Selective adaptation and legitimacy : public-private dynamics in China's TRIPS compliance

• Main Author: Guan, Wenwei
• Format: Others
• Language: English
• Published: University of British Columbia 2009
• Online Access: http://hdl.handle.net/2429/7919

This dissertation examines China’s compliance with the WTO’s intellectual property regime –the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) –and its theoretical implications. The dissertation’s critical review of contemporary intellectual property philosophy at the beginning suggests that justifying intellectual property protection through Locke or Hegel’s property theories internalizes a theoretical paradox. While being recognized as self-sufficient private rights gives intellectual creations constitutional significance, it also traps the legal regime in an intrinsic dilemma of private-public confrontation. In contrast to WTO’s private-oriented perspective, China’s response to this private-public dynamics indicates a clear public interest orientation. This is evident in imperial China’s reliance on criminal and administrative but not civil protection for intellectual endeavors, in contemporary protection of Olympic Marks, and in the Ex Officio action system of enforcement in China’s TRIPS implementation. In addition, an empirical survey study suggests that China’s public-oriented cultural imperative shapes people’s ways of perceiving private rights from their social embedment, and further constructs people’s perception of intellectual property protection. Further jurisprudential analysis reveals that the self-sufficient ontology since the Enlightenment that constructed the modernity of law has shaped TRIPS’ self-sufficient private rights perspective. When private rights are made self-sufficient and the intellectual property regime becomes indifferent to public concerns and development, modern law becomes “self-evident” and legitimacy collapses into legality. This public-private orientation contrast between China and the WTO not only explains the “how” and the “why” of China’s TRIPS compliance, but also reveals a compliance paradox. While foreign pressure on China for establishing an omnipotent administration to protect private-rights-in-nature intellectual property is squaring a circle in vain, China’s effort to embrace the private rights oriented regime is cutting off its toes to fit into foreign shoes. The dissertation proposes a jurisprudential reconstruction building on a relational instead of self-sufficient ontology to restore international compliance to the process of constant “selective adaptation” and dynamic growth of legitimacy. During this process, the dynamics between international norms and local imperatives provides a driving force for law’s development, where “to be” meets with “ought to be,” through which international norms and local regimes evolve.