Assessing the Post-TRIPS Intellectual Property System in China in the Long Term: Adapting to Local Conditions

The 2015 Intellectual Property System in Action: Changes Observed from 2005

The previous chapter showed that although improvements had obviously been made in China’s intellectual property (IP) system as a result of World Trade Organisation (WTO) accession, significant barriers still existed to inhibit effective enforcement. Specifically, the effectiveness of the 2005 system was examined by looking beyond the laws on paper and instead detailing experiences from respondents dealing with the IP system on a day-to-day basis. Chapter 6 concluded that there remained a significant “enforcement gap” between the substantive laws and the enforcement practices experienced on the ground. This chapter will now bring this analysis up to date by using the experiences of a variety of respondents in 2015 to consider how China’s IP system has adapted to the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS) in the longer term.

It is clear to even a casual observer of China’s legal system that a number of sweeping changes have been made in the field of intellectual property since the TRIPS Agreement was initially implemented in the early years of the twenty- first century. In the decade from roughly 2005-15, not only were a number of legislative changes promulgated, but significant changes were also made to the enforcement framework in China. These changes were mirrored by noteworthy shifts in both the attitude towards and awareness of IP in wider Chinese society as well as a substantial increase in the number of domestic Chinese rights-hold- ers influencing the operation and effectiveness of the wider IP system. Such changes will be outlined in this first section. In terms of the overall changes observed in China’s post-TRIPS intellectual property system in the long term, it is clear that steady progress has continued to be made since the implementation of TRIPS standards into domestic legislation in the few years immediately

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

DOI 10.1007/978-981-10-3072-7_7

following formal accession in December 2001. Several respondents in the 2015 stage of the project had been working within the Chinese IP system for many years and overall, respondents were overwhelmingly positive about the changes they had witnessed over that time in the IP system in China. Although many still acknowledged that problems still existed, it was nevertheless undeniable to the majority of respondents that huge advances had been made in both IP protection and enforcement. Respondents often characterised changes they had observed as a series of incremental improvements rather than great leaps forward. For example,

From a professional point of view it’s incremental changes, yeah. So every time it

changes a little bit, it’s not like an overhaul of the whole system, it’s not like that.¹

These positive incremental changes are evident in both the substantive legislation and in enforcement practices on the ground, as well as wider changes in Chinese society. These changes will now be broadly outlined before the Jacobson and Brown Weiss (1998) comprehensive model of compliance is applied to China’s long-term compliance with the TRIPS Agreement.