Sunday, August 22, 2010

The Sly Rabbit and the Three C's: China, Copyright and Calligraphy

My latest law review article, The Sly Rabbit and the Three C’s: China, Copyright and Calligraphy, has just been published as a Feature Article in Volume 7, Issue 2 of the Loyola University Chicago International Law Review (Spring/Summer 2010) at pages 163-191. The Law Review has not yet posted Issue 2 on its website, however I understand it will do so in the near future. When posted, the article will appear on the Review’s site, which is found at:

The “Sly Rabbit” portion of the title refers to a classic Chinese proverb that reads: “A sly rabbit will have three openings to its den”. In the context of my article, I am suggesting that in order to successfully create an environment in China where enforcement of copyright laws will be successful, it will be necessary to use a multi-faceted approach. The approach the West has used, with spectacularly unsuccessful results, has been to try to get China’s government and society to enforce the rule of law as a means of protecting copyright rights.

My research into Chinese history led me to conclude that this effort fails not simply because the Communist Revolution in China rejected private ownership of copyright, but more importantly that attempting to protect property through a legal structure was an approach that had been rejected over a thousand years ago. The use of law as the foundation for governance failed when the Imperial family and its ministers rejected the doctrine of Legalism in favor of the morality based approach of Confucianism. The use of law to attempt governance in traditional Chinese society is viewed as evidence of a moral failure – and the idea of elevating the needs of the individual over the needs of society as a whole is viewed as vulgar and crass, lacking in any sense of spirituality and moral values.

So the task of creating an environment in China where enforcement of copyright laws will be successful requires more than the legal approach. I suggest that by combining an approach based in economics, coupled with the creation of stakeholders in Chinese society who themselves can benefit from copyright ownership; there is a greater likelihood for developing broad acceptance of copyright’s benefits to the society.

So where does calligraphy fit in? I use the example of contemporary artists in China, some of whose work focuses on a re-envisioning of traditional calligraphy as an art form, as one place where these three approaches are developing more acceptance of copyright and its benefits. Many of these new artists have been able to sell their works, both in China and abroad, for millions of dollars. They are treated like rock stars, with loyal fans and collectors around the world. Their work has not fallen prey to the notorious copyright infringers in China, because their fans protect them, the art community recognizes the economic benefit accruing to them, and the copyright laws protect them as well.

In a bit of serendipitous timing, a contrary example also hit my desk today. The August 22nd issue of The New York Times Magazine features a story by Nicholas Schmidle entitled “Inside the Knockoff Factory”, which profiles the activities of Southern Chinese factories which manufacture millions of fake tennis shoes (primarily Nike), in a community environment that protects the manufacturers and has been impervious to legal efforts to shut them down. Schmidle's article illustrates and supports the point of my article. There are no stakeholders in Chinese society for whom protecting the Nike trademark is an important value. The economics of the knock-off market support this illegal activity, and no one in China is getting wealthy selling legitimate Nike shoes. Therefore, the effort to interdict this activity through the rule of law is doomed to failure.

I conclude my article by noting the difficulty of attempting to chart a prospective course for social change in a society, a difficulty greatly enhanced when the author is not a member of that society – that said, I suggest that the language of the historic proverb gives us a clue to the kind of multi-faceted approach to this problem that may hold out a chance for success. It seems worth trying, given our miserable track record to date, no?

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