Proximate Factors

The final category of factors to consider under the detailed model of compliance outlined above in Chap. 2 is proximate factors. Such factors are specific to the system under analysis and incorporate influences such as the capacity of the existing agencies to implement the system effectively and the role of other organisations in pressurising for or monitoring changes in the system. In terms of the quality of the personnel involved in the operation of the intellectual property system in China, respondents seemed less concerned about the knowledge levels of the relevant personnel. On the other hand, the workload of key personnel such as judges was a concern for several respondents: “The cases are driving up, the volume is driving up. It made the judges crazy and probably they have to like decide two cases in a day.”⁴⁹

“And they have a quite high criteria for IP judges you know, your Beijing IP Court in total they only have 25 judges, IP judges. Every judge ... if I’m a judge, I have a judge assistant, I have a team. Each team has to handle you know, 150 cases a year. So this is a very heavy burden.”⁵⁰ In other words, although this respondent clearly believes that the judges deciding IP cases are well qualified and experienced, they still expressed fears that the pressure of the workload may have a detrimental effect on the quality and consistency of the judgments being made. Specifically, respondent 15LAW03 observed that although judges are very experienced, their heavy workload has a direct effect on the number of appeals allowed:

Because it is easy to maintain a decision, but it will be quite complicated to revoke a decision. So you must provide detailed analysis of why you consider it is wrong; otherwise the panels do not agree to it. But if you maintain a decision, it’s very easy.

Consequently, although respondents seemed to agree that judges were on the whole highly competent, nevertheless there remained some serious concerns that the steady annual increases in cases filed with the courts placed objectionable pressure on those judges to deal with cases quickly.

On the other hand, respondents did occasionally express some disquiet about other personnel working within the contemporary Chinese IP system. In particular, some respondents in the field of patents felt that it was difficult to find people with both the necessary technical background as well as knowledge of IP and the strategic awareness of how best to exploit such IP: “And that kind of expertise, just from a human resource perspective, is very, very difficult to find.”⁵¹ This particular shortage was also noted by respondent 15LAW03, who noted: “Such patent attorneys which can match the demand from those hi-tech companies are very few, they’re difficult to find.” In addition, respondent 15LUX01 also identified that AICs may lack enough resources “to really investigate” and find out who the real bosses are behind the wide-scale infringements. Thus, the knowledge levels of the relevant personnel within the IP system which had been a significant concern in 2005 was much less of a concern in 2015, with the exception of high-quality patent attorneys whose numbers may not be in keeping abreast with the increasing volume of high- tech companies in China. On the other hand, there are still some suspicions that the administrative capacity of key agencies such as the AIC could be further enhanced with additional resources dedicated to tackling IP infringements.

The final category of proximate factors that may influence China’s long-term compliance with the TRIPs Agreement is the influence of non-governmental organisations (NGOs). However, organisations concerned with intellectual property tend to be commercial groups, often consisting of businesses with strong intellectual property rights. Therefore, the influence of NGOs in the intellectual property arena in China remains predominantly based on pressure from key groups of companies, both domestic and international. As in 2005, the main organisation pressurising for better protection with regard to intellectual property in China is the Quality Brands Protection Committee (QBPC 2016). Although equivalent bodies for Chinese enterprises are beginning to emerge, these are not viewed “as effective and powerful as the brand protection committees of foreign companies, no, no.”⁵² Again reflecting the position from a decade earlier, a number of respondents recognised the important role that QBPC plays in helping to shape China’s IP system: “Certainly the QBPC plays many important roles in these changes. As long as there is a law going to be publicised, we always provide a kind of position paper trying to voice our concerns.”⁵³

In addition to involvement in legislative amendments, the QBPC is also seen as playing an important role in providing training to key personnel within the IP system. For example, “QBPC has a custom committee you know, they also arrange a lot of the training programmes with the key local custom officers and they invite members to present their brands for locals, so that local custom officials can be familiarised with their brands.”⁵⁴ However, one noticeable change from the role of QBPC in 2005 is the alignment between QBPC’s interests and the interests of domestic (particularly large) Chinese companies: “I think now, even in the QBPC, for a lot of the things we also aligned with kind of the Chinese companies, so we can give the same voice.”⁵⁵ This represents a shift from 2005 when the role of QBPC was only mentioned by a few foreign respondents; in 2015 the QBPC was discussed by a wide variety of respondents in the context of how change can be made in the IP system.

Overall, there were some evident changes in the significance of proximate factors affecting the current IP system in China. Respondents seemed less concerned about the knowledge levels of relevant personnel than a decade earlier, but on the other hand, the workload of key personnel such as judges was a concern for several respondents and there are still some fears that the administrative capacity of key agencies such as the AIC could be further enhanced with additional resources dedicated to tackling IP infringements. The QBPC remains an important positive influence both on the formal legislation and on improving the enforcement environment on the ground, but its goals are now more closely aligned to those of domestic Chinese companies. There are also other factors which emerged from discussions with respondents which fall outside of these categories and which will now be considered.