Piracy, Prejudice, and Perspectives: an Attempt to Use Shakespeare to Reconfigure the U.S.-China Intellectual Property Debate
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Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 3-2001 Piracy, Prejudice, and Perspectives: An Attempt to Use Shakespeare to Reconfigure the U.S.-China Intellectual Property Debate Peter K. Yu [email protected] Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Comparative and Foreign Law Commons, Intellectual Property Law Commons, and the Internet Law Commons Recommended Citation Peter K. Yu, Piracy, Prejudice, and Perspectives: An Attempt to Use Shakespeare to Reconfigure the U.S.- China Intellectual Property Debate, 19 B.U. Int'l L.J. 1 (2001). Available at: https://scholarship.law.tamu.edu/facscholar/474 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. PIRACY, PREJUDICE, AND PERSPECTIVES: AN ATTEMPT TO USE SHAKESPEARE TO RECONFIGURE THE U.S.-CHiINA INTELLECTUAL PROPERTY DEBATE Peter K. Yu* Copyright © 2001 I. INTRODUCTION ............................................ 2 HI. THm UNITED STATES'S FAILED CONVERSION ATEmP'rs... 3 III. DIFFERENCES BETWEEN CHINA AND THE WEST ........... 16 A. Confucianism and Cultural Practices................... 16 B. Socialist Economic System ............................. 21 C. Self-strengthening Worldview .......................... 22 D. Skepticism, Xenophobia, and Nationalism ............. 24 E. Censorship and Information Control Policy ............ 28 F. Laws with Chinese Characteristics..................... 32 IV. Ti MERCHANT OF VENICE ............................... 38 A . The Story ............................................. 38 B. The Lessons ........................................... 43 1. Who Chooseth Me, Must Give and Hazard All He H ath .............................................. 44 2. May the Outward Shows Be Least Themselves .... 50 3. Let the Sounds of Music Creep in Our Ears ....... 53 V. ArmRICAN INTELLECTUAL PROPERTY POLICY TOwARD CHINA .................................................... 55 A. The Two Countries Must Give and Hazard All They H ave .................................................. 55 B. The U.S.-China Intellectual Property Debate Is Deceived with Ornament .............................. 67 C. The Two Countries Should Strive for Harmony ........ 77 VI. CONCLUSION .............................................. 87 " Executive Director, Intellectual Property Law Program & Deputy Director, Howard M. Squadron Program in Law, Media & Society, Benjamin N. Cardozo School of Law, Yeshiva University; Research Associate, Programme in Comparative Media Law & Policy, Centre for Socio-Legal Studies, University of Oxford. The Author would like to thank Richard Weisberg for sharing his unique and insightful perspective on The Merchant of Venice and for reading several drafts of the Article. He would also like to thank Peter Feng, Richard Knowles, Michael Pantazakos, Susan Tiefenbrun, and Daniel Tritter for their helpful comments and suggestions on earlier drafts of the Article. 2 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 19:1 All of us are to an extent prisoners of our environments, trapped in one or anotherset of parochialconcerns. And the truth we retrieve is inevitably qualified by the intellectual and emotional preoccupations each of us, through our vocabulary and concepts, brings to bear on the study of the past.1 I. INTRODUCTION Every once in a while, the mass media report stories about intellectual property piracy in China. These stories usually go as follows. For a long time, the evil Chinese pirates have been freeriding on the creative genius of Western authors and inventors. Engaging in unfair competition, these pirates have brought about the greatest trade deficit in the United States in years. Every year, the United States loses more than $2 billion of reve- nues due to intellectual property piracy in China. Tired of this enormous trade deficit and the millions of pirated copies of Microsoft Windows and counterfeit Mickey Mouse T-shirts, the United States has finally decided to mount a noble crusade against these lowly pirates. This crusade has not only protected the United States's intellectual property interests, but also brought to China the needed ethical values, technological develop- ment, and global economic integration. This story contains some truths, in particular the extent of the Chinese piracy problem and the problem's adverse impact on the U.S. economy. However, it omits several important aspects of the existing U.S.-China intellectual property conflict. First, even though the crusade did not receive much media coverage before the 1980s, this crusade has been an ongoing effort since the turn of the twentieth century. So far, it has not produced any effective results, apart from putting intellectual property laws on statute books. Second, unfair competition is not the only reason behind the piracy problem. China and the West harbor significant politi- cal, social, economic, and cultural differences, which militate against intellectual property law reforms in China. Without reforms that are sen- sitive to these differences, the piracy problem will continue. Indeed, the problem will exacerbate as the Chinese economy grows. Third, the cru- sade has failed to convince the Chinese, in particular their leaders, of the importance and benefits of intellectual property rights. Even worse, it backfires on the United States's foreign trade and human rights policies. In light of these significant omissions, the current U.S.-China intellectual property debate "obscure[s] far more than... illuminate[s]."2 It baffles American scholars, policymakers, the mass media, and the general public 1 PAUL A. COHEN, DISCOVERING HISTORY IN CHINA 198 (1984). 2 William P. Alford, Making the World Safe for What? Intellectual Property Rights, Human Rights and Foreign Economic Policy in the Post-EuropeanCold War World, 29 N.Y.U. J. INT'L L. & POL. 135, 135 (1997). 2001] PIRACY, PREJUDICE,AND PERSPECTIVES and prevents them from understanding the roots of the Chinese piracy problem. To reconfigure the U.S.-China intellectual property debate, this Article articulates the various differences between China and the West and explains how these differences have contributed to the failure of the United States's repeated conversion attempts. It also highlights the unde- sirability for and ineffectiveness of forced conversion by juxtaposing the piracy problem with one of Shakespeare's legal masterpieces, The Merchant of Venice3 ("The Merchant"). By comparing China's experi- ence in the international intellectual property community to Shylock's predicament in the play, this Article seeks to challenge the readers' cul- tural presumptions and invites readers to step outside their own world to rethink the U.S.-China intellectual property conflict. Part II of this Article describes the failure of the United States's repeated attempts to convert China into a Western intellectual property regime. This Part argues that the American intellectual property policy toward China in the last two decades failed in the same way as it had failed at the turn of the twentieth century. Part III examines the political, social, economic, and cultural differences between China and the West. This Part explains how these differences have primarily accounted for the United States's failed conversion attempts. Part IV recounts the story of Shylock's forced conversion in The Merchant and compares China's con- version experience in the international intellectual property community to Shylock's predicament in the Venetian court. This Part also examines in depth the three major lessons the audience can learn from the play and how these lessons can help avoid Shylock's painful experience. Using The Merchant as a legal text, Part V applies Shakespeare's teachings to the U.S.-China intellectual property conflict. This Part concludes that Shakespeare's lessons in The Merchant provide valuable lessons for peo- ple to understand the conflict and for policymakers to reshape their for- eign intellectual property policy. II. Tim UNITED STATES'S FAILED CONVERSION ArEMPTs To understand why China has to be converted, one must realize that China had not developed any intellectual property notion throughout its millennia-long imperial history. The earliest effort to regulate publica- tion and reproduction was through an edict issued by Emperor Wenzong of the Tang dynasty in A.D. 835.' This edict "prohibited the unautho- rized reproduction by persons of calendars, almanacs, and related items 3 WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE (John Russell Brown ed., Arden Shakespeare 1955). All the quotes from The Merchantof Venice in this Article are taken from this edition of the play. 4 WILLIAM P. ALFORD, To STEAL A BOOK Is AN ELEGANT OFFENSE: INTELLECTUAL PROPERTY LAW IN CHINESE CIVILIZATION 13 (1995). 4 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 19:1 that might be used for prognostication."5 Because the Chinese consid- ered the emperor to be the link between human and natural events, this prohibition was needed to protect the emperor against findings that would have undermined the dynasty or predicted its downfall.6 By the end of the Tang dynasty, the edict was further expanded to "prohibit[ ] the unauthorized copying and distribution of state legal pronouncements and official histories, and the reproduction, distribution, or possession