Table of Contents:
Factors Contributing to the Current State of the IP System: Explaining the Changes from 2005 to 2015
In terms of the existing comprehensive model of compliance which has already been applied to the state of the post-TRIPS IP system in 2005-6, the IP system in 2015 could still be judged as being affected by many similar factors. The first category of country-specific factors that may have continued to affect China’s compliance with its international obligations consists of parameters which include basic characteristics of the country such as the previous behaviour of the country; the history and culture of the country; the physical size of the country; the physical variation within the country; and the number of neighbours that the country has. As in 2005, those factors classed as parameters were not identified by respondents as very significant apart from the vast size of China which was felt to continue to contribute to problems in implementing the formal IP legislation:
There is some issues or problems or challenges, it’s more in implementation phase because China is so big (sic).31
In addition, the vast size of China was also thought to be at least partly responsible for evident inconsistencies in the enforcement of IP rights across the country. For example, there was some consensus amongst respondents that the state of IP protection in developed cities such as Beijing, Shanghai and Guangzhou was commendable. However, other areas were not perceived as being so strict about cracking down on IP infringements:
So in some inner lands, such as Guizhou or in Tibet or in Xinjiang, those areas, the IP system is not as professional as in the east coast of China.32
This pattern of uneven enforcement seems to have changed little in the past decade and closely echoes remarks made by respondents in 2005 and reported in Chap. 6.
In terms of the previous behaviour relating to IP infringements, as in 2005-6, respondents infrequently referred to China’s pre-reform legal system as influential upon the contemporary system. Only one respondent raised the issue of the short history of the modern Chinese legal system as an explanation for the state of the contemporary IP system:
The general people, the public, do not have a strong sense on law as western countries because we have a special culture over 2,000 years of old system. So we only have maybe two decades or three decades’ years of the legal system.33
The changes discussed by respondents in the most recent phase of the study were almost all focused on the past five to ten years, suggesting that the pace of rapid developments seen in the IP system in China in that time makes the previous system which existed prior to WTO accession in December 2001 almost irrelevant. Turning to cultural values such as the influence of Confucianism or socialism upon the modern system, respondents in 2015 were if anything even more dismissive than those respondents a decade earlier, with only one respondent independently mentioning either of these concepts:
It’s difficult for Western people to understand why Chinese do not respect IP too much. My personal view is because before the 1980s everything belongs to the country, everything belongs to the Communist Party. So at that time I still remember when I was a kid we always tried to take something from the factory my father was working at, take something back to home without anyone noticing.34
This supports the notion that although cultural values are often identified in the academic literature as continuing to play a significant role in the modern intellectual property system in China, the majority of respondents dealing with the system day-to-day do not recognise either Confucianism or socialism as major influences. Again, this is a significant departure from much of the academic literature which attributes any inefficiencies in the current Chinese IP system to the deep-rooted and persistent values of collective rights and shared ownership (Alford 1996).