The political economy of implementation: intellectual property rights protection across the world

2011-11-22This dissertation studies the reasons and mechanisms of domestic compliance and implementation of international commitments in one of the trade-related issue areas, intellectual property rights (IPR) protection, by examining both international influences and domestic characteristics, analyzing variations at both national and industrial level, comparing the reasons for both IPR statutory protection and enforcement, and using both statistical analysis and comparative case study. ❧ First, this dissertation breaks new ground by establishing the importance of domestic legal institutions for differences in IPR protection, especially in terms of enforcement on the ground. Countries depend on the currently existing legal institutions to enact provisions and develop new rules for IPR protection according to the new needs of technology advancement, economic development and industrial restructuring as well as to provide the primary enforcement apparatus and deference to potential infringements. Especially considering that the current international IPR regime does not create any obligation to establish a special judicial system for IPR enforcement, the characteristics and capabilities of the existing legal institutions highly restrict the level to which IPR as an intangible type of property right could be protected and enforced. I find that countries of Common Law, which are characterized with legal infrastructure friendlier to property rights, more independent judicial power and stronger capability to adapt to the changing social circumstances, provide higher level of IPR enforcement than countries of German Civil Law, Scandinavian Civil law and French Civil Law, although the differences among countries of different legal families in statutory protection are not so obvious in the best available longitudinal data. ❧ Second, this dissertation examines the effects of domestic political regime on both IPR statutory protection and enforcement. It finds that the interests of intellectual property generators and owners are more likely to be protected on the books in democratic regimes than in authoritarian regimes, although in practice there is no obvious difference in IPR enforcement results between the two country groups. More importantly, this dissertation discovers that authoritarian regimes are more likely to yield to international pressures propelling them to enact higher level of IPR protection than their democratic counterparts, given that they do not need to get international commitments approved by costly and prolonged domestic political debates and there is no domestic democratic procedure as a leverage against international pressures for legislation and policy change. ❧ Third, on the international side of the story, this dissertation takes initiative to systematically examine the effects of the TRIPS Agreement embedded in the world trade regime with strengthened dispute settlement mechanism on both IPR statutory protection and enforcement. A survey of patent-related cases brought in front of the WTO Dispute Settlement Body (DSB) reveals that they have effectively propelled defendants to enact patent protection on the book, unless the defendants are the United States or the European Community. A similar pattern was also found in statutory protection for copyright. However, given that the TRIPS Agreement does not specify any standard for enforcement results, the WTO dispute settlement mechanism has been feeble to depress software piracy rate across the globe in a short term. ❧ Furthermore, this dissertation makes the first effort to examine the effects of regional trade agreements (RTAs) on IPR enforcement. I take initiative to survey the original texts of all the currently existing RTAs and their IPR provisions, identify several important distinguishing characteristics, categorize these agreements accordingly, and develop a dataset of countries’ membership in RTAs of different kinds over time. This newly developed dataset helps us to extend our examination of international institutions and their effects on IPR protection to regional ones. It finds that, with other factors equal, countries involving into RTAs with provisions on copyright protection generally have lower software piracy rate and better copyright protection on the ground than those enjoying liberty without extra institutional constraints coming from RTAs. ❧ Fourth, this dissertation illustrates the significance of making comparison at the industry level with a comparative case study of copyright protection in three industries in China. It challenges our entrenched assumption that certain type of IPR would be protected and enforced to the same extent for different sectors and their products once the basic principles and standards for the protection for this type of IPR have been enacted. It also challenges the overwhelming use of nations as the basic unit of analysis in the past. By virtue of this carefully designed comparative case study, I show how the domestic incentives for IPR protection are constructed both by government and by industries and emphasize the role of economic characteristics of industries in influencing the pattern of enterprise lobbying efforts and their effectiveness, inviting government support to certain industries, and contributing to variations in IPR protection across different industries. I find that IPR-intensive industries with international competitiveness tend to obtain stronger IPR protection than other IPR-intensive industries without even in a single country. Furthermore, IPR-intensive industries with more active, inclusive and autonomous lobbying efforts for IPR protection are more effective in obtaining higher level of IPR protection. The scale and effectiveness of industrial lobbying further depend on the level and pattern of cooperation and competition between enterprises in their business relationship, the stake of enterprises of various ownerships in the industry and their initiatives in cooperation in lobbying. IPR-intensive industries with higher level of economic prominence, with more significant contribution to the economy and higher extent of technology intensiveness, should have better chance to exert their influence on government IPR statutory protection, policy-making and enforcement, and will invite more support from the government with stronger IPR protection. ❧ Finally, by putting together three empirical studies, this dissertation illustrates the different reasons and mechanisms behind IPR statutory protection and IPR enforcement. Although bilateral and multilateral pressures and stimuli embedded in international trade and investment relationship and institutionalized in multilateral regimes explained a substantial portion of variations in IPR statutory protection and explained their changes over time, domestic incentive constructed by the individual calculations of costs and benefits by users, producers, policy makers and enforcers and the process of government-industry interaction as well as domestic institutional strength are the most important factors in determining the results of IPR enforcement