Practical Issues

There were various practical issues which arose during this research. The main two practical issues which I faced were the issue of translation and the issue of research access as an “outsider.” In terms of translation, careful consideration had to be given to the language used both in the research materials (letter for initial contact, survey and interview question design) and during the interviews themselves. There are three main practical problems that may arise from attempting to translate such materials from one language into another target language (in this case, English to Mandarin Chinese). These are the lack of semantic equivalence across languages, the lack of conceptual equivalence across cultures and the lack of normative equivalence across societies (Behling and Law 2000, pp. 4-5). For example, legal concepts do not necessarily translate into easily understood Chinese categories. One case in point would be the widely discussed concept of the “rule of law,” which has different translations in Chinese depending on the usage. For example, ШП (fazhi) translates as “rule of law,” but the Constitution uses the phrase (yifazhiguo), which has been translated as both ruling the country by law and rule of law (Zheng 1999). This may also be due to a lack of conceptual equivalence across different legal cultures; coming from a Western common law background, it is important not to assume that legal norms applicable in one jurisdiction are applicable in China.

Finally, the lack of normative equivalence in China may relate to certain social conventions. These include the willingness or otherwise to discuss certain topics, the manner in which ideas are expressed and the treatment of strangers (Behling and Law 2000, pp. 5-6). It is important to be aware of all of these potential problems in the Chinese context as the concepts of “face” (mianzi) and “networks/relationships” (guanxi) may be influential, both in terms of access, but also in terms of the answers given to an outsider. Furthermore, as the majority of the questions in my survey related to attitudes and opinions, it is more likely that these social conventions and norms would play a role in the answers received from respondents. In order to minimise these potential problems, the following steps were performed. With regards to semantic issues, the language used was carefully considered when drafting the original survey in English. This was especially important when considering the wording of attitudinal questions. Key guidelines developed to aid translation were also considered during the drafting process. These guidelines include: using short, simple sentences of less than 16 words; employing the active rather than passive voice; avoiding subjunctives such as “could” or “would” where possible; and avoiding words indicating vagueness such as “possibly” or “probably” where possible (Brislin 1980). With regards to conceptual issues, as stated above, certain legal concepts may be grounded in the Western legal tradition and this was also borne in mind whilst drafting the survey. To minimise these issues, the legal terms used in the primary People’s Republic of China (PRC) legislation was used, as this should represent the most familiar IP terms and concepts.

Finally, with regard to solving normative problems, there are recognised problems in China with questions asking for political opinions. This is thought to be a legacy of the Cultural Revolution which has “led to a general pattern of disguising attitudes and feelings” (Behling and Law 2000, p. 42). As a result, assurances of anonymity in this study were strengthened to assure respondents that their identity would not be revealed under any circumstances. Individual names and company affiliations were also not requested in the initial survey, unless the respondent wished to provide them for follow-up contact. This aimed to reassure respondents and decrease any potential reticence on sensitive topics. However, it is still possible that Chinese respondents were less willing to be critical of their legal system and framework of IP protection and again this must be borne in mind during analysis of the responses.

Two Chinese translators were used to confirm semantic equivalence in the survey; their role was also to advise on the wording of the survey with knowledge of the target culture and social norms, in order to minimise normative issues. The issue of striving for semantic and conceptual equivalence was also an issue in the translation of respondents’ answers from Chinese to English.

Again, translations were as close to the original text as possible, but did require some interpretation in certain cases. As with the translation of the original research instruments from English into Chinese, Chinese research assistants were asked to check the translation and discuss any phrases or sentences which were particularly problematic in terms of language or context. Consequently, although it was not always possible to check with the respondents as to their intended meaning, mistranslations were hopefully minimised. However, the issue of translation should constantly be borne in mind when reading quotes given, as they may be an interpretation of the respondents’ original meaning.

Fieldwork in China has been described as eye-opening but sometimes also deeply frustrating (Thogersen and Heimer 2006, p. 1) and I would certainly agree with that characterisation in my experience. I certainly did experience a number of problems in gaining access to potential research participants. However, in contrast to researchers such as Gladney (2003),² I found access as a foreign scholar in 2015 to be much easier than as an overseas student in China, with many doors opened to me when I explained I was a foreign scholar, which had been closed as a postgraduate student. Nevertheless, in common with many other researchers’ experiences with research access in China, access to individual participants was easiest through existing social networks (Liang and Lu 2006, p. 163), either previous contacts or friends of friends or through professional social networking tools such as LinkedIn.

The difficulties in gaining research access were aggravated by the sensitive nature of the topic under discussion, namely the protection of intellectual property rights in contemporary China. The difficulties in gaining research access are also linked to concerns about the validity of the resulting data collected; as Chinese interviewees are more likely to treat a researcher as a stranger and be most concerned about not losing face rather than giving truthful answers (Cui 2015, p. 365). On the other hand, my research status as an outsider may also have opened up opportunities³ in that I was not seen as a commercial rival; so several respondents were very open and honest about their strategies for protecting their IP in China. The range and number of respondents in this research project, although somewhat limited, reflects the common nature of legal research in China, in which small convenience samples are used rather than large randomly selected samples (Liang and Lu 2006, p. 161). Flexibility was key in order to maximise the number of respondents involved in the project; for example, I met with respondents at their location of choice, often a coffee shop or hotel lobby, rather than always at their office.⁴ Additionally, I always respected respondents’ decision about any recording of the interview, whether audio or written notes were acceptable, and where the interviewee preferred for an interview not to be recorded, I instead wrote up my notes of the interview as soon as possible after it concluded.

As highlighted by previous studies of China’s legal system, a variety of perspectives are necessary to avoid judging the system by foreign norms. Consequently, a range of legal and business professionals were targeted. The sampling strategy was purposive in that key companies were targeted for selection and the approach to sampling respondents evolved as the initial responses were received. For example, legal professionals were initially quicker to respond and responses were frequently more detailed than those from other respondents. As a result, an electronic version of my initial questionnaire was added to the university’s web pages in order to give other respondents an alternative method of completion if time was a factor for them. This sampling strategy did also incorporate an element of snowball sampling as several respondents suggested further people to contact and occasionally also facilitated the subsequent initial contact.

The respondents in this study consequently could be broadly categorised into three groups: legal professionals working in IP in China, domestic Chinese enterprises concerned with IP rights and foreign enterprises with a presence in China. There may not also be a clear distinction between these groups; for instance, defining a “foreign-invested enterprise” is difficult given the myriad of business structures existing in China. Consequently, in this study, a company was defined as “foreign” if the respondent stated that the headquarters of the company was outside China. The initial questionnaires were largely distributed between November 2005 and May 2006 to all three groups of respondents. The first group of respondents were legal professionals, to whom questionnaires were sent in November 2005 to a variety of both international and local law firms. These firms were selected based on their inclusion in the Legal500 list of recommended law firms in China. The second group of respondents were Chinese companies with well-known trademarks, selected from the “Well-known Trademark Enterprise Name List” (Ebuywww 2005) and the China500.⁵ However, only a handful of responses were received from this group. The final group of respondents were foreign-invested enterprises in China. Questionnaires were sent to the members of the Quality Brands Protection Committee (QBPC), which is a group of multinational companies operating in China (QBPC 2016). Again, the number of responses was disappointing. It is possible that confidentiality concerns were a primary cause of non-responses, as indicated by the response of one company, which claimed that they “could not provide details in this respect as your questionnaire proposes, because all information is highly confidential.”⁶ In addition to the members of the Quality Brands Protection Committee, questionnaires were also sent to a variety of foreign enterprises operating in relevant sectors such as the luxury goods market and in the technology or telecommunications sector in China. These enterprises were selected from the “China Foreign Enterprise Directory,” published by the China Economic Review (2006).

Although response to the initial questionnaire remained somewhat disappointing, the vast majority of questionnaire respondents also indicated their willingness to participate in follow-up interviews and indeed several were very enthusiastic about participating in the study. Consequently, during early 2006, a number of face-to-face interviews with respondents in China were conducted to obtain more detailed information on their opinions of the current state of the intellectual property system, ranging from 30 to 80 minutes. Several telephone interviews with respondents in Hong Kong were also completed and more detailed responses to follow-up questions were received from several other respondents who indicated their willingness to participate via email. In April 2015, I returned to China to carry out a number of further interviews in order to update my understanding of the post-TRIPS IP system in China and how it had changed over the past decade. In total, I carried out 18 formal interviews over a two-week period, with several additional informal chats with respondents who did not wish to formally participate in the research project. Some descriptive statistics about both groups of respondents will be presented below.