Towards a Comprehensive Model of Compliance

The theories of compliance related above attempt to explain a country’s compliance with international accords in general terms. It is clear from these various theories that many factors may affect a country’s compliance with international rules, including the characteristics of the activity involved, the characteristics of the accord to be complied with, the international environment (i.e. are other countries complying?) and factors involving the country itself (Jacobson and Brown Weiss 1998a, pp. 6-7). It is crucial to combine these rather abstract theories of compliance gathered above into a more detailed model of specific factors which affect compliance.

These factors can be combined into a comprehensive model of factors which affect implementation, compliance and effectiveness of international accords (as shown in Fig. 2.1 [adopted from Jacobson and Brown Weiss 1998b, p. 535]). This model of specific factors initially developed to explain a state’s (non-)compliance with environmental accords will be applied to the context of international IP protection under the TRIPS Agreement in this study. The factors affecting compliance can thus be divided into country-specific and non-country-specific factors. The latter type of factors relate to the specific activity involved, namely IP infringements; the characteristics of the TRIPS Agreement, including the substantive and procedural provisions; and the international environment, including the number of countries already in compliance with TRIPS, international NGOs concerned with IP protection and coverage of IP issues in the media. In terms of the characteristics of the activity involved, it is believed that the smaller number of actors involved in the activity, then the easier it is to regulate it. Furthermore, economic incentives may act towards compliance and the presence of multinational corporations (MNCs) may contribute towards compliance as they are easier to influence than smaller less-visible firms. Finally, the activity is more likely to be easily regulated if it is concentrated in a few major countries (Jacobson and Brown Weiss 1998b, p. 522). The specific activity involved in the TRIPS Agreement is IP infringements and this activity may well be particularly problematic in ensuring compliance, as discussed in Chap. 3.

Turning to the characteristics of the accord, the eight characteristics identified as possibly affecting implementation of that accord can be divided into substantive provisions and procedural provisions of the accord (Jacobson and Brown Weiss 1998b, p. 528). The accord under consideration in the international IP arena is the TRIPS Agreement and thus, the substantive provisions to consider include the perceived equity of the obligations and the precision of the obligations. The procedural provisions of the TRIPS Agreement include the role of the secretariat (specifically the Council for TRIPS) and those related to monitoring. The TRIPS Agreement does contain several relevant substantive and procedural provisions that may affect WTO members’ compliance and these will also be considered in more detail in Chap. 3. The final aspect of noncountry-specific factors to consider is the international environment which can also play a role in strengthening compliance with an international agreement. Consequently, it is also important to consider the presence of international NGOs concerned with IP and media pressure in this field, as well as the number of WTO members already complying with TRIPS obligations, which will all be considered in Chap. 3.

Fig. 2.1 Jacobson and Brown Weiss’ comprehensive model of factors that affect implementation, compliance and effectiveness

Turning to the specific context of compliance in China, specific factors involving the country are some of the most important ones determining a country’s compliance with its international obligations. Indeed, the consideration of domestic factors is often the most glaring gap in explorations of compliance with international rules by China (Mushkat 2011, p. 64). These factors may be divided into parameters, fundamental factors and proximate factors. Parameters comprise essential characteristics of the country which may affect its tendency to comply. The relevance of the history and culture of a country cannot be denied. Other parameters to consider include the physical size and variation of the country, the number of neighbours and the country’s previous behaviour in this field which are all considered in Chaps. 6 and 7. The second category of China-specific influences to consider is fundamental factors. In general, fundamental factors affecting a country’s compliance include political and institutional factors, as well as economic considerations. Economic factors seem to be indirectly relevant and the level of government ownership of production seems to be particularly important as, “governments seem to be better at regulating the activities of nongovernmental entities than they are at regulating activities under their own control” (Jacobson and Brown Weiss 1998b, p. 532). Thus, economic factors may affect compliance more in countries where the government and government ownership play a more important role in the economy such as China. Both economic and political fundamental factors will also be considered in Chaps. 6 and 7. The final category of country- specific factors which may influence China’s TRIPS compliance are proximate factors. These may include administrative capacity, the attitude of the leadership and the influence of NGOs. It is undeniable that, “a crucial factor contributing to the variance among the performance of countries is administrative capacity,” which includes funding for administrative agencies, powers assigned to these agencies and having sufficient numbers of trained personnel (Jacobson and Brown Weiss 1998b, p. 530). Proximate factors such as administrative capacity will also be discussed in Chaps. 6 and 7.

In addition to consideration of both non-country-specific and country- specific factors, the comprehensive model of compliance represented in Fig. 2.1 also distinguishes between implementation of the specific obligations, com- pliance—both substantive and procedural—and effectiveness of the resultant system. This distinction may be particularly pertinent to China’s TRIPS compliance as China’s implementation of TRIPS obligations into its substantive black letter law (as described in Chap. 5) is widely praised, yet compliance is sometimes doubted and the effectiveness of the current IP system is certainly criticised on a frequent basis. Overall, the model above suggests which factors may be important in affecting a country’s compliance with international agreements, but does not describe how the dynamic process of change in a country’s compliance may occur.

Changes within countries can be explained in two dimensions: the intention to comply and capacity to comply. Factors endogenous to the country concerned are important, such as changes in the government or major changes in the domestic economy. Exogenous factors such as financial and technical assistance can also play a role. However, intention to comply is meaningless without the capacity to comply. Therefore, “external pressure may contribute to a country’s resolve to comply, but its role is limited” (Jacobson and Brown Weiss 1998b, p. 540). In the end, “the level of a country’s compliance... depends crucially on the leaders and citizens of the country understanding that it is in their self-interest to comply, and then acting on this belief’ (Jacobson and Brown Weiss 1998b, p. 541). It is also important to recognise that even if less than full compliance is confirmed, there is no straightforward explanation for this lack of compliance. “A lack of reach of the law could be a sign of government impotence, a reservation of government discretion, or a way for the government to conserve its resources, or any or all of these” (Lee 1997, p. xiv). Therefore, the dynamic processes of change will be considered in Chap. 7 when China’s longer-term TRIPS compliance is considered in detail, and in the Chap. 8 which draws together the observations from both China’s short-term and longer term attempts to comply with the TRIPS Agreement.