China’s censorship regime ignites curiosity about new or banned products, perpetuating piracy that is at the heart of Sino-US trade frictions.
By Ge Chen*
A Sino-US trade war emerges every few years, and Sino-US trade negotiations have reached a critical juncture yet again. For more than a century, trade talks have coalesced around insufficient protection for US intellectual works in China, including piracy, and this time is no different.
Trade friction between the two nations originated toward the end of Qing Dynasty, China’s last feudal government, and persists today. An underlying factor is the Chinese government’s rigorous censorship of imported cultural products, an irreconcilable challenge to free speech in the United States. Since 1791, the First Amendment of the US Constitution protects free speech. Over the last century, the US Supreme Court has regularly privileged the protection of free speech against other rights and interests, including privacy and national security. This is a judgment value.
The First Amendment is also geared toward ensuring equitable conflict between individual speech and government power. The influential case of New York Times Co. vs. United States in the 1970s clarifies a fundamental judicial principle: The so-called “state secret” may not erode free speech. Floyd Abrams, counsel to the plaintiff in that case, referred to the “anticensorial” spirit as “the soul of the First Amendment” – it forbids banning anyone from criticizing the government.
Based on the same idea, the US Constitution defines copyright as an instrument to “promote Science and useful Arts.” The US Supreme Court used the metaphor “engine of free expression” to manifest the goal of copyright protection: Only if authors receive reasonable remuneration from the free market for their intellectual works can they secure independent status, dignity and free speech. For this reason, publication and circulation of books and audiovisual commodities are not only an integral part of cultural supply and consumption, but also, more significantly, a special trade item encapsulating the spirit and value of free speech in the United States.
By contrast, analysts suggest that copyright assumed its primitive shape in China as early as the 10th century, though this protection was equivalent to censorship. Printing technology emerged at that time, and the government aimed to prevent the free flow of information. The words “unauthorized copies will be prosecuted” pointed to compulsory permission granted by the government rather than by authors. After Western powers forcefully knocked open the closed doors of the Qing government to foreign trade, the “copyright” system guided by government censorship confronted a major challenge from the US trade of copies touting the right of free speech.
In Sino-US trade talks at the end of the 19th century, the Qing government agreed to copyright protection for books from US publishers on the condition that the government would censor politically sensitive content beforehand. The Qing government also agreed to protect the copyright of Japanese publishers, but only if Japan helped ban publications in Japan that might threaten Qing rule. That ban targeted Sun Yatsen, the most notable anti-Qing government leader who had sought refuge in Japan and later became the founding father of the Republic of China.
Although these trade talks yielded some superficial benefits, with the Qing government agreeing to some copyright protection for US publishers, piracy remained an enduring practice. Only during the first three decades of the People’s Republic was rampant piracy constrained, because the Communist government generally forbid import of overseas publications. Moreover, Chinese authors could not acquire any substantial copyright: As members of the “proletariat,” they would be condemned for earning more than others merely by “playing with their pens.” Intellectuals received limited compensation for their “labor,” and government policies suppressed creativity and free speech.
Deng Xiaoping’s opening the economy and the establishment of Sino-US diplomatic relations helped resurrect trade talks. The 1980s witnessed a relatively relaxed policy of spiritual development in China, so that publications from the United States, even pirated works, contributed to the dissemination of free ideas. However, US publishers suffered an inestimable loss from a tremendous unregulated cultural market that emerged. The US government resumed trade negotiations with the Chinese government, and the first step was to revive the conditions used at the end of the Qing Dynasty: The Chinese government must provide legal copyright protection.
China catered to the request after the Tiananmen Democratic Movement. In 1991, China implemented its first copyright code. Still, the prerequisite for intellectual works to obtain copyright protection was to survive government censorship. Many clever authors benefited from this copyright system: Yu Qiuyu, a bestselling author whose itinerary essays were criticized as “cultural lipsticks” for their absence of political topics, became China’s wealthiest writer due to royalties. Still, the desire for information resulted in sustained piracy.
In the 1990s, the United States launched its “trade war” against China with a focus on intellectual property. Both governments produced a list of punitive measures that corresponded to anticipated claims. The Special 301 clause in the US Trade Act turned into an invincible weapon with China eventually signing a memorandum to agree to intensify copyright enforcement and crack down on piracy. However, that turned out to be a ploy for China to win US endorsement of its membership in the World Trade Organization. China soon amended its copyright law to empower the government to crack down on piracy through various campaigns. The goal was, apparently, to censor politically unqualified cultural products, as made clear in government campaigns to “purify the internet” in the name of eradicating pornography and illegal publications.
Most countries manage general tensions between copyright and free speech through the free market: The supply-demand relationship predetermined by prices of cultural products affects authorial and public interests – hence, freedom of speech and freedom of information, respectively. In China, however, the government regulates copyright by censorship to realize its policy goal of controlling free speech. China’s nonmarket approach could undermine the interests of foreign investors and benefit illegal publishers. In 2016, Apple Inc. eliminated New York Times apps to comply with Chinse censorship, although Chinese retailers sold identical or similar products.
Since the US government greenlighted China’s accession to the WTO in 2001, Sino-US trade friction and talks have converged at the debate between free speech and censorship. Former President Bill Clinton warned China against developing its censorship regime in the age of the internet, comparing that task to “nailing Jell-O to the wall.” Nevertheless, China adapted to international trade rules. In the Sino-US IP dispute at the WTO, the Bush administration brought China’s censorship in copyright law into question by challenging its harmful effects on global trade. Eventually, the WTO ran out of bullets: Censorship did not contravene international trade law because the Berne Convention explicitly allows members to ban “harmful publications” that undermine “public order.”
The Obama administration boosted Sino–US trade talks, informed by a debate over values, and freedom of information drafted into the Trans-Pacific Partnership as a fundamental principle. In 2016, a US Trade Representative report outlined China’s Great Firewall as a serious “trade barrier.” Recently, the US-Mexico-Canada Agreement precludes US trade partners from making deals with countries denied “market economy status,” even though the Trump administration withdrew the United States from the TPP. Obviously, the Chinese government’s attempt to strangle free speech through distorted copyright laws provides strong evidence to the US government for accusing China of rendering a nonfree-market environment for Sino-US copyright trade.
Intellectual property protection haunted by piracy in China remains a key problem in the Sino-US trade war. Many governments and businesses consider China’s supposed inability to eradicate piracy unfathomable despite incessant promises for a crackdown. The answer is probably as follows: Censorship is an “engine” that sparks public curiosity and acts as an impetus for publishers to pirate banned works. Such an entrenched system of suffocating the free flow of ideas is bound to buttress the legitimacy of piracy in China and generate conflict with any tangible or intangible products carrying free speech.
*Ge Chen is assistant professor in Chinese Law and co-director of the Centre for Chinese Law and Policies at the Durham Law School. He is the author of Copyright and International Negotiations: An Engine of Free Expression in China? – a monograph published by Cambridge University Press in 2017. The book was featured in Harvard Law Review and presented at Yale Law School’s 2017 Freedom of Expression Scholars Conference under the auspices of the Abrams Travel Fellowship of the YLS Information Society Project. Dr. Chen has held academic and research positions in Oxford, Cambridge and Göttingen, and was a senior legal expert at the Mercator Institute for China Studies. He has advised the Chinese and European governments on a variety of legal projects under the Sino-EU-Dialogue of the State of Rule of Law.