Shaping Chinese criminal enforcement norms through the TRIPS Agreement

Abstract

Entered into force on 1 January 1995, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) built into the international intellectual property regime a set of comprehensive multilateral norms on intellectual property enforcement. The Agreement became ‘the first international [intellectual property] treaty to include provisions that deal with domestic criminal procedures and remedies’. Article 61 of the TRIPS Agreement specifically requires members of the World Trade Organization (WTO) to ‘provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale’. Shortly after the adoption of the TRIPS Agreement, international bureaucrats, government policymakers, industry representatives, and academic commentators quickly extolled the benefits of having a wide set of international intellectual property enforcement standards. A decade later, however, developed countries and their supportive industries began to complain about the inadequacy and ineffectiveness of these standards. They have also pushed aggressively for the establishment of new and higher standards through bilateral, plurilateral, and regional trade agreements, including the recently adopted yet highly controversial Anti-Counterfeiting Trade Agreement (ACTA).