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

As detailed in the previous chapter, the sheer quantity of laws and regulations amended or enacted during the main period of revision from 1999 to 2002 illustrates the significant effort that China undertook to implement the Agreement on Trade-Related Intellectual Property Rights (TRIPS) obligations into domestic legislation. It is also clear that World Trade Organisation (WTO) accession led to major changes in the enforcement system such as the introduction of injunctions and the possibility of judicial review of final administrative decisions and thus, the actual substantive implementation of TRIPS provisions into China’s formal intellectual property (IP) system was satisfactory overall. However, full compliance with the TRIPS Agreement is more difficult to assess than mere implementation. Although China appeared to be in substantive compliance with the majority of its TRIPS obligations, compliance was in doubt with several provisions, as illustrated by the 2007 WTO complaint initiated by the United States (US) against China discussed in Chap. 5. This chapter will now turn to the effectiveness of the post-TRIPS intellectual property system in 2005-6 by looking beyond the IP laws on paper. Responses and anecdotes from respondents detailing their experiences with the system in practice will be used to highlight some ineffective features of the IP system and of the enforcement framework in particular.

The responses from users of the IP system at that time will show that although improvements had obviously been made in China’s IP system as a result of WTO accession, significant barriers still existed to inhibit effective enforcement. Thus, the chapter will then consider some potential reasons to explain why these barriers still existed by returning to the comprehensive model of compliance outlined in Chap. 2 and applying the country-specific part of the model to China’s TRIPS compliance in 2005-6.

© The Author(s) 2017 105

K. Thomas, Assessing Intellectual Property Compliance in Contemporary China, Palgrave Series in Asia and Pacific Studies,

DOI 10.1007/978-981-10-3072-7_6