Copyright as International Cultural Policy: A New Model for Copyright Enforcement in China
| Author | Patrick Hughes |
| Position | Freelance artistic consultant. J.D.(The George Washington Univ.); M.A.(Columbia Univ.) |
| Pages | 99-139 |
Page 99
China's copyright regime, which American businesses have repeatedly complained is not sufficiently enforced, could be successfully encouraged through a cultural policy, as an alternative to a trade policy. Through a cultural perspective, the concept of copyright might not be as remote to China's populace as was once believed, as people can no longer blame the influence of Confucianism or suppression of private property rights. This article explores the cultural policies of the United States and China to discover a way by which a copyright system can be inherently Chinese in nature, and therefore, more likely to be enforced.
On the advent of the 2008 Olympic Games, China has achieved the status of major world power that has been described by Time magazine as having a "growing clout and visibility" that accompanies an "increased sense that it should adhere to the highest standards of international conduct." 1 As a world power, China's international responsibilities include adherence to international standards for the protection of copyrights, as well as other intellectual property (IP) rights.2Although China has joined many international treaties to comply with these standards, and has signed nine memoranda of understanding, copyright enforcement in compliance with these treatiesPage 100 has remained weak.3This situation has emerged from the belief that many hold - including a senior Chinese official-that such enforcement is not at this time in China's interest.4In direct contrast with this notion, here are three Chinese people who hold that it is indeed in China's interest to have copyrights protected-both in China and abroad.
The first is Vivien Sung, author of Five-fold Happiness: Chinese concepts of luck, prosperity, longevity, happiness, and wealth, in English with a translation into traditional Chinese on either the same page or on an opposite page.5While the book is available throughout the English-speaking world, it is manufactured, distributed, and exported from China.6Following the title page, as in most Western books, this publication contains the standard copyright notices recognizing the copyright holders (the author and photographer) and an express warning not to reproduce the book.7On the page opposite the title page is a phrase with its Chinese translation: "May you enjoy good fortune as expansive as the Eastern Sea, and longevity as long as the Southern Mountain."8There is much that can be inferred from this copyright acknowledgement and the corresponding message, whether or not the author acted purposefully in this regard. The author could be using the copyright notice not only to protect her property, but also to imply that copyright enforcement will grant "longevity"; she is even wishing the reader "good fortune."9Although the author has not been isolated from the Western world as many in China have been,10it is clear that she is addressing both Western and Chinese readers in her request to honor the copyright of her book and refrain from making unauthorized copies.
The second is director Zhang Yimou.11His film Hero has been called an attempt "to explore and develop a better understanding of the Chinese concept of a hero."12At the film's world premiere in China in October 2002, an executive from the film's Chinese distribution company announced: "We are showing this preview for your enjoymentPage 101 tonight... I plead with you to support our industry. Please do not make illegal copies of this film." 13In addition to the warning, the audience members were videotaped as they walked into the theater through metal detectors and handed over their cell-phones, watches, and jewelry .14Following that successful premiere and a lucrative run in China, the film earned approximately $55.6 million in its first month in the United States in August 2004, nearly 22 months after it opened in China.15
The third is pop music star Jacky Cheung, who has been called "incontestably the most famous and successful recording artist in Cantonese pop's short history." 16His 2007 world tour included performances in Las Vegas, Atlantic City, and more than a dozen cities throughout China.17An avid anti-piracy advocate, Cheung asked his fans to stop putting MP3 files on the net. This is killing the future of music creation. It is going to affect everyone and not just the artists themselves."18His albums have routinely sold millions of copies, totaling more than 25 million sales.19Because of his success, his record label, Universal Asia, has recorded and released much more music from Asian artists, most of whom will not be successful, but will bring diversity to the Chinese music scene.20Although he expresses his creative thought through his performances, which could provide much of his income, Cheung still advocates protection of his recorded works for artistic and entrepreneurial reasons.
With the wishes of these creative people in mind, it is difficult to grasp the concept that China would not want to abide by international copyright norms to nurture the cultural sector of the country and inspire new artists. But as Peter Navarro, Professor of Business at the University of California, Irvine, explains, there is a climate in China in which piracy and counterfeiting are not only tolerated, but also "wholeheartedly embraced" by much of the population.21At the same time, there has been an indefatigable devotion on behalf of copyright holders, cultural theorists, andPage 102 entrepreneurs to find "imaginative ways" of convincing people in China to enforce its copyright regime.22This article is one such attempt.
Rather than through the threat of trade sanctions and emphasis on the positive effects on commerce, copyright enforcement could be encouraged through a cultural policy, as some have envisioned copyright in the United States, albeit unofficially and usually from those outside of the judicial system. There are many ways in which such policy could be prescribed, but the message should be one in which culture, rather than business interests, should be the beneficiary of such intangible property rights.
The World Intellectual Property Organization (WIPO) divides IP into two categories: industrial property, which includes patents, trademarks, and trade secrets; and copyrights, which includes all artistic works - literary, visual, and musical.23Until relatively recently, discussions over copyrights have not usually included industrial applications.24And many have asserted that further separation between these two categories is needed to categorize "borderline subjectmatters that fit imperfectly" as either art or industrial property.25A cultural policy-in China or one that transcends borders-could be designed to include all categories of IP. While this article could be interpreted to be an instrument to advocate that all aspects of "creativity" and "creative thought" could be protected through a cultural policy, ministries of culture throughout the world traditionally have not been committed to protecting industrial property through cultural policy.26Therefore, this article focuses solely on copyright, and not other IP, as the subject of a cultural policy, although other IP rights are mentioned. Following an exploration into the reasons why China should desire a strong copyright system, this article explores copyright in China through a cultural perspective and then introduces cultural policy as an appropriate approach.Page 103
Popular culture commentators and scholars alike have seemingly accepted the notion that because a substantial percentage of China's economy consists of piracy operations, China's government "has a pretty substantial motive not to do much about it."27This theory stems from an assumption that policy-makers in developing countries ordinarily object to strong IP enforcement, and from a supposition that China is a typical developing country.28Some assert that developing countries have traditionally perceived the use of IP as a means of development "regardless of who owns the property rights,"29and therefore are less likely to enforce these rights. Entrepreneurs in developed countries, on the other hand, want IP rights, such as copyrights, enforced in developing countries so that their business ventures are not undermined by piracy and counterfeiting, in both developing and developed countries.30Companies foreign to China, for instance, would be more likely to do business in China if these companies could work in a familiar legal system that a strong copyright regime can provide.31Better IP enforcement also encourages companies from outside of China to sell, license, and transfer technology to China.32This results in increased exports from China, increased wages for Chinese laborers, and improvements to China's overall economy.33But incoming foreign firms have feared that Chinese authorities will do little to stop IP infringers who might bring revenues to local Chinese leaders through piracy and counterfeiting operations.34In the 1990s, Keith A. Maskus, Professor of Economics at the University of Colorado at Boulder, offered survey evidence that supported the theory that the general level of IP protection in a developing society was a "strong concern" of foreign companies in the decision to invest inside that developing country.35ThisPage 104 "concern" has...
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