The analytical framework of this thesis has been significantly influenced by the macro-micro analysis created by Braithwaite and Drahos in Global Business Regulation (Braithwaite and
1.6.1 The macro-micro approach
The essence of the macro-micro approach is “to gather data on the most macro phenomenon possible from the most micro source possible - individuals, especially individuals who act as agents for larger collectivities” (Braithwaite and Drahos 2000, 13-14) This thesis adopts this approach to analyze China’s international IP engagement. The micro data in this thesis includes news, interviews and various forms of publications by government officials and academics that demonstrate China’s engagement in a specific area of intellectual property at the bilateral, plurilateral or multilateral level. The macro level issues this thesis investigates are twofold: first are the outcomes of power contestation (whether China has become an international IP rule- maker), and second, what motivates or constrains China in its international IP engagement.
1.6.2 Methodology: document analysis, interviews and case study
1.6.2.1 Case study
Case studies are used in this thesis to understand and compare the variations of China’s engagement in different IP issues. The selection criteria for the cases came from the second research question — only cases that potentially leave scope for China to act as an IP rule-maker were selected. This means that the three major types of intellectual property (patents, trademarks, and copyright) are not thematic cases for this thesis because the historical evidence demonstrates that China has been a rule-taker in these three areas (Chapter 2.4). It follows that this thesis has to venture into other areas to see whether China has exercised some form of leadership over IP rules.
The cases were selected from two perspectives: the first being from the structural perspective, and the second from the perspective of actors. Consideration of the structural perspective raised the question of what the topics of the ongoing WTO negotiations are those China may have a voice. In the Doha WTO Ministerial Declaration,12 two issues concerning intellectual property were:
(1) the establishment of a multilateral system of notification and registration of geographical indications for wines and spirits (Para 18); and
(2) the relationship between the TRIPS Agreement and the Convention on Biological Diversity, the protection of traditional knowledge and folklore, and other relevant new developments (Para 19).13
Given that China is rich in local specialties and genetic resources, GIs and the disclosure obligation were selected as cases for this thesis. In addition, since China’s first IP proposal at the
12 Doha WTO Ministerial Declaration, WT/MIN(01)/Dec/1, adopted on 20 November 2001.
13 Though Para 17 of the Doha Ministerial Declaration also stresses the importance of intellectual property
WTO concerned IP and standardization,14 an issue indicating China’s intention to promote a rival standard. Therefore, I selected the issue of IP and standardization as the third thematic case for this thesis.15
Secondly, consideration from the perspective of an actor led to the question — what has China done in terms of its international IP engagement? After collecting data from various sources, I sorted the specific initiatives or incidences that may demonstrate China’s international IP engagement at different fora and then I categorized these fora into different levels. As a result of this categorization, China’s international IP engagement are analyzed at the bilateral level (Chapter 6) and plurilateral and multilateral levels (Chapter 7). Figure 3 illustrates the cases chosen for this thesis.
Figure 3 Selected Cases for This Thesis
1.6.2.2 Document review
Document review is the second methodology used in this thesis. The categories of the documents reviewed included:
(1) Treaties, legislation, administrative regulations, ministerial rules and other policies;
14 In May 2005, China submitted to the WTO Technical Barriers to Trade (TBT) Committee that intellectual China’s engagement in thematic issue
areas of IP
Geographical indications (GIs)
The requirement to disclose the source of genetic resources in patent applications (the disclosure obligation)
IP and standardization
China’s IP engagement at different levels
Bilateral: IP provisions/chapters in China’s FTAs with other countries
Plurilateral and multilateral engagement (Chapter 3-5)
(2) Journal articles, books, and other academic publications;
(3) Research reports released by governments, nongovernmental organizations and research institutes;
(4) Memoirs in compiled books;
(5) Transcripts of presentations, press releases, and interviews; (6) Online and newspaper articles;
(7) Live webcasts; and
(8) Publicly available data by potentially inaccessible informants.
In addition to the documents already mentioned, I used document review as a method to complement interview data (Section 1.6.2.3). Considering some of the key informants were not accessible during the fieldwork, I purposefully searched publications, transcripts of interviews and speeches, and webcasts by and about these key but inaccessible informants. Information from these sources proved a good way to compensate for the lack of interview data. These documents are specifically mentioned as a separate category because the snowball effect here starts from a potential informant and ends with published documents by that informant.
As a native speaker of Chinese, I have searched for first-hand sources in the Chinese language. Many of these sources are summarized and translated into English for the first time. The use of these first-hand resources adds to the novelty of this research.
1.6.2.3 Interviews and complementary resources
I conducted 36 interviews in total during my fieldwork. Some key informants were not accessible. One of my potential informants told me that considering the public debate inspired by the documentary Under the Dome,16 she would not accept my request for an interview. Another incident involving a famous Chinese anchor made Chinese government officials more cautious about their speech at private occasions. 17
For those informants who were accessible, my review of their interview transcripts sometimes indicated little information beyond the official government position (See Section 1.4.4.2). I did have several valuable interviews, but the interview data on its own was not sufficient to develop
16Under the Dome is a documentary investigating pollution and air quality in China. It was first put online
on February 28, 2015 and watched over 200 million times within 48 hours. Given the large-scale debates inspired by the documentary, it was taken offline since March 2, 2015 (Beaumont-Thomas 2015). Considering that interview data was used in this documentary, my perception is that after the Under the Dome event, Chinese government officials were warned to treat private interviews more cautiously. I believe this helps to explain the access difficulties that I encountered.
17 Bi Fujian, an anchor affiliated with China Central Television (CCTV) was internally disciplined because
of a video spread widely online. In this video, he made disparaging remarks about Chairman Mao. Someone secretly took this video of him during a dinner and put it online without his permission (Li 2015a). As a result of this incident, Chinese government officials became more vigilant about their speeches on private occasions.
answers to my research questions. As part of a much wider data-gathering process I used the following strategies:
(1) Referring to conference minutes kept by international organizations. For example, the WTO TRIPS Council has published minutes of its council meetings since its establishment, and the speeches given by Chinese representatives have been well documented. In the case study of GIs and the disclosure obligation, I use these publicly available data to investigate China’s position.
(2) Referring to publications by Chinese government officials. From my previous experience working as an official of SIPO, I know that ministries of the Chinese central government often assign research projects to experts in the field. These projects yield data which were used to provide advice and to solve regulatory problems. Although the full text of the project reports is often not accessible, short versions of such reports are often published as journal articles. Sometimes, the government official representing the assigner of the projects appears as a co-author of the publication. When an interviewee was not accessible, I would go to the China Academic Journals Full-text Database looking for publications by the potential informant. Using this method, I targeted several valuable sources. For instance, Wang and Wan (2010), a paper co-authored by an official from the Ministry of Commerce and a GI expert, is the key source of information to identify China’s position in its international GI engagement.
(3) Referring to transcripts of interviews, public speeches and a live webcast of high-level government officials and celebrated Chinese IP scholars on social media to collect relevant data. Due to the effects of Under the Dome and the anti-corruption campaign in China, high-level government officials were reluctant to accept my interview invitations. However, 2015 was the year that WeChat (the major Chinese social media) reached 700 million users and the year that official accounts of Chinese governments, research institutions and individuals surged on the WeChat platform. This social network development makes the general practice of IP regulators in China and their international engagement of a department/ministry more traceable. For instance, I saw the full text of a speech given by Dr. Shen Changyu, Commissioner of SIPO, at the 56th General Assembly of WIPO in October 2016 on WeChat, several days after the speech was given. It is used in this thesis as key data to show the relationship between China and WIPO. In addition, for the purpose of expanding influence or increasing transparency, webcasts
are also used to publicize high-profile events.18 Live webcasts are a key source of data for my analysis of China’s position on data exclusivity and the role of IP epistemic communities in China’s international IP engagement.
(4) Referring to the compilation of memoirs on the history of China’s IP engagement. As shown in the Chinese language literature on China’s IP engagement before TRIPS, these compiled books represent an institutional memory of China’s engagement. Since some of the retired officials are not accessible and others have passed away, their personal memoirs have become the major information source concerning China’s IP engagement, since the late 1970s.
In most cases, information from these other channels have compensated for the lack of interview data to identify the Chinese position on certain issues; however, the IP provisions in Chinese Free Trade Agreements (FTAs) are the exception. The FTA negotiators were not available for an interview, and there were few publications touching on the position of China on IP issues during various FTA negotiations. The only information available is the negotiated treaties. In Chapter 6, I will focus on a careful analysis and comparison of the text of IP provisions in Chinese FTAs, without analyzing the negotiating process which for the time being remains hidden. Though I have tried to triangulate the position of China through a comparison of various FTAs, TRIPS provisions, and Chinese IP laws, this chapter only analyses the position of the parties when there is sufficient textual evidence.
1.6.3 Timeframe
Chapter 2 of this thesis examines the history of China’s international IP engagement from its modern history (1840-1949) to the present day. Findings of this history reveal that China has been an IP rule-taker until its accession to the WTO. Therefore, this thesis mainly focuses on the post-TRIPS period to answer the question whether China has shifted into the role of a rule-maker. During the writing of this thesis, several major events happened both internationally and domestically. Internationally, ACTA, a major plurilateral treaty initiated by the US failed after its rejection by the European Parliament. After the retreat of the US, the latest version of TPP in 2017 saw the withdrawal of its major TRIPS-plus standards. In order to turn China into a leading IP power, there has been an extensive development of IP policies in China, in recent years (Chapter 2.4.3). These and other events that happened after the commencement of this thesis in 2014 have been consistently incorporated into my discussion in this thesis. One exception is in
18US-China IP Cooperation Dialogue used live webcast to record the conference for publishing their 2017
report, see Press Release for the Report of US-China IP Cooperation Dialogue中美知识产权学者对话
纪 要 发 布 会 [zhongmei zhishichanquan xuezhe duihua jiyao fabui] at http://zhibo.ifeng.com/video.html?liveid=106004.
Chapter 6 which concerns the China-Georgia and China-Maldives FTAs. The text of China- Georgia FTA was published in December 2017, less than 4 months from the submission of this thesis, and the China-Maldives FTA was signed on December 2017 but the text had not been published by the end of January 2018. I mention the China- Georgia FTA as one of the Chinese FTAs that includes an IP chapter but do not elaborate on it.