||This is a study on the compliance of China to the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) before and after China’s accession to WTO. |
The study on pre-accession period focuses on the enactment of China’s patent, copyright and trademark laws in the light of the provisions of the TRIPS Agreement. It also focuses China’s adoption, revisions and amendments of the constitution, administrative, criminal, civil, judicial, and legal professional laws and procedures to make enforcements of the intellectual property rights law effective. It likewise shows how the enactment of these laws consistent with the TRIPS Agreement is contributing to the development of the institutions of private property and the rule of law. The result shows that while the pre-accession to WTO would indicate China’s substantial compliance to the TRIPS Agreement, it also focuses on some weaknesses in the laws on the determination of what violation would constitute a criminal act. This problem would manifest later after accession.
The post-accession period sharply focuses on the performance of China in the
enforcement of their obligations under the TRIPS regime after 2001. The assessment of China’s performance in enforcement focuses on the infringement cases, the complaints filed against China before the dispute settlement mechanisms of WTO, and the multilateral and bilateral reviews on China’s laws and enforcement effort after its accession to WTO. The result shows the over-reliance of China on the administrative rather than the judicial remedies in its internal enforcement effort which resulted in the weak performance of infringement deterrence. The result also notes the shift from the reliance on internal to external measures in the enforcement of intellectual property rights by the trading partners headed by US.
The result of the study which shows continuing reforms in the intellectual, civil, criminal and administrative laws after WTO accession to precisely address the issues raised against China in its enforcement effort is an indication of China’s willingness to play by the international rules. While the reforms have not been met with optimism, the WTO’s TRIPS regime provides a sufficient mechanism to deal with China’s TRIPS violations, and more importantly China is positively responding to it.