The Yang Obeys, But the Yin Ignores: Copyright Law and Speech Suppression in the People’s Republic of China
29 UCLA Pacific Basin Law Journal 75 (2011)
60 Pages Posted: 1 Feb 2011 Last revised: 8 Aug 2012
Date Written: January 31, 2011
Copyright law can serve to either promote or restrict free speech: while copyright preserves economic incentives to create and publish new expression, it also fences off expression from public use. For this reason, the effect of copyright law on speech in a given country depends on the particular manner in which it is understood, legislated, and enforced.
This Article argues that copyright law in the People’s Republic of China serves as a tool for speech suppression and censorship. Whereas China has engaged in official censorship for thousands of years, there has historically been little appreciation for proprietary rights in art and literature. Just as China’s early twentieth century attempts to recognize copyright overlapped with strict publication controls, the PRC’s modern copyright regime embodies the view that copyright is a mechanism for policing speech and media.
The decade-long debate that preceded the PRC’s first copyright statute was shaped by misunderstanding, politics, ideology, and historical forces. Scholars and lawmakers widely advocated that Chinese copyright law discriminate based on media content and carefully circumscribe authors’ rights. These concerns, intensified by the Tiananmen Square crackdown, bore directly on the content of China’s 1990 Copyright Law. While the Law has evolved over the past two decades (especially in response to the advent of digital technology), a censorship-oriented philosophy has continued to inform its content and interpretation. China’s conflation of copyright protection and speech control is especially egregious at the enforcement stage: government "anti-piracy" efforts double as censorship campaigns, and copyright enforcement is often subjugated to the objectives of China’s media control bureaucracy.
This unhappy reality highlights the need for the United States to revise its approach to Chinese intellectual property reform. Although the U.S. has both pushed for stronger copyright protection in China and criticized PRC censorship practices, it has largely ignored the impact of Chinese copyright law on free speech. U.S. political interests and Chinese society would be better served by a more holistic policy.
Keywords: China, copyright law, intellectual property, free speech, censorship
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