied specifically to evaluating China’s TRIPS compliance. Chapter 3 will discuss the TRIPS Agreement in more detail, analysing the drafting history of the Agreement, characteristics of the Agreement that may affect compliance, as well as the international environment surrounding IP rights in order to fully describe the development of the system of global rules for intellectual property protection. Because TRIPS imposes such detailed obligations on members not only limited to legislative changes but also including enforcement, application, appeal and remedies, it is necessary to look behind and beyond the law on paper in order to gain a deeper understanding of the Chinese IP system in practice. It is also desirable to see the law as a continuum and as a process (Lam 2009, p. 148); in other words, there is a clear scale of compliance from complete TRIPS compliance to complete non-compliance which needs to be gauged. This deeper level of understanding was achieved through a combination of research methods including a questionnaire, detailed interviews and document analysis which will be outlined in Chap. 4 to offer an inclusive framework for assessing compliance with the TRIPS Agreement.

Part II of the book looks in more detail at compliance with the TRIPS Agreement in the Chinese context. Chapter 5 considers the implementation of the TRIPS Agreement in China, compliance with the TRIPS Agreement and the overall effectiveness of the Agreement in transforming the IP system in China. Chapter 6 then focuses more specifically on the short-term effects of the TRIPS Agreement on the IP system in China. This chapter is substantially built upon surveys and interviews conducted in China in 2005-6 and seeks to explore the gap which was identified as existing between the laws on paper and the enforcement witnessed on the ground. Chapter 7 then considers the post-TRIPS intellectual property system in China in the longer term with further data and interviews collected in 2015. This chapter considers how the post-TRIPS IP system has adapted to the local conditions and needs of contemporary China. Finally, in Chap. 8 the comprehensive model of compliance will be revisited and a revised model of China’s compliance with the TRIPS Agreement will be proposed. The book will close with a summary and some thoughts on the implications of these findings for China, the WTO, key trading partners such as the US and for individual rights-holders.