China’s long and tortured history when it comes to intellectual property laws

Intellectual property law cannot be separated from culture. The goal of a well-planned intellectual property framework is to both protect cultural works and promote their creation, yet we often fail to take into account cultural differences when analyzing intellectual property frameworks around the world and building one for international application.

The capitalistic culture of the United States is reflected in a utilitarian theory of copyright, based on the notion that the granting of property rights as “limited monopolies” over one’s works is necessary to promote innovation.[1] The Intellectual Property Clause of the United States Constitution states this purpose directly in its granting of rights over works for only limited times to promote progress in Science and the arts.[2] The cultural concept of property in the United States tends to be more individualistic, centered around the idea that something is “mine” either because “I” own it or created it giving solely that individual the right to control its dissemination into society and use by others. Intellectual property rights in the global West were built around this cultural concept of individual and natural rights.[3] The value of a work is measured by its social value, the innovation it brings to society, but control over its use and distribution rests in the natural right of its creator.[4] This reflects an economic purpose to the protection of both creative and non-creative works.

In contrast, in China, both creative and non-creative works are seen as belonging to the people. Rights in that work are not based in natural human rights, but come from the state.[5] Private rights were, until very recently, viewed as individualistic and bad for the common good.[6] Though freedom of speech is now technically protected under the Constitution, speech and the flow of information is still highly regulated and the guidelines are difficult to navigate making it easier at times to recreate products that have already passed censors than to author one’s own.[7]

This conflict between China and much of the Western world has led to strong criticism and anger from the international community regarding China’s failure to protect intellectual property rights. This anger seems to emanate from a deep misperception that China and the Chinese people are simply co-opting other’s ideas for their own financial gain when instead the root of China’s counterfeit market lies in an ancient cultural conception that was only reinforced under the Communist regime of the past sixty years.

Three Phases in Chinese Intellectual property

Post revolution, legal private property was first protected by the Constitution of the People’s Republic of China when it was amended in 2003.[8] Article 13 of the Constitution provides “The State, in accordance with law, protects the rights of citizens to private property and to its inheritance.”[9] China has one of the oldest theories of the control of intellectual property, that one can control a product through markings or creation, but modern Western intellectual property rights were not introduced until the early 20th century.[10]

Phase I: Ancient China

From the beginning, the control of symbols and creative works was viewed as a state communal right, not put in place to protect individual ownership but in order the state to assert control over works, particularly its own. China’s first copyright regulation was announced in A.D. 835. It prohibited the unauthorized reproduction of works related to natural events based on the understanding that the Emperor was the only link between them and the people. Overtime, this expanded to include unauthorized copying of legal pronouncements, state histories and works on non state-sanctioned religions. This original scheme also grew to address trademarks, prohibiting use of the imperial family symbol and those of certain goods producers.[11] By the invention of mass printing, discontented authors were freely bringing suit to challenge unauthorized copying.[12]

Trademarks have also been found on pottery dating over four thousand years old. But the purpose of these marks was not to control the work but to promote access to them. This reflects a view that copying was viewed as a high form of praise, not theft.[13] For the Confucian Chinese, copying was a way through which one could develop an understanding of human behavior and educate oneself using the works of others.[14] Wei Shi argues that the five cardinal relationships of Confucianism extol the virtues of honesty and loyalty, not copying.[15] Confucianism also promoted the notion that society is not made up of singular persons, but the connections that bring them together. The emphasis then is not individual profit, but communal property.[16] Thus personal rights and development are praised for their importance to the society as a whole, and the importance of honesty in Confucian ethics can co-exist with what the contemporary world views as counterfeiting.[17]

China developed its first intellectual property scheme in the 1880’s, once it began trading with other nations.[18] Before the introduction of foreign trade, China mainly traded tea, silk and opium. Though at times there were issues surrounding regarding passing off inferior products under other brand names, they were rare.[19] The first official substantive Intellectual property laws were enacted in the early 20th century, following the signing in 1903, of a treaty between the United States and China granting each reciprocal intellectual property rights. Following this, China enacted its first copyright law in 1910, its first patent law in 1912 and its first trademark law in 1923.[20] But these provided little protection for foreigners and were never well enforced.[21] There are several possible reasons for the failure of this treaty and the subsequent laws. Peter Yu poses that its failure was a result of the Chinese corruption coupled with geographical disparities and a system built on registration coupled with a lack of Chinese governmental understanding the importance of intellectual property rights.[22]

Phase II: Maoism

With the rise of Maoism, the intellectual property regime then in place was altered under a regime of brutal cultural regulation and information control. The Cultural Revolution saw the destruction of both the concept of private and actual property in China. The system previously in place could no longer exist in a world where “formal law and administrative bureaucracy were denounced.”[23] The effects of this specific era in China’s cultural, political and legal history have continued to linger the implementation of its intellectual property regime today. The system was not perfect and still reflected the principle that an innovative work did not belong to the author, but to the “collective endeavor” behind the author.[24] Thus the 1950’s saw an alteration in copyright rules that prevented Chinese publishers from paying or seeking permission from copyright holders when using foreign works unless the author was located in specific types of places such as another socialist nation or a member of a progressive organization and in 1963 the property elements of patent were eradicated.[25]

Phase III: Post-Mao China

After Mao’s death and the end of the Cultural Revolution, a period of drastic change began in China’s cultural policy. China was no longer practicing the isolationist policy it had adhered to under Mao and was instead focused on bringing China back as a major international political player.[26] Before it even re-established its own Intellectual property regime, in 1979 China signed the Agreement on Trade Relations Between the United States of America and the People’s Republic of China, allowing for protection of American copyright, patent and trademarks in China.[27] The 1980’s saw China become party to the World Intellectual Property Organization, the Berne Convention, the Paris Convention and the Patent Cooperation Treaty.[28] China enacted its first post-Revolution trademark law in 1982 and its first patent law in 1984, based on western Intellectual property laws.[29] China’s first Copyright law wasn’t introduced until 1990, a reflection of Maoist ideals and notions surrounding private rights and even then, the protection given to Chinese authors was limited in order to keep the system in line with the nation’s socialist ideals.[30] The year 2000 saw the announcement that China was working towards “improving cultural enterprise policy, strengthening the development and management of cultural markets, and promoting the development of related cultural enterprises,” in “Suggestions for China’s Tenth Five-Year Plan”.[31]

China’s current intellectual property regime was established as a result of trade pressures from the West and is on its face quite similar to a Western model [32] Despite this, Pang postulates that the original view of culture dating back to Confucian China – one that emphasizes national development and unity while devaluing the individual – remains deeply ingrained in Chinese understanding of property and creative works.[33] So while the “cultural” social ideals of Maoism remain, China has been moving politically towards a western conception of property rights. The creative industries are still being supported because of what they can do for the national economy, not the individual creator.[34]

Jeanne Schwartz is a J.D. candidate, ’15, at the NYU School of Law.

[1] Julie E. Cohen, Lydia Pallas Loren, Ruth L. Okediji, Maureen A. O’Rourke, Copyright in a Global Information Economy (3d ed. 2010); Yochai Benkler, Siren Songs and Amish Children: Autonomy, Information and Law, 76 N.Y.U. L. Rev. 23, 59-60 (2001).

[2] U.S. Const. art. 1, § 8, cl.8.

[3] Wei Shi, Cultural Perplexity in Intellectual Property: Is Stealing a Book an Elegant Offense?, 32 N.C. J. Int’l L. & Com. Reg. 2, 24, 26 (2010)

[4] Peter S. Menell, 1600 Intellectual Property: General Theories 129, 130, in Encyclopedia of Law and Economics Vol. II (Boudewijn Bouckaert & Gerrit de Geest, eds., 2000)

[5] Wei Shi, Cultural Perplexity in Intellectual Property, 26

[6] Wei Shi, Cultural Perplexity in Intellectual Property, 25

[7] Wei Shi Cultural Perplexity in Intellectual Property, 24

[8] Cheung, Intellectual Property Rights in China 25

[9] Xianfa art. 13, (2003) (China) available at usconstitution.net/china.html#Article13

[10] Peter Yu, The Second Coming of Intellectual Property Rights in China, in Occasional Papers in Intellectual Property II from Benjamin N. Cardozo School of Law 2, 3, available at http://www.peteryu.com/2dcoming.pdf

[11] Peter Yu, The Sweet and Sour Story of Chinese Intellectual Property Rights, in Technology, Progress and Prosperity: A history of Intellectual Property and Development (Graham Dutfield & Uma Suthersanen, eds., 2014) 2 available at http://www.peteryu.com/articles.htm

[12] Leikwang Pang, Creativity and Its Discontents: China’s Creative Industries and Intellectual Property Rights Offenses 96 (2012)

[13] Kassner, China’s IP Reform: State Interests Align with Intellectual Property Protection (Again), jolt.law.harvard.edu/digest/patent/chinas-ip-reform-interests-align-with-intellectual-property-protection-again

[14] Peter Yu, Intellectual Property and Asian Values, 16 Marq. Intell. Property. L. Rev. 330, 342 (2012).

[15] Wei Shi, Cultural Perplexity in Intellectual Property 7

[16] Wei Shi, Cultural Perplexity in Intellectual Property 8,9

[17] Wei Shi, Cultural Perplexity in Intellectual Property 9

[18] See Pang supra at 97, Peter Yu, The Sweet and Sour Story of Chinese Intellectual Property Rights 2.

[19] Peter Yu, The Second Coming of Intellectual Property Rights in China 3

[20] Peter Yu, The Second Coming of Intellectual Property Rights in China 6

[21] Peter Yu, The Sweet and Sour Story of Chinese Intellectual Property Rights 3

[22] Peter Yu, The Second Coming of Intellectual Property Rights in China 6

[23] Peter Yu, The Second Coming of Intellectual Property Rights in China 7

[24] Id.

[25] Id.

[26] Peter Yu, The Middle Kingdom and the Intellectual Property World 209, 215, 13 Or. Rev. Int’l L. 209 (2011)

[27] Yu, The Middle Kingdom and the Intellectual Property World 216-7; Yu, The Sweet and Sour Story of Chinese Intellectual Property Rights 4

[28] See Pang supra at 98

[29] Id. at 99

[30] Yu, The Middle Kingdom and the Intellectual Property World 217, Yu, The Sweet and Sour Story of Chinese Intellectual Property Rights 4

[31] See Pang supra at 93

[32] Peter Yu, Intellectual Property and Asian Values, 16 Marq. Intell. Property. L. Rev 329, 345 (2012)

[33] See Pang supra at 94

[34] Id.