Non-Country-Specific Factors Affecting Compliance

As discussed in Chap. 3, there are a variety of factors which are not specific to China which may influence compliance with the TRIPS Agreement. The non-country-specific factors influencing TRIPS compliance included within the model are those relating to the specific activity of intellectual property infringements; the characteristics of the TRIPS Agreement itself, including both substantive and procedural provisions; and the international environment, including the role of NGOs and the media. In terms of the characteristics of the activity involved, based on analysis of compliance with environmental agreements, it was previously proposed that the number of actors, the number of countries and any economic incentives involved would all have a significant effect on TRIPS compliance. However, the characteristics of IP infringements are markedly different from environmental actions, and thus the characteristics of the activity involved may play a different role in the model of compliance. Specifically, as IP piracy and counterfeiting are global activities, there are both a large number of actors and countries involved in the activity. In addition, economic incentives actually encourage some infringements, as there may be short-term economic gains from IP infringements. Thus, although IP infringements have different characteristics compared to environmental damage, the specific characteristics involved support the notion that the fewer countries and actors involved in an activity, the easier it may be to encourage compliance with international agreements regulating that activity.

The international environment was one of the most significant influences on compliance with international environmental accords, in contrast to its role in the IP context, where the international environment plays a minimal part. The sole feature of the international environment that was found to play a significant role in TRIPS compliance was the number of countries involved in the WTO process, and thus obliged to comply with the provisions of the TRIPS Agreement. As more and more countries have joined this regime, it could be argued that the TRIPS Agreement has gained momentum towards compliance. Consequently, the international environment may play a minor, yet positive role in encouraging compliance with the TRIPS Agreement.

The most significant non-country-specific factors which were shown to influence compliance with the TRIPS Agreement are those associated with the TRIPS Agreement itself. As discussed in Chap. 3, the drafting history of the Agreement gave rise to a certain degree of resentment amongst developing countries that the TRIPS framework favours developed country members. This perceived inequity in the TRIPS Agreement makes it less likely that all members, especially those from developing economies, will be inclined to push for full compliance. The nature of the TRIPS Agreement as a minimum standards agreement also has the unavoidable consequence that the substantive provisions contained within the Agreement lack precision. This imprecision also discourages full compliance from all members.

The perceived inequity and imprecision of the TRIPS Agreement are the most significant non-country-specific factors influencing TRIPS compliance, but there are other minor factors associated with the TRIPS Agreement also affecting compliance. For example, the burden of fulfilling TRIPS’ notification obligations and a lack of sufficient cooperation and rewards from developed country members both act as a disincentive to compliance. However, it should also be recognised that there are several features of the TRIPS Agreement and the framework associated with the WTO that can offer positive enticements towards compliance. For instance, the Council for TRIPS established by the TRIPS Agreement is recognised as playing an important role in monitoring and encouraging compliance and the WTO dispute resolution process is also an asset of the WTO framework; by encouraging countries to join the multilateral forum of the WTO, they can avoid unilateral actions by powerful trade partners.

Overall, there are various factors influencing compliance with the TRIPS Agreement which are not specific to China. Although the characteristics of IP infringements are unique, in general, they play a similar role in compliance as in other activities governed by international agreements. In contrast, the international environment is much less significant in the context of international intellectual property, perhaps because of the lack of global consensus about the importance of IP protection and the relationship between IP and economic development.