One of the most prevalent criticisms leveled against China today is the lack of human rights afforded to its citizens. This is particularly so in the area of civil and political rights, where China’s single-party unitary rule has made political prisoners of pro-democracy activists. Western advocacy groups have applied political pressure to convince the Chinese government to reduce its constraints on the human right of freedom of expression. At the same time, however, the American government has also worked hard through WTO means to toughen China’s intellectual property laws. Is this a conflicting position to take as it pertains to tougher copyright laws? Given the background of copyright law in China, it may very well be.
The nexus between copyright law and the human right of freedom of expression is not hard to see. Michael D. Birnhack puts it this way,
“The basic structure of copyright law – the property right accorded to authors in their original works,[footnote omitted] means that they can exclude anyone form using their works…. When a speaker wishes to ‘use’ another author’s expression as part of his own expression he has to obtain the owner’s permission. It is this very limitation, the essence of copyright law, that creates the tension.”
Western Distinctions Between Copyright and Freedom of Expression
From a Western standpoint, the tension is not so pronounced because there is a general conception that copyright doctrine has sufficient internal mechanisms that safeguard freedom of expression without resorting to human rights instruments.
In Canada, Ysolde Gendreau canvassed (warning: PDF link) the few cases in which the freedom of expression guarantee in the Charter of Rights and Freedoms has interacted with copyright law and concluded that “the Charter argument does not lead anywhere in a copyright analysis.” (at p. 34) The United States Supreme Court also precluded the infringement of copyright onto free speech by opining that “it should not be forgotten that the framers intended copyright itself to be the engine of free expression.” (Harper & Row Publishers v. Nation Enterprises, 471 US 539 (1985) at 558) In a recent case in the United Kingdom (Ashdown v. Telegraph Group Ltd,  E.M.L.R. 44 (CA) at para. 45), the Court of Appeal arrived at a similar general rule – leaving the door open only for “rare circumstances.”
Generally, the mechanisms relied on within copyright law in these jurisdictions are twofold: (1) the distinction between idea and expression, and (2) the fair dealing/ fair use exception. The first argument suggests that the unprotected idea is free to be disseminated without the hindrance of copyright. The second argument suggests that the fair use/ fair dealing provisions sufficiently capture any expression that would fall under a person’s right to freedom of expression.
These rationales make sense for Anglo-American jurisdictions, but they don’t apply in China given the history of Chinese copyright law.
Historical Development of Copyright Law in China
Andrea Wechsler notes that historically, “the concept of having a property in one’s work had no counterpart in China.” (at p.12). In modern history though, attempts to bring in a property-based copyright system started as early as 1910. However, regime instability and political turmoil prevented deployment of the law until the 1980s. Even during the Mao era at the beginning of the Communist regime, ideological differences prevented a fulsome discussion of the policy rationales for copyright law. By the 1990s, China adopted the rationale that there is a close interrelationship between innovation and IP. This rationale served as the driving force for the transplanting of international IP standards into China’s borders.
The evolutionary history of British copyright law differed. Emanating from social dialogue amongst conflicting stakeholders in the publishing industry in early 1710, the laws grew organically out of a societal value and appreciation for the spreading of ideas. Whereas Western nations now have almost 300 years of copyright law acting as a backdrop to their cultural practices, Chinese citizens have at most 30 years.
Thus, Chinese copyright law did not emanate from a coherent cultural and philosophical understanding based in Chinese society. This means that the laws do not share the value system that informs Western copyright law.
Western Distinctions Between Copyright and Freedom of Expression Don’t Work for China
The idea/expression dichotomy is not cogent in China’s context because the very distinction presupposes a value system that is not present in China. The prevention of copyright attaching to ideas is based on a recognition that there is a societal benefit to the free dissemination of ideas. In China, it is the very idea that is embedded within the expression that the Chinese government wants prohibited. As such, this distinction could be misapplied repeatedly to prevent the dissemination of copyright-protected ‘expressions’, so as to have the real net effect of limiting the expression of the idea. In Western countries, the underlying value for freedom of expression would safeguard such an event from happening, but in China, no underlying value acts to prevent such an occurrence.
The fair use exception is also not very cogent for similar reasons. While Western notions of freedom of expression recognize that a core purpose of the right is to facilitate in democratic participation, these values again don’t exist in China. As such, different values inform the use of China’s fair use/dealing expressions. Although Art. 22 of China’s copyright law contain explicit exceptions for private study, comment, or use in news media, it seems unlikely that should copyright be asserted as a means to stop the dissemination of a political work, that these exceptions will be interpreted broadly enough to take into account the impact it has on political speech.
Absent the values that uphold these exceptions, these exceptions are impotent to safeguard the freedom of expression concerns. As such, copyright law can seemingly be easily usurped to achieve an objective that limits the political and civil rights of Chinese citizens.
Copyright Law Cannot Aid Political Expression in China Like It Does in Western Countries
The retort to the position above would be that copyright law provides the proper incentives and economic rewards to sustain a person who is expressing their views. Absent such incentives, it is argued, only those who can afford to spend the extra time doing it would be able to express themselves.
Again, this presumes a society that values freedom of expression. In China, the central government wants to stifle any dissemination of works deemed dangerous to the regime. As such, there is no market for such political works, and copyright can only act as an additional tool for the central government to employ in restricting dissemination.
Given the way in which copyright law was transplanted into China without a fulsome cultural understanding of the values that informed the system, it seems the power of copyright can be easily usurped for means that infringe on political and civil rights. And yet, the United States, through the WTO process, is seeking stronger copyright protection in China.
This seeming inconsistency may not currently be a large issue because of the more explicit means of control available to the Chinese government. However, as political pressure mounts on the human rights front, it is possible that the Chinese government may have to be more covert in their attempts to suppress political speech. If that happens, copyright law may begin to look appealing to the Chinese government as a means of control.