The Susceptibility of Legal Institutions: “Texts” and Contexts of the Transplanted IP Laws in China

Abstract

Abstract Previous studies often attribute the poor enforcement of intellectual property rights (IPR) law in non-Western countries to environmental constraints, including social, political, or cultural factors. This article tries to reorient our focus to two intrinsic characteristics of legal rights appertaining to their social forms: the intangibility of the constructed legal object and the scope of contradictions among legal subjects. Based on 85 in-depth interviews from six IP-intensive industries in China, I propose a theoretical framework for combining the “textual” and contextual dimensions of studying legal transplants – the susceptibility of law. I argue that the intrinsic qualities of the IP legal concept imply a sizable gray space, making it difficult to interpret, hard to enforce, and thus more susceptible to specific contextual influences. The country-level contextual environment does not provide adequate technique, legitimacy, and experience to effectively enforce IPRs in general, yet some industries may benefit from a set of sub-contexts that provide compensatory support through product-embedded standardizations or network-embedded norms. Although these sub-contexts are not enough to produce a robust IPR regime as in the West, they do generate pockets of effectiveness, allowing industries to muddle through and profit, and an otherwise foreign institution gradually to take root.