LITMIR.BIZ

Скачать книгу

IPR policy has dwelled on the role of external pressure. Applying a realist perspective to the analysis of IPR, the external pressure argument holds that, in power-oriented trade diplomacy, the cost of noncompliance with the IPR norm is great; the global trade hegemon will impose punitive tariffs on countries considered serious violators. On the issue of IPR, the United States is the global hegemon in the world trade system and the largest producer of IPR-related products. Therefore, it has stronger bargaining power in IPR negotiations to push China onto the track it designs.⁹ Apart from bilateral pressure, multilateral pressure from international organizations such as the WTO also has pressed countries aspiring to join the WTO to revise their IPR legislation to meet the minimum standard of IPR protection required by WTO membership.¹⁰

      Like any popular theory, the external pressure argument certainly captures an important aspect of the making of Chinese IPR policy: the “push-behind” role of the developed countries, mainly the United States, to accelerate China’s IPR legislation. However, the external pressure argument deserves improvement on the following fronts: first, while the external pressure argument offers a convincing explanation for the adoption of the IPR norm, it has little to say about the implementation of IPR norms. Indeed, while the Chinese government constitutes a major defensive line at the negotiation table, external pressure can hardly reach the local government and societal actors behind the Chinese border. It is through those actors that formal IPR agreements are translated into real policy outcomes. Second, and possibly more important, the external pressure argument cannot explain why the Chinese government has taken IPR protection measures under some circumstances even without pressure from foreign governments. In the two aforementioned fieldwork examples, the pressure confronting the Chinese state came from within the country. Moreover, even if foreign pressure works under some circumstances, it cannot maintain its presence all the time. On many occasions, foreign pressure influences Chinese decision making in the form of newly emerging foreign policy actors and newly developed ideas, values, and orientations. Therefore, researchers cannot treat China as a unitary state; they must open the black box of the Chinese state to examine the operation of Chinese IPR policy on the domestic arena.

      Bureaucratic Politics Argument

      In the early twenty-first century, scholarly attempts to open the black box of the Chinese state yielded significant progress. Most prominent among those works are those by Andrew Mertha and Martin Dimitrov.¹¹ Instead of treating Chinese bureaucracy as a monolithic setup, this strand of argument posits that China’s IPR policy implementation is handicapped by administrative and legal decentralization, which creates barriers to the central disciplining of local officials and creates opportunities for local protectionism for IPR infringement.

      In his 2005 book, Mertha highlights the role of foreign businesses and private investigation firms operating in China, which he terms “lateral exogenous pressure.” He argues that exogenous pressure creates interbureaucratic competition between different enforcement agencies, which, in turn, brings about higher volumes of enforcement in certain issue areas in IPR, such as a trademark. Building upon Mertha’s work, Dimitrov expands his analysis from foreign-owned IPR to Chinese-owned IPR, from the volume of IPR enforcement to the quality of IPR enforcement, and from administrative enforcement organs to other enforcement organs, such as courts, customs, and the police, in his book published in 2009. For him, the quality of IPR enforcement should be measured by consistency, transparency, and fairness. He finds a low volume of high-quality enforcement in issue areas such as patents. However, a very high volume of copyright and trademark enforcement is unfortunately of low quality.

      The bureaucratic politics argument is an important stride forward toward a deeper understanding of Chinese IPR policy. When checked with the real-world example above, however, one may find that further analysis should be made to make the bureaucratic politics argument a more complete explanation of the causes for the rampancy of IPR infringement in China.

      First, while the bureaucratic politics argument analyzes the relationship between different IPR enforcement organs in China, more emphasis is needed to address the role of societal actors in the implementation of Chinese IPR policy. In the two real-world cases introduced in the beginning, for example, although the IPR bureaucracy conducted the raid, it had to rely on the IPR holder (The China No. 1 Pencil Company in the first case and Company C in the second case) whose business interests were being damaged by the counterfeit goods to obtain clues for enforcement. In fact, the enforcement squad of the Economic Investigation Team of the Bilin City Public Security Bureau consisted of only fifty-two members while the population of Bilin City was over one million in 2008. In the second case, the IPR enforcement squad of Tiqian City had forty-seven members while the population of Tiqian City was 750,000 in 2007. Nationwide, China employs 330,000 enforcement professionals in the country’s IPR bureaucracy,¹² the highest number in the world, but these enforcement professionals account for only a tiny portion of the 1.3 billion Chinese. It, therefore, would be impossible for enforcement officers to keep an eye on the consumption behavior of the Chinese populace even if they worked seven days a week, twenty-four hours a day. Since the business community’s interests are most directly affected by counterfeits, the IPR enforcement bureaucracy mainly relies on them to provide information that will help them organize anticounterfeit raids. According to an IPR official, without the clues provided by the business actors, the IPR enforcement bureaucracy is both “deaf and blind.”¹³ Therefore, while the bureaucratic politics argument is right in stating that politics at the local level determines the eventual policy outcome, it should go further to examine how the local societal actors interact with the local bureaucratic institutions.

      Second, although part of the bureaucratic politics argument acknowledges the impact of societal actors—namely, IPR holders and IPR infringers—it has not sufficiently considered the power ratio between the IPR holders and IPR infringers. While it is true that the local protectionism forged between the local government and counterfeiters hinders the implementation of IPR policy, is it possible that under some circumstances (such as the first case), IPR holders have the upper hand over the IPR infringers and thus press the local government to take IPR protection measures? While short-term benefits, such as tax revenue and job opportunities from IPR infringers, help local government officials maintain or strengthen their power, what if the benefits come from the innovators or IPR holders? Is it possible that the benefits from the IPR holders are higher than the benefits from having IPR infringers and, therefore, the IPR holders have a stronger voice than the IPR infringers? If yes, what is the mechanism for this to happen? In order to answer these questions, it is not sufficient to explain how local protectionism is forged between the Chinese local government and IPR infringers. It is equally important, if not more, to examine the power relationship between IPR holders and IPR infringers and their relationship with the Chinese state. A clearer picture of that relationship can help to clarify when local protectionism of IPR infringement prevails and when it can be overcome by IPR holders.

      Finally, the authors of the bureaucratic politics argument made innovative attempts to study the variation in the quality of IPR enforcement across different issue areas and different enforcement organs.¹⁴ However, in the two real-world examples above, both the successful and unsuccessful cases happened in the same issue area (trademark) and the same geographic region (N Province). A natural question arises: while it is true that effective enforcement is more likely to arise in issue areas where the state capacity is stronger (such as the issue of patent), what explains the variation between effective and ineffective enforcement in the same issue area, where state capacity stays constant? Is it possible that at least under some circumstances, the state willingly enforces IPR? Since 2002, the Chinese State Council Intellectual Property Rights Working Group has nominated the top ten representative IPR enforcement cases of the year. Out of the 100 cases from 2002 to 2012, 80 percent were trademark and copyright cases. According to an IPR official, “[During the selection of those representative cases], I understand that people may criticize us as picking up the showcases. They may even criticize us as ‘acting’ (zuoxiu). However, even though it is really acting, I think that it is good acting. We want to demonstrate to the public that even in those difficult issue areas, the situation is not that dismal. There is still hope.”¹⁵ I find that even in those issue areas where state capacity is widely regarded as weaker (such as trademark), effective IPR enforcement is still likely

Скачать книгу