Concluding Thoughts

This study had several intriguing or unexpected findings; for example, contrary to several previous studies and many observers of China’s legal system, cultural influences such as Confucianism and socialism were not found to be major influences on the current IP system. In addition, a lack of transparency had previously been cited as a major flaw in the current system, whereas respondents in this study, particularly in 2005, actually identified transparency as a key improvement they had recently witnessed. As a consequence, enhanced transparency in the legislative framework could be said to be one of the crucial fundamental changes brought about as a direct result of WTO accession. However, transparency in enforcement actions could still be further enhanced and thus, this could be an area for potential future progress.

Other surprising findings included the discussion of the bureaucratic structure of IP agencies by respondents. It had previously been suggested that a unified IP agency could streamline the enforcement process and minimise bureaucratic rivalries. However, respondents recognised this to be impractical as not only is IP such a broad field, but China is also a huge country to administer from one central agency. Finally, it must be recognised that many respondents were keen to point out a more balanced picture of the IP system in China, as many critiques of the current system by external commentators only criticise the remaining flaws without praising the progress China has already made. On the contrary, the majority of respondents in both 2005 and 2015 were optimistic about the prospect for future improvements.

Clearly, this study has raised some important questions for the study of compliance with international agreements, both in China and within the WTO international trading system. In terms of implications for theory, this study suggests that previous studies of legal development in China have largely overlooked the significance of the specific international obligations, whilst existing theories of compliance have mostly focused on the specific obligations rather than characteristics of the specific country involved. Therefore, it has been argued that by combining the strengths of these previous studies, a more inclusive approach can produce a more comprehensive and valid model of compliance, applicable to the specific context of China’s TRIPS compliance. The comprehensive model of compliance described in this study was applied to the specific context of assessing China’s compliance with the TRIPS Agreement. In order to test the reliability of this amended model, further research could apply this model to the context of China’s compliance with other international agreements such as environmental accords or arms control treaties. Alternatively, the model could be applied to TRIPS compliance but in other WTO member countries. This may be a useful tool of analysis in more recently acceded WTO members such as Vietnam or Russia; as they also have to comply with TRIPS immediately upon accession, efforts regarding TRIPS implementation, compliance and effectiveness are crucial.

Turning to policy implications, this study also has significance for various sectors, including the WTO/TRIPS framework itself, China, key trading partners such as the US and individual rights-holders themselves. The WTO needs to recognise that future reforms to the international trading system should consider the consequences for compliance of broad trade-related negotiations; namely that members may agree to certain obligations in order to achieve concessions in another area, but subsequent compliance may be harder to achieve than in negotiations over a single issue. This study has also demonstrated that the fairness and precision of the obligations are highly significant factors for compliance. In terms of implications for China, it is undeniable that China must be praised for the substantial reform efforts to date; these demonstrate that China will strive to fulfil international obligations as a responsible member of the world order, in addition to confirming the central government’s recognition of the importance of IP for future economic development. As well as minor legislative amendments, the Chinese government should be encouraged to move away from the irregular crackdown approach to IP enforcement and to continue to strengthen both consistency and transparency in enforcement, in order to attempt to confront the deeply ingrained problem of local protectionism.

Ultimately, sustained changes to the intellectual property system need internal pressure to succeed and thus, domestic rights-holders should be supported in their efforts to monitor and improve the existing system. Overall, China has already made substantial improvements to the system of IP protection and respondents participating in this study remain optimistic about the prospect of future improvements. A cooperative approach from external stakeholders focusing on building capacity, particularly in the enforcement framework, and within all levels of government would also be conducive to encouraging longterm sustained improvements in the IP system. If cooperative efforts could be focused on improving China’s capacity to fully comply with TRIPS, then this long-term process of reform may be hastened.

From reflecting on the two stages of the project carried out a decade apart, it seems clear that the dominant theme in 2005 was the immediate impact of WTO entry and the subsequent legislative changes that were made to attempt to comply with the TRIPS Agreement. On the other hand, the dominant theme emerging from the interviews carried out in 2015 was the key role of the government in encouraging and stimulating innovation and of domestic rights- holders in pressuring for more effective IP protection and enforcement. It is undeniable that sweeping changes had been made to the IP system in China in the intervening decade, and I am confident that significant progress will continue to be made in the future as domestic innovation continues to grow.