To Steal a Book Is an Elegant Offense

Intellectual Property Law in

Chinese Civilization

William P. Alford

Stanford University Press,

Stanford, California

1995

Studies in East Asian Law, Harvard University

The Harvard Law School, in cooperation with the John King Fairbank Center

for East Asian Research, the Harvard-Yenching Institute, and scholars from other

institutions, conducts a program of training and research designed to further

scholarly understanding of the legal systems of China, Japan, Korea, and other

jurisdictions in East Asia. In conjunction with this program, a series of

publications was established in 1967.

Stanford University Press Stanford, California

© 1995 by the Board of Trustees of the Leland Stanford Junior University

Printed in the United States of America

CIP data appear at the end of the book

Stanford University Press publications are distributed exclusively by Stanford

University Press within the United States, Canada, and Mexico; they are

distributed exclusively by Cambridge University Press throughout the rest of the

world.

This study is dedicated to Daniel Shen Alford

and his four grandparents. May he lead as

worthy a life as they have.

i

Acknowledgments

I k n o w no better way to preface a study on intellectual property than to recognize the contributions of others. Such acknowledg­ment must begin in this case wi th an expression of my deep grati­tude to the law firm of O ' M e l v e n y & Myers , which, in but one of its many contributions to the public weal , provided support that helped launch this project. In selecting me through an international competi t ion as the first recipient of a grant to commemorate its cen­tennial, O ' M e l v e n y & Myers provided me wi th the equivalent of a research sabbatical. Dur ing that period and since, I have been able to interview public and private decision makers, as wel l as vict ims and perpetrators of infringement; pour through musty archival ma­terials here and abroad; traverse back alleys in search of "pirates"; and through more conventional means carry out the bulk of the re­search that forms the basis of this book. I am no less appreciative of the wise counsel that Warren Christopher, w h o was formerly the firm's managing partner, and Howard Chao , Gary Horlick, the late Richard Sherwood, John Stamper, K o - Y u n g Tung, and others at O ' M e l v e n y & Myers offered, all the while remaining mindful of my need for scholarly independence.

I also feel very thankful for the generosity of many others. T h e late Professor Melvi l le N i m m e r was an inspiration. A l though Mel was a preeminent scholar of copyright, he always found time to help younger colleagues and, in this and many other ways , exemplified h o w one might gracefully blend professional excellence wi th kind­ness. T h e deans under w h o m I have been fortunate enough to have w o r k e d — D e a n Robert Clark of the Harvard Law School and Dean Susan Westerberg Prager and Professor Carole Goldberg-Ambrose of the U C L A School of Law—did exactly what good deans should

viii / Acknowledgments

do, providing the heartfelt scholarly encouragement and the much appreciated material support necessary to carry out such a project. Christ ine Cervenak, Jau-yuan Hwang , Margot Landman, O u y a n g Jehng, Peter Lin, Liang Zhiping, Mark Ramseyer, Arthur Rosett, Shen Yuanyuan, Frank Upham, Lloyd Weinreb, Y i n X i o n g , and Yu X i n g z h o n g generously and insightfully reviewed part or all of the manuscript during its many drafts.

My teacher Jerome Cohen and sinological colleagues, including Randle Edwards , James Feinerman, Sharon Horn, Andrew Hsieh, Philip Huang, Wil l iam Jones, Natalie Lichtenstein, Stanley L u b -man, H u g h Scogin , Karen Turner, Susan Weld, and Margaret W o o , wi th patience and good humor all added substantially to my under­standing of law in China. Chang Wejen, Susan Cherniack, Eddy Harrison, David Ben Kay, Lawrence Liu, Michael Moser, Julia Murray, Shao Chiung-hui , and Mark Sidel kindly shared wi th me a variety of materials on intellectual property in China. Muriel Bell , Peter Dreyer, and John Feneron of the Stanford Universi ty Press were kind, helpful, and highly literate editors. Han Deyun , Peter Neumann, and Franklin Zee proved to be exceptional research as­sistants, unearthing a wealth of valuable information. Chery l Frost, Margaret Kiever, Susan Salvato, Melissa Smith, Deborah Soares, and Kathryn Y i n g pored through my almost illegible drafts w i th extraordinary care and patience.

Apar t from those named above, I am also indebted to the scores of individuals I interviewed in the United States and abroad. Many spoke to me on the condition that I preserve their anonymity. As a result, data gleaned from my interviews are cited by date and place, rather than by interviewee.

Additionally, I wou ld like to thank, among other institutions, the Harvard Law School and its East Asian Legal Studies Pro­gram; the Harvard Law Library; the Harvard-Yenching Library; the library of Harvard's John King Fairbank Center for East Asia R e ­search; the Chiang Ching-kuo Foundation for International Schol­arly Exchange; the Dean's Fund at the U C L A School of Law; the International Studies and Overseas Program at U C L A ; the Re ­search Commi t t ee of the Academic Senate at U C L A ; the Law Library and Rudolph Oriental Collect ion at U C L A ; the ministries of the Interior and Justice of the Republic of China; the Academia Sinica; the National Library of the People's Republic of China;

Acknowledgments / ix

the State Copyr igh t Administration of the People's Republic of China; the Intellectual Property Center of the People's Universi ty of China; the China Counc i l for the Promotion of International Trade; China Patent Agents (H.K. ) Ltd.; Baker & McKenzie ; Lee & Li; Paul, Weiss, Rifkind, Wharton & Garrison; International Business Machines Corporat ion (Japan); Lockheed Corporation; Universal / M C A ; the Office of the United States Trade Representative; the Uni ted States Patent and Trademark Office; the Copyr igh t Office of the United States; and the U . S . embassies in Beijing and Seoul.

I w o u l d also like to thank those institutions of higher learning at wh ich I was able to present papers drawn from the material that makes up this book . T h e y include the University of Arizona C o l ­lege of Law, the Boston Col lege Law School, Case Western Reserve University, the Columbia University School of Law, the Univer ­sity of Connect icut School of Law, Harvard Law School, Lewis and Clark Co l l ege Northwestern School of Law, National Taiwan U n i ­versity, and Washington University, St. Louis. I am also grateful to the Journal of Chinese Law, which published an earlier version of chapter 2 in volume 7, no. 1 (1993).

Finally, I wish to thank my parents, Hyman and Rose Alford, my wife, Shen Yuanyuan, and my dearest friend, Jonathan Kempner, for all they have done and continue to do.

I have rendered Chinese names and terms in pinyin romaniza-tion, except where it wou ld be confusing to do so (e.g. , Taipei). A l l translations are mine unless otherwise indicated.

Notwiths tanding the generous support provided me by so many persons and institutions, I remain responsible for the opinions e x ­pressed and errors contained in this work .

W.P .A

Contents

One. Introduction I 1

Two. Don't Stop Thinking About. . . Yesterday:

Why There Was No Indigenous Counterpart to

Intellectual Property Law in Imperial China / 9

Three. Teaming the Law at Gunpoint: The Turn-of-

the-Century Introduction of Western Notions of

Intellectual Property / 30

Four. Squaring Circles: Intellectual Property Law with

Chinese Characteristics for a Socialist Commodity

Economy I 56

Five. As Pirates Become Proprietors: Changing

Approaches Toward Intellectual Property

on Taiwan / 95

Six. No Mickey Mouse Matter: U.S. Policy on

Intellectual Property in Chinese Society / 112

Notes / 127

Bibliography / 176

Glossary / 213

Index / 215

Illustration from a 1985 pamphlet by the Jilin sheng gongshang xingzheng

guanliju (State Administration for Industry and Commerce of Jilin Province),

Zhonghua renmin gongheguo shangbiaofa tushi (An Illustrated Explanation of

the Trademark Law of the People's Republic of China). The accompanying text

reads, "Article 40: Those who pass off someone else's registered trademark, by

means including the unauthorized making or selling of items bearing that

trademark, besides being required to compensate the person whose trademark has

been infringed and being subject to punishment by [an administrative] fine, may if

directly responsible be charged by the legal organs with criminal responsibility in

accordance with the law." The man standing behind the bench is identified as the

presiding judge.

To Steal a Book Is an Elegant Offense

Intellectual Property Law in Chinese Civilization

One

Introduction

To steal a book is an elegant offense. Chinese saying of unknown provenance

A l though scholars both East and West credit the Chinese wi th having contributed paper, movable type, and ink to humankind, China has yet to develop comprehensive protection for what is cre­ated when one applies inked type to paper. 1 To be sure, this has not been for a lack of effort in promulgating formal legal protections for intellectual property. In recent years, both the People's Republic of China (PRC) and the Republic of China ( R O C ) have taken major steps designed to bring their copyright and other intellectual prop­erty laws into close conformity wi th the expectations of the U . S . government, which had threatened to impose hundreds of millions of dollars in trade sanctions on each in response to what Wash­ington termed their cavalier attitudes toward such American prop­erty. 2 These developments notwithstanding, protection for intellec­tual property remains closer to rhetoric than reality on the Chinese mainland, and problems persist across the Taiwan Straits.

This book considers w h y intellectual property law, and in par­ticular copyright , has never taken hold in China. For purposes of this study, intellectual property is defined principally to encompass copyright , patent, and trademark, 3 although other less significant forms wi l l at times be addressed. Copyright is intended to protect

2 / Introduction

original literary, artistic, and musical works , wi th the focus of pro­tection being the expression of an idea, rather than the idea itself. State acknowledgment of such rights, at least in the West, dates from the Enlightenment and is grounded in the United States in Article I, section 8, clause 8 of the Const i tut ion. 4 In today's world, copy­right is typically said to encompass the exclusive rights to repro­duce, distribute, display, perform, or prepare derivative versions of the w o r k in question. A patent is a limited-term monopoly granted by government to the inventor of a novel, nonobvious, and useful product, manufacturing process, machine, chemical composit ion, design, or plant in exchange for public disclosure of the pertinent innovation. Considered by historians to have emanated, at least in the West, from fifteenth-century Venice, patents, too, have consti­tutional grounding in the United States. 5 In this study, a trademark is a w o r d or symbol that identifies the source of goods (or services in the case of a servicemark). Unlike copyright and patent, trademark protection does not have a constitutional basis; rather, it emerged in Ang lo -Amer i can jurisprudence from the common law, although in the United States and elsewhere trademarks are n o w protected statutorily.

At its core, this study advances four broad propositions. The first is that, contrary to the assertions of Chinese scholars 6 and the expectations of Western theorists, 7 imperial China did not develop a sustained indigenous counterpart to intellectual property law, in significant measure because of the character of Chinese political cul ­ture. Second, initial attempts to introduce European and American intellectual property law to China at the turn of this century were unsuccessful because they failed to consider the relevance of such models for China and instead presumed that foreign pressure w o u l d suffice to induce ready adoption and widespread adherence to such laws. Third, in an unwitt ing reprise of the early twentieth century, current attempts to establish intellectual property law, particularly on the Chinese mainland, have been deeply flawed in their failure to address the difficulties of reconciling legal values, institutions, and forms generated in the West wi th the legacy of China 's past and the constraints imposed by its present circumstances. The book ' s final proposition is that although the United States has used what diplomatic leverage it has with the P R C and the R O C as liber­ally wi th regard to intellectual property concerns as to virtually

Introduction / 3

any other issue, the effort has been problematic, notwithstanding the conclusion of much-trumpeted bilateral agreements. 8 American policy regarding intellectual property law has been based on funda­mental misconceptions about the nature of legal development and is therefore in need of major reformulation.

This study is divided into five parts, fol lowing the introductory comments in this chapter. Chapter 2 examines whether there was in China any indigenous protection for intellectual property before the introduction of Western notions of such law in the late nineteenth and early twentieth centuries. There is evidence of restrictions on the unauthorized reproduction of certain books, symbols, and prod­ucts, but this should not be seen as constituting what we in the United States now typically understand intellectual property law to be, for their goal was not the protection of property or other pri­vate interests. 9 After a brief review of the received wi sdom on the g r o w t h of such law, chapter 2 then considers w h y Chinese civil iza­tion, wh ich was for centuries the world 's most advanced scientifi­cally and technologically, and which by any standard has long been one of the most sophisticated culturally, did not generate more c o m ­prehensive protection for its rich bounty of scientific, technological, and artistic creation. In doing so, it suggests a need for recasting the terms in which the imperial Chinese legal tradition has convention­ally been characterized.

Chapter 3 delves into early efforts to introduce foreign notions of intellectual property law in China. Its first section takes the negotia­tion and attempted implementation of commercial treaties between China and the United K i n g d o m and the United States at the turn of this century as a focal point for exploring ill-fated foreign efforts to impose intellectual property law on the Chinese. The second section assesses similarly unsuccessful efforts undertaken a genera­tion later, by the Nationalist Chinese government, to transplant to China intellectual property law from abroad with scant alteration. Throughout , the chapter emphasizes the problems inherent in uti­lizing bodies of law and legal institutions generated in one society as a model for legal development in a second and seemingly quite different setting.

Chapter 4 examines the varied experience of the P R C wi th re­gard to intellectual property law. Dur ing the early years pf the P R C , China 's new leaders instituted measures for the regulation of

I

4 / Introduction

intellectual property that, although inspired by Marxism, resonated

wi th elements of the Chinese past that they were attempting to re­

pudiate. By the 1980's, however, this approach was discredited and

the P R C instead made unprecedented efforts to develop "socialist"

trademark, patent, and copyright laws with "Chinese characteris­

tics." The chapter explores the rationale for this endeavor, the nature

of the laws generated, and the manner of their implementation,

whi le arguing that this example provides broader insight into the

character of the wider law reform launched soon after the end of the

Cul tural Revolut ion in 1976.

Chapter 5 addresses the situation of the R O C during its tenure

on Taiwan. It begins by examining the disparity throughout much

of this period between the formal law and Taiwan's reputation as

the most celebrated center internationally for the piracy of intel­

lectual property. The chapter then considers recent efforts to revise

the R O C ' s intellectual property laws in v iew of both the pressure

brought to bear on its government by the United States and the e x ­

traordinary political, economic, social, and technological changes

under w a y in the island republic.

T h e book ' s sixth and final chapter critically examines American

policy designed to spur the growth of intellectual property law in

China , concluding wi th a discussion of ways in which the effort to

foster respect for such property rights depends on the expansion of

broader political and economic rights in China.

Such a study is not wi thout substantial difficulty on many levels—

beginning wi th the inquiry that lies at its heart. The very act of

examining intellectual property law wi th reference to China en­

tails a reliance—explicit or otherwise—on definitions of intellec­

tual property derived from Western settings. In this reliance, one

must avoid construing the path that intellectual property law in

the United States or other jurisdictions has followed as providing a

"normal" or inevitable course against which Chinese developments

are to be evaluated. 1 0 Indeed, even on the two sides of the English

Channel , intellectual property law developed in markedly different

ways , just as there remain divergent opinions within and among

the major industrialized democracies on a number of important di­

mensions of this area of the law 1 1 —including the central question

of whether intellectual property law is effective in its stated goal of

Introduction / 5

spurring inventiveness and creativity. 1 2 In considering the unautho­

rized use abroad of American intellectual property, 1 3 it is also i m ­

portant to guard against overstating either the extent of protection

that the relevant U . S . laws are intended to provide even within our

o w n borders 1 4 or the degree to which we actually have adhered

to such laws here. Neither copyright, patent, trademark, nor any

other intellectual property laws create absolute rights in this coun­

try. T h e control that each is intended to provide is qualified, in terms

of public use (as in the fair use of copyrighted materials) and of

duration (as in the seventeen-year non-renewable term of a patent),

among other reasons. And as Charles Dickens, Anthony Trollope,

and many others learned the hard way, the United States did not

grant even formal protection for foreign copyrighted materials until

1891—by which time we had passed through what arguably might

be termed our period as a developing country. 1 5 N o r has the United

States ceased to be both a producer of and market for a myriad of

infringing i tems. 1 6 H o w many among us can honestly claim never

to have employed photocopying, videotaping, or audio recording

equipment in an unlawful fashion—if, indeed, we even k n o w what

the law currently provides in such areas? 1 7

The need to guard against extrapolating normality from the West

dictates further precautions. First, such seemingly neutral modes

of inquiry as economic analysis, wherever they come from on the

political spectrum, may be more particularistic historically and cul­

turally than is generally imagined. Thus , for example, the early

Marxis t belief that capitalism must precede socialism assumed that

"Oriental despotism" precluded the "l iving fossil" (Marx's affec­

tionate name for China) from being in the vanguard of nations on

the path to communism. 1 8 N o r is such ethnocentricity limited to the

left, as evidenced by the fact that much of mainstream economic

theory in this country for long essentially presumed that the mea­

sure of state intervention evident in the economies of Japan and the

so-called Little Dragons (Hong Kong , Singapore, South Korea, and

Taiwan) constituted a virtually insurmountable impediment to the

very prosperity that these jurisdictions now enjoy. 1 9

Seeming neutrality must also be questioned with respect to the

use of language. The use by different societies of common termi­

no logy does not necessarily ensure that such terms wi l l carry the

same meaning in each setting. 2 0 Indeed, meaning may vary for differ-

6 / Introduction

ent reasons, ranging from the process of absorption of one society's vocabulary and concepts into another to a conscious effort to sug­gest a higher measure of adherence to international norms than may be warranted.

Similar caution is called for with respect to more avowedly cul­tural explanations. The recognition that cultural factors, however broadly defined, are by their very nature less conducive to "hard" p roof than their economic counterparts is no excuse for being con-clusory. Just as economically deterministic analyses run the risk of being unidimensional, so do approaches rooted in portrayals of cul ­ture as essentially impervious to change, whether from within or beyond the society being examined. Moreover, we must remain mindful that at no time is any society's culture monolithic, given class, gender, ethnic, regional, and other differences.

A second major difficulty lies in the fact that al though there is a great deal of wri t ing about intellectual property law and related issues in the United States, much of it aspires to do little more than describe doctrine. As a result, it generally fails to provide a strong historical or conceptual home base from which one can compare issues of intellectual property protection in different societies. Even the most ambitious articles often fall short—typically by premising discussion on unstated (and, one fears, unwarranted) assumptions about the genesis or impact of such law, 2 1 or by failing to adequately address the question of w h y this particular form of property war ­rants treatment different from its tangible counterparts. 2 2

T h e difficulties of researching intellectual property law are hardly confined to the relative sparsity of wri t ing contemplating its under­ly ing rationale and broader implications, for at the opposite end of the spectrum, there are all too few attempts to portray its operation in any systematic fashion. Most such efforts are either anecdotal or uncritically dependent on data provided by trade associations and other interested parties, since those engaged in pirating intellectual property have not been considerate enough to compile statistics for academic researchers. Moreover, the intangible nature of intellec­tual property complicates detection of its unlawful appropriation, particularly given modern technology, and the public, even in coun­tries considered vigilant about protecting rights in such property, remains more tolerant of its infringement than of virtually any other form of illegal activity. 2 3 Indeed, victims are frequently hesitant to

Introduction /7

acknowledge infringement, fearing that the value of their intellec­tual property may be diminished and the receptivity of certain host governments to their operations may be impaired.

Further impediments exist to exploring the area of intellec­tual property law on either side of the Taiwan Straits. Ironically, al though the P R C is engaged in a historically unprecedented effort to develop a legal system suitable for a society encompassing ele­ments of Confucianism, communism, and capitalism, scholarship on contemporary Chinese law places too much emphasis on the exe­gesis of code provisions. Chinese and foreign scholars alike generally slight both the processes through which such rules are formed and the ways in which these rules operate in society. And if misdirected attention characterizes a goodly portion of the scholarly wri t ing on the P R C , academic inattention has been the problem besetting the R O C , for that jurisdiction's remarkable efforts at transforming its political and legal life in recent years remain far too modestly chronicled beyond the Chinese world.

Finally, there are difficulties generated by the reluctance of in­formants to provide evidence of behavior that might be construed abroad as illicit, immoral, or improper and that might affect bilateral relations wi th the United States and other technology-export ing nations or complicate efforts to accede to the General Agreement on Tariffs and Trade ( G A T T ) . 2 4 In the P R C , these concerns are inten­sified by the government 's faith that a significant influx of foreign technology wi l l enable China to compensate rapidly for time lost to the chaos of the Cultural Revolution years 2 5 and its concomi­tant determination to portray the climate for technology transfer and foreign investment as favorably as possible. Accentuating the complexi ty of the task confronting foreign sinologists are the highly sensitive involvement of the government of the P R C in the media, both as infringer and as censor, 2 6 and the existence of a multitiered body of law, important elements of which have not routinely been disclosed to foreigners (or most Chinese, for that matter), even if their interests are involved. 2 7

Given these conceptual and practical difficulties, one might we l l question the soundness of inquiring about a "Western" subject in an "Eastern" context. For those skeptical about undertaking such an inquiry for its o w n sake, an additional answer is provided by the fact that both the P R C and the R O C are using Western models of

8 / Introduction

intellectual property law and claiming benefits that normally accrue to jurisdictions that comply with the major international intellec­tual property conventions, all of which are basically derived from the experience of Western nations. 2 8 And , if further justification is desired, perhaps it may be found in the experience of the purveyors and purchasers of infringing items, whose daily activities remind us that East and West are inextricably linked in matters of intellectual property. 2 9

Two

Don't Stop Thinking About . . . Yesterday:

Why There Was No Indigenous Counterpart to

Intellectual Property Law in Imperial China

The Master [Confucius] said: I transmit rather than create; I believe in and love the Ancients.

The Analects of Confucius, bk. 7, ch. 1

T h e not ion that copyright arose soon after the advent of printing enjoys wide currency in the scholarly world . Chinese historians date copyright from the rise of printing during the Tang Dynas ty ( A . D . 618-906), 1 whi le Western theorists o f economic development contend that the inexpensive dissemination of texts necessitated the formal legal protection that copyright is intended to provide. 2 In short, the conventional w i sdom among "intellectual property schol­ars .. . [is] that copyright emerged with the invention of printing," as Z h e n g Chengs i and Michael Pendleton declare in their recent monograph on copyright in the P R C . 3

This chapter takes issue wi th the received wisdom, at least as con­cerns imperial China (221 B . C . - A . D . 1911). After first endeavoring to delineate an appropriate scope for inquiring into imperial Chinese legal history, it explores Chinese efforts to regulate the reproduction of literary and other creation and innovation prior to the twent i ­eth century. Finding neither a formal nor an informal counterpart to copyright or other major forms of intellectual property law, this chapter then considers w h y imperial China did not respond to the introduction of printing and other major technological advances in

10 / D o n ' t Stop Thinking Abou t Yesterday

the manner that both Chinese and Western scholars would have us believe.

Sinologists have long characterized Chinese law from the first i m ­perial dynasty, the Q i n (221-206 B . C . ) , through the last dynasty, the Q i n g ( A . D . 1644-1911), as "overwhelmingly penal in emphasis," in the words of Derk Bodde and Clarence Morris, authors of the best-k n o w n Western work on Chinese legal history. 4 Focusing on the imperial codes that were promulgated during each dynasty, such as the Da Qing lu li (Laws of the Great Q i n g Dynas ty) , 5 the conven­tional w i s d o m holds that the "positive law," in Joseph Needham's words , was confined to "purely penal (criminal) purposes." 6 As a consequence, the "civil law remained extremely underdeveloped," and the concerns typically addressed through it in the modern West were instead the domain of village and clan elders acting pursuant to cus tom. 7

T h e foregoing image requires serious reconsideration. The e m ­phasis on public, positive law and the dichotomy between civil and criminal law so deeply ingrained in contemporary Western society have led to a mischaracterization of the role and nature of imperial Chinese law. The Chinese neither saw public, positive law as the de­fining focus of social order nor divided it into distinct categories of civi l and criminal. Rather, traditional Chinese thought arrayed the various instruments through which the state might be administered and social harmony maintained into a hierarchy ranging downward in desirability from heavenly reason (tianli), the way (too), morality (de), ritual propriety (li), custom (xixu), community compacts (xiang yue), and family rules (jia cheng) to the formal written law of the state. 8 Public, positive law was meant to buttress, rather than super­sede, the more desirable means of guiding society and was to be resorted to only when these other means failed to elicit appropriate behavior.

Far from being indifferent to the concerns we now address through civil law, the imperial Chinese state accorded them great prominence, paying particular attention to the family, which was both a social and economic unit. As befits an agrarian state self­consciously organized along the model of an extended family, the standards embodied in its various norms from heavenly reason d o w n to public, positive law focused to a very substantial degree

Don ' t Stop Thinking Abou t . . . Yesterday / 11

on matters encompassed in the "modern West" under the rubric of civil law. T h e inattention of both Chinese and foreign legal histo­rians to the more ethereal of these precepts and the veritable fixa­tion of such scholars on the written law's penalties has obscured the very concerns those penalties were designed to promote and, in so doing, prevented us from fully appreciating their true significance. 9

We must not lose sight of the fact that more than half of the ten most serious offenses (the Ten Abominations, or shi e)10 under imperial Chinese law consisted of misdeeds involving the family. Impiety toward one's senior relatives, for example, carried far greater reper­cussions than the murder of a stranger. Indeed, in v iew of the weight imperial codes gave such matters, one might wel l argue that the Chinese state had a singular concern with one of the core foci of our civil law.

T h e idea that the state's reliance on family heads and village elders to enforce local customs expressed an imperial Chinese indifference to what we call civil law also needs revision. The state's reliance on family heads, village elders, and guild leaders to apply local cus­tom—as embodied in family rules [jia cheng],11 guild charters (hang zhang),n and other less formal expressions of such practices—should instead be seen as akin to a controlled delegation of authority. It was reminiscent of, if far less formal than, tax farming, pursuant to which local private merchants were crucial to the collection of state revenues. 1 3 As such, it ingeniously allowed the state's influence to reach far further than wou ld otherwise have been the case, given the range of dialects and customs, poor communications infrastructure, and persistent budgetary problems that by the late Q i n g provided no more than a single local representative of the emperor (known as the district magistfate) for every 200,000 subjects. 1 4

The suggestion that the imperial state's reliance on family, v i l ­lage, and guild leaders to administer local custom was a sign of state concern for, rather than indifference to, family and economic matters seems less radical if one appreciates that in making their de­cisions, such leaders were likely to have been applying basic values consistent with those that the state's official representatives w o u l d have employed had they been more directly involved. 1 5 The dele­gation of authority "required continuing adherence to the social guidelines set d o w n in the Four Books [which were among the great Chinese Class ics ] , " 1 6 in the words of the historian Ray Huang . 1 7 T h e

12 / Don ' t Stop Thinking About . . . Yesterday

emphasis in the family or guild on the acceptance of one's position in the hierarchy (be it as a child or as an apprentice), 1 8 and on the performance of those obligations that went wi th each position, had clear parallels vis-a-vis the state. So it was, for example, that local magistrates were k n o w n as the fumu guan—or "father/mother offi­c i a l " — o f the populace. 1 9 As Confucius observed in the Analects when questioned about the fact that he was not then in public service, "be filial, only be filial [towards your parents] and friendly towards your brothers, and y o u wi l l be contributing to government . " 2 0

Further evidence that family, village, and guild leaders were act­ing as responsible, albeit informal, delegates of the state emerges from the consistent patterns of interaction between them and their local magistrates throughout the imperial era. The state charged clan and guild leaders wi th a range of tax collection and related obligations and also held them responsible for the conduct of their members . 2 1 Indeed, in some instances, magistrates went so far as to require the certification of guild chiefs and to review the rules that such leaders drafted. 2 2 The heads of these family and economic units were also able to refer difficult cases to their local magistrates— particularly if they involved challenges to clan or guild rules, or to the authority of their senior members . 2 3 Conversely, magistrates, w h o appear to have been confronted with many more legal matters than the conventional wisdom would have us believe, were quick to dispatch appropriate cases back to the leaders of such units—espe­cially as administrative regulations penalized these officials if they had formally to resolve more than a modest number of cases. 2 4

In v iew of the foregoing, study of legal regulation in imperial China should thus not be limited to the penal sanctions in dynas­tic codes. It must, at a minimum, also address the remainder of imperial China 's public, positive law; means other than public, posi­tive law through which the state directly endeavored to maintain social order; the ways in which the populace sought to invoke the state's authority; and the elaborate and varied fabric of indirect ordering through family, village, and guild.

Consider ing the full scope of their legal history, the Chinese were not indifferent to the unauthorized reproduction of texts and other items. There is evidence from before the establishment of the Z h o u dynasty in 1122 B . C . of interest in the ways in which commodities were identified, 2 5 concern from the Q i n era wi th the distribution of

Don ' t Stop Thinking A b o u t . . . Yesterday / 13

writ ten materials, 2 6 and attention from the Han dynasty (206 B . C . — A . D . 220) to barring the unauthorized reproduction of the Class ics . 2 7

Nonetheless, it is wi th the advent of printing during the Tang period that one first finds substantial, sustained efforts to regulate publi­cation and republication. 2 8 What appears to have been one of the earliest such measures was issued in A . D . 835 by the Wenzong E m ­peror in the form of an edict, which, as was routine, became a part of the Tang code . 2 9 The decree prohibited the unauthorized repro­duction by persons of calendars, almanacs, and related items that might be used for prognostication, which, it observed, were being copied in great quantity in the Southwest and distributed through­out China . Far from being arcane, questions of time and astronomy were central to the emperor's assertion that he was the link between human and natural events—and so were to be tightly controlled by court astronomers, while works regarding prognostication were of concern because they might be used to predict the dynasty's d o w n ­fall. This initial ban on the pirating of officially promulgated works soon expanded. Before its collapse, the Tang dynasty also prohibited the unauthorized copying and distribution of state legal pronounce­m e n t s 3 0 and official histories, and the reproduction, distribution, or possession of "devilish books and talks" (yaoshu yaoyari) and most works on Buddhism and Daoism. 3 1 Unfortunately, evidence as to the effectiveness of these various provisions is scant.

Spurred by advances in printing technology and a relative rise in literacy, the early years of the Song dynasty ( A . D . 960—1279) saw a marked increase in the production of printed materials by both the Imperial Co l lege (or Directorate of Education, as guozijian has variously been translated) and "private" persons, many of w h o m , in fact, were government officers carrying on sideline activities. 3 2

Concerned about the proliferation of undesirable printed materials, in 1009, the Zhenzong Emperor ordered private printers to submit works they wou ld publish to local officials for prepublication review and registration. 3 3

T h e principal goal of prepublication review was to halt the pri­vate reproduction of materials that were either subject to exclusive state control or heterodox. By the Song, the former category in­cluded both those items covered in Tang Wenzong's edict of 835 and authorized versions of the Classics (which were only to be repro­duced under the auspices of the Imperial Col lege) , model answers to

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imperial civil service examinations, maps, and materials concerning

the inner work ings of government, politics, and military affairs. 3 4

Pornography, broadly defined, and writings using the names of

members or ancestors of the imperial family in "inappropriate" liter­

ary styles or that were "not beneficial to scholars" were also deemed

he terodox. 3 5

T h e penalties crafted by the state to enforce the prepublication

review system underscored its objectives. Persons failing to obtain

official approval prior to printing works that were neither subject to

exclusive state control nor banned altogether might suffer one hun­

dred b lows wi th a heavy bamboo cane and the destruction of their

printing blocks. Those w h o reproduced controlled or prohibited

items risked far greater punishment. 3 6 The unauthorized reproduc­

tion of astronomical charts, for example, called for a 3,000-li (i.e.,

approximately 500-mile) exile. This was a severe penalty, indeed,

given that one wou ld not only be sent off to a desolate border region

but largely be cut off from one's family, ancestral burial grounds,

and linguistic and cultural home base.

O n e interesting by-product of the Song's prepublication review

system was that persons w h o obtained its approval appear at times

to have included in works they printed notices of such state action

in an effort to combat unauthorized reproduction. Typical of these

was a notice contained in a twelfth-century Sichuan w o r k of his­

tory stating, "This book has been printed by the family of Secretary

C h e n g of Meishan[,] w h o have registered i t wi th the government.

No one is permitted to reprint i t . " 3 7 Unfortunately for the C h e n g

family and others similarly situated, the same laws that so carefully

and stringently penalized unauthorized reproduction of the Classics

and banned the heterodox neither explicitly forbade the pirating of

more mundane works nor set forth sanctions for so doing. There is

some evidence of printers of the innocuous seeking the assistance of

local officials to combat unauthorized use of their works and even

of signs being posted to that effect—but these efforts appear scat­

tered, 3 8 ad hoc, and may wel l have been attributable to the fact that,

as wi th Secretary Cheng , private printers and local officials were

often one and the same. Indeed, by the late Song era, the dynasty

appears to have had difficulty in securing enforcement of the ban

on unauthorized reprinting of works intended to be under exclusive

state control . 3 9

T h e Song's imperial successors, and especially the M i n g

Don ' t Stop Thinking Abou t Yesterday / 15

( A . D . 1368-1644), endeavored to strengthen state control of publi­cation, al though relatively few changes were made to the formal structure of regulation until the Q i n g . 4 0 Each post-Song dynastic code specifically forbade the unauthorized republication of g o v ­ernmental works on astronomy, the civil service examinations, and other materials long considered sensitive. Additionally, each contained provisions banning "devilish books ." These provisions were supplemented periodically by special decrees—as may be seen, for example, in the H o n g w u Emperor 's (1368-92) orders that all works disparaging the newly founded Ming dynasty even indirectly through the use of homophonic puns be eliminated, 4 1 and in the Qian long Emperor 's (1736-96) famous decree of 1774 requiring that all literature be reviewed so that any books containing heterodox ideas could be destroyed. 4 2

Notwithstanding the Ming dynasty's goal of exercising more control over publication, the formal prepublication review system developed by the Song appears to have lost much of its vitality. Efforts were made during the mid and late Ming to revitalize offi­cial control, principally at the local level, but seem not to have been particularly successful, judging from extensive accounts of the unauthorized reproduction and alteration of texts for commercial reasons. 4 3 As a consequence, Q i n g rulers moved to strengthen this function of local officials, going so far in 1778 as to direct the re-institution of a strict system of local prepublication review. 4 4

This high degree of state interest in the control of publication was not mirrored wi th respect to the unauthorized reproduction of that wh ich we n o w protect through trademark or patent. A l though prior to the twentieth century, the Chinese state oversaw matters of commerce and industry more closely than has typically been recog­nized, 4 5 it did not develop comprehensive, centrally promulgated, formal legal protection for either proprietary symbols or inventions.

T h e dynastic codes did, through elaborate sumptuary laws, re­strict the use of certain symbols associated with either the imperial family (such as the five-clawed dragon) or officialdom. 4 6 T h e y also barred the imitation of marks used by the ceramists of Jingdezhen and others making goods for exclusive imperial use, 4 7 and made it illegal for certain craftspersons to send information about their w o r k out of Ch ina . 4 8 These prohibitions did not, however, presage a broader pattern of centralized legal regulation.

T h e absence of direct imperial legal regulation of trademarks

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and inventions did not who l ly bar the development of concern for its protection against unauthorized use. Northern Song (960—1127) records reveal that a family named Liu of Jinan, Shandong, used a mark containing both a drawing of a white rabbit and an accom­panying legend to extol the virtues of its sewing needles. 4 9 N o r were the Lius and their white rabbit alone. Guild regulations, clan rules, and other sources indicate that producers of tea, silk, cloth, paper, and medicines, among other products, from at least the Song period onward, sought to maintain the brand names and symbols they had developed by marking their goods, by declaring that others could not use the marks involved, and by registering them wi th guilds and at times, local officials. 5 0 Additionally, some—such as the pro­ducers of the celebrated Tongren Temple line of medicines—sought to maintain the confidentiality of their manufacturing process by employing only family members or eunuchs, or by keeping vital parts of the process secret from nonfamily employees. 5 1

The same documents that yield data regarding efforts to protect proprietary marks and processes also, however, indicate the great difficulty of doing so . 5 2 There appears to have been massive counter­feiting of we l l -known brand names and marks, as wel l as exten­sive attempts to imitate secret manufacturing processes—often wi th questionable results. Merchants and producers endeavored to deal w i th these problems both directly and through guild and compa­rable organizations, but when all else failed—as appears often to have been the case—they turned to local officialdom. Help was sought from local officials, not on the basis of any code provi ­sion specifically outlawing such imitating, but instead by imploring these "father-mother" figures to prevent unfairness and deception. 5 3

Thus , for example, sericulturists whose "trade-marked" silk in the Shanghai area had been improperly copied were able in 1856 to seek the assistance of their district magistrates, w h o ordered the infring­ers to s top . 5 4 Such appeals, however, do not appear to have been large in number, even taking account of the anecdotal nature of the evidence available. N o r do they appear often to have been successful in bringing the objectionable activity to an end.

A l t h o u g h the characterization of imperial Chinese law as w h o l l y penal obscures the degree to which such law addressed civil matters, it does not fo l low that intellectual property law existed in China centuries before it arose in the West. Virtually all k n o w n examples

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of efforts by the state to provide protection for what we n o w term intellectual property in China prior to the twentieth century seem to have been directed overwhelmingly toward sustaining imperial power. These official efforts were only tangentially, if at all, con­cerned either wi th the creation or maintenance of property interests of persons or entities other than the state or wi th the promotion of authorship or inventiveness. This is perhaps most obvious wi th respect to provisions of the dynastic codes barring ordinary people from reproducing symbols, such as the five-clawed dragon, asso­ciated wi th the throne or officialdom. It is also evident in the fact that al though the Tang and later dynasties went to considerable lengths to restrict the unauthorized reproduction of government materials and to ensure the accuracy of those it licensed, they seem to have been unconcerned about the pirating or improper editing of other works . Indeed, it is more accurate to think of prepublication review and the other restrictions on reprinting described above, together w i th the absolute ban on heterodox materials, as part of a larger framework for controlling the dissemination of ideas, rather than as the building blocks of a system of intellectual property rights, whether for printers, booksellers, authors, or anyone else.

O n l y the efforts of printers, booksellers, and other guilds or mer­chants to establish their particular monopolies seem to presage the notion that persons or entities other than the state might enjoy an interest in intangible property akin to the protection provided for tangible personal property or real property throughout much of i m ­perial Chinese history. 5 5 Even this limited interest appears to have been tolerated by the state and its local representatives chiefly be­cause it advanced other objectives. It is no coincidence that official expressions of concern about unauthorized copying often focused either on the textual distortions and errors contained in pirated edi­tions of the classics, dynastic histories, and other or thodox works or on the fact that persons responsible for such editions were disrupt­ing local peace by violating monopolies granted to local officials or influential gentry in their districts. Similarly, it is not unduly cyni ­cal to v i e w the state's implicit and occasionally explicit support for gui ld efforts to protect trade names and marks as aimed at the pres­ervation of social harmony by maintaining commercial order and reducing instances of deception of the populace.

T h e Chinese were obviously not alone in linking state interest

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wi th the protection of what we term intellectual property. In both the c o m m o n and civil law worlds, the idea of limiting the unautho­rized copying of books was originally prompted not by a belief that wri t ings were the property of their authors, but by a desire to give printers an incentive not to publish heterodox materials. 5 6 Similarly, the early history of patent law in the West owes far more to the state's desire to strengthen itself than to an acknowledgment of any inherent property interest of the inventor. 5 7 Thus, for example, the English throne awarded patents to foreigners w h o introduced new products or processes to the British isles, even if those persons were not themselves responsible for the innovation in question. 5 8

But the seventeenth and eighteenth centuries witnessed the de­velopment of an approach toward intellectual property in Europe that had no counterpart in imperial Chinese history. Simply stated, there developed in England and on the Continent the notion that authors and inventors had a property interest in their creations that could be defended against the state. 5 9 Society, g rowing numbers of Europeans came to believe, wou ld benefit by providing incentives to engage in such w o r k and disseminate the results. China, by con­trast, continued to regulate this area predominantly in terms of h o w best to maintain the state's authority.

To take heed of this distinction is not to suggest that the Chinese ought to have fol lowed the same course as the West . 6 0 Rather, it is to ponder w h y a civilization that for centuries paid particular attention to the regulation of publication, that for long was a world leader in science and technology, and that celebrated at least certain types of innovat ion, 6 1 did not provide more comprehensive protection for its rich bounty of creation.

Neither Chinese nor foreign scholars of intellectual property law contribute much to such an inquiry. The former, for example, typ i ­cally treat imperial efforts to control the dissemination of ideas as constituting copyright, and so end the inquiry there. 6 2 T h e y see little need to consider w h y — i f China had copyright from the Tang dynasty—enforcement appears to have been negligible, subsequent foreign efforts to foster such laws were unavailing, and other forms of intellectual property law were not forthcoming in a sustained fashion. Foreign scholars also provide scant assistance. Surprisingly few of the Western scholars w h o write about intellectual property have endeavored to analyze the development of such law in the West,

Don ' t Stop Thinking A b o u t . . . Yesterday / lg

let alone elsewhere. Instead, most recent scholarly wri t ing touching on such development either consists chiefly of historical narrat ive 6 3

or portrays intellectual property law solely in terms of economic development—as a concomitant of industrialization in general or as a response to particular technological breakthroughs. 6 4

Clearly, economic and technological factors should not be i g ­nored in the effort to understand w h y the imperial Chinese state did not provide systematic protection for the fruits of innovation and creation. China may wel l have been as generally prosperous and as technologically advanced as any area in the wor ld from the seventh through the twelfth centuries. 6 5 Nonetheless, being preindustrial, China had little in the way of the inexpensive mass production that some scholars see as an impetus to establish intellectual property l aw. 6 6 So it was, for example, that although in China printing had been invented by the Tang and movable type by the Song , 6 7 "meth­ods suitable for the mass printing of [materials such as] newspapers" were to originate in the West, and then centuries later. 6 8 Moreover , the fact that no more than 20 percent of Chinese were literate even by the early twentieth cen tury 6 9 and the possibility that the absence of the corporate form may have impeded the type of capital forma­tion needed for large-scale commercial innovat ion 7 0 may also help us understand w h y few actors, other than persons such as the Chengs and Lius, seem to have been concerned wi th protecting intellectual property.

These economic and technological considerations notwithstanding, it is to political culture that we must turn for the principal explana­tion as to w h y there were no indigenous counterparts to contempo­rary ideas of intellectual property law throughout imperial Chinese history. 7 1 Lying at the core of traditional Chinese society's treat­ment of intellectual property was the dominant Confucian vision of the nature of civilization and of the constitutive role played therein by a shared and still vital past. 7 2 That vision saw civilization as de­fined by a paradigmatic set of relationships, each bearing reciprocal, al though not necessarily equal, responsibilities and expectations, which the parties were morally bound to fulfill. Typically, individu­als found themselves in a number of such relationships—the most important of which were those between ruler and subject, father and son, and husband and wi fe . 7 3 O n l y through encountering the past—

20 / D o n ' t Stop Thinking Abou t . . . Yesterday

which provided unique insight into the essence of one's o w n char­acter, relationships with other human beings, and interaction wi th nature—could individuals, guided by nurturing leaders, understand h o w properly to adhere to those relationships of which they were a part. 7 4

The dual functions of the past—as the instrument through which individual moral development was to be attained and the yardstick against which the content of the relationships constituting society was to be measured—posed a dilemma. The indispensability of the past for personal moral growth dictated that there be broad access to the common heritage of all Chinese. Nonetheless, the responsi­bility of senior members of relationships for the nurturing of their jun iors 7 5 —together wi th the fact that reference to the past, far more than public, positive law or religion, defined the limits of proper behavior in what were, after all, unequal relationships—demanded more controlled access. Both functions, however, militated against thinking of the fruits of intellectual endeavor as private property.

T h e relationship of ruler and ruled exemplified the power of the past, whi le also illustrating the rationale for providing measured ac­cess to it. The notion of the Chinese people as a family, wi th the ruler as parent, is one that has had great and enduring currency since preimperial t imes. 7 6 In that capacity, the ruler had a fiducial obl iga­tion to provide for both the spiritual and physical wel l -being of the populace, w h o , in turn, were expected to be loyal and productive. A l though the Chinese early on had a far more sophisticated formal legal system than has typically been recognized at home or abroad, the very nature of this relationship was such that public, positive law could serve neither as the primary instrument for ensuring that the people genuinely understood what was expected of them nor as a means for encouraging rulers to discharge their responsibilities in a suitable fashion. As Confucius indicated in the Analects, "Lead the people wi th governmental measures and regulate them by law and punishments, and they wi l l avoid wrong-doing , but wi l l have no sense of honor and shame. Lead them by virtue and regulate them by the rules of propriety [li] and they wi l l have a sense of shame and, moreover, set themselves r ight ." 7 7

T h e standards meant to govern the ruler-subject relationship— virtue and the rules of propriety—derived their content and legiti­macy chiefly from the common heritage of the Chinese people,

Don ' t Stop Thinking Abou t . . . Yesterday / 21

rather than from any action, whether political, legal, or otherwise, of contemporaneous figures, including the ruler himself. Indeed, much the same point might be made with respect to the entire moral ethos that underlay Chinese civil ization. 7 8 Nowhere is this more ap­parent than wi th the li—the "rites" that defined morality and propri­ety. Having evolved from a set of rituals into a code of conduct wel l before the time of Confucius, the li at once embodied and expressed the most profound insights and experience of the so-called Ancients w h o had established society and compiled the Class ics . 7 9 As such, the li fostered a mutually reinforcing personal and social ordering that linked the present simultaneously wi th that which came before and that which was to follow.

This sense of the power of the past was also manifested in the concept of the rectification of names (zhengming), which Confucius indicated would be the "first measure" he would advise a ruler to institute on assuming power . 8 0 In essence, it involved the expectation that current rulers wou ld carry out their responsibilities in a manner consistent wi th the moral standards set by their most wor thy prede­cessors. The idea of the Mandate of Heaven (tianming) embodied a similar expectation. It, in effect, provided that rulers failing to dis­charge their responsibilities in keeping with such standards—which had their genesis in preimperial days 8 1 and, presumably, were k n o w n in general form to a l l 8 2 —migh t lose the Mandate and, wi th it, their claim to rule . 8 3 In short, a shared past defined the limits of legitimate power in the present.

Given the potential validating—and inval idat ing 8 4 —force of the past, those wi th or aspiring to power sought to cloak themselves in the past whi le also tailoring it to suit their particular needs. T h e desire to draw on the legitimating capacity of the past is evident in the degree to which the basic structure, forms, and images of i m ­perial governance persisted, even as their content may have changed throughout t w o millennia of growth, upheaval, and violent tran­sitions of power . Indeed, even rebels seeking to dislodge those in power consistently structured the alternatives they proposed so as to gain legit imacy from the past. 8 5

T h e power of the past was also to be seen in the reliance of C h i ­nese rulers from the Sui ( A . D . 581-618) onward for thirteen centuries on the world 's first civil service. 8 6 At least in theory, from its earliest days, officials were to be identified through an examination system

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that v iewed knowledge of the past—both in terms of the ques­tions asked and the manner in which they were to be answered— as evidencing the attributes needed to resolve the problems of the present. 8 7 This , in turn, greatly influenced the character of educa­tion. After all, a thorough immersion in the Classics wou ld surely do more for the development of character, and, wi th it, the ability to serve in government effectively, than would more technical train­ing. T h e latter, by its very nature, had little to say about morality and therefore, could be left to those whose virtue had not devel­oped to the point at which they could benefit fully from a classical education. 8 8

T h e legal system displayed this same concern wi th deriving legiti­macy through association wi th the past. Thus , the basic conceptual and classificatory framework for the imperial code continued largely unchanged from its preimperial precursors through the Sui dynasty, during which it was modified only in part. 8 9 This revision, in turn, set the basic format for imperial codes through to the end of the imperial era, wi th the result that "30 to 40 percent of the statutes in the C h ' i n g C o d e [operative until the twentieth century] go back unchanged to the T ' ang C o d e of 653." 9 0 Once again, as was the case wi th the structure of government and, as we shall see, wi th litera­ture and the arts, this unswerving employment of the past ought not to mask the fact of enormous change, but should instead h igh­light the context within which that change occurred. After all, the remaining 60 to 70 percent of the statutes in the C h ' i n g (i.e., Q ing) C o d e did change, whi le even the 30 to 40 percent that remained unchanged on the face of it were in fact transformed through an e x ­tensive additional body of law, including an ever-evolving array of substatutes. 9 1

Contrary to what one might initially expect, the imperial Chinese legal system did not adhere to a formal system of binding prece­dent, although, in fact, magistrates and other officials involved wi th the law did draw on compilations of prior cases as they reached and sought to justify their decisions. 9 2 But on reflection, the absence of binding precedent may actually have connoted an even greater e m ­bracing of the past—as the Confucian morality and wi sdom of the ages that officials were assumed to have cultivated in preparing for and taking the imperial examinations were surely seen as a truer and more historically valid guide for making decisions than any set of rules formulated or cases resolved by one's predecessors in office. 9 3

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Use of the past to mold the present also took a darker form. Early on, the Chinese came to recognize that those w h o controlled the compilation of history, the interpretation of its lessons, and the characterization of the current dynasty for historical purposes wielded great influence. This led to the establishment by the Han and emulation by subsequent dynasties of elaborate state historio-graphic offices that engaged in the world 's most systematic continu­ous gathering of historical data prior to the twentieth century. 9 4 But , less positively, it also lay behind repeated attempts throughout i m ­perial history to shape the content of the historical record. Small wonder , then, that, in an ominous foreshadowing of future efforts at such control, the Han subjected the epochal historian Pan Gu ( A . D . 32—92) to an extended imprisonment for engaging in unsanctioned historical w o r k . 9 5 N o r ought it to be surprising that rulers from Q i n Shihuang in the earliest years of the first imperial dynas ty 9 6 to Q i a n -l o n g 9 7 in the ebbing years of the last should endeavor to eradicate all they deemed heterodox. As Li Si, China's first prime minister and advisor to Q i n Shihuang, is reported to have said, "Anyone re­ferring to the past to criticize the present should, together wi th all members of his family, be put to death." 9 8

As important as the acquisition and maintenance of imperial power may have been, there was more to efforts to regulate intellec­tual endeavors than the desire to buttress such claims. Coinc id ing wi th and obviously reinforcing these secular concerns was the idea of the ruler as fiduciary. In that capacity, the ruler had not only the authority but also a responsibility to ascertain h o w best to nurture the populace. Central to that responsibility was the need to deter­mine which knowledge warranted dissemination and which ought to be circumscribed in the best interests of the commonweal th . T h e ruler's parentlike position enhanced the legitimacy of imperial efforts to control the flow of ideas and suggests that there was a greater coherence to such regulation than scholars have typically assumed. 9 9

"Lacking," as Thomas Metzger has put it "John Stuart Mil l ' s optimistic v i e w that good doctrines would emerge victorious out of a free marketplace of ideas, Chinese political philosophers since Mencius and Xunz i have instead emphasized the human tendency to become deluded through the interplay of 'false' and 'correct' doc­trine." 1 0 0 In his role as fiduciary, the ruler had an affirmative obl i ­gation to filter out and destroy harmful knowledge—such as that

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found in "devilish books and talks," which might contain porno­graphic as wel l as politically and religiously suspect materials— rather than permit it to delude his charges. By the same token, there were certain types of information, such as that contained in maps, calendars, and astronomical texts, for which the emperor and his officials alone had legitimate use in their fiduciary capacity. C o n ­versely, the spread of other knowledge, such as that embodied in the Classics, might benefit society (and, not coincidentally, enhance the imperial position), justifying assistance to persons having the Imperial Col lege ' s permission to reprint approved versions of such works , especially in order to stem the production of "butchered summaries" and otherwise inaccurate copies. And , finally, there was further knowledge—neither orthodox, heterodox, nor official— that the imperial government did not endeavor directly to protect, bar, or otherwise regulate, wi th the result that its treatment varied wide ly according to local circumstance.

T h e throne's efforts to define and supervise the realm of accept­able ideas were not as avowedly totalitarian as they might initially seem, given that the shared past that placed a premium on such con­trol perforce harbored a collective memory of the outer limits of power . 1 0 1 Nonetheless, the state's emphasis clearly was focused far more on political order and stability than on issues of ownership and private interests. This did not preclude state support for per­sons seeking to prevent others from infringing on their monopoly over the reproduction of certain materials and symbols. T h r o u g h its prepublication review procedures, the state protected the m o ­nopoly of printers to w h o m it had entrusted reproduction of au­thorized versions of certain materials, such as the Classics. So, too, as has been discussed above, the state, both directly through local magistrates and indirectly through its tacit delegation to specified local groups of considerable responsibility in the commercial area, supported guilds, families, and others in their efforts to maintain the integrity of their trade names and marks. But in each instance, this protection emerged from, and was ultimately to be defined by, the state's interest in preserving imperial power and fostering social harmony.

The rationale for imperial Chinese protection of intellectual prop­erty dictated the character of that protection. Neither formal nor informal bodies of law vested guilds, families, and others seeking

Don ' t Stop Thinking Abou t . . . Yesterday / 25

to preserve their monopoly over particular items wi th "rights" that might be invoked to vindicate their claims against the state or against others throughout China. N o r was the provision of state assistance, whether direct or indirect, merely a matter of privilege. In keeping wi th the tenor of the fiducial bond underlying the relationship be­tween ruler and ruled, there existed among civilized persons expec­tations as to what was appropriate and fair, as wel l as a sense that an appeal to one's magistrate or other representatives of the state might be warranted in the event those expectations went unfulfilled. So it was that printers charged with responsibility for printing certain texts or guilds that had developed particular medicines might seek official assistance against persons appropriating what fairness and custom dictated was theirs, and that officials on occasion responded in the interests of fairness and the maintenance of harmony. 1 0 2

The content of expectations concerning the appropriateness of individuals and groups exercising control over the expression of par­ticular ideas derived, in turn, from the critical role that the shared past played in the Confucian understanding of both individual moral and collective social development. Simply stated, the need to inter­act w i th the past sharply curtailed the extent to which it was proper for anyone other than persons acting in a fiducial capacity to restrict access to its expressions.

T h e power of the past and its consequences for possession of the fruits of intellectual endeavor are well captured in the passage in the Analects in which Confucius indicates, "The Master [i.e., Confucius himself] said: 'I transmit rather than create; I believe in and love the A n c i e n t s . ' " 1 0 3 T h e essence of human understanding had long since been discerned by those w h o had gone before and, in particu­lar, by the sage rulers collectively referred to as the Ancients, w h o lived in a distant, idealized "golden a g e . " 1 0 4 To avail themselves of that understanding in order to guide their o w n behavior, subsequent generations had to interact wi th the past in a sufficiently thorough manner so as to be able to transmit i t . 1 0 5 Yet, as Confucius demon­strated in undertaking to edit the Classics and to comment on them in the Analects, transmission, far from being a passive endeavor, en­tailed selection and adaptation if it was to be meaningful to oneself, one's contemporaries, and one's successors. 1 0 6

This sense of the past's compelling pertinence, and of intellec­tual endeavor as the medium through which interaction wi th and

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transmission of i t was possible, permeated virtually all facets of C h i ­nese civilization. As the noted scholar of Chinese literature Stephen O w e n has observed, in the Chinese literary tradition "the experience of the past roughly corresponds to and carries the same force as the attention to meaning or truth in the Western tradit ion." 1 0 7 Thus , in classical Chinese literature, the past survives and warrants consider­ation, not merely as an obvious foil for contemporary act ivi ty , 1 0 8

but, more important, because "the Confucian imperative insists that in encountering the ancients, we ourselves must be changed [for] we discover in the ancients not mere means but the embodiment of va lue s . " 1 0 9

T h e process of transformative engagement wi th the past was, in turn, made possible through reliance in Chinese literature, and espe­cially classical Chinese poetry, on a common body of allusion and reference, commencing wi th the classics and built up over time. To be sure, as T. S. Eliot has observed, all poet ry 1 1 0 —and, one might add, all literature—draws on and therefore owes an obligation to the past. A n d yet this use of shared imagery in Chinese literature is distinguishable from its seeming counterparts elsewhere. In Joseph Levenson's words , "to cite the Classics was the very method of uni­versal speech," 1 1 1 to a further-reaching and more enduring degree than even the Bible in the Judeo-Christian world or the Koran in Islam. As the "very method of universal speech," such allusion and reference, in effect, constituted a sophisticated cultural shorthand that was potentially accessible, at least in theory, throughout the civilized (i.e., sinicized) world, facilitating access from the present to the past or, for that matter, the future.

To speak of the relative omnipresence of the past and the existence of a unique, shared intellectual vocabulary is not to suggest that clas­sical Chinese poetry was lacking in originality, any more than it is to dismiss transmission as only a mechanical process. Rather it is to underscore the context within which originality arose and was e x ­pressed and, in so doing, to heed what the fourteenth-century poet Gao B ing (1350-1423) termed "innovation within the bounds of o r thodoxy . " 1 1 2 Indeed, over time, Chinese poets and literary theo­rists have expressed a myriad of v iews as to the very question of what constituted appropriate interaction with the past. Some, such as the influential late M i n g advocate of a return to antiquity (fu gu) Li Mengyang (1472-1529), argued for a fairly literal fol lowing of the

Don ' t Stop Thinking Abou t . . . Yesterday / 27

past, saying that "prose (wen) must be like that of the Q i n or the Han, and poetry (shi) must be like that of the High T a n g . " 1 1 3 "This ," they contended, "was justified because the rules used by the ancients were not invented by them, but really created by Nature . . . [so that] when we imitate the ancients, we are not imitating them but really imitating the natural law of things ." 1 1 4 Others, such as Yuan Z h o n g d a o (1570-1624) of the gongan school, took a very different view, suggesting that in their desire to "imitate words and lines" of earlier literature, Li Mengyang and his colleagues missed the more essential "meaning and flavor" (yiwei) animating the great poetry of the Tang . 1 1 5 Bu t what united such disparate v iews—and indeed, clas­sical literature more broadly—was the need to address in so central a fashion the past and approaches to it.

Poetry, of course, was but one literary form in which this concern was evidenced. In the much-prized discipline of history, the model, not only for the standard dynastic histories (zheng shi), compiled for almost t w o millennia, but for "history wri t ing of all kinds," was , in the words of the historiographer Edward Pulleyblank, "a patch­w o r k of excerpts, often abridged but otherwise unaltered, from [the historian's] . . . sources, wi th any personal comment or judgement kept clearly separate." This structure, suggests Pulleyblank, g rew out of the belief that "the work of the historian was to compile a set of documents which wou ld speak for themselves rather than to make an imaginative reconstruction of past events." As was the case wi th the transmission of the Ancients by Confucius himself, or the heavy employment of allusion and references to the classics in poetry and other literary forms, this manner of historical inquiry should not be construed as connoting a lack of originality. As Pulleyblank observes, "the selection and arrangement of [the historian's]. . . ma­terial called for the exercise of critical judgement, and conclusions about the causes of events or the characters of historical persons could be expressed separately in the appropriate place ." 1 1 6

T h e concern wi th the past evidenced in classical poetry and lit­erature was mirrored in Chinese painting and calligraphy. As wi th poetry, "engagement with the past validated the present" 1 1 7 by posing "the resource of [the] past to renew . . . life repeatedly in the recurrent present." 1 1 8 For many, the artistic process itself, ac­cordingly, was understood as a type of spiritual exercise through which one's moral sense might be both expressed and enhanced. 1 1 9

28 / D o n ' t Stop Thinking Abou t . . . Yesterday

This was particularly true for the literati (wenren), w h o in theory, if not always in practice, subscribed to the famed Song artist Mi Fu's (1051—1107) belief that "in matters of calligraphy and painting, one is not to discuss price. The gentleman is hard to capture by m o n e y . " 1 2 0

A l t h o u g h later in its genesis and less catholic in its force, a c o m ­mon vocabulary emerged in painting and calligraphy that facilitated communicat ion across time and space. 1 2 1 As was the case wi th lit­erature, there was much debate among both artists and theoris ts 1 2 2

as to the most appropriate way in which to relate to the past. Some, such as the "or thodox school" of the early Q ing , saw a "lineage" in painting, parallel to "the succession of Confucian philosophers from Confucius himself d o w n to Wang Yang-ming in the M i n g dy ­nasty," to which they advocated fairly literal adherence, at least as a departure point . 1 2 3 As Wu Li (1632-1718) put it, "to paint wi thout taking the Sung and Yuan masters as one's basis is like playing chess on an empty chessboard, without p ieces ." 1 2 4 Others took a far more expansive view, contending that latter-day painting should be less literal and should, instead, strive to capture the ideas that animated earlier w o r k . 1 2 5 Still others felt a need to address the past as a precon­dition to expressing their o w n vision. As the Q i n g artist Dao-j i , or Shi-tao, (1642-1708) wrote:

Painters of recent times have all appropriated the styles of the old mas­

ters . . .

In the broadest sense, there is only a single method [of painting], and

w h e n one has attained that method, one no longer pursues false methods.

Seizing on it, one can call it one's o w n m e t h o d . 1 2 6

Aga in , as wi th poetry, however much artists and scholars may have been divided as to the best stance toward and use of the past, they were at one in their focus on it.

G iven the extent to which "interaction wi th the past is one of the distinctive modes of intellectual and imaginative endeavor in traditional Chinese cul ture ," 1 2 7 the replication of particular concrete manifestations of such an endeavor by persons other than those w h o first gave them form never carried, in the words of the distinguished art historian and curator Wen Fong, the "dark connotations . . . i t does in the Wes t . " 1 2 8 Nor , as was often the case in the West, was such use accepted grudgingly and then only because it served as a vehicle through which apprentices and students developed their

Don ' t Stop Thinking Abou t . . . Yesterday / 29

technical expertise, demonstrated erudition, or even endorsed par­ticular values, although each of these phenomena also existed in imperial Ch ina . 1 2 9 On the contrary, in the Chinese context, such use was at once both more affirmative and more essential. It evidenced the user's comprehension of and devotion to the core of civilization itself, whi le offering individuals the possibility of demonstrating originality within the context of those forms and so distinguishing their present from the past.

In v i e w of the foregoing, there was what Wen Fong has termed a "general attitude of tolerance, or indeed receptivity, shown on the part of the great Chinese painters towards the forging of their o w n w o r k s . " 1 3 0 Such copying, in effect, bore witness to the quality of the w o r k copied and to its creator's degree of understanding and civility. Thus , Shen Z h o u (1427-1509) is reported to have responded to the suggestions that he put a stop to the forging of his w o r k by remarking, in comments that were not considered exceptional, " i f my poems and paintings, which are only small efforts to me, should prove to be of some aid to the forgers, what is there for me to grudge about?" 1 3 1 M u c h the same might be said of literature, where the Confucian disdain for commerce fostered an ideal, even if not a lways realized in practice, that true scholars wrote for edification and moral renewal rather than profit. Or , as it was expressed so compactly in a famed Chinese aphorism, "Genuine scholars let the later wor ld discover their work [rather than promulgate and profit from it themselves]." If, after all, even the characters constituting the Chinese language itself, as the famed Song statesman Wang Anshi (1021-86) observed, "actually came from nature . . . and were not created by human beings, but merely imitated by them . . . from configurations of nature," 1 3 2 on what basis could anyone exclude others from the common heritage of all civilized persons?

Three

Learning the Law at Gunpoint: The Turn-of-

the-Century Introduction of Western Notions

of Intellectual Property

We possess all things. I set no value on objects strange or ingenious, and have no use for your country's manu­factures.

The Qianlong Emperor to King George III of England, October 3, 1793

In his famous dismissal of K ing George 's proposal to establish offi­cial diplomatic and trade relations, the Qianlong Emperor (1736-96) gave voice to his dynasty's long-standing indifference to foreign o b ­jects , manufactures, and ideas. 1 Yet well before the Q i n g fell, that indifference was to change substantially, 2 and wi th that change came the Chinese state's first formal legal measures concerned wi th sys­tematically protecting "ingenious" objects. This chapter commences by examining early Chinese-Western legal interaction, both as a pre­lude to a more specific discussion of intellectual property law and for the broader lessons it imparts regarding Chinese foreign rela­tions during the late imperial period. It then explores initial efforts, first by foreigners and later by self-styled Chinese reformers, to introduce "modern" ideas of intellectual property law into the land "possess ing] all things," before concluding wi th a consideration of w h y these early law reform efforts failed to meet expectations.

The Qian long Emperor could be dismissive of King George 's proposal because the Middle K i n g d o m already had in place gener-

Learning the Law at Gunpoint / JI

ous provisions for dealing wi th the waiyi, or "outer barbarians"— the term the Q i n g used to refer to all Europeans and Nor th A m e r i ­cans. 3 As R. Randle Edwards has artfully demonstrated, 4 the Q i n g not only perpetuated the basic framework that the M i n g dynasty had established for regulating huawairen (literally "persons outside C h i ­nese civilization") but, under Qianlong himself, expressly adopted a pol icy of "deferring to barbarian wishes" (juxun yiqing) that made special concessions to those unruly foreigners from the West. 5 From 1744 onward, foreigners were permitted to reside for part of the year in designated enclaves in Canton and Macao and do business wi th licensed Chinese intermediaries, k n o w n as the hong.6 At the same time, in an effort to accommodate foreign ways , responsibility for all foreign disruptions of harmony in those enclaves, save for homi ­cides of Chinese, was delegated through the hong merchants to the barbarians' leaders, 7 w h o persisted in maintaining what seemed to Chinese officialdom to be rather minute distinctions (e.g. , British, French, American, etc.) . 8

A l t h o u g h Chinese officials believed that they were making con­siderable concessions to the distant barbarians, Western merchants and their governments were not content with this early regulatory framework. T h e y objected strenuously to the application of Chinese law to foreigners accused either of murdering Chinese or of commit ­ting other crimes beyond Canton and Macao. In the words of rep­resentatives of the British East India Company, "Chinese laws . . . are not only arbitrary and corruptly administered, but founded on a system in many respects incompatible wi th European ideas of equity or jus t i ce . " 9 These perceived differences in fundamental values sur­faced in a series of incidents, running from the case of the Lady Hughes in 1784 1 0 to the outbreak of the O p i u m War in 1839, in which Western authorities construed the application of Chinese law and legal procedures as denying even the rudiments of fairness, whi le Chinese officials reacted to these expressions of foreign concern as constituting unwarranted interference in Chinese affairs.

Foreign concern about Chinese law was not, however, limited to cases of homicide and other serious disruptions of harmony. L o n g before K ing George Ill's proposal of 1793 to expand relations, English and other foreign merchants had expressed their displeasure wi th what had come to be k n o w n as the Canton, or hong, system, which , they argued, constrained trade and subjected them to the ex-

32 / Learning the Law at Gunpoint

actions of the hong merchants. 1 1 By the beginning of the nineteenth century, wi th the Chinese little interested in British "objects strange or ingenious," British and other merchants began to engage in bla­tantly illegal sales of significant quantities of Indian opium, creating a market for imports where foreign manufactures had failed. 1 2 These sales multiplied rapidly, and by the late 1820's, after years of en­j o y i n g a surplus in its trade with Britain and other waiyi nations, "China experienced an unfavorable balance of trade virtually for the first time in its history." 1 3

The Q i n g government deplored opium's debilitating effects on the populace of South China and dire impact on the economy. 1 4 Ini­tially, it addressed the problem by underscoring the fundamental illegality of opium sales under Chinese law and by taking measures directed at both Chinese and foreigners to enhance enforcement. When these measures proved unavailing, particularly with respect to foreign merchants, Lin Zexu , the imperial commissioner charged wi th the responsibility for stamping out the opium problem, turned to a different type of law—namely, what the "outer barbarians" called international law. His foreign audience, however, paid no more heed to appeals to the Swiss jurist Emerich de Vattel's Le droit des gens of 1758 than it had to the Q i n g code, 1 5 leading Lin to make a final and desperate plea on moral grounds to Queen Victoria. In an extraordinarily poignant letter, he implored her to bar British merchants from engaging in an activity that she clearly would not tolerate in England—but failed to receive even the courtesy of a response. 1 6

In the ensuing O p i u m War (1839-42), the far better equipped British inflicted a sharp defeat on the Chinese forces and extracted extensive diplomatic concessions as well . Western merchants and missionaries were granted access to the Chinese interior under the Treaty of Nanking of 1842 and comparable treaties concluded during the next twenty years with the United States and other nations seek­ing to enjoy similar privileges through most-favored-nation status. 1 7

Furthermore, in direct response to complaints about Chinese j u s ­tice, these treaties also required that foreigners accused of crimes against Chinese subjects be tried according to their o w n nation's law by representatives of their home government resident in Ch ina . 1 8

Al though originally limited to the criminal sphere, over the second half of the nineteenth century, an increasing number of foreigners

Learning the Law at Gunpoint / 33

and Chinese converts to Christianity managed to have civil cases and even criminal matters involving Chinese defendants heard either by foreign consular representatives or by the Mixed Cour t established to handle judicial affairs in the foreign-run International Settlement o f Shanghai . 1 9

Notwithstanding abundant scholarship on the political import of extraterritoriality, relatively little attention has been devoted to what that system meant for Chinese drawn into it. In effect, extraterri­toriality mandated that Chinese seeking redress against foreigners avail themselves, essentially without assistance, 2 0 of a legal order the fundamental principles of which were alien to the Chinese legal tra­dition. Chinese were accustomed to a legal culture that relied in both its formal and informal dimensions on authority figures to find the truth through "inquisitorial means." Extraterritoriality instead con­fronted them wi th an adversarial system in which disputants were required to argue for their version of the truth before a judge from the foreign party's nation, 2 1 w h o was unlikely either to k n o w the Chinese language or to be fully conversant with Chinese practices. Even when the Chinese had access to substantive foreign statutory and case law that was to be applied—which one doubts was often the case 2 2 —these materials typically were only available in a for­eign language and may have had precedential or other meaning that was not readily evident to persons unfamiliar wi th Western ideas of legality. Compound ing these difficulties in the instance of the Uni ted States, for example, was the fact that if the consular offi­cials acting as judges (who rarely had any legal t ra ining) 2 3 erred, appeal had to be taken within the continental United States. 2 4 This effectively foreclosed recourse to higher courts for the Chinese, par­ticularly after the Chinese Exclusion Act of 1882 excluded virtually all Chinese from entering the United States. 2 5 Ironically, this sys­tem, imposed by Westerners because of the injustices Chinese law supposedly perpetrated on foreigners, perpetrated many of the same injustices on the Chinese, leaving them with few victories and much skepticism regarding Western just ice. 2 6

Issues of intellectual property were not of consequence in Chinese economic and legal interaction wi th the West prior to the O p i u m War or in the first decades thereafter. 2 7 There was little foreign in­vestment in China, and trade was confined to items such as opium, tea, and raw silk, sold as bulk commodities, rather than under brand

34 / Learning the Law at Gunpoint

names. To be sure, there were periodic allegations of inferior grades of tea being passed off as their more costly counterparts from L o n g -j ing and elsewhere, but these were cast chiefly in terms of con­sumer fraud. 2 8

As foreign economic involvement in China expanded, however, during the latter part of the nineteenth century, charges of the un­authorized use of foreign trade names and trademarks began to arise. 2 9 At first, these seem chiefly to have taken the form of the improper use by Chinese merchants of the names of Western busi­nesses in order either to avoid paying the likin (internal tax) to which Chinese, but not foreigners, were subject or to secure internal tran­sit permits . 3 0 So it was that David Sassoon and Sons C o . , a British firm, found itself locked in legal battle in 1884 wi th the Chinese firm of W o n g Gan Y i n g , which i t charged had improperly done business under the name of a foreign enterprise. 3 1 And so it also was that complaints were lodged in 1897 against Chinese opium processors in S w a t o w — n o t for having produced opium, but for having sold their product under a British trade name, presumably to benefit from the hesitancy of local Chinese officials to enforce the law stringently against foreigners. 3 2

By the turn of the century, intellectual property problems began to multiply as Chinese entrepreneurs sought to take advantage of the popularity of imports—and of items produced in foreign-o w n e d local factories. Operating in an atmosphere of unprecedented international attention to intellectual property—in the aftermath of the formation in 1883 of International Union for the Protection of Industrial Property (the Paris Convention) , which deals wi th patent and trademark, the promulgation in 1886 of International Union for the Protection of Literary and Artistic Property (the Berne C o n v e n ­tion) , which addresses copyright, and what the famed patent scholar Fritz Machlup has termed the revival of such law in the Wes t 3 3 —for ­eign merchants expected that the integrity of trademarks that they had duly registered at home would be maintained in Ch ina . 3 4 In holding such expectations, they seemed little concerned that China was not a party to either convention or any other treaty concerning intellectual property, and was therefore under no formal legal obl i ­gation to respond to foreign allegations of unauthorized trademark use either by Chinese or by other foreigners. N o r did they appear fully to appreciate the difficulties of rendering Western-language

Learning the Law at Gunpoint / 35

trademarks and trade names in Chinese so as to preserve the identity

of the original mark, whi le creating a mark that would be felicitous

in the Chinese context . 3 5 In any event, it was evident by century's

end that a range of foreign trademarks were, at least in the eyes of

their holders, increasingly being abused.

A l t h o u g h stirred by the promise of a market of "four hundred

mil l ion cus tomers ," 3 6 foreign merchants did not endeavor in any

concerted fashion to redress their grievances concerning trademarks

through the Chinese legal system. In large measure, this mirrored

the general disdain of foreigners for a system wi th which they had

little familiarity and for which they had even less respect. 3 7 To be

sure, Chinese law offered scant formal protection for intellectual

property through the end of the nineteenth century. Article 153 of

the Q i n g code required commercial "agents" to avoid setting "un­

jus t" prices for their merchandise, Article 154 sought to punish those

w h o realize an exorbitant profit through "monopoly" or other un­

due influence, and Article 156 prohibited manufacturers from repre­

senting certain goods as being of higher quality than they were . 3 8

There is no evidence, however, that these broad prohibitions were

regularly used to address trademark issues. Subsequent attempts by

the Q i n g government during the 100-Day Reform of 1898 to issue

laws governing the press, 3 9 the importation of advanced technology,

and inventions similarly failed to impress foreigners as providing

meaningful protection. N o r did Western business regard the recog­

nition, through imperial edicts promulgated during the last years

of the century, of printers' monopolies over approximately twenty

types of texts as any more effective. 4 0 And whi le members of some

Chinese guilds were able to maintain the integrity of their o w n

brand names or to prevail on local officials to assist them in prevent­

ing others from copying the cigarettes, wine, medicines, and other

products for which they had become famous, 4 1 these protections

were localized and, in any event, unavailable to foreigners.

Bel ieving there to be little point in turning to the Chinese, for­

eign merchants instead appealed to the local representatives of their

home governments for assistance. By century's end, foreign con­

sulates began to register marks belonging to their nationals and to

convey those registrations to the Imperial Marit ime Cus toms Ser­

v i c e , 4 2 which the foreign treaty powers had established in 1854 and

since controlled. But these measures proved unavailing, in part for

j6 / Learning the Law at Gunpoint

want of effective enforcement powers, particularly beyond the for­eign settlements in Shanghai and the other major treaty ports , 4 3 and in part because of the overall breakdown of civil order resulting from the so-called Boxer Uprising of 1900. 4 4 As a consequence, the British Foreign Office endeavored initially to address the trade­mark issue and other commercial issues in the negotiation of the protocol concluding the Boxer Uprising. That negotiation, h o w ­ever, soon proved overly complex and interwoven wi th those the Chinese were conducting with the other treaty powers. As a re­sult, the Foreign Office instead resolved to negotiate a free-standing commercial treaty, notwithstanding the contention of some China hands that Britain's failure to impose the terms it desired as a part of Boxe r Protocol meant that the "right of China to have a wi l l of its o w n is recognized ." 4 5

The negotiations that ensued, first with the British and soon thereafter wi th the Americans and Japanese, were not confined to intellectual property. The treaty powers were eager to establish what they deemed a suitable environment for conducting interna­tional business. They pressed the Chinese to eliminate the likin, which was seen as encumbering foreign efforts to reach the market of 400 mi l l ion; 4 6 to adopt a uniform national currency; 4 7 and to de­velop laws governing mining and joint-venture enterprises, as wel l as intellectual property. If such concessions were forthcoming, it was suggested, they would instruct the Imperial Marit ime Cus toms to institute new tariffs and again ban opium, 4 8 and they might even be "prepared to relinquish extra-territoriality when satisfied that the state of the Chinese law, the arrangements for their administration and other considerations [so] warrant ." 4 9 The Chinese negotiating team, which was headed by the noted entrepreneur-turned-official Sheng X u a n h u a i 5 0 and included representatives of the newly formed Minis t ry of Foreign Affairs and foreign consultants drawn from the Mari t ime Cus toms , was scarcely in a position to resist entering into such discussions. 5 1

Trademark protection was the centerpiece of the intellectual property issues addressed in commercial agreements that the C h i ­nese accordingly concluded with Britain, the United States, and Japan. In essence, the Chinese government undertook, in the words of the British treaty, to "afford protection to British trade-marks against infringement, imitation, or colourable imitation by Chinese

Learning the Law at Gunpoint / 37

subjects ." 5 2 Reflecting the interest of Chinese negotiators in under­scoring China 's sovereign equality as a first step in breaking d o w n extraterritoriality, and the ironic belief of some Chinese officials that a market of "200 mill ion" existed in the West and Japan for their products , 5 3 China agreed to grant foreigners this protection "in order to secure such protection [abroad] . . . for its subjects ." 5 4

Given that China did not at this time have a national trademark law, the treaties left open the question of h o w to afford protection to foreign marks. The Mackay Treaty of 1902 wi th Britain p ro ­vided that the Chinese government would establish offices "under control of the Imperial Marit ime Cus toms Service where foreign trade-marks may be registered on payment of a reasonable f ee , " 5 5

but none of the treaties required registration, specified w h o might exercise the privilege of registration with respect to which marks, or enumerated the benefits of registration. What, after all, was a "British trade-mark," particularly in v iew of the fact that use, rather than registration, sufficed to provide exclusive right to a mark in Br i t a in? 5 6 M i g h t a Chinese subject seek to register in China a mark used in Britain? Migh t a British subject seek to register in China a mark used there, but not in Britain? Who , in short, were to be holders and h o w might they protect their marks in China, absent registration—or, for that matter, wi th it?

China 's 1903 treaty with the United States premised protection on registration, which was to be sought "by the proper authorities of the United States," but neither it nor Japan's contemporaneous treaty provided answers to the types of questions raised above in connection wi th the Mackay Treaty. N o r did these treaties specify where or under what circumstances such registration was to occur, other than to indicate that registration would take place "at such offices as the Chinese government wi l l establish for such purpose, on payment of a reasonable fee, after due investigation by the Chinese authorities, and in compliance with reasonable regulat ions." 5 7

T h e provisions of these early agreements concerning forms of intellectual property other than trademarks were somewhat more specific but still left vital questions unanswered. Thus , the treaty of 1903 between the United States and China, which, curiously, was the only one of the three to discuss patents, stated that China w o u l d provide a limited term of patent protection "to citizens of the United States on all their patents issued by the United States, in respect of

38 / Learning the Law at Gunpoint

articles the sale of which is lawful in China, which do not infringe on previous inventions of Chinese subjects, in the same manner as patents are to be issued to subjects of C h i n a . " 5 8 But the treaty also indicated that such protection would only commence after the C h i ­nese government had established a patent office and adopted a patent law, wi thout setting a date for establishing such an agency or p ro­viding interim protection. Similarly, the American treaty provided that in return for the United States granting Chinese subjects "the benefits of its copyright l a w s , " 5 9 the Chinese government wou ld "g ive full protection, in the same way and manner and subject to the same conditions upon which it agrees to protect trade-marks, to all citizens of the Uni ted States" (emphasis added) with respect to materials "espe­cially prepared for the use and education of the Chinese peop le . " 6 0

Other works were not entitled even to this uncertain level of pro­tection, al though their authors had a "right" to "due process of l aw" if their works were "calculated to injure the well-being of C h i n a " — whatever these undefined terms might mean.

T h e vagueness and variation of those provisions of the turn-of-the-century commercial treaties dealing with intellectual property was not wi thout consequence, as is borne out most graphically in the case of trademarks. To comply with obligations undertaken in the treaties, China 's Ministry of Foreign Affairs "invited" the Mari t ime Cus toms to prepare a draft trademark law. 6 1 Working closely wi th British consular officials and merchants, a Marit ime Cus toms team headed by a British deputy inspector-general generated a draft trade­mark law that bore more than a passing resemblance to British law, whi le otherwise responding to British interests. 6 2 This was most evident in the draft's provision that foreign marks used in China were entitled to protection, even if not registered, either in China or abroad. Similarly, taking account of the fact that British merchants might not be able to produce registration certificates for marks used in Britain, the drafting committee determined early on that persons w h o chose to register foreign marks in China need not prove prior foreign registration. 6 3 In specifying the body to receive and act on registration applications, the committee selected the Imperial Mar i ­time Cus toms itself, through which British influence ran deeply, rather than an entity more directly under Chinese control.

The draft prepared by the Imperial Marit ime Cus toms at the

Learning the Law at Gunpoint / 39

request of the Ministry of Foreign Affairs did not meet wi th ap­proval from China 's fledgling Ministry of Commerce , which had been founded in 1903 wi th a multifaceted mission, including re­sponsibility for developing a modern body of commercial law, re­ducing China 's g rowing dependence on foreign goods, fostering e x ­ports, and improving the lot of Chinese merchants selling abroad. 6 4

Object ions to the Cus toms draft centered on the issues of reg­istration, treatment of foreign-owned marks, and administrative responsibility and jurisdiction, judging from a superseding draft soon thereafter developed by a Ministry of Commerce team w o r k ­ing wi th Japanese advisors. 6 5 Departing largely from the A n g l o -American model employed by the Cus toms team, the C o m m e r c e draft declared in its very first article that anyone, "no matter whether Chinese or foreigner, w h o desires to have the exclusive use of a trade-mark must first register the same." 6 6 As a concession to for­eign interests, applicants would be granted a s ix-month priority period, commencing wi th the establishment of the Chinese trade­mark office, in which they might register marks for which "various [Chinese] officials may have issued proclamations giving protec­t i o n " 6 7 or that had been registered abroad before the opening of the Chinese trademark office. In the future, this period of priority for foreign registered marks was to be reduced to four months. Reg i s ­tration was to be denied, however, to any mark that imitated official seals, "destroy[ed] respect for rank, . . . [did] injury to the Cus toms of the country and . . . deceive[d] the people" or was identical to one that had been in public use, albeit not registered, in China for t w o or more years . 6 8

No less important were the changes the Ministry of C o m m e r c e draft proposed making in the administration and jurisdiction of the trademark law. Ci t ing the fact that the American and Japanese treaties did not specify which agency was to take responsibility for trademark administration and dismissing the Mackay Treaty's refer­ence to the Imperial Marit ime Customs on the grounds that it had not yet been established when negotiations with the British were being conducted, the ministry took the position that it should estab­lish a single national trademark office in Beijing, which might have branch offices in Shanghai and Tianjin for the express purpose of facilitating registration. 6 9 Far from doing away wi th extraterritori-

40 / Learning the Law at Gunpoint

ality, the draft provided that cases of infringement involving Chinese and foreigners were to be tried by officials of the defendant's g o v ­ernment, wi th representatives of the plaintiff's government present.

T h o r o u g h though it was, the ministry's draft evoked concern from the British, w h o saw it as giving advantage to the Japanese, whi le failing to stem counterfeiting of their trademarks by the C h i ­nese or other foreigners. 7 0 But the German, French, Swiss, and other European governments reacted even more strenuously. The Min i s ­try of Commerce ' s draft, in their minds, made undue concessions both to Ang lo -Amer i can jurisprudence—as evidenced, for example, in the provision of de facto protection to unregistered marks that had been in use for more than two years in China—and to the Japa­nese, w h o had been accorded a unique advisory role in the draft­ing process. 7 1 Compound ing these problems, the Europeans con­tended, were lack of timely notice of the draft's proposed changes and China 's inadequate preparation for the administration of any such laws.

As a consequence, the civil law powers took the lead, soon to be fol lowed by the British and Americans, in pressing the Chinese to set aside the Ministry of Commerce draft, pending its revision wi th expanded foreign "assistance." 7 2 Toward that end, the treaty powers formed a committee to elicit merchant reaction and "ad­vise" the Chinese. Within months, the committee developed a series of proposed amendments to the draft. O n e of the most notable of these, reflecting a compromise between the Ang lo -Amer ican and Continental lawyers, recommended that marks in use prior to the turn-of-the-century treaties be protected even in the absence of reg­istration, but that those introduced thereafter be protected only if registered. Additionally, in an effort to keep the Chinese authorities from developing too much independence, the committee and other interested foreign parties called on the Chinese to recognize wi th ­out examination any mark duly registered by a treaty power and to involve the foreign powers more intimately in China 's trademark law drafting process by using more Western advisors and employ­ing the Imperial Marit ime Cus toms for at least some registration purposes . 7 3

Notwithstanding its weak bargaining position, the Chinese g o v ­ernment not only sought to stand firm in the face of increasing foreign pressure but strove to turn the situation to its advantage.

Learning the Law at Gunpoint / 41

Reminding the treaty powers that the imperial government had fol lowed Western advice in studying foreign trademark law prior to enacting its o w n , Chinese officials responded to the diplomatic committee 's proposed changes by accentuating the great variations among the trademark laws of the treaty powers . 7 4 T h e y further o b ­served that a l lowing either foreign consular officials or local Chinese magistrates to resolve particular cases was certain to cause confu­sion, as "it is impossible that they should be familiar wi th all the affairs of the Trademark Office and the circumstances attaching to any action which may be brought." Accordingly, "so that equitable decisions may be obtained, and that the interests of both Chinese and foreigners may be protected," it was necessary, contended the Minis t ry of Commerce , that there be a "centralization of all au­thori ty" for trademark infringement cases in a system of Chinese courts to be established under its auspices. 7 5

A l t h o u g h Chinese officials reminded the foreign diplomatic c o m ­muni ty that the centralization of authority over all trademark dis­putes was in keeping wi th those provisions of the turn-of-the-century commercial treaties promising to relinquish extraterritorial privileges w h e n the Chinese legal system was "modernized," none of the treaty powers responded favorably to this Chinese proposal . 7 6

Britain and the United States, among others, made concerted efforts to persuade the Chinese to alter their position, arguing that the p ro ­posed system discriminated against their nationals and, in any event, was premature, given the West's v iew of the quality of the C h i ­nese legal sys tem. 7 7 With the foreign powers refusing to approve the proposed Chinese regulations and the Chinese refusing to substi­tute a draft more in keeping with their wishes, a stalemate ensued. T h e Chinese central government in turn relied on this deadlock as a rationale for not promulgating a permanent trademark law for t w o decades, w i th the result that the protection promised by the turn-of-the-century treaties was not available until 1923, and then more in name than fact. 7 8

Similar situations obtained wi th respect to the development of patent and copyright laws and the relevant administrative agencies. Thus , al though the Chinese had committed themselves in 1903 to provide patent protection for certain American inventions, more than t w o decades passed before foreigners received even the nomi­nal protection first accorded Chinese nationals in 1912, which itself

42 / Learning the Law at Gunpoint

produced fewer than 1,000 patents over its first thirty years . 7 9 N o r

did protection prove any more readily forthcoming wi th regard to

copyright , even taking account of the fairly limited scope of the per­

tinent provisions of the American and Japanese commercial treaties.

In 1906, 1907, and 1908, the Q i n g government issued laws on print­

ing and newspapers, but the registration systems they provided were

aimed at controlling printers, with the result that these laws ulti­

mately treated Chinese and foreign authors equally by protecting

neither. 8 0 For years, the Chinese resisted pressure from the United

States and other treaty powers to promulgate legislation implement­

ing their treaty obligations. Because the turn-of-the-century treaties

specified that copyright protection was to be accorded in the "same

w a y and manner and subject to the same conditions" as trademark

protection, the Chinese government contended, it was premature

to issue a copyright law until the trademark law "goes into force

and proves acceptable and effective." 8 1 And when, in 1910, the C h i ­

nese finally did succumb and issue a "provisional and experimental

copyright a c t . . . [that gave] certain very limited exclusive rights to

Chinese authors ," 8 2 it neither "purpor ted] to put the above treaty

provisions into effect" nor, according to a leading practitioner, gave

"any protection" to foreigners. 8 3

Finding little solace in Chinese legislative efforts and desiring,

in any event, to maintain extraterritoriality, 8 4 Britain, the United

States, and other treaty powers sought instead directly to pro­

tect their intellectual property against infringement in China by

nationals of other treaty powers . 8 5 Accordingly, late in 1905, the

major treaty powers commenced negotiation of a series of bilateral

agreements amongst themselves designed to provide reciprocal pro­

tec t ion. 8 5 These provided, for example, that an American national

w h o had registered a trademark in Italy might bring an action be­

fore the Italian Consular Cour t in China against a person subject to

the jurisdiction of that court. Notwithstanding ongoing allegations

against Japanese merchants, these bilateral agreements soon signifi­

cantly eased the problem of infringement among the treaty powers '

nationals.

T h e treaty powers ' problems with infringement by the Chinese

were not so easily ameliorated. On the contrary, these problems

multiplied during the period between the conclusion of the Mackay

Treaty and the promulgation in the late 1920's of the first Chinese

Learning the Law at Gunpoint / 43

laws designed to implement the promises made by the turn-of-the-century treaties regarding intellectual property. 8 7 Increased industri­alization enhanced the capacity of Chinese enterprises to copy for­eign intellectual property, 8 8 while the spread of literacy through the baihua (vernacular) m o v e m e n t 8 9 and the growth of a sizable urban elite provided pirates wi th ever-greater incentives. Infringement of items from textbooks to tobacco products was rampant, j udg ing from the accounts of diplomats, merchants, and local governmen­tal organs . 9 0 In the words of N o r w o o d Allman, w h o served as U . S . consul in Shanghai and was an assessor in the Mixed Cour ts prior to establishing his o w n law practice in China, "it is undoubted that there is n o w [1924] widespread unauthorized reproduction in China of foreign patented articles." 9 1

Typical of the problems were the experiences of the famed A m e r i ­can publisher of G. & C. Merriam, which invested heavily in the preparation of a bilingual version of Webster's Dictionary that it hoped to introduce to Ch ina . 9 2 Even before bringing its dictionary onto the Chinese market, Merriam discovered that the Commerc ia l Press in Shanghai had already begun to distribute its o w n Chinese lan­guage version of Webster's. Merriam accordingly brought suit in 1923 against the Commerc ia l Press before the Shanghai Mixed Cour t , in­vok ing both the copyright and trademark provisions of the treaty of 1903 between the United States and China. Counsel for the C o m ­mercial Press offered an array of arguments, ranging from reliance on the literal meaning of the 1903 treaty's limited copyright provi ­sions to lavishing praise on the Press for its patriotism in making foreign knowledge available. In the end, the court found that the dic­tionary did not fall within the limited class of American works en­titled to copyright protection, but rejected the Commercia l Press's contention that its use of a seal virtually identical to Webster's was no more than an unintentional coincidence. As a consequence, the court imposed a moderate fine (of 1,500 Jiang of silver) on the C o m ­mercial Press but did nothing to halt its continued publication of its version of Webster's—albeit without the identifying seal. 9 3

Unable to secure uniform national intellectual property laws, for­eign parties in China sought whatever alternative protection they could find. A number registered their trademarks, patents, and copyrights wi th the Marit ime Customs, for although such registra­tion had no legal effect before 1923, many foreign holders assumed

44 / Learning the Law at Gunpoint

that it might serve as proof of their long-standing ownership inter­est should they later seek to invoke the assistance of Chinese courts or officials in combating infringement. 9 4 Others sought to gener­ate such p roof through registration wi th their consulates, no twi th­standing the fact that consuls were able to do little more than bring diplomatic pressure to bear within their o w n consular districts. Still, others, particularly in Shanghai and a small number of additional areas wi th a strong foreign presence, were successful in persuading local Chinese officials to exercise their discretionary powers to take action, at least on occasion, against infringers. Thus , the expatri­ate Shanghai North China Daily News reported with great praise the issuance during the summer of 1907 by the local daotai (circuit in-tendant) of proclamations designed to "prohibit further copying of patterns by Chinese" of "cigarettes manufactured by the Bri t ish-American Tobacco C o m p a n y (Limited) . . . and also . . . the soaps for which Messrs. A. E. Burkil l & Sons are the sole agents ." 9 5 T h e records of the Shanghai Mixed Cour t reveal instances, such as a 1915 case concerning the trademark Vaseline, in which the court came to the assistance of foreign trademark holders on equitable grounds, in the absence of a trademark law. 9 6

T h e specter of foreign intervention that provided foreign holders of intellectual property wi th sporadic protection was, of course, essentially unavailable for their Chinese counterparts. Histories of major publishers and other enterprises, author's diaries, handbooks for the conduct of business, governmental records, and a host of other documents vividly portray the difficulty faced by Chinese wi th potentially marketable intellectual proper ty—whose ranks were g rowing by virtue of the expansion of the middle class and technological change. 9 7 This was evidenced, for example, in the problems encountered by the "new breed of commercial wri ters" w h o arose as "the urban readership emerged and the facility of rapid printing became clear," only to find their attempts to earn a l iving from their prose thwarted by the fact that "copyrights existed but were unenforceable." 9 8

Typical of the plight of Chinese authors was the experience of the novelist Xu Zhenya with his highly popular work Yuli hun (Jade Garden Spirit). Having initially published it in serial form begin­ning in 1912 in a periodical known as the Minquan bao (People's Rights Journal), Xu was dismayed to discover his tale of romance

Learning the Law at Gunpoint / 45

republished and sold at considerable profit by the People's Rights Publishing Section, which was affiliated wi th the journal . Eager to realize some of that profit, but unable to make headway wi th the publisher, Xu contended, in the words of a leading chronicler of the literature of that era, "that the new, Western thing k n o w n as the ' legal copyr ight ' should remain with the author." 9 9 When his efforts at persuasion proved unavailing, Xu took the publisher to court under China 's fledgling copyright law and prevailed, only to find the pirating of his celebrated love story to have spread still fur­ther in the interim. Exasperated, Xu finally chose to give away or sell at cost copies of the book in order both to strike back at the printers w h o had blithely pirated his work and to draw attention to his situation. N o r did Xu ' s ability to protect his o w n work improve markedly even after he formed his o w n publishing company, j u d g ­ing from the fact that although "some have even estimated a total circulation [for his next major novel] of over a million, . . . Xu . . . probably sold only a few tens of thousands." 1 0 0

Western diplomats and merchants involved in these early at­tempts to implant "modern" intellectual property law in China at­tributed their failure to what they characterized as the inability of the Chinese to understand such law. As the U . S . consul general in Shanghai wro te to his ambassador in 1904, "The Chinese seem to have confused a trademark wi th a patent." 1 0 1 " Y o u wi l l remember," he added, "that in our negotiation of the [1903] Treaty, it seemed nearly impossible to explain to them the difference between a trade­mark and a patent." N o r were the Americans alone in such senti­ments, j udg ing from the reservations that the Germans and others expressed about the Ministry of Commerce ' s desire to centralize authority over trademark registration and infringement. 1 0 2

Foreign assumptions as to w h y early efforts to foster "modern" intellectual property law in China proved so difficult were accurate in some measure. Notwithstanding the amassing by Shen J iaben 1 0 3

and Wu T i n g f a n g 1 0 4 of data regarding foreign legal systems and the subsequent utilization by the Chinese government of British, Japa­nese, and other foreign advisors, 1 0 5 it is evident that in the early twentieth century, Chinese officials in both the capital and the prov­inces had not thoroughly addressed the implications for China of intellectual property law. This is borne out, for example, by the tenor of early Ministry of Commerce memorials concerning such

46 / Learning the Law at Gunpoint

protect ion. 1 0 6 After noting that the United States, Japan, and other nations wi th patent laws attained high levels of economic success, these memorials suggest that China, too, might wish to adopt c o m ­parable measures. They fail, however, to indicate h o w such l a w — which they rightly declared to be without precedent in Chinese his­tory 1 0 7 — w a s to be successfully absorbed, or even to take note of the plethora of practical difficulties confronting these and other aspects of the turn-of-the-century law reform effort. These memorials, in effect, equate the promulgation of such law wi th its implementation, whether in China or abroad.

Provincial and local officials were no more sophisticated about such matters. This was evidenced, for instance, by the rules regard­ing patents issued in 1906 by thejiangnan Bureau of C o m m e r c e . 1 0 8

In an unconscious reprise of early patent law in the West, those rules, inter alia, provided for the issuance of what were described as patents to Chinese for imitation, rather than innovation. Such rewards were to be granted to those w h o imitated Western methods for producing paper, extracting oil, and other valuable industrial processes—with the length of the patent to vary according to the importance of what was appropriated from abroad.

These difficulties notwithstanding, it is important neither to over­state the incomprehensibility of Chinese intellectual property law in the late Q i n g and early Republican eras nor to assume that this was the sole reason Chinese of this period failed to embrace such laws more vigorously. The same documents that reflect a lack of familiarity on the part of Ministry of Commerce officials wi th many facets of intellectual property law and a naivete about what the adop­tion of such law wou ld entail also evidence both an appreciation that economical ly successful nations had patent laws and the perception that trademarks might help foster commerce. As a consequence, these same Ministry of Commerce materials call on Chinese nego­tiators to secure reciprocal protection abroad for Chinese marks in order to build up foreign markets for Chinese products, as wel l as to maintain China 's sovereign honor. 1 0 9 It is also apparent that Chinese representatives clearly understood copyright well enough to negot i ­ate a limit of China 's promise of protection to materials "especially prepared for the use and education of the Chinese people," so that "Chinese subjects shall be at liberty to make, print, and sell original translations into Chinese of any [other] works written or of maps

Learning the Law at Gunpoint / 47

compiled by a citizen of the United States." 1 1 0 The inclusion of that limitation should not be attributed solely to the possibility that U . S . negotiators may have been interested in seeing American ideas dis­seminated in China, given the vigor with which Chinese authorities sought to uphold the right of their nationals under the treaty of 1903 to reproduce and translate virtually all American books . 1 1 1

An awareness of at least some forms of marketable intellectual property extended beyond official circles. As printing and manu­facturing technologies g rew in sophistication, a modest number of authors and entrepreneurs joined guild members in efforts to prevent others from making unauthorized use of their creations, 1 1 2

although such awareness could hardly be described as widespread. Chinese nationals, particularly in Shanghai, showed some degree of familiarity wi th brand names in commercial boycotts staged in 1905 against American g o o d s 1 1 3 to protest the passage of legislation de­signed to exclude Chinese from the United States in contravention of the Burl ingame Treaty, 1 1 4 and in 1919 to express Chinese anger over Japanese expansionism. 1 1 5 Amidst a background of complaints about the difficulty of preserving any semblance of intellectual prop­erty in China, a small number of foreign observers suggested that the Chinese displayed some regard for trademarks. 1 1 6

Quest ions of understanding of intellectual property law were, of course, not the only factors at play. Skepticism at the highest levels of the Chinese state seems to have impaired the late Q i n g law reform in general—which even with genuine support wou ld have been extremely difficult to effectuate. To be sure, Shen Jiaben and others pleaded forcefully for legal reform, contending that wi thout it China might wel l not survive in a competitive world filled wi th nations no longer burdened, as was China, wi th what he described as an antiquated legal system. 1 1 7 Nonetheless, the Empress D o w a ­ger C i x i and her most influential advisors, especially in the years immediately fol lowing the Boxer Uprising, regarded law reform as, at best, an unfortunate short-term expedient needed to calm the restive masses and appease the treaty powers before Q i n g power could be reasserted in its proper form. 1 1 8 And most important, as had been the case throughout imperial Chinese history, the govern­ment's interest in the publication remained focused on the control of ideas and the maintenance of order, rather than on the protection of private property interests or the nurturing of a marketplace of

48 / Learning the Law at Gunpoint

ideas. 1 1 9 As a consequence, elements of reform that Shen and his co l ­

leagues saw as essential—such as the abolition of many of the sharp

status differences found in the Q i n g code in favor of a "modern"

criminal code stressing equal i ty—were either rejected or accepted

in so watered-down a fashion as to dilute the very purpose of their

adopt ion. 1 2 0

Even those dimensions of the law reform effort that enjoyed suf­

ficient support to be adopted largely as proposed faced immense dif­

ficulty—as was the case wi th the first Chinese company law, which

in 1901 introduced the idea of limited liability and took a highly

supportive approach toward entrepreneurial endeavor. 1 2 1 That law

presumed that newly organized mechanisms for dispute resolution,

such as chambers of commerce under the auspices of which arbi­

tration acceptable to both Chinese and foreigners might be held,

w o u l d rapidly be established. 1 2 2 And yet, owing to the weakness of

the central government by the early twentieth century, little effort

was devoted either to training individuals w h o might administer

these new rules and institutions or to educating merchants and the

broader populace as to their meaning and implications.

If anything, the problems that plagued the initial law reform

efforts of the late Q i n g regime intensified during the final years

of the dynasty and the early years of the Republic, preceding the

consolidation of power by the Guomindang in the late 1920 's. By

the time of the ascension of the three-year-old Emperor Puyi to

the throne in 1908, the Q i n g regime was in such disarray, and its

ability to govern so deeply impaired by its o w n corruption, surg­

ing Han objections to Manchu rule, and the corrosive effects of

China ' s semicolonial status, 1 2 3 that even proponents of further law

reform recognized the relative futility of their undertakings. N o r

were those w h o strove to take up the Q i n g dynasty's mantle in the

first t w o decades fol lowing the 1911 revolution better able to attain

success. A l though attempts were made by various groups during

this interregnum to build on the law reform work of the Q i n g ,

their motivat ion typically seems to have been legitimation rather

than genuine legal reform. This was perhaps most graphically e x ­

emplified in 1915 by the early Republican President Yuan Shikai,

w h o endeavored to restore the monarchy with himself as emperor.

Eager to ease this blatant betrayal of the Republic he was serving,

Yuan adopted the reign name of Hongxian (Great Constitutional)

Emperor in the belief that this would demonstrate his self-professed

Learning the Law at Gunpoint / 49

abiding commitment to the rule of law. 1 2 4 In any event, conditions throughout this era were hardly propitious for legal reform.

As if the foregoing were not problematic enough, the very man­ner in which the treaty powers sought in this context to introduce intellectual property law into China appears, ironically, to have been a major factor impairing its reception. Apart from the essentially self-serving advice provided by a small core of British, Japanese, American , and other foreign advisors largely involved in legisla­tive drafting and general legal counseling, it appears that the treaty powers made no substantial efforts to show the Chinese government w h y intellectual property law might be of benefit to China, to assist in the training of Chinese officials wi th responsibility in this field, or to educate the Chinese populace as to its rationale. 1 2 5 N o r does there appear to have been any serious attempt either to enlist the support of Chinese holders of commercially valuable intellectual property for the building of such law or to take account of Chinese c i rcum­stances, save for the copyright provisions of the U . S . and Japanese treaties. Instead, what was good for each treaty power was deemed by nationals of that particular treaty power, perforce, to be good for China .

Unhappy at being forced to negotiate the turn-of-the-century commercial treaties, Chinese officials initially assumed that adoption of the legal and other "reforms" called for in those agreements— including intellectual property l aw—would , at least, hasten the end of the much-detested extraterritoriality. They therefore moved to add the trappings of such laws to satisfy the treaty powers . 1 2 6 When it soon thereafter became apparent that these powers were in no hurry to fulfill their treaties' commitment to relinquish extraterri­torial privileges, the initial limited Chinese willingness to legislate in this area largely dissipated. This was replaced, as has been de­picted above, by efforts to employ intellectual property law itself as a tool in the struggle to ward off the foreign powers. As a con­sequence, U . S . Ambassador Rockhill 's observation that "as China has no copyright laws and grants no protection to her o w n people, it w o u l d avail Americans little to be placed upon the same footing wi th them" remained as true two decades after the conclusion of the turn-of-the-century treaties as when he first uttered it in 1906. 1 2 7

If the turmoil of the first two decades following collapse of the Q i n g

dynasty was an impediment to efforts to formulate a sound new

50 / Learning the Law at Gunpoint

legal order, the br ief interlude of relative stability enjoyed during

the Nanjing government 's early years hardly provided more aus­

picious circumstances. Wrapping themselves in the mantle of the

Guofu (Father of the Nation), Sun Yatsen (1866-1925), 1 2 8 the G u o -

mindang took power in 1928 after having turned bloodi ly against

the C o m m u n i s t s , 1 2 9 wi th w h o m it had uncomfortably been allied in

efforts to stop warlordism and reunite China during the late 1920's.

Wi th the outbreak in Manchuria in 1931 of what was to become

World War II, and wi th its o w n efforts to eradicate Chinese c o m m u ­

nism, the Guomindang, too, proved unable to escape the cycle of

violence and realize a sustained period of peace.

T h e violent birth of its regime notwithstanding, the G u o m i n ­

dang soon sought a thorough transformation of the Chinese g o v ­

ernment in order to lay the foundation both for ending the disorder

that had long afflicted China and for convincing the treaty powers

that extraterritoriality was no longer just if ied. 1 3 0 Building on Sun's

vision of a government of five branches, the Guomindang in its early

years in power elaborated what it described as a modern government

for a n e w China . 1 3 1 A n d so doing, the Guomindang developed and

promulgated what its legal advisors—many of w h o m were foreign-

trained—believed wou ld be a fitting formal legal structure. 1 3 2

T h e development of laws regulating creative and inventive en­

deavor was a key element of the effort to foster a new legal system.

T h e first such measure, promulgated shortly after the Guomindang

took power in 1928, was the Copyr igh t Law. 1 3 3 Bor rowing heavily

from the German example, as filtered through the Japanese, this law

provided that authors were entitled on registration wi th the Min is ­

try of Internal Affairs to protection for books , music, photographs,

designs, sculpture, and other technical, literary, and artistic works .

In the case of Chinese nationals, this protection, which encompassed

moral as wel l as economic rights, was to run for the life of the author

plus thirty years. For foreigners, on the other hand, it was limited to

ten y e a r s 1 3 4 and was available, as its implementing regulations speci­

fied, only for works "useful for [the] Chinese" created by persons

"whose country recognizes that Chinese people are entitled to enjoy

author's rights in that country." Al though specific translations were

to be protected, the right to translate a work copyrighted in a for­

eign country was not. Holders whose rights were being infringed

might bring civil actions seeking damages or an injunction against

Learning the Law at Gunpoint / 51

further improper publication or might endeavor to have Chinese and foreigners alike prosecuted in Chinese courts.

In vesting the Ministry of Internal Affairs wi th registration au­thority, the law also provided that the ministry might "refuse to register [a work] in one of the fol lowing cases: (1) the w o r k obv i ­ously goes against the doctrines of the Guomindang or (2) the re­lease of the w o r k is prohibited by other l a w s . " 1 3 5 These restrictions were amplified in the Publication Law promulgated two years later and its implementing regulations, 1 3 6 only to be further expanded after the commencement of World War II. 1 3 7 Published works were not to contain anything, according to Article 19 of the Publication Law, "intended to . . . undermine the Guomindang or violate the Three People's Principles" of Dr. Sun Yatsen, "to overthrow the Nationalist Government or to damage the interests of the Republic of China ," to "destroy public order," or to "impair good customs and habi ts ." 1 3 8 To ensure that these prohibitions were met, books , newspapers and other works were not to be released in the event that the w o r k "involved doctrines and affairs of the Guomindang" unless the Ministry of Internal Affairs or the Central Propaganda Department of the Guomindang granted a permit . 1 3 9 Such a permit, in turn, was a prerequisite to obtaining a copyright, although the prospect of not being able to secure rights for works of this type must have seemed a minor penalty in v iew of the Publication Law's provision that persons releasing such works without a permit might be subject to imprisonment, fines, the seizure of their publications, and the destruction of their type . 1 4 0

A l t h o u g h less intimately interwoven in the fabric of political life, the trademark and patent measures promulgated by the Nat ional­ist government during its years in Nanjing were not wi thout their notable provisions. Protection for trademarks required registration wi th the central government, which had authority, under the Trade­mark Law issued in 1930 and amended in 1935, to bar marks that it deemed prejudicial to public order or that utilized the portrait or name of Dr. Sun Yatsen, the plum blossom, or other signs evocative of the national government or the Guomindang party. 1 4 1 Registra­tion carried a term of twenty years, contingent on initial use of the mark in China within a year of its registration and continuing local use thereafter. Nonresident aliens were eligible to obtain registra­tion for their marks through the use of Chinese agents, provided

52 / Learning the Law at Gunpoint

that their home nations offered comparable protection to China, and subject to the law's stipulation that if a mark had been used before registration was sought, the party using the mark first in China was entitled to registration even over parties w h o had previously registered it abroad. A n d as was the case wi th copyright, infringe­ment cases were to be tried in Chinese courts, irrespective of the nationality of the defendants.

Protection for Chinese, if not foreign, inventions was set forth in the Measures to Encourage Industrial Arts promulgated in 1932. 1 4 2

These measures, in turn, were supplemented by the Nationalist government in 1949 wi th the introduction of a patent law pre­pared five years earlier in which, in the words of a foreign skeptic, "practically every k n o w n provision of patent law is incorporated." T h e legal regime envisioned offered patent protection, save for chemicals, foods, and pharmaceuticals, to Chinese as wel l as for foreigners, provided that their o w n nations reciprocated such pro­tect ion. 1 4 3 Patent protection was not to be absolute, but rather was contingent on the requirement that the invention be worked within a three-year period or be subject to a compulsory license. Once again, the Chinese courts were to be the arbiter of infringement, which could be the subject of civil or criminal actions.

These elaborate efforts at "modernizing" the law notwithstand­ing, there appears, from accounts of Chinese and foreign observers alike, to have been little change in Chinese practice during the Nationalist government 's t w o decades in power on the mainland. 1 4 4

Thus , for example, after noting in his 1969 study of book pirating in Taiwan that there was in the 1928 Copyr igh t Law "no concern manifest . . . for the international aspects of protection," David Kaser remarks that "protection of any kind for literary property was so seldom recognized as deserving of attention in China that very, very few cases of alleged violation went to litigation; precedents, al though not unknown, were rare." 1 4 5 Similar sentiments have been expressed by commentators as varied as Shen Ren'gan, the first head of the P R C ' s State Copyr igh t Administration, w h o has declared that "despite laws promulgated by the Guomindang government, it was impossible . . . to assure the author's justifiable rights and inter­ests," 1 4 6 and Professor He Defen of National Taiwan University, w h o is a leading authority on copyr ight . 1 4 7 N o r does the situation appear to have been appreciably different wi th respect to trademarks

Learning the Law at Gunpoint / 53

or patents. "When . . . there is a case of infringement [of trade­mark] . . . the local courts do not take the opinion of the [National Trademark] Bureau into consideration," two British China hands of the 1930's typically noted; rather, the courts reached decisions irrespective of the existence of duly registered trademarks. 1 4 8 In the words of a sympathetic 1945 report by a subcommittee of the National Foreign Trade Counci l , based in N e w York, "adoption of suitable statutes relating to Patents, Trademarks and Copyr igh ts wi l l not be enough [i]f China is to derive any real benefit. . . . No matter h o w sound a law may be, it is of no value if it is not enforced." 1 4 9

Clearly, the disruption occasioned by the invasion of Manchuria in 1931, Ch iang Kai-shek's ongoing campaign to eradicate the C o m ­munists, further Japanese aggression, and the Chinese civil war that fol lowed greatly impaired efforts to infuse life into the laws on intel­lectual property promulgated during the Nationalists ' first t w o de­cades. Yet , more fundamentally, these laws failed to achieve their stated objectives because they presumed a legal structure, and in­deed, a legal consciousness, that did not then exist in China and, most likely, could not have flourished there at that time. Structur­ally, each of these laws granted rights only to those persons w h o had registered their intellectual property wi th the appropriate g o v ­ernmental agencies and further specified that such rights were to be enforced through recourse to the nation's court system. Such a reg­istration requirement may have made sense in the foreign context from which it was borrowed. It was, however, far less appropriate for China in the early twentieth century, given that, in the words of Ch iang Kai-shek himself, "when something arrives at a government office it is yamenized—all reform projects are handled lackadaisically, negligently, and inefficiently," 1 5 0 and given the virtual absence of personnel trained to administer such a registration system. 1 5 1

M u c h the same point could be made regarding the notion of v in ­dicating one's rights through the courts. Of China's 2,000 counties (xian), which had an average population of over 200,000, little more than 10 percent had as much as a single district cour t , 1 5 2 and many such courts were staffed by judges and lawyers of decidedly l im­ited training and expertise. N o r was the situation much better even after another decade of efforts at law reform. In 1946 China still had only 479 courts, many of which were still not staffed by professional jur is ts . 1 5 3 So it was that the Harvard-trained political scientist Qian

54 / Learning the Law at Gunpoint

Duansheng was able to conclude during the last years of the N a n ­j ing era that "in draftsmanship the codes are, on the whole , we l l done. If they have not been duly enforced, it is . . . because of the inaccessibility of the courts, the incompetence of the judges, and, especially, the interference of authorities other than the judicial in the administration of jus t i ce . " 1 5 4 Beneath these structural problems, however , there were even more basic matters of legal consciousness at play. From its inception, the Nationalist government justified the s low pace at which it introduced constitutional reform by reference to Sun Yatsen's theory of "tutelage." Sun's theory suggested that the Chinese people were historically so ill-prepared for democracy that only controlled movement in that direction under firm control of the Guomindang, taking account of the time needed for mass education, could succeed in transforming China. Nonetheless, in a manner typical of Republican law reform in general, the lawyers and officials involved in preparing the trademark, patent, and copyright measures of this era drafted them as if their audience consisted of other urban sophisticates as versed as they were in foreign ways . There appears to have been scant recognition in these laws, and scant acknowledgment in their application, that the overwhelming ma­jor i ty of their fellow Chinese citizens were unfamiliar not only wi th the niceties of "modern" intellectual property but wi th the very idea of vindicating rights through active involvement in a formal legal process meant to be adversarial in nature.

N o r were problems of legal consciousness the exclusive province of the 90 percent of China 's populace w h o dwelt in the countryside. The urbane lawyers and others involved in preparing Republican China 's modern legal codes seem not to have appreciated that the idea of a strong, independent legal system, which underlay the laws they drafted, was profoundly at odds wi th the self-perceived mis ­sion of the government they served. For all the new codes it put on the books , the Nationalist government quite simply had little use for the formalities of law when they interfered wi th its political agenda. It was , for example, no coincidence that of more than 69,000 offi­cials against w h o m charges of corruption were made to the central government 's Cont ro l Yuan during the notoriously freewheeling years between 1931 and 1937, only 268 were found guilty and fewer than 60 received any sort of punishment. 1 5 5 Copyr igh t laws might speak of the importance of preserving an author's rights, but these

Learning the Law at Gunpoint / 55

were automatically to give way in the face of what was taken to be an unquestionable need to control the flow of ideas. The Nat ion­alist government, in short, heeded only too wel l the January 1924 statement of the Guomindang Congress that "democratic rights . . . must not be carelessly bes towed ." 1 5 6

Four

Squaring Circles: Intellectual Property Law

with Chinese Characteristics for a Socialist

Commodity Economy

Is it necessary for a steel worker to put his name on a

steel ingot that he produces in the course of his duty? If

not , w h y should a member of the intelligentsia enjoy

the privi lege of putting his name on what he produces?

Popular saying in C h i n a during the

Cultural Revolut ion (1966-76)

Al though the founders of the P R C excoriated their Nationalist pre­decessors for being enamored of foreign ideas and practices, 1 they, too, looked abroad in developing law for their " N e w C h i n a . " 2 Years before the invalidation in 1949 of the entire corpus of Republican law, 3 the Chinese Communis t party drew extensively on the e x ­ample provided by the U S S R as it formed model "soviets" in the Chinese countryside and began to articulate a legal system. 4 With the establishment of a Chinese people's republic on October 1, 1949, such efforts to learn from abroad intensified.

In the area of intellectual property law, the Soviet model proved more accessible to China than those used by the Guomindang. 5 In large measure this was because of the ways in which the values that underlay the Soviet model reflected traditional Chinese atti­tudes toward intellectual property. This was especially the case wi th regard to the belief that in inventing or creating, individuals were engaged in social activities that drew on a repository of knowledge

Squaring Circles / 57

that belonged to all members of society. As the young Marx wro te

in 1844:

Even when I carry out scientific work, an activity which I can seldom conduct in direct association with other men, I perform a social, because human, act. It is not only the material of my activity—such as the language itself which the thinker uses—which is given to me as a social product. My own existence is a social activity. For this reason, what I myself produce, I produce for society, and with the consciousness of acting as a social being. 6

To be sure, Marx 's v iews on the social nature of language and of invention, and Confucius 's concept of the transmission of culture arose from very different ideological foundations. Nonetheless, be ­cause each school of thought in its o w n way saw intellectual cre­ation as fundamentally a product of the larger society from which it emerged, neither elaborated a strong rationale for treating it as establishing private ownership interests.

T h e Soviet example also evoked the Chinese tradition in its ap­proach to the dissemination of knowledge. There are, of course, many differences between Marxism-Leninism, wi th its ultimate goal of a classless society, and Confucianism, with its belief in the ne­cessity of hierarchy. 7 Nonetheless, each clearly envisioned that it was w h o l l y appropriate—indeed, necessary—to control the flow of ideas to the populace. Moreover, each believed that this control was to be exercised by a very small group of persons for the benefit of society as a whole . In this respect, too, the Soviet case was far more compatible wi th both the objectives of the Beijing leadership and the broader Chinese context than were the models Republican China had used, which presumed the existence of a marketplace of ideas in a manner neither acceptable to the leadership of the Chinese C o m ­munist party nor previously witnessed in the Middle K i n g d o m .

T h e cornerstone of the P R C ' s early efforts at regulating intel­lectual property, the Provisional Regulations on the Protection of Invention Rights and Patent Rights of August 11, 1950, fol lowed the Soviet model in establishing a " two-track" system. 8 The pre­ferred track provided for the granting by the state of certificates of invention to select inventors. These certificates entitled persons or entities responsible for wor thy advances to recognition and mone­tary rewards tied to the savings realized from their inventions, whi le vesting in the state the right to exploit and disseminate those inven-

58 / Squaring Circles

tions. Alternatively, the state might issue patents vesting inventors wi th ownership and fundamental control, thereby entitling them to receive whatever royalties might be negotiated. 9

Unlike the U S S R , the P R C did not craft its two-track system in order to calm the anxieties of Western multinational enterprise. 1 0

Rather, this division resulted chiefly from the Chinese Communis t party's inwardly focused policy of national reconstruction and was designed to garner technology needed by the state while calming the anxieties of Chinese intellectuals and holders of substantial private property, whose participation was needed to rebuild the country. 1 1

Inventions made by workers outside their course of employment , by individuals in private enterprises, or by foreigners resident in China might qualify, at the inventor's choice, for either a certificate of invention or a patent, wi th the latter vesting control over the in­vention's future use, including the right to extract royalties. N e w inventions were to be state property, however, if they were made in the course of employment in state-owned enterprises, concerned national security, or "affected the welfare of the great majority of the people," such as advances in agricultural and stock species or phar­maceuticals. 1 2 Those responsible for such innovations were eligible for inventor's certificates, but did not enjoy any ongoing property interest in their inventions. Accordingly, the state could determine whether and h o w their creations could thereafter be used by other Chinese entities wi thout prior approval or the payment of a licens­ing fee.

As initially promulgated, the Inventions Regulations sought to preserve as much discretion as possible for the state. Thus , for e x ­ample, they empowered the principal administering and enforce­ment body, the Central Bureau of Technological Management of the Finance and Economic Commit tee of the General Administra­tion of Commerce , both to set terms of protection for patents and certificates of invention for periods of from three to fifteen years and to establish the rates at which holders of certificates were to be rewarded. Further control was to be exercised through provisions of the regulations that required the work ing of patents within t w o years and forbade the transfer of patent rights without the Central Bureau's permission. Subsequent supplementary measures, cu lmi­nating in the 1954 Decision on Encouraging Inventions, Technical Improvements, and Rationalization Proposals Concerning Produc-

Squaring Circles / 59

tion, preserved the Central Bureau's discretion on term, but speci­fied a fixed table of monetary rewards for certificates tied to produc­tion savings realized by use of the invention. 1 3

Notwithstanding the relatively greater attention focused on in­ventions, issues of trademark and payments for publication were also addressed during the P R C ' s formative years. In 1950, the C h i ­nese government promulgated the Procedures for Deal ing wi th Trademarks Registered at the Trademark Office of the Former G u o ­mindang Government and the Provisional Regulations on Trade­mark Registration. The former invalidated all registrations by the Nationalist government, whi le the latter provided for the establish­ment of a new registration-based trademark system. 1 4 Registration, w h i c h was available for specified foreign marks, seems to have been instituted largely to provide holders among the so-called national bourgeoisie wi th the opportunity to seek at least nominal protection for their marks. 1 5 Relatively few holders, bourgeois or otherwise, however , sought to avail themselves of this opportuni ty—whether because registration was not required, the entities administering this law were unproven, intellectual property law remained unfamiliar, or anxiety still ran high as to the political consequences of asserting such property interests.

No comparable provisional regulations were promulgated wi th respect to copyright during the early years of the P R C — o r , for that matter, for years thereafter. But , even apart from the state's efforts to assert control over the content of what was published, the topic of relations between authors and publishers was hardly neglected even in the early years of the P R C . Chinese officials and scholars closely studied the Soviet example, which at least in theory provided that authors were entitled to fixed "basic payments" for their work , based predominantly on the number of copies printed, which the Chinese termed gaofei, and had the right to prevent unauthorized alteration of their w o r k . 1 6 Enjoyment of each right, however, was dependent on approval by the state—which, in any event, controlled all authorized publishing outlets.

Bui lding on the Soviet example, the P R C first approached the question of remunerating authors as part of its broader effort to spur the intelligentsia to meet the vast scientific and intellectual needs of a state ravaged by decades of revolution and war, whi le simul­taneously maintaining careful administrative control over "publica-

60 / Squaring Circles

tion w o r k " generally. The initial official pronouncements concern­

ing such payments appear to have been made in five resolutions

passed by the so-called First State Publications Conference, held in

Beijing in October 1950 under the auspices of the Ministry of C u l ­

ture. These resolutions, which did not have the force of law, but

were clearly understood to express official policy, stipulated that

"publishing circles should respect the rights both of authors and

of [other] publishers: acts such as the unauthorized reproduction,

plagiarism, and distortion [of texts] are prohibited." 1 7 T h e y also set

forth broad guidelines meant to shape relations between authors and

publishing houses. Central among these was the indication that "the

author's remuneration shall, in theory, be based on the nature of

the w o r k [with scientific works valued more highly than those in

the humanities], the quality and quantity of [Chinese] characters,

and the print-run of the w o r k . " 1 8

Reinforcement for the general principles enunciated in the Five

Resolutions came in the early 1950's wi th the promulgation by the

State Administration of Publication and other organs of a series of

pronouncements designed to regulate the publishing industry more

closely. Mos t prominent were the 1952 Rules on the Editorial O r g a ­

nization and Work System of State Publishing Entities, which called

on the leadership of such organs to form "contracts" wi th authors. 1 9

These contracts, which were more akin to confirmations of relation­

ships authorized by the state plan than freely negotiated arm's-length

agreements, fol lowed the Soviet model and concerned the submis­

sion of manuscripts, publication, and payment . 2 0 Additional formal

efforts to address various aspects of these issues were made during

the 1950's through a series of official pronouncements, including

stipulations directed to "correction of the phenomenon of reprinting

books at wi l l , " general regulations regarding publishing, rules on

the remuneration due authors of works on literature and the social

sciences, 2 1 and sets of classified draft regulations that were never

officially promulgated concerning the rights of foreign and Chinese

authors. 2 2 Th roughou t all this, the standard for remuneration set out

in the resolutions issued in 1950 continued in force.

T h e difficulties of assessing the efficacy of any intellectual prop­

erty law regime are intensified with respect to the P R C , particularly

prior to the opening of the late 1970 's. Nonetheless, there is reason

to believe that notwithstanding efforts to appeal to intellectuals and

Squaring Circles / 61

others in the national bourgeoisie, the rules developed in the early

years of the P R C failed to respond to the changing Chinese polit i­

cal circumstances of the 1950's. Thus , even with attempts in 1954 to

rationalize the reward structure for inventions, only six certificates

of invention and four patents were issued through 1958. 2 3 At the

same time, there appears to have been much "copying and applying

[of] the technology, techniques, and products developed in more ad­

vanced countries, wi thout paying any royal t ies ." 2 4 Similarly, in the

trademark area, there was through the 1950's an "increasing use of

unauthorized trademarks." 2 5 Moreover, according to a leading C h i ­

nese authority, by "1956, the great majority of [China's] capitalist

and commercial enterprises [had] completed their socialist transfor­

mation . . . [so that] the administration of the trademark law was

looked upon as only a matter of supervision over the quality of

goods , and the question of protection of the exclusive right to use

the trademark ceased to ex is t . " 2 6 As for publication, the infringe­

ment of clearly identified proprietary works continued apace, even

by state enterprises such as Xinhua (the N e w China N e w s Agency) ,

which was the only entity authorized to distribute books . N o r did

the publishing contracts called for in the 1952 rules on editorial orga­

nization appear to exercise much deterrence—which ought not to

be surprising in v iew of the absence at that time in China of both a

basic contract law and effective means of legal redress for righting

civil w r o n g s . 2 7

By the early 1960 's, efforts were under way to recast the prelimi­

nary framework governing patents, trademarks, and payments for

authors that had developed during the first years of the P R C . These

attempts were prompted not so much by the relative ineffectuality

of the earlier rules as by overarching political considerations. Bo th

the Ant i -Right is t Movement of 1957 and the Great Leap Forward

of 1958—60 raised doubts about the appropriateness of material in­

centives for those engaged in inventive, creative, and commercial

act ivi ty. 2 8 Moreover, the so-called Socialist Education Campaign ,

launched in 1962, advocated the restoration of ideological purity

by eradicating various "anti-socialist" tendencies said to have arisen

during the 1950's, including the use of material incentives. As a con­

sequence, in what became k n o w n as the struggle between "redness"

and "expertise," scientists and other intellectuals were berated for

placing professional development ahead of the Communis t party's

62 / Squaring Circles

objectives and were accordingly required to devote substantially more time than before to political study and manual labor. 2 9

Reflecting the political tenor of the times, China 's fledgling intellectual property laws were amended during this period to re­duce their stated concern wi th property rights and their reliance on material incentives. On November 3, 1963, the State C o u n c i l 3 0

supplanted the Provisional Regulations on the Protection of Inven­tion and Patent Rights wi th t w o sets of permanent regulations— the Regulations to Encourage Inventions and the Regulations to Encourage Improvements in Technology. 3 1 Al though not a single patent appears to have been issued during the preceding six years, these new sets of regulations struck patent protection from the law and specified that henceforth inventions and improvements in tech­no logy were to be the exclusive property of the state. 3 2 Indeed, even the system of certificates of inventions, which had not established property rights but only entitled inventors to receive payments tied to the savings realized from their work , was discontinued.

In place of the prior system of patents and certificates of inven­tion, the regulations promulgated in 1963, in the words of the prin­cipal Communi s t party newspaper, Renmin ribao (People's Dai ly) , sought to "encourage scientists and technicians, as well as staffers and workers generally, to make inventions and technical improve­ments" by declaring individuals and entities responsible for such advances to be eligible for both "material" and "honorary" awards . 3 3

Consistent, however, wi th the notion that "in g iving awards, pol i ­tics should be in command, extensive ideological work carried out, and the principle of combining honorary awards wi th material awards maintained," the material awards provided by the new regu­lations called for far lower payments than the previous schedules of rewards, which had been tied to a fixed scale of "bonuses." This new monetary recognition was to be complemented by a set of hon­orary rewards, ranging from exhortational certificates and banners to application of one's name to the invention made and free trips to workers ' resorts. 3 4 Even with cutbacks in material incentives, there were, according to the Guangming ribao (Enlightenment D a i l y ) , 3 5 still "people thinking seriously of fame and wealth for themselves . . . [who looked] upon knowledge and technique as their private prop­erty, made a monopoly of their technical knowledge and refused to exchange their experiences in research. Having in mind the 'corner-

Squaring Circles / 63

ing of the market, ' they are unwill ing to disseminate their talent and sk i l l s . " 3 6

T h e retrenchment was not limited to inventive activity. On Apr i l 10, 1963, the State Counc i l replaced the Provisional Regula­tions on Trademark Registration wi th Regulations Governing the Con t ro l of Trademarks. 3 7 Unlike the Provisional Regulations, under wh ich exclusive rights in marks could be obtained, the new regu­lations made no mention of "rights" or of "exclusive use." Instead, their declared purpose was "strengthening the control of trademarks and making enterprises guarantee [baozheng] and improve the quality of their products" 3 8 —object ives not otherwise easily attainable in a society that lacked significant consumer protection law and re­lied heavily on planning rather than market forces. In keeping wi th this emphasis, the new regulations and their implementing rules required that all trademarks be registered, that registration applica­tions contain statements of the quality of the subject products, and that the General Administration of Commerce assume oversight re­sponsibility. T h e General Administration, as a result, was to have the authority both to receive complaints about goods that failed to meet their supposed standards and, where such complaints proved accurate, to cancel registrations. 3 9

There were, of course, no comprehensive promulgated provi ­sional copyright regulations to be revised. But in keeping wi th the move to curtail such "rights," the move that had commenced in the late 1950's to reduce gaofei intensified. 4 0 In March 1961, the M i n ­istry of Cul ture issued a circular specifying that the prior practice of remunerating authors in part according to the number of books printed or reprinted was to be eliminated. 4 1 In its place, authors were to receive more modest payments, based on the number of characters a w o r k contained and its "quality." The criteria for the de­termination of "quali ty" were left unspecified, but they presumably mirrored the Communis t party's political agenda.

As substantial as was the redirection of Chinese intellectual prop­erty law of the early 1960 's, it paled in significance relative to the changes wrough t by the so-called Great Proletarian Cultural R e v o ­lution, which commenced in 1966. 4 2 In the effort fundamentally to reshape Chinese society, the realm of acceptable discourse was even more sharply curtailed than had previously been the case. 4 3 Thus , for example, from 1966 to 1971, all theater was banned save for

64 / Squaring Circles

eight model revolutionary "operas." 4 4 Concomitantly, the profes­

sional endeavors of virtually all scientists, writers, and other intel­

lectuals were disrupted, and large numbers of them were sent to the

countryside, imprisoned, or subjected to physical abuse. The formal

legal system was denounced as following a "black line" and being

inherently and hopelessly reactionary, 4 5 while many informal dis­

pute resolution processes were either abandoned or politicized to a

point of ineffectuality. 4 6

In this climate, even the revised framework of the early 1960's for

the regulation of intellectual property was not immune from attack.

N o t only did the state cease the reduced payments authorized by

the 1963 Regulations on Inventions, 4 7 but individuals increasingly

proved unwil l ing to acknowledge their personal role in inventive

activity. A Xinhua release of October 1966 declared, for example:

In China's major inventions, it is impossible in many cases to establish w h o

are the inventors, because the combined effort of so many people and so

many units are involved, and no one claims the credit. No one has come

forward, for example, to claim an award or any patent rights for any impor­

tant discoveries and inventions made during the past six years by the people

of the D a q i n g oil f ie ld . 4 8

Efforts to maintain the compulsory trademark registration sys­

tem established in 1963, which had led to the granting of some

2,000 to 3,000 marks a year, ground to a halt. Moreover, the very

idea of trademarking goods, even to assure quality for consumers,

was lambasted as a concession to a commodity economy and, as

such, improper for the new China . 4 9 Indeed, as Mark Sidel indicates,

"thousands of similar and dissimilar goods" were sold under such

ideologically pure, but non-identifying labels as "Red Flag," "East

Wind," and "Worker-Peasant-Soldier," wi th the result that quality

varied widely, massive unauthorized copying occurred, and con­

sumer confusion was rampant. 5 0

With acceptable discourse greatly narrowed, many authors found

their works regarded as no longer suitable for distribution, 5 1 making

contractual protection irrelevant. Those authors whose works were

deemed wor thy of publication were unable to secure protection in

any case, since the state itself freely reproduced or tolerated the

reproduction of such works without obtaining the permission of

the author or original publisher, providing any remuneration, or,

Squaring Circles / 65

in some instances, even acknowledging authorship. 5 2 As was asked during the Cultural Revolution, "Is it necessary for a steel worker to put his name on a steel ingot that he produces in the course of his duty? If not, w h y should a member of the intelligentsia enjoy the privilege of putting his name on what he produces?" 5 3

T h e Cultural Revolution is said not to have ended until the arrest of the Gang of Four in the autumn of 1976, but by 1975 Z h o u Enlai, Deng Xiaoping , Hua Guofeng, and others in the leadership w h o were disturbed by the s low pace of China's developmental efforts had already begun to call for a program of "Four Modernizat ions" aimed at enabling China to reach world-class strength in agricul­ture, industry, science and technology, and military matters by the end of the century. 5 4 By 1977, these objectives took center stage as D e n g and others w h o had earlier been purged for taking a "prag­matic" approach to building Chinese socialism in the late twentieth century assumed power.

Bel ieving the promotion of scientific and other intellectual w o r k to be crucial if the nation were to make up for the decade of devel­opment and training lost to the Cultural Revolut ion, 5 5 China 's new leadership launched a series of measures designed to enhance the position of intellectuals and facilitate their endeavors. 5 6 Part of this under taking—which included a revitalization of higher education, the reinstitution of academic examinations for university entrance, and the delivery of florid speeches praising the role of intellectu­als in socialist reconstruct ion 5 7 —was directed toward intellectual property law. In keeping wi th the approach taken generally toward rebuilding China 's self-decimated legal system, 5 8 efforts were made from 1977 on to restore the broad framework for the regulation of intellectual property that had been in place prior to the Cultural Revolut ion. Thus , wi th respect to science, the Chinese government in 1978 reissued the 1963 regulations that provided both monetary and honorific rewards for inventors. 5 9 A year later the state issued Regulations for the Reward and Encouragement of Natural Sc i ­ences, which essentially sought to extend to the natural sciences the basic principles laid d o w n in the 1963 regulations. 6 0

Similar efforts to return to the status quo ante of 1963 were made concerning trademarks. The newly reconstituted State General A d ­ministration for Industry and Commerce (SAIC) , the China C o u n ­cil for the Promot ion of International Trade ( C C P I T ) 6 1 and other

66 / Squaring Circles

organs once again relied on the Trademark Regulations of 1963. 6 2

No less important, these organizations strove to reestablish both

China 's system of internal trademark regulation and its international

trademark relations, each of which had suffered during the Cultural

Revo lu t ion . 6 3 In regard to copyright, the issuance in 1977 by the

State Administration of Publication of the Trial Circular Concerning

Basic and Supplemental Payments for N e w s Publications revived, 6 4

at least in name, the levels of compensation to which authors had

been entitled before the Cultural Revolution. Soon thereafter, these

were superseded by the Provisional Regulations on Basic Payments

for B o o k s , which called for the granting of payments at a level

consistent wi th those made prior to the Great Leap Forward. 6 5

With these measures in place, the United States and the P R C

were able in 1979 to conclude a trade agreement, said by the Carter

administration to satisfy the requirements of the 1974 Trade Ac t for

pacts wi th socialist nations. 6 6 Under the agreement, each side indi­

cated that it "recognize[d] the importance of effective protection of

patents, trademarks, and copyr igh t s" 6 7 and pledged itself to "take

appropriate measures under [its] . . . laws and regulations and wi th

due regard to international practice" to accord protection to the

works of citizens of the other nation. 6 8

Having reestablished as interim measures the broad outlines of

the pre—Cultural Revolution systems for inventive activity and the

labeling of products, the leadership set in motion processes designed

to generate the legal framework needed to undergird the scien­

tific, technological, and economic advances that they hoped China

w o u l d make. In 1978, the State Science and Technology C o m m i s ­

sion, wh ich was reestablished that year at the supraministerial level

to oversee "general policy for scientific and technological develop­

ment," was directed to work up long-range policy on inventions. 6 9

A year later, the S A I C was charged with similar responsibility for

trademarks, and in the early 1980's, a special copyright committee

was formed. 7 0

T h e task confronting these various entities was a daunting one.

Individuals lacking direct experience in intellectual property, as that

discipline was understood beyond the socialist bloc, were asked to

devise rules capable of nurturing an economy undergoing a dynamic

and essentially unprecedented transition without transgressing the

C o m m u n i s t party's uncertain and oft-shifting political line. In so

Squaring Circles / 67

doing, they could not avoid, at least implicitly, confronting funda­mental and difficult questions about the character and direction of Chinese socialism and, indeed, about the sources of ingenuity and motivat ion more generally.

T h e debates concerning the drafting of a patent law, which were among the most intense concerning economic legislation during the first decade fol lowing M a o Zedong ' s death, illustrated both the complexi ty of this particular undertaking and the tensions that char­acterized Chinese law reform efforts of this era.

Proponents of a patent law protective of ownership interests placed primary emphasis on its likely salutary economic effects, 7 1

arguing that China needed to smash the "iron rice b o w l " (tie fan-wan) mentality of the Cultural Revolution that rewarded all equally, irrespective of the quality of their work , and that was n o w seen as having stifled initiative and held back the nation. 7 2 This could only be accomplished, they contended, by adopting a system that p ro­vided meaningful material incentives. By permitting those w h o had so contributed to reap the fruits of their labors, a patent law wou ld also, it was suggested, allow China's most innovative organizations to accumulate additional capital and strengthen their management, wh ich w o u l d spur further inventive activity and help make up for time lost to the Cultural Revolut ion. 7 3 Establishment of a patent regime, requiring that patents be openly published in a sys tem­atic fashion, might also create a greater interchange of information among Chinese scientists. This interchange would likely provide fuller access to technical advances than had been possible when scientists feared that disclosure might jeopardize whatever modest rewards were available. 7 4

A l t h o u g h stressing domestic considerations, proponents of a patent system did not ignore the benefits that might accrue to China internationally. T h e y recognized that the early years of the "open" pol icy had not resulted in the transfer to China of foreign tech­n o l o g y of the quality and quantity desired by the leadership. 7 5 Aware that foreign anxiety over the absence of an effective framework for intellectual property protection was one principal reason for this shortfall , 7 6 scholars and officials, including such we l l -known figures as Zhang Y o u y u and Ren Jianxin, 7 7 contended both in domestic pub­lications and in media aimed toward foreign distribution that China needed to institute a patent system "to import advanced technology

68 / Squaring Circles

for acceleration of the four modernizations." 7 8 Such a system wou ld not only allay foreigners's fears about the disposition in China of their technology, but might also make it possible for China to par­ticipate in international exchanges of patent application information, thereby expanding the range of data available to Chinese scientists. 7 9

Apart from fostering the transfer to China of sorely needed for­eign technology, those in favor of a patent system further contended that it wou ld also generate other benefits internationally. Given, as one proponent put it, that approximately 150 other nations, includ­ing many socialist and developing nations, already had patent laws, the establishment of law in this area would serve to reassure even those potential foreign investors unconcerned about technology transfer that China was serious about constructing a legal system conducive to international business, whi le also generally enhanc­ing China 's image among the family of nations. 8 0 Adopt ion of a patent law meeting international standards would also enable China to adhere to the Paris Convent ion and so attain better protection abroad for Chinese technology. 8 1 Leading Chinese publications were suggesting that the failure to obtain patent protection abroad for Chinese advances had already resulted in the appropriation of C h i ­nese inventions by foreigners. 8 2 And, reflecting the optimism felt by many in leadership and scientific circles about the pace of Chinese technological development, it was argued that the need for protec­tion abroad of Chinese scientific advances was likely to become far more intense in the years ahead. 8 3

M a n y nonetheless strongly opposed adoption of a patent sys­tem as intrinsically antithetical to socialist principles and inherently corrupt ing. 8 4 T h e granting of such private property rights, they ar­gued, might harm national development by giving a few individuals control of important technologies, enabling them either to profit unjustifiably or to deny access to vital information altogether.

Opponents of a patent system also expressed concern about the Western "literary-industrial complex," which some believed might patent so broadly in China as to stifle the development of indigenous science and so leave the nation dependent on the outside wor ld eco ­nomically, scientifically, and militarily. It wou ld be foolhardy, they argued, to risk draining China 's limited foreign exchange reserves to pay royalties—especially when much of the same technology could be acquired at no cost, albeit without authorization. In addition,

Squaring Circles / 69

some contended, the openness a patent system provided might even enable foreign entities to make off wi th the latest Chinese innova­t ions. 8 5

Given h o w sharply the lines of debate were drawn, it took no less a personage than Deng Xiaoping to determine that China should adopt a patent law intended to endow inventors with rights in their innovations without undercutting their responsibilities to the state. 8 6 With this decision, the drafting committee turned its at­tention to the question of how to construct such a law. Resuming efforts under way even prior to the committee's formal initiation to identify the full range of options, delegations were dispatched to major industrial nations with differing patent systems (including the United States, West Germany, and Japan); to socialist states be­lieved by the Chinese to be relatively prosperous (such as Romania and Yugoslavia); and to the principal international bodies concerned wi th intellectual property issues (including the World Intellectual Property Organizat ion [WIPO] and the United Nations Educa­tion, Science and Cultural Organizat ion) . 8 7 The full patent laws of some 35 jurisdictions were translated and those of more than 100 other nations summarized, while the legislation and practice of the Nationalist Chinese, both on the mainland prior to 1949 and on Tai­wan since, were carefully, if quietly, scrutinized, as was the experi­ence of H o n g K o n g . 8 8 N o r was attention solely directed externally, as the committee "solicited the views of cadres in factories, scien­tific research institutes, universities and government agencies ." 8 9 In the end, the drafting committee spent more than five years, during which it went through some 20 drafts prior to finally producing a b i l l—only to have the National People's Congress ( N P C ) take the unusual step of amending the legislation before it passed the Patent Law on March 12, 1984. 9 0

The Patent Law's passage was widely heralded, both at home and abroad, as signaling the dawn of a new era in Chinese economic and legal development. 9 1 In celebrating the creation of a novel property right, however, Chinese commentators eager to spur the infusion of technology and foreign observers flush with the sense that China had at last come to see the wor ld their way failed adequately to heed the degree to which the law's drafters had taken seriously Deng X i a o -ping's injunction and carefully qualified the very rights they were establishing. As was the case with respect to Chinese law reform in

70 / Squaring Circles

general, far too many individuals, consciously or otherwise, sub­

scribed to a unitary vision of legality, presuming that adoption of a

particular legal form in China would yield results there comparable

to those produced by similarly denominated laws in the industrial­

ized wor ld . Consequently, they were oblivious both to the ways in

wh ich that form had been altered to meet Chinese objectives and to

the further challenges that the Middle Kingdom's historical legacy

and current conditions would pose.

In fact, in the Patent Law, as wi th much of the body of law

produced throughout the 1980's, the P R C sought to articulate a

"socialist legality wi th Chinese characteristics" that strove to adapt

foreign legality to Chinese circumstances and so was a less drastic

departure from prior practice than has generally been assumed. N e w

rights, drawn principally from foreign models, were to be estab­

lished, but their scope was to be sufficiently circumscribed so as

not to conflict wi th the national interest as understood by central

authorities w h o had just begun to scale back their role in the indus­

trial sector and had little intention of doing so in the political arena.

Stated differently, as concerned both Chinese and foreigners, there

was rather less than met the eye to the rights proffered in the new

Patent L a w — e v e n as that law accorded each separate treatment, in

so doing exemplifying yet another prominent feature of Chinese

legality from imperial days through the initial post-Cultural R e v o ­

lution law reforms.

A l though the 1984 law provided for the granting of "patent

r ights" to persons or entities wi th "invention-creations" meeting

the requisite standards of novelty, inventiveness, and practicality,

it nonetheless reflected uneasiness at the introduction of a form of

private property fundamentally new to China. The law and its

concurrently issued regulations were structured, albeit subtly, so

as to confine its seemingly broad grant of rights within tolerable

bounds—on the one hand making it difficult for individuals to

secure rights through which they might extract monopoly rents,

whi le on the other holding forth the promise of material rewards in

order to spur individuals to be innovative. This was most readily

apparent in the law's direction of Chinese away from invention

patents, wi th their fifteen-year term, and either toward utility model

patents, wh ich offered lesser rights and a five-year term, or toward

monetary rewards in lieu of any grant of r ights. 9 2 Article 6 of the new

Squaring Circles / 71

law specified that only entities could apply for patents in "service invention-creations," which were defined broadly elsewhere to en­compass anything made on or in relation to one's j ob , using materi­als or data from one's w o r k unit (danwei), or within a year of leaving one's unit . 9 3 Given the centrality in the mid 1980's of one's danwei— which typically provided housing, welfare benefits, and a social con­text, as wel l as employment , for industrial workers 9 4 —and given the difficulty at that time of independently securing sophisticated equip­ment or sizable capital, this effectively precluded Chinese nationals from securing invention patents in their o w n names. 9 5 Instead, per­sons responsible for "service invention-creations" were to receive a "money prize" from their unit, whi le individuals carrying out inventive activity apart from their danwei might apply for a utility model or alternatively forgo seeking such rights in favor of a mone­tary reward under the 1963 Inventions Regulations, which had been reissued for this purpose in 1982. 9 6

T h e limits on rights potentially available to Chinese were also evident elsewhere in the Patent Law. Article 29, for example, p ro ­vided foreigners w h o had filed patent applications abroad wi th a twe lve-month priority period within which to seek protection in China , but made no similar concession for Chinese. The law's p ro ­visions on compulsory licensing similarly disadvantaged Chinese. Art ic le 14 vested the State Counci l and provincial governments wi th the authority to compel state entities to license patents they held, subject only to the requirement that such a step be taken "in accor­dance wi th the state plan" and that a fee, to be determined by the state, be paid. The situation for collectives or individuals was hardly any better, as Art icle 14 empowered pertinent governmental units to order the licensing of any patent they might o w n of "great s ig­nificance to the interests of the state or to the public interest . . . [that might be in] need of spreading and application." Patents owned by foreigners or by Sino-foreign joint ventures, on the other hand, were to be subject to compulsory licensing only if the patentee failed wi thin three years of receiving the patent to "make the patented product, or use the patented process in China, or otherwise to au­thorize other persons" to do so . 9 7

On its face, the Patent Law ironically gave the appearance of reprising treaty port days in granting greater legal privileges to for­eigners and their local partners than to other Chinese. Arguably,

72 I Squaring Circles

this concession can be explained as emanating from the leadership's belief that foreigners would not transfer advanced technology to China were their rights as circumscribed as those accorded Chinese. Nonetheless, this bifurcation, and others created in the course of law reform, not only ran counter to the state's professed move away from a planned economy toward one in which domestic and foreign interests wou ld presumably be competing on an economic basis, but also threatened to entrench the latter over the former, coming as they did at a highly formative stage in the growth of a Chinese market . 9 8

Closer scrutiny of the Patent Law and its implementing regula­tions reveals, however, that while spared certain of the disadvan­tages their Chinese counterparts may have faced, would-be for­eign patentees suffered others largely peculiar to their situation and shared still others wi th their local brethren. Thus , for example, al though the exclusion from patent coverage of chemical, pharma­ceutical, or alimentary inventions by Article 25 nominally applied equally to everyone, in fact, foreigners had by far the most to lose in these areas, in which, typically, inventive steps were relatively easy to discern and copy, and in which, therefore, legal protection has been particularly valuable, according to empirical studies conducted in an American sett ing. 9 9 M u c h the same point might be made wi th regard to Article 11 of the 1984 law, which in failing to protect pro­cess patents (which address the processes through which products are made) effectively foreclosed the possibility of halting the impor­tation into China of products made in third countries that do not protect processes, while sharply reducing the likelihood of discern­ing infringement within China. A similar logic applied wi th respect to the limitation in Article 45 of the term for invention patents to 10 years, which worked to the particular disadvantage of foreign parties, given that their applications, as the law presumed (and prac­tice has borne out) typically concerned technology of far greater value than their Chinese counterparts. And the law's requirement, in Art ic le 19, that Chinese and foreigners alike work through autho­rized patent agents was less evenhanded than it may have appeared, given the relative unfamiliarity of most foreigners wi th the Chinese scene (and their concomitant greater reliance on agents whose inde­pendence, especially as regards infringement issues, remains to be proven) . 1 0 0 Moreover , unlike their Chinese counterparts, w h o were

Squaring Circles / 73

free to choose from among thousands of agents, foreigners were

limited initially to one and then subsequently to less than a handful

o f agencies.

Whatever singular difficulties patentees from both China and

abroad had to face, each was also confronted with the conundrum

of rights carrying little in the way of legal remedies. In a man­

ner typical of the first decade of post-Cultural Revolution law re­

form from the Consti tut ion down, the Patent Law of 1984 had far

more to say about the rights being provided than about the means

through which individuals might vindicate them. To be sure, the

law, at Art icle 60, provides that patentees seeking to protect their

rights might "directly institute legal proceedings in [or take appeals

to] the people's court." Nonetheless, its overall thrust is toward

a largely unbounded administrative resolution of problems—in a

manner more in keeping wi th the model of a centrally directed econ­

o m y than much of the publicity surrounding the promulgation of

the Patent Law wou ld have led one to believe. Thus, for example,

Art icle 65 of the law provides that "where any person usurps" the

rights or interests of another, "he shall be subject to disciplinary

sanction by the entity to which he belongs or the competent au­

thority at the higher level." Neither Article 65 nor any other provi ­

sion of Chinese law, however, either clearly articulates procedures

pursuant to which administrative resolutions of this type are to be

reached or indicates h o w such entities and authorities, which pre­

sumably are not versed in the intricacies of patent doctrine, are to ad­

dress the very types of questions for which the Patent Law elsewhere

requires the use of authorized patent agents. Without denigrating

the value of non-lit igious modes of dispute resolution, one is hard

put to imagine that in the China of the mid 1980 's—with its l im­

ited labor mobili ty and institutional rivalries—individuals wou ld

strenuously assert their rights either against their superiors before

their c o m m o n employer or against outside infringers when adju­

dicatory authority was vested with the unit for which the accused

worked .

If Art icle 65 is a particular constraint on remedies potentially

available for Chinese, there is scant comfort for foreigners in the

Patent Law's remaining remedies. In a manner reminiscent of P R C

approaches toward legality, at least through the mid 1980's, the

Patent Law largely limits itself to administrative or criminal reme-

74 / Squaring Circles

dies, each of which leaves principal remedial powers in the hands of officialdom. Little is provided in the way of civil remedies, which, presumably, wou ld vest more discretion with patentees. Thus , the law authorizes the Patent Office to order infringers to "stop the in­fringing act and to compensate for the damage" and calls for the prosecution, under the Criminal Law, of any person w h o "passes off the patent of another," while its implementing regulations specify the scope of administrative fines. 1 0 1 As ill defined as these provi­sions are, and as uncertain as the enforcement of such administrative orders may be, the Patent Law offers no explicit counterpart on the civil side. In fairness, one presumes that the Patent Law's draft­ers were aware that the P R C ' s initial Law on C iv i l Procedure gave courts a residual authority to issue injunctions, impose fines, and require compensation. That general power, however, hardly sub­stitutes for the statutorily set damages that virtually every sophis­ticated patent system has instituted in order to cope wi th the fact that vict ims of infringement wi l l rarely be in a position to k n o w wi th any precision how much damage they have suffered. N o r have the generic remedies of the provisional or final laws on civil proce­dure or subsequent pronouncements made by the Patent Office or the Supreme People's Cou r t concerning patent disputes contained the particular injunctive powers, provisions for reimbursing lit iga­tion costs, or other special measures that many other jurisdictions have found helpful in establishing effective civil remedies for patent infringement. 1 0 2

A l t h o u g h the 1984 Patent Law was a centerpiece of the P R C ' s early pos t -Cul tura l Revolution efforts to use law to foster economic change, the tensions that marked it had their counterparts in other key undertakings in the intellectual property area. As wi th patent, the Trademark Law of 1982 was widely heralded by both Chinese and foreign observers as representing a clean break from previous efforts to regulate the area in question. What was less thoroughly understood, or, at least, less thoroughly acknowledged at the time, was the extent to which the 1982 Trademark Law, like the Patent Law, was concerned wi th more than the establishment of private ownership rights and so tempered such rights even as they were being created and publicized.

To be sure, the 1982 Trademark Law did offer protection "for the exclusive right to use a trademark" but it created such rights

Squaring Circles / 75

in significant measure for the part they were perceived as capable of playing in fostering the "development of the socialist market e c o n o m y . " 1 0 3 T h r o u g h the early years of post-Cultural Revolut ion law reform, the P R C lacked much of the formal legal framework needed to define and structure emerging market forces. 1 0 4 N o r was such a framework perceived as likely soon to be forthcoming, given the enormous challenge posed to legislative drafting w o r k by such politically vexing questions as that of how to deter anticompetitive and other unfair trading practices in an economic system still largely characterized by powerful and relatively unresponsive state-owned enterprises. Trademark was looked to, at least by some in China 's leadership, as providing an interim device for bringing order to a fledgling market. So it was that the law directed that trademarks were to be used to "exercise supervision over the quality of goods and . . . stop any practice that deceives consumers ." 1 0 5 Toward this end, the massive bureaucracy of the S A I C , charged wi th adminis­tering the law, was empowered to cancel marks "where manufacture is rough or poor, or where superior quality is replaced by inferior quality" and to criticize, fine, or refer violators of the law for more serious punishment. 1 0 6 A n d so it was that although the Patent Law was to deny producers of medicines patent protection, the Trade­mark Law's implementing regulations sought to use trademark as a p roxy for legislation on pharmaceuticals by requiring that all such producers "use registered trademarks" whether they wished to or not, and in their trademark applications include "papers . . . from the health department . . . approving [the drug's] product ion ." 1 0 7

As wi th patent, trademark rights and remedies were more con­strained than might initially have seemed to be the case. To begin wi th , the law denied protection to service marks, collective marks, certification marks, and defensive marks, as well as to trademarks falling into such undefined categories as "being detrimental to socialist morality or customs or having other undesirable influ­ences," "promoting goods in an exaggerated or deceptive manner," or "being ethnically discriminatory." 1 0 8 It also diminished the likely value of those marks eligible for registration by requiring that con­trary to the practice of many nations, applications be filed on a "per mark, per class" basis, rather than on a multiclass basis—thereby both making it more difficult and expensive for individuals to secure protection in multiple classes and increasing the possibility that per-

76 / Squaring Circles

sons acting in bad faith might register marks generated by others.

T h e potential for occurrence of the latter problem—particularly

wi th respect to we l l -known foreign marks—was, in turn, further

exacerbated by the law's rigid adherence to a first to file rule and its

l imited procedures for opposing or seeking the cancellation even of

registrations made in bad faith, as wel l as the narrow definitions of

class generated by the vagaries of Chinese distribution channels. 1 0 9

Remedies were also problematic in the 1982 Trademark Law. As

was to be the case wi th patent, the law's emphasis was on the ad­

ministrative resolution of problems, notwithstanding its provision

of a right of access to the people's courts. But as wi th patent, the law

and its implementing regulations failed to articulate in meaningful

detail h o w the competent administrative authority was to proceed,

the specific actions it or the courts might take, or h o w any such ad­

ministrative actions were to be enforced. And those sanctions that

the law provided were of modest severity relative to both Chinese

law generally and international practice. 1 1 0

T h e difficulties inherent in generating patent and trademark laws

that might create new forms of property without compromising

basic state interests were all the more evident in efforts to develop

a copyright l a w — w h i c h took "a road as tortuous as that of C h i ­

nese intellectuals," according to Jiang Ping, a noted civil law spe­

cialist and head of the Commit tee on Legal Affairs of the Standing

Commi t t ee of the N P C in the late 1980 's. 1 1 1 Commenc ing on in­

structions from Deng Xiaoping himself soon after the conclusion

of the 1979 U . S . - P R C trade agreement, 1 1 2 Chinese officials in effect

picked up where they had left off prior to the Cultural Revolut ion

in endeavoring to assimilate artistic output into the state plan. T h e

initial result was a series of regulations and related measures, de­

veloped (in many instances for internal circulation only) between

1980 and 1986, that addressed the production of both writ ten and

audiovisual materials, covering matters ranging, for example, from

the submission of manuscripts to publication to remuneration. 1 1 3

Typical of these were the 1984 Trial Regulations Concerning Basic

Payment for Book-Wri t ing , which divided the universe of Chinese

authors, editors, translators, proofreaders, indexers, and other lit­

erary personnel into nine categories and fixed firm boundaries for

the payment of each such group, even d o w n to the number of free

copies that one was to receive. Thus , for example, indexers were

Squaring Circles / 77

to receive 10 to 20 yuan per 1,000 characters, while translators were

only to receive from 4 to 14 yuan per 1,000 characters. For all their

specificity about the relative wor th of indexers and translators, h o w ­

ever, these pronouncements rarely spoke of illegal copying and even

less often of "copyright"—and then typically in the context of list­

ing categories of potentially subversive materials (especially in the

audiovisual area) that ought not to be disseminated, rather than wi th

reference to the protection of private r ights. 1 1 4

T h e "tortuous road" took yet another turn wi th the promulga­

tion of the General Principles of the C iv i l Law in 1986. 1 1 5 Art icle

94 of the General Principles provides the P R C ' s first major public

recognition of copyright , albeit in the most general of ways . " C i t i ­

zens and legal persons," it indicates, "shall enjoy rights of authorship

(copyright) and shall be entitled to sign their names as authors, issue

and publish their works and obtain remuneration in accordance wi th

the l a w . " 1 1 6 T h e operative terms, however, are not defined and no

more is said in the General Principles about copyright. As a conse­

quence, the authorities had little more than Communis t party policy

and their o w n sense of fairness on which to rely in endeavoring to

resolve the 500 court cases and 400 administrative actions touching

on authorship that arose during the four and a half years between

the promulgation of the General Principles and the effective date of

the C o p y r i g h t Law. In the words of t w o Chinese commentators, the

"lack of relevant laws . . . made things difficult for the courts and it

took years for some cases to be c losed." 1 1 7

T h e debates surrounding both the inclusion of Article 94 in the

General Principles and the subsequent development of the C o p y ­

right Law raised many of the same issues that marked debates over

the Patent Law. 1 1 8 Notable among these were the appropriateness of

establishing new private property interests in what was still said to

be a socialist society, China 's capacity to meet royalty payments de­

nominated in hard currency, and the extent to which at least formal

protections for intellectual property rights were needed to spur

the further transfer of advanced technology. In copyright, as wi th

patent, these concerns were not amenable to genuine resolution.

These tensions were reflected in the drafting process. Termed "the

most complicated" in the P R C ' s history by N P C Vice President

Wang Hanbin, 1 1 9 it produced more than 20 drafts of a copyright law,

many of which differed substantially as power shifted among indi-

78 / Squaring Circles

viduals falling roughly into three major groups. Proponents of a law approximating international standards—drawn chiefly from among officials concerned about the disappointingly low quality of much of the technology that China had received from abroad through the 1980's, domestic software producers, and assorted other entre­preneurs and individuals hopeful of using this law as a device for fostering a more general openness—insisted that a China aspiring to be competit ive internationally had no alternative, however pain­ful it might be in the short term. Opponen t s—who ranged from politically or thodox central government officials concerned about creating new rights, particularly prior to the completion of a Publ i­cations Law intended to reinforce control over print media, to i m ­portant personnel in educational circles and other spheres of society heavily reliant on the unauthorized use of foreign copyrighted ma­terials—took a decidedly more skeptical stance. A n d yet a third group contended that China should commit herself to copyright more in name than substance, with the objective of buying time gradually to adapt to the inevitability of adherence to international standards. 1 2 0

As wi th patent and trademark, and reflecting the divisions ev i ­dent during its drafting, the law on copyright that the N P C finally promulgated on September 7, 1990, provided an appreciably more curtailed grant of rights than suggested by its rhetoric and much of the initial commentary, both at home and abroad. 1 2 1 For e x ­ample, al though Article 16 specified that works "created by citizens in carrying out assignments given to them by legal persons or non-legal person un i t s" 1 2 2 generally belong to the author, closer in­spection highlights an array of reasons for v iewing this seemingly expansive statement of rights in a more markedly narrow light. This is evident, from an economic viewpoint , beginning wi th Article 16 itself, which indicates that an author's work unit—in a nation in wh ich most authors had been and still were "cultural worke r s "— shall have "the priority to exercise their copyrights within their busi­nesses." Nor , under this law, was the work unit the only entity free to use an author's creation. The law's open-ended fair use provi­sions, inter alia, give "state organs," which at the time pervaded much of Chinese political, economic, and social life, the right to make unauthorized use of copyrighted materials "to execute official duties," wi th only the vaguest of protective caveats about not preju-

Squaring Circles / 79

dicing "wi thout reason" the rights of owners . 1 2 3 And , perhaps most important economically, the continuation, wi th but modest alter­ation, of the so-called gaofei system meant that even those authors able to enjoy their economic rights were essentially limited to re­ceiving no more than the rather modest and uniform levels of c o m ­pensation set by the state, irrespective of the individual merit of their w o r k . 1 2 4

If the Copyr igh t Law is restrictive in its grant of economic rights, it is no less so wi th regard to the spectrum of political v iews it tol­erates. Unwi t t ing ly echoing historic efforts to use copyright as a means of l imiting the spread of heterodox ideas, the law provides that "works prohibited by law to be published and disseminated" are not entitled to copyright protection, while also specifying that "copyright holders shall not violate the Consti tut ion and the law, or infringe upon the public interest, whi le exercising their copy­r igh t s . " 1 2 5 A l though the limits of this provision are intentionally not spelled out, the debate surrounding the drafting of both the C o p y r i g h t Law and the Publications Law indicates that the provi ­sion is intended to "take account of ideological considerat ions" 1 2 6

and ban items inconsistent wi th the Four Cardinal Principles, as wel l as those that "split the unity of minority nationalities, advocate theft, pornography, violence, and arson, or other criminal activities, and . . . are against Cons t i tu t ion ." 1 2 7 N o r were these idle words , given the power that the State Administration on Press and Publi­cations (SAPP) was capable of exercising in this area—both directly through its w o r k as state censor and its control over access to shu-hao (the "book number" that must be secured before publication is permitted) and indirectly as the organ from which the State C o p y ­right Administrat ion ( S C A ) had emerged and on which it remained dependent . 1 2 8

Mirror ing a bifurcation evident in the Patent Law, the Copyr igh t Law endeavors to satisfy the demands of the international market­place by offering foreigners the prospect of terms more favorable than those available to Chinese. Unlike their Chinese counterparts, foreign authors are free to earn whatever royalty they can negot i ­ate—or, as the law puts it more indirectly, "where a contract con­tains additional agreements, payment for the use of works may also be made according to the contract ." 1 2 9 And efforts were made early on to assure foreigners that the restrictions of Article 4 regarding

8o / Squaring Circles

publications w o u l d not apply as rigidly to "acceptable works from abroad ." 1 3 0

As wi th patent, however, the position accorded foreign nationals was less favorable than it might have seemed. This was explicitly borne out, for instance, in Article 2 of the law, which specified that whereas the works of Chinese citizens were protected "whether published or not," those of foreigners had first "to be published" in the P R C absent a treaty creating more extensive r ights . 1 3 1 It was further suggested by the vesting of responsibility for administering the law in the S C A . N o t only was the S C A new, understaffed, and weak relative to other governmental agencies, 1 3 2 but it drew many of its early personnel from and continued closely to be linked wi th the S A P P . Given that the S A P P ' s principal contribution to interna­tional copyright , apart from exercising its censorship powers, had for decades consisted of overseeing the mass production by Chinese publishers of unauthorized copies of foreign copyrighted materials, one may perhaps be excused from wondering whether such appar­ently evenhanded provisions of the law as those on fair use might , in fact, have a disproportionate impact on foreign parties. A n d other advantages seemingly granted foreigners by the law—such as the freedom to take whatever royalty one might negotiate—were in turn diminished by the limits that China's foreign exchange regime imposed on the capacity of entities that did not earn their o w n for­eign currency—such as schools, libraries and the l ike—to secure such funds, whether to purchase original copies of materials, pay royalties for copies made, or for any other end. 1 3 3

The Copyr igh t Law's provisions on remedy are consistent wi th those of the patent and trademark laws. Al though the law explicitly provides parties wi th the right to proceed directly to the people's courts, its emphasis is on administrative solutions. Thus , for e x ­ample, administrative remedial measures, such as fines and apolo­gies, are set forth in greater detail than their judicial counterpart, al though even they are skeletal by international standards. 1 3 4

The P R C ' s Regulations for the Protection of Computer Soft­ware, published three days after the Copyr igh t Law, and the sub­sequent Measures for the Registration of Copyr igh t in Computer Software tell a similar story. 1 3 5 Once again, a seemingly broad state­ment of rights is subject to a variety of qualifications. At the basic definitional level, the regulations fail to indicate whether software

Squaring Circles / 81

is to be v iewed as a literary work , leave uncertain what is meant by

first publication, and do not cover programs embedded in semicon­

ductor chips. More substantively, the regulations' expansive p ro ­

visions regarding the national interest limit the scope of the rights

granted. Thus , Art icle 31 specifies that similarities between newly

developed and existing software wi l l "not constitute infringement

of . . . copyright . . . [i]f the similarity is necessary for the exe­

cution of national policies, laws, regulations, and rules . . . or for

the implementation of national technical standards" but neither de­

fines "national policies" or "national technical standards" nor re­

quires compensation for software developers affected. Software de­

veloped by state enterprises that is of "great significance to national

interests and public interests," the regulations further stipulate, shall

potentially be subject to appropriation, but again without provid­

ing criteria for helping to identify such interests. Article 28 bars

Chinese from licensing software to foreigners without prior state

approval, much as the 1985 technology import regulations required

parties to seek prior approval of agreements to import technology. 1 3 6

A n d software published prior to the issuance of the software regula­

tions on June 4, 1991—a disproportionate share of which belonged

to foreigners—is effectively presumed to have been in the public

domain . 1 3 7

As wi th the other forms of intellectual property discussed herein,

upon close examination, it is evident that the software regulations'

remedies further curtail the very rights they are intended to buttress.

Thus , as a "prerequisite" to seeking either administrative or jud i ­

cial enforcement of their rights, software developers are required to

provide key proprietary data to the Ministry of Electronics Industry

in a registration process that is far more exacting than that of many

nations, particularly in v iew of the regulations' liberal invocation

of the national interest. 1 3 8 The regulations' liberality wi th respect to

national interest is not, however, matched in its provisions on in­

fringement. These, in effect, exonerate persons accused of infringe­

ment if they did "not k n o w or have no reasonable basis for knowing

that the software is infr inging"—which leaves software copyright

holders wi th the burden of having to seek out the "suppliers" of

infringing items in order to secure the rather ill-defined forms of

redress available under the regulations. 1 3 9

By and large, both Chinese officialdom and foreign observers

82 / Squaring Circles

were quick to proclaim this initial generation of post-Cultural R e v o ­lution intellectual property laws successful. As Ren Jianxin, Presi­dent of the Supreme People's Cour t and long one of China 's most visible spokespersons on intellectual property issues, put it in e x ­tolling the effectiveness of China's new laws before an international audience soon after their promulgation, "the Chinese legal and intel­lectual property system can give full protection to patent right . . . and exclusive right to use a trademark and copyright which have been legally obtained in C h i n a . " 1 4 0 A closer consideration of h o w these new rules have played themselves out in society, however, tells a rather more complex tale—as some Chinese observers have begun lately to acknowledge. 1 4 1 N o r ought the difficulties involved in g iv ing effect to China 's new intellectual property laws to be w h o l l y surprising, when one considers the inhospitability of both traditional political culture and ideological or thodoxy during much of the P R C ' s history to the privatization and commodification of knowledge , the unresolved tensions evident in the laws themselves, and the serious shortage of well-trained, independent jurists, legal professionals, and civil servants to w h o m one might turn to vindi­cate rights and resolve uncertainties surrounding them. 1 4 2

Perhaps the most compelling data Chinese officials have been able to offer in support of the proposition that the P R C ' s first genera­tion of intellectual property laws achieved their stated purpose are statistics concerning the number of patent and trademark applica­tions filed. Official sources have exhibited great pride in the fact that during the eight years prior to the revision of the 1984 Patent Law, over 284,000 applications were filed, including over 40,000 from foreign parties representing some 65 jurisdict ions, 1 4 3 and that during the decade between the 1983 Trademark Law's promulgation and its most recent major revision, some 366,000 applications for trademark registration were accepted, including more than 53,000 from foreign parties representing some 68 jur isdict ions. 1 4 4 T h e gen­eral trend toward increased applications, especially from abroad, has been duly cited as providing validation of the P R C ' s new intellec­tual property system. In the words of Zheng Songyu, general man­ager of the China Patent Agency (H.K) Ltd., which is the Chinese state patent agency in Hong Kong , this has had a "highly salubrious effect in mobil izing the enthusiasm of the broad masses of the people engaging in inventive/creative activities, promoting the populariza-

tion and application of inventions/creations, introducing advanced technology from abroad, improving China's investment environ­ment and actively carrying out economic-technical cooperation and exchange between China and other countr ies ." 1 4 5

Closer scrutiny of these figures, especially in patent, at least raises questions as to what one means by success, even wi th respect to this particular aspect of intellectual property law. Patent applica­tions did, indeed, increase over much of the eight-year life of the P R C ' s initial patent law, but it is also true that some two-thirds of those filed by Chinese were for utility models and design patents, whereas over 80 percent of those submitted by foreigners were for invention patents. 1 4 6 By their very nature, utility models and design patents concern less advanced technology and provide less exten­sive rights than invention patents, as they carry far shorter terms, do not require extensive substantive pre-grant examination, and permit applicants to amend claims during invalidation proceedings (thereby complicating enforcement). Additionally, over two-thirds of all Chinese applications between 1984 and 1992 were for non-service inventions, which typically involve lower-level technology, being made by individual entrepreneurs or workers in state or collec­tive enterprises acting outside the scope of their employment . N o r do more recent statistics suggest any significant shift, as illustrated by the figures for 1993, which indicate that over 80 percent of the applications filed by and over 95 percent of the rights granted to C h i ­nese were for utility models or design patents, wi th more than t w o -thirds falling into the nonservice category, whi le over 75 percent of applications filed and rights granted wi th respect to foreigners were for invention patents. 1 4 7

Arguably , one could construe these statistics as evidence that the 1984 law succeeded in creating a patent system that is inspired in its market segmentation, offering foreigners sufficiently attrac­tive rights to entice them to part wi th technology of international quality, whi le , in effect, requiring locals to yield up their innova­tions in return for lesser benefits. This , of course, is not an argument that Chinese officials, vociferous though they have been about the myriad successes of this law, have made or are likely to make. But even if they were to do so, defining success so narrowly runs the risk of ignoring other key objectives of China 's new intellectual prop­erty system—such as fostering the growth of important indigenous

Squaring Circles / 83

84 / Squaring Circles

technologies and the exchange of data between Chinese scientists.

With rare exceptions, Chinese enterprises have done little to gener­

ate their o w n technology wor thy of advanced intellectual property

rights. Thus , for example, in 1992, even though Chinese filed eleven

times more applications, foreigners obtained two-thirds of all in­

vention patents granted. 1 4 8 And these statistics do not disaggregate

Sino-foreign joint ventures—many of which have been active in

patenting—but instead treat them as domestic enterprises. 1 4 9

T h e phenomenon of foreign multinationals securing a dispro­

portionate share of patents granted is hardly unique to China, but

rather typical of developing nations that have yet to generate exten­

sive indigenous technology with a high commercial va lue . 1 5 0 T h e

fact is, however, that China is neither typical of developing nations

nor wishes to think of itself in such terms, save for when it is conve­

nient to do so for purposes of building alliances or gathering votes

in international organizations. It should not be forgotten that the

P R C produced its o w n nuclear weapons in the 1960's and soon after

the end of the Cultural Revolution embarked on one of the world 's

most ambitious efforts to foster scientific and technological devel­

opment, as evidenced in small part, for example, by the allocation

in 1991 of 6.6 billion yuan (U.S .$1 .2 billion) to support the work of

130,000 new research scientists. 1 5 1

To some extent, the relative indifference of Chinese enterprises

to patent rights, through the 1980's and even beyond, cannot

be understood without reference to the continued prominence of

state-owned entities, especially in the heavy industrial and capital-

intensive sectors, notwithstanding many accounts over the years of

their demise . 1 5 2 O n e study indicates that from 1985 through June

1992, the 12,000 largest state-owned enterprises on average had filed

less than a single patent application of any type annually, bearing out

Renmin ribao's assertion that "large enterprises do not think much of

the invention patent, or support it wi th manpower, materials and

capi ta l ." 1 5 3 But the record of nonstate enterprises, many of which

are small, thinly capitalized, and in the service sector, has not been

significantly better. N o r have Guangdong or other of China 's most

economically open areas revealed an appreciably different pattern.

In short, if the Patent Law was intended to stimulate serious Chinese

inventiveness, success is as yet elusive.

T h e confusion of the quantitative wi th the qualitative is also ev i -

Squaring Circles / 85

dent in the vision of the future articulated by the leaders of the

Chinese patent system. Al though expressing satisfaction that China

already ranked among the "first 15 countries in the world in terms

of patent applications received," late in 1991, Director General Gao

Lulin of the Patent Office declared that China needed to do still

more if it was to become a "patent powerhouse" by the turn of the

century. This wor thy goal, Gao indicated, in an unwitt ing epitome

of a contradiction at the heart of the P R C ' s intellectual property

policies, could be attained because the Patent Office had developed

a plan that called for it to grant 400,000 patent rights over the next

decade, thereby al lowing China to "edge into the list of the top 10 countries in terms of the number of patents granted. 1 5 4

T h e issuance of rights is, of course, not the same as their vindica­

tion. If statistics as to patent applications filed are amenable to differ­

ent readings, h o w much more so the necessarily more fragmentary

numbers available wi th respect to infringement. To take but one e x ­

ample, albeit an especially important one, it is not altogether clear

whether the existence of a surfeit of infringement actions should be

read as indicating that the laws of the jurisdiction in question are

effective (in the sense of being vigilantly enforced) or ineffective (in

the sense of so often being broken). Indeed, in the Chinese case, the

S A I C has pointed wi th pride to the many thousand infringement

cases it hears annually as proof that the Trademark Law is w o r k ­

ing, whi le the Patent Office has stressed, wi th no less pride, that

the "fact" that few infringement cases involving the interests of for­

eigners have come to its attention shows that the Patent Law has

taken hold as intended. 1 5 5

Whatever one chooses to make of such statistics, there are a good

many anecdotal data gleaned from a variety of sources—Chinese

and foreign, open and secret—to suggest that infringement has been

and remains a massive problem, even with the stepping up of en­

forcement efforts. From the launching of China 's "open pol icy"

of the late 1970 's onward, Chinese enterprises have turned out a

broad array of infringing items. These include fake I B M computer

components, Levi 's jeans, Johnny Walker scotch (Black Label, no

less), Heinz and Nestle 's baby food, Mars confectioneries (such as

the infamous " W & W " candies, said to "dissolve" in one's mouth),

C o c a - C o l a soft drinks, Bass footwear, Rolex watches, and a host of

other consumer items. In most instances, these are pale imitations

86 / Squaring Circles

that appear intended for a domestic market eager, after years of l im­ited access to the outside world, to acquire foreign goods but not overly familiar wi th them. In at least a few cases, however, these infringing items are virtually indistinguishable from the originals in question and have already turned up in export markets from Taiwan and Southeast Asia to Nor th America and Europe. 1 5 6

It is, however , not only wi th respect to trademark, which by its very nature is a particularly visible form of intellectual property, that in 1991, China was deemed the "single largest pirate wor ld ­wide ," according to Joseph Massey, whose responsibilities as A s ­sistant United States Trade Representative ( U S T R ) also included protecting American rights in a number of other leading contenders for the aforementioned title, or that his successors have reiterated such sentiments. 1 5 7 Throughout the 1980's and well into the 1990 's, China ' s publishers liberally reproduced foreign materials wi thout authorization. So it is, for example, that China 's elite can turn each day to Cankao xiaoxi and an array of other internal-circulation-only newspapers and magazines filled with unauthorized transla­tions of foreign news reports deemed too sensitive to share wi th China 's populace. 1 5 8 But the latter are by no means deprived of for­eign copyrighted information. Students can find shelf after shelf in libraries and research centers filled wi th unauthorized copies of for­eign works , as wel l as computer centers in which they can fulfill univers i ty-wide requirements to become computer literate wi thout ever seeing an authorized piece of software. 1 5 9 Consumers more gen­erally have been able to avail themselves of whole floors of state-owned bookstores that are closed to foreigners so as to specialize in pirated editions of foreign works , each marked "for internal circula­tion only," meaning that foreigners are barred by law from reading them and from taking them out of the country. N o r are such titles restricted to those that wou ld seem to bear on the modernization process, which one might expect given the contention of some C h i ­nese officials during the 1980's that, as a developing nation, China could not afford to pay royalties for important works on science, medicine, technology, and other fields pertinent to growth. Instead, interspersed wi th the inevitable and often outdated (but still copy­righted) editions of Gray's Anatomy, American law casebooks, and, in a reprise of history, Webster's Dictionary, one finds works as cen­tral to the building of a socialist commodity economy as Nathaniel

Squaring Circles / 87

Hawthorne 's The Scarlet Letter and Isaac Bashevis Singer's The Magi­cian of Lublin.160

Indeed, not even the sacred visage of Mickey Mouse has been spared, in spite of extensive pressure brought to bear by the Disney C o m p a n y resulting, inter alia, in much publicized agreements wi th Chinese authorities. Proving that it is, indeed, a small, small world , unauthorized reproductions of the immensely popular Mi Laoshu (Mickey Mouse , or, literally, O l d Mouse Mi) and friends abounded during the 1980 's—and still are liberally spread through the land— in plastic masks sold in parks, on doorbells adorning hotel rooms, in comic books offered by street vendors, and on a range of other i tems. 1 6 1 As the essayist Bil l H o l m has so aptly put it:

On any day d o w n any street in Xi 'an , a parade of cartoon mice, ducks,

hound dogs and rabbits walks past y o u . In the thermos shop, y o u can

b u y decorated plastic cylinders painted in gaudy colors w i th Mickey , M i n ­

nie, D o n a l d and G o o f y . T h e precious "only" toddlers wear dancing car­

toon mice T-shirts . T h e red-kerchiefed Y o u n g Pioneers carry school note ­

b o o k s decorated not w i th pictures of M a r x but w i th the perpetually smil ing

M i c k e y . In the candy store, small fists that wi l l build the Four M o d e r n i z a ­

tions reach over the counter clutching a luminum fens [pennies] in sweaty

fingers to order Shanghai tang guo, hard fruit candy that comes in plastic

sacks stamped w i t h M i n n i e M o u s e holding hands wi th the famous Shang­

hai whi t e rabbit. "Trixon" and " M o w the He lmsman" didn't open C h i n a to

the West; Walt D i sney d i d . 1 6 2

Overseas vict ims of infringement are not alone, al though they seem neither to have taken consolation from that fact nor, more important, to have recognized the potential alliances that it sug­gests. Chinese pharmaceutical manufacturers have found their marks infringed—at times wi th fatal consequences for consumers. 1 6 3 A l ­though having fewer public safety implications, the "Cadillacs of Chinese bicycles"—the Feige (Flying Pigeon), Fenghuang (Phoe­nix), and Yongj iu (Everlasting) bicycles—which themselves bear more than a faint resemblance to classic Raleigh bikes of the 1950 's— have been the subject of rampant unlawful copying for years. A n d much the same has been true of the "bes t -known" Chinese liquor, Maotai , Hongtashan cigarettes, an array of items bearing the famed H o u Wang (Monkey King) brand name, and hundreds of other products in a society that still has far fewer marks than our o w n . 1 6 4

Indeed, one news account reported that "one-fourth of the 1,400

88 / Squaring Circles

orders involving trade-mark labels which local printers accepted" lacked p roof of authority to use the marks in question. 1 6 5

N o r do China 's printers appear to be much more careful wi th respect to copyright . China has of late had a number of highly pub­licized copyright cases, such as the successful case brought by Deng Xiaoping ' s daughter against an infringer of her biography of her father and those leading to the awarding of royalties to the descen­dants of the famed revolutionary writer Lu X u n and of Li j iefu (for the unauthorized use of his recently revived, highly popular c o m ­position "Wishing Chairman M a o Unlimited Long Li fe" ) . 1 6 6 N o n e ­theless, infringement is rampant and administrative and formal legal redress seem even more difficult to secure in this than in other areas of intellectual property law. Indeed, according to one study of pub­lishing in pos t -Mao China, "most books available on the market . . . were pirated in one form or another" throughout the 1980's and into the 1990 ' s . 1 6 7

T h e plight of Professor Zheng Chengsi illustrates the problem wi th particular poignancy. Al though the "sole academic member participating in the Copyr igh t Law drafting from beginning to end" and the only individual in China to be honored by being named a "National Exper t on Intellectual Property" by the State C o u n c i l , 1 6 8

over the years Professor Zheng had not escaped the ravages of in­fringers, some of w h o m were so brazen as to appropriate for them­selves wi thout attribution sizable excerpts from his many works on intellectual property. These events, however, hardly prepared h im for the actions during the late autumn of 1992 of the China Procuratorial Publishing House, which operates under the aegis of the Supreme People's Procuracy, the arm of the Chinese govern­ment charged wi th prosecuting crimes (including those concern­ing intelletual property). Seeking to capitalize on the attention that the January 1992 Memorandum of Understanding wi th the United States focused on copyright, the Procuratorial Publishing House published and distributed a so-called Complete Book of Intellectual Prop­erty. T h e b o o k was, indeed, complete, incorporating without per­mission or even acknowledgement portions of no fewer than five different works by Zheng on copyright and other areas of intellec­tual property. After overcoming disbelief, Zheng persuaded Beijing copyright officials to fine infringers, but his efforts to secure the royalties he believes are his have been unavailing, as the courts, not

Squaring Circles / 89

surprisingly, have been loathe to give a full hearing to an action

directed against their procuratorial col leagues. 1 6 9

A l t h o u g h more difficult to discern, patent infringement has also

been a problem. Chinese patent officials report fewer than 2,000 ad­

ministrative actions and 500 lawsuits during the period between the

1984 Patent Law's promulgation and its revision in 1992. 1 7 0 A n e c ­

dotal data, such as the tale of one patent holder w h o some six months

after receiving his patent found it being infringed by no fewer than

45 factories in a single county in Henan, suggests that these figures

may we l l understate the case. 1 7 1 And even in those instances where

the problem has been uncovered and brought to the attention of the

relevant authorities, its resolution at times has been directed toward

goals other than protection of property interests, as suggested, for

example, by a 1989 Jiangsu suit in which the local court exoner­

ated the alleged infringers on the grounds that by improving the

quality of the patented item they had made a valuable contribution

to society . 1 7 2

To be sure, even in earlier days when they were more reluc­

tant publicly to acknowledge intellectual property problems, C h i ­

nese officials were by no means who l ly oblivious to their existence

and, indeed, at times sought to turn such difficulties to advantage—

as evidenced, for example, by their handling during the mid and

late 1980's of cases involving Vitasoy and the Stone Group (Sitong

j i tuan gongsi) . T h e former, concerning the trademark for a soybean

milk (doujiang) drink popular in Chinese communities throughout

the wor ld , in many ways typified the situation of prominent mult i ­

nationals capable of shaping foreign perceptions of the Chinese busi­

ness environment, particularly as the P R C first opened its doors to

investors from abroad. Long before entering the Chinese market,

the proprietors of the trademark Vitasoy had obtained registration

throughout the world , thereby establishing by the standards of the

Paris Convent ion that it was a "we l l -known" mark, which status,

in turn, should have eased the way for registration in the P R C ,

given Beijing's accession to the Convent ion. Nonetheless, Chinese

trademark examiners not once, but twice, flatly rejected Vitasoy as

a registrable mark, contending that it was "generic," given that its

English name was derived from the words "vitamin" and " soy" and

its Chinese name from the characters "vitamin" and "milk." O n l y

w h e n Vitasoy and its counsel pressed their case did Chinese trade-

90 / Squaring Circles

mark officials do an about-face, ordering registration of the mark in question to "keep a friend of China satisfied" and suggesting for for­eign audiences that this happy result demonstrated China 's w i l l i ng ­ness to use "every means possible to eliminate opposition and obtain approval for its registration, thus winning the trust of the general public," most of w h o m knew nothing about i t and cared less . 1 7 3

T h e case of the Stone Group was also presented to—and initially received by—the outside world as providing important evidence of China 's firm commitment to the protection of intellectual property, but it, too, involved a more complex set of events, which simi­larly conveyed a more mixed moral regarding efforts to build a new Chinese legal i ty . 1 7 4 The dispute that launched the case, at least osten­sibly, revolved around the question of whether computer engineers from the state-run China Research Institute for Printing Science and Technology (CRIPST) in moving to Stone had taken wi th them proprietary data in violation both of the General Principles of the C i v i l Law's provisions on intellectual property and their employ­ment agreement. Soon, however, the dispute became a focal point for a larger test of wills between, on the one hand, Stone, wh ich was at the time China 's largest private enterprise, and its politically ambitious principal owner, Wan Runnan (who through the c o m ­pany founded the "first privately-funded think tank in China spe­cifically concerned wi th politics, the economy and l a w " ) , 1 7 5 and, on the other, the S P P A , to which the C R I P S T reported, and additional governmental entities wi th a decidedly conservative bent. Before the initial dispute over C R I P S T could be resolved, however, the Beijing Spring of 1989 intervened and Wan, w h o was accused of having helped instigate those events, fled to Paris. Ironically, Ren-min ribao chose soon thereafter to affirm the link between intellectual property and politics by running an extraordinary notice declaring that as a bad and dangerous element, Wan no longer enjoyed the right to use the Stone name or any associated trademarks. 1 7 6

In the years since Vitasoy, Stone, and other celebrated, if ques­tionable, self-proclaimed affirmations of the vitality of Chinese intellectual property law, P R C officials have begun to make some­what more concerted attempts to enforce such laws. Thus , in the months leading up to the January 1992 Memorandum of Under ­standing, Chinese state agencies stepped up enforcement measures, even as the government denied the existence of significant prob-

Squaring Circles / 91

l ems . 1 7 7 Similar, if no more successful, measures were undertaken in the immediate aftermath of the Memorandum. Special tribunals dedicated to intellectual property issues have subsequently been established in a handful of China 's most important commercial cen­ters. 1 7 8 What semi-official Chinese sources have described as "nation­wide crusades," which seem at least to echo campaigns (yundong) of earlier days, have been commenced with the goal of securing a higher level of compliance, leading Vice Premier Li Lanqing recently to say wi th reference to persons involved in the manufacture and dis­tribution of "fake and inferior goods, . . . no one should be lenient towards these evil doers and evil deeds ." 1 7 9 And in a futile effort to deter Washington from pursuing possible trade sanctions, in the summer of 1994, the Standing Commit tee of the N P C adopted legis­lation that w o u l d impose substantial criminal penalties for copyright infringement and the State Counci l issued a White Paper extolling progress over the past decade on intellectual property. 1 8 0

Notwithstanding such undertakings, which, inter alia, have led to the imposit ion of the death penalty on at least four individuals, life sentences for no fewer than five others, and the imprisonment of some 500 more for trademark violations, major problems per­sist. Trademark infringement is so widespread, the China Daily re­ported in September 1993, that "stronger measures" need be taken to address the surfeit of "illegal practices [that] have seriously dis­turbed the normal economic order, infringed consumers' rights, harmed people's health and life and annulled the image of Ch ina -made goods on the wor ld market ." 1 8 1 Copyr igh t problems, accord­ing to some observers, have only gotten worse. Time has recently dubbed China "home to the world 's largest gang of CD [compact disc] pirates," some of w h o m the Wall Street Journal suggests are affili­ated wi th the very governmental authorities w h o should be policing them. Experts estimate that 95 percent of the software in use con­sists of unauthorized copies and "in book-publishing at least, there has been a significant increase in violations of copyright," accord­ing to one Chinese publishing executive—all of which is consistent wi th U S T R Mickey Kantor 's June 1994 assertion that enforcement is "vir tual ly non-exis tent ." 1 8 2 A n d there are increasing accounts of powerful industries infringing patents belonging to entities from distant jurisdictions, knowing that their local cour ts—which are heavily dependent financially on local tax revenues collected from

92 / Squaring Circles

such industries—are unlikely to rule against the home team in suits brought by entities from other provinces. 1 8 3 In sum, at least at this juncture, the attempt to build an intellectual property law wi th "Chinese characteristics" capable of serving a new socialist market economy at best remains a long march with many steps yet to be traversed.

Energetic though they have been, the Chinese government 's at­tempts to promote more vigorous adherence to its intellectual prop­erty laws have been overtaken by a simultaneous and far more strenuous effort to reassert a strong degree of direct state control over the flow of ideas. Commenc ing in the autumn of 1993, Beijing has launched what one experienced observer has termed an "on­slaught against dissent and journalists . . . [in] an attempt to continue its control on all information." 1 8 4 This effort has taken a variety of forms. Journalists, including Hong K o n g reporters, and others alleged to have shared classified information (such as an advance text of a public address to be delivered by President Jiang Zemin) have been arrested and, in some instances, received sentences as steep as life imprisonment . 1 8 5 The resale of shuhao has been prohibited in an attempt to reassert direct central control over which books may be published. T h e installation and use of satellite dishes, other than by state-approved entities, to receive foreign-originated programming has been barred because, in the words of Vice Minister of Radio, Film and Television Wang Feng, it is "beneficial to the cultivation of patriotism among our citizens, safeguarding the superior tradi­tion of the Chinese race, promoting socialist civilisation, and main­taining social stabil i ty." 1 8 6 The "Communis t Party . . . has taken" what New York Times correspondent Patrick Tyler calls "an end-of-empire approach to [film] censorship." 1 8 7 And the government is l imiting imports of foreign C D s to 120 titles a year, which may be one reason, along wi th the chance to earn considerable export reve­nues, that Chinese factories are now churning out tens of millions of unauthorized copies of popular foreign C D s from Michael Jack­son to Madonna and beyond . 1 8 8 To be sure, as the example of C D s illustrates, these measures designed to control information have not necessarily proven themselves much more effective than those con­cerning intellectual property, but they nonetheless represent an un­wi t t ing reaffirmation by the state of the priorities of its imperial and Nationalist predecessors with respect to the dissemination of ideas.

T h e tensions evident wi th respect to the P R C ' s first generation

Squaring Circles / 93

of pos t -Cul tura l Revolut ion intellectual property laws in many re­spects typify those that mark the broader effort during this same period at law reform. As wi th patent, trademark, and copyright , the more general effort at establishing a formal legal system has held considerable appeal for China 's leaders. It has constituted an unparalleled vehicle for legitimation both at home and abroad, dis­tinguishing the post-Cul tural Revolution leadership from its prede­cessors (even as some of the latter reemerged amongst the former), whi le easing the anxieties of foreigners about parting wi th the tech­n o l o g y and capital needed to fuel China's modernization. No less important, it has represented an instrument perceived as uniquely suited to serving the leadership's seemingly contradictory objectives of mov ing away from the rigidities of a planned economy (through, for example, the gradual substitution of contract for administrative fiat) wi thout surrendering central political authority and jeopardiz­ing stability. Indeed, some may have been drawn to the idea of building up a new legal order in the belief that it might provide a w a y of reversing an excessive devolution of power to provincial and local officialdom, and as such might be an instrument for national consolidation.

That elements of China 's leadership have seen benefits to be de­rived from further development of a formal legal system does not necessarily mean, however, that these same individuals, let alone their colleagues, either fully appreciate or are entirely wil l ing to ac­cept the associated costs. The introduction of new rights for both citizens and foreigners in what is still said to be a socialist state has posed disquieting questions about the nature and direction of C h i ­nese society at home and in relation to the international e conomy— at a time of wrenching transition in many parts of the wor ld . A n d at a more personal level, imbued as they are wi th a traditional polit i­cal culture that calls for the retention of a high degree of discretion by those exercising authority, a modern ideological o r thodoxy that dismisses the ideal of the autonomy of law, and no small degree of hubris and self-interest, many in leadership circles have been hesi­tant, at best, to subordinate themselves and their decisions to rules and institutions beyond their control.

As was the case in intellectual property, this tension has expressed itself in doctrine from the Consti tut ion on d o w n that has all too often endeavored to set out new rights whi le tightly circumscribing their ambit and providing minimal means for their vindication, by

94 / Squaring Circles

either ordinary citizens or foreign nationals. To be sure, it wou ld

be misleading to assess Chinese law reform either presuming the

existence of absolute rights in other societies or ignoring the highly

instrumental nature of legality in all jurisdictions. The laws of every

nation—and, perhaps, particularly those that are at an early stage in

the development of their systems of formal legality or engaged in

recasting fundamental dimensions of social order—exhibit strains

between individual and collective concerns, between the rights of

citizens and the prerogatives of their leaders, and between instru­

mentality and autonomy. But whereas many societies seek to medi­

ate such strains by recasting the law itself with greater definition

and fixity, by reposing the power to provide such definition wi th

a professionalized judiciary and civil service, or by facilitating the

vindication by citizens of their stated r ights , 1 8 9 through the 1980's

and into the 1990 's, the P R C ' s leadership has, at best, displayed pro­

found ambivalence, if not an outright lack of enthusiasm, for such

measures.

Ironically, the Chinese leadership's attempt to have it "both w a y s "

—in the sense of proclaiming rights without being constrained by

comprehensively providing for their realization—has resulted in

having it neither way, at least through the first decade and a half of

the post -Cul tura l Revolution law reform. Al though it wou ld be un­

fair not to acknowledge the gains made since the 1970's in generating

and making efforts to give effect to a g rowing body of legislation,

the continued unwillingness of those in positions of real power to

cede major authority to the law in a meaningful and consistent fash­

ion has undercut the very stability, predictability, neutrality, and

autonomy that comprise the essence of legality, distinguish it from

politics, and, ultimately, constitute its particular virtue. This has

diminished sharply many of the benefits that the leadership had an­

ticipated reaping in establishing its post-Cultural Revolut ion legal

order. At the same time, it is also beginning to engender expecta­

tions and provide a focus for persons wi th shared interests that, if

not met, may wel l impair, rather than burnish, the party's legiti­

macy. For, as wi l l be discussed in chapter 5 wi th reference to Tai­

wan and in chapter 6 wi th regard to Sino-American interaction, the

nurturing of effective and sustainable law reform—whether in the

area of intellectual property or more generally—cannot be divorced

from larger issues of political reform.

Five

As Pirates Become Proprietors: Changing

Attitudes Toward Intellectual Property

on Taiwan

We still have to twist the arms of our engineers to file

a patent . . . we have lots of incentive programs for

them and those incentive programs, of course, include

money. T h e amount of money is about five times as

much as what I B M paid us years ago and we still can't

get them to file . . . that's one area where we are trying

very hard to change.

A l v i n Tong , executive vice president, Acer, Inc.

With the defeat of the Nationalist government on the Chinese main­

land at the hands of the Communis ts , the protection of intellectual

property was hardly high on the Guomindang's list of priorities

w h e n it relocated to Taiwan in the autumn of 1949. 1 On the con­

trary, during its first years on Taiwan, the Guomindang was far

more concerned wi th closely regulating the dissemination of ideas

in order to keep any materials deemed subversive from the popu­

lace. 2 As was the case in so many areas, the resolution of other, less

immediate concerns regarding intellectual property could await re­

turn to the mainland, which many in the leadership hoped wou ld be

fairly rapid.

A l t h o u g h it became increasingly apparent through the 1950's that

a return to the mainland was not imminent, the R O C government 's

focus wi th respect to intellectual property remained on questions

96 / As Pirates Become Proprietors

of censorship. Indeed, in order to subsidize the cost of its elaborate censorship apparatus, the government early on set its copyright reg­istration fees for books at 25 times the cover price. 3 The unsurprising result was that throughout the entire first decade of Nationalist rule on Taiwan, fewer than 600 books were registered, of which fewer than 30 were foreign, 4 in spite of the fact that "by mid-1959, the number of Western titles that had been reprinted there numbered more than t w o thousand." 5

At first, foreign publishers seemed little concerned about the pirating of their property on Taiwan. At least for American pub­lishers and authors, this may have been attributable both to lack of interest in foreign markets during the early postwar years (evi­denced in the practice, then common throughout the U . S . publish­ing industry, of selling international rights on a wholesale basis to British firms) 6 and to particular ignorance about the problems and possibilities posed by the Taiwan market. To be sure, neither the original American nor the less expensive "Far Eastern" editions of their works licensed in Japan and elsewhere in East Asia sold in large numbers in Taiwan, but closer attention to Taiwan wou ld have revealed that the market there for foreign books—many of which local printers pirated from one another, as well as from abroad— was g rowing rapidly among both Chinese nationals and American garrison troops. 7 N o r was help forthcoming from the U . S . govern­ment, which , eager to buttress the Nationalist regime, did little to promote the interests of the U . S . publishing industry.

By the late 1950's, however, several factors combined to rouse American publishers. The unauthorized reprinting of some of the latest and most expensive foreign works , including current edi­tions of the Encyclopaedia Britannica, Webster's Dictionary, and Gray's Anatomy, and their export both to the West and to potential mar­kets elsewhere in the world, drew the attention of foreign pub­lishers. 8 For example, the publishers of the Encyclopaedia Britannica were greatly annoyed at the extensive pirating of their work . T h e y saw the Chinese government 's delay in registering its copyr ight— which R O C authorities said was necessary to censor "incorrect in­formation contained therein concerning the Republic of China . . . , Oute r Mongol ia . . . , opium-smoking . . . [and M a o Z e d o n g ] " 9 — as a deliberate effort to assist local pirates. These culprits, they be­lieved, reaped enormous profits, which they "immediately sank . . .

As Pirates Become Proprietors / 97

into the unauthorized reprinting of literally hundreds of additional

Western t i t les ." 1 0

So bestirred, Western publishers urged their governments to

take diplomatic action against Taiwan. American publishers, for

example, argued that the Mutual Security Program that served as a

defense lifeline for Taiwan ought to be reexamined. They also ques­

tioned Taiwan's eligibility for the Informational Media Guarantee

Program, which provided nations whose currency was not freely

convertible wi th the dollars needed to purchase American books

and films. O n l y through such measures, they contended, could the

R O C be persuaded to revise its intellectual property laws, jo in the

Universal Copy r igh t Convent ion, and generally take whatever mea­

sures were necessary to live up to its obligations under the provisions

of the 1946 Friendship, Commerce and Navigat ion Treaty meant to

protect U . S . intellectual property.

The R O C government sought to counter this pressure by argu­

ing that unauthorized reprinting grew out of its students' need for

the latest foreign information, especially in the sciences, which they

could not afford to purchase. 1 1 Dependent as it was on U . S . financial,

military, and diplomatic support, the R O C was, however, unable

w h o l l y to resist American entreaties. In 1959, in an effort to ame­

liorate American pressure while keeping alive the domestic reprint

industry, the Nationalists reluctantly amended the R O C ' s fledgling

rules concerning copyr ight . 1 2 These amendments reduced the fees to

be paid on registration and provided foreigners with the same period

of copyright protection to which Chinese were entitled. A year later,

the government fol lowed this up with a proclamation declaring that

persons export ing unauthorized copies of books and records w o u l d

be subject to prosecution for smuggling. And in 1964, the Legisla­

tive Yuan passed additional revisions to the Copyr igh t Law directed

toward ending the piracy of foreign works . 1 3

Notwithstanding these measures, the situation failed to improve

appreciably. N o r did much-publicized additional governmental ini­

tiatives in the areas of enforcement and mass education, 1 4 taken dur­

ing the remainder of the 1960's or through the 1970's largely in

response to intensifying U . S . pressure, prove any more effective.

This was chiefly because of the immense difficulty that foreign and

domestic parties alike had in proving infringement under existing

procedures and in securing meaningful sanctions in the handful of

98 / As Pirates Become Proprietors

actions actually tried. 1 5 As a consequence, few among the more than

1,400 publishers and reprinters in business on Taiwan in the mid

1970 's thought it wor th the expense and effort to obtain copyright

registration, even though unregistered works enjoyed no legal pro­

tection from unauthorized reproduction. 1 6 Indicative of their lack

of confidence in the law was the fact that in 1975, a typical year,

fewer than 1,000 copyrights were registered, almost all by a mere

35 publishers. 1 7 M u c h the same point is borne out by the fact that

during that year, a mere dozen infringement cases were filed in the

Taipei District Cour t , one of the island republic's more active, of

which eight were withdrawn before judgment and only one resulted

in a full sentence. 1 8 N o t surprisingly, unauthorized reproductions of

books , records, tapes, and, by the 1970 's, computer software found

their way to buyers throughout the world, including the United

States, Europe, Africa, the Middle East, and even the P R C . 1 9

Counterfeiters of trademarked and patented foreign products

were no less active during the 1960's and 1970 ' s . 2 0 Knowledgeable

observers suggest that government officials may originally have en­

couraged such piracy for reasons both of import substitution and

export promot ion. 2 1 Revisions of trademark and patent laws dur­

ing those decades did little to constrain such piracy, since these

statutes continued to provide scant recourse for foreign holders,

lacked effective methods for assessing damages, assigned penalties

that could be redeemed by modest payments, and, in any event,

were not r igorously enforced. 2 2 By the 1970 's, the R O C was furnish­

ing a burgeoning wor ld market wi th a host of counterfeited prod­

ucts, including pharmaceuticals, "pens, watches, clothing, car parts,

computers, chemical processes," "dolls, toys . . . cameras . . . bat­

teries, puzzles," and airplane and helicopter parts, among other

i tems. 2 3 As a consequence, in 1982, Newsweek labeled Taiwan the

counterfeiting capital of the world, and the New York Times soon

thereafter described it as being "to counterfeiting what Miami is to

drug trafficking." 2 4 More official condemnation came from the U . S .

International Trade Commiss ion, which in 1984 identified Taiwan

as the source of as much as 60 percent of the $6 to $8 billion wor th

of counterfeited goods believed to be produced wor ldwide annually

in a sampling of only five major industries. 2 5

With the pace, scope, and quality of counterfeiting expand ing 2 6

and wi th a g rowing awareness of the impact of such activity on

the rapidly increasing U . S . trade deficit, 2 7 the American govern-

As Pirates Become Proprietors / 99

ment began in the early 1980's to apply more concerted pressure on

Taiwan. In particular, efforts were made to play on Taiwan's over­

whe lming dependence on American markets. At first these efforts

were focused on the Generalized System of Preferences (GSP) , a

program intended to aid developing nations by eliminating tariffs on

specified i tems. 2 8 The Trade and Tariff Ac t of 1984 conditioned con­

tinued receipt of G S P treatment on "the extent to which [any given]

country is providing adequate and effective means under its laws

for foreign nationals to secure, to exercise, and to enforce exclusive

rights in intellectual property, including patents, trademarks, and

copyr igh t s . " 2 9 This step was hardly inconsiderable, given that Tai­

wan had long been among the greatest beneficiaries of the program,

reaping more than $3 billion in tariff benefits annually. 3 0 None the­

less, in 1988, the U . S . government chose to relinquish this tool .

In an effort to stem the trade imbalance, it removed Taiwan and

the other three Little Dragons of East Asia from G S P eligibili ty. 3 1

This loss of leverage was eased somewhat, however, by the amend­

ment soon thereafter of Section 301 of the 1974 Trade Ac t , which ,

as w i l l be discussed below, authorized the president to take exten­

sive retaliatory action against nations failing to respect American

intellectual property adequately. 3 2

Such pressure, together wi th the increased efforts of Apple C o m ­

puter, International Business Machines Corporation, and other lead­

ing U .S . -based multinationals to protect their property, and exten­

sive publicity by international news media, helped produce changes

in the intellectual property laws of the R O C , as wel l as wide ly

trumpeted educational and enforcement campaigns. 3 3 Thus , in 1981, the R O C promulgated regulations requiring would-be exporters o f

trademarked goods to supply customs authorities with documen­

tation establishing their right to use the marks in question. 3 4 T w o

years later, Taiwan's Trademark Law itself was amended to protect

unregistered "we l l -known foreign trademarks," authorize confisca­

tion by police of infringing goods, and raise criminal penalties for

the infringement of registered trademarks to a level—a max imum

of five years ' imprisonment—at which monetary redemption was

no longer possible. 3 5 A n d in 1985, the law was still further revised to

permit foreign enterprises, even if not registered, to initiate cases,

whi le also reducing the claimant's burden of p roof on the issue of

damages . 3 6

Dur ing the 1980's the R O C ' s copyright and patent laws also were

100 / As Pirates Become Proprietors

the subject of amendments concerning coverage, standing, and in­

fringement. As revised in 1985, the Copyr igh t Law provided that for

Chinese nationals, copyr ight—which was redefined to include c o m ­

puter programs, 3 7 films, sound tracks, lectures, musical and artis­

tic performances, dance, sculpture, and scientific and engineering

drawings, as wel l as more conventional media previously covered—

attached "upon . . . completion" of the work , rather than registra­

t ion . 3 8 Subsequently, the Taipei District Cour t followed the E x e c u ­

tive Yuan ' s urging and extended this right to American w o r k s . 3 9

A l t h o u g h registration continued to be required for the works of

most other foreign nationals, this burden was somewhat eased by

the fact that the 1985 revisions provided that an unrecognized for­

eign entity w o u l d have standing "to file a [civil] complaint or a

private prosecution against" infringers, if its o w n nation accorded

such rights to Chinese nationals. 4 0 Additional enforcement mea­

sures, mirroring those of the Trademark Law, clarified the c i rcum­

stances under which works believed to be pirated might be seized,

mandated min imum civil damages of 500 times the retail price of the

infringed work , and increased the maximum sentence of imprison­

ment to five years so as to eliminate the possibility of monetary re­

dempt ion. 4 1 Comparable measures respecting standing and enforce­

ment lay at the heart both of the revisions made in 1986 to the Patent

Law and of proposals then made for an unfair competition law. 4 2

Al though providing substantial clarification in many respects,

the intellectual property law reforms of the mid 1980's neither re­

solved all questions addressed nor addressed all important ques­

tions. Typical of this first shortcoming was the much-heralded 1983 amendment to the Trademark Law providing protection for unreg­

istered "world-famous" trademarks. 4 3 Neither the law, concurrent

implementing regulations, nor other official pronouncements con­

tained a definition of the operative term. N o t surprisingly, even wi th

these amendments, throughout the 1980's only a handful of foreign

holders availed themselves of this protection, despite ongoing diffi­

culties wi th infringement, evidenced by the continuing sale in Tai­

wan of would-be Eveready batteries, Champion spark plugs, Rolex

watches, Chanel perfumes, Super K basketballs, Dunlop sporting

goods , and a veritable orchard of imitation Apple computers, in­

cluding the Pineapple, the Golden (Delicious), the Orange, and even

the L e m o n . 4 4 Moreover , the intellectual property law reforms of the

As Pirates Become Proprietors / 101

mid 1980's failed meaningfully to speak to such key matters as retro­activity, the interface between these laws and Taiwan's treaty c o m ­mitments, and the ability of those whose intellectual property had been infringed to prove damages. 4 5 N o r was progress made on such vex ing issues as duration, translation rights, compulsory licensing, and ex parte seizures of counterfeited items.

T h e R O C ' s intellectual property law reforms of the mid 1980's were promulgated wi th great fanfare. Much publicity was directed toward efforts to enhance the work of relevant governmental offices, including the Ministry of Economic Affairs, the Board of Foreign Trade, the police and prosecutors, of the courts, and of private orga­nizations such as the National Anti-Counterfeit ing C o m m i t t e e . 4 6

This was complemented by the focusing of attention on prosecu­tions in which severe penalties were dispensed, by a spate of friendly articles in journals at home and abroad, by mass educational cam­paigns by government and private groups, and by increased news about discussions between Taiwan and the United States aimed at producing a copyright agreement. 4 7

Al though prosecutions for infringement increased substantially and some of the more visible forms of piracy diminished appre­ciably, the problems prompting these reform measures continued into the late 1980 's. 4 8 Counterfeiting of computer hardware and software, electronic goods, video and audio cassettes, watches, tex­tiles, and a range of other products continued, in some instances being taken over from small-time back-alley pirates by more serious criminal elements. "Piracy is rampant in Taiwan. It is carried out openly and in defiance of the law," noted a local observer at a 1987 forum sponsored by the American Institute in Taiwan (AIT) and the National Anti-Counterfei t ing Commi t t ee . 4 9 Others suggested that "despite protestations of innocence, the Taiwan government is . . . aware of what is going on [by way of counterfeiting] . . . Ta iwan­ese counterfeiters use the Trademark Office as a positive aid in their stealing—searching to discover the potential of a trademark and then adapting a product to fit i t . " 5 0 M u c h the same sentiment was e x ­pressed by those alarmed at the government's seeming willingness to tolerate continued pirating of the Encyclopaedia Britannica, supposedly in retaliation for its American publishers having prepared a special bilingual edition for sale in the P R C . 5 1

Believing the problem to be worsening, in the late 1980's, the

102 / As Pirates Become Proprietors

U . S . government adopted a more aggressive stance. 5 2 Foreign in­fringement was, as recounted above, nothing new, but during the Reagan administration, American companies succeeded in l inking intellectual property protection and international trade by w a y both of diagnosing what ailed their nation's economy and of prescribing a remedy for those ails . 5 3 The burgeoning trade deficit, which was especially large wi th the nations of East Asia, wou ld have been far smaller, they contended, had those very nations purchased, rather than pirated, American intellectual property. O n l y by condit ion­ing the access of exports from these nations to the U . S . market on greater protection, the argument continued, would such abusive practices cease.

"Special 301" was the vehicle through which the linkage was to be effected. A part of the Omnibus Trade and Competi t iveness Ac t of 1988, Special 301 is a variant of Section 301 of the 1974 Trade A c t that requires the U S T R both to notify the Congress regularly of "priority foreign countries" failing adequately to protect American intellectual property and to take all measures needed to address these deficiencies within statutorily mandated deadlines. 5 4 To enhance the effectiveness of Special 301 as a negotiating tool, soon after the law's passage, the U S T R additionally commenced the compilation of both a "priority watch list" and a "watch list" for nations that did not yet warrant designation as "priority foreign countries" but might if their standard of protection did not improve. 5 5

In M a y 1989, the U S T R placed the R O C on its priority watch list—thereby sparking an intense diplomatic struggle that has yet fully to be resolved. 5 6 K n o w i n g that a failure to reach agreement w o u l d result in the R O C being named a priority foreign country, which , in turn, could lead to retaliatory measures limiting access to the U . S . market, the A I T and the Coordination Counc i l for Nor th American Affairs ( C C N A A ) engaged in what one knowledgeable observer has termed "the most difficult. . . trade talks" yet between the United States and the R O C . 5 7 The result, initialed in July 1989, was a comprehensive pact in which the R O C ' s negotiators agreed to undertake changes intended to address long-standing American concerns. Proposals to amend the R O C ' s Copyr igh t Law covering matters such as first sale, public performance, translation rights and the duration of copyright would be forwarded to the Legislative Yuan , whi le steps wou ld be taken administratively to improve the

As Pirates Become Proprietors / 103

enforcement of those laws already on the books. Pleased wi th these promises, in November 1989, the U S T R moved Taiwan from the priority watch list to the less threatening regular watch list. 5 8

If American interests were at first pleased wi th the 1989 agree­ments, the same could not be said for many in the R O C . Newspaper and other commentators denounced American pressure, arguing, in the words of the Jingji ribao (Economics Dai ly) , that the "govern­ment should not rush out to legislate laws that benefit others and harm our o w n . " 5 9 Chinese academic observers echoed that senti­ment, contending that U . S . negotiating techniques and subsequent pressure on Taipei to "request its judges to mete out more severe sen­tences in infringement cases" and provide Washington wi th monthly statistics of enforcement performance" infringed R O C sovereignty. Indeed, some went so far as to denounce R O C lawyers w h o had represented American intellectual property holders in Taiwan as "traitors" (hanjian). A n d even members of the R O C negotiating team, including one of its leaders, Executive Secretary Louis Wang (Wang Chuanlu) of the Ministry of Interior's Copyr igh t C o m m i t ­tee, expressed their concern, threatening to resign in order to draw further attention to what they described as American excesses. 6 0

This anger helps explain w h y the agreements wrung so painfully from the R O C had little real effect. If modest progress was made wi th respect to traditional forms of infringement, such as the sale of $10 " R o l e x " watches on street corners and unauthorized reprints of American texts, there was more than a countervailing increase in more sophisticated and costly types of infringement, particularly wi th regard to software and audio materials. 6 1 N o r did an amend­ment to the Copyr igh t Law designed to halt the unauthorized c o m ­mercial screening of American and other films staunch the flow of business at Taipei's notorious M T V (movie television) parlors. A n d the government 's much-vaunted mechanisms to prevent the expor­tation of infringing goods proved of scant value, as the "elaborate trademark screening program for exports" established in 1985 failed to result in even a single exporter losing its export license during its first six years of operation. 6 2

These and other instances of the R O C ' s perceived unwi l l ing­ness to move rapidly enough to give effect both to the letter and spirit of the 1989 agreement did not escape notice. As early as 1990, Eric Smith, general counsel for the International Intellectual P rop-

As Pirates Become Proprietors / 105

outlawed, the copyright term was extended to life plus 50 years, penalties for infringement were substantially stiffened (to include, inter alia, destruction of infringing materials) and a number of other changes designed to accommodate foreign intellectual property holders were made. 7 1

Al though the 1992 amendments represented what one Taiwanese specialist has described as the "largest scale amendment [of Chinese] copyright law [since] . . . 1928," 7 2 the U S T R believed that their pas­sage alone did not fully comply with the changes in copyright law called for in 1989 A I T - C C N A A agreement—particularly wi th re­spect to matters such as parallel imports, public performance, fair use and retroactive protection. 7 3 Nor, of course, did these amend­ments speak to other areas of intellectual property law troubling to the Uni ted States or to the issue of enforcement in general.

Accordingly , on June 5, 1992, the A I T and C C N A A reached an "understanding" designed to address these matters. 7 4 "The authori­ties represented by the C C N A A " pledged to use their "best efforts" to secure ratification of the 1989 bilateral agreement as soon as pos­sible and, in any event, no later than January 31, 1993. In addition, the R O C agreed to submit to the Legislative Yuan amendments to the R O C ' s patent and trademark laws and to draft cable television, trade secret, and semiconductor protection laws designed to bring the R O C into compliance wi th the standards articulated in the s o -called Dunkel draft of the Uruguay Round of the G A T T trade nego­tiations. 7 5 A n d to improve the quality of enforcement, the June 5 understanding called on the R O C to issue "directions to the pub­lic prosecutors to . . . consider the adverse impact of counterfeiting activities on the [nation's] economy and international image . . . [and therefore] to request a stiff penalty" and also to step up export monitoring, crack d o w n on unlawful operators of M T V studios and cable stations, and to compile detailed statistics that wou ld facilitate periodic review of the R O C ' s intellectual property regime. 7 6

Far from resolving a nettlesome controversy, the June 5 under­standing seems to have exacerbated it, principally because of the ways in which the negotiated settlement evoked tensions regarding both the allocation of power in Taiwan's increasingly democratic political life and the island state's international posture, especially vis-a-vis the United States. 7 7 Critics of the Guomindang in particu­lar and of the R O C ' s long-standing subordination of the Legislative

104 / As Pirates Become Proprietors

erty Alliance (IIPA), observed that "enforcement in the copyright area has fallen off since Taiwan pledged to improve its law," raising questions, as he put it, about the seriousness of Taipei's commit ­ment . 6 3 In 1991, "Taiwan accounted for approximately 70 percent of Cus toms seizures of infringing computer and electronic products imported into the United States." 6 4 And a year later, counsel for a major American software producer declared that Taiwan remained the world 's biggest source of counterfeit software. N o r were these v i ews limited to foreign observers. So it was that the former general manager of the Microsoft Corporation's Taiwan operations could declare in 1992 that "90 per cent of the pirated software we [Micro­soft] uncover in the wor ld market originates in Ta iwan . " 6 5 Similar sentiments were expressed by Simon Huang, executive vice presi­dent of the R O C ' s largest domestic producer of software, w h o also indicated in 1992 that "at present for every one copy of legal software in the domestic market, there are three pirated copies in use. . . . People don' t expect to pay for sof tware ." 6 6

Spurred by the complaints of the IIPA and a g rowing number of associations and individual companies, early in 1992, the U S T R again turned its attention to the R O C . Bitter negotiations, described "as the most contentious . . . in years" ensued, 6 7 but for months yielded no results, notwithstanding far from subtle intimations by the U S T R that continued R O C resistance might complicate A m e r i ­can support for Taipei's accession to the G A T T . 6 8 Exasperated, on Apr i l 29, 1992, the U S T R finally designated Taiwan a "priority for­eign country" pursuant to Special 301, terming it "a center for copy­right piracy and trademark counterfeiting of U . S . products ." 6 9 In compliance wi th Special 301, a formal investigation was launched, requiring the U S T R within a six-month period either to resolve the problem or recommend the imposition of sanctions.

T h e U S T R ' s decision to deploy what some have termed the "nuclear weapon of trade remedies" (i.e., better brandished than detonated) did not escape Taipei's attention. Within a week, Presi­dent Lee Teng-hui expressed his concern and called on the Execu ­tive, Legislative, and Judicial yuan to take the steps needed to defuse this weapon . 7 0 Heeding President Lee's injunction, on May 22, the Legislative Yuan approved amendments to the Copyr igh t Law that had been under consideration for some two years. From June 12, 1992, unauthorized translations of foreign-copyrighted works were

As Pirates Become Proprietors / 105

outlawed, the copyright term was extended to life plus 50 years, penalties for infringement were substantially stiffened (to include, inter alia, destruction of infringing materials) and a number of other changes designed to accommodate foreign intellectual property holders were made. 7 1

A l t h o u g h the 1992 amendments represented what one Taiwanese specialist has described as the "largest scale amendment [of Chinese] copyright law [since]. . . 1928," 7 2 the U S T R believed that their pas­sage alone did not fully comply with the changes in copyright law called for in 1989 A I T - C C N A A agreement—particularly wi th re­spect to matters such as parallel imports, public performance, fair use and retroactive protection. 7 3 Nor , of course, did these amend­ments speak to other areas of intellectual property law troubling to the Uni ted States or to the issue of enforcement in general.

Accordingly , on June 5, 1992, the A I T and C C N A A reached an "understanding" designed to address these matters. 7 4 "The authori­ties represented by the C C N A A " pledged to use their "best efforts" to secure ratification of the 1989 bilateral agreement as soon as pos­sible and, in any event, no later than January 31, 1993. In addition, the R O C agreed to submit to the Legislative Yuan amendments to the R O C ' s patent and trademark laws and to draft cable television, trade secret, and semiconductor protection laws designed to bring the R O C into compliance wi th the standards articulated in the s o -called Dunkel draft of the Uruguay Round of the G A T T trade nego­tiations. 7 5 A n d to improve the quality of enforcement, the June 5 understanding called on the R O C to issue "directions to the pub­lic prosecutors to . . . consider the adverse impact of counterfeiting activities on the [nation's] economy and international image . . . [and therefore] to request a stiff penalty" and also to step up export monitoring, crack d o w n on unlawful operators of M T V studios and cable stations, and to compile detailed statistics that wou ld facilitate periodic review of the R O C ' s intellectual property regime. 7 6

Far from resolving a nettlesome controversy, the June 5 under­standing seems to have exacerbated it, principally because of the ways in wh ich the negotiated settlement evoked tensions regarding both the allocation of power in Taiwan's increasingly democratic political life and the island state's international posture, especially vis-a-vis the United States. 7 7 Critics of the Guomindang in particu­lar and of the R O C ' s long-standing subordination of the Legislative

106 / As Pirates Become Proprietors

Yuan more generally were quick to attack the Executive Yuan for usurping the legislature's responsibilities by committ ing it to pass particular measures into law within a set period of t ime. 7 8 M o r e ­over, they and others indicated, the June 5 understanding constituted a "national humiliation," in that Taipei was al lowing the United States not only to dictate to its elected representatives, but also to demand an even higher standard of protection than required by the Berne Conven t ion . 7 9 This was especially irksome in v iew of the un­will ingness of the United States to support Taiwan's participation in Berne or any other multilateral intellectual property agreement. Small wonder, then, that legislators belonging to the opposition Democrat ic Progressive Party "demanded that details of the . . . negotiation process be released and called for the punishment of R O C negot ia tors ," 8 0 whi le others abandoned use of the traditional Chinese term for traitor (hanjian, or, literally, one w h o betrays the Han) in favor of the phrase taijian (literally, one w h o betrays Taiwan) to denounce ardent supporters of the understanding. 8 1

As legislatures wor ldwide are wont to when dealing wi th dif­ficult matters, the Legislative Yuan delayed taking action until the eleventh hour before ratifying the 1989 agreement days ahead of the January 31, 1993 deadline. 8 2 In finally ratifying it, however, the legis­lature added no fewer than eight reservations to the 22-article pact. A l though those reservations concerning parallel importation, public performance, and retroactivity, in particular, cut back on provisions of the agreement that the United States had emphasized, members of the Legislative Yuan believed them to be contrary either to the R O C ' s Const i tu t ion or law, or to exceed international norms.

The American reaction was unambiguous. Trade associations and individual companies alike plied the U S T R and the Congress wi th data suggesting that piracy was increasing on Taiwan. The IIPA, for example, contended that copyright counterfeiting alone in 1992 was double that of 1991 and joined wi th a host of other entities in iden­tifying the Taiwan situation as a first priority, leading one veteran R O C observer to suggest that in spite of years of trade negotia­tions, "Taiwan remains the jurisdiction where the broadest segment of U . S . industry continues to face its most pernicious counterfeit­ing and IP protection problems." 8 3 Even discounting for industry hyperbole, it was evident that American business was unwill ing to accept the compromise put forward by the Legislative Yuan.

As Pirates Become Proprietors / 107

For its part, the U S T R indicated that the reservations were unac­ceptable, save for a modest exception to the ban on parallel impor­tation. If the R O C persisted, cautioned the U S T R , there would be no alternative but to once again designate Taiwan a priority foreign country. In that situation, the U . S . government wou ld be free to re­taliate against its exports immediately without even the s ix-month investigation period required for first-time offenders. Retaliation, it was suggested, could wel l entail both the imposition of a large puni­tive tariff or sharp quantitative restrictions on R O C exports and a diminution of U . S . support for Taiwan's G A T T application. 8 4

T h e U S T R ' s threats triggered a sharp decline in the Taipei stock exchange and led President Lee personally to take active part in t ry­ing both to convince legislators of the need for action and to encour­age greater vigilance on the enforcement side. 8 5 Finally, on Apri l 26, 1993, the Legislative Yuan ratified the 1989 agreement in a manner satisfactory to the American side, but not without adding measures designed to deter the Executive Yuan from again unilaterally bind­ing the legislature. In return, when releasing its annual listing of nations misusing American intellectual property on Apri l 30, the U S T R chose not to designate Taiwan as a priority foreign country but instead to place it on the priority watch list. There the R O C re­mained, notwithstanding Taipei's subsequent passage of legislation intended to deter infringement by cable television operators and the launching of a so-called Comprehensive Act ion Plan for the P r o ­tection of Intellectual Property Rights that, inter alia, calls for the establishment of special intellectual property court chambers and of a new agency wi th a mandate to improve coordination between the governmental entities dealing wi th intellectual property matters, the police, and the courts . 8 6 And there, according to U S T R Mickey Kantor, Taiwan is likely to remain until the Legislative Yuan under­takes significant additional measures regarding copyright , patent, and trademark. 8 7

That American pressure has been the immediate catalyst for an unprecedented revision of intellectual property law in the R O C is undeniable. Bu t for the specter both of a diminished access to its largest export market and of alienating its most important ally, the R O C w o u l d not have amended its copyright and other intellectual property laws in the way or at the pace it has since 1989. N o n e ­theless, foreign pressure alone provides neither a full explanation

108 / As Pirates Become Proprietors

of the legal reforms that have already occurred nor, more impor­tant, a basis for inculcating the appreciation for intellectual property rights necessary if these laws are to take hold in a sustained fashion and thereby attain their stated goals. After all, were foreign pressure as certain an answer as its proponents believe, w h y was the R O C able to resist it for decades during which the island state was highly dependent on U . S . economic and military support, only to yield to it at a t ime when Taiwan has the world 's largest per capita for­eign currency reserves and has carved out its o w n position in the international c o m m u n i t y ? 8 8

An answer to this question lies in extraordinary economic, poli t i­cal, technological and diplomatic changes that have occurred in Tai­wan over the past decade and their implications for the society and its culture. Taiwan's explosive economic expansion, increasing aware­ness of the need for indigenous technology, ever-more-pluralistic political and intellectual life, g rowing commitment to formal legal processes, and international aspirations have made evident the need for intellectual property law and nurtured domestic constituencies wi th good reasons for supporting it.

On the economic front, 8 9 i t is evident that the type of l o w - w a g e , low- techno logy exports that fueled Taiwan's phenomenal g rowth of prior decades no longer wi l l suffice to nurture the quality of life to wh ich its people have become accustomed. As both government and industry have discerned, the R O C needs to generate its o w n wor ld -class technology if, in the years ahead, it is to compete wi th other advanced economies. Greater protection for intellectual property, in the words of the former Minister of Economic Affairs Vincent Siew, "is crucial to Taiwan's o w n industrial upgrading, [as] inade­quate efforts . . . wou ld dampen research and development ." 9 0 So it is that groups as varied as entrepreneurs involved in the famed X i n -zhu science park, engineers behind the R O C ' s burgeoning software business, publishers confronted with mainland piracy and many in the indigenous film and entertainment industries, among others, have of late raised voices in support of stronger protection. 9 1

N o r are such concerns limited only to those at the cutting edge— as evidenced by the budding concern of local businesses for trade­mark protection. At one time, so much of the R O C ' s industrial out­put was marketed under foreign brand names that one foreign w a g suggested that Taiwan was not "an exporting nation . . . but simply

As Pirates Become Proprietors / 109

a collection of international subcontractors serving the American market . " 9 2 Bu t n o w locally developed trademarks such as Kenex , Acer , and Ta-t 'ung have developed such a high reputation for quality that they have become the victims of infringement both at home and abroad. 9 3 It ought, therefore, not to be particularly surprising that a range of actors, including the august Chinese National Federation of Industries, representing many of the R O C ' s largest businesses, have taken to lobbying for more serious trademark protection. 9 4

These innovators and entrepreneurs would not have been able to give voice to such concerns, however, had it not been for the R O C ' s ongoing political transformation. O v e r the course of the past de­cade, the R O C has in many respects transformed itself from a highly centralized single-party state to a vibrant multiparty democracy. To be sure, the Guomindang's efforts to retain a high degree of con­trol over electronic media and otherwise keep its upper hand in the political process, as wel l as the corruption that cuts across party lines, continue to impede this evolut ion. 9 5 Nonetheless, the changes under way are clearly wi thout precedent in Chinese (or, for that matter, much of world) history and are seemingly irreversible.

If Taiwan's g r o w i n g democratization has complicated the c o n ­clusion of a copyright agreement wi th the United States by virtue of introducing multiple voices into the negotiating process, it has also helped diminish Chinese civilization's long-standing link be­tween censorship and copyright, while additionally facilitating cir­cumstances conducive to expanding sharply the numbers and range of persons interested in having their voices heard. Prior to the late 1980's, through both direct and indirect means, such as the "three limitations" (san xian), the Guomindang had, in the mode of its pre­decessors, essentially retained a high degree of control over print media . 9 6 But by 1988, the substance, if not the form, of such con­trol fell away dramatically, g iv ing rise to as varied and independent an array of publications as has ever existed in a Chinese society. Operat ing in and reinforcing a setting of increasing pluralism, these media have created unparalleled opportunities for the expression of v i ews other than those of the state and party. 9 7 And this, in turn, has added appreciably to the core of persons interested for political, as wel l as economic, reasons in the public use of their words , and so in the concerns addressed through copyright.

T h e political liberalization of the past decade has also, at least in-

110 / As Pirates Become Proprietors

directly, enhanced the viability of the R O C ' s courts as a venue for the resolution of problems concerning intellectual property, as wel l as civil disputes more generally. For many years, the judicial sys­tem on Taiwan suffered problems comparable to those that afflicted R O C courts on the mainland prior to 1949 and that beset P R C courts to this day. 9 8 Burdened with an excessive number of persons of less than optimal competence, integrity, and independence and saddled wi th substantive and procedural laws that all too often bore little relation to local conditions, the court system was seen more as an obstacle than a means of remedying infringement and associated difficulties.

In recent years, however, the R O C ' s judicial system has begun to change. Spurred by a democratizing society increasingly able to ex­press its concern that justice be done and by the breakdown, thanks to urbanization, industrialization, and internationalization, of tra­ditional fora for the resolution of disputes, the courts have been broadening their mandate beyond the maintenance of order. With this has come a continuing effort to upgrade the status, quality, and independence of the judiciary, the public and private bars, and other personnel associated with the administration of jus t ice . 9 9 A n d al though questions remain, the political, societal, and economic fac­tors that have been so central in the courts ' improvement—and wi th it, the will ingness of intellectual property holders to use them— seem certain to persist.

T h e prospect for Taiwan of playing a new and bolder role on the wor ld stage provides yet another rationale for supporting intellec­tual property laws. With the end of the C o l d War in Europe and the changing character of communist rule on the Chinese mainland, the R O C n o w finds itself with both the opportunity and a good deal of domestically generated pressure to assume a more v igor ­ous stance internationally. 1 0 0 This may mean not only jo in ing key economic entities such as G A T T 1 0 1 but also efforts to secure fur­ther international legitimation through such measures as member­ship in the United Nations or the judicious use by Taipei of its newfound wealth to foster wor thy developmental or educational endeavors abroad. But whatever may be entailed, it is clear that Tai­wan ' s lingering image as a haven for counterfeiting that fails to live up to international norms despite great prosperity impedes the drive toward greater international involvement and respectability. 1 0 2

As Pirates Become Proprietors / 111

That economic growth , political liberalization, diplomatic ambi­

tion, and other indigenous concerns, as well as external pressure, are

fostering a greater regard for intellectual property law in the R O C

by no means ensures that Taiwan wi l l soon cease to be perceived as

the land of $10 Rolex watches and knocked-off software. But , over

time, it does suggest that A lv in Tong wi l l have more important con­

cerns about which to think than "twist[ing] the arms of [his] . . .

engineers to file a patent."

Six

No Mickey Mouse Matter: U.S. Policy on

Intellectual Property in Chinese Society

As far as intellectual property is concerned, the practice

of the Uni ted States asking large numbers of Chinese

students to stay in the Uni ted States is itself a big plun­

der of intellectual property.

Wang K e , "Essence of Escalation of

S i n o - U S . Trade Frictions" (January 5, 1992)

T h e occupation of Tiananmen Square in late May 1989 by thousands of Chinese students, workers, and other citizens stirred the imagina­tion of millions throughout the world, but evoked far less response from the U . S . government than did the possibility of successfully concluding discussions then under way with the P R C concerning intellectual property protection. 1 The Bush administration's pro­fessed concern about interfering in China 's internal affairs, which supposedly constrained it from pushing with vigor, either publicly or privately, for a peaceful resolution of the occupation of the square, simply did not carry over to intellectual property. Instead, even as tensions mounted between hunger strikers in the square and elders of the Chinese Communis t party, the U . S . government repeatedly threatened the P R C with massive and unprecedented trade sanctions if China did not promise to devise legal protection for computer software to America 's l iking. 2 And so it was that as the Chinese government spent M a y 19 putting the finishing touches to the dec­laration of martial law that was to signal a tragic end to the Beijing

No Mickey Mouse Matter / 113

Spring of 1989, American negotiators were busy putting their o w n finishing touches to a memorandum regarding computer software protect ion. 3

T h e decisions that led the U . S . government to pay insufficient heed to the epochal events culminating on June 4, 1989, and in­stead to devote a goodly portion of its available diplomatic leverage to securing promises about software, were neither inadvertent nor passing tactical errors. On the contrary, they exemplify the high priority that intellectual property protection has assumed in A m e r i ­can foreign policy wi th respect to the Chinese world and beyond since the mid 1980's, and the concomitant conviction that the key to securing such protection is the passage of new legislation, through pressure if need be. As discussed in chapter 5, the Bush and C l i n ­ton administrations have made intellectual property a centerpiece of America 's quasi-official relations wi th Taipei. N o r has Taipei been singled out in this respect. Even after the tragic ending of the occu­pation of Tiananmen Square and the resultant expansion of concern in the Uni ted States about human rights in the P R C , intellectual property issues have remained at or very close to the forefront of the U . S . negotiating agenda wi th Beijing.

T h e degree to which intellectual property protection became a defining issue in relations wi th the P R C is graphically illustrated by an extraordinary series of events that occurred late in the Bush ad­ministration, leading up to the conclusion of the bilateral Memoran­dum of Understanding on Intellectual Property ofjanuary 17, 1992. In N o v e m b e r 1991, then Secretary of State James Baker made the first visit to China by an American cabinet officer since the crushing of the Beijing Spring movement of 1989. Picking up on increasingly direct messages delivered by lower-level officials throughout the preceding t w o years, Baker informed the Chinese that the misuse of American intellectual property stood with the sales of weapons of mass destruction to international outlaws such as Iran and abuses of fundamental human rights as one of three issues impeding better bilateral relations. 4 On December 16, the U . S . government moved to separate out and highlight intellectual property, as U S T R Carla Hills delivered an ultimatum demanding that Beijing agree within a month's t ime to rewrite its intellectual property laws to the satisfac­tion of Washington or face the imposition of hundreds of millions of dollars of punitive tariffs.5

Within days, Beijing responded in kind to the Hills ultimatum,

114 / No Mickey Mouse Matter

indicating that it might impose comparable tariffs on American e x ­ports to China . This , in turn, led the Bush administration, which throughout its tenure had steadfastly resisted congressional efforts to l imit M F N preferential tariff rates for China on human rights or any other grounds, to threaten to end M F N , discourage further Amer ican investment in China, and impede the P R C ' s G A T T ap­plication. 6 Faced wi th the most substantial threats made against it by the United States in over two decades, hours before Ambassador Hills 's deadline, Beijing capitulated and signed the desired agree­ment . 7 But the deal was not without its benefits for Beijing, as to compensate for the bitterness of the negotiations, President Bush agreed to receive Premier Li Peng, a principal architect of the sup­pression of 1989, a mere fortnight later, thereby "implicitly c o m ­p le t i ng ] Peking's [post-Tiananmen] diplomatic rehabilitation." 8

Dur ing its first year and a half in office, the Cl inton administra­tion does not appear to have steered a substantially different course from that of George Bush. Indeed, it has exhibited an even greater singularity of purpose regarding intellectual property in relations wi th Taipei than its predecessor, demanding, as outlined in chap­ter 5, that further law reform be undertaken to American specifica­tions on Washington's timetable. Little attention seems to have been devoted to the possibility that such demands may have placed R O C negotiators in a difficult position constitutionally and in a more v e x ­ing one politically in terms of the intricate internal underpinnings of the R O C ' s unprecedented moves toward greater democratiza­tion and a more active role on the world stage. In its dealings wi th Beij ing, the Cl in ton administration initially suggested that it was placing a greater emphasis on human rights and strategic concerns than its predecessors, but as the seeming costs to American export ­ers of stressing such concerns have become more apparent, it has, in the words of New York Times diplomatic correspondent Thomas Friedman, "put human rights issues on the back burner," wi th the result that "one of the main sources of friction between Washing­ton and Beijing wi l l be over trade issues and particularly copyright violat ions" as evidenced in U S T R Kantor's June 30, 1994 decision to designate the P R C a "priority foreign country" under the so-called Special 301 provision of the 1988 Trade A c t . 9

That, in spite of their other differences, Republican and D e m o ­cratic administrations should have made intellectual property issues

No Mickey Mouse Matter / 115

so central a feature of Sino-American relations is not surprising when one considers the manner in which affected American indus­tries have brought such concerns to the foreground politically, c o m ­mencing in the mid 1980's. Al though counterfeiting had long been a problem, it was at that time that key domestic industries succeeded in fostering a politically potent perception that their losses were linked to the nation's larger trade difficulties. 1 0 Calculating losses on the presumption that current infringers would buy at list price rather than cease using their products, they contended that infringe­ment accounted for much of the burgeoning U . S . trade deficit— especially in East Asia—and, moreover, that it threatened those very service and high-technology industries on which a rosier future was supposed to be based. For politicians, the possibility of shifting at­tention away from America 's seemingly intractable domestic eco ­nomic problems and onto foreigners—and particularly distant for­eigners w h o neither purchased our goods in abundance nor showed compunct ion about misappropriating the fruits of our technologi­cal p rowess—was too tempting to resist. A n d the fact that a sizable number of the key industries raising these concerns were located in such electorally important areas as Southern and Northern Cal i for­nia, Texas, and N e w York, and were involved in mass communica­tions, only made such temptations more appealing.

To be sure, the unprecedented pressure brought to bear by the Bush administration did lead to the signing of a so-called M e m o ­randum of Understanding, in which China pledged to strengthen its principal intellectual property laws. As regards patent, the P R C agreed to revise its Patent Law to extend the term of invention patents to 20 years; to cover pharmaceutical, chemical, and alimen­tary products; to enhance process patent protection; and to ease c o m ­pulsory licensing requirements. With respect to copyright, China agreed to accede to the Berne Convent ion prior to the end of 1992, and to the Geneva Phonograms Convent ion no later than June 1, 1993; to treat software as a literary work deserving of protection even in the absence of formal registration; and to provide at least some modest limits on open-ended provisions that had the effect of treating materials already published as in the public domain. A n d additional promises were made to use "best efforts" to promulgate trade secrets legislation prior to January 1, 1994, and to develop more "effective procedures" in the trademark area. 1 1

116 / No Mickey Mouse Matter

The P R C has, indeed, carried through on the formal commi t ­ments made in the January 1992 Memorandum of Understanding— certain of which it had already begun contemplating making. T h e Patent Law has been revised to incorporate measures discussed in the Memorandum. Beijing has not only acceded to the Berne, Geneva, and Universal Copyr igh t conventions, but has also issued regula­tions reaffirming Article 142 of the General Principles of the C i v i l Law, which provides that treaty obligations are to prevail in the event that they conflict with municipal law. 1 2 A new Anti—Unfair Compet i t ion Law provides China's first direct protection for trade secrets. 1 3 A n d the Trademark Law has been amended to cover service marks, simplify opposition and cancellation procedures, heighten penalties for infringement, and take a number of more modest steps to improve this area of the law.

Clearly, China 's agreement in January 1992 to supplement its intellectual property laws, and the steps taken thereafter to amend doctrine, offered advantages to both sides. At an immediate level, one of the most serious, if little publicized, disputes between the t w o nations in decades was, at least in the short term, defused. More sub­stantively, both countries have benefited from China 's elaboration of its formal legal regime in an area of growing importance and in­creasing complexity, just as efforts to bring the law closer to broadly fol lowed international standards facilitate a policy of integration into the wor ld economy. 1 4 A n d at a more general level, the further articulation of rights, albeit in a highly formalistic fashion, can be said to have laid another stepping-stone on the long path toward a society more shaped by legality, or at least to have established an ever more finely calibrated standard against which to measure the C o m m u n i s t party's ability to live up to its promises. 1 5

Whatever advantages these steps may be seen as having provided, it is critical that one not equate the promulgation of new law on intellectual property wi th a meaningful transformation of Chinese life, notwithstanding the tendency of both the P R C and U . S . g o v ­ernments, each in its o w n way, to impart the impression that this is the case. 1 6 For although it is as yet too early to reach a definitive judgment as to the full effect of what might be termed a second generation of post-Cul tural Revolution intellectual property laws, there is also no indication that these new laws are meaningfully altering prior practice in this area, even taking into account much-

No Mickey Mouse Matter / 117

publicized government propaganda efforts associated wi th their p ro­mulgation. On the contrary, one might well contend that the very tensions that marked the P R C ' s first generation of intellectual prop­erty laws, as wel l as the post-Cultural Revolution law reform effort more generally—and, in each instance, limited the realization of stated objectives—remain essentially unaltered in the new genera­tion of intellectual property laws and, for that matter, the ongoing project of law reform. 1 7

As discussed in chapter 4, the P R C ' s early post-Cultural Revo lu­tion law reform efforts in general were characterized by the creation of rights wi thout adequate provision for their realization. More re­cent measures do help to clarify many ambiguities and fill in gaps, and as such have, some would contend, begun the process of estab­lishing meaningful municipal standards, departure from which wi l l entail sanctions. Nonetheless, even granting this point, these mea­sures neither address the problem of an insufficiency of remedial measures in contemporary Chinese doctrine nor speak to the more difficult questions involved in fostering institutions and values that might make possible a fuller realization of those rights provided. Thus , even after the revisions of the 1990's, P R C intellectual prop­erty law on its face either still fails sufficiently to address the issue of remedies, as in the cases of patent and copyright, or remains heavily dependent on administrative remedies redolent of the days of the controlled economy, as in the case of trademark. But even if remedies that parties could invoke and shape were stated more fully, the institutional vehicles through which these might be realized— be they administrative or judicial—remain insufficiently indepen­dent and professional. And , perhaps most vitally, before even those remedial measures and institutions that do exist can be fully utilized and others advanced, there remains a need further to foster what might be called a rights consciousness—that is, a belief that indi­viduals are endowed wi th rights that they are entitled to assert even wi th respect to those in positions of authority.

Whi le it w o u l d be disingenuous to suggest that a foreign g o v ­ernment unable to preserve the integrity of Mickey Mouse some­h o w can and should play an important role in seeking to transform another people's attitudes toward rights, it is a contention of this study that a pol icy consisting in large measure of the use of exten­sive pressure to secure formal modifications of doctrine is deeply

118 / No Mickey Mouse Matter

flawed in both its methodology and its objectives, and ultimately self-deluding as to the process and implications of legal change. The ready and frequent use by one nation of massive threats to secure changes in the municipal laws of another sovereign state may e x ­tract short-term concessions designed chiefly to ease such pressure, and may even help set in place standards against which a nation's citizens may be able to assess their government's willingness to ad­here to its o w n rules. It is, however, incapable of generating the type of domestic rationale and conditions needed to produce enduring change and, moreover, runs a serious risk of discrediting the very message it, at least ostensibly, is intended to impart of the need for a greater respect for rights and the legal processes through which they are to be protected.

Arguably , this danger is accentuated with regard to the P R C , where more than a century's history of foreign states' using their greater power to extract concessions in the name of legality and supposedly higher ideals has combined with the current g rowing abuse by powerful Chinese of legal process for private gain to pro­duce a widespread skepticism about appeals to the law. 1 8 The further fact that one prominent end toward which such pressure has been brought to bear and resisted in Sino-American relations during both the 1900's and 1990's has been the promulgation of Western-style intellectual property law is surely ironic and reflective of the unduly static and monodimensional vision that both the U . S . and P R C governments have of what legal change means. For wi thout a concomitant nurturing of the institutions, personnel, interests, and values capable of sustaining a liberal, rights-based legal i ty— which has hardly been a prime concern of either American or Chinese negotiators at either the beginning or the end of the twen­tieth century—freestanding foreign-derived rules on rarified pri­vate property rights, held in significant measure by foreign parties, are, ultimately, of limited utility. Stated differently, in its choice of means and ends, the United States has, in effect, devoted consider­able diplomatic capital to securing concessions that fail meaningfully to speak to the chief impediments to the development in China of respect for legality and, through it, of a greater commitment to the protection of intellectual property rights.

To take issue wi th the means utilized and ends sought by the United States in its dealings with the Chinese world over intellec-

No Mickey Mouse Matter / 119

tual property is not to suggest that foreign parties should desist from seeking to assert their interests or otherwise make their presence felt in the P R C or R O C . Clearly, in an increasingly interdependent wor ld , where ideas, items, and individuals move across borders in profusion, whether governments wish them to or not, that is no longer an option. Rather, it is to stress the need to we igh wi th great care the rationale, character, and implications of such intervention prior to undertaking it; to emphasize the capacity of means to define, if not distort, ends; and to underscore the importance of remember­ing that the sovereign affairs of a state should ultimately be shaped principally by those whose polity it is.

I f the purpose of U . S . policy toward the P R C concerning intel­lectual property is to secure meaningful protection for American property interests, it is necessary, therefore, first to understand w h y such protection is no more readily available for Chinese—as it is in­conceivable that a system designed largely to protect the former, but not the latter could be sustained in modern China, given the bitter legacy of more than a century of foreign privilege. Al though it is i m ­possible to prove a negative, and perhaps as difficult to isolate inter­w o v e n variables in the laboratory of life, this study suggests that we need to move beyond the written rule itself to a consideration of the broader social and intellectual circumstances, and, in particular, the political culture within which law arises and within which it must operate. Obvious ly , political culture is an inexact notion, the con­tents of wh ich have hardly remained constant over four millennia of Chinese history, interact wi th economic and other variables, and in any event are not who l ly unique to China. Nonetheless, recognizing the limitations of this concept, it is a central contention of this book that the most important factor in explaining the late appearance and relative insignificance of the idea of intellectual property in the C h i ­nese wor ld lies in what, for lack of a better term, we might describe as its political culture, and especially in the central importance to the state, for purposes of legitimation and power, of controlling the flow of ideas. A system of state determination of which ideas may or may not be disseminated is fundamentally incompatible wi th one of strong intellectual property rights in which individuals have the authority to determine how expressions of their ideas may be used and ready access to private legal remedies to vindicate such rights. 1 9

Political culture is not impervious to change, as the experience

120 / No Mickey Mouse Matter

of the R O C on Taiwan, to cite but one example, shows. There, an extraordinary, if still evolving, political liberalization has spawned an unprecedented degree of pluralistic expression and openness of association that, in conjunction with the economic, diplomatic, and other factors discussed in chapter 5, offers the prospect of a more realistic foundation than has heretofore existed in the Chinese wor ld for sustained support for intellectual property protection for both nationals and foreigners. 2 0 Undoubtedly, such change is a far more uncertain and complex proposition on the Chinese mainland, given its relative size, poverty, level of educational attainment, and the extent to which until recent years it has been isolated from alter­native currents of political thought. Nonetheless, as suggested in chapter 4, even in the P R C , its beginnings are evident, although the state's ambivalence about the very rights it has been busy creating, and its concomitant hesitance to cede to individuals a greater ca­pacity for enforcing them, raises questions as to the potential of such steps genuinely to transform fundamental tenets of Chinese political culture.

To the extent that political culture, broadly defined, has been a prime impediment to the growth of modern intellectual property law in the Chinese world , Americans interested in the protection of such rights wou ld do well to concern themselves more directly wi th it, for wi thout further political liberalization and a greater concomi­tant commitment to the institutions, personnel, and values needed to undergird a rights-based legality, detailed refinements in intellec­tual property doctrine itself wi l l be of limited value. The challenges so posed are daunting, for by its very nature, political culture c o m ­prises enduring values and practices central to a nation's identity, wh ich foreigners, perforce, should not too readily assume they have either the moral authority or capacity meaningfully to influence. Nonetheless, it is here that attention should be focused, for a state that encounters serious difficulties in protecting its citizens' basic civil and political rights is unlikely to be able to protect their prop­erty rights, wh ich in turn means that it wi l l be even less likely to protect the highly sophisticated property interests of foreigners.

T h e question of what constitutes fundamental civil and political rights also, of course, poses daunting challenges of definition, par­ticularly if one subscribes to the idea that political culture and the differing historical experiences of which it in part consists are of con-

No Mickey Mouse Matter / 121

sequence. 2 1 It is not my intention here either to define the contours of such rights, beyond referring to the broad standards set forth in the major international conventions—certain of which neither the P R C nor the United States have ratified—or to attempt a precise delineation of the relationship between economic and social rights on the one hand and civil and political rights on the other. N o r am I seeking to endorse the alluring, but overly simplistic, equation that many Americans would make between concern over issues of human rights and a belief that China 's shortcomings therewith war ­ranted a cessation of M F N — f o r as I have suggested elsewhere, the M F N issue in many respects fell v ic t im to domestic American polit i­cal considerations that obscured the search for convincing answers to the truly difficult question of what best advances the cause of international human rights in China (or other nations, for that mat­te r . ) 2 2 Rather, my point is to underscore my contention that the United States would , in the end, have been far more pragmatic in advancing its intellectual property interests during M a y 1989 had it not expended considerable political capital on computer software protection, but instead used what leverage it had to more vigorously seek a resolution of the occupation of Tiananmen Square compatible w i th respect for fundamental human rights, even while recognizing the limits of its ability definitively to shape such events.

Daunt ing though they may be, the foregoing are not the only challenges confronting those w h o would hope to foster a greater respect for intellectual property and other legal rights in China. As the P R C ' s efforts at law reform proceed, there is a g rowing need for vigilance as to w h o is seeking to use the law and toward what end. Obvious ly , such concern is necessary in any society, but both history and the novelty and fragility of many of P R C ' s new formal legal institutions underscore its importance in the current Chinese context. Already, law is being enlisted in a highly instrumental fash­ion as a weapon in intensifying struggles within and between units of government and party, center and region, and various other enti­ties and individuals. 2 3 If rights are to be protected, legal reform wi l l need not only to facilitate the assertion by various entities and indi­viduals of their particular interests, but also to provide a generalized and visible means through which competition between them can be fairly resolved.

C lose scrutiny wi l l also be necessary to discern and think through

122 / No Mickey Mouse Matter

the implications of h o w ministries and individuals once at the heart of the planned economy and administrative state are now, under the rubric of reform, pouring forth a torrent of new and often highly parochial rules in order to recast themselves as agents of change, lay claim to resources, and ensure themselves an ongoing role in tomorrow's China. Advocates of the growth of respect for intellec­tual property rights wi l l need, for example, to assess carefully such seemingly unalloyedly positive undertakings as the S A I C ' s recent 6,000-strong cadre campaign against trademark infringement. Are the benefits of reducing such counterfeiting wor th the risk of p ro ­viding an agency that in pre-reform days tightly oversaw virtually all facets of local commercial activity wi th a ready excuse to exercise sweeping administrative authority over retail enterprises not con­trolled by the state? Undoubtedly, many such entities are engaged in activities contravening intellectual property laws, and, indeed, wi th further economic liberalization, and the resulting emphasis on profitability, they are prime candidates for carrying out further in­fringement. Nonetheless, these entities are among the most ardent advocates of the very economic reform that has facilitated much of whatever g rowth of intellectual property law has already occurred and that is in general bringing China closer to the world economy.

Americans and other foreigners concerned about intellectual property rights may also have to face variants of this conundrum wi th respect both to access for Chinese goods in their home markets and competit ion from P R C entities more generally. Earnings from exports to major foreign markets and investment induced thereby have been important factors in enabling Chinese exporters, particu­larly in southeastern China, to enjoy autonomy—principally eco ­nomic, but in a modest, but growing, degree political—from central state and party authorities (if not always their local counterparts). If reform is to continue and if, in the future, Chinese enterprises are to accumulate sufficient capital from sources other than the state to conduct the research needed to develop commercially valuable intellectual property of their own, increased exports are a certainty. T h e United States, to take but one example, already limits i m ­ports of textiles, shoes, and other labor-intensive items in which the P R C enjoys a comparative advantage, and, concerned about its bur­geoning trade deficit wi th Beijing, Washington is making serious noises about imposing further such restrictions. 2 4 A l though provid-

No Mickey Mouse Matter / 123

ing more open markets wi l l not necessarily directly produce a rapid g r o w t h of intellectual property law in the P R C , constricting access to the markets of major industrialized countries almost certainly wi l l retard it. Americans concerned about their intellectual property in the P R C wou ld do well to recognize that the conditions likely to be conducive to the further growth of respect for intellectual property in China are those that may also dictate permitting P R C exports to compete more, rather than less, freely in the American marketplace.

Embedded in the problems of increased infringement and fur­ther market access is a challenge—namely, that the circumstances likely to lead to greater protection for intellectual property in the P R C are also likely to enhance China's overall capacity to compete wi th the United States economically. If it is true that serious pro­tection for foreign intellectual property in the P R C must await the further development of Chinese-generated intellectual property of commercial importance, it follows that a P R C wil l ing to accord American holders of intellectual property more of the rights they n o w seek wi l l likely have many more enterprises that are techno­logically sophisticated and increasingly commercially competit ive internationally. In short, the conditions that breed protection for intellectual property are also those that breed competition wi th re­gard to intellectual property.

Acknowledgemen t of the problems engendered by current efforts to graft l imbs g r o w n in one setting onto trunks that have matured in another w i l l not of itself provide remedies to the many and vexing problems of transplantation discussed in this book. It may, h o w ­ever, reduce friction resulting from misunderstanding, whi le br ing­ing into starker relief the difficult, but inescapable, questions that confront the P R C as it seeks to generate a legal system capable of serving nation building. For only if we have some understanding of w h y in Chinese civilization it has been an elegant offense to steal a b o o k wi l l China and its foreign friends k n o w how in the future to discern and protect one another's legitimate interests.

Reference Matter

Notes

One. Introduction

T h e a p h o r i s m in the e p i g r a p h to this chapter appears in Lu X u n ' s s h o r t

s t o r y " K o n g Yi j i . " See Selected Stories ofLu Hsiin, trans . Y a n g H s i e n - y i and

G l a d y s Y a n g ( N e w Y o r k : O r i o l e E d i t i o n s , n . d . ) , 39-45.

1. T h e h i s tory of these i n n o v a t i o n s is descr ibed in C h ' i e n , Paper and

Printing.

2 . T h e P R C ' s f o r m a l u n d e r t a k i n g to revise its intel lectual p r o p e r t y l a w s

i s c o n t a i n e d in a M e m o r a n d u m of U n d e r s t a n d i n g s i g n e d w i t h the g o v e r n ­

m e n t o f the U n i t e d States o n J a n u a r y 17, 1992. T h e efforts o f the P R C t o

rev i se its c o p y r i g h t , patent , and t r a d e m a r k laws are d i s c u s s e d in detai l in

chapter 4 , wh i l e the n e g o t i a t i o n s l ead ing to the M e m o r a n d u m are c o n s i d ­

ered in chapter 6 . T h e R O C ' s intel lectual p r o p e r t y laws f o r m the s u b j e c t

o f chapter 5 . T h e pres sure b r o u g h t t o bear b y the U . S . g o v e r n m e n t o n

the P R C i s treated i n A l f o r d , "Perspect ive o n C h i n a . " T h a t app l i ed t o the

R O C i s c o n s i d e r e d i n B a u m , "Ta iwan o n a T i g h t r o p e . " S e e a l so A l f o r d ,

"Intel lectual P r o p e r t y . "

3 . Trea t i s e s p r o v i d i n g an i n t r o d u c t i o n to the current s tate of d o c t r i n e in

these f ie lds in the U n i t e d States inc lude N i m m e r , Nimmeron Copyright; Peter

R o s e n b e r g , Patent Law Fundamentals; and M c C a r t h y , Trademarks and Unfair

Competition. L e g a l p r o t e c t i o n is a l so avai lable in the U n i t e d States for o ther

f o r m s o f inte l lectual proper ty , inc lud ing s e m i c o n d u c t o r m a s k w o r k s , t r a d e

secrets , a n d k n o w - h o w .

4 . T h e ear ly h i s tory of c o p y r i g h t in the West i s treated in Pa t t er son ,

Copyright in Historical Perspective; R o s e , Authors and Owners; and W o o d m a n s e e ,

" G e n i u s and the C o p y r i g h t . "

5 . T h e ear ly h i s tory of patent in the West is d i s c u s s e d in K a u f e r , Eco­

nomics of the Patent System.

6. S e e , e . g . , Z o u , " B a o h u b a n q u a n . . . ?" and Z h e n g and Pendle ton ,

Copyright Law in China, 9 - 1 7 .

128 / N o t e s to P a g e s 2-5

7 . S e e , e .g . , Ade l s t e in a n d Peretz , " C o m p e t i t i o n o f T e c h n o l o g i e s and

M a r k e t s for Ideas ," 209.

8 . S e e " M e m o r a n d u m o f U n d e r s t a n d i n g . . . o n the P r o t e c t i o n o f Inte l ­

lectual P r o p e r t y " ; A l f o r d , "Perspect ive on C h i n a " ; Lachica , " C h i n a Sett les

D i s p u t e . "

9. T h i s is no t to contend that intel lectual p r o p e r t y law in the West has

been or is u n i d i m e n s i o n a l . A s t r o n g a r g u m e n t can be m a d e that a central

o b j e c t i v e of c o p y r i g h t in c o n t e m p o r a r y A m e r i c a n soc ie ty i s to faci l i tate a

m a r k e t p l a c e o f ideas (even a s one recogn izes h o w pr ivate o w n e r s h i p i n s o m e

r e s p e c t s curta i l s the f l o w o f the i n f o r m a t i o n ) . See B o y l e , " T h e o r y o f L a w

and I n f o r m a t i o n . "

10. S t u d e n t s o f c o m p a r a t i v e intel lectual p r o p e r t y law w o u l d b e q u i c k

t o n o t e that f u n d a m e n t a l d i m e n s i o n s o f U . S . intel lectual p r o p e r t y law, such

as o u r patent l aw' s rel iance on the pr inc ip le o f b e i n g the f i rs t to invent rather

than the f i r s t to f i l e , s u g g e s t that the exper ience o f the U n i t e d States hard ly

p r o v i d e s a " n o r m a l " pat tern of g r o w t h relative to other Western nat ions . In

fact, U . S . ins i s tence on reta ining the f i r s t to invent rule has effectively d e ­

rai led a d e c a d e - l o n g internat ional effort at h a r m o n i z i n g patent l a w s . T e r e s a

R i o r d a n , "Patents: T h e Patent Off ice T a k e s a S t a n d on Internat ional Patent

Pol icy, B u t It Is C o n f u s i n g to M a n y , " New York Times, F e b . 7, 1994, D 2 .

1 1 . D e s p i t e increas ing c o n v e r g e n c e in recent y e a r s — o r , a t least , i n c r e a s ­

i n g c l a i m s o f c o n v e r g e n c e , g iven the dec is ion o f the U n i t e d States in 1989,

f ina l ly , to ratify the Internat ional U n i o n for the P r o t e c t i o n o f L i t e r a r y

a n d A r t i s t i c P r o p e r t y (the B e r n e C o n v e n t i o n ) — C o n t i n e n t a l and A n g l o -

A m e r i c a n n o t i o n s o f c o p y r i g h t s p r a n g f r o m different r o o t s . A l t h o u g h there

are c o n s i d e r a b l e differences be tween French and G e r m a n c o p y r i g h t law,

b o t h can be traced to ideas o f natural law current in the a f termath o f the

F r e n c h R e v o l u t i o n . S e e S t e w a r t , International Copyright. T h e r o o t s o f A n g l o -

A m e r i c a n c o p y r i g h t , on the o ther hand, appear to have been m o r e ter ­

res tr ia l ly b a s e d in e c o n o m i c cons idera t ions . See K a p l a n , Unhurried View of

Copyright. F o r an o v e r v i e w of the w a y s in w h i c h m o d e r n t e c h n o l o g y i s cha l ­

l e n g i n g m a n y a s s u m p t i o n s in this area o f law b o t h here and in o ther i n d u s ­

tr ia l ized d e m o c r a c i e s , see U . S . Off ice o f T e c h n o l o g y A s s e s s m e n t , Intellectual

Property Rights.

12. T o u g h q u e s t i o n s r e g a r d i n g the ex tent t o w h i c h inte l lectual p r o p e r t y

law achieves its s ta ted a i m s a n y w h e r e are raised in Priest , "What E c o n o ­

m i s t s C a n Tell L a w y e r s " ; Breyer , " U n e a s y C a s e for C o p y r i g h t " ; Fisher ,

" R e c o n s t r u c t i n g the Fair U s e D o c t r i n e " ; and M e r g e s , " C o m m e r c i a l S u c ­

cess a n d Patent S t a n d a r d s . " A l s o w o r t h c o n s i d e r i n g are empir ica l efforts by

e c o n o m i s t s , inc lud ing M a n s f i e l d , "Patents and Innovat ion"; L e v i n e t a l . ,

" A p p r o p r i a t i n g the R e t u r n s f r o m Industr ia l R & D " ; and Lev in , " A p p r o p r i -

abil i ty, R & D S p e n d i n g and Techno log ica l Per formance ." T h e q u e s t i o n o f

N o t e to P a g e 5 / 129

ef fect iveness i s no m o r e easi ly re so lved wi th respect to d e v e l o p i n g n a t i o n s .

A n u m b e r o f c o m m e n t a t o r s ( s o m e in the e m p l o y o f deve loped w o r l d enter ­

pr i ses that s tand to profit t h r o u g h increased pro tec t ion for intel lectual p r o p ­

er ty g l o b a l l y ) con tend that the benefits for d e v e l o p i n g nat ions o f e m b r a c i n g

grea ter f o r m a l l ega l i ty far o u t w e i g h the cos t s . See , e .g . , Franc is B r o w n and

C a r o l e B r o w n , e d s . , Intellectual Property Rights; S h e r w o o d , Intellectual Prop­

erty; G a d b a w and R i c h a r d s , Intellectual Property Rights; and R a p p and R o z e k ,

"Benef i t s and C o s t s . " C e r t a i n o f these wr i ters d e p l o y ex tens ive s tat is t ics in

m a k i n g their cases , a l t h o u g h i n s o m e instances , such data rest o n q u e s t i o n ­

able a s s u m p t i o n s (as, e . g . , w h e n R a p p and R o z e k essential ly conflate l e g i s l a ­

t ive e n a c t m e n t a n d en forcement ) and offer little ins ight as to whe ther intel ­

lectual p r o p e r t y l a w s p a w n e d p r o s p e r i t y or p r o s p e r i t y s p a w n e d inte l lectual

p r o p e r t y law. O t h e r c o m m e n t a t o r s are s o m e w h a t m o r e skept ical a b o u t the

i m p a c t o f inte l lectual p r o p e r t y pro tec t ion o n the e c o n o m i c and pol i t ical

s i tua t ion of d e v e l o p i n g nat ions . See , e . g . , G o o n a t i l a k e , Aborted Discovery;

O d d i , "Internat ional Patent S y s t e m " ; A d i k i b i , "Mul t ina t iona l C o r p o r a t i o n

and M o n o p o l y o f Patents"; and K i r i m , " R e c o n s i d e r i n g Patents ."

13. T h e U . S . Internat ional T r a d e C o m m i s s i o n , a s e m i - i n d e p e n d e n t f e d ­

eral a g e n c y w h o s e respons ib i l i t i e s inc lude p r e p a r i n g repor t s on the inter­

nat ional e c o n o m i c act iv i ty o f the U n i t e d States , e s t imates that f o r e i g n i n ­

f r i n g e m e n t o f A m e r i c a n intel lectual p r o p e r t y cos t s this c o u n t r y m o r e than

133,000 j o b s a n d f r o m U.S .$23 .8 to U . S . $ 6 1 bi l l ion in lost prof i ts a n n u ­

ally, and that the P R C and R O C account for a s izable p o r t i o n o f that in ­

f r ingement ; see U . S . Internat ional T r a d e C o m m i s s i o n , Effect of Foreign Prod­

uct Counterfeiting and Foreign Protection of Intellectual Property Rights. See a l so

E d u a r d o Lach ica , " U . S . S t e p s U p Ef for t s t o F o r m Pact o n Patents ," Wall

Street Journal, F e b . 29, 1988, 46. T h e s e f igures s h o u l d not be taken at face

v a l u e , a s they are b a s e d on data suppl i ed by d o m e s t i c indus tr i e s s e e k i n g

g o v e r n m e n t ass i s tance aga ins t infr ingers and typical ly calculate losses by

m u l t i p l y i n g e s t i m a t e d instances o f in fr ingement by full list pr ices . E v e n a s ­

s u m i n g the a c c u r a c y o f e s t imates o f the n u m b e r s o f in fr ingers , there i s n o

r e a s o n to p r e s u m e that each infr inger w o u l d prefer to pay a list pr ice rather

than cease u s i n g the i t em in q u e s t i o n , w e r e these the on ly t w o a l ternat ives

ava i lab le . I t s e e m s far m o r e likely, to take b u t a s i n g l e e x a m p l e , that l a w s t u ­

dent s in the P R C , w h o typical ly l ive on less than U .S .$35 a m o n t h , w o u l d

cease u s i n g p i ra ted A m e r i c a n texts rather than pay full pr ice for such b o o k s ,

w h i c h typ ica l ly list for m o r e than U .S .$35 each. N o n e t h e l e s s , there i s little

d o u b t that i n f r i n g e m e n t o f U . S . intel lectual p r o p e r t y no t on ly exac t s a grea t

cos t in t e r m s o f los t revenues and j o b s b u t a l so has a de le ter ious i m p a c t on

u n w i t t i n g c o n s u m e r s here and a b r o a d o f a r a n g e o f s u b s t a n d a r d p r o d u c t s ,

f r o m i m p r o p e r l y c o n s t i t u t e d p o l i o vacc ine to fake a u t o m o b i l e parts t o d e ­

fect ive c o n t r a c e p t i v e devices . See R a k o f f and Wolff, " C o m m e r c i a l C o u n t e r -

130 / N o t e s to P a g e 5

fe i t ing." T h e v a r i o u s f o r m s o f in fr ing ing act ivi ty and the d a m a g e they c a u s e

are d i s c u s s e d in G e n e r a l A c c o u n t i n g Off ice , International Trade.

14. Inte l lectual p r o p e r t y r igh t s have largely been terri toria l in s c o p e .

T h a t is , they essent ia l ly p r o v i d e protec t ion on ly wi th respect to i n f r i n g e ­

m e n t o c c u r r i n g wi th in the terr i tory o f the nat ion g r a n t i n g the r i g h t in

q u e s t i o n . C o m m e n c i n g wi th the International U n i o n for the P r o t e c t i o n

o f Industr ia l P r o p e r t y o f 1883 (the Paris C o n v e n t i o n ) , which deals w i t h

patent and t r a d e m a r k , and the B e r n e C o n v e n t i o n , w h i c h a d d r e s s e s c o p y ­

r ight , efforts have been m a d e to enable nat ionals o f o n e nat ion to s e c u r e

c o u n t e r p a r t r igh t s w i th in the terr i tory o f o ther nat ions .

T h e d e v e l o p m e n t o f a B e n e l u x patent , w o r k t o w a r d a E u r o p e a n patent ,

and a t t e m p t s to p r o m o t e a " w o r l d " patent s u g g e s t the poss ib i l i ty o f fur ­

ther e x t e n d i n g intel lectual p r o p e r t y r ights b e y o n d their current terr i toria l

s ta tus . N o n e t h e l e s s , g iven the difficulties that have m a r k e d such efforts to

h a r m o n i z e the law, as wel l as the p r o b l e m s that w o u l d ensue f r o m s u b ­

s e q u e n t d i v e r g e n t nat ional interpretat ions , m e a n i n g f u l h a r m o n i z a t i o n o f

inte l lectual p r o p e r t y law remains on ly a distant poss ibi l i ty . In its absence ,

the U n i t e d States and other nat ions frustrated wi th the p r o b l e m o f i n f r i n g e ­

m e n t w e r e able i n the recently c o n c l u d e d U r u g u a y R o u n d o f the G e n e r a l

A g r e e m e n t on Tariffs and T r a d e ( G A T T ) to l ink access to their m a r k e t s for

f o r e i g n g o o d s to respect for their intel lectual p r o p e r t y r igh t s . T h e inter­

nat iona l treaty s t r u c t u r e for intel lectual p r o p e r t y p r o t e c t i o n and p r o p o s a l s

to s t r e n g t h e n it are d e s c r i b e d in Genera l A c c o u n t i n g Off ice , International

Trade. E f f o r t s a t a d d r e s s i n g such issues t h r o u g h the G A T T are c o n s i d e r e d

in A l f o r d , "Intel lectual Proper ty ."

15. T h e U n i t e d States w a s n o t o r i o u s t h r o u g h m u c h o f the n ineteenth

c e n t u r y for its lack o f respect for authors ' r ights . In o n e o f the m o r e ce le­

b r a t e d e x a m p l e s , C h a r l e s D ickens ' s w o r k w a s so ld in the U n i t e d States in

n u m e r o u s p irated ed i t ions . A Christmas Carol, for instance , w a s offered for

as l itt le as s ix cents in the U n i t e d States (as o p p o s e d to the equ iva len t of

$2.50 in G r e a t B r i t a i n ) and altered in different parts of the U n i t e d States to

suit local tastes . F o r m o r e on the early h i s tory o f U . S . c o p y r i g h t law, see

A u b e r t C l a r k , Movement for International Copyright.

A l t h o u g h i t t o o k the U n i t e d States over a century to r e c o g n i z e f o r e i g n

c o p y r i g h t s , even that s tep w a s l imi ted by the i n t r o d u c t i o n in 1891 of the

s o - c a l l e d " m a n u f a c t u r i n g clause." In an effort to b o o s t the A m e r i c a n p u b ­

l i sh ing indus try , the m a n u f a c t u r i n g c lause specif ical ly l imi ted p r o t e c t i o n

t o t h o s e f o r e i g n c o p y r i g h t e d w o r k s actual ly p r o d u c e d wi th in the U n i t e d

S ta te s , and these r e q u i r e m e n t s r e m a i n e d in effect until 1986. C h i n e s e off i­

cials a n d s c h o l a r s h a v e been qu ick to po in t to this h i s tory in seek ing to

j u s t i f y C h i n a ' s r e c o r d o f p r o t e c t i o n for fore ign c o p y r i g h t e d mater ia l . F o r

m o r e o n d e v e l o p i n g countr ies ' s concern a b o u t the e x p e n d i t u r e o f l i m i t e d

Notes to Pages 5-6 / 131

f o r e i g n e x c h a n g e h o l d i n g s for roya l ty p a y m e n t s in order to o b t a i n access

t o n e e d e d f o r e i g n intel lectual proper ty , see Shen Y u a n y u a n , "To C o p y o r

C o p y r i g h t . "

16. S e e , e . g . , R a k o f f and Wolff, " C o m m e r c i a l C o u n t e r f e i t i n g . "

17. T h e c o m p l e x i t y and impract ica l i ty o f fair use d o c t r i n e i s nicely i l lu s ­

trated i n U C L A Pol icy N o . 1 1 6 0 — R e p r o d u c t i o n o f C o p y r i g h t e d M a t e r i a l s

for T e a c h i n g and R e s e a r c h ( N o v . 25, 1986), which devote s s o m e fifteen

large ly i m p e n e t r a b l e p a g e s to e n d e a v o r i n g to exp la in to facul ty the l imi t s

o f the fair u s e d o c t r i n e . A n o v e r v i e w o f fair use i s p r o v i d e d i n N i m m e r ,

Nimmer on Copyright. T h e fair use d o c t r i n e is ins ightful ly d i s c u s s e d in Fisher ,

" R e c o n s t r u c t i n g the Fair U s e D o c t r i n e , " and Weinreb, "Fair 's Fair ."

18. T h e E u r o c e n t r i c qua l i ty o f M a r x ' s th inking i s d e m o n s t r a t e d i n K a r l

M a r x , " R e v o l u t i o n in C h i n a and E u r o p e , " New York Daily Tribune, J u n e 14,

1853, r e p r i n t e d in A l f o r d , " R o l e o f L a w in C h i n e s e Society ."

19. S e e Voge l , Four Little Dragons. S e e a l so A l f o r d , "When Is C h i n a P a r a ­

g u a y ? "

20. F o r m o r e o n this p r o b l e m , see A l f o r d , " O n the L i m i t s o f ' G r a n d

T h e o r y . ' "

21 . T h u s , for e x a m p l e , in the o t h e r w i s e s t imula t ing debate r e g a r d i n g

patent b e t w e e n E d m u n d K i t c h and his crit ics, certain bas ic q u e s t i o n s — s u c h

as w h y the U n i t e d States l imi t s patent pro tec t ion to seventeen years (or any

spec i f ied p e r i o d ) i rrespect ive o f the va lue o f the invent ion i n v o l v e d — a r e

essent ia l ly taken for g r a n t e d and so not p r o b e d . T h e article that ini t iated this

d e b a t e w a s K i t c h , " N a t u r e and Func t ion o f the Patent S y s t e m . " T h e d e b a t e

i s c o n t i n u e d , inter alia, in S m i t h and M c F e t r i d g e , "Patents , P r o s p e c t s and

E c o n o m i c S u r p l u s " and K i t c h , "Patents, P r o s p e c t s and E c o n o m i c S u r p l u s :

A Rep ly ."

S i m i l a r c o n c e r n s m i g h t be vo iced wi th respect t o i m p o r t a n t s c h o l a r s h i p

c o n c e r n i n g c o p y r i g h t . F o r e x a m p l e , R i c h a r d E p s t e i n ' s recent foray in to

c o p y r i g h t uses the ce lebrated case of International News Service v. Associated

Press, 248 U . S . 215 (1918), as a vehicle for c o n t e n d i n g that we o u g h t to

p a y grea ter heed to " c u s t o m and indus try pract ice" and less to the " p o s i ­

t ive l aw" o f j u d g e s and leg i s la tors i n c o n s i d e r i n g such p r o p e r t y r i g h t s .

Ironical ly , however , n o t w i t h s t a n d i n g the increased ro le he a d v o c a t e s for

c u s t o m relat ive to law, E p s t e i n ' s central d i s cuss ion o f c u s t o m in the n e w s -

g a t h e r i n g b u s i n e s s at the t i m e of World War I i s d r a w n f r o m fewer than

a h a l f - d o z e n j u d i c i a l o p i n i o n s and f r o m f r a g m e n t a r y anecdota l da ta f r o m

t w o s o u r c e s a b o u t j o u r n a l i s t i c b e h a v i o r in the p e r i o d s ince Wor ld War II.

E p s t e i n s e e m s u n c o n c e r n e d w i t h h o w j o u r n a l i s t s i n the early twent ie th c e n ­

tury (or, for that matter , a n y o n e other than j u d g e s , w h o s e "techniques o f

rat ional ana lys i s" he q u e s t i o n s e l sewhere in the s a m e article) c o n c e i v e d o f

" c u s t o m and i n d u s t r y pract ice" i n n e w s - g a t h e r i n g . N o r does h e ev idence

1 3 2 / N o t e s t o P a g e s 6-7

a n y a p p r e c i a t i o n at a m o r e general or theoretical level of the difficulties i n ­

herent in a scer ta in ing w h a t const i tutes c u s t o m , part icu lar ly s o m e seven or

m o r e d e c a d e s after the fact. See R i c h a r d E p s t e i n , "International News Service

v. Associated Press."

S c h o l a r s w i t h a v e r y different pol i t ical or ientat ion than K i t c h and E p s t e i n

h a v e recent ly t u r n e d their attent ion t o c o p y r i g h t law. A m o n g the m o s t i m ­

p o r t a n t p ieces are M a r t h a W o o d m a n s e e , "Genius and the C o p y r i g h t " ; J a s z i ,

" T o w a r d s a T h e o r y o f C o p y r i g h t " ; and B o y l e , " T h e o r y o f L a w and I n f o r ­

m a t i o n . " A l t h o u g h they take a fresh, i m a g i n a t i v e , and s t i m u l a t i n g v i e w of

c o p y r i g h t , these scho lars s e e m torn be tween their des ire on the one h a n d to

take apart w h a t they t e r m the societal cons truc t s o f a u t h o r s h i p and c o p y ­

r i g h t and on the o ther to preserve the e c o n o m i c , m o r a l , and p s y c h o l o g i c a l

p r e r o g a t i v e s that such cons truc t s p r o v i d e . F o r e x a m p l e , at a conference

o r g a n i z e d by W o o d m a n s e e and J a s z i in 1991 entit led "Intellectual P r o p e r t y

a n d the C o n s t r u c t i o n o f A u t h o r s h i p , " part ic ipants p a u s e d i n the m i d s t o f

three d a y s o f s t r e n u o u s at tacks o n the idea o f a u t h o r s h i p and the n o t i o n o f

c o p y r i g h t t o p e p p e r the R e g i s t r a r o f C o p y r i g h t s o f the U n i t e d States w i t h

a s t r e a m of q u e s t i o n s c o n c e r n e d , in large m e a s u r e , w i t h h o w they m i g h t

s e c u r e fuller p r o t e c t i o n for their w o r k under current c o p y r i g h t law.

22. A r g u m e n t s for and a g a i n s t treat ing intel lectual p r o p e r t y differently

f r o m other f o r m s o f p r o p e r t y are set forth in G o r d o n , "Inquiry into the

M e r i t s o f C o p y r i g h t . "

23. S e e Y a n k e l o v i c h e t a l . , "Publ ic Percept ions o f the Intel lectual P r o p ­

er ty R i g h t s Issue"; Shat tuck , "Publ ic At t i tudes and the E n f o r c e a b i l i t y o f

L a w . " I t s h o u l d be n o t e d that the l ead ing s o f t w a r e p r o d u c e r s t rade a s s o c i a ­

t ion , the B u s i n e s s S o f t w a r e Al l iance , bel ieves s o f t w a r e p iracy i s far w o r s e

t h r o u g h o u t A s i a than in the U n i t e d States .

24. B o t h the P R C and the R O C are pres s ing t o secure G A T T C o n t r a c t ­

i n g P a r t y s ta tus . T h e array o f issues invo lved are d i scussed in F e i n e r m a n ,

" T a i w a n a n d the G A T T . "

25. S e e , e . g . , A l f o r d , " 'Seek T r u t h f r o m Facts . ' " On the d i s r u p t i o n s of

the G r e a t Pro l e tar ian C u l t u r a l R e v o l u t i o n , w h i c h i s d e s c r i b e d i n the P R C

as h a v i n g las ted f r o m 1966 to 1976, see T h u r s t o n , Enemies of the People.

26. T h e ro le o f the P R C g o v e r n m e n t i n the u n a u t h o r i z e d p r o d u c t i o n

a n d d i s t r i b u t i o n of fore ign intel lectual proper ty , as well as its c e n s o r s h i p

act iv i t i es , are d i s c u s s e d in chapter 4.

27. T h e ro le of internal c irculat ion (neibu) l aws and legal mater ia l s in

the P R C i s t h o u g h t f u l l y d i scussed i n J o n e s , " S o m e Q u e s t i o n s . " S e e a l so

N i c h o l a s K r i s t o f , "What's the L a w in C h i n a ? It's No Secret (F inal ly ) ," New

York Times, N o v . 20, 1988, pt . 1, 21. In re sponse to a U . S . threat to i m p o s e

subs tant ia l t r a d e sanc t ions , the P R C a g r e e d i n pr inc ip le , o n O c t o b e r 10,

N o t e s to P a g e s 8-10 / 133

1992, to e l iminate neibu l aws concern ing fore ign trade by i s su ing " r e g u l a ­

t ions . . . that s tate on ly laws and regu la t ions pub l i shed and readi ly ava i lab le

to f o r e i g n g o v e r n m e n t s and travelers are enforceable [after O c t o b e r 10,

I993]»" a c c o r d i n g to the pr inc ipal U . S . negot ia tor invo lved (Massey , "301:

T h e Succes s fu l C o n c l u s i o n , " 9). E v e n tak ing account o f e x c e p t i o n s f o u n d

e l s e w h e r e in the O c t o b e r 10, 1992, " M e m o r a n d u m of U n d e r s t a n d i n g . . .

on M a r k e t A c c e s s " (such as that p e r m i t t i n g the exc lus ion o f undef ined "in­

f o r m a t i o n c o n t r a r y to the publ ic interest ," i t s trains credul i ty to be l ieve that

this wi l l t r a n s f o r m fundamenta l l o n g - s t a n d i n g C h i n e s e pract ices any m o r e

effect ively than the U . S . u n d e r t a k i n g — a s part o f the s o - c a l l e d S t r u c t u r a l

I m p e d i m e n t s Init iat ive wi th J a p a n — t o r e f o r m o u r e l ementary and s e c o n d ­

ary e d u c a t i o n wil l , indeed , result in a drast ic i m p r o v e m e n t in the overa l l

q u a l i t y o f o u r pub l i c s choo l s . M o t i v a t e d large ly b y the pres ident ia l e lect ion,

the U . S . d r i v e in 1992 to s e c u r e the P R C ' s a g r e e m e n t to o p e n its m a r k e t s to

f o r e i g n g o o d s or face m a s s i v e retal iatory tariffs, all the whi l e p a y i n g scant

a t tent ion either to h o w such p r o m i s e s w e r e to be met or to the i m p l i c a t i o n s

o f u s i n g U . S . l everage for such p u r p o s e s , exempl i f ies the t y p e o f p r o b l e m

in t r a d e p o l i c y d i s c u s s e d in chapter 6 of this b o o k wi th reference to inte l lec­

tual p r o p e r t y . Succ inc t ly s tated, f l ex ing one's m u s c l e s i s no subs t i tu te for

t h i n k i n g t h r o u g h h o w respect for part icular types o f legal i ty g r o w s .

28. S e e , e . g . , R e n Wei, "Wor ld -Wide S y m p o s i u m . "

29. S e e U . S . C o n g r e s s , H o u s e , Unfair Foreign Trade Practices.

Two. Don't Stop Thinking About . . . Yesterday

1. S e e , e . g . , Z o u , " B a o h u b a n q u a n . . . ?"; Z h e n g and Pendle ton , Copy­

right Law in China; a n d C h a n , " C o n t r o l of Publ i sh ing ."

2 . T h e po in t i s p e r h a p s m o s t expl ic i t ly m a d e in Ade l s t e in and Peretz ,

" C o m p e t i t i o n o f T e c h n o l o g i e s and M a r k e t s , " w h o s e v i e w s m a y b e seen a s

a specif ic app l i ca t ion o f the b r o a d e r content ion o f e c o n o m i c h i s tor ians such

a s D o u g l a s s N o r t h and R o b e r t Paul T h o m a s that i n n o v a t i o n s p u r s the n e e d

for w e l l - d e f i n e d pr iva te p r o p e r t y r ight s , w h i c h in turn p r o v i d e the incen ­

t ive n e e d e d to fos ter further i n n o v a t i o n (see, e .g . , N o r t h and T h o m a s , Rise

of the Western World). S e e a l so L i b e c a p , "Proper ty R i g h t s " ; R a p p and R o z e k ,

"Benef i t s a n d C o s t s " ; and M a n s f i e l d , "Intellectual Proper ty ."

3. Z h e n g and Pendle ton , Copyright Law in China, 11 .

4. B o d d e and M o r r i s , Law In Imperial China, 3.

5. I m p e r i a l l a w c o d e s are d i scussed in ibid. See a lso C h i u H a n p i n g , e d . ,

Lidai xingfa zhi, w h i c h r e p r o d u c e s the sect ion on law of the official d y n a s ­

tic h i s tor ie s f r o m the H a n t o the M i n g . Por t ions o f the Q i n g c o d e h a v e

been t rans la ted b y G e o r g e S t a u n t o n into E n g l i s h and b y G u y B o u l a i s in to

1 3 4 / N o t e s t o P a g e s 1 0 - 1 2

French . W i l l i a m J o n e s o f W a s h i n g t o n U n i v e r s i t y has recently c o m p l e t e d a

m o d e r n t rans la t ion . A useful g u i d e to the Da Qing lit li is X u e Y u n s h e n g ,

Dul i cunyi.

6. N e e d h a m , Science and Civilization, 2: 524. Phi l ip H u a n g and K a t h r y n

B e r n h a r d t o f U C L A have launched a m a j o r and i m p r e s s i v e research p r o j e c t

d e l v i n g in to the q u e s t i o n of whether there w a s a "civil law" in late i m p e r i a l

and ear ly R e p u b l i c a n C h i n a .

7. N e e d h a m , Science and Civilization, 2: 524-30.

8 . C h a n g Wejen, " C h u a n t o n g g u a n n i a n . "

9 . T h i s e x t r a o r d i n a r y e m p h a s i s on the imper ia l c o d e s ' penal t ies s e e m s

a t t r i b u t a b l e to a n u m b e r o f factors , a m o n g t h e m the C o n f u c i a n i d e o l o g i c a l

a n t i p a t h y t o w a r d f o r m a l legal i ty , which d i s c o u r a g e d scho lars f r o m c o n s i d ­

er ing the "civil" s ide o f such law; w i d e s p r e a d p o p u l a r p e r c e p t i o n s o f the

legal s y s t e m ; and early repor t s by fore ign observers a s to the qua l i ty o f C h i ­

nese j u s t i c e relat ive t o that o f their h o m e j u r i s d i c t i o n s . For m o r e o n w h y

Wes tern scho lars have m i s u n d e r s t o o d C h i n e s e law, see A l f o r d , " L a w , L a w ,

W h a t L a w ? "

10. T h e s o - c a l l e d Ten A b o m i n a t i o n s are l isted in Art i c l e 2 of the G e n e r a l

P r i n c i p l e s sec t ion o f the Q i n g code .

11 . T h e classic w o r k on clan rules i s L i u Wang H u i - c h e n , Traditional

Chinese Clan Rules.

12. G u i l d charters are d i scussed in detail in R o w e , Hankow.

13. M a n n , Local Merchants.

14. H s i a o , Rural China; Watt, District Magistrate.

15. S u s a n M a n n ' s Local Merchants s u g g e s t s that this w a s the case w i t h

re spec t to tax f a r m i n g and related fiscal i ssues .

16. T h e F o u r B o o k s are the Lunyu (The Analects of Confucius), Mengzi

(The Mencius), Daxue (The Great Learning), and Zhongyong (The Doctrine of

the Mean).

17. R a y H u a n g , 1587, 149.

18. On the ro l e o f hierarchy, see A l f o r d , "Inscrutable O c c i d e n t a l . "

19. T h e C h i n e s e v i s ion o f w o r l d order a l so m i r r o r e d fami ly s t r u c t u r e ,

w i t h the C h i n e s e at the apex exerc i s ing fiducial respons ib i l i t i es t o w a r d less

c iv i l i zed p e o p l e s .

20. Waley, t r a n s . , Analects of Confucius, bk . 2, ch. 21.

21 . S e e R o w e , Hankow, 292-99; M a n n , Local Merchants, p a s s i m .

22. R o w e , Hankow, 292-99; L iu Wang H u i - c h e n , Traditional Chinese Clan

Rules, 143.

23. S e e L i u W a n g H u i - c h e n , Traditional Chinese Clan Rules.

24. T h e w o r k b e i n g d o n e b y Phi l ip H u a n g and K a t h r y n B e r n h a r d t o n

civi l l a w s u g g e s t s that legal issues w e r e far m o r e n u m e r o u s than p r e v i o u s l y

a s s u m e d .

Notes to Pages 12-14 /

25. Z h a n g X u j i u , Shangbiaofajiaocheng.

26. B o d d e , China's First Unifier.

27. C h a n g a n d A l f o r d , " M a j o r Issues in C h i n e s e L e g a l His tory ."

28. H i s t o r i a n s locate the invent ion of w o o d b l o c k pr in t ing b e t w e e n 590

and 650 a n d the d e v e l o p m e n t o f m o v a b l e t y p e by B i S h e n g a t a r o u n d the

year 1000. Z h e n g C h e n g s i and Michae l Pendle ton assert that w h e r e a s in the

West "the a d o p t i o n o f w o o d b l o c k pr in t ing w a s not sufficient t o d r a m a t i ­

cal ly s p e e d u p the pub l i ca t ion o f b o o k s . . . i n C h i n a the s i tuat ion w a s

different," o w i n g to the u s e of C h i n e s e characters rather than a p h o n e t i c

a l p h a b e t (Copyright Law in China, 1 1 - 1 2 ) . T h e h i s tory of pr in t ing in C h i n a

is d i s c u s s e d in C h ' i e n , Paper and Printing; C a r t e r , Invention of Printing; Pel l iot ,

Debuts de I'imprimerie; P o o n , " B o o k s and Print ing"; and Twi tche t t , Printing

and Publishing.

29. C h a n , " C o n t r o l o f Publ i sh ing ," 2 . S e e a l so Q i S h a o f u , " Z h o n g g u o

g u d a i de c h u b a n , " 31; C h ' i e n , Paper and Printing. Wallace J o h n s o n has p u b ­

l i shed a t rans la t ion o f the Genera l Pr inc ip les sect ion o f the T a n g c o d e a n d

c o m p l e t e d trans la t ions o f o ther m a j o r p o r t i o n s o f the c o d e . S e e J o h n s o n ,

Tang Code.

30. P r i n t e d v e r s i o n s o f s tate laws w e r e rarely d i s s e m i n a t e d w i d e l y in

p r e i m p e r i a l and imper ia l C h i n a . A l t h o u g h the populace ' s l imi t ed l i teracy

w a s o b v i o u s l y a factor, the n o t i o n that law o u g h t no t to be w i d e l y d i s t r i b ­

u t e d m a y have been a t tr ibutable m o r e to a sense that the p o p u l a c e h a d no

need for the law, as those p e r s o n s w h o had proper ly cu l t ivated their v i r t u e

w o u l d k n o w h o w t o behave w i t h o u t resort t o legal rules , wh i l e those o f

lesser character w o u l d s i m p l y s t u d y the wri t ten law in order to f ind w a y s

a r o u n d its s t r i c tures . Interest ingly , the P R C g o v e r n m e n t cont inues t o r e ­

str ict access by b o t h C h i n e s e nat ionals and fore igners to laws to w h i c h they

are po tent ia l l y subjec t . S e e chapter 1 .

31. C h a n , " C o n t r o l of Publ i sh ing"; Twitchet t , Printing and Publishing.

32. T h e I m p e r i a l C o l l e g e , w h i c h h o u s e d C h i n a ' s "first o f f ic ia l ly -run

p u b l i s h i n g h o u s e , " is d i s cussed in Z h e n g and Pendleton, Copyright Law, 12.

33. Ye D e h u i , Shulin qinghua, 145.

34. Ib id . ; Z h e n g C h e n g s i , "Pr int ing and Pub l i sh ing in C h i n a " ; T h o m a s

L e e , Government Education, 42. T h e m o s t c o m p r e h e n s i v e s t u d y of S o n g

p r i n t i n g i s P o o n , " B o o k s and Pr int ing ."

35. C h a n , " C o n t r o l of Publ i sh ing"; Ye D e h u i , Shulin qinghua; Lu G u a n g

a n d Pan X i a n m o u , Zhongguo xinwen falii gailun, 4. C o n c e r n a b o u t u s i n g the

n a m e s o f t h o s e in p o w e r has been a regular t h e m e in C h i n e s e his tory. C e l e ­

b r a t e d ins tances inc lude those c o n c e r n i n g the H o n g w u E m p e r o r d u r i n g the

m i d four teenth century, the Q i a n l o n g E m p e r o r d u r i n g the late e ighteenth

century , a n d M a o Z e d o n g d u r i n g the C u l t u r a l R e v o l u t i o n (1966-76) .

36. Ye D e h u i , Shulin qinghua, 143-45. T h e penalt ies in the S o n g d y n a s t y ' s

1 3 6 / N o t e s t o P a g e s 1 4 - 1 8

p u b l i c a t i o n l a w s are d i s c u s s e d in detail in N i i d a , Chugoku hoseishi kenkyu, 4:

445 -91-

37. T h e or ig ina l c o l o p h o n i s r e p r o d u c e d in P o o n , "Printer's C o l o p h o n , "

39. Ye D e h u i d i scusse s local efforts to bar u n a u t h o r i z e d r e p r o d u c t i o n in Shu­

lin qinghua, 37 -41 and 143-45 . S e e a l so Twitchet t , Printing and Publishing, 65.

38. E v e n the late Q i n g s tudy Shulin qinghua, wh ich deals m o r e e x t e n ­

s ive ly w i t h S o n g p r o h i b i t i o n s on pr int ing than any other, cons i s t s o f little

m o r e than i so la ted anecdote s .

39. S e e Y u a n , " Z h o n g g u o g u d a i b a n q u a n shi kaol i ie ."

40. Ye D e h u i , Shulin qinghua; see a l so K u , " S t u d y of the L i t e r a r y P e r ­

secu t ion ," 254. F o r a t h o r o u g h treatment of m i d - Q i n g efforts to contro l

p u b l i c a t i o n , see G o o d r i c h , Literary Inquisition.

41 . H u c k e r , Ming Dynasty, 70; Wu K u a n g - c h ' i n g , " M i n g Pr in ters a n d

P r i n t i n g , " 230.

42. G o o d r i c h , Literary Inquisition.

43. Wu K u a n g - c h ' i n g , " M i n g Printers and Pr int ing ," 229.

44. C h a n , " C o n t r o l o f Publ i sh ing ," 23-24.

45. M a n n , Local Merchants; S a n t a n g e l o , "Imperia l Factor ies of S u z h o u . "

46. S e e , e . g . , the Da Qing Hi li, A r t . 429. T h e s u m p t u a r y laws are d e ­

s c r i b e d in detai l in C h ' u , Law and Society.

47. H a m i l t o n and L a i , "Jinshi z h o n g g u o s h a n g b i a o . "

48. E d w a r d s , "Imperia l C h i n a ' s B o r d e r C o n t r o l L a w , " 57 -58 .

49. T h e or ig ina l m a r k is r e p r o d u c e d at Z h a n g X u j i u , Shangbiaqfa jiao-

cheng, 18.

50. E x a m p l e s are d i s c u s s e d in H a m i l t o n and L a i , "Jinshi z h o n g g u o

s h a n g b i a o . " S e e a l so R o w e , Hankow.

51. H a m i l t o n and L a i , "Jinshi z h o n g g u o s h a n g b i a o , " 4 - 1 5 .

52. Ib id .

53. Z h e n g C h e n g s i , Chinese Intellectual Property, 21; H a m i l t o n and L a i ,

"J inshi z h o n g g u o s h a n g b i a o , " 4 -15 .

54. S e e H a m i l t o n a n d L a i , "Jinshi z h o n g g u o s h a n g b i a o . "

55. T h e bes t s o u r c e for ev idence of these efforts is Ye D e h u i , Shulin qing­

hua. F o r m o r e on the h i s tory of real p r o p e r t y in C h i n a , see vol . 4 of N i i d a ,

Chugoku hoseishi kenkyu. J a m e s F e i n e r m a n of the G e o r g e t o w n U n i v e r s i t y

L a w C e n t e r i s n o w w o r k i n g o n the m o r t g a g e - l i k e t ransac t ion k n o w n a s

the dian.

56. Wi th respect to E n g l a n d , see Pat terson , Copyright in Historical Per­

spective, 36 -41 . S e e a l so Eisens te in , Printing Press. With r e g a r d to F r a n c e , see

D a r n t o n , Literary Underground. O t h e r s w o u l d l ink c o p y r i g h t far m o r e to the

r ise o f the R o m a n t i c cons truc t o f "authorsh ip ." See W o o d m a n s e e , " G e n i u s

and the C o p y r i g h t , " 425.

57. M a c h l u p , "Patents ," 461.

N o t e s to P a g e s 18-21 / 137

58. K l e m m , History of Western Technology, 1 7 1 - 7 3 .

59. S e e Pa t t er son , Copyright in Historical Perspective; M a c h l u p , "Patents ,"

462; N a t h a n R o s e n b e r g and L. E. B irdze l l , J r . , How the West Grew Rich;

N o r t h a n d T h o m a s , Rise of the Western World.

60. A l f o r d , "Inscrutable Occ identa l"; A l f o r d , " O n the L i m i t s o f ' G r a n d

T h e o r y , ' " 975.

61. S e e , e . g . , T e m p l e , Genius of China, 9 - 1 2 ; R o s s , Oracle Bones; N e e d ­

h a m , Science and Civilization.

62. S e e , e . g . , Z o u , " B a o h u b a n q u a n , " o r any o f the w r i t i n g s o f Z h e n g

C h e n g s i .

63. M a r t h a W o o d m a n s e e and those w h o have a d o p t e d her thesis that

c o p y r i g h t i s an o u t g r o w t h o f the R o m a n t i c concept ion o f the a u t h o r a s an

i n s p i r e d g e n i u s w h o s e creat iv i ty s h o u l d be seen as ind iv idual rather than

soc ie ta l , are n o t e w o r t h y e x c e p t i o n s . See W o o d m a n s e e , " G e n i u s and the

C o p y r i g h t . "

64. S e e , e . g . , Ade l s t e in a n d Peretz , " C o m p e t i t i o n o f T e c h n o l o g i e s a n d

M a r k e t s for Ideas ."

65. N e e d h a m , Science and Civilization; E l v i n , Pattern of the Chinese Past.

66. A d e l s t e i n a n d Peretz , " C o m p e t i t i o n o f T e c h n o l o g i e s and M a r k e t s

for Ideas ." S i m i l a r v i e w s are v o i c e d b y Z h e n g C h e n g s i and M i c h a e l P e n d l e ­

ton , w h o assert that the "fact that the concept o f c o p y r i g h t w a s f o r m e d after

such a leap [to m o v a b l e type] s h o w s that the d e v e l o p m e n t o f l a w a l w a y s

f o l l o w s the d e v e l o p m e n t of t e c h n o l o g y " (Copyright Law in China, 14).

67. C h ' i e n , Paper and Printing.

68. B e r m a n , Words Like Colored Glass, 105.

69. R i c h a r d S m i t h , China's Cultural Heritage, 201.

70. E a s t m a n , Family, Field and Ancestors.

7 1 . In u s i n g the t e r m polit ical cu l ture , i t i s no t my intent ion to i n v o k e

the w o r k of L u c i a n Pye . As I endeavor to d e m o n s t r a t e be low, I seek to

b r i n g b o t h a b r o a d e r and a m o r e n u a n c e d content to this a d m i t t e d l y e last ic

c o n c e p t .

72 . F o r a c o m p e l l i n g d i s cuss ion o f the i m p o r t a n c e o f the idea o f the pas t

in C h i n e s e c iv i l i zat ion , see O w e n , Remembrances.

73. T h e i m p o r t a n c e o f these re lat ionships i s d i s cussed in A l f o r d , "In­

s c r u t a b l e O c c i d e n t a l . "

74. H s i a o , History of Chinese Political Thought, 1: 90 -94 .

75. T u , Centrality and Commonality.

76. A l f o r d , "Inscrutable Occ identa l ."

77 . C o n f u c i u s , Analects, bk . 2, ch. 3 (Waley trans lat ion m o d i f i e d by this

a u t h o r ) .

78. S e e H a l l and A m e s , Thinking Through Confucius.

79. A l f o r d , "Inscrutable Occ identa l ."

138 / N o t e s to P a g e s 21-22

80. Waley, t r a n s . , Analects of Confucius, bk . 13, ch. 3. T h e idea of a "rect i ­

f icat ion o f n a m e s " has h a d e n d u r i n g currency in C h i n a , a s ev idenced , for

e x a m p l e , b y the u s e o f that t e r m b y the l eadersh ip o f the C h i n e s e C o m m u ­

nist p a r t y to d e s c r i b e efforts in the early 1980's to e n c o u r a g e the re t i rement

o f cer ta in cadres res istant t o D e n g X i a o p i n g ' s pol ic ies .

81. K e i g h t l e y , "Re l ig ious C o m m i t m e n t , " 220.

82. C h a n , Legitimation in Imperial China.

83. In the w o r d s o f the Shujing ( B o o k o f D o c u m e n t s ) , one o f the grea t

c lass ics o f the C h i n e s e tradi t ion , the last S h a n g (1700-1122 B . C . ) ruler h a d

"no clear u n d e r s t a n d i n g o f the respect d u e the people; he m a i n t a i n e d a n d

s p r e a d far and w i d e resentment and did not change . T h e r e f o r e , H e a v e n

sent d o w n d e s t r u c t i o n on Y i n . . . [and replaced it wi th the n e x t dynas ty ,

the C h o u ] . . . . I t w a s d u e t o [such] excesses . H e a v e n i s not tyrannica l"

( " A n n o u n c e m e n t A b o u t D r u n k e n n e s s , " trans. K a r l g r e n , 1).

84. T h e inva l ida t ing p o w e r o f the pas t , w a s ev idenced, for e x a m p l e , by

the controvers ia l late Q i n g scholar and re former K a n g Y o u w e i (1858-1927) ,

w h o be l i eved that the state o r t h o d o x y o f his day w a s i m p a i r i n g C h i n a ' s

m o d e r n i z a t i o n . In his b o o k Xinxue weijing kao (A S t u d y of the F o r g e d C l a s ­

sics o f the X i n P e r i o d ) , K a n g s o u g h t t o e x p o s e a s inauthent ic certain o f the

key C o n f u c i a n classics rel ied on heavi ly by conservat ives s u r r o u n d i n g the

G u a n g x u E m p e r o r . In turn , he a r g u e d that an accurate r e a d i n g o f authent ic

C o n f u c i a n texts p r o v i d e d u n m i s t a k a b l e s u p p o r t f r o m the M a s t e r h i m s e l f

( w h o K a n g c l a i m e d h a d wr i t ten , rather than edited, the texts in q u e s t i o n )

for a h o s t of r e f o r m s . T h e s e inc luded a curta i l ing of imper ia l p o w e r , the

i n t r o d u c t i o n o f e lect ions , and the abol i t ion o f the fami ly i n favor o f v o l ­

u n t a r y c o h a b i t a t i o n a r r a n g e m e n t s that c o u l d be al tered annual ly . K a n g ' s

efforts to a p p r o p r i a t e and recast the past earned h i m w i d e s p r e a d d e n u n ­

c ia t ion a n d an i m p e r i a l b a n (later briefly lifted) on m u c h o f his w r i t i n g .

A m o n g his crit ics w a s the c o n s e r v a t i v e scholar Y e D e h u i , w h o s e b o o k o n

S o n g p u b l i c a t i o n pract ices i s relied on e l sewhere in this s tudy. " K ' a n g Y u -

wei ' s face," w r o t e Ye , "is C o n f u c i a n . . . b u t his heart is b a r b a r i a n . " Q u o t e d

in H s u , Rise of Modern China, 456.

85. S e e K u h n , "Ta ip ing Rebe l l ion ," 264.

86. S e e T e n g S s u - y i i , " C h i n e s e Influence on the Western E x a m i n a t i o n

S y s t e m , " 267, w h i c h traces the i m p a c t o f the C h i n e s e m e t h o d for se lect ing

i m p e r i a l officials on the B r i t i s h civil service s y s t e m .

87. C e n t u r i e s b e f o r e the S u i — d u r i n g the third century B . C . — w o u l d -

be C o n f u c i a n a d v i s o r s w e r e a lready be ing attacked for their e m p h a s i s on

k n o w l e d g e o f the pas t . " T h e y [the C o n f u c i a n i s t s ] , neither s t u d y affairs p e r ­

ta in ing to the law a n d g o v e r n m e n t n o r o b s e r v e the realities o f v ice a n d

w i c k e d n e s s b u t all exal t the r e p u t e d g lor ies o f r e m o t e ant iqu i ty and the

a c h i e v e m e n t s o f Anc ien t K i n g s . " H a n Fei T z u , " O n the D o m i n a n t S y s t e m s

N o t e s to P a g e 22 / 139

of L e a r n i n g , " q u o t e d in De B a r y et a l . , t rans . , Sources of Chinese Tradition,

1: 142.

88. T h o m a s L e e , Government Education.

89. B o d d e a n d M o r r i s , Law in Imperial China.

90. I b i d . , 63. In reaching this e s t imate , B o d d e and M o r r i s rely on the

Dull cunyi, in w h i c h X u e Y u n s h e n g lays out in m e t i c u l o u s detai l the o r i ­

g i n s a n d s u b s e q u e n t h i s tory o f rev is ion for the v a r i o u s p r o v i s i o n s o f the

Q i n g c o d e .

91. T h e u s e o f subs ta tutes i s d i s cussed in ib id . , 63-68. E v o c a t i o n o f the

pas t w a s , o f c o u r s e , no t the on ly w a y in w h i c h the C h i n e s e s tate u s e d its

l ega l s y s t e m to ev idence its majes ty . C e n t u r i e s be fore Foucau l t w r o t e Disci­

pline and Punish, the C h i n e s e state d i sp layed a keen apprec ia t ion of the fact

that s y m b o l i c infl iction o f p u n i s h m e n t m i g h t have an even greater i m p a c t

than its ac tua l c o u n t e r p a r t . A t least f r o m the H a n d y n a s t y (206 B . C . - A . D .

220) o n w a r d (and s o m e w o u l d s u g g e s t long b e f o r e the f o r m a t i o n o f i m p e r i a l

C h i n a in 221 B . C . ) , the death penal ty w a s d i v i d e d s o that e x e c u t i o n o f all

b u t the m o s t e g r e g i o u s offenders w a s to be de layed unti l "after the a u t u m n

ass izes ." A l t h o u g h this p r o c e d u r e m a y have h a d its genes is in the effort to

a l i g n h u m a n a n d natura l affairs by deferr ing execut ions until the t i m e o f

g r e a t e s t dea th in the natura l w o r l d , the C h i n e s e s o o n t o o k to u s i n g i t s i m u l ­

t a n e o u s l y to d i sp lay the state's a w e s o m e p o w e r and its great benevo lence .

I n d i v i d u a l s w e r e of ten sentenced to death "after the ass izes" (jianhou), w h i c h

typ ica l ly entai led w a i t i n g t w o years , on ly to be spared by a state w i s h i n g to

a p p e a r m a g n a n i m o u s o n c e the requis i te t ime had e lapsed.

A c o m p a r a b l e apprec ia t ion o f the va lue o f s y m b o l i c p u n i s h m e n t i s a l so

ev ident in the Q i n g c o d e d irect ive that officials on ly inflict a fract ion of

the b l o w s w i t h a b a m b o o cane (either heavy or l ight) to w h i c h c r i m i n a l s

m i g h t be sentenced . A g a i n , i t w a s p r e s u m e d that those so sentenced w o u l d

b o t h u n d e r s t a n d the sever i ty o f the p u n i s h m e n t d u e t h e m and apprec ia te the

state's dec i s ion to a c c o r d t h e m leniency.

A s these e x a m p l e s and m u c h o f this chapter i l lustrates , m a n y o f the

i d e o l o g i c a l a n d p s y c h o l o g i c a l devices that J i i r g e n H a b e r m a s s u g g e s t s (in

Legitimation Crisis) result f r o m the efforts of m o d e r n states to l e g i t i m a t e

t h e m s e l v e s a p p e a r to have h a d clear antecedents in imper ia l C h i n a .

92. O n e such c o m p i l a t i o n w a s the Xing'an huilan, c o m p r i s i n g cases r e ­

c o r d e d b y the B o a r d o f P u n i s h m e n t s , c o m p i l e d o n a n unofficial bas i s b y

officials o f the b o a r d for the benefit o f m a g i s t r a t e s .

93. M u c h has been m a d e o f w h a t Ch' i i T ' u n g - t s u three d e c a d e s a g o

t e r m e d the " C o n f u c i a n i z a t i o n " o f the law, b y w h i c h h e m e a n t the a b s o r p ­

t ion d u r i n g the H a n d y n a s t y o f C o n f u c i a n va lues into the law. T h i s p r o c e s s

led, for e x a m p l e , to the law's m a n d a t i n g far harsher penalt ies w h e n j u n i o r s

s t r u c k their sen iors than vice versa . Work remains to be d o n e , h o w e v e r ,

140 / Notes to Pages 2 3 - 2 5

o n w h a t m i g h t b e t e r m e d the "legal izat ion" o f the C o n f u c i a n s — b y w h i c h

I m e a n the i m p a c t that use o f the law h a d on the th inking o f C o n f u c i a n -

o r i e n t e d scholar-of f ic ia l s , for w h o m formal legal i ty w a s sa id to be an in ­

fer ior soc ia l n o r m . I t i s hard to i m a g i n e that such officials c o u l d have u s e d

the l a w as / ex tens ive ly and adro i t ly as m a n y in fact d id w i t h o u t its w a y s o f

l o o k i n g at the w o r l d inf luencing t h e m , consc ious ly or o t h e r w i s e . F o r a b r i e f

further d i s c u s s i o n o f this , see A l f o r d , "Law, L a w , What L a w ? " E x t r e m e l y

in t ere s t ing w o r k o n related concerns i s b e i n g d o n e b y K a r e n T u r n e r ( f o c u s ­

i n g o n n o t i o n s o f legal i ty i n early C h i n a ) and b y M a r y B u c k and A d a m

Al fer t (each o f w h o m i s e x p l o r i n g the interact ion b e t w e e n f o r m a l l ega l i ty

and C o n f u c i a n ideals in mag i s t er ia l dec i s ion m a k i n g ) .

94. P u l l e y b l a n k , " C h i n e s e His tor ica l C r i t i c i s m , " 135.

95. W a t s o n , Ssu-ma Ch'ien; Pu l l eyb lank , " H i s t o r i o g r a p h i c a l T r a d i t i o n , "

143, 152-53-

96. B o d d e , China's First Unifier. In a fasc inat ing e x a m p l e of the v i ta l i ty

o f the pas t for c o n t e m p o r a r y d i s course , articles publ i shed a b o u t the Q i n

d y n a s t y i n the P R C i n the w a k e o f the J u n e 1989 suppres s ion o f the p r o -

d e m o c r a c y m o v e m e n t a t t e m p t t o play d o w n the n u m b e r o f p e r s o n s e x e ­

c u t e d 2,200 years a g o and s u g g e s t that they w e r e u n w o r t h y ind iv idua l s .

S e e , e . g . , W a n g N i n g j u n , "Tale o f Q i n Scho lars B e i n g B u r i e d A l i v e I s

C h a l l e n g e d , " China Daily, A u g . 1, 1989, 5.

97. G o o d r i c h , Literacy Inquisition.

98. S i m a Q i a n , Shiji, q u o t e d in De B a r y et al . , t rans . , Sources of Chinese

Tradition.

99. G o o d r i c h , Literary Inquisition.

100. M e t z g e r , " F o r e w o r d , " xiv . T h i s s a m e menta l i ty m a y be ev ident in

a pr inc ipa l P R C trans la t ion o f U . S . S u p r e m e C o u r t cases , w h i c h essent ia l ly

e x c l u d e s all d i s sent ing o p i n i o n s on the g r o u n d s that they represent incorrec t

v i e w s and s o d o n o t w a r r a n t s tudy .

101. A t t e m p t s to s tretch that co l lect ive m e m o r y inc luded not o n l y the

d e n u n c i a t i o n o f texts a s unauthent ic (as K a n g Y o u w e i did) but a l so the "d i s ­

c o v e r y " o f w h a t w e r e sa id t o b e l o n g - l o s t vers ions o f c lassics . Indeed , b y

the late Q i n g , there w e r e so m a n y key texts b e i n g "rediscovered" that L i a n g

Q i c h a o ( w h o c o m m e n c e d his publ i c career a s an al ly o f K a n g ' s ) later d e ­

p l o r e d w h a t he s a w as efforts re troact ive ly to a d d p a s s a g e s to ancient texts

a n d then c la im their d i scovery . L i a n g Q i c h a o , Yinbingshe heji.

102. T h e eva luat ion o f m a g i s t r a t e s w a s based , in part , on the ex tent

to w h i c h they m a i n t a i n e d " h a r m o n y " wi th in their d is tr ic ts , g i v i n g t h e m

a s t r o n g incent ive to d i s c o u r a g e l i t igat ion and other ac t ions that w o u l d be

seen as d i s h a r m o n i o u s by their super iors . See B o d d e and M o r r i s , Law in

Imperial China.

103. Waley, t r a n s . , Analects of Confucius, bk . 7, ch. 1.

N o t e s to P a g e s 2 5 - 3 0 / 141

104. S c h w a r t z , World of Thought in Ancient China.

105. O w e n , Remembrances, 18.

106. A s Z h u X i (1130-1200), the progen i tor o f N e o - C o n f u c i a n i s m , o b ­

s e r v e d "at that t i m e [ i .e . , w h e n C o n f u c i u s l ived] , the w o r k o f creat ion w a s

fairly c o m p l e t e ; the M a s t e r [ i .e . , C o n f u c i u s ] therefore m a d e a G r e a t S y n ­

thesis [dacheng] o f the v a r i o u s S a g e s and s truck a M e a n . A l t h o u g h this w a s

' t r a n s m i s s i o n , ' his mer i t w a s twice that o f ' m a k i n g . ' O n e m u s t u n d e r s t a n d

this a l s o " ( q u o t e d in M u r c k , Artists and Traditions, x i i ) . See a l s o j u - h s i C h o u ,

" T h r o u g h the D i s c i p l e s ' E y e s , " 1 1 - 2 2 .

107. O w e n , Remembrances, 22.

108. I b i d . , 1 4 - 1 5 . S e e a l so A l f o r d , "Inscrutable Occ identa l ."

109. O w e n , Remembrances, 15.

n o . E l i o t , Notes Toward a Definition of Culture, 118.

i n . L e v e n s o n , Confucian China, xv i i .

112. L y n n , "Alternat ive R o u t e s to Se l f -Real izat ion ," 322.

113. Q u o t e d in i b i d . , 317.

114. Q u o t e d in C h a v e s , "Panoply o f I m a g e s , " 357.

115. I b i d . , 343.

116. P u l l e y b l a n k , " H i s t o r i o g r a p h i c Tradi t ion ," 150.

117 . C a h i l l , Compelling Image, 57.

118. M o t e , " T h e A r t s and the ' T h e o r i z i n g M o d e ' o f C h i n e s e C i v i l i z a ­

t ion," 7.

119. B u s h , Chinese Literati on Painting, 50-66 .

120. Q u o t e d in L e v e n s o n , Confucian China, 1: 21.

121 . M u r c k , Artists and Traditions.

122. B u s h , Chinese Literati on Painting.

123. C a h i l l , " O r t h o d o x M o v e m e n t , " 180.

124. Q u o t e d in C a h i l l , Compelling Image, 57.

125. S e e H o , Eight Dynasties of Chinese Painting.

126. Q u o t e d in C a h i l l , Compelling Image, 155.

127. M u r c k , Artists and Traditions, xi .

128. Wen F o n g , " P r o b l e m of F o r g e r i e s , " 100.

129. I b i d . , 100.

130. Ibid .

131. Wen F o n g , " P r o b l e m o f Forger i e s ," 100. T h e s e s u g g e s t i o n s , o f

c o u r s e , indicate that s o m e w e r e concerned a b o u t u n a u t h o r i z e d c o p y i n g .

132. Q u o t e d in L i n S h u e n - f u , " C h i a n g K'ue i ' s Treat i ses ," 307.

Three. Learning the Law at Gunpoint

1. S e e R i c h a r d S m i t h , China's Cultural Heritage.

2 . H a o a n d W a n g , " C h a n g i n g C h i n e s e V i e w s , " 156 -72 .

142 / N o t e s to P a g e s 3 1 - 3 3

3 . E d w a r d s , " C h ' i n g L e g a l J u r i s d i c t i o n , " 222.

4 . E d w a r d s , " C a n t o n S y s t e m . "

5 . E d w a r d s , " C h ' i n g L e g a l J u r i s d i c t i o n , " 223.

6. T h e hong are d e s c r i b e d in Fa i rbank , Trade and Diplomacy.

7. In so d o i n g , the C h i n e s e s o u g h t to have the " b a r b a r i a n s " s t r u c t u r e

their act iv i t ies a l o n g C h i n e s e l ines. As w a s the case wi th g u i l d s and a r a n g e

o f o ther g r o u p s , the C h i n e s e e x p e c t e d g r o u p leaders t o b e r e s p o n s i b l e for

the b e h a v i o r o f m e m b e r s .

8. F a i r b a n k and T e n g , e d s . , China's Response to the West, 1 9 - 2 1 .

9 . Q u o t e d in E d w a r d s , " C a n t o n S y s t e m , " 245.

10. T h e Lady Hughes, a B r i t i s h merchant ship, had the m i s f o r t u n e of

f ir ing a sa lu te that resul ted in the death of a C h i n e s e s e a m a n . At first the

B r i t i s h capta in re fused to surrender a g u n n e r to the C h i n e s e s ide , a r g u i n g

that i t w a s difficult to ascertain w h o w a s re spons ib le for the errant vol ley,

a n d that, in any event , B r i t i s h cour t s w o u l d see that j u s t i c e w a s d o n e . R e ­

l en t ing u n d e r p r e s s u r e , the B r i t i s h w e r e s h o c k e d w h e n the C h i n e s e e x e c u t e d

the sa i lor by s t r a n g u l a t i o n . T h e C h i n e s e be l ieved that this d e m o n s t r a t e d

leniency, i n a s m u c h as i t enabled the sai lor to die w i t h his b o d y intact , in

k e e p i n g w i t h C o n f u c i a n m o r e s to the effect that one s h o u l d leave this w o r l d

w i t h o u t d a m a g i n g the b o d y one's parents h a d g iven one . T h e B r i t i s h , w h o

w o u l d h a v e pre ferred a q u i c k e r — a n d t o their m i n d s m o r e h u m a n e — m e a n s

o f e x e c u t i o n , ins tead t o o k this as a s ign o f C h i n e s e b a r b a r i s m , and they

re fused thereafter to a l l o w their subjects to be tried by C h i n e s e c o u r t s . T h e

r e c o r d of the Lady Hughes case has been translated by Dr . F u - m e i C h e n a n d

o t h e r s affiliated w i t h the H a r v a r d E a s t A s i a n L e g a l S tud ie s p r o g r a m . I t i s

r e p r i n t e d in A l f o r d , "Role o f L a w in C h i n e s e Society ."

11 . C h a n g H s i n - p a o , Commissioner Lin, 1 - 1 5 .

12. S p e n c e , " O p i u m S m o k i n g , " 143-73 .

13. H a o Y e n - p ' i n g , Commercial Revolution, 121.

14. C h a n g H s i n - p a o , Commissioner Lin, 95, 39-46.

15. C o h e n and C h i u , People's China and International Law, 14.

16. T h e letter to Q u e e n V i c t o r i a i s trans lated in F a i r b a n k and T e n g , e d s . ,

China's Response to the West, 24-27.

17. B y v i r t u e o f e n j o y i n g m o s t - f a v o r e d - n a t i o n s tatus w i t h Q i n g C h i n a ,

a f o r e i g n T r e a t y P o w e r w a s entit led to whatever pr iv i l eges C h i n a g r a n t e d

to any other fore ign power . K e y treaties es tabl i sh ing these pr iv i l eges are

r e p r i n t e d in M a y e r s , ed . , Treaties.

18. Art i c l e 12 o f the Treaty o f Peace, A m i t y and C o m m e r c e B e t w e e n

the U n i t e d States o f A m e r i c a and the C h i n e s e E m p i r e s i g n e d a t W a n g x i a o n

J u l y 3, 1844, repr in ted in M a y e r s , ed . , Treaties, 76.

19. S e e Fishel , End of Extraterritoriality; K o t e n e v , Shanghai and Its Mixed

Court; H s i a C h i n g - l i n , Status of Shanghai.

Notes to Pages 33-35 / 143

20. A l t h o u g h s o - c a l l e d songgun ( l i t igat ion tr icksters) and o thers p r o ­

v i d e d i n f o r m e d a d v i c e to p e r s o n s invo lved in C h i n e s e legal processes (see

A l f o r d , " O f A r s e n i c and O l d L a w s , " 1180), i t i s genera l ly a g r e e d that pr ior

to Wu T i n g f a n g ' s appearance in the S h a n g h a i M i x e d C o u r t in 1877, "legal

r e p r e s e n t a t i o n o f the C h i n e s e part ies h a d been d e e m e d unneces sary" ( C h ' e n ,

China and the West, 231). Indeed, even as late as 1926, there w e r e fewer

than 250 C h i n e s e l awyers avai lable to Shangha i ' s p o p u l a t i o n o f over three

m i l l i o n .

21 . L o b i n g i e r , "Amer ican C o u r t s in C h i n a , " 24.

22. Re l evant U . S . l a w s are d e s c r i b e d in "Jur i sprudence and J u r i s d i c ­

t ion ," 503-5, 5 0 8 - n .

23. " T h o s e w h o have to a d m i n i s t e r [these] . . . l aws are des t i tute of all

l egal r e q u i r e m e n t s , " J . W . D a v i s , the A m e r i c a n c o m m i s s i o n e r t o C h i n a a t

m i d c e n t u r y , r e p o r t e d t o the U . S . Senate (Senate E x e c u t i v e D o c u m e n t 72 ,

31st C o n g . , 1st sess . [Sept . 1850], 8 -19 , repr inted in Fishel , End of Extraterri­

toriality, 13).

24. A c t C r e a t i n g the U n i t e d States C o u r t f o r C h i n a and L i m i t i n g J u r i s ­

d i c t i o n o f C o n s u l a r C o u r t s in C h i n a , 34 U . S . Stats a t L . , ch. 74 (1906).

25. A l t h o u g h the E x c l u s i o n Act o f 1882 w a s a i m e d at C h i n e s e

" laborers ," the i m p r e c i s e def init ions conta ined in the leg i s la t ion s erved as a

deterrent to C h i n e s e th ink ing o f c o m i n g to the U n i t e d States for a r a n g e o f

different p u r p o s e s . S e e H u n t , Making of a Special Relationship, 85-96.

26. C h i n e s e i m a g e s o f Western j u s t i c e are addres sed i n C o h e n and C h i u ,

People's China and International Law, 10.

27. T h e m o s t n o t e w o r t h y e x c e p t i o n s e e m s t o have been the a b o r t i v e

p r o p o s a l o f H o n g R e n ' g a n , one o f the leaders o f the T a i p i n g r e v o l u t i o n a r y

m o v e m e n t o f the m i d nineteenth century, that a patent s y s t e m be a d o p t e d .

S e e Z h e n g C h e n g s i , Chinese Intellectual Property, 5 1 - 5 2 .

28. G a r d e l l a , " B o o m Years o f the Fuk ien Tea T r a d e , " 6 9 - 7 0 .

29. See , e .g . , M o r s e , International Relations, 3: 378.

30. H a o , Commercial Revolution, 263. S e e a l so Al len and D o n n i t h o r n e ,

Western Enterprise.

31. J e r n i g a n , China in Law, 270.

32. H a o , Commercial Revolution, 265.

33. M a c h l u p , "Patents ." T h e convent ions are d i scussed in M a c h l u p and

P e n r o s e , "Patent C o n t r o v e r s y , " 1; R i c k e t s o n , Berne Convention.

34. M o r s e , International Relations, 3: 3 7 7 - 7 8 .

35. I t r e m a i n s difficult to render Western t r a d e m a r k s in C h i n e s e , p a r ­

t icular ly in v i e w of differences in oral render ings that s p e a k e r s of different

d ia lects g i v e the s a m e characters . T h u s , at t imes , a t r a d e m a r k that m a y

s o u n d fel ic i tous in o n e dialect m a y conta in a h idden (and not necessar i ly

p l easant ) m e a n i n g in another.

144 / N o t e s t o P a g e s 35-38

36. C r o w , 400 Million Customers, 1 5 - 3 1 .

37. S e e , e . g . , Gutzlaff , Sketch of Chinese History, 34-53; D o o l i t t l e , Social

Life, 335-41; M a c G o w a n , Sidelights on Chinese Life, 2 7 2 - 9 6 .

38. J o n e s , The Great Qing Code.

39. G u o j i a d a n g ' a n j u M i n g - Q i n g d a n g ' a n g u a n , c o m p . , Wuxu bianfa

dang'an shiliao, 453-54.

40. Y u a n , " Z h o n g g u o j i n d a i b a n q u a n de yanb ian shiqi ," 46 -47 .

41 . C o c h r a n , Big Business in China; H a m i l t o n and L a i , "Jinshi z h o n g g u o

s h a n g b i a o . "

42. M o r s e , International Relations, 3: p a s s i m .

43. H e u s e r , " C h i n e s e T r a d e m a r k L a w o f 1904," 187-88.

44. M o r s e , International Relations, 3: 157-87.

45. Q u o t e d in Heuser , " C h i n e s e T r a d e m a r k L a w of 1904," 183.

46. M o r s e , International Relations, 3: 191. A l t h o u g h the likin t h e o r e t i ­

cal ly a p p l i e d on ly to C h i n e s e g o o d s , the requ irement that fore ign g o o d s be

c o v e r e d by a "transi t p a s s " equal to ha l f the duty charged C h i n e s e and the

u n e v e n qua l i ty o f a d m i n i s t r a t i o n in general led the treaty p o w e r s to see this

t a x as i m p e d i n g their t rade in C h i n a .

47. T h e p r o b l e m s e n g e n d e r e d by the absence o f a u n i f o r m nat ional c u r ­

rency are d e s c r i b e d in K i n g , Money and Monetary Policy in China, 113.

48. M o r s e , International Relations, 3: 360-80.

49. T h e 1903 treaty b e t w e e n the U n i t e d States and C h i n a , repr in ted in

M a c M u r r a y , e d . , Treaties and Agreements, A r t s . 12 and 15.

50. S e e F e u e r w e r k e r , China's Early Industrialization.

51. T h i s w a s a l so the case in c o n t e m p o r a n e o u s d i s cus s ions b e t w e e n the

C h i n e s e a n d other fore ign p o w e r s , such as G e r m a n y , that d id not c u l m i n a t e

i n c o m p r e h e n s i v e c o m m e r c i a l a g r e e m e n t s .

52. T h e M a c k a y Treaty , repr inted in A l l m a n , Protection of Trademarks,

A r t . 7.

53. " L u n s h a n g b i a o zhuce b u y i n g yanqi ," 143.

54. T h e 1903 treaty b e t w e e n the U n i t e d States and C h i n a , r epr in ted in

M a c M u r r a y , ed . , Treaties and Agreements, A r t . 9. T h a t the concern w i t h rec i ­

p r o c i t y m a y have been s y m b o l i c i s s u g g e s t e d by the fact that at the t i m e

in q u e s t i o n , o w i n g to the E x c l u s i o n A c t o f 1882 and other l eg i s la t ion d i ­

rec ted a g a i n s t C h i n e s e i m m i g r a n t s , there were scarcely 100,000 C h i n e s e in

the U n i t e d States , few o f w h o m p r e s u m a b l y h a d the t ime t o w o r r y a b o u t

the nicet ies o f s e c u r i n g t r a d e m a r k protec t ion .

55. T h e M a c k a y Treaty , repr in ted in A l l m a n , Protection of Trademarks,

A r t . 7.

56. C l a r k , Analytic Summaries.

57. T h e 1903 treaty b e t w e e n the U n i t e d States and C h i n a , r epr in ted in

M a c M u r r a y , ed . , Treaties and Agreements, A r t . 9.

58. I b i d . , A r t . 10.

N o t e s t o P a g e s 38-42 / 145

59. I b i d . , A r t . n . T h e m o s t c o m m o n l y used C h i n e s e w o r d s for c o p y ­

r ight , banquan and zhuzuoquan, appear not to have been used in official p u b ­

lic d o c u m e n t s in C h i n a pr ior to this t ime . To be sure , ind iv idual C h i n e s e

a u t h o r s — i n c l u d i n g , m o s t no tab ly Yan Fu , the f a m o u s trans lator o f L o c k e ,

H o b b e s , M o n t e s q u i e u , and other key f igures in Western p h i l o s p h y — h a d

m a d e b r i e f m e n t i o n o f c o p y r i g h t shor t ly before . X i e a n d G u o , " S o u n d s o f

H i s t o r y ' s F o o t s t e p s , " 20.

60. T h e 1903 treaty be tween the U n i t e d States and C h i n a , repr in ted in

M a c M u r r a y , ed . , Treaties and Agreements, A r t . 11.

61. H e u s e r , " C h i n e s e T r a d e m a r k L a w o f 1904," 192.

62. J o s e p h K . H . C h e n g , " C h i n e s e L a w i n Trans i t ion ," i n .

63. " G a i d i n g s h a n g b i a o t iaoli" (1909), A r t . 2 .

64. J o s e p h K . H . C h e n g , " C h i n e s e L a w i n Trans i t ion ," 96.

65. H e u s e r , " C h i n e s e T r a d e m a r k L a w of 1904," 200-201.

66. T r a d e m a r k r e g u l a t i o n s , repr inted in Foreign Relations of the United

States, A u g . 15, 1904, i t e m n o . 1681, A r t . 1.

67. I b i d . , A r t . 27.

68. I b i d . , A r t . 8.

69. I b i d . , A r t . 2.

70. O r d e r to the M i n i s t r y of C o m m e r c e , repr inted in Dongfang zazhi,

G u a n g x u 30th year, 2d m o n t h , 25th day (1905).

7 1 . C o n g e r , "Letter to Secre tary o f State J o h n H a y , O c t . 13, 1904."

72. H e u s e r , " C h i n e s e T r a d e m a r k L a w of 1904," 203.

73 . "Inc losure t o Let ter o f U . S . M i n i s t e r C o n g e r t o Secre tary o f S ta te

H a y , D e c . 8, 1904."

74. North China Herald, Sept . 16, 1904.

75. M i n i s t r y o f C o m m e r c e m e m o r i a l q u o t e d i n Heuser , " C h i n e s e T r a d e ­

m a r k L a w o f 1904," 204-5.

76. C o o l i d g e , "Letter to Secre tary o f State J o h n Hay, J a n . 7 , 1905."

7 7 . A l l m a n , Protection of Trademarks, 1—13.

78. Ib id . ; W i l l o u g h b y , Foreign Rights, 902-18.

79 . W a n g J i a f u a n d X i a S h u h u a s u g g e s t n o m o r e than 360 patents w e r e

i s sued (Zhuanlifa jianlun, 66-68) , whi le Z h e n g C h e n g s i pu t s the n u m b e r at

692 (Chinese Intellectual Property, 51). T h i s w a s at a t i m e w h e n U . S . patent

au thor i t i e s "faced a c o n t i n u o u s l y increas ing f lood of appl ica t ions ," y i e l d ­

ing far m o r e patents annual ly than C h i n a g r a n t e d over this ent ire p e r i o d

( N o b l e , America by Design, 102).

80. T h e s e l a w s m a y be found in K e , Zhongguo baoxue shi, 334-79.

81. A l l m a n , Protection of Trademarks, 1 7 8 - 7 9 .

82. I b i d . , 107. T h e pract ice o f u s i n g " s t a m p s . . . a s c o r r o b o r a t i o n o f

o w n e r s h i p " dates f r o m this p e r i o d ( Z h e n g C h e n g s i , Chinese Intellectual Prop­

erty, 87).

83. A l l m a n , Protection of Trademarks, 107.

146 / Notes to Pages 42-45

84. Fishel , End of Extraterritoriality, 26-50 .

85. S e e , e . g . , the c o r r e s p o n d e n c e of U. S . minis ter to C h i n a W. W. R o c k -

hill w i t h the G e r m a n minister , A . V . M u m m , A u g . 22, 1905, repr in ted

in Foreign Relations of the United States (1906), 232.

86. S e e the no te s be tween the U n i t e d States and B e l g i u m , D e n m a r k ,

F r a n c e , G e r m a n y , G r e a t B r i t a i n , Italy, J a p a n , the N e t h e r l a n d s , R u s s i a , and

S w e d e n , r epr in ted in M a c M u r r a y , ed . , Treaties and Agreements, 1: 542, 641,

538, 544, 502, 546, 735, 540, and 2: 1002.

87. W i l l o u g h b y , Foreign Rights, 902-18.

88. M a y and F a i r b a n k , e d s . , America's China Trade, 151-203.

89. T h e baihua m o v e m e n t is d i s cussed in Fa i rbank , Great Chinese Revolu­

tion, 1 8 9 - 9 1 .

90. Foreign Relations of the United States (1907), pt. 1, 262.

91 . A l l m a n , Trademark Protection, 96.

92. Z h a n g J i n g l u , Zhongguo xiandai chuban shiliao, 334; D r e g e , Commercial

Press, 58.

93. Z h a n g J i n g l u , Zhongguo xiandai chuban shiliao, 335.

94. W i l l o u g h b y , Foreign Rights, 905. B e l i e v i n g efforts to obta in redres s

t h r o u g h the C h i n e s e futi le, by the i92o's the B r i t i s h author i t i es d id not even

b o t h e r to contac t C h i n e s e officials.

95. " T r a d e - m a r k s in C h i n a , " North China Daily News, A u g . 20, 1907.

96. W i l l o u g h b y , Foreign Rights, 912 -18 .

97. Z h a n g J i n g l u , Zhongguo xiandai chuban shiliao, p a s s i m .

98. L i n k , Mandarin Ducks, 150.

99. I b i d . , 51.

100. I b i d . , 53.

101. Q u o t e d in Heuser , " C h i n e s e T r a d e m a r k L a w of 1904," 50.

102. C o n g e r , "Letter to Secre tary o f State J o h n Hay , O c t . 13, 1904."

103. S h e n J i a b e n (1840-1913) w a s a p a r a m o u n t f igure in late Q i n g l a w

r e f o r m . F o l l o w i n g a d i s t i n g u i s h e d career on the B o a r d o f P u n i s h m e n t s , in

the c o u r s e o f w h i c h he served as its v ice pres ident and c o n d u c t e d g r o u n d ­

b r e a k i n g research o n C h i n e s e legal history, S h e n w a s n a m e d imper ia l c o m ­

m i s s i o n e r for law r e f o r m in 1902 (a long wi th Wu T i n g f a n g ) . In that c a ­

paci ty , S h e n p r o p o s e d s w e e p i n g changes in such fundamenta l n o t i o n s as

the di f ferent iat ion o f p u n i s h m e n t s accord ing to the relat ive rank o f the p e r ­

pe tra tor a n d v i c t i m . A l t h o u g h few o f the p r o p o s a l s generated under his

d i rec t ion w e r e enacted , he i s r ight ly cons idered a m a j o r f igure in C h i n e s e

legal h is tory .

104. W u T i n g f a n g (1842-1922), w h o w a s b o r n i n S i n g a p o r e and e d u ­

cated in the West , b e c a m e H o n g K o n g ' s f i r s t C h i n e s e barr is ter in 1877.

Af ter success fu l ly prac t i c ing i n H o n g K o n g , h e j o i n e d the s t a f f o f V i c e r o y L i

H o n g z h a n g in 1882, t h r o u g h w h i c h he w a s able d u r i n g the next d e c a d e and

N o t e s t o P a g e s 45-49 / 147

a h a l f to p lay an i m p o r t a n t role in a range of c o m m e r c i a l , legal , d i p l o m a t i c ,

and o ther act iv i t ies . H e w a s m a d e C h i n a ' s a m b a s s a d o r t o the U n i t e d States

in 1896 a n d later w a s selected as an imper ia l c o m m i s s i o n e r for law r e f o r m

a l o n g w i t h S h e n j i a b e n .

105. M e i j e r , Introduction of Modern Criminal Law in China; J o s e p h K. H.

C h e n g , " C h i n e s e L a w i n Trans i t ion ."

106. Dongfang zazhi, G u a n g x u 32d year, 3d m o n t h , 25th day (1907).

107. I b i d . , G u a n g x u 31st year, 2d m o n t h (1906).

108. J i a n g n a n B u r e a u o f C o m m e r c e , report , in ib id . , G u a n g x u 30th

year, 9th m o n t h , 25th day (1905).

109. I b i d . , " R e a s o n s for D r a f t i n g the Trial P r o v i s i o n s o f T r a d e m a r k

R e g i s t r a t i o n . "

n o . T h e 1903 treaty be tween the U n i t e d States and C h i n a , repr in ted in

M a c M u r r a y , e d . , Treaties and Agreements, A r t . 9.

i n . Let ter o f Pr ince Q i n g t o Min i s ter Rockh i l l o f J u n e 1 , 1907, r e ­

p r i n t e d in Foreign Relations of the United States (1907), i t em no . 284.

112. L i n k , Mandarin Ducks, 1 6 1 - 7 0 .

113. B a i , Outline History, 491.

114. M c K e e , Chinese Exclusion.

115. C h o w , May Fourth Movement, 1 1 7 - 7 0 .

116. A r n o l d , China, 343-47.

117. In Shen's w o r d s , " B e i n g s u r r o u n d e d by the p o w e r s and c o m p e l l e d

by the s i tua t ions of internat ional interact ion, i t i s e x t r e m e l y difficult for

C h i n a to s t ick to the o l d w a y " ( q u o t e d in C h e n g , " C h i n e s e L a w in T r a n s i ­

t ion," 209).

118. B a i , Outline History, 447-48, 480-83; Meijer , Introduction of Modern

Criminal Law in China.

119. B e r m a n , Words Like Colored Glass, 100-121 .

120. J o s e p h K . H . C h e n g , " C h i n e s e L a w i n Trans i t ion ," 196-258.

121 . I b i d . , 196-258.

122. M a d e l i n e Zel in 's recent w o r k s u g g e s t s that at least in the salt i n d u s ­

try i n S i c h u a n d u r i n g this p e r i o d , s o m e c h a m b e r s o f c o m m e r c e acted w i t h

d i s p a t c h a n d ski l l t o reso lve d i spute s a m o n g C h i n e s e m e r c h a n t s . Z e l i n ,

" M e r c h a n t D i s p u t e M e d i a t i o n . "

123. F a i r b a n k , Great Chinese Revolution, 156.

124. L e v e n s o n , Confucian China, 1 - 2 1 . As had the Q i n g , Y u a n Shika i

ins t i tu ted res tr ic t ive press laws d u r i n g his b r i e f inter lude as C h i n a ' s ruler.

125. T h u s , the C h i n e s e res is ted fore ign pres sure in 1913 and 1920 to j o i n

the B e r n e C o n v e n t i o n , c o n t e n d i n g that adherence w o u l d o n l y h u r t C h i n a ' s

e c o n o m y and educat iona l s y s t e m . See Z h e n g C h e n g s i , Chinese Intellectual

Property, 88.

126. Mei jer , Introduction of Modem Criminal Law in China.

148 / Notes to Pages 49-54

127. Q u o t e d in A l l m a n , Protection ojTrademarks, 179.

128. E a s t m a n , Abortive Revolution.

129. S h e r i d a n , China in Disintegration.

130. T a n g , America's Failure in China, 48-49.

131. S u n ' s v i s i o n is d e s c r i b e d in his San Min Chu I ( T h e T h r e e People 's

P r i n c i p l e s ) . T h e G u o m i n t a n g ' s early years i n g o v e r n m e n t are the subjec t o f

E a s t m a n , Abortive Revolution.

132. C h ' e n , China and the West, 231 and 728-29; A l f o r d and Shen , " ' L a w

Is My Idol . ' "

133. A trans la t ion of the C o p y r i g h t L a w and its detai led r e g u l a t i o n s w a s

p u b l i s h e d in 4 China Law Review 4, n o . 2 (1929).

134. Ibid . T h i s l a w w a s a m e n d e d in 1944, in r e s p o n s e to A m e r i c a n o b ­

j e c t i o n s , t o p lace C h i n e s e and fore igners on an equal f o o t i n g .

135. I b i d . , A r t . 22.

136. T h e full Pub l i ca t ion L a w is repr inted in K e , Zhongguo baoxue shi,

334-

137. T i n g , Government Control, 126 -59 .

138. R e p r i n t e d in K e , Zhongguo baoxue shi, A r t . 19.

139. I b i d . , A r t . 15.

140. Ibid . S e e a l so T i n g , Government Control.

141. T h e 1930 T r a d e m a r k L a w , A r t . 2 .

142. T h e s e are d i s c u s s e d i n N a t i o n a l F o r e i g n T r a d e C o u n c i l , S u b c o m ­

m i t t e e o n Intel lectual P r o p e r t y "Protect ion o f Industr ia l and Intel lectual

P r o p e r t y in C h i n a , " 6 .

143. T h e 1949 Patent L a w , A r t s . 4 and 14.

144. H a l l , "Pirat ing o f A m e r i c a n B o o k s , " 1914.

145. K a s e r , Book Pirating, 19.

146. S h e n R e n ' g a n and Z h o n g Y i n g k e , Banquanfa, 101.

147. He De f en , Zhuzuoquanfa lunwenji.

148. B e a l e and P e l h a m , Trade and Economic Conditions, 48-49.

149. N a t i o n a l F o r e i g n T r a d e C o u n c i l , S u b c o m m i t t e e o n Intel lectual

P r o p e r t y " P r o t e c t i o n of Industr ia l and Intel lectual P r o p e r t y in C h i n a , " 6 .

150. Q u o t e d in E a s t m a n , Abortive Revolution, 11 .

151. T h e pauc i ty of legal ly tra ined indiv iduals i s d i s c u s s e d in Q i a n , Gov­

ernment and Politics, 249.

152. C h ' e n , China and the West, 328.

153. I b i d . , 254.

154. Q i a n , Government and Politics. K a t h r y n B e r n h a r d t in her research on

d i v o r c e in ear ly R e p u b l i c a n C h i n a s u g g e s t s that f o r m a l legal proces se s m a y

n o t h a v e b e e n as d a u n t i n g as i s p o s i t e d here . See B e r n h a r d t , " W o m e n and

the L a w . "

155. F a i r b a n k , Great Chinese Revolution, 223. T h e C o n t r o l Y u a n w a s o n e

N o t e s t o P a g e s 55-60 / 149

of the f ive b r a n c h e s o f g o v e r n m e n t env is ioned by S u n Yatsen. I t w a s i n ­

t ended , b r o a d l y s p e a k i n g , l ike the i m p e r i a l - e r a censorate , to oversee off i ­

c i a l d o m so as to deter b o t h mis feasance and mal feasance .

156. Q u o t e d in E d w a r d s , H e n k i n , and N a t h a n , eds . Human Rights in

Contemporary China, 90.

Four. Squaring Circles

S e e , e . g . , M a o , " O n the Tact ics o f F i g h t i n g , " 153-78.

S e e , e . g . , Z h u X i s e n , Shangbiao yu shangbiao fa, 20-31 .

" Z h o n g g u o r e n m i n zhengzhi x i e s h a n g huiyi d e g o n g t o n g g a n g l i n g . "

W a n g J i a f u and X i a S h u h u a , Zhuanlifa, 68-69.

S o v i e t intel lectual p r o p e r t y law of the relevant p e r i o d i s d i s c u s s e d in

L e v i t s k y , Copyright, Defamation, and Privacy; S w a n s o n , Scientific Discoveries;

H a z a r d , Communists and Their Laws.

6. M a r x , Early Writings, 157.

7 . A l f o r d , "Inscrutable Occ identa l ," 975.

8 . " B a o z h a n g f a m i n g q u a n . " T h e P R C has rout ine ly p u b l i s h e d i m p o r ­

tant l a w s and r e g u l a t i o n s init ial ly in "provis ional" (zanxing) or "trial" (shi-

xing) f o r m . T h i s dev ice enables the P R C t o issue rules o f cons iderab le g e n ­

erality, to test out part icu lar f o r m u l a t i o n s , and, in M a r x i s t t e r m s , to a d a p t

l a w a n d , for that matter , other e lements o f the s u p e r s t r u c t u r e to the c h a n g ­

ing e c o n o m i c b a s e . As will be d i scussed be low, the f l ex ib i l i ty that m a r k s

this and other features of the legal s y s t e m are not attained w i t h o u t a c o n ­

s iderab le cos t .

9. S h e n Y u a n y u a n , Faming yufaxian quan, 4; H s i a T a o - t a i , " C h i n a ' s N e w

Patent L a w , " 19.

10. K a y , "Patent L a w , " 343-44.

11 . T h e P R C ' s initial C o n s t i t u t i o n , p r o m u l g a t e d in 1954, expl ic i t ly

r e c o g n i z e d p r i v a t e proper ty . 1954 X i a n f a , A r t s . 5 , 8-12, 14.

12. C h e n g K a i y u a n , " Y i b u j u y o u z h o n g g u o tese," 42.

13. " Z h e n g w u y u a n g u a n y u j i a n g l i y o u g u a n s h e n g c h a n g d e f a m i n g ,

j i s h u ga i j in j i he l ihua j i a n y i d e j u e d i n g . " D i s c u s s e d i n W a n g J i a f u and X i a

S h u h u a , Zhuanlifa, 7 0 - 7 2 .

14. P e r s o n s h o l d i n g G u o m i n d a n g t r a d e m a r k s w e r e g iven s ix m o n t h s t o

turn in their o ld t r a d e m a r k certificates and apply for reg i s t ra t ion u n d e r the

P R C ' s ru les . Interest ingly , pr ior t o a s s u m i n g power , the C h i n e s e C o m m u ­

nis ts h a d i s sued t r a d e m a r k s in areas under their control . See L i u L i , " O n the

L e g a l S y s t e m o f C h i n a G o v e r n i n g T r a d e m a r k s . "

15. S ide l , " C o p y r i g h t , T r a d e m a r k and Patent," 270.

16. S h e n R e n ' g a n and Z h o n g Y i n g k e , Banquanfa, 2 6 0 - 6 1 .

17. Ibid .

150 / N o t e s t o P a g e s 6 0 - 6 3

18. Ib id .

19. " G u a n y u g u o y i n g c h u b a n bianj i j i g o u j i g o n g z u o zhidu d e g u i d i n g . "

F o r m o r e o n contrac t i n a P R C sett ing, see L u c i e C h e n g and A r t h u r R o s e t t ,

" C o n t r a c t w i t h a C h i n e s e Face"; Potter, Economic Contract Law. O t h e r c o n ­

t e m p o r a n e o u s legal m e a s u r e s inc luded the "Guanl i s h u k a n c h u b a n y e y i n -

s h u a y e f a x i n g y e z a n x i n g t iaoli" and " G u a n y u j i u z h e n g renyi f a n y i n t u s h u

x i a n x i a n g de g u i d i n g . " S h e n R e n ' g a n and Z h o n g Y i n g k e , Banquanfa, 106-8 .

20. S h e n R e n ' g a n and Z h o n g Y i n g k e , Banquanfa, 262.

21. Ibid . T h e s e early efforts are a l so d i scussed i n X i e X i a n g and G u o

J i a k u a n , " S o u n d s o f H i s t o r y ' s F o o t s t e p s , " 20.

22. Z h e n g C h e n g s i , " F u t u r e C h i n e s e C o p y r i g h t S y s t e m , " 144-45.

23. R i c h m a n , Industrial Society, 384.

24. S ide l , " C o p y r i g h t , T r a d e m a r k and Patent," 271 .

25. T a n g Z o n g s h u n , "Protec t ion o f Intel lectual Proper ty ," 4 .

26. " G u a n y u g u o y i n g c h u b a n bianj i j i g o u j i g o n g z u o zh idu d e g u i d i n g . "

A d d r e s s e d i n Z h e n g C h e n g s i , "Future C h i n e s e C o p y r i g h t S y s t e m , " 148.

27. A l f o r d and B i r e n b a u m , "Ventures in the C h i n a T r a d e , " 101-2 .

28. T h e " A n t i - R i g h t i s t M o v e m e n t " (1957) w a s d e s i g n e d to r o o t o u t

inte l lectuals and o thers w h o h a d been t o o critical o f the C o m m u n i s t p a r t y

d u r i n g the p r e c e d i n g " H u n d r e d F l o w e r s M o v e m e n t . " T h e " G r e a t L e a p F o r ­

w a r d " (1958-60) s o u g h t to accelerate the pace o f socia l i s t e c o n o m i c d e v e l ­

o p m e n t , l e a d i n g , inter alia, to the transfer of u r b a n intel lectuals and o thers

at least t e m p o r a r i l y to the c o u n t r y s i d e . See further M a c F a r q u h a r , Origins,

p a s s i m ; G o l d m a n , Literary Dissent in Communist China, 240.

29. B a u m and Te iwes , Ssu-ch'ing.

30. B o t h the 1954 C o n s t i t u t i o n , which w a s then operat ive , and the 1982

C o n s t i t u t i o n descr ibe the State C o u n c i l a s the execut ive o r g a n o f the h ighes t

s tate a u t h o r i t y — " t h e h ighes t a d m i n i s t r a t i v e o r g a n o f state."

31. " F a m i n g j i a n g l i t iaoli"; "Jishu gai j in j i a n g l i t iaoli ."

32. " F a m i n g j i a n g l i t iaol i ," A r t . 23.

33. Q u o t e d in H s i a T a o - t a i , "China ' s N e w Patent L a w , " 20.

34. R i c h m a n , Industrial Society, 319.

35. Guangming ribao ( E n l i g h t e n m e n t D a i l y ) is the l eading official p a p e r

for inte l lec tuals and i s d e v o t e d in large m e a s u r e to mat ters o f science, e d u ­

cat ion , a n d cu l ture .

36. Q u o t e d in G a l e , " C o n c e p t of Intel lectual Property ," 350.

37. " S h a n g b i a o guan l i t iaoli ."

38. I b i d . , A r t . 1.

39. "1963 S h a n g b i a o g u i d i n g , " Art . 2.

40. G o l d m a n , Literary Dissent, 241.

4 1 . S h e n R e n ' g a n and Z h o n g Y i n g k e , Banquanfa, 47.

42. T h e C u l t u r a l R e v o l u t i o n (1966-76) tore apart C h i n e s e pol i t ical , e c o -

N o t e s t o P a g e s 63-65 / 151

n o m i c , and soc ia l life. T h e official h i s tory o f i t i s r ecounted in " O n Q u e s ­

t ions o f P a r t y H i s t o r y : R e s o l u t i o n o n C e r t a i n Q u e s t i o n s i n the H i s t o r y o f

O u r P a r t y S ince the F o u n d i n g o f the People's R e p u b l i c o f C h i n a " ( i s sued

J u n e 27, 1981, a t the S i x t h P lenary S e s s i o n o f the n t h C e n t r a l C o m m i t t e e o f

the C h i n e s e C o m m u n i s t Par ty ) . C h i n e s e text in Renmin ribao, J u l y 1, 1981.

E n g l i s h t rans la t ion in Beijing Review 24, n o . 27 ( J u l y 6, 1981): 10, 20-26. F o r

m o r e de tached a c c o u n t s , see M a c F a r q u h a r , Origins; T h u r s t o n , Enemies of the

People.

43. L e y s , Chinese Shadows, 132.

44. In fact, these cons i s t ed o f f ive B e i j i n g o p e r a s , t w o b a l l e t - d r a m a s ,

and o n e s y m p h o n i c w o r k .

45. S e e , e . g . , Fan Peng, Luoheixian, a C a n t o n e s e R e d G u a r d b r o a d s h e e t .

46. L u b m a n , " E m e r g i n g Func t ions ," 235.

47. W a n g J i a f u and X i a S h u h u a , Zhuanlifa.

48. Q u o t e d in G a l e , " C o n c e p t o f Intel lectual Property ," 351.

49. Z h e n g C h e n g s i , " T r a d e M a r k s in C h i n a , " 278.

50. S idel , " C o p y r i g h t , T r a d e m a r k and Patent."

51. L e y s , Chinese Shadows, 132, 135-36.

52. A u t h o r ' s in t erv i ews , c o n d u c t e d in B e i j i n g , C h o n g q i n g , S h a n g h a i ,

G u a n g z h o u , and H o n g K o n g , J u n e - D e c . 1986 and J u n e - A u g . 1987, and i n

L o s A n g e l e s , A p r . - J u n e 1986, J a n . - J u n e 1987, and Sept . 1 9 8 7 - M a r . 1988.

53. Q u o t e d i n Z h e n g C h e n g s i , "Future C h i n e s e C o p y r i g h t S y s t e m , "

152. Whi le in C h i n a in the 1970's, I v is i ted "art factories" in w h i c h art is ts

c o l l a b o r a t e d o n p a i n t i n g s .

54. Z h o u E n l a i (1899-1976) served a s premier o f the P R C f r o m its f o u n ­

d a t i o n in 1949 unti l his death in 1976 and w a s a lso fore ign min i s t er f r o m

1949 unti l 1958. D e n g X i a o p i n g (b. 1904) has been the pr inc ipal l eader of the

P R C s ince 1977, a l t h o u g h h e has l ong s ince re s igned f r o m f o r m a l p o s i t i o n s .

H u a G u o f e n g (b. 1920), w h o w a s des igna ted b y M a o Z e d o n g a s his s u c c e s ­

sor, w a s s i m u l t a n e o u s l y premier o f the P R C , c h a i r m a n o f the C o m m u n i s t

p a r t y ' s C e n t r a l C o m m i t t e e , c h a i r m a n o f the party ' s M i l i t a r y Affa irs C o m ­

mi t t ee , and edi tor o f M a o ' s w o r k s i n the years i m m e d i a t e l y f o l l o w i n g M a o ' s

death . He p r o v e d unable to sus ta in leadership in his o w n n a m e , h o w e v e r ,

and by 1980 h a d re l inqu i shed the a f o r e m e n t i o n e d p o s t s . For m o r e on the

F o u r M o d e r n i z a t i o n s general ly , see R i c h a r d B a u m , China's Four Moderniza­

tions. C h i n a ' s p o s t - M a o t r a n s f o r m a t i o n s are p o r t r a y e d in H a r d i n g , China's

Second Revolution.

55. K a y , "Patent L a w , " 351.

56. I n the P R C , "intel lectuals" include those w h o have g r a d u a t e d f r o m

h i g h s c h o o l , as wel l as those w h o have rece ived higher educat ion .

57. T h e s i tuat ion o f intel lectuals in p o s t - C u l t u r a l R e v o l u t i o n C h i n a i s

art fu l ly p o r t r a y e d in L i n k , Evening Chats, p a s s i m .

152 / N o t e s t o P a g e s 65-66

58. F o r a t h o u g h t f u l d i s cuss ion of these efforts at r econs truc t ion , see

L u b m a n , " E m e r g i n g Func t ions ."

59. K a y , "Patent L a w , " 351.

60. T h e s e are trans lated in Foreign Broadcast Information Service C H I - 8 0 -

0005 ( J a n . 7, 1980), L - 5 .

61. T h e C C P I T w a s o n e o f the few C h i n e s e o r g a n i z a t i o n s t o r e m a i n

relat ively u n c h a n g e d in f o r m a t d u r i n g the C u l t u r a l R e v o l u t i o n years .

62. Z h e n g C h e n g s i , " T r a d e M a r k s i n C h i n a . "

63. T h u s , e . g . , the P R C ' s f i r s t c o m p r e h e n s i v e cr imina l code , p r o m u l ­

g a t e d in 1979, p r o v i d e s cr imina l penalt ies for p e r s o n s fraudulent ly p a s s i n g

o f f g o o d s .

64. " G u a n y u z h i x i n g x i n w e n chuban gaofe i j i but ie banfa de tongzhi ."

T h i s not i ce i s d i s c u s s e d briefly by Shen R e n ' g a n and Z h o n g Y i n g k e , Ban­

quanfa.

65. T h e s e r e g u l a t i o n s are briefly treated in Z h a o X i u w e n , Zhuzuoquan,

5 0 - 5 1 .

66. S e c t i o n 2435 of the 1974 T r a d e A c t establ ishes the criteria that m u s t

be m e t b e f o r e the "Pres ident m a y author ize the entry into force o f b i ­

lateral c o m m e r c i a l a g r e e m e n t s p r o v i d i n g n o n d i s c r i m i n a t o r y t rea tment to

the p r o d u c t s o f countr ie s here to fore denied such treatment ." In the event

that the f o r e i g n na t ion invo lved is not a p a r t y to the m a j o r internat ional

inte l lectual p r o p e r t y convent ions , Sec t i on 2435 requires that the a g r e e m e n t

" p r o v i d e r igh t s for U n i t e d States nat ionals with respect to patents and t r a d e ­

m a r k s . . . [and] c o p y r i g h t s in such c o u n t r y not less than the r ight s" speci f ied

in such convent ions ." 19 U. S . C . 2435.

67. Ar t i c l e V I o f the U . S . - P R C T r a d e A g r e e m e n t o f 1979. T h e U n i t e d

S ta tes w a s w i l l ing to accept such b r o a d l a n g u a g e f r o m a nat ion then lack ing

patent a n d c o p y r i g h t laws and with relatively little in the w a y o f t r a d e m a r k

p r o t e c t i o n b e c a u s e o f its eagernes s t o "normal ize" re lat ions w i t h the P R C

a n d its a t t e m p t s to generate s u p p o r t in the A m e r i c a n bus iness c o m m u n i t y

for its C h i n a po l i cy by s u g g e s t i n g a m o r e favorable c l imate for d o i n g b u s i ­

ness than ex i s ted . In this and a r a n g e of c o m p a r a b l e s teps d e s i g n e d to enlist

s u p p o r t for n o r m a l i z a t i o n , however , the C a r t e r a d m i n i s t r a t i o n raised u n d u e

e x p e c t a t i o n s on the part o f the bus iness c o m m u n i t y , the A m e r i c a n publ i c

m o r e b r o a d l y , and the C h i n e s e themse lves a s to the suitabi l i ty o f C h i n e s e

c o n d i t i o n s for internat ional bus ines s .

68. T h e t w o s ides have d i s a g r e e d as to whether Art ic le VI o f the 1979

t r a d e a g r e e m e n t actual ly c o m m i t t e d the P R C t o protec t A m e r i c a n inte l lec­

tual p r o p e r t y o r m e r e l y t o aspire t o w a r d such protec t ion . For years , P R C

c o m m e n t a t o r s d i s m i s s e d the n o t i o n that Art ic le VI created an o b l i g a t i o n to

p r o v i d e any specif ic pro tec t ion . Interest ingly, wi th the p r o m u l g a t i o n o f the

P R C ' s C o p y r i g h t L a w i n 1990, s o m e C h i n e s e c o m m e n t a t o r s a r g u e d that

N o t e s t o P a g e s 66-69 / 153

in fact A r t i c l e VI const i tu tes a bi lateral c o p y r i g h t a g r e e m e n t for p u r p o s e s

o f that law, thereby enabl ing cit izens o f o n e nat ion to secure r i g h t s in

the other , r e g a r d l e s s o f w h e r e w o r k s are first pub l i shed . See " C o p y r i g h t

L a w Is P u t in to Effect ," China Daily, J u n e 1 , 1991, 1; K a y , " P R C : R e g u l a ­

t ions ." A m e r i c a n n e g o t i a t i n g s t ra tegy r e g a r d i n g intel lectual p r o p e r t y r igh t s

in C h i n a is d i s c u s s e d further b o t h in this chapter and in chapter 6.

69. W a n g J a i f u and X i a S h u h u a , Zhuanlifa, 73 -74 . T h e Sta te Sc ience and

T e c h n o l o g y C o m m i s s i o n is dealt wi th extens ive ly in Sa ich , China's Science

Policy; S i m o n and G o l d m a n , Science and Technology.

70. Sidel , " C o p y r i g h t , T r a d e m a r k and Patent," 273.

7 1 . " M a k i n g the R i g h t M o v e s , " China Trade Reports 25 ( J u l y 1987): 5 -7 .

72. S e e , e .g . , W a n g J i a f u and X i a S h u h u a , Zhuanlifa; C h e n g K a i y u a n ,

" Y i b u j u y o u z h o n g g u o tese." A l s o author's in terv iews , B e i j i n g , 1986.

73 . K a y , "Patent L a w , " 357. D u a n Rui l in , Zhuanlifa, 48-50.

74. D u a n Rui l in , Zhuanlifa, 48-50. T h e g o v e r n m e n t perce ived this as

a l so h a v i n g the anci l lary benefit of enabl ing i t to reduce its direct g r a n t s to

m a n y research centers . Saich , China's Science Policy, 39-42.

75. Z h a o Z e l u , " Z h u a n l i q u a n . "

76. M i c h a e l P a r k s , " C h i n a A d o p t s C o n t r o v e r s i a l Patent L a w , " Los Ange­

les Times, M a r . 13, 1984.

7 7 . Z h a n g Y o u y u w a s a pro fes sor o f law a t B e i j i n g U n i v e r s i t y and the

first h e a d o f the A l l - C h i n a B a r A s s o c i a t i o n ( Q u a n g u o lushi x iehui ) . R e n

J i a n x i n i s pres ident o f the S u p r e m e People 's C o u r t and a m a j o r f igure in

the state and p a r t y secur i ty appara tus . P r e v i o u s l y he held p r o m i n e n t p o s i ­

t ions a t C C P I T , w i t h part icu lar respons ib i l i ty for i n d u c i n g fore igners to

par t w i t h their t echno logy .

78. H s i a T a o - t a i , " C h i n a ' s N e w Patent Law," 23.

79. X i a S h u h u a , Zhuanlifa gaiyao, 13 -14 .

80. Ib id . ; Z h u Wenqing , "Shi lun zhuanli fa de renwu," 1238-39. In their

effort to l e g i t i m a t e patent law d e v e l o p m e n t s , C h i n e s e officials n o w s u g g e s t

that late P r e m i e r Z h o u Enla i w a s interested in its e s tab l i shment . See W a n g

Z h e n g f a , " C h i n e s e Intel lectual P r o p e r t y S y s t e m , " 22-23.

81. W a n g J i a f u and X i a S h u h u a , Zhuanlifa.

82. Guangming ribao and Jingji ribao ( E c o n o m i c s D a i l y ) q u o t e d in H s i a

T a o - t a i , " C h i n a ' s N e w Patent L a w , " 25.

83. W a n g Y u j i e , " Z h o n g g u o tese de shehuizhuyi zhuanl i fa ," 20.

84. T h e s e c o n c e r n s are a d d r e s s e d in Wang J i a f u , Shilun zhuanlifa, 2 7 - 3 2 .

85. A u t h o r ' s in terv iews , B e i j i n g , J u n e 1986 and J u n e - A u g . 1987, and

L o s A n g e l e s , F e b . 1987. C o n c e r n s a b o u t fore ign exp lo i ta t ion he lped s p u r

the p a s s a g e in 1987 of a law on t e c h n o l o g y contracts that s o u g h t to b a r

res tr ic t ive c lauses a n d called for the central rev iew of s izable a g r e e m e n t s .

86. Ibid .

154 / N o t e s t o P a g e s 69-74

87. Ib id .

88. W a n g J i a f u , "Shi lun zhuanl i fa ," 27-32; see a l so F a n g , " B o c a i ta g u o

zhi q i a n g , " 10. A u t h o r ' s in terv iews , c o n d u c t e d in B e i j i n g , J u n e 1986 and

J u n e - A u g . 1987, a n d i n L o s A n g e l e s , F e b . 1987.

89. H s i a T a o - t a i , "China ' s N e w Patent Law," 23.

90. Ib id . D i s t r a c t e d by o n g o i n g s k i r m i s h i n g be tween p r o p o n e n t s and

o p p o n e n t s o f the p r o p o s e d leg is lat ion, the draf t ing c o m m i t t e e finally

secret ly left B e i j i n g in order to conc lude its w o r k w i t h o u t i n t e r r u p t i o n .

With the p r o m u l g a t i o n o f this law, C h i n a j o i n e d the W I P O , w h i c h

a d m i n i s t e r s the Paris U n i o n and the B e r n e C o n v e n t i o n . C h w a n g a n d

T h u r s t o n , " T e c h n o l o g y T a k e s C o m m a n d , " 145.

91. S e e , e .g . , C h e n g K a i y u a n , " Y i b u j u y o u z h o n g g u o tese"; H a e u s s e r ,

"Industr ia l Proper ty ," 8.

92. K a y , "Patent L a w , " 361. A "utility m o d e l " is def ined as "any n e w

technical s o l u t i o n re lat ing to the shape , the s tructure , or their c o m b i n a t i o n ,

of a p r o d u c t . . . [fit] for practical use ." " Z h o n g h u a r e n m i n g o n g h e g u o

zhuanl i fa shishi x ize ."

93. " Z h o n g h u a r e n m i n g o n g h e g u o zhuanl i fa shishi x ize ," R u l e 10.

94. S e e Walder, Communist Neo-Traditionalism, p a s s i m .

95. P R C officials, inc luding H u a n g K u n y i , the f o u n d i n g d irec tor o f

the Patent Off ice , have tacitly a d m i t t e d as m u c h . See , e .g . , H u a n g K u n y i ,

" G u a n y u z h o n g h u a r e n m i n g o n g h e g u o zhuanli fa ," 176 -82 . Patent s tat is t ics ,

w h i c h are t rea ted later in this chapter, p r o v i d e c o n f i r m a t i o n of this.

96. " Z h o n g h u a r e n m i n g o n g h e g u o zhuanli fa shishi x ize ," R u l e s 7 0 - 7 5 .

S e e a l so H u a n g K u n y i , " G u a n y u z h o n g h u a r e n m i n g o n g h e g u o zhuanl i fa ,"

180-81 . T h e Invent ions R e g u l a t i o n s l ive on , hav ing been rev i sed by the

S t a t e C o u n c i l i n m i d 1993. S e e " G u o w u y u a n j u e d i n g x i u g a i s a n g e j i a n g l i

t iaol i" ( T h e Sta te C o u n c i l Rev i se s T h r e e Sets o f R e g u l a t i o n s C o n c e r n i n g

R e w a r d s ) , " Renmin ribao (haiwaiban) (People's D a i l y [ O v e r s e a s E d i t i o n ] ) ,

J u l y 15, 1993, I-

97. " Z h o n g h u a r e n m i n g o n g h e g u o zhuanli fa shishi x ize ," A r t s . 5 1 - 5 2 .

98. A l f o r d , "When I s C h i n a P a r a g u a y ? " 124-27. A n o t h e r e x a m p l e o f

this b i furcated t rea tment , a l t h o u g h perhaps s o m e w h a t less favorable to f o r ­

e i g n e r s , m a y be f o u n d in the d is t inct ive rules g o v e r n i n g d o m e s t i c and f o r ­

e i g n t e c h n o l o g y transfers .

99. S e e , e . g . , L e v i n e t al . , " A p p r o p r i a t i n g the R e t u r n s f r o m Industr ia l

R & D . "

100. A u t h o r ' s in t erv i ews , B e i j i n g , Sept . 1993.

101. " Z h o n g h u a r e n m i n g o n g h e g u o zhuanl i fa ," A r t . 63.

102. See , e . g . , the "Zhuanl i guanl i j i g u a n chuli zhuanl i j i u f e n b a n f a "

p r o m u l g a t e d by the Patent Off ice in 1989, and the " Z u i g a o r e n m i n fayuan

g u a n y u ka izhan zhuanl i s h e n p a n g o n g z u o d e j i g e went i d e tongzhi ," " Z u i -

N o t e s t o P a g e s 7 5 - 7 7 / 155

g a o r e n m i n fayuan g u a n y u shenli zhuanl i s h e n q i n g q u a n j iu fen anj ian r u o -

g a n w e n t i d e tongzhi ," and " Z u i g a o r e n m i n fayuan g u a n y u shenli zhuanl i

j i u f e n anj ian r u o g a n went i d e j i ehu i" p r o m u l g a t e d b y the S u p r e m e People ' s

C o u r t in 1985, 1987, and 1993 respect ively.

103. " Z h o n g h u a r e n m i n g o n g h e g u o shangb iao fa ," A r t . 1 .

104. S e e A l f o r d , "When Is C h i n a P a r a g u a y ? "

105. " Z h o n g h u a r e n m i n g o n g h e g u o s h a n g b i a o f a , " A r t . 6 .

106. I b i d . , A r t . 31.

107. " Z h o n g h u a r e n m i n g o n g h e g u o s h a n g b i a o f a xize ," A r t . 4 . T h e d e ­

c i s ion t o r e g u l a t e the m a n u f a c t u r e o f pharmaceut i ca l s t h r o u g h t r a d e m a r k

(and s u b s e q u e n t addi t iona l spec ia l ized rules) s t o o d in contrast to the dec i ­

s ion m a d e in the 1984 Patent L a w not to ex tend patent p r o t e c t i o n to such

i t e m s . T h e idea that i t e m s such as pharmaceut i ca l s are t o o i m p o r t a n t to

m e r i t patent p r o t e c t i o n w a s hard ly u n i q u e t o C h i n a . See U . S . Off ice o f

T e c h n o l o g y A s s e s s m e n t , Intellectual Property Rights, 229-30. U n h a p p y w i t h

the e x c l u s i o n o f p h a r m a c e u t i c a l s f r o m patent c o v e r a g e i n the P R C , A m e r i ­

can f i r m s p e r s u a d e d W a s h i n g t o n to m a k e this a h i g h pr ior i ty in bi lateral

t r a d e n e g o t i a t i o n s . In its 1992 M e m o r a n d u m of U n d e r s t a n d i n g on Intel lec­

tual P r o p e r t y w i t h the U n i t e d States , the P R C c o m m i t t e d itself t o end ing

this e x c l u s i o n — w h i c h i t s o o n thereafter d id t h r o u g h a rev i s ion of its o r i g i ­

nal patent law. T h e t r o u b l e d n e g o t i a t i o n s l ead ing t o the M e m o r a n d u m o f

U n d e r s t a n d i n g and its impl i ca t ions for the further d e v e l o p m e n t o f inte l lec­

tual p r o p e r t y l a w in C h i n a are d i scussed in chapter 6 be low.

108. " Z h o n g h u a r e n m i n g o n g h e g u o s h a n g b i a o f a , " A r t . 8 .

109. I b i d . , A r t . 18.

n o . R e m e d i e s are p r o v i d e d for a t ib id . , A r t s . 37-40 and in A r t . 127

o f the C r i m i n a l L a w , w h i c h p r o v i d e s for u p t o three years ' i m p r i s o n m e n t

for counter fe i t ing . By P R C s t a n d a r d s , however , this i s a relat ively m o d e s t

s a n c t i o n . At present , there are m o r e than 100 separate offenses u n d e r P R C

l a w for w h i c h the death sentence m a y be i m p o s e d .

i n . T a n H o n g k a i , " N e w C o p y r i g h t L a w I s a W e l c o m e Star t ," China

Daily, O c t . 12, 1990, 4.

112. A u t h o r ' s in terv iews , B e i j i n g , A u g . 1990.

113. T h e s e inc luded the 1980 " G u a n y u shuji gaofe i de z a n x i n g g u i d i n g , "

the 1982 " L u y i n , l u x i a n g zhipin guan l i z a n x i n g g u i d i n g , " the 1984 " S h u j i

g a o f e i s h i x i n g g u i d i n g , " the 1985 " M e i x u c h u b a n w u gaofe i s h i x i n g banfa ,"

and the 1986 " G u a n y u z h e n g d u n luyin, l u x i a n g zhipin sh ichang , zhizhi

w e i z h a n g fanlu x i a o s h o u h u o d o n g d e tongzhi ," "Luyin , l u x i a n g c h u b a n w u

c h u b a n b a o h u z a n x i n g t iaol i" and " L u y i n , l u x i a n g c h u b a n g o n g z u o z a n x i n g

t iaol i ." T h e s e are a d d r e s s e d in Z h e n g and Pendleton, Copyright Law in China,

20-35, w h i c h a l so d i scusses w h a t i t m e a n s to be a salaried author (54-60).

114. T h i s i s par t i cu lar ly evident in the 1986 " G u a n y u z h e n g d u n luy in ,

156 / Notes to Pages 7 7 - 7 9

l u x i a n g zh ip in sh ichang , zhizhi w e i z h a n g fanlu x i a o s h o u h u o d o n g d e t o n g -

zhi," i s sued j o i n t l y b y the S A I C , M i n i s t r y o f C o m m e r c e , and M i n i s t r y o f

R a d i o , F i l m , and Telev is ion .

115. " Z h o n g h u a r e n m i n g o n g h e g u o m i n f a tongze ." F o r an ins ightful

c r i t ique o f the G e n e r a l Pr inc ip les , see J o n e s , " S o m e Q u e s t i o n s . "

116. O n the p r o t e c t i o n o f c o p y r i g h t p r o v i d e d b y the Genera l Pr inc ip les ,

see, e . g . , " C o p y r i g h t Protec ted E v e n Without a Law," China Daily, M a r . 7,

1988, 1 ; Z h e n g C h e n g s i , "Jianli q i a n m i a n b a n q u a n b a o h u zhidu y i tan" (A

D i s c u s s i o n o f the E s t a b l i s h m e n t o f a C o m p r e h e n s i v e S y s t e m o f C o p y r i g h t

P r o t e c t i o n ) , Guangming ribao, N o v . 12, 1986, 3; G u o S h o u k a n g , " C o m m o n

R u l e s o f C i v i l L a w . " Ideas o f p r o p e r t y in the Genera l Pr inc ip les are treated

i n E d w a r d E p s t e i n , "Theoret ica l S y s t e m o f P r o p e r t y R i g h t s , " 177.

117 . X i e X i a n g and G u o J i a k u a n , " S o u n d s o f H i s tory ' s F o o t s t e p s , " 4 .

118. " Z h u z u o q u a n f a . " T h e ques t ion o f whether to call the law o n e

on author ' s r igh t s (zhuzuoquan) or on c o p y r i g h t (banquan) w a s a c o n t e n ­

t i ou s o n e , w i t h the f o r m e r v i e w preva i l ing because o f the draf ters ' des ire

to e m p h a s i z e their concern w i t h p r o t e c t i n g a u t h o r s . See S h e n R e n ' g a n ,

" ' C o p y r i g h t ' a n d 'Author's R i g h t , ' " 55. N o t w i t h s t a n d i n g their C h i n e s e

l a n g u a g e choice , P R C g o v e r n m e n t a l s o u r c e s cont inue i n E n g l i s h t o s p e a k

o f c o p y r i g h t .

119. Q u o t e d in " C o p y r i g h t as Industr ia l Property ," China News Analy­

sis, n o . 1445 ( O c t . 15, 1991): 2 - 9 . O n e i m p o r t a n t m o d e l for P R C draf ters ,

a m o n g m a n y , w a s that o f T a i w a n . S e e Wang G u a n g , "Ta iwan y u da lu ," 68.

120. A u t h o r ' s in terv iews , B e i j i n g , J u l y 1990.

121. S c h l o s s , " C h i n a ' s L o n g - A w a i t e d C o p y r i g h t L a w , " 24, 26 -27 . S e e

a l so H u a n g Z h u h a i , " G u a n y u w o g u o z h u z u o q u a n lifa."

122. L e g a l p e r s o n s (faren) are def ined in the Genera l Pr inc ip les to inc lude

s t a t e - o w n e d enterpr i ses , col lect ive enterprises , S i n o - f o r e i g n j o i n t v e n t u r e s ,

o r g a n s o f g o v e r n m e n t and other inst i tut ions , and assoc ia t ions f o r m e d b e ­

tween the f o r e g o i n g .

123. Z h e n g C h e n g s i and Michae l Pendleton have a r g u e d that the " C h i ­

nese v e r s i o n [ o f the law] clearly on ly refers to c o p y i n g by d e p a r t m e n t s w i t h

j u d i c i a l or quas i - jud ic ia l p o w e r and only w h e n invo lved in p r o c e d u r e s d e a l ­

ing w i t h their j u d i c i a l or quas i - judic ia l funct ions" ( Z h e n g and Pendle ton ,

" R e s p o n s e , " 259). T h e re levant p o r t i o n o f Art ic le 22:7 o f the l a w p r o v i d e s

no s u p p o r t for their assert ion . It refers to guojia jiguan, w h i c h Z h e n g and

Pend le ton trans late as "state o r g a n s , " and wei zhixing gongwu, w h i c h they

trans late as "for the p u r p o s e o f p e r f o r m i n g its official dut ies ." L i u G u s h u ,

the f o u n d i n g d irec tor o f the C h i n a Patent A g e n c y ( H . K . ) L t d . , c o n t e n d s

that "state o r g a n s " m e a n s "legis lat ive b o d i e s , the a d m i n i s t r a t i v e o r g a n s ,

a n d the j u d i c i a l o r g a n s , etc." and that "official" bus ines s i s that wi th in the

"funct ion o f the s tate" (Liu G u s h u , " Q u e s t i o n s o f W o r l d - w i d e Interest ," 2 1 -

N o t e s t o P a g e s 79-80 / 157

23). A l t h o u g h c loser to the m a r k than Z h e n g and Pendleton, L i u ' s w o r d s

e x e m p l i f y par t o f the p r o b l e m descr ibed a b o v e o f subs t i tu t ing p e r s o n a l

a s surances for clear s t a n d a r d s and ready access to neutral d i s p u t e r e s o l u ­

t ion w h i c h m i g h t p r o v i d e predictabi l i ty . At no po int do the law, the law's

i m p l e m e n t i n g r e g u l a t i o n s , or any other official mater ia ls pub l i shed in c o n ­

j u n c t i o n w i t h the law m e a n i n g f u l l y l imit the b r o a d s w e e p o f its p r o v i s i o n s

on fair use .

124. L i u G u s h u , " Q u e s t i o n s o f W o r l d - w i d e Interest"; author ' s inter­

v i e w s , B e i j i n g , A u g . 1990. In recent years , there have been e x c e p t i o n s to

this u n i f o r m schedule .

125. " Z h o n g h u a r e n m i n g o n g h e g u o z h u z u o q u a n fa," A r t 4 .

126. A u t h o r ' s in terv iews , B e i j i n g , A u g . 1990. Ef for ts w e r e m a d e by

m o r e i d e o l o g i c a l l y o r t h o d o x officials t o delay p r o m u l g a t i n g the C o p y r i g h t

L a w p e n d i n g c o m p l e t i o n o f the Publ ica t ions L a w .

127. T a n H o n g k a i , " N e w C o p y r i g h t L a w is a W e l c o m e Star t ," China

Daily, O c t . 12, 1990, 4 . T h e F o u r C a r d i n a l Pr inc ip les are a c o m m i t m e n t

to the soc ia l i s t r o a d , the l eadersh ip o f the C h i n e s e C o m m u n i s t party ,

M a r x i s m - L e n i n i s m M a o Z e d o n g T h o u g h t , and the people ' s d e m o c r a t i c

d i c t a t o r s h i p . T h e impl i ca t ions o f the C o p y r i g h t L a w for C h i n e s e in te l l ec tu­

als are t h o u g h t f u l l y e x p l o r e d in D e b o r a h K a u f m a n , "Intellectual Proper ty ."

128. C a r y H u a n g , " C P C R e s u m e s Prepubl i ca t ion C e n s o r s h i p , " Hong

Kong Standard, S e p t . 20, 1991, A-8 . T h e Sta te C o p y r i g h t A d m i n i s t r a t i o n

( S C A ) w a s f o r m e d in the m i d 1980's to replace the State Pub l i ca t ions B u r e a u

(which s u b s e q u e n t l y b e c a m e the State A d m i n i s t r a t i o n for Press and P u b l i c a ­

t i o n s — S A P P ) and has s o u g h t s ince to a s s u m e respons ib i l i t i e s for c o p y r i g h t -

re lated i ssues f r o m ind iv idua l min i s tr ies (such as the M i n i s t r y o f C u l t u r e ) .

T h e S A P P ' s i d e o l o g i c a l o r t h o d o x y i s s u g g e s t e d by the fact that its initial

h e a d , D u D a o z h e n g , w a s a l o n g t i m e assoc iate o f D e n g L i q u n , a no ted p a r t y

hard- l iner . T h e state w a s able to mainta in t ight contro l over pub l i ca t ion

t h r o u g h the m i d 1980's in par t because i t o v e r s a w the supply of b o t h capital

and p a p e r to p u b l i s h i n g h o u s e s and w a s in charge o f Xinhua ( N e w C h i n a

N e w s A g e n c y ) , w h i c h w a s then the so le lawful d i s t r ibutor o f b o o k s for the

w h o l e country . By the late 1980's, this s y s t e m b e g a n to b r e a k d o w n , w i t h

the e m e r g e n c e o f pr iva te publ i shers and b o o k s e l l e r s . S t r e n u o u s efforts w e r e

m a d e in 1989, after the s u p p r e s s i o n o f the B e i j i n g S p r i n g m o v e m e n t , and are

n o w u n d e r w a y a g a i n (as i s d i s c u s s e d further later in this chapter) to reassert

a h i g h level o f s tate contro l . For an i l luminat ing o v e r v i e w of the C h i n e s e

p u b l i s h i n g w o r l d t h r o u g h the early 1990's, see C h e n Y i , "Publ i sh ing in

C h i n a i n the P o s t - M a o E r a . "

129. " Z h o n g h u a r e n m i n g o n g h e g u o z h u z u o q u a n fa," A r t . 27.

130. A u t h o r ' s in terv iews , B e i j i n g , A u g . 1990.

131. Z h e n g C h e n g s i and Michae l Pendle ton (Copyright Law in China,

158 / N o t e s to P a g e s 8 0 - 8 1

112-14) c o n t e n d that the use in Art ic le 2 of the t e r m fabiao (which can be

t rans la ted as "to pub l i sh" or "to d ivulge") in effect m e a n s that C h i n e s e law

p r o v i d e s f o r e i g n e r s w i t h w i d e r pro tec t ion than the c o p y r i g h t laws o f the

U n i t e d States and m o s t other nat ions . T h e i r l og i c i s that this w o r d i n g o p e n s

the p o s s i b i l i t y that fore igners m i g h t seek pro tec t ion in C h i n a by v i r t u e o f

m e r e l y e x h i b i t i n g a w o r k there, rather than m a k i n g avai lable a sufficient

n u m b e r o f cop ies t o sat isfy publ ic d e m a n d . Ne i ther the law's i m p l e m e n t ­

ing r e g u l a t i o n s , as they a c k n o w l e d g e , n o r pract ice bear o u t this s o m e w h a t

s t r a i n e d in terpreta t ion .

132. T o b e sure , the w o r k o f the S C A ' s few d o z e n p e r m a n e n t e m p l o y e e s

i s m o d e s t l y s u p p l e m e n t e d by the efforts o f thinly staffed provinc ia l c o p y ­

r i g h t off ices. In 1993, the S h a n g h a i c o p y r i g h t office, for e x a m p l e , h a d a staff

o f four , w h o r e p o r t e d not t o the S C A but t o the S h a n g h a i g o v e r n m e n t —

a l t h o u g h o n cases i n v o l v i n g in fr ingement b o t h within and b e y o n d S h a n g ­

hai , the nat ional and prov inc ia l offices did at t imes w o r k together . A u t h o r ' s

i n t e r v i e w s , S h a n g h a i , O c t . 1993.

133. Ge la t t , " F o r e i g n E x c h a n g e Q u a n d a r y , " 28.

134. Ar t i c l e 46 o f the l a w ves ts b o t h the S C A and the cour t s w i t h the a u ­

thor i ty t o o r d e r the p a y m e n t o f " c o m p e n s a t i o n for d a m a g e s " resul t ing f r o m

i n f r i n g e m e n t , b u t reserves to the f o r m e r the author i ty to i m p o s e civil fines

for such activity. In any event, a c c o r d i n g to one C h i n e s e exper t , " D i s p u t e s

over c o p y r i g h t i n f r i n g e m e n t in general ar ise m o s t l y a m o n g inte l lectuals ,

w h o are o f ten u n w i l l i n g to go to court , but prefer to have a m e d i a t o r w h o

can u p h o l d j u s t i c e . . . the a d m i n i s t r a t i v e authori t ies for c o p y r i g h t affairs

[the S C A and prov inc ia l c o p y r i g h t d e p a r t m e n t s ] have b e c o m e the pr inc ipal

m e d i a t o r s i n c o p y r i g h t in fr ingement d i sputes ." L i u S o n g , " T h e R o l e o f the

C h i n e s e G o v e r n m e n t in the P r o t e c t i o n o f C o p y r i g h t , " 65.

135. "J isuanj i ruanj ian b a o h u t iao l i" ;J isuanji ruanj ian z h u z u o q u a n d e n g j i

b a n f a " .

136. " Z h o n g h u a r e n m i n g o n g h e g u o j i s h u , " Art . 4 .

137. T h e J a n u a r y 1992 U . S . - P R C M e m o r a n d u m o f U n d e r s t a n d i n g o n

the P r o t e c t i o n o f Intel lectual P r o p e r t y p u r p o r t s to reso lve a n u m b e r o f

these i s sues . It is d i s c u s s e d further in chapter 6. T h e i ssue of re troac t iv i ty

has p r e s e n t e d difficult q u e s t i o n s for the drafters o f C h i n a ' s C o p y r i g h t L a w .

A r t i c l e 55 o f the C o p y r i g h t L a w indicates that "the r ights e n j o y e d by c o p y ­

r ight o w n e r s , p u b l i s h e r s , p e r f o r m e r s , p r o d u c e r s o f s o u n d r e c o r d i n g s and

v i d e o r e c o r d i n g s , r a d i o s ta t ions , and te levis ion s tat ions as p r o v i d e d for in

this L a w , o f w h i c h the t e r m o f pro tec t ion specif ied in this L a w has no t yet

e x p i r e d on the date o f entry into force o f this L a w , shall be p r o t e c t e d in

a c c o r d a n c e w i t h this L a w . " Taken literally, this w o u l d s e e m to s u g g e s t that

C h i n a w a s e n d e a v o r i n g retroact ive ly t o accord c o p y r i g h t p r o t e c t i o n t o any

w o r k p r o d u c e d by any author w h o died within 50 years o f the effective

N o t e s to P a g e s 81-82 / 159

date o f the C o p y r i g h t L a w . A l t h o u g h the B e r n e C o n v e n t i o n r e c o g n i z e s ,

at A r t i c l e i 8 b l s , that a nat ion j o i n i n g the C o n v e n t i o n m a y e n j o y a m e a s u r e

o f r e t r o a c t i v e p r o t e c t i o n for w o r k s c o p y r i g h t e d pr ior to its j o i n i n g , that

w o u l d hard ly s e e m t o j u s t i f y the reach o f Art ic le 55. T h a t the a b o v e r e a d i n g

of A r t i c l e 55 m i r r o r s the intent ion of a t least one of the law's drafters s e e m s

at tes ted to by the s o m e w h a t c o n f u s i n g treatment o f re troact iv i ty in Z h e n g

and Pend le ton , Copyright Law in China, 207-9 . It is in teres t ing that in the

1992 M e m o r a n d u m o f U n d e r s t a n d i n g , the C h i n e s e g o v e r n m e n t d i d not

ful ly retreat f r o m its bas ic pos i t i on concern ing the use o f fore ign c o p y ­

r i g h t e d mater ia l s avai lable in C h i n a be fore the effective date o f C h i n e s e

p r o t e c t i o n . Ar t i c l e 3:7 o f the M e m o r a n d u m prov ides that natura l or legal

p e r s o n s w h o u s e d such i t e m s pr ior t o the e s tab l i shment o f U . S . - P R C c o p y ­

r i g h t re lat ions (which t o o k effect, accord ing to the M e m o r a n d u m , no earlier

than M a r c h 17, 1992) "may cont inue to . . . u se . . . that copy of the w o r k

w i t h o u t l iabil ity, p r o v i d e d that such copy i s neither r e p r o d u c e d n o r u s e d

in any m a n n e r that u n r e a s o n a b l y prejudices the l eg i t imate interests o f the

c o p y r i g h t o w n e r o f that w o r k . " S o m e fore ign o b s e r v e r s fear that the P R C

m a y i n v o k e this article a s jus t i f i ca t ion for c o n t i n u e d r e p r o d u c t i o n a n d d i s ­

t r i b u t i o n o f fore ign c o p y r i g h t e d mater ia l s , albeit in less than c o m m e r c i a l

q u a n t i t i e s . S e e S i m o n e , " C o p y r i g h t - M O U , " 14.

138. "J i suanj i r u a n j i a n b a o h u tiaoli ," A r t s . 23-24. F o r e i g n c o n c e r n s

a b o u t this p r o c e d u r e are vo iced in " S o f t w a r e F i r m s S l o w to E x p o r t to

C h i n a , " Chicago Tribune, D e c . 30, 1991, 7 - C . It s h o u l d be n o t e d that b e c a u s e

neither the B e r n e C o n v e n t i o n nor the U n i v e r s a l C o p y r i g h t C o n v e n t i o n r e ­

q u i r e s the reg i s t ra t ion o f s o f t w a r e , the P R C , u p o n acced ing t o these t w o

treat ies , has p r o v i d e d that fore ign c o m p u t e r p r o g r a m s need not b e r e g i s ­

tered . As w i t h so m u c h else in this area, there i s m o r e here than m e e t s

the eye. F o r e i g n e r s m a y be free no t to register, b u t i f they so c h o o s e , they

wil l lack w h a t Art i c l e 24 of the s o f t w a r e regu la t ions descr ibes as "a p r e ­

requ i s i t e t o ins t i tu t ing . . . an a d m i n i s t r a t i v e act ion or a lawsui t c o n c e r n i n g

any d i s p u t e r e g a r d i n g the c o p y r i g h t in such so f tware ." C h i n e s e nat iona l s ,

m e a n w h i l e , c o n t i n u e to lack even this H o b s o n ' s choice .

139. "J i suanj i ruanj ian b a o h u tiaoli ," A r t . 32.

140. R e n , " C h i n a ' s J u d i c i a l S y s t e m , " 17. In fairness , i t s h o u l d be n o t e d

that C h i n e s e officials such as R e n are not the on ly ones to m a k e o v e r ­

b l o w n c l a i m s a b o u t the efficacy o f the P R C ' s n e w intel lectual p r o p e r t y

l a w s . Wi tnes s , e . g . , the uns t in t ing praise internat ional civil s e r v a n t s , such

a s D i r e c t o r G e n e r a l A r p a d B o g s c h o f the W I P O , have for years lav i shed

on C h i n e s e efforts in patent , t r a d e m a r k , and c o p y r i g h t . See , e . g . , "When

F r i e n d s C o m e f r o m Afar: O n e - D a y Vis i t t o H o n g K o n g b y W I P O D i r e c ­

tor G e n e r a l D r . B o g s c h and H i s Party," China Patents & Trademarks, n o . 1

(1992): 4. W h e t h e r p r o m p t e d by a naivete as to C h i n e s e c i r c u m s t a n c e s , a

160 / Notes to Pages 82-84

s incere be l i e f that easy praise w o u l d bes t g u i d e the P R C t o grea ter he igh t s ,

a b u r e a u c r a t i c des ire to inc lude as a W I P O m e m b e r the w o r l d ' s m o s t p o p u ­

l o u s nat ion (whether or no t i t w a s c o m p l y i n g with internat ional s t a n d a r d s ) ,

or suscept ib i l i ty to the at tent ion that a c c o m p a n i e s b e i n g an internat ional

b u r e a u c r a t w i t h s o m e t h i n g t o offer C h i n a , B o g s c h and c o m p a n y have been

all t o o h a s t y t o e q u a t e the P R C ' s a d o p t i o n o f intel lectual p r o p e r t y l a w s

w i t h their i m p l e m e n t a t i o n . S e e " W I P O D i r e c t o r Genera l B o s c h R e c e i v e d

b y C C P G e n e r a l Secre tary J i a n g Z e m i n i n B e i j i n g and G r a n t e d the T i t l e

of H o n o r a r y P r o f e s s o r by Peking Univers i ty ," China Patents & Trademarks,

n o . 1 (1992): 118.

141. See , e . g . , L i u C h u n t i a n , " T h e C u r r e n t S i tuat ion ."

142. A l t h o u g h p r o f e s s i o n a l i s m and independence are hard ly neutral or

se l f -def in ing t e r m s , we s h o u l d not a s s u m e that these are w h o l l y f o r e i g n

c o n s t r u c t s thrus t on the C h i n e s e and therefore s o m e h o w i n a p p r o p r i a t e for

c o n s i d e r a t i o n . As n o t e d in chapter 2 , the n o t i o n of a civil service c h o s e n

by cri teria a s p i r i n g to objec t iv i ty has its r o o t s in the T a n g dynasty . A n d as

J e r o m e C o h e n has s h o w n , d u r i n g the f i r s t few years o f the P R C , the C h i ­

nese C o m m u n i s t p a r t y i tse l f g r a p p l e d w i t h p r o v i d i n g its j u d g e s w i t h s o m e

m e a s u r e o f i n d e p e n d e n c e — e v e n i f on ly f r o m cadres seek ing t o a b u s e l ega l

p r o c e s s e s t o s erve pr ivate ends . See C o h e n , " C h i n e s e C o m m u n i s t P a r t y a n d

'Judic ia l I n d e p e n d e n c e , ' " 967.

In fa irness , i t s h o u l d be n o t e d that C h i n a i s n o w m a k i n g e x t r a o r d i n a r y

efforts to p r o v i d e o n - t h e - j o b tra in ing for its j u d g e s , fewer than 10 percent

o f w h o m as recent ly as 1985 w e r e recipients o f a f o r m a l legal e d u c a t i o n .

143. J i a n g Y i n g , " L o o k i n g B a c k and L o o k i n g Ahead"; G a o , " O n the

R e v i s i o n o f the C u r r e n t Patent L a w " ; Y u a n Z h o u , " F o r e i g n Patent F i l ings

L a g B e h i n d D o m e s t i c Increase ." China Daily Business Weekly, A p r . 12, 1992,

1; " A i m i n g to be Wor ld 'Patent P o w e r h o u s e , ' " China Daily Business Weekly,

O c t . 28, 1991, 1.

144. D o n g B a o l i n , " D e c a d e o f M i g h t y A d v a n c e , " 60.

145. Z h e n g S o n g y o u , " S u m U p the Past ," 6 - 7 .

146. T h e s e f igures are ex trac ted f r o m the statist ics c o m p i l e d by the

P l a n n i n g D i v i s i o n o f the Genera l M a n a g e m e n t D e p a r t m e n t o f the C h i n e s e

Patent Off ice a n d p u b l i s h e d quarter ly by China Patents & Trademarks. My

at tent ion w a s f i r s t d r a w n t o this i m p o r t a n t b o d y o f data b y Wang L iwe i ' s

useful w o r k in the area of patent law, as exempl i f i ed by his article ent i t led

" C h i n a ' s Patent L a w , " 254.

147. " D a t a & Stat i s t ics ," China Patents & Trademarks, n o . 2 (1994): 85-86.

148. " D a t a & Stat i s t ics ," China Patents & Trademarks, n o . 1 (1993): 109.

D o m e s t i c appl i ca t ions w e r e up in 1993, b u t enterprises were still re lat ively

inac t ive .

149. Indeed , P R C stat ist ics concern ing fore ign inves tment in general

N o t e s t o P a g e s 84-86 / 161

w a r r a n t careful scrut iny, as they are subject to m a n i p u l a t i o n to bo l s ter p a r ­

t icular a r g u m e n t s . For e x a m p l e , inves tment o n the C h i n e s e m a i n l a n d b y

P R C - o w n e d c o m p a n i e s chartered i n H o n g K o n g i s rout ine ly treated a s

f o r e i g n inves tment , in part to g ive the i m p r e s s i o n of a h igher level o f c o n ­

f idence in C h i n a than statist ics on inves tment by u n a m b i g u o u s l y f o r e i g n

capital w o u l d w a r r a n t and in part so that such entities can e n j o y any tax

h o l i d a y s and other a d v a n t a g e s avai lable to fore ign capital .

150. S e e G o o n a t i l a k e , Aborted Discovery.

151. S e e Z h a n g L i n , "Scient is ts C o m p l e t e 11,000 Pro jec t s ," China Daily,

S e p t . 18, 1991, 1 . T h e s e efforts are descr ibed in "Science and T e c h n o l o g y

as the P r i m a r y P r o d u c t i v e Force ," China News Analysis, n o . 1446 ( N o v . 1,

1991).

152. F o r recent o b s e r v a t i o n s by the N o b e l e c o n o m i c s laureate M i l t o n

F r i e d m a n as to the c o n t i n u i n g m a j o r role o f s t a t e - o w n e d enterprises in the

C h i n e s e e c o n o m y , see A g e n c e France Presse , " F r i e d m a n S a y s B e i j i n g Sti l l

C o n t r o l s E c o n o m y , " International Herald Tribune, O c t . 30-31, 1993, 17.

153. " D i s p r o p o r t i o n a t e l y L o w Percentage o f Invent ion Patents in

D o m e s t i c Patents ," Renmin ribao (haiwaiban), A u g . 5, 1989, 1, q u o t e d in

W a n g L i w e i , " C h i n a ' s Patent L a w . " T h e statist ics are f r o m " G o n g z u o

yanj iu : G u o y o u caichan d e l iushi" ( A Practical S t u d y : T h e E r o s i o n o f

S ta t e P r o p e r t y ) , Zhongguo zhuanli bao ( C h i n a Patent N e w s p a p e r ) , A u g . 24,

1992, 2.

T h e l o w p r o d u c t i v i t y o f C h i n a ' s s t a t e - o w n e d enterprises relat ive t o co l ­

lect ive or pr ivate ly o w n e d entities i s descr ibed in C o n n e r , " T o G e t R i c h Is

P r e c a r i o u s , " 1 . In c o m p a r i n g state and other enterprises , one m u s t a l w a y s ,

o f c o u r s e , be m i n d f u l o f i m p o r t a n t differences in size, soc ia l we l fare r e ­

spons ib i l i t i e s , n a t u r e o f o u t p u t , access to raw mater ia l s , and contro l over

p r i c i n g .

154. See " A i m i n g to be a World 'Patent P o w e r h o u s e , ' " China Daily Busi­

ness Weekly, O c t . 28, 1991, 1.

155. G a o , " O n the R e v i s i o n o f the C u r r e n t Patent L a w " ; A u t h o r ' s inter­

v i e w s , B e i j i n g , A u g . 1993.

156. A u t h o r ' s in t erv i ews , Wash ing ton , D . C . , M a y 1990, B e i j i n g , A u g .

1990 and A u g . - O c t . 1993. See a l so C r o t h a l l , " 'Pirated' P r o d u c t s , " 3; "Of f i ­

cial o n F o r e i g n T r a d e m a r k Protec t ion ," Xinhua ( N e w C h i n a N e w s A g e n c y ) ,

J a n . 23, 1992, in Foreign Broadcast Information Service C H I - 9 2 - 1 6 ( J a n . 24,

1992), 22: " I B M v . S ix Shenzhen C o m p a n i e s " ; " M & M s v . W & W s . " In fa ir­

ness , i t s h o u l d b e no ted that f o r e i g n e r s — a n d especia l ly H o n g K o n g and

T a i w a n C h i n e s e — h a v e been respons ib le for ins t iga t ing s o m e in fr ing ing a c ­

tivity, par t i cu lar ly in s o u t h e r n C h i n a . See , e .g . , D o e r n e r , "Pirates o f the

H i g h C s . " C h i n e s e officials have c o m p l a i n e d pr ivate ly t o this author a b o u t

H o n g K o n g C h i n e s e u s i n g the P R C a s a base o f opera t ions t o p r o d u c e " for -

162 / N o t e s t o P a g e s 86-87

e i g n " i t e m s that m i g h t then be so ld to naive C h i n e s e or tak ing a d v a n t a g e

o f the fact that P R C author i t i es have a p o o r e r track record than their H o n g

K o n g c o u n t e r p a r t s in de terr ing the e x p o r t o f counterfe i ted i t ems . I t wi l l be

in teres t ing t o see h o w the P R C and H o n g K o n g interact w i t h respect t o

inte l lectual p r o p e r t y issues after the f o r m e r re sumes s o v e r e i g n t y over the

latter in 1997. F o r m o r e on intel lectual p r o p e r t y issues in H o n g K o n g , see

Pend le ton , Law of Intellectual and Industrial Property.

157. J a m e s M c G r e g o r , " C h i n a A d o p t s a H a r d e r L i n e in T r a d e T a l k s , "

Wall Street Journal, D e c . 23, 1991, A 6 ; M u r p h y , " C D Pirates M a k e C h i n a a

H o m e Por t a s Sa les Soar ."

158. I have been b o t h f la t tered and d i s m a y e d to d i scover m a n y of my

art ic les (and even ta lks) r e p r o d u c e d w i t h o u t p e r m i s s i o n — i n c l u d i n g ver ­

s ions ed i ted and trans lated w i t h o u t author iza t ion and wi th v a r y i n g d e g r e e s

o f accuracy . Indeed , shor t ly b e f o r e this b o o k went to press , I h a d the u n s e t ­

t l ing e x p e r i e n c e of h a v i n g a C h i n e s e co l l eague cite (wi th praise , for tunate ly )

an art ic le o f m i n e on the need for patent law r e f o r m that I am p u r p o r t e d to

have p u b l i s h e d in 1992. E a r l y senil ity m a y be the e x p l a n a t i o n , but I h a v e no

reco l l ec t ion of ever h a v i n g wr i t t en such a piece, a l t h o u g h praise i s a l w a y s

w e l c o m e d , w a r r a n t e d or not .

159. A u t h o r ' s in terv iews , B e i j i n g , A u g . 1990, and direct o b s e r v a t i o n s ,

1986-93 . C h i n e s e univers i t ies m a y a l so be p lay ing a less p a s s i v e ro le in

p i r a t i n g i f S h e n z h e n U n i v e r s i t y is at all typical . T h a t schoo l ' s Ref lect ive

M a t e r i a l s Ins t i tute turns out t o have m a d e counterfei t M i c r o s o f t h o l o g r a m s

so we l l that "even M i c r o s o f t execut ives c o u l d not d i s t ingu i sh t h e m f r o m

o r i g i n a l s . " B l a s s , " C a s e for S h e r l o c k H o l m e s . "

160. M r . S i n g e r reacted to this i n f o r m a t i o n w i t h b e m u s e m e n t . "I a l w a y s

t h o u g h t , " he sa id , "that the C h i n e s e and J e w s h a d a great deal in c o m ­

m o n — a n d this p r o v e s it" (conversat ion wi th the author, C a m b r i d g e , M a s s . ,

F e b . 1989).

161. B a s e d on the author ' s direct o b s e r v a t i o n s , 1986-93. S e e a l so ,

W i l l i a m A l f o r d , "Perspect ive on C h i n a : P r e s s u r i n g the Pirate ," Los Angeles

Times, J a n . 12, 1992, D 5 ; S y r o n , "Year o f the M o u s e , " 5 . M i c k e y M o u s e

p a r a p h e r n a l i a in the author ' s p o s s e s s i o n include the u n a u t h o r i z e d c o m i c

b o o k series " M i L a o s h u , T a n g L a o y a " ( M i c k e y M o u s e , D o n a l d D u c k ) p u b ­

l i shed in B e i j i n g by the Popular Scientif ic Press , an array of D i s n e y att ire

( inc lud ing S c r o o g e M c D u c k and M i c k e y neckt ies ) , and a hos t o f t o y s a n d

d e c o r a t i v e o b j e c t s .

A " M i c k e y M o u s e " t r a d e m a r k w a s first reg i s tered in C h i n a by an o v e r l y

en trepreneur ia l G u a n g d o n g manufac turer . Subsequent ly , the D i s n e y C o m ­

p a n y w a s able t h r o u g h the C h i n a Patent A g e n c y ( H . K . ) L t d . t o secure r e g ­

i s t ra t ion for M i c k e y and h u n d r e d s o f o ther m a r k s . A l t h o u g h M i c k e y s e e m s

to h a v e e n j o y e d s o m e pro tec t ion in idyll ic H a n g z h o u (see "Infr ingement

Notes to Pages 87-89 / 163

o f the E x c l u s i v e R i g h t t o U s e the D e s i g n s o f the R e g i s t e r e d T r a d e m a r k s

' M i c k e y M o u s e ' a n d ' D o n a l d D u c k ' Penal ized in H a n g z h o u , " China Patents

6 Trademarks, n o . 2 [1990]: 70), n a t i o n w i d e in fr ingement w a s so r a m p a n t

t h r o u g h o u t the 1980's and into the 1990's that D i s n e y cancel led its p o p u ­

lar t e l ev i s ion p r o g r a m featur ing the be loved M o u s e i n protes t . N o w b a c k

in C h i n a , D i s n e y has recently w o n a j u d g m e n t in B e i j i n g o f m o r e than

600,000 yuan (US$70,000) aga ins t a C h i n e s e infringer.

162. H o l m , Coming Home Crazy, 1 1 5 - 1 6 .

163. W a n g Y o n g h o n g , "Deeper C r a c k d o w n U r g e d " ; W a n g Z h e n g f a ,

"Pro l i f erat ion o f F a k e and Inferior Pharmaceut i ca l s ," 40.

164. C o u n t e r f e i t i n g u n d e r t a k e n d u r i n g the early years f o l l o w i n g the

1982 T r a d e m a r k L a w ' s p r o m u l g a t i o n i s descr ibed in C h r i s t o p h e r Wren,

" C h i n a F i g h t i n g a B o o m in C o u n t e r f e i t B icyc les ," New York Times, O c t . 7,

1983, 4; " S h a n g b i a o f a zhi shishi x ieze zai S h a n g h a i de zh ix ing q i n g k u a n g "

( T h e C o n d i t i o n s for C a r r y i n g O u t the T r a d e m a r k L a w and Its I m p l e m e n t ­

ing R e g u l a t i o n s in S h a n g h a i ) , Shanghai fayuan ( S h a n g h a i L e g a l G a r d e n ) ,

S e p t . 1986, 5; " C r a c k d o w n on F a k e W i n e S t e p p e d U p , " China Daily, A p r . 3,

1987, 3 . M o r e recent i n f r i n g e m e n t is descr ibed in C r o t h a l l , " 'Pirated' P r o d ­

ucts ," and W a n g Y o n g h o n g , " D e e p e r C r a c k d o w n U r g e d . "

165. "Inspec t ions T a r g e t F a k e T r a d e M a r k s , " China Daily, M a y 2, 1987,

3 . S e e a l so " N a t i o n a l C r u s a d e A g a i n s t F a k e G o o d s Success ful ," Xinhua

( N e w C h i n a N e w s A g e n c y ) , in Foreign Broadcast Information Service C H I - 8 8 -

007 ( J a n . 12, 1988), 29.

166. A u t h o r ' s in t erv i ews , Wash ing ton , D . C . , J u n e 1994; L i u C h u n t i a n ,

" C u r r e n t S i t u a t ion ," 78.

167. C h e n Y i , "Publ i sh ing i n C h i n a i n the P o s t - M a o E r a " ; F r e e m a n t l e ,

The Steal; C r o t h a l l , " 'Pirated' P r o d u c t s . "

168. Z h e n g and Pendle ton , Copyright Law in China, v - v i .

169. " F a s h e n g zai zishi b a o h u l i n g y u de guaish i : F a n q u a n fan d a o b a n -

q u a n z h u a n j i a t o u s h a n g " ( D i s c o v e r i n g a S t r a n g e T h i n g in the A r e a o f Inte l ­

lectual P r o p e r t y P r o t e c t i o n : In fr ing ing the R i g h t s o f the L e a d i n g Spec ia l i s t

on C o p y r i g h t ) , Guangming ribao, M a r . 22, 1993, 4; Z h e n g C h e n g s i , "Wo

yu Zhishicanquan falii quanshu de b a n q u a n j i u f e n " ( M y C o p y r i g h t D i s p u t e

w i t h the Complete Book of Intellectual Property Law), Guangming ribao, M a r . 31,

1993. 5-

170. G a o , " O n the R e v i s i o n o f the C u r r e n t Patent L a w . "

1 7 1 . "Patent V i o l a t o r s Fined," China Daily, Apr . 30, 1987, 3.

172 . S e e , e . g . , the case of He Peiping v. Research Institute for Economic and

Technological Development ofWu County (Jiangsu), r e p o r t e d in Wen Y i k u i a n d

J i a n g T i a n q i a n g , " W o m e n z e n g y a n g shenli zhuanl i j iu f en anj ian" ( H o w W e

A d j u d i c a t e Patent D i s p u t e s ) , Fazhi ribao (Lega l S y s t e m D a i l y ) , D e c . 31,

1989, 3-

164 / Notes to Pages 90-91

173. R e n Wei, " B e v e r a g e ' V i t a s o y ' " ; C r o t h a l l , " ' P i r a t e d ' P r o d u c t s " ;

H o r s l e y , "Pro tec t ing Intel lectual Proper ty"; T i a n Y i n g , " T r a d e m a r k C o n ­

tro ls A r e T a k i n g Effect ." A u t h o r ' s in terv iews , H o n g K o n g , D e c . 1986,

J u n e 1987.

174. A u t h o r ' s in terv iews , H o n g K o n g , J u n e 1988, D e c . 1989. Se th F a i -

s o n and M a r l o w e H o o d , " H i - T e c h D i s p u t e Tests S c o p e o f C h i n a ' s R e ­

f o r m s , " South China Morning Post, J u n e n, 1988, 1.

175. H o w s o n , " C a o S i y u a n , " 270.

176. ' " S o l e m n S t a t e m e n t ' by B e i j i n g S t o n e E n t e r p r i s e G r o u p , " Renmin

ribao, F e b . 10, 1990, 7, in Foreign Broadcast Information Service C H - 9 0 - 0 3 1

( F e b . 12, 1990), 11. S e e a l so Y a o G u a n g , "Wan R u n n a n b a n q i 'Sh i tou ' y a o

zashui" ( W h o D i d Wan R u n n a n Want t o S m a s h b y P ick ing U p a S t o n e ) ,

Renmin ribao, A u g . 7, 1989.

177 . T i a n Y i n g , " T r a d e m a r k C o n t r o l s A r e T a k i n g Effect ," China Daily

Business Weekly, J a n . 19, 1992, 4. Lu G u a n g c a n , "Second N a t i o n a l C o n f e r ­

ence on Patent Work ."

178. In fact, there w e r e predeces sor c h a m b e r s to these n e w tr ibuna l s .

S e e , e . g . , Y u a n Z h a o , " N e w C o u r t Sett les Patent D i s p u t e : C h i n a ' s L e g a l

E a g l e s G r a p p l e w i t h Intel lectual P r o p e r t y D i s p u t e s , " China Daily Business

Weekly, S e p t . 9, 1991, 1. Whether the n e w intel lectual p r o p e r t y c h a m b e r s ,

w h i c h h a v e been es tab l i shed i n B e i j i n g , S h a n g h a i , Fuj ian , G u a n g d o n g , and

H a i n a n , wi l l have the i m p a c t s u g g e s t e d by their p r o p o n e n t s i s unclear. Well

o v e r 90 percent o f t r a d e m a r k cases are re so lved a d m i n i s t r a t i v e l y (Wang

Z h e n g f a , " A d m i n i s t r a t i v e R e s o l u t i o n , " n ) , whi le ho lders o f c o p y r i g h t s and

p a t e n t s — e s p e c i a l l y f r o m a b r o a d — h a v e been reluctant t o ut i l ize the c o u r t s

genera l ly to v indicate their r ights , a l legedly b e c a u s e o f their d o u b t s a b o u t

the c o u r t s ' abi l i ty to enforce their j u d g m e n t s . A u t h o r ' s in terv iews , B e i j i n g ,

A u g . 1993. T h e P R C g o v e r n m e n t i tself r epor t s that f r o m 1986 t h r o u g h

!993, C h i n e s e c o u r t s inc luding the a f o r e m e n t i o n e d n e w c h a m b e r s spec ia l ­

ized co l leg ia l pane l s and regu lar j u d g e s , heard a total of 3,505 civil cases

i n v o l v i n g inte l lectual proper ty . " Z h o n g g u o zh i sh icanquan b a o h u z h u a n g -

k u a n g . "

179 . W a n g Y o n g h o n g , " D e e p e r C r a c k d o w n U r g e d . " In a cynical m o ­

m e n t , o n e cannot he lp b u t w o n d e r whether or no t the publ ic i ty s u r r o u n d i n g

such e n f o r c e m e n t efforts i s in s ignif icant part generated for f o r e i g n c o n ­

s u m p t i o n . Af ter all, quas i -of f ic ia l fore ign l a n g u a g e m e d i a in C h i n a such

as the China Daily, w h i c h usual ly are qui te reticent a b o u t the i m p o s i t i o n

o f s evere cr imina l s a n c t i o n s , s e e m only t o o wi l l ing t o accord grea t p r o m i ­

nence t o e x e c u t i o n s and other ser ious p u n i s h m e n t s h a n d e d d o w n u n d e r

inte l lectual p r o p e r t y l a w s . F o r e x a m p l e , the China Daily recently carr ied a

f r o n t - p a g e s t o r y on the e x e c u t i o n o f a 33-year-o ld G u i z h o u m a n for sel l ing

fake M a o t a i , w h i c h the p a p e r t e r m e d an " u n m i s t a k a b l e w a r n i n g " to p irates

a c r o s s the nat ion .

N o t e s to P a g e s 91-94 / 165

180. " Z h o n g g u o zh i sh icanquan b a o h u z h u a n g k u a n g . "

181. W a n g Y o n g h o n g , " D e e p e r C r a c k d o w n U r g e d . "

182. D o e r n e r , "Pirates o f the H i g h C s " ; B r a u c h l i , "Fake C D ' s " ; M u r ­

phy, " C D Pirates M a k e C h i n a a H o m e Port a s Sales S o a r " ; Geof f rey

C r o t h a l l , " C o p y r i g h t L a w s P r o v e Ineffective," South China Morning Post,

S e p t . 6 , 1993, B 2 ; R e u t e r s , " C h i n a C a l l e d T o p Pirate of S o f t w a r e , " Inter­

national Herald Tribune, O c t . 21, 1993, 16. It is r u m o r e d that on his 1992

s o u t h e r n tour u n d e r t a k e n to d e m o n s t r a t e his s u p p o r t for e c o n o m i c r e f o r m ,

D e n g X i a o p i n g v is i ted the X i a n k e Laser G r o u p , C h i n a ' s m o s t n o t o r i o u s

in fr inger o f C D ' s .

183. A u t h o r ' s in terv iews , B e i j i n g , N o v . 1993. T h e C h i n e s e g o v e r n ­

m e n t has been m a k i n g efforts to publ ic ize its intel lectual p r o p e r t y l a w s .

F o r a s a m p l e o f mater ia l s avai lable for factory m a n a g e r s , see Peng H a i -

q i n g , Zhuanli wenjian shiyong zhinan. X i n h u a m a y have taken this effort to

p r o p a g a n d i z e the n e w intel lectual p r o p e r t y laws to an e x t r e m e . T a k e , for

e x a m p l e , an art ic le i t ran in early 1992 s u g g e s t i n g that d inner g u e s t s n o w

seek to "appropr ia te ly c o m p l i m e n t " their hostesses by say ing , "With this

skil l , y o u can a p p l y for patent r ights ." C h e n X i a n x i n , F u G a n g , and W u

J i n c a i , " N e w s l e t t e r [on Intel lectual P r o p e r t y ] , " Xinhua ( N e w C h i n a N e w s

A g e n c y ) , J a n . 23, 1992, in Foreign Broadcast Information Service C H I - 9 2 - 1 6

( J a n . 24, 1992), 21 . F o r a m o r e ser ious e x a m p l e of an effort to p o p u l a r i z e

the l a w b r o a d l y , see Shangbiao fa tushi.

184. R o b i n M u n r o q u o t e d i n K a t h y C h e n , " B e i j i n g T a k e s H a r d e r L i n e

on D i s s i d e n t s and the Press ," Asian Wall Street Journal, O c t . 25, 1993, 1. S e e

a l s o j e r n o w , "Amicab le D i v o r c e " ; N i c h o l a s Kris tof f , "S igna l l ing N e w H a r d

L i n e , C h i n e s e J a i l a D i s s ident ," New York Times, J u l . 12, 1993, A 9 .

185. "Pek ing Paper C h a s e : C h i n a O r d e r s Life in Ja i l for L o c a l J o u r n a l ­

ist ," Far Eastern Economic Review 156, n o . 37 (Sept . 16, 1993): 5.

186. "Satel l i te B a n to K e e p O u t ' F o r e i g n ' Influence," South China Morn­

ing Post, O c t . 16, 1993, 10.

187. Patr ick Tyler, "Who M a k e s the Rules for C h i n e s e F i l m s ? " Interna­

tional Herald Tribune, O c t . 20, 1993, 22.

188. D o e r n e r , "Pirates o f the H i g h C s . "

189. To be sure , C h i n a ' s c i t izenry have increas ing o p p o r t u n i t i e s to seek

redres s t h r o u g h law. A r a n g e of cases in which p r o m i n e n t cit izens ava i led

t h e m s e l v e s o f legal r emed ie s are d i scussed i n A l f o r d , " D o u b l e - E d g e d

S w o r d s . " L e s s p r o m i n e n t P R C nat ionals are turn ing i n g r o w i n g , i f still

m o d e s t (at least relat ive to the size o f C h i n a ' s popu lace ) , n u m b e r s to the

l a w o n a d m i n i s t r a t i v e l i t igat ion ( Z h o n g h u a r e n m i n g o n g h e g u o x i n g z h e n g

s u s o n g f a ) , w h i c h sets forth p r o c e d u r e s b y w h i c h cit izens m a y appea l a d ­

m i n i s t r a t i v e d e t e r m i n a t i o n s to the cour t s .

166 / N o t e s t o P a g e s 95-98

Five. As Pirates Become Proprietors

1. L o h , e d . , Kuomintang Debacle.

2 . A l t h o u g h the T a i w a n e s e initially w e l c o m e d N a t i o n a l i s t t r o o p s for

their ro le in b r i n g i n g the J a p a n e s e colonial p e r i o d to an end, the bruta l i ty

w i t h w h i c h G u o m i n d a n g forces m o v e d to conso l ida te their p o s i t i o n even

p r i o r to the general N a t i o n a l i s t retreat to T a i w a n incurred the nat ive p o p u ­

lat ion's enmity . O b s e r v e r s e s t imate that be tween 10,000 and 25,000 T a i ­

w a n e s e w e r e ki l led, l eav ing a bit terness that pers is ts to the present . S e e L a i

and M y e r s , Tragic Beginning; C h a o , " E x o r c i s i n g G h o s t s . "

3. K a s e r , Book Pirating, 31.

4 . He D e f e n , " C o m p a r a t i v e Study ," 339.

5. K a s e r , Book Pirating, 40.

6. B e n j a m i n , U.S. Books Abroad.

7. K a s e r , Book Pirating, 3 1 - 4 1 . T h e U . S . M i l i t a r y A s s i s t a n c e G r o u p ,

w h i c h g r e w f r o m 116 so ld iers in 1951 to t h o u s a n d s at its p e a k , w a s o n e

aud ience for p ira ted vers ions p r o d u c e d in T a i w a n , J a p a n , and e l s ewhere .

8 . He D e f e n , " C o m p a r a t i v e Study ," 335.

9. K a s e r , Book Pirating, 48.

10. I b i d . , 67 - 70 .

11 . He D e f e n , Zhuzuoquanfa lunwenji, 29.

12. L i tera l ly s p e a k i n g , the R O C ' s pert inent law in this area , the Z h u ­

z u o q u a n f a , s h o u l d b e trans lated a s "law o n author's r ights ," b u t R O C p u b ­

l icat ions render i t as c o p y r i g h t in E n g l i s h .

13. Shi W e n g a o , Zhuzuoquan; id . , Guoji zhuzuoquan.

14. S e e K a s e r , Book Pirating, p a s s i m ; Publisher's Weekly, M a y 30, 1966, 58.

15. G e n e r a l A c c o u n t i n g Off ice , International Trade.

16. Publishing Yearbook of the ROC, 174, cited in S i m o n e , "Protec t ion of

A m e r i c a n C o p y r i g h t , " 115.

17 . He D e f e n , " C o m p a r a t i v e Study," 339.

18. I b i d . , 368. T h e other three sentences w e r e c o m m u t e d . As recent ly

as 1983, fewer than 1,000 c o p y r i g h t s w e r e reg i s tered annual ly .

19. S e e , e . g . , F r e e m a n t l e , The Steal. L o n g be fore the eas ing in 1987 of

travel and other res tr ic t ions on in tercourse b e t w e e n T a i w a n a n d the C h i ­

nese m a i n l a n d , there w a s cons iderab le u n a u t h o r i z e d r e p r o d u c t i o n in each

j u r i s d i c t i o n o f wr i t t en mater ia l o r i g i n a t i n g in the other (based on direct o b ­

s e r v a t i o n by the a u t h o r in Taipe i and B e i j i n g ) . Interest ingly, for pol i t ical

p u r p o s e s , the author i t i e s on the m a i n l a n d have set as ide in a special a c c o u n t

w h a t they d e s c r i b e a s bas ic p a y m e n t s o w e d t o T a i w a n a u t h o r s w h o s e w o r k s

are r e p r i n t e d w i t h o u t p e r m i s s i o n .

20. H a n , " P r o t e c t i o n f r o m C o m m e r c i a l Counter fe i t er s ," 64.

21 . S e e , e . g . , M a r i a S h a o , "Ta iwan L o w e r s B o o m o n C o u n t e r f e i t e r s , "

Asian Wall Street Journal, 1.

Notes to Pages 98-100 / 167

22. H i c k m a n , "Protec t ing Intel lectual Proper ty ," 117; C. V. C h e n ,

" L e g a l P r o t e c t i o n . "

23. L o h r , " C r a c k d o w n on Counter fe i t ing"; Asia Magazine, D e c . 30,

1984; F r e e m a n t l e , The Steal.

24. " T a i w a n ' s B r a z e n Pirates ," Newsweek, N o v . 15, 1982; L o h r , " C r a c k ­

d o w n o n C o u n t e r f e i t i n g . "

25. U . S . Internat ional T r a d e C o m m i s s i o n , Effect of Foreign Product

Counterfeiting.

26. He De f e n , Zhuzuoquanfa lunwenji, 29-30.

27. S e e A l f o r d , "Intellectual Property ."

28. To facil i tate e c o n o m i c g r o w t h in the deve lop ing w o r l d t h r o u g h tarif f

pre ferences , G A T T a l lows deve loped nat ions t o deviate f r o m the pr inc ip le

o f n o n d i s c r i m i n a t i o n , w h i c h p r o v i d e s that pr iv i leges a c c o r d e d o n e t r a d i n g

p a r t n e r be g i v e n to all. See B e l a s s a , " T o k y o R o u n d , " 93; D o r r i s , "Very

S p e c i a l i z e d U n i t e d States Genera l i zed S y s t e m o f Preferences ," 39.

29. 19 U . S . C . §§ 2462(c)(5) and 2 4 64(c)(3)(B)(2) .

30. " C a n As ia ' s F o u r T i g e r s Be T a m e d ? " Business Week, F e b . 15, 1988, 46.

31. U . S . H o u s e , 100th C o n g . , 2d sess . , 1988, " M e s s a g e f r o m the P r e s i ­

dent o f the U n i t e d States T r a n s m i t t i n g Not i f i ca t ion o f H i s Intent t o R e ­

m o v e . . . T a i w a n . . . f r o m the Lis t of Benef i c iary D e v e l o p i n g C o u n t r i e s

U n d e r the G S P " ( H . R . D o c . N o . 162).

32. O m n i b u s T r a d e and C o m p e t i t i v e n e s s Act o f 1988, P u b . L . N o . 100-

418, §§ 1301, 1303, 102 Stat . 1164-76 , 1179-81 (1988) ( a m e n d i n g the T r a d e

A c t o f 1974, P u b . L . N o . 93-316, §§ 302(b), 182 (1974).

33. H a n , "Protec t ion f r o m C o m m e r c i a l Counter fe i t er s ," 650; He De fen ,

Zhuzuoquanfa lunwenji, 29-30. T h e s e c a m p a i g n s are d i scussed in N a t i o n a l

A n t i - C o u n t e r f e i t i n g C o m m i t t e e , Intellectual Property.

34. T h e s e are d i s c u s s e d in P o w and L e e , "Taiwan's A n t i - C o u n t e r f e i t

M e a s u r e s , " 157.

35. S h a n g b i a o f a , A r t . 62. T h i s a m e n d m e n t d i d not l imit the poss ib i l i ty

o f m o n e t a r y r e d e m p t i o n o f penalt ies ( o f u p t o three years ' i m p r i s o n m e n t )

that m i g h t b e i m p o s e d for in fr ing ing unreg i s t ered w e l l - k n o w n f o r e i g n

t r a d e m a r k s .

36. S h a n g b i a o f a , A r t s . 66 and 64. See a l so S h a n g b i a o f a x i u z h e n g s h u o -

m i n g ; S i lk , " L e g a l E f f o r t s , " 301.

37. Z h u z u o q u a n f a , A r t . 4 I (14). P r o g r a m s are def ined in A r t . 3 I (19).

S e e a l so L i n R u e y - L o n g , "Protect ion ."

38. Z h u z u o q u a n f a , A r t . 4.

39. Public Prosecutor v. Tan Ching Publishing Co., C r i m i n a l J u d g m e n t at

the T a i p e i D i s t r i c t C o u r t o f T a i w a n (1988), Y i - Z i N o . 2574, Sept . 20, 1988,

d i s c u s s e d i n C h i u H u n g d a h , " C o n t e m p o r a r y Practice"; S t o n e , " L e g a l A s ­

pec t s ," 2 1 0 - 1 1 .

168 / Notes to Pages 100-104

40. Z h u z u o q u a n f a , A r t . 17 III.

41. I b i d . , A r t . 40.

42. Z h u a n l i f a t i a o w e n x i u z h e n g caoan s h u o m i n g ; T a i w a n ' s Patent L a w ,

as a m e n d e d D e c . 24, 1986, trans lated and repr inted in East Asian Executive

Reports, J u n e 15, 1987, A r t . 88-1.

43. S h a n g b i a o f a , A r t . 62 I.

44. A u t h o r ' s in t erv i ews and o b s e r v a t i o n s , Taipe i , Sept . 1986. S e e a l so

F r e e m a n t l e , The Steal.

45. N . S . C h e n g and M . H . C h a o , " U p d a t e o n Intel lectual Proper ty ,"

19; S i lk , " L e g a l E f f o r t s , " 326-27 .

46. C h o , " A n t i - C o u n t e r f e i t i n g C o m m i t t e e , " 25. A l s o U . S . Internat ional

T r a d e C o m m i s s i o n , Foreign Protection, K-33 ; Wu Wen-ya , " B o a r d of F o r e i g n

T r a d e , " 32; H u a n g M a o - z o n g , "Assistance and Serv ices ," 160.

47. S e e , e . g . , Ye Y u q i , " S h a n g b i a o f a x iuzheng de y i n x i a n g , " 69; S i lk ,

" L e g a l Ef for t s" ; N a t i o n a l A n t i - C o u n t e r f e i t i n g C o m m i t t e e , Intellectual Prop­

erty, 25-29 , 160-63 .

48. S i lk , " L e g a l E f f o r t s , " appendices III—VII; G o l d s t e i n , "Part ing G e s ­

ture ," 19.

49. S e n g , " F i l m and V i d e o P iracy" ( supp lement ) , vol . 1 .

50. F r e e m a n t l e , The Steal, 120, 126.

51. A u t h o r ' s in terv iews , Taipe i , Sept . 1986.

52. Internat ional Intel lectual P r o p e r t y Al l iance R e p o r t to the U. S . T r a d e

R e p r e s e n t a t i v e , " T r a d e L o s s e s . "

53. A l f o r d , "Intel lectual Property ."

54. B u r e a u o f N a t i o n a l Affa irs , " U S T R Fact Sheet o n Spec ia l 301."

55. B e l l o and H o l m e r , " 'Specia l 301,' " 259.

56. A u t h o r ' s in t erv i ews , Ta ipe i , 1989.

57. Y. T. Z h a o , Sfiijie ribao, Apr . 21 , 1988. S ince the U n i t e d S ta tes t er ­

m i n a t e d f o r m a l d i p l o m a t i c re lat ions wi th the R O C o n J a n u a r y 1 , 1979, the

t w o na t ions have carr ied o n quasi -off ic ia l re lat ions t h r o u g h the A I T and

the C C N A A .

58. Winkler , " U S - R O C T r a d e Ta lks ," 14 -15 ; B e l l o and H o l m e r ,

" G A T T U r u g u a y R o u n d , " 307.

59. Jingji ribao, J a n . 24, 1990, 4.

60. A u t h o r ' s in t erv i ews , Taipe i , J a n . 1991. A l t h o u g h Wang ' s r e s i g n a t i o n

w a s n o t a c c e p t e d , he d i d n o t part ic ipate a s fully in s u b s e q u e n t n e g o t i a t i o n s .

61. C l i f f o r d , "Pirates ' Lair ," 79.

62. Franc i s S . L . W a n g , "Analysis o f A I T - C C N A A U n d e r s t a n d i n g . "

63. Q u o t e d in B u r e a u o f N a t i o n a l Affa irs , "S ix Part ies C o m m e n t s , " 301.

64. F r a n c i s W a n g , " T a m i n g the Infr ingers ," 527.

65. C l i f f o r d , "Pirates ' Lair ."

66. Ib id .

N o t e s to P a g e s 104-8 / 169

67. B u r e a u o f N a t i o n a l Affa irs , "Ta iwan Tries ."

68. T h e q u e s t i o n o f Taipe i ' s G A T T appl icat ion i s a d d r e s s e d i n F e i n e r -

m a n , " T a i w a n and G A T T . "

69. U S T R , "Fact Sheet o n A I T - C C N A A U n d e r s t a n d i n g . "

70. S h a o C h i u n g - h u i , "Internat ional izat ion o f C o p y r i g h t P r o t e c t i o n i n

T a i w a n , " 20.

7 1 . W a n g and Y o u n g , "Taiwan's N e w C o p y r i g h t R e g i m e . "

72. S h a o C h i u n g - h u i , "Internat ional izat ion o f C o p y r i g h t P r o t e c t i o n i n

T a i w a n , " 26.

73 . Parallel i m p o r t a t i o n in this contex t m e a n s the acquis i t ion f r o m

a b r o a d o f c o p y r i g h t e d w o r k s t h r o u g h other than au thor i zed channels .

C o p y r i g h t o w n e r s typical ly objec t to this b o t h b e c a u s e i t u n d e r c u t s their

m o n o p o l y p o s i t i o n and b e c a u s e o f the poss ib i l i ty that s o m e o n e i m p o r t ­

ing u n d e r these c i r c u m s t a n c e s m a y j e o p a r d i z e their g o o d w i l l t h r o u g h , for

e x a m p l e , inat tent ion t o serv ic ing requ irement s .

74. U n d e r s t a n d i n g B e t w e e n the A I T and the C C N A A , J u n e 5 , 1992.

75. T h e D u n k e l draft i s d i s cussed i n B e l l o and H o l m e r , " G A T T

U r u g u a y R o u n d . "

76. U S T R , "Fact Sheet o n A I T - C C N A A U n d e r s t a n d i n g . "

7 7 . T h e s e c h a n g e s in pol it ical life on T a i w a n are chronic led in S i m o n

and K a o , e d s . , Taiwan: Beyond the Economic Miracle.

78. A u t h o r ' s in terv iews , C a m b r i d g e , M a s s . , J u n e 1992.

79 . S h a o C h i u n g - h u i , "Internat ional izat ion o f C o p y r i g h t P r o t e c t i o n i n

T a i w a n , " 68. T h e B e r n e C o n v e n t i o n , for e x a m p l e , does not requ ire na t ions

to bar paral le l i m p o r t a t i o n .

80. S u s a n Y u , " U S Reta l ia t ion Fear."

81. A u t h o r ' s i n t erv i ews , C a m b r i d g e , M a s s . , J u n e 1993.

82. Lifayuangongbao,Jan. 15, 1993.

83. F r a n c i s W a n g , " T a m i n g the Infr ingers ," S 27.

84. S u s a n Y u , " R O C A v o i d s US T r a d e Sanct ions ," Free China Journal

10, n o . 32 ( M a y 4, 1993): 1.

85. S u s a n Y u , " U S Rat i f icat ion Fear," 2 ; S h a o C h i u n g - h u i , " In terna­

t iona l i za t ion o f C o p y r i g h t P r o t e c t i o n in T a i w a n , " 59.

86. D a i s y W o n g , " C o m p r e h e n s i v e A c t i o n Plan for the P r o t e c t i o n o f

Inte l lectual P r o p e r t y R i g h t s A p p r o v e d , " IP Asia, n o . 6 ( A u g . 16, 1993):

19 -20 .

87. S e e , e . g . , " U . S . Sees P r o g r e s s in T h a i , T a i w a n , H u n g a r i a n Intel lec­

tual P r o p e r t y E f f o r t s , " Agence France Presse, A u g . 3, 1993.

88. A l f o r d , "Intel lectual Proper ty ."

89. T a i w a n ' s " e c o n o m i c mirac le" is d i s cussed in C a l C l a r k , Taiwan's De­

velopment; H a g g a r d , Pathways from the Periphery; and Voge l , Four Little Drag­

ons.

170 / Notes to Pages 108-10

90. L i u , " T o u g h e r L a w s M a k e B e t t e r S o f t w a r e , " 42. S e e a l so C h i n ,

" F r o m I m i t a t i o n t o Innovat ion ."

91. S i m o n , "Ta iwan ' s E m e r g i n g Techno log ica l T r a j e c t o r y " ; C h a n g

Y u w e n , "S ing le D i g i t G r o w t h , " 46; L i u , " T o u g h e r L a w s M a k e B e t t e r S o f t ­

w a r e " ; Z h a n g J i n g , " D a l u c h u b a n p i n falu went i tantao ," 26; " C r o s s - S t r a i t

S y m p o s i u m " ; " C P A v . N P A , " 39; Winkler , "Ta iwan ," 22; and " L e g a l C a b l e

TV O n e S t e p A w a y : P r o p o s e d L a w Sets 48 Dis tr i c t s ," Free China Jour­

nal, F e b . u , 1992, 4 . C r o s s - S t r a i t s co l laborat ion n o w s e e m s to e m b r a c e a

g o o d deal o f i n f r i n g e m e n t , r a n g i n g f r o m h igh- tech fields (Cl i f ford , "Pirate's

L a i r " ) to the sale o f u n p u b l i s h e d master ' s theses .

92. D o u g l a s S e a s e , "Taiwan's E x p o r t B o o m t o the U . S . O w e s M u c h t o

A m e r i c a n F i r m s , " Wall Street Journal, M a y 27, 1987, 1.

93. D a v i d C h e n , " ' M a d e in T a i w a n ' M a k e s the G r a d e , " Free China Jour­

nal, J u n e 15, 1993, 7; M a r i a S h a o , "Stan Shih Wants ' M a d e in T a i w a n ' to

M e a n F i r s t - R a t e , " Business Week, J u n e 8, 1987, 109; " H e a d w a y for C o m p u t e r

F i r m s , B r a n d n a m e s , O E M M o d e , " Free China Journal, F e b . n , 1992, 8 .

94. Phi l ip L i u , "Rejec t ing the O l d B o y N e t w o r k , " 18.

95. S e e , e . g . , " T a i w a n : O i l i n g P a l m s , " The Economist, J u n e 12, 1993, 83;

" T a i w a n C a b i n e t t o O p p o s e A n t i - C o r r u p t i o n Bi l l ," R e u t e r s , J u n e 9 , 1993;

"27 C o n v i c t e d in T a i w a n E lec t i on Scanda l ," Reuters , Apr . 16, 1992.

96. B e r m a n , Words Like Colored Glass, 122 -69 . T h e "three l imi ta t ions"

r e q u i r e d that n e w s p a p e r s reg i s ter w i t h the g o v e r n m e n t pr ior to c o m m e n c ­

i n g p u b l i c a t i o n , locate their presses wi th in the d i s t r ibut ion areas , and pr in t

n o m o r e than the n u m b e r o f p a g e s author ized b y the g o v e r n m e n t .

97. S e e , e . g . , S h i n j a e H o o n , "Freer t o S p e a k O u t , " 12.

98. M a r k C o h e n , Taiwan at the Crossroads, 309-51 . S e e a l so L a w r e n c e

L i u , "A L e s s o n in Persuas ion ."

99. M e n d e l , "Judicial P o w e r and I l lusion," 157 -90 .

100. S e e , e . g . , J e r e m y M a r k , "Ta iwan F inds D i p l o m a t i c G o l d M i n e i n

R e l a t i o n s w i t h N e w C . I . S . States ," Wall Street Journal, F e b . 7, 1992, 5.

101. T h e G A T T i s b e c o m i n g increas ing ly invo lved i n intel lectual p r o p ­

er ty i s sues , a s ev idenced by the U r u g u a y R o u n d T r a d e Related Intel lectual

P r o p e r t y ( T R I P S ) a g r e e m e n t . A l f o r d , "Intellectual Proper ty ."

102. S e e W u X i a n x i a n g , " B u z h o n g s h i z h u z u o q u a n , " 13. T h e i ssues o f

c o p y r i g h t and the R O C ' s s t a n d i n g i n the w o r l d c o m m u n i t y have c o m e

t o g e t h e r in a s o m e w h a t nove l m a n n e r in the case of New York Chinese TV

Programs v. U.E. Enterprises (C iv i l A c t i o n N o . 88 C i v . 4170 [ J M W ] ) , U . S .

D i s t . C t . , S . D . , N . Y . , M a r . 8 , 1989. In that case, an a l l eged infr inger o f

v i d e o t a p e s c o p y r i g h t e d in T a i w a n used as a defense the a r g u m e n t that the

p la int i f f d i d no t h o l d a c o p y r i g h t enforceable in the U n i t e d States . F irs t ,

the de fendant c o n t e n d e d that the 1946 Fr iendsh ip , C o m m e r c e and N a v i g a ­

t ion ( F C N ) T r e a t y b e t w e e n the U n i t e d States and the R O C did not a p p l y

Notes to Pages 112-13 / 171

t o T a i w a n . S e c o n d , the defendant a r g u e d that even i f the F C N T r e a t y d i d

a p p l y to T a i w a n , the T a i w a n Re la t ions Act c o u l d not cons t i tu t iona l ly have

c o n t i n u e d such c o p y r i g h t re lat ions a s m a y have ex i s ted b e t w e e n the U n i t e d

S ta tes a n d the R O C prior t o the t e r m i n a t i o n o f A m e r i c a n r e c o g n i t i o n o f

T a i p e i on D e c e m b e r 31, 1978. N o t w i t h s t a n d i n g the defendant 's rel iance on

a m e m o r a n d u m o f l a w p r e p a r e d b y Profes sor L a u r e n c e T r i b e o f the H a r ­

v a r d L a w S c h o o l , the c o u r t rejected the defendant's a r g u m e n t s a n d entered

a p e r m a n e n t i n j u n c t i o n a g a i n s t its in fr ing ing behavior . T h e Federa l C o u r t

o f A p p e a l s for the S e c o n d C i r c u i t af f irmed the Dis tr i c t C o u r t ' s j u d g m e n t

on J a n u a r y 24, 1992 (New York Chinese TV Programs v. U.E. Enterprises, 954

F. 2d 847 [1992]).

Six. No Mickey Mouse Matter

1 . A l f o r d , " S e e k T r u t h f r o m Facts ," 177.

2 . M a o L e i a n d Z h a n g Z h i y u , "Wang Z h e n g f a : C h i n a C a n Effect ive ly

S t o p I n f r i n g e m e n t on P r o t e c t i o n o f Intel lectual P r o p e r t y R i g h t s . " Renmin

ribao (haiwaiban), M a y 7, 1990, 4, trans lated and repr inted in Foreign Broad­

cast Information Service C H I - 9 0 - 0 9 5 ( M a y 16, 1990), 34; B u r e a u of N a t i o n a l

Af fa ir s , " C h i n a A g r e e s . " M y repeated efforts t o secure b a c k g r o u n d m a t e r i ­

als r e g a r d i n g these n e g o t i a t i o n s f r o m the Off ice o f the U n i t e d States T r a d e

R e p r e s e n t a t i v e ( U S T R ) u n d e r the F r e e d o m o f I n f o r m a t i o n A c t have been

u n a v a i l i n g . Indeed , the U S T R ' s office has fai led even to c o m p l y w i t h its

l egal o b l i g a t i o n to exp la in its refusal to p r o v i d e such mater ia l s .

3 . M a r t i a l law w a s dec lared on M a y 19, 1989, effective 12:00 A . M . on

M a y 20. F o r the dec larat ion , see "Li Peng zong l i q ianshu g u o w u y u a n l ing

B e i j i n g bufen d i q u s h i x i n g j i a n y a n " (Premier L i Peng S i g n s the Sta te C o u n ­

cil's O r d e r t o I m p o s e M a r t i a l L a w o n C e r t a i n Di s tr i c t s o f B e i j i n g ) , Renmin

ribao (haiwaiban), M a y 21 , 1991, 1.

4 . N i c h o l a s K r i s t o f , "Visit to C h i n a : V e x i n g Ri tual : B a k e r ' s T r i p H i n ­

d e r e d by M i s u n d e r s t a n d i n g s , " New York Times, N o v . 19, 1991, A 9 . T h e

j o i n i n g o f inte l lectual p r o p e r t y i ssues w i t h concerns over nuclear w e a p o n s

pro l i f era t ion a n d a r m s contro l w a s a l so evident in late F e b r u a r y 1992 w h e n

the U n i t e d States lifted sanc t ions i m p o s e d on C h i n a for sale o f "miss i l e t ech­

n o l o g y to S y r i a , Iran and Paki s tan and nuclear t e c h n o l o g y to Iran." As the

New York Times put it, "In e x p l a i n i n g the r e a s o n s , L a w r e n c e E a g l e b u r g e r ,

the U n d e r Secre tary of State . . . a r g u e d . . . that [Ch inese ] a d h e r e n c e

to the m i s s i l e con tro l r e g i m e [in e x c h a n g e of a l ift ing of sanc t ions ] 'was

an i m p o r t a n t first s tep t o w a r d achiev ing s imi lar conces s ions in o ther c o n ­

tent ious areas such as the transfer of nuclear t e c h n o l o g y and intel lectual

p r o p e r t y r i g h t s ' " (E la ine S c i o l i n o , " U . S . Lifts Its S a n c t i o n s on C h i n a over

H i g h - T e c h n o l o g y Trans fer s ," New York Times, F e b . 22, 1992, A i ) .

172 / Notes to P a g e s 113-14

5 . B u r e a u o f N a t i o n a l Affa irs , " U S T R Sets J a n u a r y 1 6 D e a d l i n e . "

6 . M i c h a e l C h u g a r i , " P R C N o t to ' K e e p Silent' on Tarif fs ," South China

Morning Post, J a n . n , 1992, 1 ; A l f o r d , "Perspect ive on C h i n a . " M F N s ta tus

is s o m e t h i n g of a m i s n o m e r , as the preferential tariff rates i t p r o v i d e s u n d e r

U . S . l a w are ava i lab le t o v ir tua l ly all n o n c o m m u n i s t nat ions . T h e s o - c a l l e d

J a c k s o n - V a n i k a m e n d m e n t to the 1974 T r a d e A c t further p r o v i d e s that even

c o m m u n i s t na t ions m a y rece ive M F N status i f they p e r m i t their nat iona l s

to e m i g r a t e or the pres ident wa ives this condi t ion (as U . S . pres idents have

d o n e annua l ly s ince 1980 wi th respect t o C h i n a ) . F o r m o r e o n M F N , see

A l f o r d , " B o t h D e m o c r a t s and Republ i cans"; id . , " U n d e r e s t i m a t i n g a C o m ­

plex C h i n a . "

7 . " M e m o r a n d u m o f U n d e r s t a n d i n g . . . o n the P r o t e c t i o n o f Intel­

lectual P r o p e r t y , " J a n . 17, 1992; " C h i n e s e C h e c k e r s , " National Journal 24

( J a n . 25, 1992): 226; R i c h a r d K a t z , "Set t lement o f C o p y r i g h t D i s p u t e S taves

O f f T e n s i o n , " Nikkei Weekly, F e b . 1. 1992, 20; Lachica , " C h i n a Sett les D i s ­

pute"; " O n e C l e a r R o u n d , b u t M o r e H u r d l e s to C o m e , " South China Morn­

ing Post, Jan. 18, 1992, 12.

8 . K a y e and A w a n o h a r a , " D o w n to the Wire."

9 . T h o m a s F r i e d m a n , " C h i n a Faces U . S . S a n c t i o n s i n E l e c t r o n i c C o p y ­

r i g h t Piracy," New York Times, J u l y 1, 1994, D 2 . T h e shift in the C l i n t o n

a d m i n i s t r a t i o n ' s C h i n a po l i cy has been s tunn ing . L i n c o l n K a y e , " O n e - W a y

Street ," n . A l t h o u g h there are certainly g o o d a r g u m e n t s t o b e m a d e for

its c u r r e n t (at least as o f this w r i t i n g ) po l i cy o f "construct ive e n g a g e m e n t "

(to b o r r o w a t e r m left over f r o m a p r e v i o u s a d m i n i s t r a t i o n ) , the C l i n t o n

a d m i n i s t r a t i o n ' s initial po l i cy a l so had a very ser ious rat ionale . As L i n c o l n

K a y e of the Far Eastern Economic Review w r o t e after in terv iewing the l ead ing

C h i n e s e d i s s ident Wei J i n g s h e n g f o l l o w i n g Wei's release f r o m s o m e f o u r ­

teen y e a r s ' i m p r i s o n m e n t : " H e [Wei] s c o r n s the C l i n t o n a d m i n i s t r a t i o n ' s

d e - e m p h a s i s o n h u m a n r ights i n its overal l C h i n a pol icy. C o n f r o n t a t i o n

over m o s t - f a v o r e d - n a t i o n t rad ing s tatus m i g h t no t have been the m o s t effec­

t ive US s t r a t e g y to b e g i n wi th , he a d m i t s . B u t , hav ing c o m e this far w i t h it,

W a s h i n g t o n w o u l d n o w be ' fool i sh' to t h r o w away that card j u s t a s i t s e e m s

o n the v e r g e o f w i n n i n g ' m o r e pr i soner releases and other c o n c e s s i o n s "

( K a y e , " L e a r n i n g N e w Rules ," 21).

Ironical ly , in m o v i n g f r o m a C h i n a po l i cy that init ial ly m a d e m u c h r h e ­

tor ica l ly o f h u m a n r igh t s t o o n e m o r e focused o n e c o n o m i c and s tra teg ic

c o n s i d e r a t i o n s , B i l l C l i n t o n i s unwi t t ing ly e m u l a t i n g a s imilar , i f less p u b ­

l ic ized, shift by G e o r g e B u s h in the f i r s t year o f his pres idency. A l t h o u g h

i t w a s s u b s e q u e n t l y o b s c u r e d by his reac t ion to the B e i j i n g S p r i n g o f 1989,

B u s h ' s f i r s t c o n s e q u e n t i a l ac t ion t o w a r d C h i n a a s pres ident w a s t o invite

the d i s s ident phys ic i s t F a n g Lizhi to the state d inner he w a s h o s t i n g for the

C h i n e s e l e a d e r s h i p , m u c h to its cons ternat ion , in order to m a k e a s y m b o l i c

N o t e s to P a g e s 115-17 / 173

g e s t u r e a b o u t the i m p o r t a n c e o f h u m a n r ights cons idera t ions i n A m e r i c a n

C h i n a pol icy .

10. T h i s l inkage is d i s c u s s e d in A l f o r d , "Intellectual Proper ty ."

11 . M e m o r a n d u m o f U n d e r s t a n d i n g o n the P r o t e c t i o n o f Intel lectual

P r o p e r t y , J a n . 17, 1992.

12. L i Y i n g , "Internat ional C o p y r i g h t Treat ies and C h i n e s e I m p l e m e n ­

ta t ion R u l e s . "

13. E d u a r d o Lachica , " U . S . P lans Tariffs for C h i n e s e I m p o r t s as B e i j i n g

Fai ls to M o v e on Patent Issues ," Wall Street Journal, N o v . 27, 1991, A 1 0 .

14. A l t h o u g h act ions such as those taken by the U S T R are sa id to have

as an o b j e c t i v e b r i n g i n g C h i n a into the w o r l d c o m m u n i t y , their large ly

uni lateral n a t u r e — a n d the c o m p a r a b l e ac t ions that they e v o k e a m o n g o u r

t r a d i n g p a r t n e r s a n x i o u s no t to be left b e h i n d — a t t i m e s result in C h i n a

(and o ther s imi lar ly s i tuated nat ions) b e i n g pul led in a var ie ty of d i rec t ions

b y different m e m b e r s o f the w o r l d c o m m u n i t y . See , e . g . , I s l am and K a r p ,

" G r a b that R o l e x , " 63.

15. T h e w a y s in w h i c h d i ss idents and others are seek ing to use the l a w

to call the C o m m u n i s t par ty to task for not adher ing to its o w n s t a n d a r d s

are the subjec t o f A l f o r d , " D o u b l e - E d g e d S w o r d s . "

16. A cynic m i g h t s u g g e s t that the B u s h a d m i n i s t r a t i o n w a s relat ively

indifferent to the q u e s t i o n o f h o w effectively these laws m i g h t take h o l d ,

a r g u i n g that the a d m i n i s t r a t i o n ' s pr incipal objec t ive w a s to c o n c l u d e an

a g r e e m e n t s e c u r i n g s e e m i n g concess ions f r o m C h i n a that m i g h t de fuse o b ­

j e c t i o n s t o its C h i n a po l i cy i n general and its a d v o c a c y o f c o n t i n u e d M F N

s ta tus in part icular . T h i s had the a d v a n t a g e , so the a r g u m e n t g o e s , o f e n ­

a b l i n g the pres ident to c la im that his attent ion to fore ign affairs w a s , in ­

d e e d , o p e n i n g u p e c o n o m i c o p p o r t u n i t i e s a b r o a d (and, wi th t h e m , j o b s for

A m e r i c a n w o r k e r s ) whi l e a l so earning the g r a t i t u d e (and c a m p a i g n s u p p o r t )

o f l eaders o f the enter ta inment , pharmaceut ica l , and c o m p u t e r indus tr i e s .

17. T h e r e is s u r p r i s i n g l y little a c a d e m i c l i terature in the West (or, for that

mat ter , in the C h i n e s e w o r l d ) on w h a t A l a n Watson has t e r m e d "legal t r a n s ­

p lanta t ion ," w h e t h e r w i t h reference to part icular nat ions (such as C h i n a )

or in genera l . T h i s m a y in part be a l inger ing after-effect of the u n s u c c e s s ­

ful ef forts o f the s o - c a l l e d l a w and d e v e l o p m e n t m o v e m e n t , u n d e r t a k e n

chiefly d u r i n g the 1950's and 1960's, to e n c o u r a g e Lat in A m e r i c a n , A f r i c a n ,

a n d A s i a n n a t i o n s t o p r o m u l g a t e l a w s m o d e l e d o n those o f Western l iberal

d e m o c r a c i e s in order to exped i t e their "modern iza t ion ." See , e . g . , T r u b e k

and Ga lanter , " S c h o l a r s i n S e l f - E s t r a n g e m e n t , " and M e r r y m a n , " C o m p a r a ­

t ive L a w . "

W a t s o n h i m s e l f has r e m a i n e d qui te s a n g u i n e a b o u t the ease wi th w h i c h

l a w m i g h t be t ransp lanted b e t w e e n societ ies , but his f ind ings are l arge ly

inapp l i cab le to the P R C for t w o principal r easons . First , for all their dif-

174 / N o t e s t o P a g e s 118-21

ferences , the soc ie t ies W a t s o n s t u d i e d w e r e far c loser legal ly, pol i t ical ly ,

cu l tural ly , and e c o n o m i c a l l y than are the P R C and the m a j o r industr ia l i zed

d e m o c r a c i e s . S e c o n d , Watson tends to treat t ransplantat ion as successful so

l o n g as the a d o p t i n g soc ie ty has taken on the fore ign f o r m s in q u e s t i o n ,

i rrespec t ive o f whe ther sa id f o r m s yield the results their a d o p t e r s des ired .

Whi le the s t u d y o f the u n e x p e c t e d w a y s i n which transp lanted f o r m s g r o w

in their n e w soi l is in teres t ing in its o w n r ight , that is a rather different e n ­

d e a v o r f r o m assess ing the w o r k i n g s of a h igh ly ins trumenta l effort at legal

d e v e l o p m e n t o f the t y p e the P R C has been u n d e r g o i n g . F o r a representat ive

e x a m p l e of Watson's w r i t i n g on this subject , see Watson , Legal Transplants. I

further d i s c u s s the p r o b l e m s o f t ransp lantat ion in "Inscrutable O c c i d e n t a l "

and " O n the L i m i t s o f ' G r a n d T h e o r y . ' " O n e o f the best s tudies o f the t r a n s ­

p lanta t ion o f fore ign legal f o r m s t o C h i n a i s E d w a r d E p s t e i n , "Theore t i ca l

S y s t e m o f P r o p e r t y R i g h t s . "

18. Intel lectual p r o p e r t y has not been the on ly t rade front on w h i c h the

U S T R has b r o u g h t ex tens ive p r e s s u r e t o bear o n the C h i n e s e w o r l d . T h e

U S T R has ut i l ized the threat of a Sec t ion 301 ac t ion aga ins t T a i w a n (and a

n u m b e r o f o ther A s i a n nat ions) in order to secure better m a r k e t access for

A m e r i c a n t o b a c c o e x p o r t s . To a t least s o m e o b s e r v e r s , b o t h in the U n i t e d

States and on T a i w a n , this has been all t o o reminiscent o f the O p i u m War a

c e n t u r y and a h a l f earlier. S e e , e .g . , Sesser, " O p i u m War R e d u x . "

19. I t s h o u l d be n o t e d that s o m e scholars are of the v i e w that c o p y ­

r ight , and , w i t h it, the increas ing c o m m e r c i a l i z a t i o n of k n o w l e d g e , a t least

in l iberal d e m o c r a t i c soc iet ies , w o r k to curtai l the m a r k e t p l a c e o f ideas . S e e

B o y l e , " T h e o r y o f L a w and In format ion ."

R e a d e r s m a y w o n d e r whether my s u g g e s t i o n that the rise o f a c o n ­

s t i tuency w i t h an e c o n o m i c interest i s o f c o n s e q u e n c e in s e c u r i n g effective

c o p y r i g h t p r o t e c t i o n const i tu tes a n impl ic i t e n d o r s e m e n t o f the w o r k o f

A d e l s t e i n a n d Peretz and N o r t h and T h o m a s , d i s cussed in chapter 2 . As I

be l ieve the R O C e x a m p l e indicates , e c o n o m i c cons idera t ions are s ignif icant

v a r i a b l e s . N e i t h e r Ade l s t e in and Peretz nor N o r t h and T h o m a s , h o w e v e r ,

p a y a d e q u a t e heed to the i m p a c t o f the t y p e o f cul tural , soc ia l , pol i t ical ,

and d i p l o m a t i c c o n s i d e r a t i o n s o n w h i c h this s t u d y has f o c u s e d . N o r d o

they p r o v i d e us w i t h a m e a n s o f i so lat ing the i m p a c t o f these m a n y v a r i ­

a b l e s — u n l e s s o n e s tarts w i t h their a s s u m p t i o n that e c o n o m i c factors are

p a r a m o u n t .

20. O n e o f the fa i l ings o f the law and d e v e l o p m e n t m o v e m e n t m a y have

b e e n that i t o v e r e s t i m a t e d the p o w e r o f law to lead social t r a n s f o r m a t i o n and

d i d n o t a d e q u a t e l y heed the d e g r e e to which a soc ie ty ' s law is i n t e r t w i n e d

w i t h other d i m e n s i o n s o f its pol i t ical , inst i tut ional , and cul tural life.

21. C h a l l e n g e s p o s e d by the effort to reconci le internat ional h u m a n

r i g h t s n o r m s w i t h cu l tures no t act ively represented in the initial f o r m u l a -

Notes to Pages 121-22 / 175

t ion o f such n o r m s are a d d r e s s e d i n A l f o r d " M a k i n g a F o r u m o f D e m o c ­

racy."

22. A l f o r d , " B o t h D e m o c r a t s and Republ i cans"; i d . , "Seek T r u t h f r o m

Fact s"; i d . , " D o u b l e - E d g e d S w o r d s " ; id . , " U n d e r e s t i m a t i n g a C o m p l e x

C h i n a . "

23. I d i s c u s s this p h e n o m e n o n in a f o r t h c o m i n g essay on the r ise of hezuo-

zhi ( c o o p e r a t i v e or q u a s i - p r i v a t e ) law f i rms in the P R C . A l f o r d , "Tasse l led

L o a f e r s . "

24. See , e . g . , L o u i s e L u c a s , " U S T h r e a t e n s A c t i o n A g a i n s t C h i n a O v e r

Text i l e E x p o r t s , " South China Morning Post, N o v . 18, 1993, B u s i n e s s S e c ­

t ion , 1; S t r o s s , Bulls in the China Shop, 88-89. T o m a k e this po in t is no t

t o c o n d o n e the f raudulent mi s labe l ing o f text i les i n w h i c h s o m e C h i n e s e

en terpr i se s are sa id to be e n g a g e d . I t s h o u l d be no ted that s o m e r e p u t a b l e

c o m m e n t a t o r s be l i eve that the U . S . g o v e r n m e n t has wi ld ly e x a g g e r a t e d the

m i s l a b e l i n g p r o b l e m . J a m e s B o v a r d , " T r a d e Q u o t a s B u i l d N e w C h i n e s e

Wall ," Walt Street Journal, J a n . 10, 1994, A12.

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" Z h u a n l i f a t i a o w e n x i u z h e n g c a o a n z o n g s h u o m i n g " ( T h e C o m p l e t e E x p l a ­

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" Z h u z u o q u a n f a t i a o w e n x i u z h e n g c a o a n z o n g s h u o m i n g " ( T h e C o m p l e t e

E x p l a n a t i o n o f the D r a f t R e v i s e d C o p y r i g h t L a w P r o v i s i o n s ) . Ta ipe i :

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E x p l a n a t i o n o f the Draf t R e v i s e d C o p y r i g h t L a w P r o v i s i o n s ) . Ta ipe i :

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Zongtongfu gongbao ( T h e G a z e t t e of the Pres ident 's Off ice) . Taipe i , 1989-92 .

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C o p y r i g h t S t a r t e d W h e n and in What C o u n t r y ? ) Faxue yanjiu (Research

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" Z u i g a o r e n m i n fayuan g u a n y u kaizhan zhuanl i shenpan g o n g z u o d e j i g e

w e n t i d e t o n g z h i " ( T h e C i r c u l a r o f the S u p r e m e People 's C o u r t A d ­

d r e s s i n g Severa l Q u e s t i o n s Invo lved in R e n d e r i n g J u d g e m e n t in Patent

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r e n m i n g o n g h e g u o z u i g a o r e n m i n fayuan b a n g o n g t i n g , 1985.

212 / Bibl iography

" Z u i g a o r e n m i n fayuan g u a n y u shenli zhuanli j iu f en anj ian r u o g a n went i

d e j i e h u i " ( A n s w e r s o f the S u p r e m e People's C o u r t t o Several Q u e s t i o n s

on R e s o l u t i o n of Patent D i s p u t e s ) . Zhonghua renmin gongheguo zuigao ren­

min fayuan gongbao ( T h e G a z e t t e of the S u p r e m e People's C o u r t of the

People ' s R e p u b l i c o f C h i n a ) , n o . i (1993): 26 -27 . B e i j i n g : Z h o n g h u a

r e n m i n g o n g h e g u o z u i g a o r e n m i n fayuan b a n g o n g t i n g , 1993.

" Z u i g a o r e n m i n fayuan g u a n y u shenli zhuanl i s h e n q i n g q u a n j i u f e n a n ­

j i a n r u o g a n went i d e tongzh i" ( T h e C i r c u l a r o f the S u p r e m e People 's

C o u r t A d d r e s s i n g Several Q u e s t i o n s C o n c e r n i n g C a s e s I n v o l v i n g D i s ­

p u t e s o v e r the R i g h t to A p p l y for a Patent) . P r o m u l g a t e d on O c t . 19,

1987. Zhonghua renmin gongheguo zuigao renmin fayuan gongbao ( T h e G a z e t t e

o f the S u p r e m e People 's C o u r t o f the People's R e p u b l i c o f C h i n a ) 6 ,

n o . 4 (1987): 8 . B e i j i n g : Z h o n g h u a r e n m i n g o n g h e g u o z u i g a o r e n m i n

fayuan b a n g o n g t i n g , 1987.

" Z u i g a o r e n m i n fayuan g u a n y u zhuanl i q i n q u a n j iu fen anj ian d iyu g u a n x i a

went i d e t o n g z h i " ( T h e C i r c u l a r o f the S u p r e m e People 's C o u r t A d d r e s s ­

i n g the Q u e s t i o n o f Terri tor ia l J u r i s d i c t i o n i n C a s e s Invo lv ing D i s p u t e s

o v e r Patent In fr ingement ) . P r o m u l g a t e d on J u n e 29, 1987. Zhonghua ren­

min gongheguo zuigao renmin fayuan gongbao ( T h e G a z e t t e of the S u p r e m e

People ' s C o u r t of the People's R e p u b l i c of C h i n a ) 6 , n o . 3 (1987): 13.

B e i j i n g : Z h o n g h u a r e n m i n g o n g h e g u o z u i g a o r e n m i n fayuan b a n g o n g ­

t ing , 1987.

Glossary

214 / Glossary

Index

216 / Index

Index / 217

218 I Index

Index / 219

220 / Index

Index / 221

222 / Index