The Case of the Violation of Software in China

Copyright versus ConfuciusBy Pascal S. Lamothe

A T h e s i s s u b m it t e d in f u l f i lm e n t o f th e r e q u ir e m e n t s fo r

T h e U n iv e r s i t y o f N e w S o u th W a l e s M a s t e r o f L a w s - b y r e se a r c h

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Surname or Family name: LAMOTHEFirst name: PASCAL Other name/s: STEPHANEAbbreviation for degree as given in the University calendar: LLMSchool: OF LAW Faculty: OF LAWTitle: THE c a s e o f t h e v i o l a t i o n o f s o f t w a r e i n c h i n a c o p y r i g h t v e r s u s

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This paper examines the development of copyright protection for computer software in China. The goal of this thesis is to deliver a factual, objective presentation of the state of the law in China. However this is a difficult task because of the controversy over the subject, much of which can been seen in the emotionalism of the available analysis coming from both sides. Added to this is the complication and complexity that comes from addressing a western legal concept in a country to where such a notion was foreign and/or discredited. The result is a definition of the problem of software piracy in China at the end of the twentieth century, as China is set to become a new member of the World Trade Organisation and set to influence its future direction.

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1 would like to gratefully acknowledge the assistance given to me in the writing of this paper by my supervisor Dr Kathy Bowrey and my friend Jacqueline Spiceley. I would also like to add a special thanks to my parents for giving me the opportunity to accomplish this.

Abstract:This paper examines the development of copyright protection for computer software in China. The goal of this thesis is to deliver a factual, objective presentation of the state of the law in China. However this is a difficult task because of the controversy over the subject, much of which can been seen in the emotionalism of the available analysis coming from both sides. Added to this is the complication and complexity that comes from addressing a western legal concept in a country to where such a notion was foreign and/or discredited. The result is a definition of the problem of software piracy in China at the end of the twentieth century, as China is set to become a new member of the World Trade Organisation and set to influence its future direction.

ContentsPage 1

Page 3

Page 9

Page 9

Page 29

Page 72

Preface

Introduction

Part One: The International Front [Think Globally, Act Locally]

[1] Fiction and Facts

[a] Rise and fall of the epic of the 'Intrepid Warriors'

[i] To create something out of nothing Exaggerating tales breaks spells Distorting the truth leads to big problems

[ii] In the face of all the pressures, we must compete and not retreat SOS and RescuersYesterday, today, and tomorrow

[b] 'Nulla crimen, nulla poena, sine lege', the American crusade for IPR

[1] Changes in the art of economic warOpen and competitive commerce w ill connect us w ith new customersWhat's the Chinese breach of U.S. software copyright law got to do with it?New tactics for new outragesShort-term economic and electoral interests: The U.S. political arena Formidable '301' as a new weaponry to promote domestic productivity and facilitate international trade

[ii] It's great to have a good piece of paper, it's another thing to see it implementedMobilisation of the 'Intrepid Warriors Round One Round Two Round ThreeResponsibility of the 'Intrepid Warriors'

[2] Verity and verdict

[a] To fight fire with fire: Western impact, Chinese response

Page 94

Page 128

Page 134

Page 153

[i] I don't know anything about economics, but I know a good economy when I see oneOpening up the Policy of OpennessSecond collision between the United States and ChinaIt is imperative to strengthen the socialist legal system

[ii] A favourable legal situation for intellectual property assumes an ever-increasing importance in stimulating economic development China is doing the best that it canOne of the most highly regarded IPR scholars

[b] To every cow its calf, changes in the location of the battlefield

[i] Friends and enemies The U.S. alliesThe historically volatile Sino-American relations on trade

[ii] The deal of the twentieth century The missing linksNot one of its members saw its economy collapse because of entry into the WTOHumble words, increased preparations, and two hits in a row for ChinaWelcome to the club, but is China really ready?

Part Two: The Domestic Front [Looking Back, Looking Ahead]

[1] To do what should not be done, interfering with the concrete lessons of the past or drafting a Chinese Copyright Law

[a] Traduttore, traditore - translator, traitor

[i] A puzzling question: 'Banquan' or 'Zhuzuoquan'A man who has no acquaintance with foreign languages knows nothing of his ownThe most complicated drafting process in China's recent history

[ii] Back to basics: What is the matter?Running the risk of being a-historical: China and royalty Running the risk of being a-typical: China and Berne

[b] : The special problem of computer software

[i] Delineating a scope of inquiryAn uncertain scope of protection: A patent, copyright, or separate legislation

The story of 'moral' and 'economic' rights or the moral to the story

Page 179

Page 186

Page 222

Page 248

Page 249

[ii] What is software piracy?: The legal definition of an offence Software is not an antonym of 'hardware'Piracy is the misappropriation of the tangible expression of an idea

[2] Riding a tiger that is difficult to dismount, creating a history of the present or particular aspects of China's computer protection

[a] : The guardians of copyright

[i] New laws and olds problems: judges and lawyers in China The most outstanding problem: the judiciaryOn the growing corps of litigation tricksters

[ii] Those who use the past to criticise the present should be put to death: Localism and poor education on the difficult road to enforcementA stubborn societal resistance: When judgements are not executed, the law is worth nothingOn the problem of widespread ignorance of the law: China has too much law and too little legality

[b] : A discussion on the revision of the copyright legislation and cautionary tales from 'Dot.com Land': Lessons for the future of the Chinese copyright system in the 21s* century

[i] Revision of the copyright legislation: suiting the medicine to the illnessStronger rights are not always better rights On the 'double standard(s)'[ii] From geographical piracy to cyberspace pirates: An uneasy case for copyrightOn the challenge presented by 'multimedia': the danger of protecting too muchOn the challenge presented by the Internet: the new frontier for 'warez'

Conclusion

Bibliography

Preface:

This thesis is written in an unusual way. Above all, I wanted to make the development of copyright protection for computer software in China understandable, more readable for all. Writing on intellectual property has traditionally been doctrinal in nature, such as the elaboration of dry and/or technical complicated rules. The way people have written about this controversy has also been confusing, mainly because of the passion behind it. Both in approach and attitude to the subject writers have oversimplified the politics and cultural issues at stake in writing about intellectual property protection in China. Contrary to the intentions of other authors, this thesis portrays the development of copyright protection in China as a farce.1The starting point of this thesis is an article written by the American scholar W. P. Alford in the mid-1990s.2 He wrote that the terms of public debate, notably in the United States, concerning the protection of intellectual property in China needed to be recast. According to him, " [t]ales [...] of intrepid trade warriors venturing forth from Washington to vie with, and ultimately rescue Cinderella, Windows 95, and other fair maidens of American commerce from the nefarious, obdurate villains ensconced in their Beijing lairs [might] make for good readings, but they obscure[d] far more than they illuminate[d]".In sympathy with this comment, in this paper the violation of software in China is ironically referred to as a case: 'Copyright' versus 'Confucius'. The two parts of this thesis entail an examination and a determination of issues between these two parties, the first part exploring the cause of 'Copyright11, the second part the case for ’Confucius'. In support of the allegations of Alford, I also draw upon the work of China's scholar Zheng Chengsi throughout this thesis. The participation of the

1 A s s a f a E n d e s h a w , 'M o r e t u r m o i l in U S - C h i n a R e la t i o n s in In t e l le c t u a l P r o p e r t y ', 2 6 ( 3 ) H o n g K o n g L a w J o u rn a l ( 1 9 9 6 ) , at 2 8 3 .

2 W i l l i a m P. A l f o r d , 'M a k i n g th e W o r l d S a fe fo r W h a t ? In t e l le c t u a l P r o p e r t y R ig h t s , H u m a n R ig h t s

a n d F o r e ig n E c o n o m i c P o l i c y in t h e P o s t - E u r o p e a n C o l d W a r W o r l d ', 2 9 In te rn a t io n a l L a w a n d P o lit ic s ( 1 9 9 6 - 1 9 9 7 ) , at 1 3 5 .

Page 1

Australian scholar M. D. Pendleton in this analysis also brings to the hearing the moderate tone that any passionate cause needs. These writers w ill alternatively conduct the case for the defence and for the prosecution in what it appeared to me to be reminiscent of The quarrel of the Ancients and the Moderns'. Consequently, I have chosen the format of annals of war with 'troops' and 'musketeers' fighting for the cause.The complexity and the controversy that surround 'Copyright' versus 'Confucius' also reminded me of the epic story of the 'Battle of the Frogs and Mice'. This thesis is also an allusion to another battle, that is the 'Battle of the Booksellers'.On the one hand, the 'Battle of the Frogs and Mice', or 'Batrachomyomachia'3, is one of the earliest example of parody4, written by an anonymous poet of Ancient Greece, in the sixth or fifth centuries BC. It is a travesty of the epic style of Homer. On the other hand, the 'Battle of the Booksellers' occurred in 1731 when new editions of old works began to be published. Having been published before the enactment of the 1710 Statute of Anne, London booksellers assumed that their rights in these works were based on and derived from the author's common law right in his unpublished work and thereby not limited to the terms of the Statute of Anne.5 The Battle, which was primarily between the London Stationers and the Northern booksellers, was decided against the former by the court, which failed to respect the presumption of rights to "perpetual literary property". The Battle of the Booksellers can also be seen then as a story of a failed attempt to extend copyright law to a new jurisdiction- in this case rights across the United Kingdom.The fact that this thesis uses metaphors to present this subject does not, I think, detract from the seriousness of the issue.

3 F o r m o r e d e t a i l s , s e e The N e w E n c y c lo p a e d ia B r ita n n ic a , M i c r o p a e d i a , 1 5 th e d it io n , v o l . 9 , at

1 6 7 .

4 P a r o d y , in lit e ra tu re , is a f o r m o f s a t ir ic a l c r i t ic i s m o r c o m i c m o c k e r y th a t im it a t e s th e s t y le a n d

m a n n e r o f a p a r t i c u la r w r it e r o r s c h o o l o f w r ite r s to e m p h a s i s e th e w e a k n e s s o f t h e w r i t e r o r th e

o v e r u s e d c o n v e n t i o n s o f th e s c h o o l.

5 F o r m o r e d e t a i l s o f th e 'b a t t le ', s e e A .J .K . R o b in s o n , 'T h e E v o lu t io n o f C o p y r ig h t , 1 4 7 6 - 1 7 7 6 ', 2 2

The C a m b r ia n L a w R e v ie w ( 1 9 9 1 ) , at 6 8 - 6 9 .

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Introduction:"The true conquerors are those w ho know how to make laws.

Their power is stable; the others are torrents w hich pass".

Voltaire1

Most people have forgotten that in the fifteenth century, China was the most advanced area of the world. A hundred years before Europeans began to master America, Asia, and Africa, Chinese people had the biggest and best navy in the world. They discovered the inventions, which paved the way to the conquest of the world for those who put them to use, such as the magnetic compass, gunpowder, or the printing press. However, Europe, not China, became the master of the world. China lost its edge by suppressing entrepreneurs whose economic power posed a threat to the Emperor. The Chinese Empire was made safe from within, but at the price of atrophy in the face of the Western challenge. This condition continued until the end of the 1970s. This thesis tries to put to rest the long-held myth that China is monolithic, unchanging, and perennially cut off from the rest of the world through a discussion of the development of copyright protection for computer software in the nation. This paper discusses the subject through two major themes.First, this thesis is about 'modernisation'. If the ideology of modernisation says convergence, all societies w ill look the same, what it sustains and freezes into

1 V o lt a i r e , 'E s s a i s u r I 'H i s t o i r e G e n e r a le et s u r le s M o e u r s et I 'E s p r i t d e s N a t i o n s ' ( 1 7 5 6 ) , T o m e 1,

C h a p t e r 2 5 , a t 3 9 0 . In 1 7 5 6 , a fte r m a n y a d v e n t u r e s , i n c l u d in g t h e th e ft o f t h e m a n u s c r i p t a n d

p i r a t ic a l p u b l i c a t i o n , o n e o f t h e m a in h i s t o r ic a l w o r k s o f V o l t a i r e (1 6 9 4 - 1 7 7 8 ) , th e 'E s s a i ', o n

w h i c h h e h a d w o r k e d fo r o v e r t w e n t y y e a r s a n d o n w h i c h h e c o n t in u e d to w o r k f o r t h e re st o f h is

life, a p p e a r e d . D i v i d e d in s e v e n v o lu m e s , it w a s th e f irst u n iv e r s a l h i s t o r y in w h i c h a n a t te m p t w a s

m a d e to t rea t t h e d e v e l o p m e n t o f c i v i l i s a t io n a s a w h o le . A l t h o u g h E u r o p e g o t f u l le r c o v e r a g e th a n

a n y o t h e r c o n t in e n t , V o l t a i r e i n c l u d e d c h a p t e r s o n In d ia , t h e M u s l i m w o r ld , a n d A f r i c a . H e

d e v o t e d t w o c h a p t e r s to C h in a . V o l t a i r e w a s u n d o u b t e d l y th e m o s t in f lu e n t ia l o f t h e F r e n c h

p h i l o s o p h e r s a n d h i s t o r i a n s o f h i s d a y . H i s r o le in c r e a t in g p o s i t i v e im a g e o f C h i n a in t h e

e ig h t e e n th c e n t u r y w a s o f th e u t m o s t s ig n i f ic a n c e . T o h im , t h e C h i n e s e c i v i l i s a t io n c o m p a r e d v e r y

f a v o u r a b l y w i t h t h e E u r o p e a n o n e . H e w a s e x t r e m e l y im p r e s s e d b y t h e s e c u l a r n a t u r e o f

C o n f u c i a n i s m , a n d b y th e fa c t th a t th e C h in e s e c l e r g y w a s n o t a l l o w e d to t a k e p a rt in g o v e r n m e n t .

S e e C o l i n M a c k e r r a s , S in o p h ile s a n d S in o p h o b e s - W e s te rn V ie w s o f C h in a , O x f o r d U n i v e r s i t y

P r e s s ( 2 0 0 0 ) , at 3 5 - 3 9 .

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place is the very unevenness or inequality that it is supposed to overcome. They w ill never be like us. They w ill never catch up. Michele Cordaro, the Director of the Central Conservation Institute in Rome, Italy, was astonished when he saw the tomb of Qin Shihuang di, the first emperor of China. In addition to being one of the great sites of the ancient world, the tomb represented a significant leap of civilisation. Ancient Chinese kings had their retinues buried alive so that they would be well attended in the next life. Qin Shihuang di decided that clay statues of his soldiers could meet his needs for eternity. Notwithstanding, nothing prepared Cordaro for what he saw next. His Chinese colleagues took him straight from the ancient tomb to a modern factory where replicas of the terra-cotta soldiers were churned out. "They proudly pointed to the copies, as if to say, 'see, we can still do it'", Cordaro reported.2Because the West confidently protects the idea of copyright that first appeared in eighteenth century England through the 1710 Statute of Anne,3 "[w ]e call [the replicas] fakes, but the Chinese have a different sense of the value of original and copy", Cordaro stressed. He soon realised that he was confronted with attitudes radically at odds with cherished Western ideas of antiquity and originality,4 China, like Japan, and some other Asian nations, has "a tradition of conserving by copying, or rebuilding", he added. This made considerable sense in China where almost every building was build of wood. Westerners, however, erected monuments in stone, hoping that they would last forever.5 These different approaches led to profound cultural divisions. The belief of the West was that China could never catch up with the post-Cold War age in which issues of international trade, and intellectual property law, took centre stage from more

2 A l e x a n d e r S t i l ie , 'L e t t e r F r o m C h i n a - F a k in g it', L X X IV ( 1 6 ) The N e w Y o rke r ( 1 9 9 8 ) , J u n e 1 5 , at

3 6 - 7 .

3 S o m e c o m m e n t a t o r s h a v e n o t b e e n c o n te n t to b e g in t h e h is t o r ic a l a n a l y s i s o f th e d e v e l o p m e n t o f

c o p y r i g h t w i t h t h e B r i t i s h S t a tu te o f A n n e , n o r m a l l y r e g a r d e d a s th e w o r l d 's f irs t c o p y r i g h t act.

R a th e r , t h e y h a v e g o n e b a c k to lo o k at th e s p r e a d o f t h e s y s t e m o f p r in t in g p r iv i le g e s , w h i c h

o r ig in a t e d in V e n i c e in th e la tte r p a rt o f th e f ifte e n th c e n t u r y . T h e s e p r iv i le g e s , d e r iv e d f r o m th e

r o y a l p r e r o g a t iv e , a p p e a r m u c h c l o s e r to th e s y s t e m o f r e g is t r a t io n in Im p e r ia l C h in a , p a r t ic u la r l y

a s t h e y t o o b e c a m e r a p id l y a s s o c i a t e d w it h c e n s o r s h ip . S e e R o b e r t B u r r e l l , 'A C a s e S t u d y in

C u l t u r a l Im p e r i a l i s m : T h e Im p o s i t i o n o f C o p y r i g h t o n C h i n a b y t h e W e s t ', (4 ) P e rsp e c tive s on In te lle c tu a l P ro p e r ty ( 1 9 9 8 ) , at 2 0 1 - 2 0 2 .

4 S e e Sti l ie n o t e 2 su p ra at 3 6 .

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avowedly strategic or ideological concerns.5 6 This was the myth of the West that dominated during the 1990s. This was the American myth at the very end of the twentieth century.The PRC and the U.S. were then presented as becoming the world's major global rivals in the first decades of the twenty-first century. "[A]nd yet, [the two nations] were separated by a divide of historical experience, political doctrine, wealth, legal culture, and arguably, even national aspiration that [wa]s unusually deep when measured against such pairings in the past".7 Under the tug of tradition and the push of capitalism,8 China could never be like the United States. China was still regarded as a country saddled with enormous baggage from its past, moving down the centuries changeless, peaceful, and inert.The United States based its opinion on the fact that to settle a copyright protection, part of a Chinese intellectual property frontier, China had to demarcate, enclose, and curtail the very openness, freedom, and opportunity that facilitated the widespread copying of goods in the first place. Then, self-policing, decentralised, and democratic structures had to be replaced by rule-making and corporate institutions, discomfited by the alleged chaos and disorder of the beginning, to permit maximum use of the store of intellectual property of the society.9 In the 1990s, piracy was not a Chinese phenomenon. The United States also passed through a similar stage of development a century earlier. However, what made the United States think that China could never catch up with the imperatives of globalisation was that the country with one-fifth of the world's population joined the world's trading regime at a time that world trade became the freest it had ever been.10 However, and contrary to the U.S. point of view, on

5 Ib id at 3 7 ,

6 W i l l i a m P. A l f o r d , 'M a k i n g th e W o r l d S a fe fo r W h a t ? In t e l le c t u a l P r o p e r t y R ig h t s , H u m a n R ig h t s

a n d F o r e ig n E c o n o m i c P o l i c y in th e P o s t - E u r o p e a n C o ld W a r W o r l d ', 2 9 In te rn a t io n a l L a w a n d P o li t ic s 0 9 9 6 -9 7 ) , at 1 5 2 .

7 Ib id at 1 5 1 .

8 B e n j a m in G r e g g , 'L a w in C h in a : T h e T u g o f T r a d i t io n , T h e P u s h o f C a p i t a l i s m ', 21 R e v ie w o f C e n tra l a n d East E u rop ea n L a w ( 1 9 9 5 ) , at 6 5 .

9 J o n a th a n O c k o , 'C o p y i n g , C u lt u r e , a n d C o n t r o l : C h in e s e In t e l le c t u a l P r o p e r t y L a w in H is t o r ic a l

C o n t e x t ', 8 Y a le J o u rn a l o f L a w & the H u m a n it ie s ( 1 9 9 6 ) , at 5 7 4 .

10 D o u g l a s C la r k , 'M o r e F a k e s o n t h e W a y a s C h i n a P r e p a r e s to J o in in W o r l d T r a d e ', IP A s ia (2 0 0 0 ) , M a r c h , at 2 4 .

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the verge of becoming the next superpower, China seemed to easily assimilate global politics and the economy of the twenty-first century. From this emerged the perception that the Chinese dragon, asleep for a century or so, had awakened. Modernisation is not an event, but a process, made up of slow or fast moving economic and social cycles. Modernisation became particularly dynamic in China as both technology and innovation were suddenly joined with what some U.S. experts in the 1960s contemptuously called 'ant labour'. Modernisation began in the twilight years of the Qing dynasty and was still far from reaching its conclusion as the nation began its inclusion in the world system. If modern capitalism is a Western invention, the West was not the only one who could master it at the end of the twentieth century. Curiously, capitalism was in many ways more natural to China than it ever was to the West. To modernise, intellectual property law became then the fundamental pipeline for China to obtain knowledge from overseas through technology transfer and to export products. As an important mark in the global market economy, China ensured that its intellectual property laws were followed and that better methods for tackling issues such as infringement were adopted. However, a very few people were certain that this was true.The transition of the Chinese State from a central planning organisation to a more market-oriented economy made it then one of the most interesting test cases of the ability of socio-economic development to tame arbitrary State power through the medium of law, such as intellectual property law. In this context, the evolution of copyright protection in the 'digital age' presents a very interesting focus. The issue of how modernisation could discipline the Leninist State into legal predictability11 raises a number of fascinating questions seen from the point of view of comparative law.And so secondly, this thesis is also about 'comparative law'. Comparative law is primarily a method, but it is also the process of studying the relationships of legal systems and their rules. 'Law' cannot exist without the consideration and analysis of other legal systems. Restricting studies to one legal system may place cognitive

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blinders on legal analysis and reasoning. Learning another system not only increases the quantity of knowledge, but also adds a qualitatively different type of knowledge.11 12 "[W ]e should welcome the opportunity that comparative law gives us for thinking about our own system[,] [...] to make us question our own questions".13 "[T]he law in the Far East is completely different due to the fact that the very value of law itself has traditionally been put into question."14 Because Westerners stopped paying attention to the continuing influence of the socialist theory of law after the Soviet Union collapsed, they did not see the entire picture of legal reform in China.15 Few people maintained that there existed a single true picture of Chinese legal institutions at the end of the 1990s.16 The goal of this thesis is then to deliver a factual, objective presentation of that question: the state of the law in China. The regime of copyright protection in China is a fascinating body of law to analyse through the window of comparative law.A discussion on this subject matter cannot only be limited to the sphere of legal issues. The piracy of software in China is the amalgamation of a number of different factors. Therefore, a multi-disciplinary approach, which encompasses the philosophical, political, diplomatic, economic, social, and historical, is needed to understand the richness of the subject. This discussion examines three consecutive phases in the development of China's copyright protection for computer software. The first phase treats the fight over the adoption of the laws. The second one deals with the application of these new laws. The third one addresses the future evolution of these laws.The body of this thesis is comprised of two parts, but treats of these three phases.

11 K a r e n T u rn e r , C o n t e m p o r a r y S t u d ie s in C h in e s e L e g a l H i s t o r y ', 4 ( 1 ) L e g a l H is to ry , at 1 1 - 1 2 .

12 K a i S c h a d b a c h , 'T h e B e n e f it s o f C o m p a r a t i v e L a w : A C o n t in e n t a l E u r o p e a n V i e w ', 1 6 (2 ) B o s to n U n iv e rs ity In te rn a t io n a l L a w J o u rn a l ( 1 9 9 8 ) , at 3 3 1 - 3 4 4 .

13 D o n a l d C . C la r k e , 'M e t h o d o l o g i e s f o r R e s e a r c h in C h i n e s e L a w ', 3 0 ( 1 ) U n i v e r s i t y o f B r it is h

C o l u m b i a L a w R e v ie w ( 1 9 9 6 ) , at 2 0 8 - 9 .

14 K a i S c h a d b a c h , 'T h e B e n e f it s o f C o m p a r a t i v e L a w : A C o n t in e n t a l E u r o p e a n V i e w ', 1 6 (2 ) B o s to n U n iv e rs ity o f In te rn a tio n a l L a w Jo u rn a l ( 1 9 9 8 ) , at 3.

15 C a r l o s W i n g - H u n g L o , 'S o c i a l i s t L e g a l T h e o r y in D e n g X i a o p i n g 's C h i n a ', 11 (2 ) C o lu m b ia J o u rn a l o f A s ia n L a w ( 1 9 9 7 ) , at 4 7 2 .

1b D o n a l d C . C la r k e , 'M e t h o d o l o g i e s f o r R e s e a r c h in C h i n e s e L a w ', 3 0 ( 1 ) U n iv e rs ity o f B r it is h C o lu m b ia L a w R e v ie w ( 1 9 9 6 ) , at 2 0 6 .

Page 7

It commences by reviewing the escalating conflict between the United States and China in the 1980s-90s over the adoption of a copyright protection for software. This part is called the 'International Front'. The second part then discusses the long struggle within China for the adoption of such a protection during the same period. Part two is named the 'Domestic Front'.

Page 8

Part One:

The International Front

[Think Globally, Act Locally]1

The main aim of this part is to present the piracy of computer software in China from an international point of view. Particularly in the 1990s, authors of varied backgrounds and types wrote about this subject of comparative law. They took up a generally favourable or hostile attitude towards this subject. It has proved very difficu lt for them to remain totally dispassionate or neutral. In some of their writings, even passages that appear to be merely descriptive are likely to choose facts. In illustrating one point of view or another, they are the reflection of some struggle based on the way people see the development of copyright protection for computer software in China. This part tries to deliver a factual, an objective view of the subject. It starts with a metaphor.

[1 ] Fiction and Facts

[a] Rise and fall of the epic of the 'Intrepid Warriors'

"Copyright is the Cinderella1 2 of [intellectual property] law".3 At the end of the

1 F r o m E d w a r d D . M c C u t c h e o n , T h i n k G lo b a l l y , ( E n ) A c t L o c a l l y : P r o m o t in g E f fe c t iv e N a t io n a l

E n v i r o n m e n t a l R e g u la t o r y in f r a s t r u c t u r e s in D e v e l o p in g N a t i o n s ', 3 1 ( 2 ) C o rn e ll In te rn a t io n a l L a w J o u rn a l ( 1 9 9 8 ) , at 3 9 5 .

2 A s " a c h a r a c t e r in m a n y t r a d i t io n a l E u r o p e a n f a i r y t a le s " , C i n d e r e l l a is " a g i r l n e g le c t e d o r

e x p lo i t e d a s a s e r v a n t b y h e r f a m i l y b u t e n a b le d b y a f a i r y g o d m o t h e r to a t te n d a r o y a l b a ll. S h e

m e e t s a n d c a p t i v a t e s P r in c e C h a r m i n g b u t h a s to f le e at m id n ig h t , l e a v in g t h e p r i n c e to id e n t if y

Page 9

twentieth century, her two older sisters, Franchise and Patent, did not intercede to protect her from being violated by fierce pirates under the Red Banner of Confucius,3 4 the Dragon.5 Thus, disturbed by the plight of her favourite godchild, Fairness,6 the fairy godmother, acted swiftly to raise an international armada, which would fly the flag of justice, to avenge the innocent Cinderella. Indeed, so judiciously did she flatter vanity and pride that battalions of "intrepid [...] warriors",7 amongst them journalists, businesspeople, lawyers, students, academics, diplomats, governmental officials, and so forth,8 'enthusiastically'

h e r b y t h e g l a s s s l i p p e r w h i c h s h e le a v e s b e h in d . " J u d y P e a r s a l l a n d B i l l T r u m b le , The O x fo rd E ng lish R e fe re n ce D ic t io n a ry , ( S e c o n d E d it io n ), O x f o r d U n iv e r s i t y P re ss, 1 9 9 6 , at 2 6 3 - 2 6 4 .

3 " C o p y r i g h t i s t h e C in d e r e l l a o f t h e L a w , H e r r ic h o ld e r s is te r s , F r a n c h i s e s a n d P a te n t s , l o n g

c r o w d e d h e r in t o th e c h im n e y - c o r n e r . S u d d e n l y th e fa ir y g o d m o t h e r , in v e n t io n , e n d o w e d h e r w it h

m e c h a n i c a l a n d e le c t r ic a l d e v i c e s a s m a g ic a l a s th e p u m p k in c o a c h a n d th e m ic e f o o t m e n . N o w

s h e w h i r l s t h r o u g h t h e m a d m a z e s o f t h e g l a m o r o u s b a l l . " M a r y L. M i l l s , 'N e w T e c h n o l o g y a n d

t h e L im i t a t io n s o f C o p y r i g h t L a w : A n A r g u m e n t fo r F i n d in g A l t e r n a t iv e s to C o p y r i g h t L e g is la t io n in

a n E ra o f R a p i d T e c h n o lo g i c a l C h a n g e ', 6 5 C h ic a g o K e n t L a w R e v ie w ( 1 9 8 9 ) , a t 3 0 7 .

4 C o n f u c i u s w a s a C h i n e s e p h i l o s o p h e r ( 5 5 1 - 4 7 9 B C ) w h o " s p e n t m u c h o f h i s life a s a m o r a l

t e a c h e r o f a g r o u p o f d i s c ip le s , at f irst w o r k i n g f o r th e g o v e r n m e n t a n d la te r t a k in g u p t h e r o le o f

a n it in e r a n t s a g e . H i s id e a s a b o u t th e im p o r t a n c e o f p r a c t ic a l m o ra l v a lu e s f o r m e d th e b a s i s o f th e

p h i l o s o p h y o f C o n f u c i a n i s m . " T h i s s y s t e m is " o n e o f th e t w o m a jo r C h i n e s e id e o l o g ie s (th e o t h e r

b e in g T a o i s m ) . T h e b a s i c c o n c e p t s a re e t h ic a l o n e s , fo r e x a m p le l o v e fo r o n e 's f e l l o w s a n d f il ia l

p ie t y , a n d t h e id e a l o f th e s u p e r io r m a n ; t r a d it io n a l id e a s s u c h a s y i n a n d y a n g h a v e a l s o b e e n

in c o r p o r a t e d in t o C o n f u c i a n i s m . " S e e n o te 2 sup ra at 3 0 3 .

5 T h e d r a g o n is p r o b a b l y t h e c o m m o n e s t m y s t ic e m b le m in th e a rt o f th e F a r Ea st, a n d t h e m o s t

a n c ie n t . A s a c r e a t u r e w it h a b u l lh e a d , a s n a k e - s h a p e d b o d y , a d e e r h o r n s , a n d f iv e e a g le c l a w s

o n e a c h f o o t ( o r ie n t a l d r a g o n s n o r m a l l y h a v e fo u r), it w a s a d o p t e d a s th e c h ie f im p e r ia l e m b le m in

C h in a . T h e d r a g o n r e p re se n t e d f e r t i l i s in g p o w e r a n d c o s m i c e n e r g y a n d t e n d e d to l iv e in w a te r . In

s p r in g t im e , it m o v e d to h e a v e n a m o n g th e c l o u d s . W h i l e th e d r a g o n h a s b e e n c o n s i d e r e d a

b e n e f ic e n t f i g u r e o f s u p r e m a c y in th e e y e s o f th e C h i n e s e p e o p le , in t h e C h r i s t ia n a rt o f th e W e s t ,

it h a s o f te n b e e n a s y m b o l o f t h re a t a n d d e s t r u c t io n , a s w e l l a s p a g a n i s m , a s i l lu s t r a t e d b y th e

le g e n d o f S t G e o r g e s l a y in g th e d r a g o n . Ib id at 4 2 6 .

6 O n th e o n e h a n d , t h i s t h e s is t r ie s to t a k e i s s u e w it h a n id e a o f f a ir n e s s , r e s p e c t in g a ll p o in t s o f

v i e w o n t h e p i r a c y o f c o p y r i g h t b y C h i n e s e p ir a t e s . T h e im p a r t ia l i t y p r i n c i p l e o r 'F a i r n e s s

D o c t r i n e ', w h i c h is a n e t h ic a l p r in c ip le , im p o s e d o n th e m e d ia in th e U n i t e d S ta te s, r e q u i r e s th e

m e d ia to r e p r e s e n t d iv e r s e p o in t s o f v ie w w h e n t a c k l in g s o c ie t y 's b ig i s s u e s a n d to a l lo c a t e e q u a l

a ir t im e t o t h e p r i n c ip a l o p p o s i n g c a n d id a t e s d u r i n g lo c a l a n d n a t io n a l e le c t io n s . O n t h e o t h e r

h a n d , 'A m e r i c a n c o m p la i n t s a b o u t p i r a c y in C h i n a h a v e [...] b e e n f r a m e d in th e l a n g u a g e o f

j u s t ic e o r f a i r n e s s '. C h i n a 's re fu s a l to p ro te c t f o r e ig n in t e l le c tu a l p r o p e r t y r ig h t s p r o v id e d t a n g ib le

e v i d e n c e o f t h e 'u n f a i r n e s s '. S e e R o b e r t B u r r e l l , 'A C a s e S t u d y in C u l t u r a l Im p e r i a l i s m : T h e

Im p o s i t io n o f C o p y r i g h t o n C h i n a b y t h e W e s t ', 4 In te lle c tu a l P ro p e rty a n d E th ics: P e rsp e c tive s on In te lle c tu a l P ro p e r ty L o n d o n S w e e t a n d M a x w e l l ( 1 9 9 8 ) , at 2 1 2 - 2 1 4 .

7 W i l l i a m P. A l f o r d , 'M a k i n g th e W o r l d S a fe fo r W h a t ? In t e l le c tu a l P r o p e r t y R ig h t s , H u m a n R ig h t s

a n d F o r e ig n E c o n o m i c P o l i c y in th e P o s t - E u r o p e a n C o ld W a r W o r l d ', 2 9 In te rn a t io n a l L a w a n d P o lit ic s ( 1 9 9 6 - 1 9 9 7 ) , at 1 3 5 . S e e a l s o A l a n C . S w a n , '" F a i r n e s s " a n d " R e c i p r o c i t y " in In t e r n a t io n a l

T r a d e S e c t io n 3 0 1 a n d th e R u le o f L a w ', 1 6 (1 ) A r iz o n a J o u rn a l o f In te rn a t io n a l a n d C o m p a ra t iv e L a w ( 1 9 9 9 ) , a t 3 7 .

8 W i t h f e w e x c e p t io n s , a ll w r it e r s o n t h is s u b j e c t w e r e m e n . S o m e o f t h e s e w r it e r s h a v e a c t u a l l y

n e v e r se t f o o t in C h in a . T h e g e n e r a l p ic t u r e p a in t e d o f th e d e v e l o p m e n t o f c o p y r i g h t p r o t e c t io n in

Page 10

joined up. Intuitively, this fleet made up of specialists and/or non-specialists of intellectual property law, cast anchor at the "Yangtze River, the so-called tail of the Chinese dragon".9 It soon became clear to the rest of the world, that the People's Republic of China10 11 was providing a safe haven for the fierce pirates. Thus, left to themselves and "draped in the mantle"11 of jingoistic heroism, the 'intrepid' warriors favoured the pen over the sword by using 'Chinese ink and Western pens'. They waged a written war to track Confucius the Dragon12 and its "nefarious, obdurate villains ensconced in their Beijing lairs"13 to make them "walk the plank".14 Their aim was easy, twofold. On the one hand, the warrior- storytellers would criticise in their written assaults the ineffectuality of China's system of intellectual property laws. On the other hand, they would detail to their readers the shortcomings of such a system.The 'in trep id ' warrior-storytellers were very persuasive in justifying the righteousness of their actions. They were based on contemporary theories on the concept of 'just war' that was "usually rationalised in one of two ways: as the right of the sovereign State to pursue its interests [...] or as a moral duty to correct the specific illegal act of another State".15 In this instance, the latter model prevailed.

C h i n a in t h e p o p u l a r p r e s s a s w e l l a s in th e le g a l l it e ra t u re ( p a r t i c u la r l y in th e le a d in g le g a l

j o u r n a l s ) h a s b e e n s t r a ig h t f o r w a r d . C h i n a w a s " r e n e g i n g o n its in t e r n a t io n a l o b l i g a t io n s o r it d [ id ]

n o t w i s h t o a b id e b y u n iv e r s a l s t a n d a r d s " . In re a lity , t h e se w e r e h o m e - g r o w n A m e r ic a n s t a n d a rd s .

" [ C j o n s e q u e n t l y t h e U .S . h a s j u s t i f ia b ly e x e r t e d th e n e c e s s a r y p r e s s u r e to b r in g it in t o l in e " . F r o m

t h e U . S . p o i n t o f v ie w , C h i n a w a s s im p l y b e in g c o a x e d in t o a c c e p t in g w h a t a re a l r e a d y W T O

s t a n d a rd s . S e e A s s a f a E n d e s h a w , T h e U S - C h i n a In t e l le c tu a l P r o p e r t y D i s p u t e - A n o t h e r V i e w ', 9

A s ia B us iness L a w R e v ie w (1 9 9 5 ) , at 4 9 .

9 J e f f re y W . G r o v e , C h i n a L a w S y m p o s i u m - I n t r o d u c t o r y E s s a y : T r a c k i n g th e D r a g o n ', 6 ( 2 )

In d ia n a In te rn a t io n a l a n d C o m p a ra tiv e L a w R e v ie w ( 1 9 9 6 ) , at 3 2 0 .

10 T h e P e o p l e 's R e p u b l i c o f C h i n a is th e o f f ic ia l n a m e ( s in c e 1 9 4 9 ) o f C h in a , a l s o re fe r re d h e re a s

to P R C o r M a i n l a n d C h in a . C h i n a d e s ig n a t e s t h o s e te r r ito r ie s g o v e r n e d b y th e P e o p le 's R e p u b l i c o f

C h i n a a t t h e e n d o f th e tw e n t ie t h c e n t u r y , a p a r t f r o m H o n g K o n g , M a c a o , a n d T a iw a n . C h i n a is

t h e t h ir d la r g e s t a n d m o s t p o p u l o u s c o u n t r y in th e w o r ld . T h e te rm 'H a n ' is u s e d to d e s c r ib e th e

d o m in a n t e t h n ic g r o u p in C h in a . M a n d a r i n is th e o f f ic ia l la n g u a g e o f th e n a t io n , w h i c h is d i v id e d

in t o t w e n t y - t w o p r o v in c e s , f iv e a u t o n o m o u s r e g io n s ( e s s e n t ia l l y b o r d e r p r o v in c e s la r g e ly p e o p le d

b y n o n - H a n e t h n ic g r o u p s ) , a n d th e c i t ie s o f B e i j in g , S h a n g h a i , a n d T ia n j in , w h i c h a re t re a te d a s

p r o v in c e s d i r e c t ly u n d e r t h e c e n t ra l g o v e r n m e n t .

11 S e e A l f o r d n o t e 7 supra .12 S e e G r o v e n o t e 9 su p ra at 3 1 9 .

13 S e e A l f o r d n o t e 7 sup ra .14 B r ia n M a r k B e r l in e r , 'M a k i n g In t e l le c tu a l P ro p e r t y P ira te s W a l k t h e P la n k : U s i n g 'S p e c i a l 3 0 1 ' to

P ro te c t t h e U n i t e d S t a t e s ' R ig h t s ', 1 2 (3 ) L o y o la o f Los A n g e le s In te rn a t io n a l a n d C o m p a ra t iv e L a w J o u rn a l ( 1 9 9 0 ) , at 7 2 5 .

15 K a r e n T u r n e r , 'W a r , P u n i s h m e n t , a n d th e L a w o f N a t u r e in E a r ly C h i n e s e C o n c e p t s o f th e S ta te '

Page 11

Although the idea of war is, in principle, wrong the warriors justified it as the only means by which they could punish the violators of the innocent Cinderella.16 Their arguments were all the more persuasive since their readers had limited comprehension of abstract notions, such as the administration of intellectual property, specifically in China. Lastly, it was all the easier for the warriors since they were acutely aware that their audiences hungered for tales of good conquering evil and the injured being avenged. Over the years, the warrior- storytellers have thrived on these tales and their audience has come to side with them. The consensus was that 'justice' was expanding to a new territory,17 the Chinese jurisdiction.18

[ i ] To c re a te s o m e th in g o u t o f n o th in g

Exaggerating tales breaks spells

However, to recount "the imposition of copyright on China by the West"19 solely through the prism of the strong assurance that Western models of intellectual property laws were universally applicable was to risk distorting the bigger picture.20 In the warriors' written assaults, it "had been taken for granted not only

5 3 ( 2 ) H a rv a rd J o u rn a l o f A s ia t ic S tud ie s ( 1 9 9 3 ) , at 2 9 6 .

16 Ib id .17 R ig h t s a r e t e r r ito r ia l in n a t u r e a n d e n t it le d to p r o t e c t io n o n l y w h e r e t h e ir p r e s e n c e is m a n ife s te d .

T h e i s s u e in t h e p r e s e n t c o n f l i c t is n o d o u b t fu r th e r c o m p l i c a t e d b y t h e g e o p o l i t i c a l c o n c e r n s o f

t h e p a r t ie s in v o lv e d . S e e E n d e s h a w n o te 8 supra at 5 5 .

18 T h e E u r o p e a n U n i o n , J a p a n , C a n a d a , th e P h i l ip p in e s , a n d A u s t r a l ia c r i t ic i s e d t h e e x p a n s i o n o f

t h e U . S . e x t r a t e r r i t o r ia l j u r i s d i c t i o n . U . S . c o u r t s a d o p t e d 't h e P r i n c i p l e o f R e a s o n a b l e n e s s ',

f o r m u la t in g t h e ir o w n te s ts a n d w e ig h t s to b e a s s ig n e d to e a c h f a c to r in a r r i v in g at a j u r i s d ic t io n a l

c o n c l u s i o n . T h e U n i t e d S t a te s w a s d e n o u n c e d to b e e x p a n d in g th e d e f in it io n o f e x t ra te r r ito r ia lit y .

S e e E l i z a b e t h C h i e n - H a ie , 'A s s e r t i n g U . S . In t e l le c t u a l P r o p e r t y R i g h t s in C h i n a : E x p a n s i o n o f

E x t ra te r r it o r ia l J u r i s d ic t io n ? ', J o u rn a l o f th e C o p y r ig h t S o c ie t y o f th e U . S .A . , at 1 9 8 a n d 2 2 9 .

19 S e e B u r r e l l n o t e 6 sup ra at 1 9 5 . It is m o r e d if f ic u lt to d e f in e th e t e rm 't h e W e s t ' t h a n t h e te rm

'C h i n a '. It i s t o d a y a n e x t r e m e l y la r g e c o n c e p t , e s p e c i a l l y w i t h t h e r i s e o f E u r o p e a n - b a s e d

c i v i l i s a t i o n s in A m e r i c a a n d e l s e w h e r e . It is n o l o n g e r a c o r r e s p o n d e n c e b e t w e e n th e s p a t ia l,

p o l i t ic a l , a n d c u l t u r a l n o t i o n s o f t h e g re a t E u r a s ia n c o n t in e n t a n d i s l a n d s o f f its c o a s t , w h i c h

in i t ia l ly p r o d u c e d 'W e s t e r n ' c u lt u re .

20 I b id a t 2 1 4 . T h i s c a s t s d o u b t o n th e m o r a l i t y o f th e a p p r o a c h o f th e W e s t o n t h is q u e s t io n .

W e s t e r n p o l i c y h a s f a i le d to r e s p e c t th e u n iq u e t r a d i t io n s a n d d i s t in c t i v e p o l i t ic a l c h a r a c t e r o f

C h i n a a s a la r g e d e v e l o p i n g c o u n t r y , it h a s c o n f l i c t e d w it h C h i n a 's r ig h t to e c o n o m i c a n d

t e c h n o l o g i c a l d e v e l o p m e n t a n d h a s la c k e d in te g rity .

Page 12

that [the] system [of the West] was the best and the most sensible one in the world, but that [Westerners] had a right to impose it on anyone"21 they wished. Thus the continuing copyright piracy in China was uncritically adopted by the media, w ith the result being that the People's Republic was caricatured as a freeloading nation that should be forced into adopting laws of intellectual property that meet the world legal standards.22"[T]he arrogance that had [hitherto] gone unnoticed"23 now led the warriors' audiences to become increasingly demanding in their need to be continuously impressed. At the height of the war, they grew weary of the simplistic picture that tirelessly demonised Confucius and its pirates and glorified the courage of the self- proclaimed champions of international justice. The audiences asked for more.In order to continue holding their readers spellbound; the storytellers had only recourse to enticing titles for embellished tales. Shamelessly, the warrior- storytellers would use such boastful titles as "significant progress in two years"24 in which they would "exaggerate the [tales], or even distort the truth, to create something out of nothing".25 Suspicious, the warriors' audiences became less enthralled and conspicuously harder to please. The spell was broken.26 People realised that they had been misled by false descriptions of intellectual property rights developments in China. Audiences began to question the warrior- storytellers as to whether or not "the Chinese pirates [had] affected world trade".27

21 P a u l E d w a r d C e l l e r , 'L e g a l T r a n s p la n t s in In t e r n a t io n a l C o p y r ig h t : S o m e P r o b le m s o f M e t h o d ',

1 3 (1 ) U C L A P a c if ic B as in L a w J o u rn a l ( 1 9 9 4 ) , at 1 9 9 .

22 S e e B u r r e l l n o t e 6 su p ra at 1 9 7 .

23 S e e G e l l e r n o t e 21 sup ra at 1 9 9 .

24 P h i l i p H . L a m , 'C o p y r i g h t P r o t e c t io n o f F o r e ig n C o m p u t e r S o f t w a r e in th e P e o p le 's R e p u b l i c o f

C h i n a : S i g n i f i c a n t P r o g r e s s in T w o Y e a r s ', 1 7 ( 4 ) L o y o la o f Los A n g e le s In te r n a t io n a l a n d C o m p a ra tiv e L a w J o u rn a l ( 1 9 9 5 ) , at 8 6 1 .

25 P a u l C . B . L iu , 'U . S . I n d u s t r y 's In f lu e n c e o n In t e l le c t u a l P r o p e r t y N e g o t i a t i o n s a n d S p e c ia l 3 0 1

A c t i o n s ', 1 3 ( 1 ) U C L A P a c if ic B asin L a w J o u rn a l ( 1 9 9 4 ) , at 9 2 .

26 In c a s t i n g e c o n o m i c c o n s id e r a t io n s , a n d at t h e ir h e a rt , p r o p e r t y r ig h t s , in a c e n t ra l ro le , t h e

w a r r io r s a s s u m e d t h e d e f i n i t i o n s a n d a t t r ib u t e s o f p r o p e r t y r ig h t s a r e u n i f o r m in t e r n a t io n a l l y .

R e s e a r c h o n C h i n e s e le g a l h i s t o r y a n d re c e n t d e v e l o p m e n t s in C h i n a s u g g e s t th a t t h e y c o u ld n o t

r u s h to j u d g e m e n t h e re . S e e W i l l i a m P. A l f o r d , 'H o w T h e o r y D o e s - A n d D o e s N o t - M a t t e r :

A m e r ic a n A p p r o a c h e s to In t e l le c t u a l P r o p e r t y L a w in E a st A s i a ', 1 3 ( 1 ) U C L A P a c if ic B a s in L a w J o u rn a l ( 1 9 9 4 ) , a t 1 7 .

27 A m y E. S im p s o n , 'C o p y r i g h t L a w a n d S o f t w a r e R e g u la t i o n s in t h e P e o p l e 's R e p u b l i c o f C h in a :

H a v e t h e C h i n e s e P i r a t e s A f f e c t e d W o r l d T r a d e ? ', 2 0 ( 3 ) T h e N o r th C a ro l in a J o u rn a l o f In te rn a tio n a l L a w a n d C o m m e rc ia l R e g u la tio n ( 1 9 9 5 ) , at 5 7 5 .

Page 1 3

At this point, it became apparent that China's cohorts under the orders of Confucius had already severely targeted Western intellectual property industries. Foreign manufacturers conservatively estimated that 30% of their products sold in China were fakes.28 When people in the West asked the warrior-storytellers for additional explanations for the failure of China to adopt stringent regime that protects intellectual property rights, the warriors offered the unsatisfactory cry that "you can lead a horse to water, but you can't make it drink".29 In the middle of fighting Confucius the Dragon and its pirates, the 'intrepid' warriors had to publicly recognise that they were "charting unknown territory... There has been sort of confusion at every step".30 When they finally found themselves "up against a Great Wall" in China,31 the news broke that the American software industry was seriously affected. Its staggering losses divulged the economic character of the phenomenon. No one predicted China's pirates would come so far so fast.32In 1992 alone, the International Intellectual Property Alliance (a specialised agency that represents a coalition of software and film makers, music producers, and book publishers) estimated that the American losses33 in intellectual property

28 D e x t e r R o b e r t s , F r e d e r ik B a l f o u r , P a u l M a g n u s s o n , P e te E n g a r d io , J e n n if e r L e e , a n d B u r e a u

R e p o r t s , 'C h i n a 's P ira te s ', B usiness W e e k ( A s ia n E d it io n ), J u n e 5, 2 0 0 0 , at 2 2 .

29 G r e g o r y S. F e d e r , 'E n f o r c e m e n t o f In t e l le c tu a l P r o p e r t y R ig h t s in C h in a : y o u c a n le a d a h o r s e to

w a te r, b u t y o u c a n 't m a k e it d r in k ', 3 7 V irg in in jo u rn a l o f In te rn a tio n a l L a w ( 1 9 9 6 ) , at 2 2 3 .

30 C l a i r e R o b i n s o n , D i s n e y 's v ic e - p r e s id e n t fo r in t e l le c t u a l p r o p e r t y , f o u n d , in r e f e r e n c e to th e

W a l t D i s n e y P r o d u c t i o n v. B e i j i n g P u b l i s h e r & C o . c a s e , th a t m a n o e u v r i n g t h r o u g h t h e C h i n e s e

le g a l s y s t e m c a n b e a n e x e r c i s e in f ru s t ra t io n . S e e G r e g o r y S. K o l t o n , 'C o p y r i g h t L a w a n d th e

P e o p l e 's C o u r t s in t h e P e o p l e 's R e p u b l i c o f C h in a : A R e v ie w a n d C r i t iq u e o f C h i n a 's In t e l le c tu a l

P r o p e r t y C o u r t s ', 1 7 (1 ) U n i v e r s i t y o f P e n n s y l v a n ia J o u r n a l o f In t e r n a t io n a l E c o n o m ic L a w ( 1 9 9 6 ) ,

at 4 4 5 .

31 M i c h a e l Y e h , 'U p A g a in s t a G re a t W a l l : T h e F ig h t A g a in s t In t e l le c tu a l P r o p e r t y P i r a c y in C h in a ',

5 (2 ) M in n e s o ta J o u rn a l o f G lo b a l T rade ( 1 9 9 6 ) , at 5 0 3 .

32 S e e R o b e r t s et a l n o te 2 8 sup ra at 2 2 .

33 O n e d i f f i c u l t y w a s to e s t im a t e th e a m o u n t o f d a m a g e s s u f f e re d . A m e r i c a n b u s i n e s s e s o f te n

c a lc u la t e d l o s s e s b a s e d o n th e lis t p r ic e o f p r o d u c t s , b u t if in f r in g e m e n t w e r e e l im in a t e d , it s e e m e d

u n l i k e l y t h a t t h e C h i n e s e p u b l i c w o u ld p u r c h a s e t h e ite m at fu l l re ta il p r ic e in s te a d . T h e a v e r a g e

C h i n e s e c o n s u m e r p r o b a b l y w o u l d n o t d o so , b e c a u s e h e o r s h e la c k e d th e p u r c h a s i n g p o w e r to

b u y t h e le g it im a t e p r o d u c t . M i c r o s o f t 's M S - D O S s o f t w a re c o s t s U S $ 3 0 0 in C h in a , w h i c h w a s th e

a v e r a g e y e a r l y s a l a r y o f a n u r b a n C h in e s e w o r k e r . T h e U . S . e c o n o m ic m o d e l i g n o r e d t h is la c k o f

p u r c h a s i n g p o w e r , c o n s i d e r i n g o n l y w i l l i n g n e s s to p u r c h a s e . S e e J u n e C o h a n L a z a r , 'P r o t e c t in g

Id e a s a n d Id e a l s : C o p y r i g h t L a w in th e P e o p le 's R e p u b l i c o f C h i n a ', 2 7 ( 4 ) L a w a n d P o l ic y in In te rn a t io n a l B us iness ( 1 9 9 6 ) , at 1 1 9 8 .

Page 1 4

world wide could be as high as US$ 1 2-15 billion, with US$ 5 billion in Asia.34 In addition, another agency devoted to combating software piracy internationally, the Business Software Alliance, revealed that the U.S. software losses due to piracy overseas amounted to US$ 2.2 billion in 1992.35 The sound recording troops (US$ 1 billion), the motion pictures/video troops (US$ 938 million), and the book publishing troops (US$ 485 million) followed in that order.36 In 1991, the year China's Copyright Law took effect, copyright piracy in China resulted in an estimated US$ 225 million in losses to American software firms.37 The intensity of the fighting on Chinese battlefields was principally in keeping with the magnitude of the piracy. As software sales totalled US$ 1 billion in 1996, a 35% jump from 1995,38 the Chinese piracy already cost the U.S. troops an estimated US$ 525 million in 1995, more than twice the amount lost in 1991.39 The United States and its allies were especially rendered vulnerable by the nature of their equipment. Software is susceptible to piracy due to the format in which it is sold as well as the software itself. It revealed a double exposure.40 Effortless and inexpensive to copy, the reproductions are harder to distinguish from originals, unlike other products subject to piracy such as audio and videotapes.41 42 Interestingly, the proliferation of computers43 itself facilitated the copy of the

34 S e e L a m n o te 2 4 s u p ra at 8 6 2 .

35 T h e s e f ig u r e s r e p re se n t th e s a le s o f 1 9 9 2 sa le s , b u t a re b a s e d o n th e d o l l a r o f 1 9 9 0 .

36 S e e L iu n o t e 2 5 s u p ra at 9 1 .

37 F o n d a Y . D u v a n e l , T h e E v o lu t io n a n d E n f o r c e m e n t o f C o m p u t e r S o f t w a r e C o p y r i g h t in th e

P e o p le 's R e p u b l i c o f C h in a ', 1 6 (3 ) N e w Y ork L a w S c h o o l J o u rn a l o f In te rn a t io n a l a n d C o m p a ra tiv e L a w ( 1 9 9 6 ) , a t 3 3 7 .

38 C a t h e r i n e G e lb , [ S p e c ia l R e p o r t ] ' I n s t a l l i n g a S o f t w a r e S e c t o r ', T he C h in a B us ine ss R e v ie w ( 1 9 9 7 ) , S e p t . -O c t . , at 2 8 .

39 S e e D u v a n e l n o t e 3 7 sup ra at 3 3 7 .

40 R a y m o n d D . B la c k , 'C o m p u t e r P i r a c y in A s ia ', C o m p u te rs & S o ftw a re , 3 ( 1 ) B a k e r & M c K e n z i e

( 1 9 8 7 ) , at 8 / 8 7 .

41 V a l e r i e C o l b o u r n , In te lle c tu a l P ro p e rty P ro te c tio n in C h in a - P ra c t ic a l S tra teg ies, A s i a L a w &

P r a c t ic e ( 1 9 9 6 ) , at 1 2 9 .

42 In t h e 1 9 9 0 s , m o r e t h a n 1 0 0 , 0 0 0 c o m p u t e r s w e r e s o l d e a c h y e a r . S e e H e n r y H o n g L iu ,

'L e g i s l a t i v e U p d a t e - L e g a l A s p e c t s o f S o f t w a r e P r o t e c t io n in C h i n a : T h e C o m p u t e r S o f t w a r e

P r o t e c t io n R e g u la t i o n s ', 9 C o m p u te r & H ig h T e c h n o lo g y L a w J o u rn a l ( 1 9 9 3 ) , a t 4 9 1 . T h e g r o w t h

o f t h e h a r d w a r e in d u s t r y in C h in a b e c a m e a w o r ld w id e s u c c e s s s to ry . W i t h a n n u a l g r o w t h in P C

s a le s o f 4 0 % f r o m 1 9 9 5 to 2 0 0 0 , C h i n a w a s se e n a s th e s ta r o f th e A s i a n r e g io n a n d o n e o f th e

b r ig h t l i g h t s a r o u n d th e w o r ld . In t e r n a t io n a l D a t a C o r p . p r e d ic t e d th a t t h e C h i n e s e m a r k e t w o u l d

g r o w 2 9 % a y e a r t h r o u g h 2 0 0 2 , w h e n P C s a le s w o u l d r e a c h 11 m i l l i o n . S e e T o m R o b e r t s o n ,

'S t e p s T o w a r d a S t r o n g e r S o f t w a re In d u s t r y in C h in a ', 62(3) C h in a P atents & T ra d e m a rks ( 2 0 0 0 ) , at

5 5 .

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programs it was designed to run.43 To pirate one typical program, the user had to transfer the program from a storage device, such as a floppy disk, to another. In this way, in the 1990s, it was almost impossible to prevent small-scale illegal copying due to inexpensive floppy discs and the inability to monitor copying in places,44 such as the home or office.45As China began to equip herself technologically, she turned her attention to software. In no time, pirated software began to spread throughout the territory "like a pestilence".46 The country started looking to pirated computer programs as the necessary instrument to propel its economic development with little or no cost. Protecting copyright did not serve any economic benefits to China in the short term.47 A confluence of factors was behind the Chinese software piracy rise.48 49 The spread of advanced production technology (be it affordable colour­copying machines, entire production lines supplied by veteran pirates from Taiwan, or know-how stolen from multinationals that have been required by China to transfer technology to local partners) gave the pirates the ability to make near perfect replica software.40In the 1980s, there were no pirated products on sale in China50 as the economy

43 E. B r e n d a n M a g r a b , 'C o m p u t e r S o f t w a r e P r o t e c t io n in E u r o p e a n d t h e E C P a r l i a m e n t a r y

D i r e c t i v e o n C o p y r i g h t f o r C o m p u t e r S o f t w a r e ', 23(3) L a w a n d P o lic y in In te rn a t io n a l B us iness ( 1 9 9 2 ) , at 7 1 1 .

44 Ib id .

45 In C h in a , if o n e p e r s o n w a s b r i n g in g a c o p y o f W i n d o w s to t h e o f f ic e , it w a s e x p e c t e d th a t t h e y

s h a r e d th a t c o p y w it h t h e ir c o l le a g u e s , a s a m a t te r o f c o u r t e s y . S e e T a n L a k e K h o o n , 'R e c e n t

D e v e l o p m e n t s in H o n g K o n g & C h in a : T h e N e w C o p y r i g h t O r d i n a n c e in H o n g K o n g a n d R e c e n t

C h a n g e s to C h i n e s e C o p y r ig h t L a w ', 1 6 (2 ) C o p y r ig h t R e p o r t e r ( 1 9 9 8 ) , at 1 0 0 .

46 C a r m e n V a n K e r c k h o v e , 'C o p y r i g h t V i o l a t i o n s S p r e a d in g L ik e P l a g u e ', S o u th C h in a M o rn in g Post, 2 4 J u ly 1 9 9 8 , at 1.

47 T h e r e w a s a c o n f l i c t b e t w e e n th e W e s t 's d e m a n d th a t C h i n a m u s t i n t r o d u c e s t r o n g in t e l le c tu a l

p r o p e r t y p r o t e c t io n a n d th e C h i n e s e d e s i r e fo r e c o n o m ic a n d t e c h n o l o g i c a l d e v e lo p m e n t , in tha t

C h i n a c o u l d a t t e m p t to c l o s e t h e g a p b e t w e e n it s e l f a n d t h e d e v e l o p e d w o r l d t h r o u g h th e

u n r e s t r i c t e d c o p y i n g o f f o r e ig n t e c h n o l o g y . T h e r e w a s a c o n c e r n in C h i n a t h a t c o p y r i g h t

p r o t e c t io n m ig h t h i n d e r e c o n o m i c d e v e lo p m e n t , e it h e r b y r e s t r ic t in g a c c e s s to m a t e r ia l s o r b y

c r e a t in g a t r a d e i m b a l a n c e w it h t h e d e v e l o p e d w o r ld . T h i s w a s c o m b i n e d w it h a f e a r th a t

A m e r ic a n c o r p o r a t i o n s w o u l d b e a b le to u s e n e w ly a c q u i r e d r ig h t s to g a in c o n t r o l o f e m e r g in g

m a r k e t s in C h i n a , p a r t i c u la r l y a s r e g a r d s th e m a rk e t fo r c o m p u t e r s o f tw a re . S e e B u r r e l l n o te 6

sup ra a t 1 9 8 a n d 2 0 8 .

48 S o m e c o m m e n t a t o r s h a v e t r ie d to p re s e n t a r ig h t to in t e l le c t u a l p r o p e r t y a s a n in a l i e n a b le

h u m a n r ig h t . F o r a d i s c u s s i o n o n t h is su b je c t , s e e B u r re l l n o te 6 su p ra at 2 0 9 - 2 1 1 .

49 S e e R o b e r t s et a l n o te 2 8 sup ra at 2 2 - 2 3 .

50 N e a r l y a l l t h e p r o d u c t s o f v a r i o u s e n t e rp r is e s w e r e s o ld e x c l u s i v e l y b y th e S tate . T h e r e w a s n o

c o m p e t i t i o n a n d n o o n e in C h i n a c o u l d m a k e a c l e a r d i s t i n c t i o n b e t w e e n f a i r a n d u n f a i r

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remained almost entirely State-planned. Production and sale of products were tightly controlled. In the early 1990s, the production, domestic sale, and export of illegal products dramatically increased, but the quality of the copies was poor, often with misspelling or poor finishing. In the mid 1990s, pirates improved the quality of the copies, making them more difficult to identify genuine from fake products or purposefully produced similar products, which were not 'dead copies' (designed to look like famous items to avoid fines). At the end of the 1990s, a large market developed for look-alike' goods.* 51Chinese pirates increasingly had a better-trained skill base to call upon and made greater use of sophisticated machinery. Some of them had even been trained overseas or in some foreign enterprises in China.The time-consuming research, testing, and development, often costing as much as US$ 30-100 m illion meant that original versions of software were priced at around US$ 2-300. Able to purchase pirated programs on the black market (on street corners or shops)52 for just US$ 2, Chinese people devilishly dubbed these as "Patriotic Software",53 considering such acts to be beneficial to China's economic growth. After all, " [t]o screw foreigners is patriotic"54 in China.55

c o m p e t i t io n . T h u s , a fte r t h e c o u n t r y o p e n e d to th e w o r ld , m a n y C h i n e s e e n t e r p r is e s d id n o t s e e

a n y t h i n g w r o n g in im it a t in g o r c o u n t e r f e i t in g th e p r o d u c t s o f o t h e r s . S e e J o s h u a R . F lo u m ,

'C o u n t e r f e i t i n g in t h e P e o p l e 's R e p u b l i c o f C h in a - T h e P e r s p e c t iv e o f t h e " F o r e i g n " In t e l le c tu a l

P r o p e r t y H o ld e r ', 2 8 ( 5 ) J o u rn a l o f W o r ld Trade ( 1 9 9 4 ) , at 5 0 .

51 D o u g l a s C la r k , 'M o r e F a k e s o n th e W a y a s C h i n a P r e p a r e s to J o in in W o r l d T r a d e ', IP A s ia , M a r c h 2 0 0 0 , a t 2 0 - 2 1 .

52 'Y o u l ik e C D ? ' A m a n s a id u n d e r h i s b re a th in B e i j i n g 's S i l k A l le y . 'C D - R O M ? ' 'W a i t h e r e ', t h e

C D - R O M m a n s a id . It w a s im p o s s ib le to se e w h e r e h e w e n t f r o m 'h e r e '. In a b o u t 2 0 s e c o n d s , h e

r e t u r n e d w i t h a w h i t e p la s t ic b a g . T h e b a g m ig h t h a v e h e ld 1 5 0 C D - R O M s w it h s o m e o f t h e v e r y

la te st p r o g r a m s r e t a i l in g fo r u p to U S $ 5 0 0 a p ie c e in t h e U n i t e d S ta te s . H e g r a b b e d a p i le th a t

i n c l u d e d w h a t h e c l a im e d w a s W i n d o w s 9 7 (a p r o g r a m n o t y e t o u t in le g it im a t e s to re s ). H e k e p t

c h i r p in g , 'la t e s t v e r s io n , la te st v e r s i o n '. 'H o w m u c h ? ' 'F o r t y y u a n ', h e s a id , o r a b o u t U S $ 5 . T h i s

a n e c d o t e re la te s a j o u r n a l i s t 's e x p e r ie n c e in B e i j in g in J u n e 1 9 9 7 . S e e P e g g y Y e h , 'Y o , H o , H o a n d

a C D - R O M : T h e C u r r e n t S ta te o f S o f t w a r e P i r a c y in t h e P R C ', 3 1 ( 1 ) L a w a n d P o l ic y in In te rn a t io n a l B usiness ( 1 9 9 9 ) , at 1 7 3 .

53 J a m e s C o x , 'U . S . F irm s : P i r a c y T h r iv e s in C h in a ', USA Today, 2 3 A u g u s t 1 9 9 5 , at 2 b .

54 G e r e m ie B a r n e , 'T o S c r e w F o r e ig n e r s is P a tr io t ic : C h i n a 's A v a n t - G a r d e N a t i o n a l i s t s ', 3 4 C h ina J o u rn a l ( 1 9 9 5 ) , a t 2 1 3 .

55 In C h i n a , t h e r e w a s s t r o n g s e n t im e n t th a t " t h e w o r l d [th a t is, t h e W e s t ] o w e [ d ] C h i n a

s o m e t h i n g " f o r p a s t h u m i l ia t io n s . S c h o l a r s s a w c la s h e s s u c h a s th e o n e o v e r in t e l le c t u a l p r o p e r t y

n o t a s c u l t u r a l , b u t a s e c o n o m ic c o n f l ic t s . T h u s , in t e l le c t u a l p r o p e r t y p ir a t e s k n e w fu ll w e l l th a t

t h e ir c o n d u c t w a s i l le g a l, b u t s o m e C h in e s e ju s t if ie d a p p r o p r ia t in g A m e r ic a n in t e l le c t u a l p r o p e r t y

a s a n a c t o f s e l f - d e f e n c e a g a in s t e c o n o m ic im p e r ia l i s m . S e e J o n a t h a n O c k o , 'C o p y i n g , C u lt u r e ,

a n d C o n t r o l : C h i n e s e In t e l le c tu a l P r o p e r t y L a w in H i s t o r i c a l C o n t e x t ', 8 Y a le J o u rn a l o f L a w & th e

Page 1 7

Distorting the truth leads to big problems

When the Software Publishers Association, another industry trade group representing the software publishers of the United States, disclosed further news revealing that China had one of the highest software piracy rates in Asia (98%),56 the fighting spirit of Confucius and its fierce pirates became a big problem. However, when the China Software Industry Association revealed that the United States controlled about 95% of China's computer market for operating systems,57 the problem was transformed into an American one. As it was estimated that each legal computer program sold w ithin the Chinese territory was capable of generating at least one hundred pirate copies,58 the problem became extremely "persistent"59 for the United States, mainiy due to the great size and population of China. Consequently, the People's Republic of China came to be seen as the "epicentre"60 of the piracy of software internationally.61This unjust enrichment came at the expense of both the American economy and industry. Arguably, it threatened the very survival of the U.S manufacturing sector.62 Hence, to the United States, China's piracy was "not just a problem, it [was] a fundamentally ingrained part of China's economic plan".63 Likewise, what was called in U.S. circles "the rampant plague" had to be rapidly brought under strict U.S. control.64 As a response, the Software Publishers Association sarcastically referred to China as the "One-copy Country" because the agency

H u m a n it ie s ( 1 9 9 6 ) , a t 5 7 5 .

56 S e e C o l b o u r n n o t e 41 sup ra at 1 2 9 .

57 S e e C e l b n o t e 3 8 su p ra at 2 8 .

58 S e e D u v a n e l n o te 3 7 sup ra at 3 3 8 .

59 R a fa e l A . D e c let, Jr., 'P r o t e c t in g A m e r ic a n In te l le c tu a l P r o p e r t y in C h in a : T h e P e r s is t e n t P r o b le m

o f S o f t w a r e P i r a c y ', 1 0 (2 ) N e w Y o rk In te rn a tio n a l L a w R e v ie w 9 9 7 ) , at 5 7 .

60 Ib id at 5 8 .

61 T h e p e r p l e x in g s i t u a t io n th a t C h i n a f o u n d itse lf in (tha t it d id n o t w a n t o r c o u ld e n f o r c e its IP

l a w s to t h e s a t i s f a c t io n o f th e U .S . a n d o t h e r in d u s t r ia l p o w e r s ) w o u l d b e l ik e ly to p e r s is t fo r a lo n g

t im e . S e e E n d e s h a w n o te 8 sup ra at 4 9 .

62 S e e L iu n o t e 2 5 s u p ra at 9 0 .

63 K e n n e t h H o , " A S t u d y in t o t h e P r o b le m o f S o f t w a r e P i r a c y in H o n g K o n g a n d C h i n a ', at

h t t p :/ / w w w .h o u s t o n . c o m .h k / h k g ip d / p ir a c y .h t m l (p a g e 8),

64 D u r i n g th e 1 9 9 0 s , C h i n a h a s g r o w n f r o m ju st a p r o m i s i n g m a r k e t to a c r it ic a l o n e . S e e Y e h n o te

31 sup ra at 5 1 9 .

Page 1 8

was aware that "virtually a single legitimate copy of software could satisfy the entire country's demand".65The real irony, or perhaps tragedy, of the situation was the driving of the most ferocious of the pirates under the discreet protection of the Chinese authorities. For example, when the University of Shenzhen decided to make some 650,000 holograms identical to those used on Microsoft packaging to simulate product authenticity; it cost the U.S. troops US$ 30 million in losses.66 The ultimate irony was to hear the CEO of the biggest IT player in China, Microsoft, declaring that if the simplified version of Windows 95, had captured a large share of the Chinese market; he could attribute this coup to the pirates.67 China's endless demand for software was being met by the pirates who flooded the market with pirated software, and at the same time forced the competition out. Reportedly surging out of China and into markets as far away as Canada, Latin America and ironically the United States,68 69 the advance of the pirates created a wave of panic that swept behind the lines, especially among the population of the United States. The illegal factories, such as the ones in Guangdong or Fujian provinces in China were suspected of having already exported about 70 million counterfeit goods to the American continent.66 Fakes were trucked from village to village to central distribution centres, or sneaked over China's porous borders into Russia, Pakistan, Vietnam, or Burma to be loaded into ocean going cargo ships bound the Port of Los Angeles,70 where U.S. customs officers examined perhaps 2% of everything that entered the country.71 It was not uncommon for people from places, such as America or Canada, to go to Hong Kong for the purchase of

' cheap counterfeit computer software, which were pirated of mostly U.S,

65 G e o f f r e y T . W i l l a r d , T h e P r o t e c t io n o f C o m p u t e r S o f t w a r e in th e P e o p l e 's R e p u b l i c o f C h in a :

C u r r e n t L a w & C a s e D e v e l o p m e n t s in th e " O n e - C o p y " C o u n t r y ', 1 4 jo u r n a l o f C o m p u te r & In fo rm a t io n L a w ( 1 9 9 6 ) , at 6 9 5 .

66 K r i s t ie M . K a c h u r i a k , 'C h i n e s e C o p y r i g h t P i r a c y : A n a l y s i s o f th e P r o b le m a n d S u g g e s t i o n s fo r

P r o t e c t io n o f U . S . C o p y r i g h t s ', 1 3 D ic k in s o n J o u rn a l o f In te rn a tio n a l L a w ( 1 9 9 5 ) , at 5 9 9 .

67 S e e G e l b n o t e 3 8 su p ra at 2 8 - 2 9 .

68 S e e W i l l a r d n o t e 6 5 sup ra at 6 9 6 .

69 A n g e l a M i a B e a m , 'P i r a c y o f A m e r ic a n In t e l le c tu a l P r o p e r t y in C h i n a ', 4 J o u rn a l o f In te rn a tio n a l L a w a n d P ra c tic e ( 1 9 9 5 ) , at 3 5 5 .

70 S e e R o b e r t s n o t e 2 8 sup ra at 2 3 .

71 Ib id at 2 4 .

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products.72Despite being initially condemned to failure or at best mediocrity/3 in the mid- 1990s, the American software industry already accounted for more than 0.5% of the 'Gross National Product' (GNP). The promising domestic market for packaged software was projected to grow to US$ 75 billion to 1 trillion by the year 2000, and had already surpassed US$ 40 billion when China's pirates began to pose a threat.74On the other hand, the flourishing software industry controlled almost 75% of the world's market for packaged software.75 76 Hence, the industry was looked on as the advance guard of the United States, the world's leading exporter of advanced technology leading a large-scale information-based economic assault. In the United States, where one third of the economic growth depends on exportation, foreign licensing revenues are highly lucrative. More importantly, these are vital to the overall success of U.S. software firms because they represented additional revenue, potential market-share growth, and opportunities to infiltrate untapped markets. In the 1990s, the U.S. software industry had already captured more than 50% of the world market for software and related services. The United States effectively dominated the globe.70Generally, the struggle over the adoption of intellectual property Saws in China owned its exceptional character to an explosive mixture of U.S. economics and politics.When U.S. politicians acknowledged how widely Chinese piracy had spread, the turmoil in which they found themselves grew even more acute. "[S]uch piracy adversely affects our balance of trade, our GNP and our standard of living",77 U.S. senators hurled. It was passionately claimed that exports accounted for one in

72 S e e H o n o t e 6 3 sup ra at 9.

73 It w a s n o t u n t i l 1 9 7 2 t h a t t h e U . S . a u t h o r i t ie s i n t r o d u c e d a s e p a r a t e S t a n d a r d In d u s t r ia l

C l a s s i f i c a t i o n c o d e a p p l i e d to s o f tw a re . P e te r C . S c h r e ih e r , 'I n t e r n a t i o n a l T r a d e in C o m p u t e r

S o f t w a r e ', 6 ( 2 ) The T ra n s n a tio n a l L a w y e r ( 1 9 9 3 ) , at 6 0 3 .

74 S e e D e c le t n o t e 5 9 sup ra at 5 9 .

75 D r . M a r y L o w e G o o d , 'T e c h n o l o g y a n d T r a d e ', 2 7 ( 4 ) L a w a n d P o lic y in In te rn a t io n a l Business ( 1 9 9 6 ) , at 8 5 3 .

76 S e e S c h r e ib e r n o te 7 3 sup ra at 6 0 4 .

77 S e e L a m n o t e 2 4 sup ra at 8 6 2 .

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every ten jobs in the United States. To date, every one billion dollars worth of goods sold overseas sustains about 14,000 jobs that on average attract a wage 15% higher than the national average wage.78The 'U.S. Trade Representative' (or USTR) evoked that the security of the U.S. economy was tantamount to its national security.79 Prosperity, which is the essence of the U.S. dream, was profoundly injured. The USTR and its administration demonstrated that the 'theft' of American intellectual property by China was profoundly unfair,80 pointing out in particular that the 'intrepid' warrior-storytellers still had several "promises to keep".81 82 As the warrior- storytellers were reminded, " ft]he aggressor is [always] responsible for all the consequences of the fighting he begins".8J

[ i i ] In th e face o f a l l th e pressures, w e m u s t c o m p e te a n d n o t re tre a t83

SOS and Rescuers

After having publicly recognised that they were 'up against a Great W all' in China, the warrior-storytellers seemed to have resigned themselves to failure. Entrenched in their positions, they sent out SOS signals (Save Our Software).84 Inadequately trained and incapable of saving lives, they were thrown into despair when the U.S. International Trade Commission (U.S.l.T.C.) estimated that the pirating of U.S. intellectual property rights overseas cost the nation more than133,000 jobs annually.85 Based on statistics estimating that the national rate of

78 S e e G o o d n o t e 7 5 sup ra at 8 5 3 .

79 H o n . M i c h a e l K a n to r , 'U . S . T r a d e P o l i c y in T r a n s it io n : G l o b a l i s a t i o n in a N e w A g e ', 2 5 ( 4 ) L a w a n d P o lic y in In te rn a tio n a l Business ( 1 9 9 4 ) , at 1 2 2 7 .

80 S e e B u r r e l l n o t e 6 sup ra at 2 1 4 .

81 M a r k E. W o j c i k a n d M i c h a e l J. O s t y , 'P r o m i s e s to K e e p : A m e r i c a n V i e w s o f D e v e l o p m e n t s in

C h in e s e C o p y r i g h t L a w ', 4 (2 ) S o f t w a r e L a w J o u r n a l ( 1 9 9 3 ) , at 2 7 3 .

82 S e e T u r n e r n o t e 1 5 sup ra at 2 9 7 .

83 S e e K a n t o r n o t e 7 9 sup ra at 1 2 3 5 .

84 J u l ia C h e n g , 'C h i n a 's C o p y r i g h t S y s t e m : R i s in g to th e S p ir i t o f T r ip s R e q u i r e s a n In t e r n a l F o c u s

a n d W T O M e m b e r s h i p ', 2 1 (5 ) F o r d h a m I n te r n a t io n a l L a w J o u r n a l ( 1 9 9 8 ) , at 1 9 8 1 .

85 W i l l i a m P. A l f o r d , 'D o n 't S t o p T h i n k i n g A b o u t . . . Y e s t e r d a y - W h y T h e r e w a s N o I n d i g e n o u s

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employment in the US was growing by 2.5% per annum, with the software sector enjoying a growth rate of 13%, it was calculated that as many as 500,000 jobs were being jeopardised by the piracy.86In that murky chapter of the war, it seemed as if the cause would be lost forever unless heroes made an entrance. When several warrior-storytelling commanders courageously broke from the ranks, acknowledging the clumsiness of their earlier tactical manoeuvres, the public gradually stopped sulking.As it has been said, "[b]ravery without righteousness harms a military campaign just as benevolence without lawfulness harms justice. Military defeat can spring from lack of righteousness just as transgression of the law can spring from a lack of justice".87At the sight of the first musketeers, people who were not in a forgiving mood, however, applauded. It was hoped that their legendary impertinence would help boost the morale of the troops and that of the home fronts."Do as I say, not as I d id"88 can be taken as Michael Pendleton's first warning in this war against piracy.89 When the Australian musketeer first embraced the cause, he also surely shared the evangelical zeal of his colleagues. However, after having spent some ten years in the trenches of Hong Kong where he had committed himself to both teach and practise intellectual property, and had written extensively on international intellectual property, he had good reason to reconsider the sagacity of the tactics his comrades-in-misfortune."Perhaps [ironical], but may be [cynical]",90 his new approach simply comprises a series of disavowals, paradoxes, and controversies. The foundation stone is China;

C o u n t e r p a r t t o In t e l le c t u a l P ro p e r t y L a w in Im p e r ia l C h i n a ', 7 (1 ) J o u rn a l o f C h in e se L a w ( 1 9 9 3 ) , at

5 .

86 'T h e N e w E c o n o m y - W o r k in P r o g r e s s ', 3 5 2 ( 8 1 2 9 ) The N e w E co n o m is t, 2 4 J u ly 1 9 9 9 , at 19 .

87 W . A l l y n R ic k e t t , G u a n z i: P o lit ic a l, E c o n o m ic , a n d P h ilo s o p h ic a l Essays fro m E a r ly C h in a , P r in c e t o n , P r in c e t o n U n iv e r s i t y P re ss, 1 9 8 5 , at 2 6 1 .

88 D r u B r e n n e r - B e c k , " D o A s I S a y , N o t A s I D i d ', 1 1 (2 ) U C L A P a c if ic B as in L a w J o u rn a l ( 1 9 9 2 ) , at

8 4 .

89 In t h e 1 9 9 0 s , M i c h a e l D . P e n d le t o n w a s p r o fe s s o r o f l a w a n d d e p u t y d ir e c t o r o f th e A s i a P a c if ic

In t e l le c t u a l P r o p e r t y L a w In s t itu te at M u r d o c h U n iv e r s i t y , P e rth , in W e s t e r n A u s t r a l ia . H e w a s a ls o

v i s i t in g p r o f e s s o r at th e U n iv e r s i t y o f H o n g K o n g .

90 M i c h a e l D . P e n d le t o n , 'C h i n e s e In t e l le c t u a l P r o p e r t y - S o m e G l o b a l Im p l i c a t i o n s f o r L e g a l

C u l t u r e a n d N a t io n a l S o v e r e ig n t y ', 1 5 (4 ) E uropean In te lle c tu a l P ro p e rty R e v ie w ( 1 9 9 3 ) , at 1 2 0 .

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"possibly the most different jurisdiction one can encounter".91 Pendleton's arguments would grow to echo what other commanders had noticed two and half centuries earlier, when they returned victorious from hit-and-run attacks in China. "[A]s either the vanquisher or the vanquished must change, in China it has always had to be the vanquisher!.] [F]or, as the mores of the vanquishers are not their manners, nor their manners, their laws, nor their laws, their religion, it has been easier for the vanquishers to bend slowly to the vanquished people than for the vanquished people to bend to the vanquishers".92 Thanks to the musketeers, the warriors began to invoke the real reasons why their forays into the Chinese legal landscape had failed. There had been a failure to appreciate, except retrospectively, the paradoxes of Mainland China.

Yesterday, today, and tomorrow

Entrenched in their positions, the 'intrepid' warriors ended up reawakening old Chinese demons93 94 95 that kept coming back, lugubriously repeating "[d jon 't stop thinking about... yesterday". '4China's "shared and still vital past" '" haunted the mind of the warrior-storytellers

91 I b id at 1 1 9 .

92 M o n t e s q u i e u , T he S p ir i t o f th e La w s (1 7 4 8 ) (P a rt 3, C h a p . 1 8 ), at 3 1 9 . The S p ir it o f th e La w s (L 'E s p r it de s Lo is) m a d e a s t r o n g c o n t r ib u t io n to th e h i s t o r y o f p o l i t ic a l t h e o r y . It is c o n s id e r e d a s

t h e m a in w o r k o f M o n t e s q u i e u ( 1 6 8 9 - 1 7 5 5 ) , o n e o f th e m o s t n o t a b le p o l i t ic a l p h i l o s o p h e r o f th e

F r e n c h E n l i g h t e n m e n t . In T h e S p ir it o f th e L a w s ', th e g re a t p o l i t i c a l p h i l o s o p h e r d i v i d e d S ta te s

in t o t h r e e k i n d s . T h e m o s t b e n i g n w a s th e 'r e p u b l i c ', t h e n t h e 'm o n a r c h y ', a n d t h e m o s t

o p p r e s s i v e w a s 'd e s p o t i s m '. M o n t e s q u i e u a t t r ib u t e d a m o r a l p r i n c i p l e to e a c h o f t h e se . H e

b e l ie v e d t h e r e p u b l i c to b e b a s e d o n 'v i r t u e ', th e m o n a r c h y o n 'h o n o u r ', a n d th e d e s p o t i s m o n

'f e a r '. H e s a w d e s p o t i s m a s e v i i b y its n a t u re . T o h im , C h i n a w a s b a s e d o n d e s p o t i s m .

M o n t e s q u i e u a l s o f o u n d th a t 'c l im a t e ' in f lu e n c e s th e p o l i t ic a l , in t e l le c tu a l, a n d s o c ia l n a t u r e o f a

p e o p le . T o h im , la w s h o u ld a c t a g a in s t th e b a d s id e o f t h is n a t u r e to b r in g a b o u t g e n e r a l p o l i t ic a l

a n d s o c i a l im p r o v e m e n t . In th e c a s e o f C h in a , th e c l im a t e h a s m a d e t h e S ta te d e s p o t ic a n d th e

p e o p l e d i s h o n e s t . S e e C o l i n M a c k e r r a s , S in o p h ile s a n d S in o p h o b e s - W e s te rn V ie w s o f C h ina , O x f o r d U n i v e r s i t y P r e s s 2 0 0 0 , at 4 2 - 4 4 .

93 T h e t a c t ic s u s e d b y th e w a r r io r s r e s o n a te d a ll to o m u c h o f a p a s t in w h i c h th e U n i t e d S t a te s a n d

o t h e r f o r e ig n p o w e r s u n d e r t o o k m a n y a n a c t h a v in g a g re a t im p a c t o n th e n a t io n s o f E a st A s i a in

t h e n a m e o f m a k in g th e w o r ld s a fe fo r t h e ir c o n c e r n s , i n c l u d in g in t e l le c t u a l p ro p e r t y . S e e A l f o r d

n o t e 2 6 s u p ra at 2 2 .

94 S e e A l f o r d n o t e 8 5 sup ra at 3.

95 S e e Y e h n o t e 31 sup ra at 5 1 2 . " T h e C h in e s e c u l t u r a l h e r i t a g e b e g a n o v e r f o u r t h o u s a n d y e a r s

a g o . It is a c u l t u r e b e l o n g in g to th e o ld e s t c o n t i n u o u s c i v i l i s a t i o n in h u m a n h is t o r y . D u r i n g t h is

p e r io d in s t i t u t io n s o f o u t s t a n d in g l o n g e v i t y w e re e s t a b l i s h e d a n d re f in e d . T h e s e t r a d i t io n s a n d

Page 23

until they finally admitted that they failed'"’ in their numerous writing assaults to make China's pirates walk the plank because they all neglected to take adequate account of its power.96 97 The 'intrepid' warriors were reminded that "in pursuing the future, it is always important to recognise the past".98 Hence, they admitted that perhaps more than in any other battle before, to acknowledge the integrity of the Chinese past was "an essential prologue to the present",99 or more precisely, "as essential as any understanding of the present".100China has historic and cultural roots that are profoundly different from the Western ones. Although the events that resulted in the unification of the country had much in common with those that produced the Western nation-States, their legal consequences were totally different.101According to traditional ideas, law (the Chinese character 'fa') has never been perceived as a means of preserving individual rights, freedom, or justice in early China.102 Although it contained both the meanings of 'fairness' and 'justice', it is a grave error to confuse it with words like 'jus', Latin for 'law'. One aspect of the meaning of 'fa' was 'to prohibit', when another was 'to command'.103 Moreover, the ancient pronunciation of the Chinese character for 'law' resembled that for the character 'to punish, to subjugate, to attack'.104 Thus, 'fa' acquired the meaning 'punishment'. When both 'prohibition' and 'command' emphasised the function

v a l u e s a re fa r f r o m d e a d a n d in m o d e r n C h in a m u c h o f th e n e w c o n t i n u e s to b e u n d e r p in n e d b y

t h e t r a d i t io n a l . " " T r a d i t i o n s d ie h a r d . " S e e Z h e n g C h e n g s i a n d M i c h a e l P e n d le t o n , 'C o p y r i g h t L a w

in C h i n a ', S y d n e y , C C H A u s t r a l ia L im ite d , 1 9 9 1 , at 2 -3 .

96 T h e i r a p p r o a c h f a i le d to r e sp e c t o t h e r v o i c e s a n d o t h e r t ra d it io n s , a n d in s t e a d p o s i t e d th e m o r a l

s u p e r i o r i t y o f a v a l u e s y s t e m (th e p r o t e c t io n o f in t e l le c t u a l p r o p e r t y r ig h t s ) , w h i c h is fa r m o r e

r e c e n t t h a n t h e t r a d i t io n it s o u g h t to c o n d e m n . E q u a l ly , t h is a p p r o a c h re je c te d o u t o f h a n d th e

C h i n e s e g o v e r n m e n t 's i d e o l o g i c a l d i f f ic u lt ie s w it h th e n o t io n o f in t e l le c t u a l p r o p e r t y r ig h t s . S e e

B u r r e l l n o t e 6 sup ra a t 1 9 8 .

97 S e e A l f o r d n o t e 7 sup ra at 1 3 6 .

98 L i s a M i c h e l l e W e in s t e in , C o m m e n t , 'A n c i e n t W o r k s , M o d e r n D i l e m m a s : th e D e a d S e a S c r o l l s

C o p y r i g h t C a s e ', 4 3 ( 4 ) A m e r ic a n U n iv e rs ity L a w R e v ie w ( ] 9 9 4 ) , at 1 6 3 7 .

99 E u g e n e A . T h e r o u x , 'T e c h n o l o g y S a le s to C h in a : N e w L a w s a n d O l d P r o b le m s ', 1 4 The J o u rn a l o f In te rn a t io n a l L a w a n d E c o n o m ics ( 1 9 8 0 ) , at 1 8 6 .

100 S e e F l o u m n o te 5 0 su p ra at 3 7 .

101 W i l l i a m P. A l f o r d , 'T h e I n s c r u t a b l e O c c i d e n t a l ? Im p l i c a t i o n s o f R o b e r t o U n g e r 's U s e s a n d

A b u s e s o f t h e C h i n e s e P a s t ', 6 4 (5 ) Texas L a w R e v ie w { 1 9 8 6 ) , at 9 1 6 .

102 T h e C h i n e s e n o t i o n s o f le g a l r ig h t s a re " s o f t e r " th a n in th e W e s t . S t a n le y L u b m a n , 'In t r o d u c t io n :

T h e F u tu re o f C h i n e s e L a w ', 1 4 9 The C h i n a Q u a r t e r l y ( 1 9 9 7 ) , at 1 3 .

103 L i a n g Z h ip i n g , 'E x p l i c a t i n g " L a w " : A C o m p a r a t i v e P e r s p e c t iv e o f C h i n e s e a n d W e s t e r n L e g a l

C u l t u r e ', 3 ( 1 ) J o u rn a l o f C h ine se L a w ( 1 9 8 9 ) , at 6 0 .

Page 24

of law, on the other hand, 'punishment' was the means by which the realisation of this function was guaranteed.W ith regards to the relationship among these three meanings, imperial China simply used a simple term 'fa' to cover a wide range of meanings for 'law '.104 105 Law was moulded to be above all, as a tool of suppression.106 One character can serve to explain the word 'fa'. In ancient Chinese texts, 'xing' was the word for 'punishment', more specifically 'corporal punishment'. 'Xing' and 'fa' were frequently interchanged.107The two supports of the Chinese traditional legal culture were the State and the family.108 The political orientation of the society was vertical, authoritarian, and patriarchal.109 Any conception of a government of law was alien to China. "Wherein everyone in the empire owns a duty to the emperor whose word is law."110 Law was constituted and used at w ill by the ruler. In fact, there were no real rules of governing,111 112 but the best way to rule the society was "to reward or punish without joy or anger".11JAlthough classical Chinese thinkers displayed some commitment to what it called in the West 'public law' as a means to restrict private abuses of power,113 the needs of the State and the collective have always been placed before those of the individual.114 Traditional Chinese thought strikingly conceptualised the individual and the role of law in society in a manner that made it difficult to extract a status of the individual in the abstract, entirely separate from other individuals.115

104 I b id at 6 0 - 6 1 .

105 S e e T u r n e r n o t e 1 5 su p ra at 3 0 9 - 3 1 0 .

106 S e e L i a n g n o t e 1 0 3 su p ra at 8 9 .

107 I b id at 6 1 .

108 W a l l a c e J o h n s o n , 'S t a t u s a n d L ia b i l i t y fo r P u n i s h m e n t in th e T 'a n g C o d e ', 7 1 ( 1 ) C h ic a g o -K e n t L a w R e v ie w ( 1 9 9 5 ) , at 2 2 0 .

109 E d w a r d J. E p s t e in , 'C o d i f i c a t i o n o f C i v i l L a w in th e P e o p l e 's R e p u b l i c o f C h in a : F o r m a n d

S u b s t a n c e in t h e R e c e p t io n o f C o n c e p t s a n d E le m e n t s o f W e s t e r n P r iv a te L a w ', 3 2 ( 1 ) U n iv e rs ity o f B rit is h C o lu m b ia L a w R e v ie w U 9 9 8 ) , at 1 6 0 .

110 T o d d R . B e n s o n , 'T a k i n g S e c u r i t y in C h in a : A p p r o a c h i n g U . S . P r a c t i c e s ? ', 2 1 ( 1 ) T he Y a le J o u rn a l o f In te rn a t io n a l L a w { 1 9 9 6 ) , at 1 9 0 .

111 S e e T u r n e r n o te 1 5 su p ra at 2 8 6 .

112 I b id a t 3 0 5 .

113 I b id at 2 9 0 .

114 S e e L i a n g n o te 1 0 3 su p ra at 8 9 .

115 H e r b e r t H . P. M a , 'T h e C h in e s e C o n c e p t o f the In d i v id u a l a n d th e R e c e p t io n o f F o r e ig n L a w ',

9 ( 2 ) J o u rn a l o f C h in e se L a w ( 1 9 9 5 ) , at 2 1 1 .

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Confucian beliefs turned not to regulations, but to the rule of rites or Mi',116 which were articulated within the family structure. In the interests of 'fairness' and the maintenance of social harmony, China's patriarchal hierarchy significantly elevated 'morality ' above 'law ' and fused the two.117 Imperial China was characterised by overlapping, interlocking hierarchies of age, gender, and relationship.118 In this scheme, the settlement of disputes was internalised.119 The all-encompassing realm of 'ii ' was not to sustain China's social harmony in providing a framework for normal action, but to punish those who breached the harmony.120 Any case had to end in a punishment, even if only a reprimand, "either to one party for doing wrong or to the other for bringing a baseless complaint".121 China's ancient philosophical thought believed in the 'rule of man'122 ('rule of persons')123 where punishments were a "spectacle of family disgrace".124 "The first grade punishment [was] warfare, the second grade [was] sword and saw, [and] the third grade [was] whip and bamboo".125

116 T h e I i ' w e r e n o t p u b l ic , p o s i t iv e r u le s p e r c e iv e d to h a v e b e e n m a d e b y th e S ta te o r, fo r th a t

m a tte r , b y a n y p e r s o n . T h e y w e r e n o t r u le s at a ll. T h e y w e r e l iv in g , s p o n t a n e o u s ta c it m o d e l s o f

e x e m p l a r y c o n d u c t , t r a n s m it t e d a s p a rt o f th e e x p e r i e n c e o f l e a r n in g to p a r t ic ip a t e in s o c ia l

r e la t io n s , a n d t h e y w e r e f o rm u la te d , w h e n f o r m u la t e d at a ll, a s m o r a l a n e c d o t e s . S e e A l f o r d n o te

1 0 1 s u p ra a t 9 2 6 .

117 A l i c e E - S T a y , T h e S t r u g g le f o r L a w in C h i n a ', 2 1 ( 2 ) U n iv e rs ity o f B r it is h C o lu m b ia L a w R e v ie w ( 1 9 8 7 ) , at 5 6 2 .

118 Im p e r ia l C h i n a w a s e n c a p s u la t e d in th e T h r e e B o n d s ( b e t w e e n ru le r a n d s u b je c t , f a t h e r a n d

s o n , h u s b a n d a n d w i f e ) a n d t h e F iv e R e l a t i o n s h ip s , w h i c h a d d e d to t h e T h r e e B o n d s th e

r e l a t i o n s h ip s b e t w e e n o ld e r a n d y o u n g e r b r o t h e r a n d b e t w e e n f r ie n d s . T h e h e a d o f t h e f a m i l y

p o l i c e d r e l a t i o n s h i p s in h i s o w n f a m i l y in e x c h a n g e f o r th e le g a l g u a r a n t e e o f h i s s ta tu s . S e e

M a t t h e w H . H u r l o c k , 'S o c i a l H a r m o n y a n d I n d i v i d u a l R ig h t s in C h i n a ', 9 3 ( 5 ) C o lu m b ia L a w R e v ie w ( ] 9 9 3 ), a t 1 3 2 1 .

119 S e e E p s t e in n o t e 1 0 9 sup ra at 1 6 0 .

120 S e e T a y n o t e 1 1 7 sup ra at 5 6 3 - 5 6 4 .

121 Ib id at 5 6 3 .

122 S e e T u r n e r n o t e 1 5 sup ra at 2 8 6 . W e s t e r n le g a l s y s t e m s a re b a s e d o n th e 'r u l e o f l a w ', w h e r e

t h e l a w a n d it s v a r i o u s in s t i t u t io n s a re a p a n a c e a . O n l y la w c a n r e s t o re o r d e r if th e m o d e l o r

s o m e o n e in t h e s y s t e m fa lte rs . T h e la w is th e re to re s t o re o r d e r a n d p u n i s h o f f e n d e r s . S e e A l e x

L o w , 'C h i n a 's N o t a r y O f f ic e s : A n E n d u r in g A r m o f G o v e r n m e n t ', 2 ( 1 ) D e a k in L a w R e v ie w ( 1 9 9 5 ) ,

at 8 4 .

123 T h e c o n c e p t o f n a t u ra l la w h a s p la y e d a s i g n i f i c a n t ly la r g e r r o le in C h i n e s e le g a l d e v e l o p m e n t

t h a n it h a s in t h e W e s t . In C h in a , th e tru e s o u r c e o f le g a l i s m w a s th e m a n a p p l y i n g t h e l a w s ra th e r

t h a n t h e le tte r o f t h e la w . A c o n s e q u e n c e o f t h is s i t u a t io n w a s a le g a l s y s t e m th a t g e n e r a l i s e d

u n p r e d i c t a b l e a n d v a r y in g re su lt s . S e e K e n y o n S. J e n c k e s , 'P r o t e c t io n o f F o r e ig n C o p y r i g h t s in

C h i n a : T h e In t e l le c t u a l P r o p e r t y C o u r t s a n d A l t e r n a t i v e A v e n u e s o f P r o t e c t io n ', 5 ( 3 ) S o u th e rn C a lifo rn ia In te rd is c ip lin a ry L a w J o u rn a l ( 1 9 9 7), at 5 5 3 .

124 S e e H u r l o c k n o te 1 1 8 sup ra at 1 3 2 2 .

125 S e e T u r n e r n o t e 1 5 sup ra at 2 9 3 .

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In the words of representatives of the British East India Company during the first half of the nineteenth century, China's legal system was already seen as not being only arbitrary and corruptly administrated, but founded on a system in many respects incompatible with the European ideas of equity and justice.126 However, could the Chinese past only be used to explain the impossibility of adopting a system of intellectual property rights protection in China?The warriors were particularly astonished to discover that as powerful as the Chinese past can be, their lack of familiarity with, or even intolerance of, the legacy of China's history could be remedied more easily than their disturbing ignorance of current political, legal, and economic Chinese circumstances.127 128 Indeed, in examining both the constitution and evolution of the concept of intellectual property in China, the 'intrepid' warriors had been defeated by its "complexity, controversy, and dynamism".129 It was only in hatching new scopes for operations to come129 that they eventually realised both the limitations of their strategy and the futility of the tactics pursued. Investigations into the cause of their defeat blamed inaccurate reports, which contained too little insight into the Chinese reality and information about the contemporary practice of the People's Republic.The tactics of the 'intrepid warriors' were often based on "greatly exaggerated"130 "good readings"131 copied from other papers, which contained outdated and unreliable data.132 Apparently, they did not remain vigilant as to both the basic

126 W i l l i a m P. A l f o r d , T o S tea l a B o o k is an E leg an t O ffe n se - In te lle c tu a l P ro p e rty L a w in C h inese C iv il is a t io n ', S t a n f o rd U n iv e r s i t y , S t a n fo rd U n iv e r s i t y P re s s at 3 1 .

127 S e e A l f o r d n o t e 7 sup ra at 1 4 0 - 1 4 1 .

128 Ib id at 1 3 5 .

129 " A n y n e w a p p r o a c h w i l l r e q u i r e W e s t e r n c o u n t r i e s to a c t w i t h m u c h m o r e h u m i l i t y a n d to

a c c e p t th a t t h e y h a v e o fte n fa l le n s h o r t o f the s t a n d a r d s t h e y n o w s e e k to u n i v e r s a I i s e . " T h e y " m a y

a l s o c a u s e a t t e n t io n to b e f o c u s e d o n s o m e o f th e im p o r t a n t d i f f e r e n c e s o f a p p r o a c h to c o p y r ig h t

p r o t e c t io n t h a t e x is t w i t h in t h e d e v e l o p e d w o r l d . " T h e y " s h o u l d a l s o r e c o n s id e r t h e u n i f ie d

a p p r o a c h [ t h e y ] h a [ v e ] a d o p t e d t o w a r d s c o p y r ig h t a n d in t e l le c t u a l p r o p e r t y m o r e g e n e r a l l y . " " A

m o r e d e f e n s i v e a p p r o a c h w i l l a l s o r e q u i r e th e W e s t to f in d m u c h m o r e im a g in a t i v e w a y s o f

p e r s u a d in g d e v e l o p i n g c o u n t r ie s to a d o p t a n d e n f o r c e 'a p p r o p r i a t e ' f o r m s o f in t e l le c t u a l p r o p e r t y

p ro te c t io n . S e e B u r r e l l n o te 6 sup ra at 2 2 1 - 2 2 2 .

130 S e e D e c le t n o t e 5 9 sup ra at 6 0 .

131 S e e A l f o r d n o t e 7 sup ra at 1 3 5 .

132 S t a n le y L u b m a n , 'S t u d y i n g C o n t e m p o r a r y C h i n e s e L a w : L im it s , P o s s ib i l i t i e s a n d S t r a t e g y ', 3 9

The A m e r ic a n J o u rn a l o f C o m p a ra tiv e L a w ( 1 9 9 1 ) , at 31 0.

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terms and concepts they used in their assault-writings. The warrior-storytellers forgot the importance of taking nothing for granted when China is the subject of investigation. For instance, 'justice', 'law', 'rights', 'property', or 'intellectual property' are such broad terms that their significance encompasses such an "immense variety over time, across national boundaries, and among different people within any country", that one of the mistakes of the warrior-storytellers was to disregard the writings of their predecessors.133It had to be admitted then that after having "politicised the issues [of the war], as well as [having] further complicated the situation w ithout using a rational approach",134 the perception of the warriors of the situation on the battlefields of China had no other possibility, but to be "obscur[ed] far more than illum inated]".135According to Pendleton, the perception was even gloomier because many of the warriors did not seriously take 'internationalism' into account.136 Therefore, they failed in large numbers.To recover from such flawed beginnings, Pendleton stated that " it is now necessary to recant".137 More specifically, the American commander W illiam P. Alford138 argued that "the terms of public debate in the United States concerning the protection of intellectual property in the People's Republic of China [PRC] need to be recast".139 The Chinese researcher Zheng Chengsi140 plays the role of the third defining figure in this study and through his theories, taking into account the Chinese political culture, he recapitulates the principal arguments in the debate.

133 S e e A l f o r d n o te 2 6 sup ra at 2 3 .

134 S e e L iu n o t e 2 5 s u p ra at 9 3 .

135 S e e A l f o r d n o t e 7 sup ra at 1 3 5 .

136 S e e P e n d le t o n n o t e 9 0 sup ra at 1 2 0 .

137 Ibid138 A l f o r d i s p r o f e s s o r o f la w at H a r v a r d U n iv e r s i t y a n d d i r e c t o r o f th e E a st A s i a n L e g a l S t u d ie s

P r o g r a m .

139 S e e A l f o r d n o t e 7 sup ra at 1 3 5 .

140 In t h e 1 9 9 0 s , Z h e n g C h e n g s i w a s p r o fe s s o r a n d d i r e c t o r o f th e In t e l le c t u a l P r o p e r t y C e n t r e at

t h e C h i n a A c a d e m y o f S o c ia l S c ie n c e s . T h e la te D e n g X i a o p in g a p p o in t e d h im N a t io n a l E x p e r t o n

In t e l le c t u a l P r o p e r t y . H e w a s a l s o a rb it r a t o r o f th e W I P O a n d C C P I T , e x e c u t i v e c o m m it t e e

m e m b e r o f t h e A T R IP , a n d S u p r e m e P e o p le 's C o u r t c o u n s e l l o r . H e w a s v i s i t i n g p r o f e s s o r at th e

A s i a P a c i f ic In t e l le c tu a l P ro p e r t y L a w In s t itu te at M u r d o c h U n iv e r s i t y , P e rth , in W e s t e r n A u s t r a l ia .

Page 2 8

Why choose these three scholars? They represent three various phases in the development of the issue at hand. They are from backgrounds as diverse as their approaches, utilitarian (Alford), pragmatic (Zheng), and visionary (Pendleton). Yet, interestingly, their works converged and despite following different paths, they arrived at the same conclusion. They agreed that "in studying legal developments in China, [the West] should not assume that [its] course of history is necessary[,] 'normal' or inevitable".141 "China represents an entirely different policy approach to intellectual property"142 rights principally because "the situation was different"143 there."Whether farce or tragedy, there is a need to inquire as to why the [West] ha[s] had such difficulty in crafting an effective policy with respect to intellectual property protection in China. The reasons are many, having to do both with China and the United States".144

[b]'Nulla crimen, nulla poena, sine lege', the

American crusade for I PR

The modern reinterpretation of the 'Battle of the Frogs and Mice' or the 'Battle of the Booksellers', a battle for the adoption of a Chinese intellectual property regime, could be seen as a result of a retreat. This retreat occurred when, at the beginning of the 1970s, the troops of the most economically and technologically advanced nation in the world, that is the United States, began to yield ground in an indeterminate and vague economic war. The purpose of the war was, for the United States, to retain its status of world leader.

[i] Changes in the art of economic war

141 S e e O c k o n o t e 5 5 supra at 5 5 9 - 5 6 0 .

142 Z h e n g C h e n g s i , T h e C h i n e s e P a te n t L a w o f 1 9 8 4 ', 6 ( 7 ) E urop ea n In te lle c tu a l P ro p e rty R e v ie w ( 1 9 8 4 ) , at 1 9 3 .

143 Z h e n g C h e n g s i , 'C o p y r i g h t in C h in a , in A n c ie n t T im e , T o d a y a n d in F u t u r e ', 7 In te r n a t io n a l C o p y r ig h t S o c ie ty ( 1 9 9 0 ) , at 7 6 .

Page 2 9

Open and competitive commerce will connect us with new customers

The defeat, as illustrated by the collapse of the Bretton-Woods Agreement, the end of the American Gold Standard, and several oil price-shocks, led to a drastic sea of change. In addition, the troops "lost [their] manufacturing base".144 145 Exports decreased and imports steadily increased.In 1970 alone, the American share of the total world imports was almost 13%. By 1986, however, it had increased to 1 7.5%. At the same time, the American share of total world exports declined from an average of 14% to 10%.146 The defeat inflicted subsequent trade deficits147 on the United States. It resulted in several gaps in their balance of payments. On the home front, the general panic translated into dollar devaluation, rise of interest rates, and stock market fluctuations.148 149To stop the haemorrhage, the American headquarters on 'Capitol Hill' (the Department of Commerce, the Department of State, and the Department of

Treasury) conceived a set of new tactics.14<' Their goal was to diminish the U.S. trade deficit and their predominant strategy was to boost their exports.150 To achieve this, they concentrated their new efforts on the 'trade front'.The organising principle for the new American foreign policy was based on the following idea. "Open and competitive commerce w ill enrich us as a nation. It spurs us to innovate, it forces us to compete, [and] it connects us with new customers",151 it was proclaimed by Washington.In their preparation to re-conquer the lost territories, and follow ing a mass mobilisation, the troops focused their training efforts on the newest and

144 S e e A l f o r d n o t e 7 sup ra at 1 3 9 .

145 S e e A l f o r d n o t e 2 6 su p ra at 1 0 .

146 S e e L iu n o t e 2 5 sup ra at 9 0 .

147 D a v i d S i l v e r s t e in , T h e U . S . - C h in a T r a d e D i s p u t e o v e r In t e l le c t u a l P r o p e r t y P ro t e c t io n : T im e ly

R e s o lu t io n o r T im e B o m b ? ' 2 8 N o rth Atlantic R egional Business L a w R e v ie w ( ] 9 9 5 ) , at 1 1 0 .

148 S e e B e r l in e r n o te 1 4 su p ra at 7 2 5 .

149 S e e L iu n o t e 2 5 sup ra at 8 8 .

150 S e e B e r l in e r n o t e 1 4 su p ra at 7 2 5 .

151 S e e K a n t o r n o te 7 9 su p ra at 1 2 3 5 .

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potentially most commercially attractive elements of American trade, turning 'intellectual capital' into a newly vector of strength. Intellectual property was then recognised as an obvious advantage for powerful competitive positioning.152 Falling into the definition of what is known as 'trans-national law', the complex network of intellectual property rights was not restricted by, but rather extended beyond, national boundaries. This singularity neatly corresponded to the new U.S. tactics. Additionally, it fitted in with the imperative of capitalism.153 "[I]ntellectual property w ill be 'the building blocks of wealth in the future as railroads were in the [nineteenth] century.'"154In this context, the American war machine risked exposing the world's leading producer of patented, trademarked, and copyrighted products,155 that is to say the United States, to a series of more hazardous campaigns.156 However, the American high command saw the "power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" as a means of minimising the losses.157 158 It stemmed from a policy choice that has been one of the cornerstones of U.S. economic life since the nation was founded.1'6 In short, private innovation

152 F r a n c i s G u r r y , T h e E v o lu t io n o f T e c h n o l o g y a n d M a r k e t s a n d t h e M a n a g e m e n t o f In t e l le c tu a l

P r o p e r t y R ig h t s ', 7 2 (2 ) C h ica g o -K en t Law R e v ie w ( 1 9 9 6 ) , at 3 7 1 .

153 I b id a t 3 7 0 . T h e e c o n o m i c r a t io n a le f o r in t e l le c t u a l p r o p e r t y p r o t e c t io n h i g h l i g h t s th e

e n c o u r a g e m e n t o f c r e a t iv e a c ts, a b e n e f it to t h e p u b l i c p o o l o f k n o w l e d g e , a n d th e p r a g m a t ic

r e a l i s a t io n t h a t p ro f it s d r iv e m u c h re s e a r c h a n d d e v e lo p m e n t . T h e r e a s o n s fo r in t e l le c tu a l p r o p e r t y

r ig h t s a r e s u b s u m e d b y th e r e a l it y tha t t h e se r ig h t s e q u a l m o n e y . S e e S y l v ia S o n g , 'C o p y r i g h t L a w

in C h i n a - A C o m p a r a t i v e A n a l y s i s o f th e E m e r g in g In t e l le c tu a l P r o p e r t y R ig h t ', J o u rn a l o f th e IP S o c ie ty o f A u s tra lia a n d N e w Z e a la n d Inc. ( 1 9 9 9 ) , Sept., at 4 3 .

154 M i c h a e l C a s t n e r , 'C o p y r i g h t L a w : T h e S o f t w a r e U s e r In t e r fa c e ', 1 2 The A d e l p h i a L a w J o u rn a l ( 1 9 9 7 ) , at 3 5 .

155 T h e U n i t e d S t a te s w e r e d o m in a n t in a re a s s u c h a s a e r o s p a c e , p h a r m a c e u t ic a l , v i s u a l a n d a u d io

r e c o r d in g s , a n d c o m p u t e r s . S e e L a m n o te 2 4 supra at 8 6 1 .

156 S e e S i l v e r s t e in n o t e 1 4 8 supra a t 1 1 0 .

157 S e e a r t ic le 1 S e c t io n 8 C l a u s e 8 o f th e C o n s t i t u t io n o f th e U n i t e d S ta te s o f A m e r ic a , F o r o v e r

t w o h u n d r e d y e a r s , th e U n i t e d S t a te s h a s p la c e d a p r e m iu m o n p r o t e c t io n o f l i t e ra ry a n d a rt is t ic

w o r k s . U . S . C o n g r e s s e n a c t e d th e first c o p y r ig h t s ta tu te in 1 7 9 0 . T h e U .S . n a t io n a l s o e n d e a v o u r e d

to p r o m o t e t h e in t e r n a t io n a l p r o t e c t io n o f U .S . c o p y r ig h t s . In 1 9 5 5 , th e c o u n t r y ra t if ie d t h e 1 9 5 2

v e r s i o n o f t h e U n i v e r s a l C o p y r i g h t C o n v e n t i o n ( U C C ) tha t w a s r e v i s e d in P a r i s in 1 9 7 1 . T h e

U n i t e d S t a t e s ra t if ie d t h is r e v i s io n in 1 9 7 4 . In 1 9 8 9 , the c o u n t r y j o in e d th e B e r n e C o n v e n t i o n fo r

th e P r o t e c t io n o f L ite ra ry a n d A r t is t ic W o r k s . S e e K a c h u r ia k n o te 6 6 supra at 6 0 2 - 6 0 3 .

158 T h r o u g h p r o t e c t io n o f t h e f ru it s o f th e m in d a n d th e p r o m o t io n o f th e e x c h a n g e o f id e a s , th e

la w o f in t e l le c t u a l p r o p e r t y a s s i s t s in th e a t t a in m e n t o f th e g o a l o f a d v a n c i n g h u m a n d e v e lo p m e n t

t h r o u g h a r t i s t ic a n d s c ie n t i f ic p u r s u it s . S e e S im o n F it z p a t r ic k , 'C o p y r i g h t Im b a la n c e : U . S . a n d

A u s t r a l ia n R e s p o n s e s to th e W I P O D ig i t a l C o p y r i g h t T r e a t y ', 2 2 ( 5 ) E uro p e a n In te lle c tu a l P ro p e rty

Page 31

would result in even greater rewards for the public.1 S9Demand for U.S. products (such as computer products) was so high in the beginning that the U.S. troops could prosper without any intellectual property protection for their goods and could afford to let others freely borrow their ideas.159 160As the newly trained troops were sent under enemy fire, the U.S. high command sought to keep their morale high. It was decided that one of the first attacks would be where the U.S. strategists had drawn up plans for a new frontier of conquest.In 1972, the first collision between the United States and the People's Republic of China took place161 when American President Richard Nixon and his Secretary of State, Henry Kissinger, ventured the U.S. troops into the Chinese part of the 'Communist Block' in the middle of the Cold War.At that time, China was extremely isolated on the scene of world affairs.162 The Chinese vulnerability, diplomatically, was to help the U.S. troops to foster links with the Chinese troops in order to create a further bulwark against the Soviet Union.163 On the other hand, because China had consecutively endured both the 'Great Leap Forward' and the 'Great Proletarian Cultural Revolution',164 its forces

R e v ie w (2 0 0 0 ) , a t 2 1 4 .

159 J o h n M . G r ie m , Jr., 'A g a i n s t a S u i G e n e r i s S y s t e m o f In t e l le c t u a l P r o p e r t y f o r C o m p u t e r

S o f t w a r e ', 2 2 ( 1 ) H o fs tra L a w R e v ie w ( 1 9 9 3 ) , at 1 5 9 . T h e b a s i s o f t h e c o p y r i g h t s y s t e m in th e

U n i t e d S t a t e s is t h e c o n v ic t i o n th a t e n c o u r a g e m e n t o f in d iv id u a l e ffo rt b y p e r s o n a l g a in is t h e b e st

w a y t o a d v a n c e p u b l i c w e lfa re . S e e C a s t n e r n o te 1 5 5 su p ra at 4 4 .

160 S e e G r i e m n o te 1 6 0 sup ra at 1 5 6 .

161 N i x o n v i s i t e d C h in a , t o e n o r m o u s fa n fa re , f r o m 21 to 2 8 F e b r u a r y 1 9 7 2 , c o m m e n t in g th a t th is

w a s 't h e w e e k th a t c h a n g e d t h e w o r l d '. M a n y j o u r n a l i s t s a c c o m p a n i e d h im . T h e t e le v i s io n

r e p o r t e r s b e a m e d b a c k g e n e r a l l y f a v o u r a b l e r e p o r t s a n d t h e p r i n t j o u r n a l i s t s w r o t e

c o r r e s p o n d i n g l y p o s i t iv e a c c o u n t s o f w h a t t h e y h a d se e n . S e e M a c k e r r a s n o t e 9 2 su p ra a t 1 6 7 .

162 J a m e s V . F r e in e r m a n , 'C h i n e s e P a r t ic ip a t io n in th e In t e r n a t io n a l L e g a l O r d e r : R o g u e E le p h a n t o r

T e a m P la y e r ? ', 1 4 1 The C h in a Q u a r te r ly ( 1 9 9 5 ) , at 1 8 6 .

163 S e e B u r r e l l n o te 6 su p ra at 2 1 4 .

164 T h e 'G r e a t L e a p F o r w a r d ', a n a m b i t i o u s e c o n o m i c m o v e m e n t t o r e f o r m t h e C h i n e s e

a g r i c u l t u r a l s e c t o r a n d in d u s t r ia l i s e th e in te r io r o f C h in a , r e su lt e d in a s m a n y a s 2 0 m i l l i o n d e a th s

b e t w e e n 1 9 5 8 a n d 1 9 6 1 . S e e D a v i d L. W e l le r , 'T h e B u r e a u c r a t i c H e a v y H a n d in C h i n a : L e g a l

M e a n s f o r F o r e ig n In v e s t o r s to C h a l l e n g e A g e n c y A c t i o n ', 9 8 ( 5 ) C o lu m b ia L a w R e v ie w ( 1 9 9 8 ) , at

1 2 3 8 . B e t w e e n 1 9 6 6 a n d 1 9 7 6 , t h e 'C u l t u r a l R e v o l u t i o n ' ( 'w e n h u a d a g e m i n g ' in C h in e s e ) , a

p o l i t ic a l u p h e a v a l , in t e n d e d to b r i n g a b o u t a re tu rn to r e v o l u t io n a r y M a o i s t b e l ie f s . L a r g e l y c a r r ie d

f o r w a r d b y t h e R e d G u a r d , it r e su lt e d in a t t a c k s o n in t e l le c t u a ls a n d w h a t w e r e s e e n a s b o u r g e o i s

e le m e n t s , a la r g e - s c a le p u r g e in p a r t y p o sts , a n d th e a p p e a r a n c e o f a p e r s o n a l i t y c u lt a r o u n d M a o

Z e d o n g , w h o h a d b e e n in s e m i - r e t i r e m e n t s i n c e 1 9 5 9 . T h e u p h e a v a l le d to c o n s i d e r a b l e

e c o n o m i c d i s l o c a t i o n a n d w a s g r a d u a l l y b ro u g h t to a h a lt b y P r e m ie r Z h o u E n la i. S e e n o te 2 supra at 3 4 7 .

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were still weakened when the U.S. troops attacked on the trade front. China's vulnerability was to help the United States to revive Sino-American commerce.165 The American victory was symbolised by the signing of a Communique in Shanghai that opened an area of detente in the relations of the two nations, the first since the Chinese Communist Party took power in 1949. The modern era of Sino-U.S. relations, sometimes referred to as a "special relationship" (a term usually reserved for nations such as Britain or Israel with which the United States have always harvested unique cultural or historical connections), had started.166 167

What's the Chinese breach of U.S. software copyright law got to do

with it?;767

A third reckoned effect emerged from the Communique. China's legal landscape started being visited again after almost three decades of neglect.168 The absence of knowledge of the practice of China's legislation predicated other confrontations to come.Soon after the U.S. troops paved the way to the People's Republic of China, a handful of American scholarly adventurers1' 9 selected a detachment, specialising in Chinese legal matters, which was in time named Western Legal Sinology. With both publications and research as figureheads, and composed of young law graduates with a background in Chinese legal matters,170 the detachment proudly emblazoned on its standard the value of studying the legislation of China.171

165 S e e L u b m a n n o te 1 3 2 supra at 3 0 7 .

166 T o d d C r o w e l l , 'R i c e b o w l D i p l o m a c y ', 2 5 ( 4 1 ) A s ia W e e k , 1 5 O c t o b e r 1 9 9 9 , at 5 4 .

167 D o n a l d C . C la r k e , 'W h a t ' s L a w G o t T o D o W i t h It? L e g a l In s t i t u t io n s a n d E c o n o m ic R e f o r m in

C h i n a ', 1 0 ( 1 ) U C L A Pacific Basin L aw journal ( 199) ) , at 1.

168 W i l l i a m P. A l f o r d , 'L a w , L a w , W h a t L a w ? W h y W e s t e r n S c h o l a r s o f C h i n e s e H i s t o r y a n d

S o c ie t y H a v e N o t H a d M o r e to S a y a b o u t Its L a w ', 2 3 ( 4 ) M o d ern China ( 1 9 9 7 ) , a t 4 0 9 .

169 J e ro m e C o h e n e s t a b l i s h e d th e f ie ld o f C h in e s e le g a l s t u d ie s in t h e U n i t e d S ta te s. T h e f o u n d e r o f

H a r v a r d L a w S c h o o l 's E a st A s i a n L e g a l S t u d ie s P r o g r a m , h e w a s l o n g P r o fe s s o r o f L a w at H a r v a r d

a n d a m a j o r s c h o l a r o f C h i n e s e le g a l in s t it u t io n s . H e w o r k e d t h e n a s a p r iv a t e a t t o r n e y in E a st

A s ia , w h i l e m a in t a in in g a n a c t iv e in v o lv e m e n t in h u m a n r ig h t s i s s u e s th e re . W i l l i a m P. A lf o r d ,

" 'S e e k i n g T r u t h F r o m F a c t s " - E s p e c ia l l y w h e n t h e y a re U n p le a s a n t : A m e r i c a 's U n d e r s t a n d in g o f

C h i n a 's E f fo rt s at L a w R e f o r m ', 8 (2 ) UCLA Pacific Basin L aw Journal ( 1 9 9 0 ) , at 1 7 8 .

170 S e e L u b m a n n o te 1 3 2 supra at 2 9 6 .

171 S e e A l f o r d n o t e 1 6 9 supra at 3 9 8 - 3 9 9 .

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The young law recruits working in a similar vein "raised so many insightful questions"172 that, in becoming active again, one of the first concerns of Western Legal Sinology, in the absence of Chinese definitions of key concepts, [...] [was] to borrow Western definitions and apply them to Chinese practice".173 As issues relating to intellectual property matters, in particular those with international implications, began to elicit significant concern in various public circles in the West, so too did the young law recruits begin to consider that these might be worthy of more than mere modest intellectual merit in China.174 They began to see them as part of a fascinating body of law to be analysed through the window of comparative law. By its growing attention to intellectual property issues, the detachment eventually contributed to the awakening of a "sleeping giant".175 Most of the landmark works on China's legal system were penned by scholars trained in law, arguing the lack of codified Chinese law.176 When Alford embarked upon the study of Chinese legal matters in 1972, methodological biases had already crept into the ranks of the detachment given that virtually every newly enlisted law recruit was trained in Western la w ',177 178 based on Western ideals of equality, justice, and legality.The difficulty of transcending their legal background when questioning and analysing the Chinese legal system170 ("approaching China with Western models in mind")179 resulted in the law recruits contenting themselves by demonstrating the relative unimportance of law ' in Chinese civilisation.180 To ascertain that the Qing Code was based on a Western classical distinction between criminal, civil,

172 S e e A l f o r d n o t e 2 6 supra at 10 .

173 B a r d e n N . G a le , T h e C o n c e p t o f In t e l le c t u a l P r o p e r t y in th e P e o p l e 's R e p u b l i c o f C h in a :

In v e n t o r s a n d In v e n t io n s ', 7 4 The China Q u a r te r ly {} 9 7 8 ) , at 3 3 5 - 3 3 6 .

174 S e e A l f o r d n o t e 2 6 supra at 9 - 1 2 .

175 M i c h a e l N . S c h le s in g e r , 'A S l e e p in g G ia n t A w a k e n s : T h e D e v e l o p m e n t o f In t e l le c t u a l P r o p e r t y

L a w in C h i n a ', 9 J o u rn a l o f C h in ese Law ( 1 9 9 5 ) , at 9 3 .

176 K a r e n T u r n e r , 'C o n t e m p o r a r y S t u d ie s in C h i n e s e L e g a l H i s t o r y ', 4 (1 ) Legal H is to ry ( 1 9 9 8 ) , at

1 0 .

177 D o n a l d C . C la r k e , P a c i f ic R im S e r ie s , 'M e t h o d o l o g i e s f o r R e s e a r c h in C h i n e s e L a w ', 3 0 ( 1 )

U n iv e rs ity o f B r it is h C o lu m b ia L a w R e v ie w ( 1 9 9 6 ) , at 2 0 7 .

178 S e e L u b m a n n o t e 1 3 2 supra at 3 1 4 .

179 S e e A l f o r d n o t e 1 6 9 supra at 4 1 2 .

180 Ib id at 3 9 8 .

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public, and private law181 182 was impossible since China's legal thought is not rooted in the values of the Western society.183Therefore, the detachment killed time by attempting to explain a centralised Soviet-style bureaucratic contractual practice, with negotiation and compromise as the two possible solutions to any dispute.183Because there had been no special reorganisation of China's legal framework following the revival of Sino-American commerce,184 the first substantive question that academia posed to Alford was whether he was aware that embarking on the study of the Chinese legal field would undoubtedly be a waste of his time.185 Consequently, through a demonstrated lack of success, desertions from academia became the norm. New recruits chose to become practising lawyers rather than remain academics, constantly having to deal with the fact that 'law' held no real meaning in China.186Alford was one such deserter who chose to contribute to an awakening of Western Legal Sinology on the field in the mid-1970s. Practising was more exciting than teaching in an era in which young law graduates were offered new perspectives on international law.187

What's the Chinese breach of U.S. software copyright law got to do

with it?

As a deserter, he saw the fast development of communication-related technologies, and other forms of technology that freed flows of capital, information, and labour from their traditional bondage of time and place.188 This

181 J e r o m e B o u r g o n , 'D e Q u e l q u e s T e n d a n c e s R e c e n t e s d e la S i n o l o g i e J u r id iq u e A m e r i c a i n e ',

8 4 ( 4 - 5 ) T o u n g Pao, International Journal o f Chinese S tu d ies - R e v u e In ternationale d e S in o lo g ie ( 1 9 9 8 ) , a t 3 8 1 .

182 S e e L u b m a n n o te 1 3 2 supra at 3 2 4 .

183 Ib id a t 3 0 7 - 3 1 0 .

184 Ib id at 3 0 7 .

185 S e e A l f o r d n o t e 1 6 9 supra at 3 9 8 .

186 W e n g L i, 'P h i l o s o p h i c a l I n f l u e n c e s o n C o n t e m p o r a r y C h in e s e L a w ', 6 ( 2 ) In d ia n a In te rn a tio n a l a n d C o m p a ra t iv e L a w R e v ie w ( 1 9 9 6 ) , at 3 2 7 .

187 S e e O c k o n o t e 5 5 supra at 5 5 9 .

188 C a r o l A . G . J o n e s , 'C a p i t a l i s m , G l o b a l i z a t i o n a n d R u le o f L a w : A n A l t e r n a t i v e T r a j e c t o r y o f

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phenomenon brought various societies, once impoverished and isolated, into contact with the products and the allurements of modernity.189 It was announced as the most significant change in the "Art of [economic] War"190 since W illiam Caxton founded his press in Westminster, England, in 1476.191 When, in the 1970s, the U.S. troops returned to the battlefields on the trade front, called 'global markets', one of their first preoccupations was to destroy local practices in order to replace these with others better suited to the general principles of capitalism.192 193 In this specific process, the goal was to expand the realm of standardised consumer products191 by infiltrating seemingly impenetrable markets around the world.194This economic war, commonly known as 'globalisation', was the result of the new tactics employed by of the U.S. troops with 'product distribution' and 'market access' as the sole values to protect.To support the war effort, the resources invested, in research and development, by the United States and its close allies, the six most industrialised nations, from 1972 to 1991 increased from about 1.80% to 2.25% of their GNP.195 The prevalence of intellectual capital over physical capital196 was the catalyst on the front that transformed intellectual property into a new target of a previously unimagined magnitude.197Moreover, in increasing the percentage of intellectual capital exported since 1945, from 8 to 25%,198 the U.S. high command changed the course of the economic war. With their sophisticated modes of transportation, communications, and telecommunications, the U.S. troops paradoxically intensified the fighting by

L e g a l C h a n g e in C h i n a ', 3 S ocia l a n d Legal Studies ( 1 9 9 4 ) , at 2 0 1 .

189 K o j o Y e lp a a ia , 'S t r a t e g y a n d P l a n n in g in G lo b a l P r o d u c t D i s t r ib u t io n - B e y o n d th e D i s t r ib u t io n

C o n t r a c t ', 2 5 ( 3 ) L a w a n d P olicy in International B usiness ( 1 9 9 4 ) , at 8 5 0 .

190 S u n Tzu, T he A r t o f War, D e l l P u b l i s h in g , N e w Y o r k , 1 9 8 3 , at 1.

191 B e n j a m in K a p la n , A n U n h u rr ie d V ie w o f Copyright, C o l u m b i a U n i v e r s i t y P re s s , N e w Y o r k -

L o n d o n , 1 9 6 7 , a t 2.

192 S e e J o n e s n o t e 1 8 9 supra at 1 9 9 .

193 S e e Y e lp a a ia n o te 1 9 0 supra at 8 5 0 .

194 S e e L iu n o t e 2 5 supra at 9 2 .

195 S e e G u r r y n o t e 1 5 3 supra at 3 6 9 - 3 7 0 .

196 I b id a t 3 6 9 .

197 S e e S i l v e r s t e in n o te 1 4 8 supra at 1 1 0 .

198 S e e S im p s o n n o te 2 7 supra at 6 1 1 .

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laying the newest and potentially most commercially attractive elements of U.S. trade open to world covetousness.199These enviable elements of U.S. commerce were only protected by rights, which were by nature national.200 These rights were given to American artists as an incentive for them to create.201 Since the U.S. intellectual property organisation had no extraterritorial effect,202 203 guarding these rights against international piracy was exceedingly difficult. U.S. courts of justice consistently declined to apply copyright legislation extraterritorial!y unless some infringing conduct occurred within the territory of the United States.201As the U.S. industry matured and expanded to the point where companies needed reliable protection for their efforts/04 piracy left the U.S. troops nearly unable to protect both the competitiveness and innovative strength of the U.S. nation. Foreign piracy of American intellectual property rights did not violate U.S. laws. To rectify the situation industries of the United States called for an "effective and adequate"205 206 * * protection of their rights to be established internationally."In light of this situation, one natural reaction for [the U.S. troops was] to appeal directly to [their] government for help".209 As article 27-2 of the Universal

Declaration of Human Rights states: everyone has the right to the protection of the moral and material interests resulting from scientific, literary, or artistic

199 Ib id at 6 1 2 . In 1 9 8 8 , U . S . c o m p a n ie s r e c e iv e d U S $ H b i l l i o n in r o y a l t ie s w h i l e p a y i n g o u t o n l y

U S $ 1 . 2 5 b i l l io n .

200 S e e G u r r y n o t e 1 5 3 sup ra a t 3 7 3 . In t e l le c t u a l p r o p e r t y r ig h t s h a v e a l w a y s b e e n s e e n a s

t e r r it o r ia l in n a t u re , m e a n i n g th a t a n o w n e r o r l ic e n s e e h a d to f i le o r o t h e r w i s e q u a l i f y fo r a n d

o b t a in in t e l le c t u a l p r o p e r t y p r o t e c t io n o n a c o u n t r y - b y - c o u n t r y b a s is . S e e M a r y L. W i l l i a m s o n a n d

K im N e w b y , 'I n t e l l e c t u a l P r o p e r t y I s s u e s - In t e l le c t u a l P r o p e r t y P r o t e c t io n in A s i a ', A s ia L a w S u p p le m e n t ( 1 9 9 6 ) , O c t . , a t 3.

201 S e e T it le 1 7 o f th e C o n s t i t u t io n o f th e U n it e d S ta te s o f A m e r ic a .

202 S e e B e r l in e r n o t e 1 4 sup ra at 7 2 6 .

203 S e e C h i e n - H a l e n o te 1 8 sup ra at 2 1 1 .

204 S e e G r i e m n o te 1 6 0 sup ra at 1 5 6 .

205 M i c h a e l P. R y a n , 'T h e F u n c t i o n - S p e c i f i c a n d L i n k a g e - B a r g a in D i p l o m a c y o f In t e r n a t io n a l

In t e l l e c t u a l P r o p e r t y L a w m a k i n g ', 1 9 ( 2 ) U n iv e r s i ty o f P e n n sy lv a n ia Journal o f In te rn a t io n a l E c o n o m ic L a w ( 1 9 9 8 ) , at 5 4 0 .

206 S e e L iu n o t e 2 5 sup ra at 9 0 . A m e r ic a n c o m p a n ie s d o in g b u s i n e s s a b r o a d c o m p la i n e d th a t th e ir

s a le s in f o r e i g n m a r k e t s w e r e b e in g u n d e r m in e d b y a c o m b in a t i o n o f in a d e q u a t e f o r e ig n p a te n t

p r o t e c t io n , w h o l e s a l e p i r a c y o f c o p y r ig h t e d w o r k s , m a s s i v e c o u n t e r f e i t in g o f b r a n d n a m e g o o d s ,

a n d s y s t e m a t ic the ft o f A m e r ic a n t ra d e se c re ts. S e e C h a r le s R . M c M a n i s , 'I n t e r n a t io n a l In t e l le c tu a l

P r o p e r t y P r o t e c t i o n a n d E m e r g i n g C o m p u t e r T e c h n o l o g y : T a k i n g T R I P s o n t h e In f o r m a t io n

S u p e r h i g h w a y - P a rt T , 1 3 N ih o n U nivers ity C o m p a ra t ive L a w (1 9 9 6 ) , at 3 7 .

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productions of which he or she is the author. By wielding its big influence on the world markets, the U.S. government placed sufficient pressure on their close allies to impose new rules for a just ward07 One route available for the U.S. troops to protect intellectual property goods was found in the various multilateral treaties.207 208 Whatever may have been the true motivations of the United States at the beginning of the war, by the mid-1970s, their drive for global standards of intellectual property protection took on urgency.209 In 1974, as the World

Intellectual Property Organisation (WIPO)210 211 became a specialised agency of the United Nations (UN), it added a valuable contribution to the economic war in the form of a 'harmonised' system of international protection. By encompassing the 1 883 Paris Convention for the Protection of Industrial Property and the 1886 Berne Convention for the Protection of Literary and Artistic Works,211 WIPO was to administrate the world intellectual property conventions. It was to provide technical assistance to member States, and to serve as a forum for international co-operation and study of intellectual property issues.212 Under the definition provided by the WIPO, intellectual property is divided into two main branches. 'Industrial property' generally includes trademarks, inventions, industrial designs, and appellations of origin; 'copyright', on the other hand, traditionally puts together protection of artistic, literary, musical, photographic, and audio-visual works.213Ruled by the legislation of individual countries, and formulated under numerous bilateral and multilateral treaties among and between participating countries, this UN agency for the protection of intellectual property rights and the enforcement thereof internationally began to frustrate the United States at the end of the

207 S e e T u r n e r n o t e 1 5 sup ra at 2 9 6 .

208 S e e C h i e n - H a l e n o te 1 8 sup ra at 2 0 8 ,

209 S e e S i l v e r s t e in n o te 1 4 8 sup ra at 1 1 0 .

210 T h e o b j e c t i v e o f th e W I P O is to p r o m o t e th e p r o t e c t io n o f in t e l le c t u a l p r o p e r t y t h r o u g h o u t th e

w o r ld a n d t o e n s u r e a d m in is t r a t iv e c o - o p e r a t io n a m o n g m e m b e r S ta te s.

211 T h e B e r n e C o n v e n t i o n w a s e s t a b l i s h e d o n t w o c o r n e r s t o n e s ( 'n a t i o n a l t r e a t m e n t ' a n d

'm i n i m u m s t a n d a r d s ' p r o v i s io n s ) . S e e L a u r e n c e R. H e ife r , 'A d j u d i c a t i n g C o p y r i g h t C l a i m s U n d e r

t h e T R I P s A g r e e m e n t : T h e C a s e f o r a E u r o p e a n H u m a n R i g h t s A n a l o g y ', 3 9 ( 2 ) H a rv a rd In te rn a t io n a l L a w J o u rn a l ( 1 9 9 8 ) , at 3 6 6 - 3 6 7 .

212 Ib id at 3 7 6 .

213 F o r m o r e d e ta ils , s e e h t t p : / / w w w . w i p o . i n t

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1970s.214 The process for settling disputes in this system was seen as "both complex and lengthy".215 The treaties were without effective dispute resolution mechanisms.216Under the Berne Convention, the International Court of Justice (ICJ) retained jurisdiction to settle disputes between countries. Each member country, however, could elect not to be bound by the decisions of the ICJ. As an example, by 1989, only sixty Berne members remained subject to the jurisdiction of the ICJ.217 In addition, judgements were enforced only through voluntary means or by a resolution of the Security Council.

The methods of both the WIPO218 219 and the United Nations Economic, Social and

Cultural Organisation (UNESCO) were rapidly referred to as essentially 'choice of law' treaties. Since no complete and absolute body of substantive rules with international jurisdiction had been established, trans-national infringement claims fell subject to non-standardised domestic laws.210These international organisations turned out to be rather non-ambitious politically, doing little or nothing to change this situation. The Americans, on the other hand, took on the task with gusto. In estimating that the protection of intellectual property rights ensured by the existing world authorities was a "mixed success",220 the U.S. high command decided that it would be easier to create a totally new world treaty on intellectual property rights rather than to renegotiate

214 C a m i l l e A . L a t u r n o , 'In t e r n a t io n a l A r b it r a t io n o f th e C r e a t iv e : A L o o k at t h e W o r l d In t e l le c t u a l

P r o p e r t y O r g a n i s a t i o n 's N e w A rb it r a t io n R u le s ', 9 (1 ) The Transnational L a w y e r ( 1 9 9 6 ) , at 3 5 8 .

215 J e n n if e r M i l l s , 'A l t e r n a t i v e D i s p u t e R e s o lu t io n in in t e r n a t io n a l In t e l le c t u a l p r o p e r t y D i s p u t e s ',

11 (1 ) The O h io S tate J o u rn a l on D isp u te Resolution ( 1 9 9 6 ) , at 2 3 5 .

216 S e e C h i e n - H a l e n o te 1 8 supra at 2 0 8 - 2 0 9 .

217 M o n i q u e L. C o r d a y , 'G A T T v. W I P O ', 7 6 jo u rn a l o f P a ten t a n d T radem ark O ff ic e S o c ie ty ( 1 9 9 4 ) , at 1 2 1 - 1 3 1 .

218 T h e P a r i s C o n v e n t i o n is u n d e r t h e s p o n s o r s h ip o f W I P O . It p r o v id e s a f o rm a t a n d s t a n d a r d s fo r

th e in t e r n a t io n a l p r o t e c t io n o f c e r t a in t y p e s o f in t e l le c tu a l p ro p e r t y , n a m e ly p a te n ts , t r a d e m a rk s ,

a n d in d u s t r ia l d e s ig n s . T h e U n i t e d S ta te s h a s b e e n a s i g n a t o r y to th e a g r e e m e n t s i n c e M a y 3 0 ,

1 8 8 7 . H o w e v e r , th e U .S . g o v e r n m e n t h a s f o u n d th e P a r is C o n v e n t i o n u n s a t i s f a c t o r y b e c a u s e th e

t re a ty p r o v i d e s v e r y little s u b s t a n t iv e in te l le c tu a l p r o p e r t y p ro t e c t io n . S e e B e r l in e r n o t e 1 4 sup ra at

7 4 3 .

219 D a v i d Z i m m e r m a n , 'G l o b a l L im it s o n " L o o k a n d F e e l " : D e f i n i n g t h e S c o p e o f S o f t w a r e

C o p y r i g h t P r o t e c t io n b y In t e r n a t io n a l A g r e e m e n t ', 3 4 ( 2 ) C o lu m b ia Journal o f T ra n s n a t io n a l L a w (1 9 9 6 ) , at 5 0 6 .

220 S e e L a t u r n o n o t e 2 1 5 supra at 3 5 8 .

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and amend the existing agreements."1 The aim was to diminish the authority of the existing international bodies in this arena."*To achieve this goal, the U.S. high command took the General Agreement on

Tariff and Trade (or GATT), one of the last bastions of its trade foreign policy,221 222 223 off in wholly new directions, which were not necessarily consistent with its basic purposes and premises.224 225 226 The U.S. troops contemplated that stronghold of their trading policy, inherited from 1947, as part of the post-World War II Bretton Woods System (with the World Bank and the International Monetary Fund), as the best hospitable platform from which to w in ."nThe defence tactics of the U.S. troops were formulated through the GATT as it sponsored 'rounds' where signatory nations collectively met to further the established goals of the organisation.228 From 1964 to 1980, during the Kennedy

and Tokyo Rounds, the GATT expressed the desire of the United States and its allies (Japan and the European Union)227 to eliminate barriers to foreign trade. The failure to both protect and enforce intellectual property rights was seen as a barrier to foreign trade and investment. For this reason, the rounds started embracing a strong international representation,228 through incorporating developing countries.229

221 M y l e s G e t la n , 'T R I P s a n d th e F u t u re o f S e c t io n 3 0 1 : A C o m p a r a t i v e S t u d y in T r a d e D i s p u t e

R e s o l u t i o n ', 3 4 ( 1 ) C o lu m b ia J o u rn a l o f T ra n sn a tio n a l L a w ( 1 9 9 5 ) , at 1 7 6 .

222 S e e B e r l i n e r n o t e 1 4 sup ra at 7 4 7 . D e v e l o p in g n a t io n s h a v e h i s t o r i c a l l y g r a v it a t e d to W I P O

w h e r e t h e y n o w h o ld a g r e a te r d e g r e e o f c o n t r o l. In c o n t r a s t , th e d e v e l o p e d n a t io n s h a v e g r o w n

m o r e a c c u s t o m e d to m a n a g in g t h e ir t ra d e i s s u e s u n d e r th e G A T T f o r u m . N a t u r a l ly , t h e d e v e l o p e d

n a t io n s f e e l m o r e c o m f o r t a b le a n d in c o n t r o l if th e i s s u e is k e p t b e fo r e G A T T a n d h a v e r e s is t e d

c a l l s to s h if t it t o W I P O .

223 I b i d a t 7 4 0 . T h e U n i t e d S t a t e s w a s o n e o f th e p r i n c i p a l G A T T a r c h i t e c t s , s i g n i n g a s a

c o n t r a c t in g p a r t y o n O c t o b e r 3 0 , 1 9 4 7 .

224 S e e A l f o r d n o t e 2 6 su p ra at 1 4 .

225 S e e S i l v e r s t e in n o te 1 4 8 sup ra at 1 1 1 .

226 S c o t t A . M c K e n z i e , 'G l o b a l P r o te c t io n o f T r a d e m a r k In t e l le c tu a l P r o p e r t y r ig h t s : A C o m p a r i s o n

o f I n f r i n g e m e n t a n d R e m e d ie s A v a i l a b l e in C h i n a V e r s u s th e E u r o p e a n U n i o n ', 3 4 ( 3 ) C o n za g a L a w R e v ie w ( 1 9 9 8 - 1 9 9 9 ) , at 5 3 9 .

227 S e e H e i f e r n o t e 2 1 2 su p ra at 3 7 7 .

228 D a v i d B l u m e n t a l , '" R e f o r m " o r " O p e n i n g " ? R e f o r m o f C h i n a 's S t a t e - O w n e d E n t e r p r i s e s a n d

W T O A c c e s s i o n - T h e D i l e m m a o f A p p l y i n g GATT to M a r k e t i z i n g E c o n o m i e s ', 1 6 ( 2 ) U C L A P a c if ic B a s in L a w J o u rn a l ( 1 9 9 8 ) , at 2 1 9 .

229 T h e W o r l d In t e l le c t u a l P r o p e r t y O r g a n i s a t i o n c o n v e n e d in 1 9 9 1 , a n d a g a in in 1 9 9 3 , to d i s c u s s

a m e n d i n g t h e B e r n e C o n v e n t i o n to r e q u ir e s tr ic te r p e n a l t ie s fo r in f r in g e m e n t , s u c h a s p r e l im in a r y

in j u n c t io n s , s e i z u r e o f i n f r i n g in g m a te r ia ls , a n d c r im in a l s a n c t io n s , b u t t h e d i s c u s s i o n s e n d e d

w i t h o u t a n y r e s o lu t io n . O n e m a jo r r e a s o n fo r e n d in g th e d i s c u s s i o n s w a s th a t W I P O w a n t e d to se e

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The GATT was conceived as a multilateral trade-governing framework based on the idea that free trade promotes transparency, openness, and reciprocity.230 Thus, the organisation required that all members treat goods imported from one member no less favourably than goods imported from another member (the principle of the most-favoured nation).231 The promotion of this status became a priority for the U.S. troops. It would naturally come to incorporate then new progressive areas into its framework, such as trade in services and intellectual property.The Uruguay Round was the eighth such meeting. Negotiations took place over nine years. It laid the foundation stones for the Agreement on Trade-Related

aspects of Intellectual Property rights (TRIPs) signed in December 1993 and the establishment of a new organisation. The World Trade Organisation (WTO) came to reinforce the GATT as another international instrument for dispute resolution. Its Charter contained an Understanding on Rules and Procedures Governing the

Settlement of Disputes that created a single entity, the Dispute Settlement Body

(DSB) to resolve legal controversies among the members of the WTO, and the inclusion of TRIPs.232The essential feature of the agreement was its backward looking character.233 Rather than attempting to rebuild international copyright protection from the ground up, the drafters of TRIPs accepted the existing level of protection contained in the most recent version of the Berne Convention as a starting point. The Agreement raised international minimum standards,234 requiring its members to treat foreign holders of intellectual property rights no less favourably than they treat their domestic holders (article 3).235Getting intellectual property onto the agenda of the GATT negotiations was no

w h a t t h e o u t c o m e o f th e U r u g u a y R o u n d w o u ld b e b e fo r e m a k in g a n y d e c i s io n s . S e e L a z a r n o te

3 3 su p ra a t 1 1 9 7 .

230 S e e B lu m e n t a l n o te 2 2 9 sup ra at 21 8.

231 J e r e m y B r o o k s R o s e n , 'C h i n a , E m e r g in g E c o n o m ie s , a n d th e W o r l d T r a d e O r d e r ', 4 6 ( 6 ) D u k e L a w J o u rn a l ( 1 9 9 7 ) , at 1 5 2 5 .

232 S e e C h e n g n o te 8 4 su p ra at 2 0 0 3 .

233 S e e H e i f e r n o te 2 1 2 su p ra at 3 7 8 .

234 E r n s t - U l r i c h P e t e r s m a n n , 'S y m p o s i u m - T h e W o r l d T r a d e O r g a n i s a t i o n a n d t h e E u r o p e a n

U n i o n - T h e T r a n s f o r m a t i o n o f t h e W o r l d T r a d i n g S y s t e m T h r o u g h t h e 1 9 9 4 A g r e e m e n t

E s t a b l i s h in g t h e W o r l d T r a d e O r g a n i s a t i o n ', 6 (2 ) E u ro p e a n J o u rn a l o f In te rn a t io n a l L a w ( 1 9 9 5 ) , at

2 0 6 .

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easy task. Although many non-industrial nations initially objected to the inclusion of intellectual property rights as part of the comprehensive trade accord,235 236 they eventually accepted it in exchange for a global package deal that included greater access to industrialised markets and new treaties on trade in agriculture and textiles.237To the United States, the TRIPs Agreement achieved what the early world conventions and treaties had not. "At the treaty's conclusion, the U.S. government hailed the TRIPs Agreement as a victory".238 Most objectives established by U.S.

Congress for negotiating TRIPs, namely: implementation of adequate protection of various kinds of intellectual property rights, establishment of enforcement procedures internally and at the border, and implementation of a revised and effective dispute settlement mechanism, had been achieved.239 TRIPs represented an extraordinary advancement for the global protection of intellectual property rights.240 It took into account the need to promote effective, adequate protection of intellectual property rights and to ensure that measures and procedures to enforce these rights did not themselves become barriers to legitimate trade.241 By exemplifying a shift in foreign trade,242 TRIPs reflected the seriousness of the commitment by the U.S. troops to regain and preserve their competitive edge in overseas trading.243Before the signing of the TRIPs Agreement, the "old GATT dispute mechanism was full of deficiencies".244 The United States was a frequent blocker in the

235 S e e R o s e n n o t e 2 3 2 supra at 1 5 3 2 .

236 D e v e l o p i n g n a t io n s , n o t a b ly B r a z i l a n d In d ia , h a v e b e e n la r g e ly r e s p o n s ib le fo r o b j e c t in g to th e

i n c l u s i o n o f in t e l le c t u a l p r o p e r t y p r o t e c t io n in G A T T . T h e s e c o u n t r ie s m a in t a in e d th a t in t e l le c tu a l

p r o p e r t y p r o t e c t io n s h o u ld b e o n l y d e a lt w it h b y W I P O . L e a d i n g t h e c r it ic s , I n d ia d e c la r e d th a t

" [ p r o t e c t i o n o f in t e l le c tu a l p r o p e r t y r ig h t s h a s n o d ir e c t o r s i g n i f i c a n t r e la t io n s h ip to in t e r n a t io n a l

t ra d e . . . It w o u l d t h e re fo re n o t b e a p p r o p r ia t e to e s t a b l i s h w i t h in t h e f r a m e w o r k o f t h e G e n e r a l

A g r e e m e n t o n T a r if f s a n d T r a d e a n y n e w ru le s a n d d i s c i p l i n e s c o n c e r n in g t h e a v a i la b i l i t y , s c o p e

a n d u s e o f in t e l le c tu a l p ro p e r t y r ig h t . " S e e B e r l in e r n o te 1 4 supra at 7 4 7 .

237 S e e H e i f e r n o t e 2 1 2 sup ra at 3 7 7 .

238 S e e C h i e n - H a l e n o te 1 8 sup ra at 2 1 0 .

239 I b id240 S e e M c K e n z i e n o t e 2 2 7 sup ra at 5 4 0 .

241 S e e R y a n n o t e 2 0 6 sup ra at 5 6 3 .

242 S e e M c K e n z i e n o t e 2 2 7 sup ra at 5 4 1 .

243 S e e G e t la n n o te 2 2 2 supra a t 1 7 5 .

244 S e e C h i e n - H a l e n o te 1 8 sup ra at 2 2 1 .

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dispute process under the 'old system' because it claimed the GATT was not strong enough to club recalcitrant parties into submission.If an intellectual property rights owner succeeded in a lawsuit on an intellectual property right dispute against a lawbreaker, the judgement was enforced in the country where the office of business of the lawbreaker was registered. Thus, it was difficult for the owner of these rights to have the judgement enforced in a foreign nation. The owner of these rights could bring a lawsuit in his or her own country against specifically named importers and distributors to ban them from continuing to import illegal goods. However, he or she was unable to prohibit foreign producers of illegal goods from importing these via other importers or distributors.245TRIPs brought a new dimension to the conflict because the treaty's linkage to the dispute settlement system of the WTO also created important new remedies for members in order to enforce intellectual property rights on their nationals' behalf. The new dispute mechanism was then, and remains now, a significant improvement over the old system. It brought credibility to intellectual property protection. The disputing parties are required to consult with each other. The complaining party must wait for sixty days after a request for consultation before requesting the establishment of a dispute panel. Requests for panels are then automatically granted. Once a panel is established, the DSB follows strict time limits. A maximum period for panel proceedings is nine months. TRIPs also established a timetable for implementation of the report.246 The time between the date a panel is formed and the date the implementation period is set cannot exceed 15 months, unless by extension. No extension can increase the time to more than 18 months except under exceptional circumstances.247 Any decisions on whether or how to implement the recommendations are made entirely by the offending State. Its government is required to make periodic written submissions detailing their efforts to put the panel recommendation into action.

245 Z h o n g J i a n h u a , 'B o r d e r P r o t e c t io n o f I n t e l le c t u a l P r o p e r t y R i g h t s in H o n g K o n g - A

C o m p a r a t i v e S t u d y w it h t h e P o s i t io n o f M a i n l a n d C h i n a ', 1 9 (3 ) E u ro p e a n In te l le c tu a l P ro p e rty R e v ie w ^ 9 9 7 ) , at 1 5 3 .

246 S e e C h i e n - H a l e n o t e 1 8 supra at 2 2 2 .

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The dispute panel that reviewed the original complaint hears disputes over the implementation of the report's recommendations/48Upon finding violation of international trade rules, the contracting parties have various options. The contracting parties may conform to the relevant agreement by withdrawing the offensive act or rectifying the relevant omission. If the contracting party in violation decides not to comply, or fails to comply within a certain reasonable time, the other party may call for negotiations to determine compensation. In the event that no compensation is agreed upon, the complaining party may request the DSB to authorise suspension of any concessions. The authorisation is automatic unless all member countries, including the winning nation, by consensus, vote to deny the request for such suspension. However, the DSB cannot authorise suspension of concessions if the covered agreement prohibits such suspension. The respondent may also request an arbitration review of the appropriateness of the authorised retaliation.247 248 249 250 251 252 In the 1986 meeting held at Punta del Este, the Ministers of the Contracting Parties of the GATT established a series of "new rules and disciplines" "to reduce the distortions and impediments to international trade".2™ They "put teeth into the economic obligations of the Berne Convention"21 by placing intellectual property on the agenda of the Uruguay Round negotiations as one of the principal new topic for discussion. However, the epic multilateral agreement on intellectual property left the most fundamental 'international' intellectual property rights issue exclusively under the purview of national law.2 ’2Consequently, the U.S. civilian zone urged the U.S general headquarters (the Congress and the President) to turn the situation on the battlefields in their favour, as very alarming news spread. Congress and the President were pushed to react in

247 S e e C h e n g n o t e 8 4 su p ra at 2 0 0 4 .

248 S e e C h i e n - H a l e n o te 1 8 sup ra at 2 2 2 .

249 S e e C h e n g n o t e 8 4 sup ra at 2 0 0 4 - 2 0 0 5 .

250 A l l e n Z . H e r t z , 'S h a r p e n i n g t h e T r id e n t : I n t e l le c t u a l P r o p e r t y u n d e r N A F T A , I n v e s t m e n t

P r o t e c t io n A g r e e m e n t s a n d th e W o r l d T r a d e O r g a n i z a t i o n ', 2 (1 - 2 ) J o u rn a l o f C h in e s e a n d C o m p a ra tiv e L a w ( 1 9 9 6 ) , a t 2 5 .

251 S e e H e i f e r n o t e 2 1 2 sup ra at 3 8 1 .

252 V i n c e n t C h ia p p e t t a , 'T h e D e s i r a b i l i t y o f A g r e e in g to D i s a g r e e : T h e W T O , T R IP s , In t e r n a t io n a l

I P R E x h a u s t i o n a n d a F e w O t h e r T h in g s ', 2 1 (3 ) M ic h ig a n J o u rn a l o f In te rn a t io n a l L a w ( 2 0 0 0 ) , at

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parallel to the Uruguay Round negotiations.

Short-term economic and electoral interests: The U.S. political arena253

In 1986, the U.S. International Trade Commission (U.S. ITC), a semi-independent federal agency charged with the responsibility of preparing reports regarding the international U.S. economic activity, was directed to investigate the impact of world piracy on U.S. trade. It reported that over 193 U.S. firms lost US$ 23.8 billion, or 2.7% of total world-wide sales of intellectual property-related products to piracy. Firms selling scientific and goods reported the greatest losses, at 21% of the total, while computer and software were second at 17%. According to the study, 84 firms cited evidence of losses due to copyright violation.253 254 These industries were presented as "obviously important to the nation's well being, economically and otherwise".255A powerful lobby, made up of both U.S. multinational corporate producers and purveyors of intellectual property products demanded changes. They commenced a campaign to push their concerns to the top of the U.S. political agenda.256 They argued that the U.S. economy was already sufficiently, severely, and adversely affected by foreign imports, and that to abandon the newest and most commercially viable U.S. products to the mercy of overseas pirates would further threaten both domestic investment and employment. To stop the threat, the lobby demanded action. The USTR should act immediately. Many of these firms were

3 3 5 .

253 S e e A l f o r d n o t e 7 s u p ra at 1 3 5 .

254 S e e S i m p s o n n o t e 2 7 sup ra at 6 1 4 . P i r a c y c o s t U .S . e x p o r t e r s a p p r o x im a t e l y U S $ 1 0 - 2 5 m i l l i o n

in lo s t s a l e s in 1 9 8 7 . S e e S u s a n T ie f e n b r u n , 'P i r a c y o f In t e l le c t u a l P r o p e r t y in C h i n a a n d th e

F o r m e r S o v i e t U n i o n a n d its E ffe c t s U p o n In t e r n a t io n a l T r a d e : A C o m p a r i s o n ', 4 6 ( 1 ) B u ffa lo L a w R e v ie w ( 1 9 9 8 ) , a t 2 1 .

255 S e e A l f o r d n o t e 7 su p ra at 1 4 9 .

256 " I f a c o m p u t e r s o f tw a re m a n u f a c t u r e r c a n y ie ld a b e tte r ra te o f re tu rn in v e s t in g t im e a n d m o n e y

in W a s h i n g t o n (i.e ., l o b b y i n g ) t h a n d e v e l o p in g b e tte r m o d e s o f p r o d u c t i o n o r m o r e e f f e c t iv e

p r o d u c t s , t h e n h e w i l l n o t in v e s t in a n e w m o d e o f p r o d u c t i o n b u t in s t e a d p u t r e s o u r c e s in t o

c o n g r e s s i o n a l l o b b y i n g . S u c h e x p e n d i t u r e s c o n s t i t u t e s n e t s o c i a l w a s t e . " L a n ie r S a p e r s t e in ,

'C o p y r i g h t s , C r im in a l S a n c t i o n s a n d E c o n o m ic R e n t s : A p p l y i n g t h e R e n t S e e k i n g M o d e l to th e

C r im in a l L a w F o r m u la t io n P r o c e s s ', 8 7 (4 ) The J o u rn a l o f C r im in a l L a w & C r im in o lo g y ( 1 9 9 7 ) , at

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located in densely populated electoral areas, 'electorally' crucial States, such as California.257 These firms had "an unusual capacity to help shape" the American public opinion.258The military arm of the U.S. lobby was made up of five commando battalions known by the war names of IIPA, BSA, IACC, PMA, and INTA. Additionally, two battalions made of software and video game industries under the command of Nintendo and Microsoft,259 assisted in the war preparations.At the beginning of the 1990s, the International Intellectual Property Alliance

(IIPA), the International Anti-Counterfeiting Coalition (IACC), the Pharmaceutical

Manufacturers Association (PMA), the International Trademark Association

(INTA), and the Business Software Alliance (BSA), became engaged in the '30V process by submitting comments and recommendations to the USTR and its office.260 The industries and associations also actively, intrepidly testified before the U.S. Congress.The U.S. President, anxious to be seen as protecting the technical superiority of the U.S. nation overseas, feared that if he did not present a comprehensive manoeuvre to solve the chaotic situation, Congress might try to direct the war effort itself.261 Since the 1930s, Congress delegated to the Executive the power to regulate foreign trade initially vested to the legislature by the U.S. Constitution.262 Although a policy favouring strong intellectual property rights has always existed in the United States, it was only in the mid-1980s that the authorities concentrated

1 4 8 9 .

257 S e e B u r r e l l n o t e 6 sup ra at 2 1 2 - 2 1 3 .

258 S e e A l f o r d n o t e 7 sup ra at 1 5 1 .

259 B y t h e la te 1 9 8 0 s , t h e U .S . s o f t w a re a n d v id e o g a m e in d u s t r ie s h a d e m e r g e d a s o n e o f t h e

fa s te s t g r o w i n g s e c t o r s o f th e U . S . e c o n o m y a n d b e c a m e a w a r e th a t t h e y h a d a p r o b le m w it h la rg e

s c a le u n a u t h o r i s e d d u p l i c a t i o n o f s o f t w a re p r o g r a m s . F o l l o w in g th e e x a m p le se t b y t h e m o t io n

p ic t u r e a n d s o u n d r e c o r d in g in d u s t r ie s (th e M o t i o n P ic t u r e A s s o c i a t i o n o f A m e r ic a , In c . a n d th e

R e c o r d i n g In d u s t r y A s s o c i a t i o n o f A m e r ic a , In c . ) t u r n e d to C o n g r e s s . S e e S a p e r s t e in n o t e 2 5 7

su p ra at 1 4 8 0 - 1 4 8 1 .

260 S e e L iu n o t e 2 5 sup ra at 9 8 .

261 O n t h e o t h e r h a n d , th e p i r a c y o f A m e r ic a n in t e l le c t u a l p r o p e r t y r ig h t s b y C h i n a p r o v id e d " a n

a ll t o o r a re o p p o r t u n i t y to d o s o m e t h in g tha t u n it e s ra th e r t h a n d i v i d e s b u s i n e s s a n d la b o u r , at

le a s t in a f f e c t e d [U .S . ] in d u s t r ie s , w h i l e a l s o o f fe r [e d ] u p a r e a d y ta rg e t in th e e v e n t o f f a i lu r e ( in

t h e f o r m o f t h e s a m e C h i n e s e r e g im e r e s p o n s ib le fo r th e 1 9 8 9 s h o o t i n g s in T i a n a n m e n S q u a re ) .

S e e A l f o r d n o t e 7 sup ra at 1 5 1 .

262 S e e B u r r e l l n o t e 6 sup ra at 2 1 2 .

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substantial attention and resources against foreign pirates.263 As discussed above, copyright violations, which occurred abroad, could not be addressed in an U.S. court.264In order to calm the concerns on the home fronts, which were already affected by the war (the over-valuation of the dollar on exports)265 and the success of East Asian economies, notably the Japanese one, the American high command focused the troops on the alleged wrongdoing of its trading partners.266 The U.S. troops increased the fight while ignoring the economic problems of the developing world.267 268 269 To the United States, the protection of intellectual property rights stimulated economic growth, increased the gains from world trade, promoted private investment and transfer of technology, and encouraged national creativity. The perspective of the developing countries was different. They generally saw knowledge as a "common heritage of humankind" rather than the exclusive rights of an individual or a corporation.266 Developing countries reasoned that if they conceded to the norms set by developed countries before they were ready, they would forever be on the receiving end of technology and the disparity between the two camps would continue to grow.266Interestingly, the words written by a Dutch trader of the Dutch East India

C om p any in the seventeenth century echo the sentiment among the U.S. belligerents. "Trade [...] must be maintained under the protection of our own weapons; and they have to be paid for from the profits of trade. We can't trade without war, nor make war without trade".270 The very explanation of the extension of the Western concept of intellectual property legislation to the rest of the world can be found in those words.

263 Ib id .264 S e e C h i e n - H a l e n o te 1 8 sup ra at 2 0 6 .

265 S e e B u r r e l l n o t e 6 supra at 2 1 2 .

266 Ib id .267 S e e L a z a r n o t e 3 3 supra at 1 1 9 7 .

268 In d i r a G a n d h i s u m m e d u p th e In d i a n n a t io n 's o p p o s i t i o n to p h a r m a c e u t ic a l p a te n t s b y s t a t in g

th a t " [ t ]h e id e a o f a b e t te r o r d e r e d w o r ld is o n e in w h i c h m e d ic a l d i s c o v e r i e s w i l l b e f re e o f

p a te n t s a n d t h e re w i l l b e n o p r o f i t e e r in g f r o m life a n d d e a th . " S e e B e r l in e r n o te 1 4 sup ra at 7 2 9 .

269 S e e C h i e n - H a l e n o te 1 8 sup ra at 2 2 6 .

270 M i l l e n n i u m S p e c ia l E d it io n : " R e p o r t i n g o n a T h o u s a n d Y e a r s " - J a n u a r y 1 st 1 0 0 0 to D e c e m b e r

3 1 st 1 9 9 9 , 3 5 3 ( 8 1 5 1 ) The E co n o m is t, at 7 8 .

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The new strategy in the war was to introduce "economic sanctions and retaliation",271 as a more combative or unilateral approach, since the U.S. Copyright Act did not contain broad jurisdictional language to overcome the presumption against extraterritoriality.272

Formidable '301' as a new weaponry to promote domestic

productivity and facilitate international trade

The U.S. high command eventually found a remedy for international intellectual property disputes in trade law: Section 301 of the Trade Act of 1974.273 The argument to ground intellectual property issues in trade regulations was that world-wide piracy by competing foreign businesses constituted a non-tariff barrier with trade distortion effect.274 The Act was, however, amended by the Trade and

Tariff Act of 1984, considerably strengthening Section 301. The 1984 Trade Act mandated new negotiating objectives and established procedures and timetables for initiating investigations by the USTR.27"Section 301 was first used against South Korea in 1985. Other cases were also brought against Brazil and Argentina. As Section 301 began to symbolise, in the minds of many U.S. principal trading partners, a ruthless disposition by the U.S. troops to exploit their global economic power in the service of their "own parochial trading interests",276 the President was unwilling to exercise it.By having granted the President increased authority, U.S. Congress became particularly impatient. The latter sought to strengthen the U.S. trade laws again, this time by identifying a more stringent directive to mandate retaliation against intellectual property abuses.

271 S e e B e r l in e r n o te 1 4 sup ra at 7 2 7 .

272 S e e C h i e n - H a l e n o te 1 8 sup ra at 2 0 7 .

273 T h e T r a d e A c t o f 1 9 7 4 g r a n t e d g e n e r a l a u t h o r i t y to th e P r e s id e n t to a c t in r e s p o n s e to c e r t a in

u n f a i r f o r e i g n t r a d e p ra c t ic e s . T h e o f f e n s iv e t r a d e p r a c t i c e s t a r g e t e d d id n o t s p e c i f i c a l l y i n v o l v e

in t e l le c t u a l p r o p e r t y b u t w e r e c o n f i n e d to a c t io n s o f f o r e ig n g o v e r n m e n t s th a t w e r e a g a in s t U .S .

c o m m e r c e . S e e B e r l in e r n o te 1 4 sup ra at 7 3 3 .

274 S e e C h i e n - H a l e n o te 1 8 sup ra at 2 1 1 .

275 S e e B e r l in e r n o te 1 4 sup ra at 7 3 3 .

276 S e e A l f o r d n o t e 7 sup ra at 3 7 .

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The Reagan administration opposed additional changes to the trade laws, arguing that the current laws already gave the President adequate negotiating authority over intellectual property protection. Further, the U.S. administration asserted that the additional reports and mandatory negotiations required by the proposed law would put additional strain on the USTR's already thin staff and interfere with ongoing trade negotiations. Nonetheless, during the final stages of the 1988 presidentia l campaign, Congress enacted the Om nibus Trade and

Competitiveness Act of 1988.277 278

The 1988 Trade Act notably strengthened Section 301. It launched the popularly known Super 301.278 It outmoded all trade weapons previously used by the U.S. troops on the trade front. Much better adapted to a full-scale trade conflict, this new formidable "chief weapon"279 also required the USTR and its administration to supply annual lists of States engaged in "unjustifiable, unreasonable, discriminatory" trade practices, which "burden or restrict U.S. commerce".280 The USTR was now personally designated to lead the war effort.281 The aggressive character of Super 301 was comprised in one of its subsets. The Special 301 provision required mandatory responsive action to resolve the specific problem of the inadequate protection of U.S. intellectual property rights overseas. It required the USTR to yearly supply a list282of countries engaged in the violation283 of such rights, known as the priority foreign country list.284 Upon

277 S e e B e r l in e r n o t e 1 4 sup ra at 7 3 4 .

278 S e e B e a m n o te 6 9 su p ra at 3 4 9 - 3 5 0 .

279 S e e D e c l e t n o t e 5 9 su p ra at 7 6 .

280 S e e B e a m n o te 6 9 su p ra at 3 5 0 .

281 O n c e a f o r e ig n t r a d e p o l i c y is d e t e r m in e d in t h e U n i t e d S ta te s , t h e U S T R h a s th e e x c lu s i v e

a u t h o r i t y t o e n g a g e th e c o u n t r y in in t e r n a t io n a l n e g o t ia t io n s o n t ra d e i s s u e s o n b e h a l f t h e U n i t e d

S ta te s. S e e L iu n o t e 2 5 sup ra at 8 8 .

282 In d e t e r m in in g t h e S p e c ia l 3 0 1 lists, th e U S T R c o n s id e r e d d a ta f r o m th e R e g is t e r o f C o p y r ig h t s ,

t h e C o m m i s s i o n e r o f P a t e n t s a n d T r a d e m a r k s , a n d th e N a t i o n a l T r a d e E s t im a te s . T h e lis t w a s

r e le a s e d e a c h s p r in g . S e e Y e h n o te 31 supra at 505.283 C o u n t r i e s w e r e e n g a g e d in the vio lation of U .S . intellectual p r o p e r t y r ig h t s if t h e y d e n ie d

a d e q u a t e a n d e f f e c t iv e protection of intellectual property rights, or if t h e y d e n i e d f a i r a n d

e q u i t a b le m a r k e t a c c e s s to Americans that relied upon intellectual p r o p e r t y p r o t e c t io n . S e e

K a c h u r i a k n o t e 6 6 su p ra at 6 1 5 .

284 T h e l i s t s w e r e e s t a b l i s h e d after issuance of the N ational T r a d e E s t im a t e s R e p o r t . T h e

id e n t i f ic a t io n o f p r io r i t y c o u n t r ie s could stem from a petition for i n v e s t ig a t io n f i le d b y " a n y in te re st

p e r s o n " , o r f r o m in f o r m a t io n provided by other sources w it h in t h e Federal G o v e r n m e n t , s u c h a s

t h e R e g i s t e r o f C o p y r i g h t s a n d th e Commissioner of P a te n t s a n d T r a d e m a r k s . T h e lis t h a d to b e

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releasing this list, the USTR and its administration had to initiate an investigation285 into the acts of priority foreign countries within thirty days, and seek consultations with the countries to discuss the offending practices and a resolution of the situation.286 Special 301 gave the USTR six months to complete the investigation and negotiate bilateral solutions.287If the USTR determined that the foreign nation was not satisfactorily implementing these measures, or there was no resolution of U.S. concerns, the USTR was then authorised by the President to take responsive action. Special 301 officially justified the imposition of unilateral trade sanctions by the U.S. troops on breaching enemies.288The new weapon was condemned as an example of aggressive unilateralism289 by the rest of the international community.290 '301' was a unilateral evaluation by the United States of overseas conduct according to standards set by U.S. laws. Instead of a court judgement against private parties for violation of U.S laws, 301 ' actions could result in sanctions, imposed at a government-to-government level to demand conformity with the U.S. legal system.291 To its apologists, 3 01 ' was seen, however, as the logical playing out of one of the most widely respected precepts of the global society: the notion of "reciprocity".292 It was a unique U.S. institution allowing a direct channel for private plaintiffs to voice their complaints and to request the U.S. government to negotiate with a foreign government on their behalf.293

c o m p le t e d b y A p r i l t h ir t ie th o f e a c h y e a r a n d b e p u b l i s h e d in th e F e d e r a l R e g is t e r . S e e B e r l in e r

n o t e 1 4 s u p ra at 7 3 5 .

285 In i d e n t i f y i n g p r io r i t y f o r e ig n c o u n t r ie s , th e U S T R h a d to c o n s u l t w i t h t h e C o m m i s s i o n e r o f

P a te n t a n d T r a d e m a r k s , th e R e g is t e r o f C o p y r ig h t s , a n d o t h e r a p p r o p r ia t e g o v e r n m e n t o f f ic ia l s . S e e

K a c h u r i a k n o t e 6 6 su p ra at 61 5.

286 S e e B e r l in e r n o t e 1 4 sup ra a t 7 3 5 .

287 S e e C h e n g n o t e 8 4 su p ra at 1 9 6 6 .

288 S e e B e a m n o t e 6 9 sup ra at 3 5 0 .

289 I r o n i c a l l y , t h e 3 0 1 ' a c t i o n a l s o le d c o u n t r ie s to d e m a n d th a t t h e W T O in c o r p o r a t e m o r e

le g a l i s t ic d i s p u t e r e s o lu t io n m e c h a n i s m s . T h e y b e l ie v e d tha t b y g i v i n g th e W T O m o r e p o w e r to

d e c i d e in t e r n a t io n a l t r a d e d i s p u t e s , t h is w o u ld u n d e r m in e th e U . S . a g g r e s s i v e u n i la t e r a l i s m . S e e

S c h le s i n g e r n o t e 1 7 6 su p ra at 1 3 8 .

290 S e e A l f o r d n o t e 7 sup ra at 3 7 .

291 S e e C h i e n - H a l e n o t e 1 8 sup ra at 2 1 3 .

292 S e e A l f o r d n o t e 7 sup ra at 3 7 .

293 S e e C h i e n - H a l e n o t e 1 8 su p ra at 2 1 1 .

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At the dawn of the 1990s, 301 ' fundamentally changed the vision of the U.S. troops. The aggressive character of the weapon was to facilitate a way out of the conflict.294 The U.S. troops no longer needed trade negotiations to advance on the trade front, but instead used the threat of tit-for-tat retaliation to force the violators of the U.S. intellectual property rights to remove their unfair or unreasonable actions.295Vested w ith this new chief weapon, the U.S. troops progressed in the trade war, but w ith a renewed self-confidence. In 1989, the new administration with President Bush created an intermediate step not required by Special 301 in establishing a 'watch list' of twenty-five countries. Two categories of nations with unfair intellectual property trade practices were identified. Seventeen of them were placed on the 'priority watch list',29'’ while the remaining eight297 (Mexico, Brazil, Saudi Arabia, India, Thailand, Taiwan, South Korea, and China) were flagged on the 'watch list' in May 1989.298Wedded to a policy of 'laissez-faire', the Republicans in power in Washington were then ideologically opposed to retaliatory actions.299 Furthermore, "always uncomfortable with commitments on distant battlefields", the American right preferred concentrating the U.S. efforts to redefine the field of American foreign policy in terms of "soft issues",300 which could be achieved without the use of

294 S e e Y e lp a a l a n o t e 1 9 0 sup ra at 8 5 0 .

295 Ib id .296 T h e s e c o u n t r i e s w e r e t h o s e th a t c o u ld m e e t t h e s t a t u t o r y c r i t e r ia f o r p r i o r i t y c o u n t r y

i d e n t i f i c a t i o n , b u t w e r e m a k i n g s o m e p r o g r e s s in b i la t e r a l o r m u lt i l a t e r a l n e g o t ia t io n s . T h e

P r e s id e n t g a v e t h e m s i x m o n t h s to s h o w p o s i t i v e p r o g r e s s b e f o r e n a m i n g t h e m a s p r io r i t y

c o u n t r ie s , t h u s t r ig g e r in g th e 'S p e c i a l 3 0 1 ' m e c h a n is m . S e e B e r l in e r n o te 1 4 su p ra at 7 3 7 - 7 3 8 .

297 X i a o - L i n Z h o u , 'U . S . - C h i n a T r a d e D i s p u t e a n d C h i n a 's In t e l le c t u a l P r o p e r t y R ig h t s P r o t e c t io n ',

2 4 ( 3 ) N e w Y o rk U n iv e rs ity J o u rn a l o f In te rn a tio n a l L a w a n d P o lit ic s ( 1 9 9 2 ) , at 1 1 1 6 - 1 1 1 7 .

298 T h i s s e c o n d c a t e g o r y o f w a t c h list c o u n t r ie s w a s c o m p o s e d o f c o u n t r ie s th a t h a d a le s s e r d e g r e e

o f in t e l le c t u a l p r o p e r t y p r o t e c t io n a n d w e re g i v e n o n e y e a r to p r o v e s o m e p r o g r e s s . S e e B e r l in e r

n o t e 1 4 s u p ra at 7 3 8 . O n M a y 1 9 , 1 9 8 9 , C h in a a n d th e U n i t e d S ta te s s i g n e d a n a g r e e m e n t o n th e

p r o t e c t i o n o f i n t e l le c t u a l p r o p e r t y r ig h t s . In t h i s a g r e e m e n t , t h e C h i n e s e g o v e r n m e n t w a s

c o m m i t t e d t o f o r m u la t e a c o p y r i g h t la w , to r e v i s e th e P a te n t L a w , a n d to a c c e d e to s o m e

in t e r n a t io n a l c o n v e n t i o n s fo r t h e p r o t e c t io n o f in t e l le c t u a l p r o p e r t y r ig h t s . S e e Y a n g G u o h u a ,

'S i n o - f o r e i g n B ila te ra l IP A g r e e m e n t s ', 6 2 (3 ) C h ina Patents & T ra d e m a rks ( 2 0 0 0 ) , at 6.

299 S e e B u r r e l l n o te 6 su p ra at 2 1 2 .

300 H e n r y A. K is s in g e r , 'T h e L o n g S h a d o w o f V ie t n a m ', 8 5 ( 1 8 ) N e w s w e e k , 1 M a y 2 0 0 0 , a t 3 6 . T h e

P e o p l e 's R e p u b l i c o f C h i n a a n d th e U n i t e d State s i g n e d a M e m o r a n d u m o f U n d e r s t a n d in g o n M a y

1 9 , 1 9 8 9 t h a t r e la te d g e n e r a l l y to th e e n a c t m e n t a n d s c o p e o f a C h i n e s e c o p y r i g h t la w . S e e

T ie f e n b r u n n o t e 2 5 5 su p ra at 2 1 .

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strength.301 Thus, the USTR first chose not to target any of these eight breaching countries with the imposition of unilateral trade sanctions in May 1990.302 With the collapse of the Soviet Union, however, the need for a new U.S. strategy adapted to the post-cold-war world baffled many conservatives in Washington.303 They began to be torn (especially in the neo-conservative group) between searching for a new danger to replace the Soviet Union "in opposition to which all foreign policy can be organised", and the redefinition of "American exceptional ism" as a global crusade for democracy.304 305 They seemed then to have found in trade an ardent advocate of this theory. "It promotes ([they] believe[d]) political as well as economic progress. It pries open closed societies, lifts the poor into the middle class, creates pressure for democracy and - by binding countries together commercially - reduces the odds of war."3015After having investigated into the acts, practices, and policies of these countries identified on the 'priority watch list', the USTR had to recognise that the lack of apparent progress on the protection of intellectual property rights in India, Thailand, and China was enough provocation. Denounced as the three most egregious and onerous violators of American intellectual property rights, the three countries were bombarded in April 1991. The threat of Special 301 was used in the trade war by the U.S. war machine for the first time. The United States confronted China yet again.The People's Republic of China soon became the "prime target"306 for much of the new American effort based on a search of "riskless applications" of American

301 U n d e r b o t h c a t e g o r ie s o f 'p r io r i t y w a t c h list c o u n t r ie s ', th e m a n d a t o r y in v e s t ig a t io n m e c h a n i s m

a n d r e s p o n s i v e a c t io n t im e t a b le o f 'S p e c i a l 3 0 1 ' w a s n o t t r ig g e r e d b e c a u s e th e c o u n t r ie s w e r e p u t

o n a w a t c h lis t r a th e r t h a n th e 'S p e c i a l 3 0 1 ' p r io r i t y list. T h e in t e r m e d ia t e a p p r o a c h o f t h e B u s h

a d m in i s t r a t i o n in t e n d e d to p r o d t h e s e c o u n t r ie s in t o a c t io n , w i t h o u t a c t u a l l y r e t a l ia t in g a g a in s t

t h e m . T h i s t a c t ic m e t w it h a m ix e d r e a c t io n f r o m C o n g r e s s . S o m e le g i s la t o r s a p p l a u d e d th e

P r e s id e n t 's re s t ra in t , w h i l e o t h e r s c r i t ic i s e d the a c t io n a s b e in g w e a k . S e e B e r l in e r n o t e 1 4 sup ra at

7 3 8 .

302 S e e G e t la n n o t e 2 2 2 sup ra at 1 9 1 - 1 9 2 .

303 T h e d i s in t e g r a t io n o f th e S o v ie t U n i o n h a s r a d i c a l l y t r a n s f o r m e d th re a t s to in t e r n a t io n a l p e a c e

a n d s e c u r i t y a s w e l l a s t r a d i t io n a l n o t i o n s o f n a t io n a l s e c u r i t y . S e e W a l t e r C a r y S h a r p , S R . ,

'R e d e f i n i n g N a t i o n a l S e c u r i t y in T o d a y 's W o r l d o f I n f o r m a t io n T e c h n o l o g y a n d E m e rg e n t T h re a t s ',

9 ( 2 ) D u k e J o u rn a l o f C o m p a ra tiv e a n d In te rn a tio n a l L a w ( 1 9 9 9 ) , at 3 8 3 .

304 S e e K i s s i n g e r n o te 3 0 1 sup ra at 3 6 .

305 R o b e r t J. S a m u e l s o n , 'C o e x i s t i n g w it h C h in a ', 8 5 ( 2 2 ) N e w sw e e k , 2 9 M a y 2 0 0 0 , at 2 0 .

306 S e e C h i e n - H a l e n o te 1 8 sup ra at 2 2 9 .

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values and an erratic quest for a focal point for the national strategy of the United States.307Such an approach was made possible only because the world became largely freed "from the dangers of general war". In such a world, "the post-cold-war generation of American leaders [... found] it possible to imagine that foreign policy consists merely of instructing the rest of the world". This turned the diplomacy of the United States "into nothing more than demands for compliance with an American agenda"308 -the concept of riskless global gratification and the belief that the hard-headed pursuit of economic self-interest would ultimately produce global reconciliation.Since 1978, more and more foreign goods, helped by lively advertising, have infiltrated the Chinese market.309 Selling these as a popular symbol of personal wealth,310 Chinese demand for foreign products has grown ever greater.311 The appetite of China's public for these items inflated as the average urban income increased and most residents of Chinese cities commenced to spend more time on recreation.312 Pirates started taking advantage of the abundant economic opportunities in making foreign goods affordable, in allowing the Chinese public to tolerate piracy.313Due to the great size of the Chinese market, the country was not only listed as a 'priority foreign country', but also denounced as the "world's worst pirate"314 by the USTR and its troops. They argued that China's government has often acted in bad faith, turning a blind eye to widespread and well-organised piracy, even as it

307 S e e K i s s i n g e r n o t e 3 0 1 sup ra at 3 7 .

308 I b id309 L i s a L e o n g , T r a d e m a r k L a w in t h e P e o p le 's R e p u b l i c o f C h i n a : E n c o u r a g e m e n t o f F o r e ig n

In v e s t m e n t ', 7 (1 ) A u s tra lia n In te lle c tu a l P ro p e rty J o u rn a l ( 1 9 9 6 ) , at 3 2 .

310 P a t r ic k H . H u , ' " M i c k e y M o u s e " in C h in a : L e g a l a n d C u l t u r a l Im p l i c a t i o n s in P r o t e c t in g U .S .

C o p y r i g h t s ', 1 4 ( 1 ) B o s to n U n iv e rs ity In te rn a tio n a l L a w J o u rn a l ( 1 9 9 6 ) , at 9 2 .

311 Ib id .312 T h e v a l u e o f p ir a te d g o o d s in C h i n a g r e w to a n e s t im a t e d U S $ 2 . 8 b i l l i o n in 1 9 9 7 f r o m a b o u t

U S $ 2 .3 b i l l i o n in 1 9 9 6 . S e e Y e h n o te 5 2 supra at 1 8 1 - 1 8 2 .

313 T h e w i d e a c c e s s i b i l i t y o f c o u n t e r fe it c o m p u t e r s o f t w a re s t e m m e d f r o m th e fa c t th a t o f f e n d e r s

m a d e n o s e c r e t o f th e lo c a t io n s w h e r e th e p ir a te d p r o d u c t s c o u ld b e p u r c h a s e d . T h e a r e a s w e re

c o m m o n k n o w l e d g e to b o t h th e C h in e s e p o p u la t io n a n d fo re ig n e r s . S e e H o n o te 6 3 sup ra a t 9.

314 S e e S im p s o n n o t e 2 7 supra at 6 1 9 .

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promulgated a new legislation in the country.m

[ii] It's great to have a good piece of paper, it's another thing to see it implemented —

The intensity of the fighting was increased on the Chinese front, more than on any other front in Asia,315 316 317 because China was the only major trading partner of the United States to offer no copyright protection for works. Moreover, China's laws did not adequately cover a large quantity of patented goods and trade secrets. The situation was further intensified by the fact that trademarks were simply granted to first registrants, with no regard given to common law use and original ownership.318 However, before imposing trade sanctions on China, the USTR and its strategists chose to solicit public opinion on whether or not this retaliatory action would be deemed to encompass a principle of 'fairness'.319 The U.S. decision resulted in highly publicising the struggle to establish intellectual property rights in China.370

Mobilisation of the 'Intrepid Warriors

The unprecedented size of public response in the United States had the effect of acting as an impetus for general mobilisation of 'intrepid warriors' to China's front. "[W ]e support the U.S. government totally in its efforts on this issue and if it has a short-term impact on us, then that's part of the price that we w ill have to

315 T h e C h i n e s e g o v e r n m e n t w a s u n d e r s t a n d a b l y s c e p t ic a l o f A m e r i c a n a r g u m e n t s t h a t s t r o n g

in t e l le c t u a l p r o p e r t y w a s n e c e s s a r y in o r d e r to p r o v i d e a n i n c e n t i v e f o r t h e p r o d u c t i o n a n d

im p o r t a t io n o f n e w w o r k s a n d th a t w i t h o u t s u c h p r o t e c t io n e c o n o m i c d e v e l o p m e n t w o u l d b e

im p e d e d . In p a r t ic u la r , t h is a r g u m e n t s e e m e d to b e b e l ie d b y t h e fa c t th a t t h e U n i t e d S t a te s a n d ,

m o r e r e c e n t ly , o t h e r E a st A s i a n c o u n t r ie s h a d g o n e t h r o u g h p e r i o d s o f r a p id e c o n o m i c g r o w t h

w h i l s t r e f u s in g to p ro te c t f o r e ig n c o p y r ig h t w o r k s . S e e B u r r e l l n o te 6 sup ra at 1 9 7 a n d 2 0 8 .

316 F r a n k P r o h a s k a , 'T h e 1 9 9 5 A g r e e m e n t R e g a r d in g In t e l le c t u a l P r o p e r t y R ig h t s B e t w e e n C h i n a

a n d t h e U n i t e d S ta te s : P r o m i s e s f o r I n t e r n a t io n a l L a w o r C o n t i n u i n g P r o b l e m s w it h C h i n e s e

P i r a c y ? ', 4(1) Tulsa J o u rn a l o f C o m p a ra tiv e a n d In te rn a tio n a l L a w ( 1 9 9 6 ) , at 1 7 9 .

317 S e e G e t la n n o te 2 2 2 sup ra at 1 9 2 .

318 S e e Z h o u n o t e 2 9 8 sup ra at 1 1 1 7.

319 S e e G e t la n n o t e 2 2 2 sup ra at 1 9 4 .

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pay",320 321 a large part of the American opinion claimed.Although they overwhelmingly supported the action of the USTR and its troops, the legal literature, the media and government circles had a tendency to be more straightforward. China was portrayed as a "pirate's market",322 which had reneged on its world obligation in not abiding by world standards. Indirectly, the 'intrepid warriors' demanded action to the USTR and its troops to act immediately.North American legal literature was at the forefront of the campaign that popularised the idea of fairness. Outpourings of materials were published, disseminating the conviction that the warriors were the supporters of justice as the key concept of a newly international legal order323 that had to be expanded. Supported by the powerful North American press, with magazines "such as [...] The New Yorker",324 325 326 the idea found enough echoes among the globe to finally raise a pseudo-army of sorts made up of muddled warriors who were supposedly trained in the field of intellectual property. Their self-imposed mission was to snatch the innocent heroine of their stories, 'Copyright', from the evil clutches of a little known and impalpable character, endowed with hidden powers, and commonly called 'Confucius'.323By relying on the fact that China did not abide by world standards, the 'intrepid warriors' enthusiastically leapt to the front amid a media din, discreetly and judiciously flattered by the USTR/20 As the "enthusiasm for public affairs demonstrated by industries, trade organisations, and even the general public in the United States [was] unsurpassed by any other nation",327 the majority of warriors (journalists, business people, lawyers, students, academics, governmental

320 S e e T u r n e r n o t e 1 7 7 sup ra at 1 3 .

321 S e e B e a m n o t e 6 9 su p ra at 3 5 2 .

322 S e e S i m p s o n n o te 2 7 sup ra at 6 1 9 .

323 H i s a s h i O w a d a , 'J u s t ic e a n d S t a b i l i t y in th e In t e r n a t io n a l L e g a l O r d e r - A n E s s a y in L e g a l

A n a l y s i s o f t h e C o n t e m p o r a r y In t e r n a t io n a l O r d e r ', 3 9 The Japanese A n n u a l o f In te rn a t io n a l L a w (1 9 9 6 ) , at 3 .

324 S e e A l f o r d n o t e 7 sup ra at 1 3 5 .

325 T h i s t e rm is t h e s u b j e c t o f th e s e c o n d p a rt o f th is th e s is , a l s o n a m e d a s 't h e D o m e s t i c F r o n t '.

326 T h e U S T R s p o k e to s o m e o f th e U n i t e d S t a t e s ' le s s a t t ra c t iv e , s u b c o n s c i o u s fe a rs . T h e l in k

b e t w e e n in t e l le c t u a l p r o p e r t y a n d trad e , e s p e c ia l l y c o n c e r n in g E a st A s ia , s o o n b e c a m e m o r e t h a n

ju s t r h e t o r ic a l . B y th e m id - to la te 1 9 8 0 s , it h a d b e c o m e a n im p o r t a n t e le m e n t o f th e U . S . p u b l i c

p o l ic y . S e e A l f o r d n o te 2 6 sup ra at 13 .

327 S e e L iu n o t e 2 5 sup ra at 9 7 .

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officials, and so forth) were from the United States. Their cause was publicised through their numerous writings. They compared 'Copyright' to the other "fair maidens of American commerce",3*0 held in captivity in the junks of the fierce Chinese pirates.As expected, the campaign to stamp out piracy of intellectual property eventually became popular with the American public who was suddenly fascinated by this "interdisciplinary inquiry", no longer disparaged as a "field of forms and abstractions".329 In the same way that Cinderella was enabled by the fairy godmother to attend the royal ball,330 so too was copyright propelled from a backroom speciality subject to a boardroom topic.331Up until the 1990s, " [intellectual property used to be the tail that failed to wag the dog in commercial transactions", after the first round was won in the struggle to make China to protect intellectual property rights, it came to be "the dog itself".332

Round One

To prevent the imposition of unilateral trade sanctions on China, negotiations took place. After intensive negotiations, however, the two parties failed to reach an agreement by the November 26, 1991 deadline. There were many obstacles, in particular when tackling computer software, pharmaceutical, and other chemicals, holding up the advance of the U.S. troops on the battlefields. To

328 S e e A l f o r d n o t e 7 sup ra at 1 3 5 .

329 R o s e m a r y J. C o o m b e , B o o k s R e v ie w s , 'C h a l l e n g i n g P a te rn it y : H i s t o r i e s o f C o p y r i g h t ', 6 - 7 Yale J o u rn a l o f L a w a n d H u m a n it ie s ( 1 9 9 4 - 1 9 9 5 ) , at 3 9 7 .

330 " [ l ] n t e l l e c t u a l p r o p e r t y w e n t f r o m b e in g a b a r k to f ro n t b u r n e r i s s u e in p a r t b e c a u s e o f a

g r o w i n g r e a l i s a t i o n o f o u r d e p e n d e n c e u p o n it . " " [ A ] s I p o u r w h a t I f e a r m a y b e g e n e t i c a l l y

e n h a n c e d m i l k o v e r m y t r a d e m a r k e d b a n a n a s a n d f la k e s m a d e o f h y b r i d c o r n a n d s o l d in

t r a d e m a r k e d p a c k a g e s c o v e r e d w it h c o p y r ig h t e d a d v e r t i s in g b la t h e r . " S e e A l f o r d n o t e 2 6 sup ra at

12.331 S e e G u r r y n o t e 1 5 3 sup ra at 3 6 9 . D u r i n g t h e 1 9 8 0 s , th e g l o b a l m a r k e t p la c e w i t n e s s e d a n

e x p l o s i o n o f c o m p u t e r t e c h n o l o g ie s . D u r i n g p r e c i s e ly th e s a m e p e r io d , " in t e r n a t io n a l in t e l le c tu a l

p r o p e r t y p r o t e c t io n e m e r g e d f r o m th e o b s c u r i t y o f a n a r c a n e le g a l s u b - s p e c ia l i t y , a n d g a in e d

s u f f ic ie n t n o t o r ie t y to p e r io d ic a l l y d o m in a t e the h e a d l in e s " . S e e M c M a n i s n o te 2 0 7 sup ra at 3 7 .

332 S h a w n K . B a ld w in , ' " T o P r o m o t e th e P r o g r e s s o f S c i e n c e a n d U s e f u l A r t s " : A R o le f o r F e d e ra l

R e g u l a t i o n o f I n t e l le c t u a l P r o p e r t y a s C o l l a t e r a l ', 1 4 3 U n iv e rs ity o f P e n n s y lv a n ia L a w R e v ie w ( 1 9 9 5 ) , at 1 7 0 4 .

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pressure China to raise levels of copyright protection to that of the Berne Convention, the United States threatened China with sanctions in the form of 100% tariffs imposed upon a list of US$ 1.5 billion worth of goods. On the other hand, China threatened retaliatory duties on US$ 1.2 billion of U.S. commodities, such as steel, aircraft, cotton, corn, and chemicals.333However, after nine months of bitter fighting, a U.S. victory was eventually achieved in January 17, 1992, as the Memorandum of Understanding on

intellectual property rights (1992 M OU) was signed. The United States hailed this as the most important Special 301 victory to date.334The accord was well received by the public and celebrated by the U.S. media through the numerous writings of the warrior-storytellers. Western publications expressed something akin to jubilation as articles were w idely published, explaining at length how China was duly required to give reciprocal copyright protection to American authors, even if their works were first published in the United States.335 They also made known in detail how China was to modify its legislation to protect American patents "more effectively"336 and when a law for the prevention of unfair competition was to be enacted. China was to prevent trade secrets from being disclosed to, acquired by or used by, others without the consent of trade secret owners in a manner contrary to honest trade practice. They finally reported what article 3-6 of the MOU stipulated. "No later than the effective date of China's accession to the Berne Convention", China "agrees to recognise and protect computer programs as literary works under the Berne Convention", with a term of protection of fifty years.337 The nation was also required to impose no formalities on the protection of computer programs.As it was, the U.S. troops felt dispossessed of a victory that was little by little confiscated by the 'intrepid warriors' who used it to their sole advantage to serve their interests. The more they were telling about the Chinese piratical situation, which was portrayed as hell, the more the public became charmed, leaving the

333 S e e F e d e r n o t e 29 sup ra at 240.334 S e e C h i e n - H a l e n o te 18 sup ra at 21 7.335 S e e S im p s o n n o te 27 sup ra at 591.336 S e e P r o h a s k a n o te 317 sup ra at 1 71 -1 72.

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warrior-storytellers persuaded that their stories would persistently attract a large audience. However, Western Legal Sinology was less optimistic about the chances of success of the MOU. The opinion of that detachment was soon to be confirmed.China fu lfilled its commitments to the MOU by joining several the Berne Convention, the Universal Copyright Convention (UCC), and the Geneva

Convention for the protection of producers of phonograms against unauthorised

duplication of their phonograms.33B However, large quantities of pirated goods from illegal Chinese factories were soon to be seized by U.S. customs. China's customs authorities also seized about 2 m illion CDs, 750,000 videocassettes,37,000 software programs, and 450,000 published works.337 338 339 Both the glory of the U.S. troops and the vanity of the intrepid warrior-storytellers were flouted. The USTR and its office were driven into a corner. Obviously, piracy in China had not been curtailed.340On April 30, 1994, the USTR announced that China risked being listed again as a priority foreign country, but postponed the decision, agreeing that China's intellectual property legislation was improving.341 However, on June 30, estimating that Chinese piracy cost U.S. software companies about US$ 80 million annually, and that sales of illegally copied CDs cost U.S. right-holders around US$ 400 million yearly, China was once more under the threat of Special 301.342 The protection China offered was denounced by the USTR as "sporadic at

337 S e e Y e h n o t e 31 sup ra at 5 1 0 .

338 C h i n a j o i n e d t h e 'P a r i s C o n v e n t i o n ' in 1 9 8 5 . C h i n a a c c e d e d to th e 'B e r n e C o n v e n t i o n ' o n

O c t o b e r 1 5 , 1 9 9 2 , th e 'U n i v e r s a l C o p y r i g h t C o n v e n t i o n ' o n O c t o b e r 3 0 , 1 9 9 2 , a n d th e 'G e n e v a

P h o n o g r a m s C o n v e n t i o n ' o n A p r i l 3 0 , 1 9 9 3 . " I t is in t e r e s t in g to n o t e th a t [ C h i n a a c c e d e d to

B e r n e ] o n l y f o u r y e a r s a fte r t h e a c c e s s i o n o f t h e U S A . " S e e G a o L i n g h a n , 'R u i e s f o r t h e

Im p le m e n t a t io n o f t h e B e rn e C o n v e n t i o n in th e P e o p l e 's R e p u b l i c o f C h i n a ', 2 4 I IC - In te rn a t io n a l R e v ie w o f In d u s t r ia l P ro p e r ty a n d C o p y r ig h t L a w - ( 1 9 9 3 ) , at 4 7 5 . T h e B e r n e a n d G e n e v a

C o n v e n t i o n s a p p l i e d to th e 'p r i n c i p l e o f p r io r i t y o f in t e r n a t io n a l t r e a t ie s ' u n d e r th e C h i n e s e la w s .

S e e Y a n g n o t e 2 9 9 sup ra at 6.

339 S e e P r o h a s k a n o t e 3 1 7 sup ra at 1 7 9 .

340 " T h e m o r e y o u p r e s s t h e C h i n e s e to d o t h e s e t h in g s , th e m o r e t h e y w i l l f in d it im p o s s ib le ,

b e c a u s e i t 's a n a f f r o n t . " L e e K u a n Y e w , 'F o r u m - C h i n a 's P r o s p e c t s - In S h a n g h a i , a c o n f e r e n c e o f

c a p it a l i s t s p o n d e r s th e c o u n t r y 's f u tu re ', A s ia w e e k , 1 5 O c t . 1 9 9 9 , at 4 2 .

341 C h i n a b e g a n to c re a te h a r s h e r p e n a l t ie s fo r in t e l le c tu a l p r o p e r t y r ig h t s v io la t io n s , i n c l u d in g ja il

s e n t e n c e s f o r c o p y r ig h t p ira te s, th e d e a th p e n a lt y fo r s e r io u s t r a d e m a r k o f fe n d e r s , a n d p u n i s h m e n t

f o r c o l l u s i o n b y g o v e r n m e n t o f f ic ia ls . S e e F e d e r n o te 2 9 supra at 2 4 2 .

342 S e e B e a m n o te 6 9 sup ra at 3 5 1 .

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best and virtually non-existent for copyright works".343Since the 'intrepid warriors' did not see what they expected to find in China following the signing of the 1992 MOU, they jumped to the conclusion that the Chinese nation was engaged in the large-scale theft and piracy of U.S. intellectual property.344 They returned to battlefields where virulent media campaigns enjoined the U.S. troops to bring China's pirates "in to line".345 Shouting themselves hoarse, the 'intrepid warriors' declared that the "experience we have had with the Chinese in the past is that you have to get far down the road (with threats and retaliation) before you reach a settlement".346Finally, after several unsuccessful assaults34' by the U.S. troops to pressure China to sign a new agreement, the USTR decided to impose up to 100% tariffs on a list of imports of Chinese products worth almost US$ 2.8 b illion348 349 if a pact was not reached by February 26, 1995.346 China's failure to close down the manufacturing facilities for illegally pirated goods, the inadequate computer software protection, and the question as to whether China would provide consumers with the necessary market access to legitimate products,350 led the USTR351 to take this drastic decision. It was the boldest such action in American trade history. China responded to the sanctions by announcing its own retaliatory tariffs against U.S. exports.

Round Two

343 S e e P r o h a s k a n o t e 31 7 su p ra at 1 71 -1 72.344 A s s a f a E n d e s h a w , 'M ore Turm oil in US-China Relations in Intellectual Property', 2 6 ( 3 ) H o n g K o n g L a w J o u rn a l C\ 9 9 6 ), at 2 8 1 .

345 S e e E n d e s h a w n o te 8 su p ra at 49.346 S e e S i m p s o n n o t e 27 sup ra at 61 8.347 N e g o t i a t i o n s c o n t i n u e d until the December 31, 1994 deadline, but to no avail. See Feder n o te

2 9 s u p ra a t 2 4 2 .

348 S e e B e a m n o te 6 9 sup ra at 3 5 2 .

349 S e e F e d e r n o t e 2 9 sup ra at 2 4 2 .

350 S e e S i m p s o n n o t e 27 sup ra at 61 8.351 M i c k e y K a n t o r w a s then Deputy USTR. Jack Valenti, head of the M otion Picture A s s o c i a t i o n o f

A m e r ic a , p i c t u r e d h im a s a 'great American Samurai' and protector o f American movies. S e e

A l f o r d n o t e 7 sup ra at 1 5 1 .

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China's Trade Minister352 responded to the U.S. threat by doubling tariffs on various U.S. products, such as cigarettes, alcohol, tobacco products, cosmetics, and automobiles353 and by freezing diverse American initiatives on its territory.354 The situation on China's front suddenly intensified as the Chinese recognised the value of a schism within the American industries and attempted to exploit it to its advantage.355 In reality, only the entertainment and high-technology industries desired tougher action against China. The rest of the U.S. industries, for instance, the aerospace industry, were not interested in retaliation.356 They estimated that imposing sanctions on China for intellectual property piracy would result in the U.S. economy loosing business to European or other competitors.357 Furthermore, other people anticipated that many jobs would be lost in the United States, as a direct result of higher prices that would follow trade sanctions.358 The public started facing a volatile situation as the Chinese propaganda began to interfere w ith the statements of the 'intrepid warriors'. It was torn between two different leanings. If the public went by what the Chinese authorities said, China's version of the war359 was totally different to the American point of view.360 The negotiations between the two parties constantly failed because China called the U.S. demands "rude, unacceptable!,] and unreasonable",361 and blamed the United States. The official 'Xinhua' news agency in China reported that 'Capitol H ill' was interfering in the country's domestic business demanding China to revise

352 W u Yi was then China's Trade Minister.353 See Simpson note 27 sup ra at 619.354 See Kachuriak note 66 sup ra at 616.355 See Tiefenbrun note 255 sup ra at 31.356 I b id357 Ib id .358 See Cetlan note 222 sup ra at 194.359 The U.S. contradictory trade policy toward China was already visible in February 1995. At that time, the United States signed 34 contracts worth more than US$ 6 b illion in Beijing, 8 contracts worth US$ 2 b illion in Shanghai on energy efficiency technology development and nuclear fuel research, and 26 joint-ventures valued at US$ 4 b illion in renewable energy, electricity, gas andoil. China has its own needs just as do the Americans. See Tiefenbrun note 255 sup ra at 31.360 "As far as intellectual property is concerned, the practice of the United States asking large numbers o f Chinese students to stay in the United States is itself a big plunder o f intellectual property." See Alford note 1 26 sup ra at 112.361 The cum ulative effects of the 1992 and 1995 agreements, if implemented by China, would make it even harder for the Chinese nation to bridge the gap between the laws and the reality, between the social and economic fabric. See Endeshaw note 8 sup ra at 54.

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its judicial system and to amend the Civil Procedure Law. The demands, the Chinese authorities declared, "go far beyond the scope of intellectual property protection".362As scepticism began to invade the ranks of the supporters of the warrior- storytellers, after almost twenty months and nine rounds of a bitter fighting, the U.S. troops eventually won another surrender from the Chinese authorities, pressured into signing another treaty, called 1995 MOU, on February 26, 1995.363 The road leading to the Agreement "had not been easy".364 This second Memorandum o f Understanding on the enforcement o f intellectual property rights in the People's Republic China was an extension of the 1992 MOU provisions. The 1995 MOU attempted to remedy the Chinese infractions of American intellectual property rights, which were not ended by the previous accord.365 The 1995 MOU contained two separate documents.366 An Agreement Letter specified the ways in which China was to rectify the violation of copyrights and trademarks, address ineffective enforcement, and improve market access.367 An Action Plan initiated a six-month crackdown on Chinese piracy368 that turned the

362 See Chien-Haie note 18 sup ra at 21 8.363 In the days before the signing of the agreement, China raided and shut down seven of the more than tw enty-five factories producing pirated CDs for export. Add itionally, Chinese authorities raided more than forty distributors of pirated computer software. Such measures were important because the focus o f both the negotiations and the resulting Agreement was the actual enforcement o f existing Chinese intellectual property laws. See Feder note 29 s u p ra at 243.364 See Simpson note 27 sup ra at 576.365 See Proha ska note 317 sup ra at 1 73.366 The Agreement was in the form of an exchange of letters between USTR Michaei Kantor and Chinese Foreign Trade Minister W u Yi.367 See Hu note 311 s u p ra at 103. The Agreement Letter summarised the enforcement measures China had already taken and assured that such efforts would continue. China also pledged to open its markets further by increasing trade in products protected by intellectual property rights. The country confirmed that it would not impose quotas or other import restrictions on the importation o f audio-visual and published products, whether formal or in form al. The Chinese authorities further promised to publish all laws, rules, and regulations concerning any lim itations on imports, jo in t ventures, or other activities referred to in the Agreement Letter by October 1, 1995. In addition, to these promises, the Agreement Letter discussed m utual responsibilities to be undertaken by both countries, such as training customs officers and bureaucrats, exchanging information and statistics, and undertaking future consultations. See Feder note 29 sup ra at 244.368 See Beam note 69 s u p r a at 353. The Action Plan created a structure for the effective enforcement o f intellectual property rights in China, w ith both short-term measures, such as the special enforcement period, and long term measures. The Plan consisted of tw o main parts: provisions regarding the Intellectual Property Rights Enforcement Structure, and provisions regarding the pursuit o f inform ation dissemination, training, and improving the environment for in te llectual property laws. The Enforcement Structure established a State Council W orking

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accord, as the USTR stressed, into the "single most comprehensive and detailed" enforcement pact over intellectual property rights the U.S. troops had "ever negotiated with any country".369The 1995 MOU produced jubilation and euphoria370 in the U.S. business community. The U.S. software industry, via the head of the Business Software Alliance, reported that the accord signalled an "explicit demonstrable [Chinese] commitment to the protection of intellectual property [in China], including software".371 Finally, the U.S. President, Bill Clinton, congratulated the troops on having achieved a great victory that would create "thousands of jobs for Americans in essential industries, including computer software, pharmaceuticals, agricultural, and chemical products, books and periodicals, and audio-visual products".372Paradoxically, the Chinese government had much to gain from the 1995 accord. Although the major trading partners of China were still the Asian economies, a new trend began to show that the share of transactions with these countries had drastically declined in the 1980s and 1990s. This new trend showed a significant rise in exports to the United States. Between 1991 and 1995, Chinese exports doubled from 8% to 16%.373 In 1995, China's trade surplus with the United States was approximately US$ 35 billion,374 making China more dependent on its transactions with this country than ever before. The acceptance of the 1995

Conference on intellectual property rights, whose duties include the central organisation and co­ordination o f protection and enforcement of all intellectual property rights throughout the country. The Action Plan also created Enforcement Task Forces, consisting of administrative and other authorities responsible for intellectual property rights protection, including the National Copyright Administration, the State Administration for Industry and Commerce, the Patent Office, and police at the national, provincial, and local levels, as well as customs officials. W hen an infringement is discovered by the Task Force, it has the authority to impose fines, order a stoppage o f the production, reproduction, and sale of infringing goods, revoke production permits, and destroy the goods, materials, and implements used to make them. The Action Plan also created a special enforcement period o f six months, during which extra efforts were to be made to crack down on the major vio lators of intellectual property rights and to target regions in which infringing activity was particularly rampant at that time. See Feder note 29 sup ra at 244-245.369 See Duvanel note 37 sup ra at 401.370 See Tiefenbrun note 255 sup ra at 32.371 See Simpson note 27 sup ra at 622.372 I b id373 A. Neil Ta it and Kui-W ai Li, 'Trade Regimes and China's Accession to the W orld Trade Organisation', 31(3) J o u rn a l o f W o r ld T rade (1997), at 96.

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accord by China halted potential tariffs on its exports and maintained free access to the North American market.Pursuing its "big trade strategy"374 375 and the fulfilment of the 1995 MOU, China launched a large-scale anti piracy campaign between March and August 1995. The authorities shut down seven major illegal factories out of reputedly twenty- nine significant ones, which produced counterfeit goods, and destroyed over 2 million laser and compact discs.376 In July 1995, the country proudly announced that its fight against piracy had been successful and cited impressive statistics to support its claim.377 In the first four months of 1995, just two cases of violation of intellectual property rights were reported to the Beijing Public Notary Office; compared with the two hundreds cases of the previous year.378 However, several commentators cautioned against expecting too much too soon.

Round Three

Two months later, U.S. customs seized a Chinese shipment of pirated software bound for the American market with a value of tens of millions of US dollars,379 clearly proving that the success of the 1995 MOU had been short-lived.380 Shortly after the Chinese anti-piracy campaign ended, it was discovered that illegal factories had re-opened and that the production of laser and compact discs had

374 See Yeh note 31 sup ra at 515.375 See Tail et a! note 374 su p ra at 97.376 See Beam note 69 sup ra at 354.377 Enforcement in China was conducted in waves of 'crackdown' campaigns against targeted misbehaviour. Such campaigns were relatively easy to publicise and the narrow focus of the crackdowns tended to create enforcement statistics, which made the enforcers appear to be taking conscientious action and working hard. Due process considerations sometimes lost out, but the Chinese government ended up looking tough. See Mary L. Riley, P ro te c tin g In te l le c tu a l P ro p e rty R igh ts in C h in a , The China Law Series, Sweet & Maxwell, Asia (1997), at 92.378 Andrew J. M cCall, 'Copyright and Trademark Enforcement in China', 9(2) The T ra n s n a tio n a l La w ye r, M c G e o rg e S c h o o l o f Law , U n iv e rs ity o f the P a c if ic (1996), at 603.379 Craig S. Smith, 'M icrosoft Says Pirate Copies Sap China Profits', W a ll S tree t J o u rn a l, 27 Oct. 1995, at 1.380 Yiqiang Li, 'Evaluation of the Sino-American Intellectual Property Agreements: A Judicial Approach to Solving the Local Protectionism Problem', 10(2) C o lu m b ia J o u rn a l o f A s ia n L a w (1996), at 393.

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doubled.381 Finally, U.S. software companies claimed that twenty-eight of the twenty-nine pirating factories were still operating.382The failure of the 1995 MOU inevitably led to another mass mobilisation against China, especially when it became known that the Chinese Ministry o f State Security had opened and begun to operate an illic it compact disc factory383 with the ink barely dry on the latest MOU. There was cynicism about whether the 1995 MOU was "a victory for I[ntellectual] Property] R[ights]"384 or not. Ironically, a U.S. official reported that "while China has been fairly efficient" in removing pirated products from the shelves in retail stores, the pirated goods "have simply moved to the streets".38’The USTR said that little had been done to attack the continuing production, distribution, and export of pirated goods. China repeatedly argued for the need for patience.386 "[W ]e cannot demand that a new born baby should stand as well as an adult. Given time and care, [China's IP system] w ill grow up rapidly."387 In January 1996, the Chinese authorities launched an unprecedented publicity campaign to promote intellectual property rights protection. China's State Copyright Administration announced that a team of 540 inspectors would be dispatched to crackdown on piracy. A set of police raids388 389 in Beijing confiscated tens of thousands of bootleg products.38’ The Chinese courts also joined the

381 See Cheng note 84 su p ra at 1974.382 See McCall note 379 su p ra at 604.383 See Yeh note 31 sup ra at 511.384 Tom Hope, 'A Victory for lPR?', A s ia Law, March 1995, at 12.385 See Feder note 29 s u p ra at 246. Pirated software could still be obtained from individuals working at the stores, or from peddlers on the streets who invited their potential customers down alleys, away from public view.386 Ib id at 224.387 See Floum note 50 sup ra at 51.388 A number o f successful raids were carried out. During 1996, enforcement authorities launched some 37,300 checks across China in intellectual property-related cases. 1,380,000 pirated tapes, 485,000 laser discs, 87,700 software, and 1,143,000 books were confiscated. M ore than 10 m illio n pirated compact discs were seized and licences for 3,000 shops were revoked for intellectual property abuses. The USTR reported that some 40 illegal production lines across the country had been shut down. Some 250 offenders were arrested resulting in ja il sentences. Rewards were offered up to US$ 75,000 for in form ation leading to the closure o f illegal production fa c ilit ies . See David Shannon and Tan Loke-Khoon, 'In te llec tua l Property Developments and Enforcement Challenges in Hong Kong and the People's Republic o f China', 8(1) C a lifo rn ia In te rn a tio n a l P ra c t it io n e r (1 997), at 25.389 See Chien-Hale note 18 sup ra at 219.

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efforts.390 On January 9, 1996, the Sichuan People's Court ordered a Beijing electronics company to pay US$ 1.6 million fine, and to offer a public apology in leading newspapers for using pirated software.391There was wide-felt surprise when the incongruous use of violence was introduced into the conflict for the first time.392 An employee of the anti-piracy unit of the International Federation of the Phonographic Industry, a group that represents 1,100 record producers in seventy countries,393 was kidnapped by thugs to in an attempt to halt the operations of the agency.394 Although the victim was returned unharmed, the group decided to close its Guangzhou office and sent its employees into hiding. While a few optimists saw in this act of violence a positive sign that China's pirates were in their last gasp,395 a majority of people saw in the closing of the office a signal of surrender from the U.S. troops. Considering the money to be made from piracy, organised crime syndicates, such as Wah Ching of Los Angeles or United Bamboo of Taiwan, entered the software piracy business after they were squeezed out of narcotics by Latin crime syndicates. These Asian gangs were described by the U.S. troops as being a

390 China's Supreme People's Court announc ed that between January 1996 and May 1997, courts across China handled up to 5,296 intellectual property rights civil cases, 10% of which concerned overseas parties. Up to 90% of these cases had been resolved. The number of intellectual property rights cases handled by Chinese courts in 1996 was 1 1.8% more than in 1995. See Shannon et al note 389 s u p ra at 25.391 See Chien-Hale note 18 sup ra at 219.392 See Shannon et al note 389 sup ra at 25. As southern China was known to be notorious for piracy, the relevant Chinese enforcement authorities have intensified crackdown on infringement activities in Guangdong province. Twelve illegal plants producing pirate video laser discs were reportedly closed down in December 1996. It was also reported that in January 1997, the Guangdong au thorities seized some 24 CD presses, which together have a combined manufacturing capacity of up to 72 m illions CDs a year. The presses were worth at least US$ 25 m illion . N early all o f the factories were owned either by the State or by individual Chinese entrepreneurs. On November 1996, the Guangdong authorities offered a RMB 300,000 reward to anyone w ho could provide information leading to the discovery of underground CD production lines. Besides Beijing and Guangdong, it has been reported that authorities in Fujian, Zhejiang, Shandong, Sichuan, and Guangxi provinces also encouraged residents to disclose illegal production lines of CDs, LDs, and VCDs by offering such rewards.393 I b id at 26. To combat piracy, the Chinese Press and Publication Administration, in co-operation w ith the International Federation of the Phonograph Industry, directed and organised all CD and LD producers in China to im prin t SIC on their finished products. This rendered the task of distinguishing fakes from genuine products much more manageable. In addition, no imported CDs or LDs were permitted to enter the Chinese market unless the National Copyright Administration and its local counterparts verified them.394 See McCall note 379 sup ra at 604.395 Ib id .

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"group of entrepreneurs with manufacturing talent, finance, connections, and access to distribution coming together for moneymaking enterprises.396 The United States clearly was not satisfied w ith the pace of Chinese implementation of the agreement. In the 1996 National Trade Estimates on Foreign Trade Barriers, the U.S. stated that China remained the largest pirate of U.S. intellectual property and continued to deny market access to U.S. products and companies.397 The Chinese authorities were not pleased by this accusation.398 When, in April 30 1996, for the third time in five years, and some fifteen months after the signing of the 1995 MOU, China was placed under the threat of Special 301 again, the public started showing signs of weariness. The sequence of stories399 told by the 'intrepid warriors' was unfailingly based on the same blue print. Their writings touching on the development of intellectual property rights in China either consisted chiefly of historical narrative or portrayed the phenomenon in terms of economic development.First, American corporations and trade groups labelled the Chinese protection regime of intellectual property rights as ineffectual, costing the U.S. nation hundreds of million of US dollars. Second, the USTR named China as a 'priority' foreign country under 'Special 301 '. Third, China responded that the country had established a system of protection that was constantly being improved upon. Fourth, both propaganda and threats of retaliation increased on both sides. Fifth, the two countries finally reached an accord, thus avoiding trade sanctions.400 The public grew weary of that "destructive routine" in which the U.S. troops on the Chinese front seemed to revel.401

396 See Roberts et ai note 28 sup ra at 24.397 See Feder note 29 sup ra at 247-248. China was denounced to restrict trade w ith the United States by using informal quotas, slow censorship approval, and complete disapproval o f goods that failed to meet formal censorship requirements. Thus, China was pictured as trying to export like a capitalist country and import like a communist one. See Tiefenbrun note 255 sup ra at 39.398 China's m inister of information industry argued that "[w ]e 're not restricting any specific foreign company from investing in our IT sector. But in a country as large as ours, we must have our own intellectual property products. As for advanced foreign technology, we should adopt and emulate, transfer, digest, attract and, especially, innovate." See W u note 341 su p ra at 43.399 Karl "M a rx clearly was prescient in cautioning that history repeated becomes farce". See Alford note 7 sup ra at 139.400 See Declet note 59 sup ra at 73.401 See Duvanel note 37 sup ra at 402.

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On May 15, the USTR released a preliminary list of US$ 3 billion worth of products from China from which US$ 2 billion of Chinese imports would be sanctioned if China did not improve its enforcement of intellectual property rights and market access by June 17.402 403 The Chinese government threatened sanctions on a similar scale.In June 1996, a new accord on the protection of American intellectual property rights was signed between China and the United States.403 During two weeks of bitter discussions, culminating in meetings in Beijing with Chinese President Jiang Zemin and Vice Premier Li Lanqing, the USTR was finally able to verify Chinese claims of compliance with the terms of the 1995 MOU. As the 1996 MOU reiterated the provisions of the 1995 MOU404 and added more promises to keep up the fight against copyright piracy,405 people asked the 'intrepid warriors' for additional information. While the USTR40'1 said that China had made significant progress to combat intellectual property piracy by closing fifteen illegal factories, launching a special campaign against the violation of intellectual property, and providing greater market access for American companies in the audio-visual sector,407 the public was not ready to believe it.As the spell was breaking, additional explanations were asked of the 'intrepid warriors', since there was no real sign that the American initiatives were working. In the middle of fighting, the 'intrepid warriors' found themselves up against a great wall. "Wasn't China supposed to be getting serious about stamping out piracy?"408

402 See Feder note 29 sup ra at 248.403 See Cheng note 84 sup ra at 1976.404 The U.S. officials asked China to take immediate action in four key areas of the 1995 M OU: closure of infringing CD factories, reinstatement of the 'Special Enforcement Period' in Guangdong Province, strengthened border enforcement, and increased market access. See Feder note 29 supra at 248.405 The essential aspects of the 1996 M O U was the closure of fifteen factories pirating CDs, CD- ROMs, and LDs. See Yang note 299 supra at H-9.406 Charlene Barshefsky was then the new Deputy USTR. She announced from Beijing that China had reached a "c ritic a l mass o f enforcement actions" in im plem enting the 1995 M O U , demonstrating that the core elements of an operational I PR enforcement system were in place. See Feder note 29 s u p ra at 249.407 See Cheng note 84 sup ra at 1976.

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Responsibility of the 'Intrepid Warriors'

Under constraint, the 'hacks' finally revealed that "piracy persisted at an alarming rate in China",408 409 and computer software piracy was "as rampant as ever".410 The situation was so appalling that counterfeit copies of Microsoft's Window's 95 were available in China before the program was even officially released.411 After returning from their assaults, the U.S. troops said that in China "the laws are all on the books, but the penalties typically have held no teeth".412 413 However, no matter how often the 'intrepid warriors' repeated that the responsibility for the protection of intellectual property lay with China, the public would not be appeased. In fact, the repeated threats of trade sanctions by the U.S. troops led the public to question the effectiveness of the strategy.411The linking of trade sanctions to intellectual property violations achieved little success in China mainly because 'Special 301' was a "paper tiger".414 U.S. trade sanctions might no longer pose a threat to the PRC,41S as it was expected to be the world's largest economy by 2010, with an estimated need to spend about US$ 750 billion to continue modernising its own industry over the next decade.416 Ironically, not only was 'Special 301 ' a "potent weapon"417 against a country like China whose growth was fuelled by exports, it was also a formidable weapon that could be used by China against the United States whose economy had progressively become heavily dependent on Pacific Rim trade. For instance, about 70% of the U.S. low-end consumer goods, such as toys, shoes, and textiles now came from China. The firms importing these goods were reliant upon them for the creation of jobs. Moreover, major U.S. corporations trading w ithin China recognised the Chinese market as essential to their continued growth and survival

408 See Roberts et a I note 28 sup ra at 20.409 See Prohaska note 317 su p ra at 182.410 See Cheng note 84 sup ra at 1977.411 See Prohaska note 317 sup ra at 1 79.412 See Beam note 69 sup ra at 357.413 See Cheng note 84 sup ra at 1977.414 See Declet note 59 su p ra at 74.415 See Cheng note 84 sup ra at 1977-1978.416 See Yeh note 31 sup ra at 51 8.

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against competition.410Estimating that people had been profoundly, deliberately deceived, a suspicious public decided that it would not be satisfied unless the culprits were publicly denounced.To the "intrepid warriors', responsibility for the failure of the troops to impose strong Chinese intellectual property protection could be attributed to the fact that, for thousands of years in China, immature artists have imitated, whilst mature artists have stolen.417 418 419 This idea was in contradiction to the Western way. Although, in the West, artists copied their masters as an art-school exercise, the Romantic notion of the author, in regarding a work as the extension of the artist's personality, helped the idea of copyright to blossom. As a metaphoric fence, copyright keeps the public out of the private property of the author.420 Copyright provides incentives to authors, encourages the production of more ideas, and information for increased public consumption.421Similarly, in China, "to know [an artist's] art was to know the man himself".422 423 However, in focusing on their interaction with the past, innovating "w ithin the bounds of orthodoxy and the context of past forms";421 Chinese artists, even at the height of their fame, would reproduce the works of earlier painters, right down to fake signatures and seals.424 Poets and painters welcomed copying as a compliment, in recognition that their art manifested the power of their moral and artistic mastery. In ancient China, a replication never carried "the dark connotations"425 426 it does in the West.42'’ "Only if [the people in the West] have some understanding of why in Chinese civilisation it has been an elegant offence

417 See Declet note 59 sup ra at 74.418 I b id419 Lionel T rilling , 'Software Patent Protec tion: Debugging the Current System', 69 N o tre D a m e L a w R e v ie w (1 993-94), at 1115.420 See Tiefenbrun note 255 supra at 3.421 The Romantic concept of individual genius strongly influenced Anglo-American copyright laws. See Alford note 26 sup ra at 19.422 See Ocko note 55 su p ra at 569.423 I b id424 Alexander Stille, 'Faking it', The New Y orke r, 1 5 June 1998, at 37.425 See Feder note 29 su p ra at 232.426 The "copying of works of almost any kind has for centuries been regarded as honourable and necessary". See Ho note 63 supra at 6.

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to steal a book w ill [they] know how in the future to discern and protect [both camp]'s legitimate interests".4' 7The 'intrepid warriors' also underlined that people who lack fundamental rights "cannot be expected to embrace complex property rights",427 428 stressing the fact that any protection of intellectual property requires political, economic pluralism, and independent legal institutions to enforce the rights of these people. They finally said that only where people have a real autonomy to develop and pursue their own ideas, as well as to protect such interests from intrusion, be it by the State or others, w ill intellectual property rights have a chance to develop.429 Both the role of the government and the ideology of the Chinese Communist Party were incriminated in the weakness of intellectual property laws.On the other hand, for the public and some wise observers, the 'intrepid warriors' were the only ones to blame for the past errors because both the North American law schools and the North American press occupied a place of first importance in the dissemination of information about the battle.To rely on their knowledge was a mistake because it came from articles written by law school students who had not finished their professional education,430 and from journalists who wondered whether or not the Chinese behaviour was benign or m align/31 Moreover, North American publications run by either lawyers or business people did not test allegations with serious objectivity.432 Consequently, false descriptions of the imposition and protection of intellectual property rights in China had flourished. Their colleagues in Europe did no better. Research on China's legal matters by Europeans was yet to fill the gap between China's ancient

427 See Ocko note 55 supra at 559.428 W illia m P. Alford, 'Perspective on China, Pressuring the Pirate, People W ho Lack Fundamental Rights Cannot be Expected to Embrace Complex Property Rights', Los A n g e le s T im e s , 12 Jan. 1993, at M5.429 See A lford note 7 sup ra at 145.430 See Lubman note 131 supra at 310.431 'The China Summit - The China that Clinton won't see - How Bad is China?', 26 T im e , 29 June 1998, at 30.432 The press has not been quite fair towards intellectual property rights enforcement in China. Zheng Songyu, 'Interview: Education Vital for Intellectual Property Protection in China', 9 IP A s ia , 18 Nov. 1992, at 31.

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written rules and its actual legal practice.433 Turning to the Asian side of the equation, the large outpouring of published materials presented problems of accuracy as well as others inherent with the volume of publications.434 As there were big temptations in China to make the country "look good", sophisticated theoretical analyses were very rare.Torn between the great desire "to be lenient towards" the Chinese legal institutions and the equally great desire "to bad-mouth" it for its lack of performance,435 people became frustrated and exhausted. They were still too few China specialists that some wondered if there were as many competent China watchers on the American side as there were U.S. watchers on the China side. On this score, it was not surprising then that people ended up wondering "whether [the U.S. troops in] China [were] fishing with a straight or a curved hook".436 Having stayed in the background during the totality of the war, Western Legal Sinology slowly emerged in a position of strength, ready to set the record straight confirming that "[enforcing intellectual property law takes more than going by the book"437 438 on Chinese battlefields. Created to remedy the Western lack of familiarity with China's peculiar legal practice, the detachment had recruited through the years well-trained people on the field. On the other hand, Western Legal Sinology has "critically evaluated the rewards and the hazards of applying to Chinese legal culture vocabularies and paradigms derived from the Western historical experience".436Through his bravery in combat on various international fronts, Alford gradually became recognised as one of the essential figures to the cause. Now that he was back in academia, he was one of the commanders-in-chief of the detachment by virtue of the fact that few Sinologists were as well suited to provide comprehensive understandings on the Chinese intellectual property rights

433 See Lubman note 131 supra at 311.434 See Clarke note 1 78 sup ra at 203-205.435 I b id at 203.436 See Prohaska note 31 7 sup ra at 183.437 'Enforcing Intellectual Property Law Takes M ore Than Going by the Book', S o u th C h in a M o rn in g Post, 13 April 1994, at 3.438 See Turner note 177 sup ra at 1.

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development in China.Moreover, because he was adept at producing works that engaged and stimulated Chinese scholars and non-specialists/39 his commitment to the cause can be summed up as one that " [s] ought] truth from facts, especially when they are unpleasant".439 440 According to him, there were "many reasons for the PRC to develop a serious, enforceable intellectual property law".441 China's leadership was seen as steadily moving towards the institution of an intellectual property system conforming to global standards, although this move was a very 'long march', as "tortuous as that of Chinese intellectuals".442 As people in China colourfully say, "[r]uling a big country is like cooking a small fish".443 444

[2] Verity and verdict

[a] To fight fire with fire: Western impact, Chinese

response

After the triumphal return of the American troops to Washington in 1972, China began to recover as it saw the end of the Cultural Revolution. The death of the modern emperor445 Mao Zedong and the arrest of the Gang of Four in 1976 led to the formation of a regime, which found its legitimacy by holding up the setback of productivity growth of 1966-68 as a disaster. The new power also made the most of the fear of invasions from military or economically superior powers. Eventually,

439 See Ocko note 55 sup ra at 559.440 See Alford note 1 70 sup ra at 177.441 See Alford note 7 sup ra at 130.442 See Alford note 126 sup ra at 76.443 See Clarke note 168 sup ra at 2444 See Alford note 169 sup ra at 404.445 Some commentators compared the Chinese Communist Party as a new form of imperial bureaucracy. Therefore, Mao Zedong and Deng Xiaoping, the two supreme communist leaders, were seen as latter-day emperors. One of those to liken Mao and Deng to emperors was Harrison Salisbury. His book The New Emperors' detailed the history of the People's Republic of China up to 1992. The author particularly focused his analysis on the two main Chinese leaders of the PRC to that time. See Mackerras note 92 sup ra at 203.

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it gained the support of Chinese people who longed for material changes.446 By advocating "I do not care whether a cat is black or white so long [as] it catches mice",447 the late Deng Xiaoping448 perceived faster than his comrades that by moving away from rigid communist orthodoxy, China's forces could ensure they had a chance of winning future battles. With the death of Zhou Enlai449 and the inability of Hua Guapeng to succeed Mao, Deng established himself as the sole ruler of the Chinese Communist Party at the end of the 1970s. A more pragmatic approach to economic development was contemplated,450 cunningly stressing the words pronounced by Chairman Mao in 1956. "[W ]e should learn from abroad and use what we learn to create things Chinese".451 452

[ i ] I d o n 't k n o w a n y th in g a b o u t e c o n o m ic s , b u t I k n o w a g o o d e c o n o m y w h e n I see on e ^

Opening up the Policy of Openness

The 'Second Chinese Revolution', referred to as 'socialism with Chinese

446 Liwei Wang, 'China's Patent Law and the Economic Reform Today', 9(1-2) U C L A P a c if ic B asin L a w J o u rn a l ( 1991), at 257.447 See Rosen note 232 sup ra at 1522.448 Deng Xiaoping was born in August 1904 in Sichuan Province, China. In 1924, he joined the Chinese Com m unist Party w h ile studying in France. Later, he went to the Soviet Union. Back to China, he became an organiser of the Party, and then jo ined the Long March in 1934-35. Although he participated in the persecution of intellectuals in 1957, he was purged as a 'capitalist reader' ten years later as the Cultural Revolution began. Rehabilitated in 1973, he became then V ice Premier o f the People's Republic of China. As he was purged again by the Gang of Four in 1976, he was rehabilitated the fo llow ing year, and launched his bid for the supreme power. In 1981, he initiated the 'Responsibility System' for farmers and in 1984, he concluded the return of Hong Kong to the Mainland for 1997. He oversaw the Tiananmen crackdown in 1989. Five years before his death in February 1997 in Beijing, he spurred the economic reform on a spectacular tour in Southern China. 25(49) A s ia w e e k , 10 Dec. 1999, at 45.449 China sought to end its antagonistic position toward the United States when Premier Zhou Enlai tried re-introducing the country to the international community.450 China essentially abandoned Marxist economics in favour of a dual system, a one-party autocratic p o litica l system, coupled w ith a government-assisted free market economy. See Simpson note 27 s u p ra at 585.451 G lenn R. Butterton, 'N orm s and Property in the M idd le Kingdom', 15(2) W is c o n s in In te rn a tio n a l L a w J o u rn a l (1997), at 285.452 Ibid at 287.

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characteristics', was based on a program, which endorsed two initiatives453 (an opening up to the outside world and an economic reform)454 and 'Four Modernisations'455 (agriculture,456 industry, science and technology, and military). As the plan was ambitious,457 458 policy tensions were high. However, the final step was reached in December 1978 when the Third Plenary Session of the Eleventh Party's Central Committee of the Communist Party launched the " Open-door Policy".458A redefinition of the Chinese foreign trade policy by the National People's Congress specified that the aim was to facilitate the utilisation of reasonable and innovative forms for absorbing large quantities of foreign direct investment.459Additionally, China's Council for the Promotion o f International Trade emphasised that the plan was constituted of two goals of similar importance. The exportation of products manufactured within China was intended to generate overseas earnings and thereby to boost the country's growth.460 On the other hand, the promulgation of the Law on Sino-Foreign Equity Joint Ventures foresaw, in July 1979, the installation of Special Economic Zones to modernise China's industrial fabric to reach world-class strength by the end of the twentieth

453 See Alford note 126 su p ra at 151.454 "[AJfter all no nation can survive w ithout international trade." See Endeshaw note 8 sup ra at 54.455 Zha D aojiong, 'Chinese Perspectives on International Political Economy', 49(1) P o lit ic a l S c ie n ce (1997), at 71.456 See Tiefenbrun note 255 s u p ra at 5. China's 'Open door Policy-- was distinctively Asian, as it fo llowed a model o f development sim ilar to South Korea and other neighbouring countries like Taiwan, Hong Kong, and Singapore. Following the example of New Industrialising Economies, China gave farms back to the farmers, generating huge increases in productivity, income, and output, w ith little State investment.457 I b id at 7. Deng Xiaoping believed in reform as a sequencing process, slow, and balanced. His strategy involved a gradual exploitation of international markets, the taming of m ultinational corporations, the education of the Chinese people, the serving of Western markets, and the creation o f competitive organisations. He focused on human resources rather than on natural resource cartels, which was the strategy of the new international economic order of third world countries.458 Tek Ling Chwang and Richard L. Thurston, 'Technology Takes Command: The Policy of the People's Republic of China w ith Respect to Technology Transfer and Protection of Intellectual Property', 21(1) The In te rn a tio n a l L a w y e r (1987), at 135.459 Ib id .460 Brian Parry, 'Licensing in China and the New Joint Venture Law', E u ro p e a n In te lle c tu a l P ro p e rty R e v ie w (1980), at 72.

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century.461The announcement of this economic reform was very welcome in the West, where a near state of euphoria462 was reached. The word 'opening' was translated in terms of fantastic profits, the possibility to access the legendary Chinese market, described as representing one quarter of the world population.463 However, as a flurry of business activity developed, particularly after the installation of the first special economic zone in the Shantou Municipality, in Guangdong Province, in August 1979,464 the reform became characterised by the West in terms of opacity,46S with complex effects that were "not easy to assess".466 The situation was not helped by the sudden decision by the Chinese authorities to delay further implementation of the plan, a few months after its launch, in order to reassess the economic priorities of the country.467 To Western entrepreneurs, it came to be undoubtedly clear that Chinese officialdom did not base its reform on a 'two-way street' concept. Animosity between the U.S. troops and the Chinese forces resurfaced after the American business community realised that it had wrongly speculated on a more favourable business climate in China.There was no definitive end put to the exclusion of foreign participation in the economic development of China.468 In fact, this more traditional approach to the Chinese economic development was hardly an antithesis of a centralised Maoist approach to foreign trade.469 It was rather the outcome of what had been the main concern of the Chinese elite during the twentieth century.More specifically, it was linked up with what the young revolutionary Mao had stressed in the 1930s. All of the revolutions in China since the 'Opium Wars' of the nineteenth century have been part of a worldw ide revolution, with

461 See A lford note 126 sup ra at 65.462 Sheila J. Landers, 'China Trade: Prospects and Perspectives', 14(3) L a w a n d P o l ic y in In te rn a t io n a l B us iness (1982), at 963.463 See Pendleton note 90 sup ra at 120.464 See Chwang et al note 460 sup ra at 135.465 See W e lle r note 165 sup ra at 1238-39.466 Mark M. Hager, 'Roots of Dissent and Repression in Deng's China', 8(1) UCLA Pacific Basin Law Journal (1990), at 223.467 See Landers note 464 sup ra at 963.468 Foreign business ceased with China after 1949. See Janiece Marshall, 'Current Developments in the People's Republic of China: Has China Changed?', 1 The T ra n s n a tio n a l L a w y e r 988), at 509.

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'modernisation' as a strong factor of influence in this world process. Being a revolution in itself, the Chinese policy of openness logically bore the imprints of modernisation.469 470 The only difference with the past was that China could not afford to continue ignoring this fact. It was clear that the country was not abandoning the "socialist road".471 The latter was seen then as one of the "four cardinal principles" of the country with the dictatorship of the proletariat, the Mao Zedong and Marxism-Leninism thoughts, and the leadership of the Party.472 The modernisation of the economy was compelled by the strict idea that the sovereignty of the Chinese State could not be subject to any negotiation.473 As article 1 of the Chinese Constitution stated, "[t]he People's Republic of China is socialist State under the people's democratic dictatorship led by the working class and based on the alliance of workers and peasants".In this way, "foreign-devil money" and advanced technology were by turns "encouraged, permitted, restricted, or prohibited"474 in accordance with the latest decision by China's new authorities. The movement of 'westernisation'475 was consented to if it supported the reconstruction of an economically prosperous and military autonomous socialist Chinese nation within which resistance could still develop,476 precisely against the barbarian powers from the West.477 This position resulted from the days when China endured a self-imposed and externally enforced isolation. It was also a means of avoiding the repetition of the pattern of the nineteenth century that led to the penetration of China by foreign powers under the "Gun-Boat diplomacy".478

469 Ib id .470 Zhu Suli, 'Paradoxes o f Legal Development in 20'1' Century China from the Perspective of Modernization', 28(3) H o n g K on g L a w J o u rn a l ( 1998), at 429.471 See Tay note 117 sup ra at 575.472 Carlos W ing-H ung Lo, 'Socialist Legal Theory in Deng Xiaoping's China', 11 (2) C o lu m b ia J o u rn a l o f A s ia n Law (1997), at 475.473 See Zha note 457 sup ra at 72.474 See W e lle r note 165 sup ra at 1239.475 Andrew C. W alter, 'Harmonization: Myth and Ceremony? - A Comment', 13(1) U C L A P a c if ic B as in L a w J o u rn a l (1994), at 164.476 See Jones note 189 sup ra at 199.477 See Marshall note 470 sup ra at 508.478 Richard Klein, 'Law and Racism in an Asian Setting: An Analysis of British Rule of Hong Kong',

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Second collision between the United States and China

In the very same way as Britain launched the 1840-42 Opium War in pursuit of what it claimed were its rights of free trade, the U.S. troops besieged China once again at the end of the 1970s. The pretext was that no real guarantees were conferred to foreign investors concerning the disposition of their technology within the Chinese territory.479The fact that intellectual property was a "virtually non-existent"480 notion in China before 1978 certainly rallied the interests of the group of Western investors. On the other hand, they were not sufficiently reassured481 482 by the fact that the term "industrial property" was only used in Chinese legislation in article 5 of the Joint Venture Law.402 The Law stated only that each party in a joint venture might contribute cash, capital goods, and industrial property rights as its investment in the joint venture.483Under these specific circumstances, the Agreement on Trade Relations signed in July 1979 between the Carter administration and the government of China484 to satisfy the requirements of the 1974 Trade Act for pacts with socialist nations,485 took on the characteristics of a war cry in the Western camp.486 Under this pact, each side indicated that it would duly seek "under its laws and with due regard to international practice, to ensure to legal or natural persons of

18 H a s tin g s In te rn a tio n a l & C o m p a ra tiv e L a w R e v ie w ^ 9 9 5 ) , at 223-224.479 "[T]he in itia l Dengist opening to the outside during the early 1980s arguably worked against the establishment of respect for intellectual property rights." See Alford note 7 sup ra at 140.480 W en Xikai, T h e Emerging Unfair Competition - Repression Regulations in Certain Areas of the People's Republic of China', 13(1) E uropean In te lle c tu a l P ro p e rty R e v ie w (1991), at 21.481 Western investors believe in contract law. The desire to do large-scale business w ith foreigners was going to force China to create a legal system that is governed by the rule o f law. See Tiefenbrun note 255 sup ra at 9.482 See Zheng note 142 sup ra at 193.483 See Parry note 462 sup ra at 72.484 The tw o countries o ffic ia lly established diplomatic relations on January 1, 1979, issuing the 'jo in t Communique on the Establishment of Diplomatic Relations between the People's Republic o f China and the United States of America'. See 'No Other Purpose Than This-Peace', W a s h in g to n Post, 16 Dec. 1978, at A12.485 See A lford note 126 sup ra at 66.486 The 1979 Agreement characterised the beginning of the entire spectrum of issues that circumscribed the Sino-American relationship ten years later (market access, sale o f m ilita ry technology, entry into W TO , human rights, and Taiwan). See Endeshaw note 8 sup ra at 54.

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the other party protection of patents and trademarks equivalent to the patent and trademark protection correspondingly accorded by the other party".487 With the addition of subparagraph 5 of the pact, which required Chinese authorities to provide copyright protection to U.S. nationals,488 the administration of the United States resolutely contributed to the turning of intellectual property rights into the leitmotiv of the U.S. interventions to come into the Chinese territory.489 At the beginning of the 1980s, China was still not in a position to resist the powerful U.S. war machine. Pushed by the necessity to import advanced technology in order to facilitate domestic research, the necessity to send abroad both students and scholars for technical training, and the necessity to use foreign experts,490 China was to learn the following fact at its expense. Where advanced technology and foreign capital had already established themselves in specific areas491 it barely proved possible to prevent the totality of their effects to spill over into the rest of the territory.492The Party's Central Committee of the Communist Party did not a priori pave the way in 1978 for a modernisation of the infrastructures of the country alone, but it opened the whole Chinese territory to a persuasive multidirectional process of influence and great interdependence called 'globalisation'.493 The phenomenon caused a shock for China's leadership, who always wanted to believe that China could still have a quiet existence independent of the substantive influences of its near and remote neighbours.494 Since the Chinese nation was not prepared to face competitiveness and harmonisation, two vehicles by which globalisation spreads, its forces found themselves unprotected and on the defensive.

487 Richard L. Thurston, 'Country Risk Management: China and Intellectual Property Protection', 27(1) The In te rn a t io n a l L a w y e r (} 993), at 54.488 I b id489 Starting w ith this agreement, the momentum for the promulgation of most o f the intellectual property laws and constant improvements on them was "U S -in itia ted and U S-driven". See Endeshaw note 345 sup ra at 282.490 See Marshall note 470 sup ra at 509.491 H ow in fluentia l was the model presented by the first enclaves under foreign control in terms of intellectual property matters?492 See Jones note 189 sup ra at 202.493 Raymond T. N im m er and Patricia Ann Krauthaus, 'G lobalisation Defined', 10(2) L a w in C o n te x t (1992), at 250.494 I b id

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The same year the Sino-American Agreement was signed, the Sino-Philippines Cultural Agreement was concluded.4'5 Since China did not form part of the principal international agencies specialising in intellectual property, its accession to the WIPO in June 1980 was required.495 496 These acts were interpreted as a sign of another Chinese surrender without fighting. Thereafter, countries, such as Japan, the United Kingdom, and the United States, and world agencies, such as the WIPO and UNESCO, began to send copyright experts to China to give lectures and to help Chinese people in training copyright personnel.497 498 In the meantime, China also started "sen[ding] copyright research workers abroad to visit, study and observe", and experts to participate in diverse world conferences concerning copyright protection internationally.496Although it was thought of as simply a mechanism that would "permanently prevent further troubles from happening",499 Deng Xiaoping's decision to enter the world market place became the "catalyst"500 501 502 * * for China's development of an intellectual property rights protection system consisting of international treaties and domestic legislation.

It is imperative to strengthen the socialist legal system'507

Chinese ideologues (or hard-liners) intrinsically denounced the schemes of the reformers, based on the goals of Deng Xiaoping,50* as a "decisive success" for the Western literary-industrial complex in its aim to subjugate the Chinese territory again. Directly connected to this idea, any treaty with the West was condemned by China's orthodoxy as some kind of spiritual decadence, leaving the country

495 See Zheng et al note 95 sup ra at 115.496 See Hu note 311 sup ra at 11 7.497 Editor's Note, 'China and Copyright', Excerpts from a book by Shen Rengan and Zhong Yingke, 20 C o p y r ig h t (1984), at 264.498 I b id499 See The Economist note 271 sup ra at 61.500 See Beam note 69 sup ra at 341 -342.501 Deng Xiaoping, C o lle c te d W o rk s 1975-1982 (1983) at 136-137.502 Rigorous intellectual property protection was seen as driving many Chinese enterprises out ofthe market. A strengthening of intellectual property protection was also seen as tantamount to atransfer o f wealth from domestic enterprises to foreign ones. See Li note 381 sup ra at 396-397.

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dependent on the outside world economically, scientifically, and militarily.503 The concept of intellectual property remained bewildering to the Chinese administration and legislature.504 The question was posed by the Chinese ideologues whether works that advocate the overthrow of the government, encourage the 'six evils', or are pornographic, superstitious, or contrary to the 'four cardinal principles' should be eligible for copyright protection.505 Although the reformers cleverly explained that it was the unique possibility to achieve an overwhelm ing acceleration of the Open-door Policy, the overwhelming Chinese opinion considered that these schemes were in complete contradiction to the principles of socialism.506 As it was said during the Cultural Revolution (1966-76), "[is] it necessary for a steel worker to put his name on a steel ingot that he produces in the course of his duty? If not, why should a member of the intelligentsia enjoy the privilege of putting his name on what he produces?"507Opponents to any kind of private property right recognition finally came to question the real significance of the Chinese reform policy. Although they admitted that the degree of technology that the United States allowed to go to China was double that exported to the Soviet Union in the same period,508 they also noted that only 1,400 investment projects were concluded during the plan's initial four years.509

503 See A lford note 126 sup ra at 68. To them, China was in danger of being flooded by Western cultural items and artefacts, especially from the United States, and being crippled permanently under the weight o f such an influx. See Endeshaw note 8 sup ra at 54. On the other hand, Asian nations tra d itio na lly believed that copyright was a Western concept created to m aintain a m onopoly over the distribution and production of knowledge and knowledge-based products. See Ho note 63 s u p ra at 7.504 Yiping Yang, Th e 1990 Copyright Law of the People's Republic of China', 11 (2) U C L A P a c if ic B as in L a w J o u rn a l (1993), at 271.505 See Schlesinger note 1 76 s u p ra at 113.506 See Zheng note 142 sup ra at 193.507 See A lford note 126 sup ra at 56.508 Business Conference on China, Panel 4: Technological Transfer and Protection of Intellectual Property in China, Theodore W . W u, 'Practical Aspects of Technological Transfer in China', 12(1) L o y o la Los A n g e le s In te rn a tio n a l a n d C o m p a ra tiv e L a w J o u rn a l (1989), at 87.509 A lfred K. Ho, 'Joint Ventures in the People's Republic o f China: Can Capitalism and Communism Coexist?' Book reviewed by Timothy A. Gelatt, 22(3) L a w a n d P o lic y in In te rn a tio n a l B us iness (1991), at 627-628.

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However, the low quantity and the low quality of the technology510 transferred to China were a convincing argument for all of the reformers. In fact, the complete absence of an effective framework for intellectual property rights in China was the principal reason for this shortfall,511 they retorted.The architects of China's reform explained that due to the fact that intellectual property laws have always been, by definition, concerned with "the latest and most sophisticated" technological advances,512 the country had no other choice but to establish and strengthen its intellectual protection system513 to carry on the Open-door Policy. As they said, it was "an important question relating to cultural and scientific prosperity and development".514 It was also "an important question relating to cultural inter-flow with foreign countries", to "the widespread dissemination and absorption of cultural and scientific knowledge", and finally to "the promotion of the development of cultural and scientific undertakings of the whole humankind".515 Eventually, the regulation of the activities of State-owned enterprises was seen as vital to the success of economic reform policies.516 Early in the pre-reform debates, Deng Xiaoping personally acknowledged the primordial role of 'bianfa', which literally means legal reform',517 in the economic plan. The Plenum Communique of 1978 underlined the importance of constructing "a socialist legality with Chinese characteristics".518 "[Tjhere must be laws for people to follow, these laws must be observed, their enforcement must be strict and law breakers must be dealt w ith "/’19 it added.520

510 See W u note 510 sup ra at 87.511 See A lford note 126 sup ra at 67.512 See Gurry note 153 su p ra at 375.513 Zheng Chengsi, T r ip s and Inte llectual Property Protection in C hina ', 19(5) E uropean In te lle c tu a l p r o p e r ty R e v ie w ( 1997), at 243.514 Very few commentators argued that intellectual property laws in China indicated a heretofore- uncharted interest in promoting scientific invention and artistic creation w ith in Chinese society. See Schlesinger note 1 76 sup ra at 93.513 See note 499 sup ra at 264.516 See Clarke note 168 sup ra at 36.517 See Zhu note 472 sup ra at 429.518 See Alford note 126 sup ra at 70.519 See Blumental note 229 sup ra at 227.520 China's M in is try of Justice was re-established in 1979. By re-establishing it, China re-ignited the People's Congress and the interest in legislation and lawmaking. See Simpson note 27 sup ra at585.

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However, the Communique failed to achieve this goal because the Plenum "did not have, and never had, a coherent theory of law".521 It merely had some preliminary ideas on the orientation of law.522 It put "new wine in the old bottle of pre-reform legal institutions", the Dengists argued.523 In the mid-1980s, the Chinese legal system was still the result of the extensive politicisation of law that began to occur in the mid-1950s.524China's legal organisation was characterised by a dramatic lack of substance or "Maoist legal nihilism".525 526 It embraced the statement by Lenin that "all law is public law" in order to consolidate and develop the "big, pure and public" economy and guarantee that both "the socialist revolution and affairs of socialist construction proceed smoothly".528 'Law' in socialist society was strictly formulated to serve an ideological purpose.527 It was held to be the instrument of the Chinese State for the elimination of all capitalist residues, for the defence and the development of the Chinese socialist economy, and ultimately for the realisation of communism.528The Regulations that governed the rights of intellectual property reflected this statement. "For reasons of political ideology or ignorance",529 the People's Republic of China after 1949 decided to reject the legacy of the reformers of the Qing dynasty and the legislation issued by the Chinese nationalists who attempted to adapt the Western idea of intellectual property in China. In 1950, China's

521 See Lo note 474 sup ra at 476.522 Law was used as an instrument for change in China. Legal reform was seen as an agent that could accelerate social change by creating a vocabulary of concepts to be employed by Chinese people to give new defin ition and predictability to their relationships w ith each other and the State. If these were to be popularised, they would become tools for stabilising the expectations of economic actors. See Lubman note 102 sup ra at 20.523 See Clarke note 168 sup ra at 15.524 Law was inextricably entwined w ith politics from the birth of Maoist China and politicised into irrelevance during the Cultural Revolution. See Lubman note 102 s u p ra at 2-3.525 See Lo note 474 s u p ra at 469. The China that emerged from the Cultural Revolution had been effectively rendered both 'lawless' and 'lawyerless'. See Timothy A. Gelatt, 'Lawyers in China: The Past Decade and Beyond', 23(3) N ew Y ork U n iv e rs ity jo u r n a l o f In te rn a t io n a l L a w a n d P o lit ic s (1991), at 754.526 See Epstein note 109 su p ra at 162-163.527 See Lo note 474 sup ra at 470.528 As article 1 o f the Chinese Constitution read, the People's Republic of China was a socialist State under the people's democratic dictatorship bed by the working class and based on the alliance of workers and peasants.

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government issued a series of regulations regarding intellectual property rights. However, they became progressively ineffective according to the fact that the mode of thinking dominant during the 1950s-1960s was to accelerate the conversion of the Chinese population to socialism.The 1950 Regulations were regularly amended to minimise private property rights within China. China's intellectual property regime was an extension of the Soviet model, which expounded socialist beliefs. Citizens, by inventing and creating, were engaged in social activities based on knowledge, which in turn belonged to all members of the society.529 530 During the Cultural Revolution, this already very limited system of intellectual property protection was dismantled, eliminated on the ground that it was based on a 'bourgeois' concept.531 In 1977, after the left- wing leaders of the Cultural Revolution were arrested, new regulations were issued, but efforts were made to preserve the status quo.However, the Dengists argued that the country could no longer continue commit itself to intellectual property rights in name alone, and not in substance, with the sole objective of buying time.532 The Open-door Policy incurred the danger that its economic forecasts could be delayed.533 As the Dengists put it, China must create a clearer, more predictable, contractual legal environment to lure entrepreneurs, foreign businesspeople, peasants, and even State factory managers into investing their capital, technology, energy, and expertise in economic development projects.534As early as 1978 senior Chinese officials specifically addressed the question of enacting legislation to protect industrial and intellectual property.535 The scope of the task to adopt an adequate system of intellectual property rights protection in

529 See Epstein note 109 s u p ra at 159.530 See Tiefenbrun note 255 sup ra at 11.531 See Du vane! note 37 sup ra at 342.532 See A lford note 126 sup ra at 78.533 Louise Duncan and Wang Yanbin, 'Reflexions on the Changing Face of the Chinese Patent System', 5(3) A u s tra lia n In te lle c tu a l P ro p e rty J o u rn a l (1994), at 171-1 73.534 See Turner note 177 sup ra at 11.535 Mark Side!, 'The Legal Protection of Copyright and the Rights of Authors in the People's Republic o f China, 1949-1984: Prelude to the Chinese Copyright Law', 9 C o lu m b ia J o u rn a l o f A r t a n d th e L a w (1985), at 493.

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China536 was as wide as the Chinese socialist legal organisation was unsubstantial.537 "What China [had to do was to] synthesise Western concepts of intellectual property rights to integrate with its own traditions into a unique hybrid of opportunity for commerce."538 539

[ii] A favourable legal situation for intellectual property assumes an ever-increasing importance in stimulating economic developmentm-

China is doing the best that it can540

The liberal discussions of law in Chinese 'juris-prudential circles' revealed gaps between the expectations of officials and intellectuals, but after 1982,541 the Party's leadership, in adopting a favourable attitude towards law, regarded it as an effective means by which to implement its reform program.542 Interestingly, aggressive Western pressures on China to strengthen intellectual property protection gave the Dengists' camp "a source of leverage they lacked at home, and they welcomed it".543The elevation of legal matters in the plan was distinguished by an intense activity

536 Very few commentators have asserted that the enactment of intellectual property laws in China was an indication of an emerging legal culture, characterised by a strengthening jud ic iary and greater compliance with the written laws. See Schlesinger note 1 76 s u p ra at 93.537 See Chwang et al note 460 su p ra at 130.538 See McKenzie note 227 sup ra at 563.539 Pamela Samuelson, 'Intellectual Property and Economic Development: Opportunities for China in the Information Age', at http://sims.berkeiev.edu/~pam/papers/chinaip.html (page 1).540 "In raising these rather cynical questions, I hope to acquire evidence to the contrary which w ill satisfy m y c u rios ity ." See Andrew C. W aider, "H arm onisa tion : M yth and Ceremony? - A comment', 13(1) U C L A P a c if ic B as in L a w Jo u rn a l { 1994), at 165.541 W ith the passage of the Chinese Constitution in 1982, the National People's Congress announced its intention to encourage and assist creative endeavours conductive to the interests of the people. See Lazar note 33 su p ra at 11 87.542 See Lo note 474 sup ra at 480. Chinese officials and scholars commonly said that China needed a more developed legal system because "a market economy is an economy governed by law ", in which law provides rules like those in athletic contests. See Lubman note 102 sup ra at 12.543 See Turner note 177 sup ra at 13.

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within the Fifth National People's Congress in the mid-1980s.544 Legislative agitation had many repercussions on the way in which China first dealt with the issue concerning the absence of an effective protection of intellectual property.545 The way in which the first provision related to the prevention of registered trademark infringement appeared in Chinese legal system was in many respects very significant.546 It was stated in article 127 of the 1979 Criminal Law.547 "The only effective laws on the books were criminal laws".548 Although it was very clear that such a provision could not fundamentally resolve problems, the idea of drafting a specific trademark law549 was still seen as too incompatible with Marxist ideas because to people China it symbolised the quintessential expression of the values of Western society.550

544 China's legislative bodies are divided into three levels. The first level is the National People's Congress and its Standing Committee. The laws and rules published at this level can overrule any legislation published at other levels, in case where the latter conflicts w ith the former. The NPC has the power to pass or amend the Constitution, basic statutes, the economic plan, and the State budget. It can also alter or annul decisions of its Standing Committee. The latter has the power to interpret the Constitution, to pass or to amend statutes other than those that are passed by the NPC, supplement or amend NPC statutes, the plan, or the budget when the NPC is not in cession. It also interprets statutes, annuls administrative rules and regulations, decisions, and orders of the State Council that contravene the Constitution or statutes. Finally, it can annul local regulations and decisions where they contravene the Constitution, statutes, or State Council administrative rules and regulations. The second levei is the State Council. It is considered as an administrative, not a legislative, organ. Therefore, it enacts administrative regulations, decisions, and orders. The Chinese courts decide cases only relying on legislation published by these two levels. At the third level are departments under the State Council. They can also publish rules, orders, regulations, etc. The local administrative authorities apply them. The courts can also refer to them, but on ly if it is necessary. However, the courts w ill not decide any case by relying on them. See Zheng note 515 sup ra at 243.545 China's legislature did not have a clear legislative framework in mind in the mid-1980s. Now that the direction o f the communist Party set to move towards a market economy, the legislature was urged to consider the whole Chinese legal system when enacting or amending individual laws to serve the establishment and healthy development of a market economy in the country. See jianyang Yu, 'Protection of Intellectual Property in the P.R.C: Progress, Problems, and Proposals', 13(1) U C L A P a c if ic B asin L a w J o u rn a l (1994), at 15b.546 Zheng Chengsi, 'Trade Marks in China: The first Specific Law in the Field o f Chinese Intellectual Property', 4(10) E urop ea n In te lle c tu a l P ro p e rty R e v ie w (1982), at 278-279. "A country w ith a history o f a weak legal system, China had little experience in dealing w ith legal theories." See Cai D ingjian, 'China's M ajor Reform in Crim inal Law', 11(1) C o lu m b ia J o u rn a l o f A s ia n L a w (1997), at 213.547 The C rim ina l Law of the People's Republic of China was adopted at the Fifth Session o f the Standing Committee of the Sixth National People's Congress on July 1, 1979.548 See Clark note 51 sup ra at 20.549 See Zheng note 548 sup ra at 279.550 See Wang note 448 sup ra at 259.

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Originating from a system of private ownership of the means of production,551 such a law was still in total opposition to the Chinese economic organisation. At the beginning of the 1980s, such an organisation was characterised by a primarily State-owned economy, still dependent on a Five-year State Plan, modelled after the one in the Soviet Union. The plan determined production, distribution, exchange, and consumption. It also subordinated Chinese work units (or 'danwei' in Chinese)552 that were accountable to superiors for completing their mandatory duties.553 By then, this unified planned organisation was still constituted by powerful and relatively unresponsive State-owned and collective-owned enterprises in which citizens were all employed as workers and employees. China's economy was a single nation-wide State syndicate of sorts, which functioned as a single office and a single factory, with an equality of labour and pay.554 In 1997, they still employed an estimated 40 to 110 million workers by providing an "iron rice bow l"555 of services to more than 340 million or one- quarter of China's population. State enterprises still represented 65% of the jobs in the industrial sector.556In accordance with conflicting statistics, the size of the Chinese public sector varied then from 125, 000 State enterprises to well over one m illion.557 It was believed that, in 1993, these enterprises supplied 92% of China's power generation, 86% of its ferrous metals, 72% of chemicals, 64% of machinery and 53% of textiles, while generating 70% of State revenues.558 In this context, private

551 Ib id at 257.552 The 'danwei' was set up to function both as a department or organisation and as a means for managing the household register, food supply, medical services, and housing. It was also decided that it would handle issues of ideological re-molding, political education, policing and security, marriage and divorce, and entry into the Party structure. Association w ith the 'danwei' has always been regarded as fundamental in establishing one's place in society, second only to one's national citizenship. N ot unlike the relationships found w ith in the traditional clan system based on fam ilial ties, those of the 'danwei' depended on a system of mutual reciprocity and interdependency.553 See Wang note 448 sup ra at 258.554 Ib id .555 Joaquin F. Matias, 'From W ork-U n its to Corporations: The Role of Chinese Corporate Governance in a Transitional Market Economy', 12(1) N e w Y o rk In te rn a tio n a l L a w R e v ie w (1999), at 7.556 See Samuelson note 306 sup ra at 20.557 Michael S. Serrill, 'Socialism Dies, Again', Time, 22 Sept. 1997, at 44.558 See Matias note 557 sup ra at 6.

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enterprises were nearly non-existent. The relationship between these two different enterprises was based on co-operation instead of competition, and almost everything was 'shared'.559 Any disputes were resolved 'administratively' as part of State planning.560As article 23 of the 1963 Regulations stated, inventions were the property of the State and no person or no unit could claim any monopoly over them. Units throughout China could make use of new inventions that were essential to them, including know-how and trade secrets.561 The 1963 Regulations were only important for foreign firms or for quality control.562 The situation hardly amounted to any kind of patent law.These issues were discussed, for the first time in October 1979, at a national meeting held by the Administration of Industry and Commerce,563 precisely on the basis of recognising the concept that "results of mental labour are also commodities".564 Chinese government departments were extremely divided over the implementation of a system of intellectual property protection. Enacting such a system in the country was to complete "a 1 80 degree turn",565 but Deng Xiaoping saw law ' as necessary to maintain China's social order for socialist modernisation.566The adoption of intellectual property laws in China signified the introduction of a form of private property into the socialist legal organisation.567 Deng's pragmatic leadership style did not, however, specify the end of the building of a "socialist legal system with Chinese characteristics".568 Deng's approach was incremental.569

559 See W en Xikai note 482 sup ra at 21.560 See Clark note 51 supra at 20.561 See Wang note 448 sup ra at 259.562 See W en Xikai note 482 sup ra at 21.563 See Zheng note 548 sup ra at 278-279.564 Wang Zhengfa, T h e Chinese Intellectual Property System at the Turning Point', 28(1) C h in a P atents a n d T ra d e m a rks (1992), at 23.565 See Zheng note 433 sup ra at 31.566 See Lo note 474 sup ra at 474.567 See Wang note 448 sup ra at 262.568 Although the term 'building socialism with Chinese characteristics' has been frequently used, as w ith many Chinese slogans, it is still d ifficult to ascertain the original source and its underlying intent. Deng Xiaoping himself used this slogan, which stemmed from a desire to reconcile the idea of Marxism w ith 'Chinese reality'.569 See Wang note 448 sup ra at 263-264.

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While proclaiming unswerving adherence to the 'four cardinal principles' of socialist China, he nevertheless affirmed the fundamental role of legal institutions in socialist society. However, Deng did not see that approach as contradictory. He distinguished between ideology and political practice. To him, ideology was the source of China's Communist Party legitimacy to rule. The 'four cardinal principles' were the foundation of that ideology.570On the other hand, both the criteria for evaluating law and the legal system itself were its ability to improve the material life of Chinese people. The 1982 Constitution specifically provided protection for private property (article 13). More support was found in the 1986 General Principles of Civil Law.571 Deng decided then that it was time to surmount all the obstacles, difficulties, and obstructions that stopped China's legal system from moving from the nineteenth to the twenty- first century.572 Additionally, reformers "did not ignore the benefits that might accrue to China internationally".573In declaring that "it is better to have a patent system",574 Deng, after more than a decade of bitter national debate, facilitated the passing of a patent law and a trademark law. The least controversial of the proposed intellectual property laws, the Trademark Law, was enacted by the 24th Session of the Standing Committee of the 5th National People's Congress in August 1 982.575 After five long years of drafting,576 the Patent Law was finally promulgated in March 1984 by the 4th Session of the Standing Committee of the 6lh National People's Congress.577 These two intellectual property laws were a major ideological breakthrough in the

570 See Lo note 474 s u p ra at 475.571 Zheng Chengsi, T h e Future Chinese Copyright System and Its Context', 15(2) I IC - In te rn a t io n a l R e v ie w o f In d u s tr ia l P ro p e rty a n d C o p y r ig h t L a w - (1984), at 142. The rights set out in these two documents were more lim ited than those conferred by the U.S. Constitution, for example. See Lazar note 33 sup ra at 1187.572 See W o jc ik et al note 81 sup ra at 291.573 See A lford note 126 sup ra at 67.574 Duan Ruichun, 'China's Intellectual Property Rights Protection Towards the 21s! Century', 9(1) D u k e J o u rn a l o f C o m p a ra tiv e a n d In te rn a tio n a l Law (1998), at 216.575 See Leong note 310 sup ra at 34.576 See Side! note 537 sup ra at 493.577 K. H. Pun, 'Protection of W e ll-know n Goods in China', 18(10) E u ro p e a n In te lle c tu a l P ro p e rty R e v ie w ( 1996), at 537.

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Chinese legislation.578 They were a clean break from the previous efforts to regulate the area of intellectual property in China.579However, although these two laws revealed themselves as being highly revolutionary in their nature, they were the result of "careful and prudent considerations".580 Indeed, more was said about the rights provided than the means through which citizens in China might vindicate them.581 582 In China, a rule granting 'X' a 'right' to do something was very often a command to X's superior to allow X to do the thing in question. The institutional addressee was an administrative body, not a court. The command could be either obeyed or disobeyed. What X's remedies were when the superior did not allow the behaviour was another question entirely.587 Outwardly, the two intellectual property laws had an important psychological dimension for China,583 but the nation still lacked what Alford termed as a 'right consciousness', that is a belief that individuals are endowed with rights that they are entitled to assert even with respect to those in positions of authority.584Although China embarked on a campaign, based on the popularisation of legal education, intended to raise mass awareness of the Chinese legal system in the mid-1980s,585 it was still hard to nurture broader public acceptance of and respect for intellectual property.586 In addition, it was also hard to imagine that people would strenuously assert such rights. The Chinese legal organisation was still closely linked to the unit for which the accused worked.587 In the same manner, it was d ifficu lt to make people appreciate that these laws were specifically needed.588

578 See Wang note 566 sup ra at 23.579 See Alford note 126 su p ra at 74.580 See Zheng note 142 su p ra at 193.581 See A lford note 126 su p ra at 73.582 See Clarke note 168 su p ra at 23.583 See Burrell note 6 sup ra at 199.584 See Ho note 63 su p ra at 7.585 Jeffrey W . Berkman, 'Intellectual Property Rights in the PRC: Impediments to Protection and the Need for the Rule of Law', 15(1) U C L A P a c if ic Basin L a w J o u rn a l (1996), at 33.586 See Samuelson note 541 sup ra at 2.587 See A lford note 126 sup ra at 73.588 See Burrell note 6 sup ra at 207.

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In fact, only Western business circles welcomed them.589 One year after the passage of the patent law, the total amount of new investment under contracts already equalled about 40% of the total of the previous six years after the Open- door Policy was adopted.590China's antagonism against private property591 was also demonstrated by the order in which its intellectual property statutes were passed. The Copyright Law was the last of China's three intellectual property statutes enacted.592 The enactment of the Law was delayed due to political infighting as well as ideological differences among the drafters concerning the meaning and purpose of copyright in China.593

One of the most highly regarded IPR scholars

In order to enact the two intellectual property laws, propaganda techniques revealed the need to emancipate the minds of the Chinese ideologues from ideological taboos.594 The China Patent Office (CPO) was then given the task of educating the rest of the population in China.595 Articles in newspapers and academic journals were the most visible actions engaged in by the CPO to raise the level of the legal consciousness of the officials. China also involved the media in the campaign to raise the awareness of the masses. There were daily statements in the press from important officials about the need for the people to learn the law.596Prosperity in the emerging global information economy depends in substantial part on the strength of information industries, which, in turn, depends on the respect for intellectual property rights. The link between respect for intellectual

589 See Wang note 448 sup ra at 264.590 See Ho note 511 sup ra at 628.591 The Copyright Law revolutionised the idea of w hy copyright should be protected. It treated copyright as a type of private property right, approaching the status given to copyright in Western countries. In addition, the ownership aspect of copyright is best illustrated through the newly introduced ab ility to assign or licence this right. See Song note 1 54 s u p ra at 42.592 See Yang note 506 sup ra at 270.593 See Schlesinger note 176 s u p ra at 113. The study of the Copyright Law and its various Regulations is the subject of the second part of this thesis.594 See Wang note 448 sup ra at 259.595 See Zheng note 142 sup ra at 193.

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property rights, on the one hand, and economic development and prosperity likely to flow from intellectual property rights protection, on the other hand, was not always easy to perceive.596 597Yet, Deng acknowledged that it would take a long time for Chinese people to understand that. He saw early on that only a stronger action, through the training of specialists in intellectual property rights,598 could bring about a change in the mentality of the Chinese population as a whole. Education was the appropriate means to produce a pool of Chinese qualified legal professionals to operate the new legal order of the country.599 By having fashioned himself as a "pragmatist, only caring about results",6™ he decided to personally name his successor in the strengthening of intellectual property in China.Honoured with the title of "National Expert on Intellectual Property", "Professor Zheng Chengsi is [now] one of China's most highly regarded intellectual property scholars".601 By having studied both in China and Europe, Zheng was the best candidate to brave the dilemma of accommodating the nation with intellectual property laws. Since then, he has written most of the leading texts in the Chinese language on this question. As Pendleton has emphasised, they number in the dozens. Pendleton and Zheng have also jointly authored and published books and articles in English "to tell people in the [West! what was happening in relation to the enforcement of I[ntellectual] Property] Rfights]" in China.602 During the mid-1990s, when the battle between the U.S. troops and China's forces was at its most intense, Zheng and Pendleton were "surprised to find that very few people really knew that IPR cases were dealt with by Chinese courts of justice".603 Moreover, "[t]his fact was not even known by [...] the USTR", Zheng

596 See Berkman note 587 su p ra at 33.597 See Samuelson note 541 sup ra at 2.598 See Duan note 576 sup ra at 216.599 See Lo note 474 sup ra at 476.600 See Butterton note 453 sup ra at 287.601 Michael Pendleton, News Selection: National Reports: China-Copyright, 'Blatant Infringement o f Copyright Perpetrated Against One of China's Most H ighly Regarded Intellectual Property Lawyers' 8 E u ro p e a n In te lle c tu a l P ro p e rty R e v ie w (1993), at D-1 78.602 Zheng Chengsi, In te lle c tu a l P ro p e rty E n fo rc e m e n t in C h in a - L e a d in g Cases a n d C o m m e n ta ry , The China Law Series, Hong Kong-Singapore, Sweet & Maxwell Asia (1997), at vii.603 According to statistics, from 1991 to 1996, the People's Courts nation w ide accepted 19,404

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concluded.604On the other hand, as he also noticed, everyone knew about what he named the "strange statistics",605 which were commonly cited by the U.S. troops. They disclosed that 98% of software used in China was pirated. However, after having taken part in a few discussions during decisions by Chinese courts regarding software infringement, Zheng declared that such a percentage was totally "incorrect and unrealistic". He pointed out that only about 30% of Chinese firms at that time were using software. He argued that a majority of these firms did not run English software on their computers since "a lot of [their employees could] only speak Chinese".606 Employees in China very rarely use English in their work. According to the simple fact that one-third of personal computers in China at the time were still imported, of which more than one-fourth were supplied by the manufacturers with legal copies of software,607 Zheng was deeply aware of the need to undertake serious corrective measures.To prove the sincerity of China in the fight against intellectual property piracy, Zheng decided to reveal to the public that his work had not escaped the ravages of the fierce pirates.608 In 1993, the Beijing newspaper Bright Daily published articles describing the facts. Zheng decided to initiate a complaint against the Procuratorial Publishing House of China because the latter infringed the copyright in five of his books about diverse areas of intellectual property. In seeking to

cases of c iv il dispute over intellectual property (of which 1 7,588 were conducted). O f these, 4,138 were patent cases (of which 3,687 were conducted), 1,227 were trademark cases (of which 1,095 were conducted), 3,036 were copyright cases (of which 2,892 were conducted). 8,162 were cases of dispute over technology contracts (of which 7,208 were conducted). There were 2,841 other intellectual property cases such as those of business secret infringement (of which 2,706 were conducted). See Justice Cheng Yong-Shun, 'Juridical Protection of Intellectual Property in China', 9(1) D u k e J o u rn a l o f C o m p a ra t iv e a n d In te rn a t io n a l L a w (1998), at 269. In the year 1994, the number o f copyright cases accepted by the Chinese courts was 362, of which 233 were conducted. In 1995, 385 cases were accepted and 366 were conducted. In 1996, 436 cases were accepted and 436 were conducted. See W u Shulin , 'The C onditions of the Judicial and Adm in istra tive Protection o f Copyright in China', 9(1) D u k e J o u rn a l o f C o m p a ra t iv e a n d In te rn a t io n a l L a w (1 9 9 8 ), at 244.604 See Zheng note 604 sup ra at vii.605 Zheng Chengsi (Chief Editor), In te l le c tu a l P ro p e r ty S tu d ie s - n u m b e r 2, Chinese Fangzheng Publishing House, China, Dec. 1996, at 191.606 I b id at 191-192.607 I b id at 192.608 See Alford note 126 sup ra at 88.

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capitalise on the attention that the 1992 MOU focused on copyright, the publishing house published, distributed a so-called Complete Book of Intellectual

Property. Although he had failed in his efforts to secure the royalties he believed he was entitled to,609 Zheng took the opportunity to make it clear that there was a new generation of Chinese people that believed piracy should no longer be tolerated.610 This new generation was ready to help stop the pervasive violation of rights in China "for once and for all". As Alford emphasised, the "greatest victims of the infringement of intellectual property [rights]" were the Chinese people.611 To reconcile people with the cause, especially after almost a decade of hostilities, it was required, as Pendleton underlined, to carry out "an identification of the various interest groups involved".612 As Alford accentuated, insofar as having its attention long diverted by "short-term economic and electoral interests",613 the public, especially behind the U.S. lines, deserved a clearer perception of the situation of the battle.614 615Zheng has been the sole academic member to participate to the Copyright Law

Drafting Committee from beginning to end.6|t; He has acquired fame throughout the struggle over China's adoption of a stronger copyright regime. To him, his

609 Ib id at 88-89.610 Tan Loke Khoon commented on the division between the new and the old guard w ith in China's bureaucracy when it comes to the protection of intellectual property. Tan expressed optimism that the new guard was much more concerned than the old to ensure that intellectual property rights were respected. See Khoon note 45 sup ra at 100.611 "Chinese consumers, eager to make up for decades of isolation from the world marketplace but none too sophisticated about what they were purchasing, all too often proved easy prey for purveyors o f counterfeited items." See Alford note 7 supra at 136-140. "This new a lly in the war on piracy is Chinese victims themselves." See Kachuriak note 66 sup ra at 613. "These people include professors, scholars, writers, scientists, artist, public figures, and even monks". See Liu Chuntian, 'The Current S ituation of China's Copyright-Related Legal System Viewed Through Cases', 33(2) C h in a Patents & T ra de m arks (1993), at 77.612 M ichael D. Pendleton, 'Intellectual Property and the National Interest: W hat Developing Countries Can Learn From the Hong Kong Experience', 20(9) E uropean In te l le c tu a l P ro p e r ty R e v ie w (1 998), at 325.613 See A lford note 7 sup ra at 135.614 Alford also challenged the figures provided by American industries of estimated losses due to copyright piracy in China, the figures that the U.S. troops relied on to calculate the amount of 'Section 301' sanctions to impose on China. These estimates were based on the assumption that the loss due to piracy equalled the revenues that would have been realised had the items in question been sold at fu ll price. Alford argued that these figures were exaggerated because there was no evidence that everyone who purchased a pirated good would buy a legal copy if illegal copies were not available. See Jenckes note 123 supra at 566.615 See A lford note 126 su p ra at 88.

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own piracy case illustrated the situation at the front. It simply brought "discredit to all publishers and honest editors" in China because of the carelessness of a very small number of editors-in-chief, as well as the violation of the new Chinese copyright legislation by a handful of pirates. To him, the discredit was not brought about by his discovery of the copying or by his intolerance of it.616 In marking the difference, Zheng also sought to stress another distinction. Although the publisher and the editors-in-chief apologised to him privately for the infringement, he also required "a public apology because the dispute concern[ed] a publicly issued book". "I suggested a clear distinction should be drawn in the apology between the actions of the plagiarists and the position of other honest authors", he specified.617 China may have once been a country that "took pride in having no laws", but it now took justified pride in having an extensive system of very good laws.618Finally, when Zheng bravely acknowledged that "intellectual property in China [was] far from satisfactory",619 and more precisely, he claimed that copyright enforcement was "far from being satisfied in practice as well as in jurisprudence", he simply sought to clarify the situation. To him, enforcement was "going on, not standing still or backward"620 and surely nothing was to be gained "by complaint or listening to unverifiable statements",621 especially "by a small but significant subset of American industry [...] and their trade associations".622 623

[b] To every cow its calf, changes in the location of

the battlefield ^

616 See Pendleton note 603 sup ra at D-1 79.6,7 I b id618 See Riley note 378 su p ra at 4.619 See Zheng note 604 sup ra at vii.620 See Zheng note 607 sup ra at 172.621 See Zheng note 604 sup ra at vii.622 See Alford note 7 sup ra at 149-150.623 Stephen Breyer, 'The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs', 84(2) H a rv a rd L a w R e v ie w (1970), at 281. The words are those from

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By continuously attacking aspects of the Chinese copyright regime, the U.S. troops threw people into confusion. Throughout the 1990s, the warriors and their writings also brought about 'misunderstandings' of the intentions of the Chinese government, 'misconceptions' about the lay out of the battlefields, and 'mistranslation' of the conflict situation.624 Both Zheng and Pendleton denounced this attitude.

[i] Friends and enemies

The U.S. allies

This thought was also the feeling of Sir Leon Brittan, the Vice President of the European Commission of the European Union (EU). When the Commission issued a statement in April 1995 after a set of bilateral talks with China's authorities, declaring that Europeans were to "increase significantly the level of technical assistance" to China,625 the European troops (supported discreetly by the Japanese troops)626 distanced themselves from the aggressive U.S. trade tactics.627 In this way, they tried to influence the U.S. troops to tone down their unrelenting mission of imposing an idealised picture of intellectual property protection on their trading

King Diarmed's succinct, bucolic analysis of copyright.624 Zheng Chengsi and Michael D. Pendleton, 'A Response to United States Government Criticisms of the Chinese Copyright Law', 13(7) European In te llec tu a l P roperty R e v ie w (1991), at 257-258.625 China and the EU signed an 'Agreed Minutes' on April 7, 1995, which provided that the EU decided to spend approxim ately 4.5 m illion Euro on an in te llectual property co-operation programme for China. See Benedicte Callan, 'US and European Efforts to Enhance Intellectual Property Protection in Asia: A Logic in Cooperation', In te llec tu a l P ro p erty A sia (1997), Nov., at 37. The 1995 Agreement between China and the EU provided that all the provisions of the China-U.S. exchange o f letters (including the annexes) that applied to the U.S. individuals and entities would apply to EU individuals and entities. See Yang note 299 supra at 9. On June 30, 1992, China and the EU signed an Agreed Minutes, which provided that the Chinese authorities agreed to provide administrative protection to the Community's pharmaceutical and agricultural chemical product inventions.626 The frustration that the United States has experienced in the struggle for the imposition of in tellectual property laws in China resulted partly from this idealised picture of the role of intellectual property in all countries, industrial or non-industrial. The caution that the European Union generally urges in this matter has not influenced the United States to tone down its unrelenting mission of imposing on its trading partners an intellectual property regime suitable to the most advanced countries, primarily itself. See Endeshaw note 345 supra at 282.627 See Callan note 627 supra at 36.

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partners,628 most suitable to advanced nations, primarily itself. After China and the United States signed the 1992 MOU, the U.S. allies claimed that they should enjoy the same rights. European troops held that the practice violated the principle of most-favoured nation treatment under the GATT.According to the U.S. high command, they were sending "a doubly strong message"629 to China. The critically important if unglamorous and costly training measures were blamed by the U.S. commanders for undercutting the U.S. policy on China.630 On the other hand, the EU high command indicated that the most effective thing the United States could do to promote intellectual property rights in China was to encourage socio-economic growth through vigorous economic engagement, open commerce, and extensive educational and cultural exchanges. By making the training of Chinese personnel in intellectual property matters a priority in their contribution to China, Europe had decided to take "a different, more accommodating, approach seeing co-operation rather than confrontation as the way forward"631 632 633 in the battle. The EU believed that there were clear assurances that China's authorities would continue granting equal treatment to its partners "in the future, as in the past".612Interestingly, the European "free rider"611 arrived at a time when the U.S. high command began to face an unexpected dilemma in its own camp. American trade sanctions became "no longer the appropriate tools to fight China's piracy problem".634It was noted that the vote held annually in the U.S. Congress to determine whether or not China should continue benefiting from the Most-Favoured-Nation

(MFN) treatment was more effective than the threat of 'Section 301 '.635 The 'MFN treatment', under Section 406 of the 1 974 Trade Act, grants eligibility to non­

628 See Endeshaw note 345 supra at 281.629 See Callan note 627 supra at 35.630 See A lford note 7 supra at 142.631 Henry J.H. W heare and Lovell W h ite Durrant, In te llec tua l Property: China's Unrewarded Efforts?', C h in a L a w & P ractice (1996), June, at 39.632 See Prohaska note 317 supra at 180.633 See A lford note 7 supra at 142.634 See Cheng note 84 supra at 2007.635 See Cetlan note 222 supra at 192.

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market nations for the same low tariff rates accorded by the United States to the rest of their trading partners.636 Moreover, the ability of the USTR to continue pressuring developing nations with regard to intellectual property issues stood in violation of the new transitional arrangements of the international community.637

The historically volatile Sino-American relations on trade638 639 640

At the same time, with the centre of power for the world treatment of intellectual property rights moving "across Geneva'"’1'’ from one agency to another, Intellectual property law' was "formally elevated to a [war] trade issue".640 The World Trade Organisation (WTO) came to replace the GATT. The management of new, complex interdependent international economic relations required a standing system that could oversee rulemaking, enforcement, and dispute resolution between the members of the GATT,641 which totalled about 90% of international trade. In January 1995, after eight years of negotiations,642 643 the WTO became that organisation. The new international institution incorporated into its Charter the original GATT Agreement by reference and added a series of new trade rules to the world trading system.By achieving a deeper integration among national political economies in order to promote economic efficiency and growth/4' the WTO became, together with the International Monetary Fund and the United Nations, the new "gateway to world

636 See Tait et a I note 374 supra at 105.637 See Cheng note 84 supra at 2007. Alford criticised 'Section 3 0 V in that it contravened the United States' own obligation to the W TO , such as the non-discrimination provision or the dispute resolution process. See W illia m P. Alford, 'Forum: Taiwan and the GATT: Panel Three: Intellectual Property, Trade and Taiwan: A GATT-Fly's V iew ', 97 C o lu m b ia B u sin ess L aw R e v ie w (1992), at 104. It was also in conflic t w ith the objectives of the new organisation in its treatment o f developing countries. See Berliner note 14 supra at 740-743.638 See Simpson note 27 supra at 623.639 Frederick M . Abbott, 'The W TO TRIPs Agreement and Global Economic Development', 72(2) C h ic a g o -K e n t L a w R e v ie w (1996), at 386. Both the W IPO and the W TO are housed in Geneva.640 See Pendleton note 614 supra at 325.641 See Blumental note 229 supra at 250.642 John S. M o, 'China, the W orld Trade Organization, and the Agreement on Trade-Related Investment Measures', 30(5) Journal o f W o rld Trade (1 996), at 89-90.643 See Ryan note 206 supra at 535.

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markets".644 It also meant for China not having to negotiate on an annual and bilateral basis. By then, the Chinese government changed its position on the world trading system. Getting a "ticket of admission" to the WTO became fundamental for China to "get on the international track" ('yu guoji jiegui' in Chinese).645 Following its 1950 decision646 to withdraw from the GATT,647 648 the Chinese government came annually under the power of U.S. Congressmen in order to renew its MFN status.640 The MFN treatment was also used as an aggressive weapon to induce China to adopt an intellectual property system in order to be granted this treatment. Congress proved that it could pressure the Chinese nation using the carrot (the promise of support for China's re-entry to the GATT and then the WTO) and the stick (the threat of withholding the annual renewal of MFN status) policy649 at any place and time.Having permanent Normal Trading Relations (NTR) (previously called MFN)650 with the United States has always been considered as the most vital component of the economy of China. Consequently, China soon became the largest trade deficit partner651 of the United States after Japan, with the NTR status lowering the cost of

644 Thomas C. W . Chiu, 'China and GATT: Implications of International Norms for China', 26(6) J o u rn a l o f W o r ld T rade (1992), at 6.645 See Blumental note 229 sup ra at 253.646 'The Republic of China' was one of the original twenty-three founding members to the GATT, which went into effect on January 1, 1948. The Chinese Nationalist government, on behalf of China, signed the GATT on October 1947, deposited its instrument o f Acceptance of Provisional Application o f the GATT on April 21, 1948, and became a contracting party on May 7, 1948. After the Chinese Communist Party founded the PRC in Mainland China on October 1, 1949, the Chinese Nationalist government, which installed itself in Taiwan, found it impossible to continue the original rights and obligations under the GATT. Thus, it notified the Secretary General of the United Nations of its decision to w ithdraw from GATT membership on March 6, 1950. Since then, China has lost its direct contact w ith the GATT as a contracting party. Taiwan authorities took observer status in the GATT from 1965 to 1971 and the Beijing government has been granted observer status from 1982 up to the present. See Ya Q in, 'China and GATT', 27(2) J o u rn a l o f W o r ld T ra de (1993), at 78.647 Wenguo Cai, 'China's GATT Membership: Selected Legal and Political Issues', 26(1) J o u rn a l o f W o r ld T rade (1992), at 36-37.648 See Tiefenbrun note 255 sup ra at 4-5.649 See Floum note 50 su p ra at 57.650 Mark W . Frazier and Peter M. Hansen, 'China's Acc ession to the W TO : A Candid Appraisal From U.S. Industry', The National Bureau of Asian Research, NBR Publications, NBR Report, November 1999, at http://wvvw.nbr.org/puhlicaiions/Trie fing/fraz ierhansen99/index.html651 In the 1980s, there was a widespread belief in the United States that piracy in China was responsible fo r the massive U.S. trade deficit. American businesses believed that intellectual property infringement directly affected international trade and formed a barrier to trade, thus leading to a trade deficit. This idea was eagerly seized on by the U.S. government and became the

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its importation and expanding the range of new export opportunities for its industries.652In 1985, the U.S. trade deficit with China was nearly US$ 3 billion,653 with a subsequent annual growth of 15% to reach nearly US$ 60 billion in 1998,654 and an approximate 50% increase since 1995 when the trade deficit with China stood at about US$ 34 billion.655 In 1996, the U.S. Department of Commerce reported that for services trade, the U.S. nation exported US$ 3 billion to China and imported US$ 2 billion in services, resulting in a positive services trade balance with China of US$ 1 billion.656 Ranked twenty-sixth in the mid-1980s, China was the world's third largest economy at the end of the 1990s657 with some 40% of its activity linked to the external world.658As China re-opened in 1978, rejoining the GATT in the 1980s became the country's best available means of achieving its goal of non-isolation.659 The Open- door Policy was the occasion for the People's Republic of China to officially re­enter the international society as a "team player",660 in order to obtain the international recognition that had been absent since the Chinese Communist Party came to power in 1949. In the 1990s, as the Chinese nation began to generate

basis for the Special 301 provisions. W h ile the theory had some va lid ity w ith respect to other developed capitalist nations, such as Japan or Germany, it could not sensibly explain the U.S. deficit w ith China. Poor intellectual property protection remains an 'unproven hypothesis' to explain the trade deficit of the United States with China. China occupied a unique position in the global economy in being the largest economy of any communist country in the world (the third largest economy overall). It combined its immense economic power w ith a low per capita income. This was d ifficu lt for the United States to accept. See Lazar note 33 su p ra at 1209.652 Joseph Fewsmith, 'China and the W TO : The Politics Behind the Agreement', The National Bureau o f Asian Research, NBR Pub lica tions, NBR Report, N ovem ber 1999, at http://www.nbr.org/publications/briefing/frazierhansen99/ii idex.html653 B r u c e S t o k e s , ' T h e C h i n a W T O D i l e m m a ' , at http://brie.berkeley.edu/~briewww/forum/berkeley2/stokes.html654 N icho las R. Lardy, 'C hina 's W T O M em bership ', Po licy Brief #47, A pril 1999, athttp://www.brook.edu/comm/policvbriefs/pb047/pb4 7.htmThe U.S. trade deficit w ith China reached US$ 69 b illion in 1999. See Samuelson note 306 supra at 20.655 China O n line, Text: 'Foreign Trade Barriers in China' (USTR 1998 Foreign Trade BarriersReport), at h ttp://w w w .chinaonline.c o m/t ea t u re s/l eg a I /1 a w s regs/rm trade barriers ch.asp656 ibid657 See Rosen note 232 sup ra at 1519.658 See note 652 su p ra at h t t p : / /w -w w .n b r . o r g / p u h l i r n l i o n s / b r i e f i n g / f r a z ie r h a n s e n 9 9 / in d e x . h tm l659 See Chiu note 646 su p ra at 10.660 See Freinerman note 163 s u p ra at 186.

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greater demand for goods and services,6'’1 entry into the WTO became its greatest goal.661 662China's government acted on pragmatic calculations. Becoming a WTO member was to eliminate the power of the American Congress and put an end to the both humiliating and "nasty spring debate over renewing [the nation's] Most Favoured Nation trade status".663 Finally, the aim of China's leadership had always been to jo in the WTO as a 'developing economy' and the effect of its membership was seen as "a big help"664 towards speeding up the development of the Chinese economy. In this way, China could continue to enjoy the right to higher importation taxes, as well as "the slower pace" towards the gradual elimination of its trade barriers.665 The Chinese government was not to compromise on its demand for 'developing economy' status.666To get China into the WTO was also "a personal priority"667 668 for the general headquarters of the U.S. troops. Indeed, U.S. President Bill Clinton considered that the Chinese nation could not "make the best of the [new] world trading system w ithout being a member of it".66H He implic itly recognised that an international system of trade, which excludes one-quarter of humanity, was "a contradiction in terms".669 However, 'Capitol H ill' indicated that the Chinese nation should be placed at the same economic level as Japan, the United States, or the European Union when joining the WTO.670 The United States was not to compromise on its requirement.671

661 See Chien-Haie note 18 supra at 203.662 See Simpson note 27 supra at 614.663 See Yeh note 31 supra at 521.664 See note 652 supra at http://www,nhr.()rg/publications/h riefin^,/trazierhansen99/index.html665 See M o note 644 supra at 92.666 See Rosen note 232 supra at 1535.667 See note 655 supra at http://brie.berkelev.edu/~briew\vvv/io ruin/berkeley2/stokes.html668 See M o note 644 supra at 93.669 See Blumental note 229 supra at 250.670 See Rosen note 232 supra at 1519.671 As a 'developing country', China was not only granted a one-year transition period that applied to all member countries under article 65-1 of TRIPs, but was also granted an additional delay of up to four years. The U.S. and the EU considered China too large to be allowed to jo in the W TO under the favourable conditions reserved for developing countries. Instead, the USTR stated that the United States would negotiate China's entry to the new organisation on a 'com m ercially reasonable' basis. On the other hand, the EU was firm in its opposition to China's bid to jo in the organisation w ith o u t improvements in market access, economic reforms, free trade for all

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As the Director-General of the WTO emphasised, "China's entry into the global trading system is about more than trade[: it] is about [its] future role as a world economic leader. And it is about the future direction of the global economy and our global community".* 672 In short, "China needs the WTO, whereas the WTO also needs China".673In 1986 China launched its first bid674 to join the Uruguay Round negotiations under the auspices of the GATT, which resulted in the creation of the WTO. The prospective of the Chinese participation in the trade negotiations had always been "largely politica l".675 The talks constantly went sour not only because of the subsequent uncertainty of the Chinese future policy shifts (especially after 1989),676 but also because China was denounced as violating six of the basic standards set by the Uruguay Round677 that are incorporated into the WTO.When the GATT was established, the focus of the organisation was restricted to tariffs and border measures. By extension, the rules of the WTO were applicable well inside the border, encompassing technical standards, services, trade-related investment, intellectual property, and a set of economic policies, which were once considered domestic.678 China was refused entry to the Uruguay Round and to the WTO because of its non-compliance with the Subsidies and Countervailing

Measures, the requirements imposed on Trade in Services and Import Licensing,

the Agreement on Safeguards, the TRIPs Agreement, and finally the Trade Related

Investment Measures.

products, and currency convertibility. See Sc.htesinger note 1 76 supra at 136.672 See Blumental note 229 supra at 255.673 Gao Lulin, 'China and the TRIPs Agreement', 48(1) C hina P atents & T radem arks (1997), at 9.674 An enormous amount o f discussion in academic circles has been devoted to the question of whether C hina could be readmitted to the GATT or whether its 1986 request should be understood as a 'de novo' application for contracting party status. It was persuasively argued that as the government of the PRC neither contested the legality of the Republic of China's w ithdrawal nor attempted to assume the responsibilities of membership in the GATT shortly after the w ithdrawal o f the Republic of China, the PRC waived their right to claim readmission. Thus, it might be argued that the PRC's posture before January 1, 1995, at which time the W TO replaced the GATT, should be understood as that of applying anew for accession to the GATT. See Schlesinger note 176 supra at 136.675 See note 652 s u p ra at h t t p : / /w w w . n b r . o r g / p u h l i r n t i o n s / b r i e f i n g / f r a z ie r h a n s e n 9 9 / in d e x . h tm l676 See Cai note 649 supra at 36.677 See Rosen note 232 supra at 1542.678 See Blumental note 229 supra at 258.

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[ii] The deal o f the twentieth century

The missing links

At the end of the twentieth century, the Uruguay Round negotiations mirrored the legal and economic development of the West. They expressed the desire for a consistent, well-balanced development of world business institutions.679 By attempting the ambitious promotion of welfare-increasing policies through international guarantees of freedom, non-discrimination and rule of law initiated by the GATT,680 and in the context of the Dispute Settlement Body initiated by the WTO,681 682 new commercial agreements became the foundation of a new international trade stability.As new products emerged in international markets, new norms were created to integrate them and increase their economic efficiency. Transformed into a "global village",602 the international community witnessed a proliferation of advanced information technologies, such as semiconductor chip designs, computer databases, and computer programs683 that started presenting new challenges for Western legal systems, partly due to the technical complexity of these works.The history of copyright has been subject to constant changes. The first copyright statutes responded to crises culminating in the seventeenth-eighteenth centuries.

679 M ichael Lehmann, 'TRIPs, the Berne Convention, and Legal Hybrids', 94(8) C o lu m b ia L a w R e v ie w (1994), at 2621.680 See Petersmann note 235 su p ra at 161.681 The Dispute Settlement Body of the W TO was set up as a m ultilateral approach to obtain a dispute settlement. It implies that one member nation should not use unilateral sanctions against another W T O member w ithou t first going through the dispute settlement mechanism of the organisation, in seeking to make the W TO the arbiter of world trade by reducing divergent interests w ith in the new organisation, the United States became more reluctant to use Section 301 because such sanctions now engender DSB-authorised counter-retaliations. See Tiefenbrun note 255 su p ra at 42-44.682 Ma. Rowena R. Gonzales, 'A Brave New W orld : Notes on the 1996 W IPO D ip lom atic Conference', 13(3-4) W o r ld B u lle t in (1997), at 96.683 Pamela Samuelson, 'Challenges for the World Intellectual Property Organisation and the Trade- Related Aspects of Intellectual Property Rights Council in Regulating Intellectual Property Rights in the Information Age', 21(11) E urop ea n In te lle c tu a l P ro p e rty R e v ie w (1999), at 588.

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Rising middle classes sought confirmation of property interests consistent with freedom of trade and the press. The Berne Convention was initially concluded in the nineteenth century to meet the needs of the European publishing media that sought stable conditions of international copyright trade. Subsequent Berne revisions in the twentieth century instituted minimum rights to control newer and more powerful media such as the cinema and broadcasting. At the end of the twentieth century, the building-blocks of the Berne system of international copyright commerce seemed to be becoming obsolete684as a new trade based on software goods developed internationally. The unprecedented growth of the software industry was a consequence of software's nearly universal applicability685. The issue was then "how to best protect it".686 Since neither the Berne Convention nor the Universal Copyright Convention addressed this new intellectual property rights challenge, the question remained unresolved for many years.687The answer came with the ratification of the TRIPs agreement by the over 130 signatories of the WTO. Specific principles of intellectual property enforcement are set out in Part III of TRIPs.688 It clearly established that computer programs did not meet the requirements of patent laws. Software was better protected under copyright laws.689 Article 10 of TRIPs stated that "computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention". Why were copyright laws instead of patent laws promoted for the protection of software?The superficial answer was that computer programs fit the formal definition of a literary work' under the U.S. 1976 Copyright Act.690 The United States has always

664 See Geller note 21 supra at 216-21 7.685 See Griem note 160 supra at 156.686 See Lehmann note 681 supra at 2624.687 See Zimmerman note 220 supra at 507.688 See Clark note 51 supra at 22.689 Dennis S. Karjala, 'Theoretical Foundations for the Protection of Computer Programs in Developing Countries', 13(1) UCLA P acific Basin L aw jou rn a l (1 994), at 182.690 Dennis S. Karjala, 'Recent United States and international Development in Software Protection', 16(1) E uropean In te llec tu a l P ro p erty R e v ie w (1994), at 1 3.

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been the most reluctant country to protect software under patent law.691 In December 1980, sections 101 and 11 7 of the U.S. Act were amended to include a definition of 'computer programs'.697 After software became protected under the Copyright Act, exclusive rights for computer programs did not increase. The duration of copyright protection for software did not vary. Viewed from the legal provisions, the United States decided to protect computer software almost completely in accordance with traditional copyright laws.693 The real reason that a copyright scheme for programs was selected is that many programs are simply the result of the technologically straightforward application of well-known programming principles to a well-defined problem.694 Such programs did not meet the requirements of traditional patent law. Yet, once these programs were distributed in object-code form, they could be copied almost without cost in large numbers. "(Bjecause copyright protects at least against 'that', it became a natural candidate for the protection of programs".693As the software protection goal was protection against piracy, TRIPs folded the software protection into a legal framework that already existed.696 In fact, TRIPs incorporated articles 1 to 21 and the appendix of the Berne Convention.697 However, TRIPs provided more protection than 'Berne'. By becoming 'copyrightable' and receiving protection as literary works, programs and their compilations of data, in the words of a commentator, changed the nature of traditional copyright laws. " [Ajfter the Trojan horse with software in its belly enters the 'city of copyright', changes will take place in the master of the city".698 The TRIPs Agreement was largely silent on how its signatory members should define the scope given to the protection of software.699 The international framework provided little guidance on the more difficult question of which aspect

691 See Yeh note 95 supra at 199.692 See Duvanel note 37 supra at 345.693 Xue Hong and Zheng Chengsi, S oftw are P ro tec tion in C hina - A C o m p le te G u id e , The China Law Series, Sweet & M axwell Asia, Hong Kong, 1 9 9 9 , a t 3 5 .694 See Karjala note 692 supra at 14.695 Ib id .696 See Lehmann note 681 supra at 2625.697 See Feder note 29 supra at 228.698 See Yeh note 95 supra at 196.

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of software could be protected and which could not.699 700 However, it eliminated a deal of the previous uncertainty caused by the different status granted to software from country to country.701 TRIPs solved the problem concerning enforcement, especially if international agreements did not exist between the country where the software was created and the country where enforcement was sought or the enforcing country did not recognise software as 'copyrightable'.702 The principle of national treatment or principle of non-discrimination against foreigners was extended to software as well as "the guarantee of the numerous minimum standards of protection".703Previously, w ith the growth of the cross-border flow of new communication technological goods, the principal problem of the law of intellectual property was that it did not provide adequate protection of intellectual property in international trade.704 Using a copyright status as the primary "framework to protect software [was to preserve] competition in the market".70'’TRIPs was the centrepiece of the new, complex interdependent world economic relations. It was "the [missing] link between international trade and intellectual property",706 but as the software trade drastically developed internationally, the question of how to protect it adequately remained largely unanswered as fundamental economies, "such as Russia or China",707 were not members of the WTO. In the case of China, it was making no sense to cold-shoulder a nation that encompasses a fifth of the world's people.

699 See Zimmerman note 220 supra at 508.700 The TRIPs Agreement specified that computer programs and compilations of data were to be protected as literary works under the Berne Convention, but contained no provisions defining the precise scope o f copyright protection for computer programs or databases. Nor did TRIPs offer any explicit guidance on the patentability of computer program related inventions or trade secret protection fo r computer programs. See Charles R. McManis, 'International Intellectual Property Protection and Emerging Computer Technology: Taking TRIPs on the Information Superhighway - Part 2', 14 N ih o n U n ivers ity C o m p a ra tive Law (1997), at 226.701 See Zimmerman note 220 supra at 508.702 Ib id at 506.703 See Lehmann note 681 supra at 2625-2626.704 See Zhong note 246 supra at 153.705 See Lehmann note 681 supra at 2626.706 See Zheng note 515 supra at 243.707 Stefan A. Riesenfeld, T h e Changing Face of G lobalism ', 72(2) C h ica g o -K en t L aw R e v ie w (1996) at 407.

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Not one of its members saw its economy collapse because of entry into the WTO

With the passing years, WTO membership for China became almost impossible, with the nation denounced as "the biggest exporter of pirated software in the world".708 709 Since the software industry and the entertainment media of the United States were losing millions of US dollars because of the high level of the piracy in China, they started exerting their influence.70t) They lobbied in international and U.S. political and economic arenas to stop the entry of China into the WTO. They created the largest obstacle for China in its bid to re-enter the world community. China was then pressured to rapidly reach a compromise with Capitol H ill.710 The latter proved that it possessed a powerful arsenal of bargaining tools in order to "force China to play by the same rules"711 712 as the U.S. troops. "[W]e are dealing with an enormously important, [...] large, powerful player",717 the U.S. troops ail declared.Battle after battle, however, China's forces slowly "learned from the West to argue with the West"713 to be accorded the "trade etiquette"714 that their country had been hitherto denied in its relations with the Western world. China, where more than one-quarter of the population subsists on less than US$ 1 a day,715 proved that it "can say no"716 to the U.S. war machine.In May 1996, just five days after the USTR announced U.S. trade sanctions,

708 See W illa rd note 65 supra at 696.709 See Abbott note 641 supra at 393.710 Charles H utz le r and Naomi Koppel, 'China, U.S. Sign Breakthrough Trade Deal', T h e A s s o c ia te d Press, 15 Nov. 1999.711 See Simpson note 27 supra at 625.712 See Rosen note 232 supra at 1536.713 Yongjin Zhang, 'China's Entry into International Society: Beyond the Standard of "C iv ilisa tion "', 1 7(1) R e v ie w o f In ternational S tu d ies (1991), at 14.714 See Prohaska note 31 7 supra at 180.715 See Declet note 59 supra at 57.716 See note 33 su p ra at 1210. 'China Can Say No' was a Chinese manifesto criticising Americanpolicy towards China. The book advocated demanding U.S. compensation for the use o f such Chinese inventions as paper and gunpowder as a response to U.S. products. See Kathy Chen, "Best Seller Urges China to Just Say No to CIA, Hollywood and Connie Chung', W a ll S tree t Jo u rn a l, 27

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newspapers in China carried smiling pictures of the British Deputy Prime Minister Michael Heseltine and the Chinese Premier Li Peng at the Great Hall. While Boeing was 'holding its breath' over the threatened U.S. sanctions, China doled out US$ 1.5 billion orders for thirty new European Airbus jets,* 717 showing that the Chinese forces were beating the U.S. troops at their own game. China turned one of the greatest vulnerabilities of the U.S. economy,718 its seemingly unquenchable thirst for international market access, into a weapon engaged in the battle.The Chinese leadership always knew that it needed support for entry into the WTO.719 W ith the European Union declaring that it also wanted the Sino- American negotiations to be concluded in the "fastest possible" way,720 China's government only had to focus on a non-decided U.S. public opinion. Because China's economy shared characteristics of both developing and developed countries,721 the debates in the U.S. circles were very animated, offering a mixed picture, varying from very enthusiastic to sceptical.Opponents of China's WTO accession argued that its participation in the new institution would result in the loss of more than 600,000 jobs and a doubling of the U.S. trade deficit with China.722 723 * * They also argued that Capitol Hill negotiated from a weak position. There was a lim it to what the U.S. troops could extract without "more carrots". At the end of the 1990s, the United States had no other choice but to facilitate the entry of China into the WTO.Indeed, the supporters of China's integration into the global economy claimed that, at the end of the twentieth century, there were no obstacles to a Chinese entry into the WTO. As Pendleton put it, China's intellectual property system did "now virtually fully comply with TRIPs standards".728 Although China had a late

June 1996, at A14.717 See W heare et al note 633 sup ra at 39.718 See A lford note 26 supra at 13.719 Michael Eglin, 'China's Entry into the W TO W ith a Little Help from the EU', 73(3) In te rn a t io n a l A ffa irs (1997), at 489.720 See Tait note 374 sup ra at 107.721 See Rosen note 232 sup ra at 1561.722 See note 652 sup ra at http://wwwcnbr.org/publications/brietmu/tyazierhansen99/index.html723 See Pendleton note 614 sup ra at 326. In order to be allowed to gain access to the rich treasureof technological advances in the industrialised countries (the U.S., the EU, and Japan), Chinamaintained an appearance of outward compliance w ith international agreements. See Endeshaw

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start, it made rapid progress through its own energetic efforts to adopt comprehensive intellectual property laws. The country had not only succeeded in meeting the requirements imposed on developing countries by TRIPs, but has also done a great deal of work in enforcement.* 724Moreover, the supporters of China's integration argued that it was unfair for the West to demand that China achieve in a few years what Western nations had achieved in over two hundreds years.725 As they said, "Americans seem to forget that the U.S. legal system was not built in a day".726 American law made it impossible for foreign publishers to secure copyrights until 1891, and thereafter denied protection to publishers of English language books unless their works were printed in the United States or Canada.727 Alford also said that because of domestic opposition to moral rights, which much of the rest of the world has long seen as a "central pillar of copyright", the United States728 did not accede to the Berne Convention until 1989.729 The criticism that the American government and

note 8 s u p ra at 52.724 In accordance w ith China's statistics, some 35 m illion illegal audio-visual goods were seized from 1994 to 1998. The authorities also shut down or fined 74 assembly operations for pirated VCDs, and at the same time, seized over 20 m illion smuggled VCDs China Online. See Daniel H. Rosen, 'C h in a and the W o rld Trade O rganisation: An Econom ic Balance Sheet', at http://www.chinaonline.com/commentary a n a ly s is /d r o s e n /c a 0 9 0 7 0 7 rosen pg3.asp725 See Blumental note 229 sup ra at 21 7.726 See Turner note 177 sup ra at 69.727 See Geller note 21 sup ra at 226.728 'M ora lly, a person is said to have a natural right to the product of her brain... as one sows, so should one reap.' See Song note 154 supra at 43. In the late 19th and early 20th centuries, European copyright philosophers became enamoured of moral rights theories based upon the works o f Hegel and championed by writers such as V ictor Hugo. Adherents explained the theory as the logical extension of the belief that an idea was a manifestation of the creator's personality. Because the idea was a part of the author, it deserved protection just as the author's body would be protected. The theory was described as relatively foreign to Anglo-Saxon jurisprudence. The United States refused to acknowledge moral rights in intellectual property despite its accession to the Berne Convention, although three States (New York, California and Massachusetts) provided some m oral rights protection for artists. Resistance to moral rights came from employers, who under U.S. law owned the copyrights of their employees' work, and from the movie industry, which saw these rights as financially inhibiting. See Lazar note 33 su p ra at 1192.729 The U.S. indifference to the intellectual property rights of others during the 19th century could not justify China's abuse of U.S. rights. The latter had a capacity to cause far more harm. One would have thought that persons interested in securing protection for their intellectual property in developing nations might have endeavoured to draw lessons from their own nation's experience. A t a m inim um , one would hope that an appreciation of one's nation's own 'sins' would temper the m oralism that infused governmental and industry rhetoric about Chinese infringement and inflamed passions in both nations about the other's intentions and integrity. See A lford note 7 s u p ra at 146-147.

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interest groups level at China today could readily have been applied to that nation a century ago. As Zheng stressed, China cannot establish a complete organisation protecting intellectual property rights (growing out of nothing)730 any more rapidly than it can establish its new economic structure.731The supporters also said that it would be "the most important step in bringing them closer to where we want them to be".73' China's accession to WTO would significantly advance its broader agenda for political and legal reforms. The supporters seemed to be motivated by a general political concern, which is the force of trade as a civilising influence.733 734 The belief was that forcing a country to open its market and making it abide by international standards would help ensure that country's integration into the world economy. This, in turn, would make military aggression seem a much less attractive prospect, particularly as such global integration would raise awareness of the rest of the international community, and thereby reducing tensions and suspicions.In the end, they demonstrated that the Chinese membership would probably result in an increase of 9 to 10% in American exports to China. It would have a limited impact on the economic growth of China, whose current GNP of 33% is expected to reach 36% by the year 2005.714Another benefit of openness to Chinese trade was seen to push the economy of the nation in the direction of a "capitalist economy",735 and help bring some greater social change to the country by spreading the tools, contacts and ideas that promote freedom.736 Although this approach seriously lacked integrity,737

730 See Gao note 675 supra at 6.731 See Zheng note 573 supra at 167.732 See note 652 supra at h t t p : / / w w w . n b r . o r g / p u b l i c a t i o n s / h r i e f in g / f r a z ie r h a n s e n 9 9 / in d e x . h tm l733 See A lford note 6 supra a t 21 3 .734 Mark W . Frazier, 'Coming to Terms with the "W T O effect" on U.S.-China Trade and China's Economic G row th ', The National Bureau of Asian Research, NBR Publications, NBR Report, November 1999, at h t t p : / / w w w . n h r . o r g / p u b l i c n i io n s / h r ie f i n g / f r a z ie r h a n s e n 9 9 / in d e x . h tm l735 ibid736 See note 652 supra at h t t p : / /w v v v v .n b r .o r g / p u b l i c a i i o n s / b r ie f i n g / f r a z ie r h a n s e n 9 9 / in d e x . h tm l737 Integrity, as an aspect of political morality, requires governments to speak and act coherently. Integrity therefore demands that the language of justice is not adapted or abandoned to meet political goals. By thereby requiring us to apply the same standards to everyone, the principle of integrity ensures that we do not arbitrarily discriminate between groups and individuals. As such, integrity is an important, but distinct, aspect of the more general requirement that we treat others w ith respect. The West has encouraged China to introduce crim inal sanctions for copyright

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China's human rights records dominated the U.S. political debate/38 with President Clinton arguing that free trade would increase pressure for change in the communist nation.738 739That was precisely one of the reasons why there were differences among bureaucracies in China and within the Chinese leadership regarding its accession to the WTO. In fact, the last rampart hindering an agreement to facilitate the entry of China's economy into the WTO was in China. Bureaucrats who ran the State- owned industries, still the largest part of the Chinese economy, were strongly opposed to China's adhesion to the WTO.740 They said that it would take China from a "shallow integration" to a deeper one,741 and the Beijing Youth Daily felt obliged to reassure its readers with headlines reading such as "[n]ot one of 134 member countries saw its economy collapse because of entry into the WTO".742 What implications would the entry of China into the WTO have for intellectual property rights protection in the country? To some people, the answer was twofold.In the short term (up to five years), some believed that China's entry into the WTO would lead to an increase in the production of pirate products because the growth

infringement. Not only does this lack integrity in the sense considered above, it has also exposed the Chinese population to the risk of grave human rights abuse. See Burrell note 6 supra at 198.738 In 1990 and 1991, the Democratic Congress passed several resolutions during the Bush administration that tied China's MFN status to human rights improvements, but the President never considered these bills. In 1992, both the House of Representatives and the Senate passed a new type o f 'lin k in g ' bills that were vetoed by the President. President C linton approached his presidency w ith a different attitude than the Republicans stance of 'constructive engagement'. He issued an executive order in 1993 linking China's trade status w ith human rights improvements. However, this movement was short lived as the MFN status was renewed to China in 1994 despite no marked improvement in human rights. President C linton went on to renew China's MFN status in 1995, 1996, 1997, 1998, and again in 1999. See Russell H. Stern, 'China: A Most Favoured Nation or a Most Feared Nation - The PRC's Latest Anti-Crim e Campaign and a Possible U.S. Response', 31(1) The G eo rg e W a sh in g to n Journal o f In tern a tion a l L aw a n d E co n o m ics (1997), at 130-133.739 Gay A lcorn and John Schauble, 'China Joins Global Economy', The S y d n e y M o rn in g H erald, May 2000, at 12.740 After China's accession to the W TO , existing subsidies w ill terminate. State-owned enterprises in China w ill have to compete directly against private domestic and foreign enterprises. It is predicted that more than one-third of these State-owned enterprises w ill o ffic ia lly become bankrupt in this competitive market (technically speaking, many of them are already bankrupt). Moreover, 20 m illion people w ill lose their jobs. See Li note 381 supra at 396.741 See note 6 5 4 supra a t h t t p : / A v w w . n b r . o r g / p u b l i c j t i o n s / b r i e f in g / f r a z ie r h a n s e n 9 9 / in d e x . h tm l742 Susan V. Lawrence and Lorien Holland, 'Deal of the Century', 162(47) Far Eastern E co n o m ic R e v ie w , 25 Nov. 1999, at 81.

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of intellectual property infringement would match the growth of the economy of the country. Can piracy in China get any worse?The Business Software Alliance and the Software and Information Industry Association, the two leading trade associations for the software trade, released the results of a study on global software piracy in May 1999.743 It was disclosed that international piracy cost the global software industry US$ 11 billion in 1998, which meant that about 38% of new business software applications installed were pirated. North America, Asia, and Western Europe accounted for 80% of revenue losses. China was just ranked second, after the United States, among the ten countries, with the highest losses due to software piracy. In terms of piracy rates, the study estimated that more than nine in ten business software applications in China were pirated. Although the nation was ranked second in the Asia-Pacific area with 95% of its applications pirated after Vietnam (97%), it still totalled the highest dollar losses, estimated at US$ 1.2 billion. The results of the study indicated that the U.S. troops still have a long way to go to eliminate software piracy around the world, especially in China. "Our attitude remains the same: zero tolerance for software pirates", said one of the commander-in-chief of the troops.744 To the troops, it was "time to make life intolerable for software pirates".745In the longer term, the entry of China's economy into the WTO should lead to a decrease in intellectual property piracy because the growth of the Chinese economy should provide opportunities for domestic companies to grow on legitimate activities.Since he started ruling China, President Jiang Zemin has made his commitment to rapidly jo in the world economy abundantly clear. He once declared that the country would "gain a complete and correct understanding of the issue of economic globalisation and properly deal with it", which "is an objective trend of world economic development, from which none can escape and in which

743 For more details, see http://www.bsa.org/pressbox/enforrement/744 Ken Wasch was the President of the Software and Information Industry Association.745 http://www.bsa.org at http://www.bsa.org/pressbox/enforcement/

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everyone has to participate".746 He appeared then "to have continued Deng Xiaoping's insistence on market reform within a context of stability"747 in accelerating reforms and opening-up the Chinese nation. The new Chinese Premier and 'reform-minded' Zhu Rongji did not want to solely focus on the WTO issue. He preferred to concentrate his attention on reforming the domestic industry, as he seemed to better understand the forces of market economy logic than his predecessor, Li Peng, the leader of the resistance to China's entry to the WTO. However, throughout 1999, Zhu Rongji had to personally take charge in the struggle against the United States, as it was apparent that China could not achieve its economic growth in isolation from the world.748 China had to "continue to follow unswervingly the opening-up policy and march towards the world".749

Humble words, increased preparations, and two hits in a row for China

Due to the cultural chauvinism inherent in the views on both sides of the Pacific,750 there were fifteen areas of disagreement between the United States and China to be broached in order to reach a pact to get China admitted to the WTO.751 The U.S. troops lost the first round in April 1998 because of some U.S. manufacturing interests and organised labour groups. The latter influenced the U.S. high command, which resulted in the making of excessive demands on

746 See no te 654 sup ra at h ttp ^ vw w . nbr.org/publirntions/briefing/frazierhansen99/index.html Jiang Zemin replaced Zhao Ziyang as General Secretary of China's Communist Party at the time of the crushing of the student movement of 1989 on 24 June 1989.747 See Lo note 474 su p ra at 484.748 The political situation in China complicated the negotiations w ith the United States. Clearly, no Chinese leader could be seen bowing to pressure from the United States w ithout being in danger o f undermining his or her own position. See Burrell note 6 sup ra at 207.749 See Blumental note 229 sup ra at 216 .

750 "W hen the U.S. and China negotiate, the situation is unique. It is the superpower o f today sitting down w ith the country that sees itself as the superpower of tomorrow. The discussions are about the transition. So they are not just about making room for China [in the global order], but making room at the top." See Courtis note 341 sup ra at 42.751 See note 654 sup ra at h ttp ://w w w . n b r ,o r g / p u b I ic a t io n s / l ) r i et i n g / f r a z ier h a nsen99/index.h tm l. China w ill jo in the W TO as a developing country and w ill enjoy a five-year transition period to

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China (the USTR required an extended protection for U.S. textiles and added assurances against large-scale increases in imports). Capitol Hill soon realised that it had made a big tactical error.Seven months later, in November 1999, after six days of hand-to-hand fighting and a long conflict that lasted over thirteen years, the Chinese forces and the U.S. troops eventually reached an agreement that removed trade barriers and trade distortions, and cleared the biggest hurdle to China's entry into the WTO.752 However, the negotiations did not touch on intellectual property issues.753 China still had to complete difficult negotiations with the WTO on intellectual property matters.To the 'intrepid ' warriors, the 1999 Agreement was seen as being "the most significant move since the start of economic reforms themselves 20 years ago", and also as being the "deal of the [twentieth] century]" with big "implications for China [...], the rest of Asia", and the rest of the world.754 For President Clinton, the Agreement represented his most significant success in trade policy since the creation of the North American Free Trade Agreement in 1993. The historic agreement was ranked with President Nixon's decision to re-open State-to-State relations w ith the People's Republic of China and with President Carter's extension of diplomatic relations. While there were still a number of steps to be finalised, a bilateral trade agreement with the United States was presented as the last big obstacle to China's entry into the WTO.755 756 However, the 'intrepid warriors' were not able to claim all the credit of this Agreement for themselves or even for the United States. The rest of the international community also came to the same conclusion.After the signing of the 1999 Agreement, there was a lot of speculation that it would only benefit the group of Chinese reformers.75'’ They knew how to put into

conform its intellectual property laws w ith international standards. See Li note 381 sup ra at 424.752 See Hutzler et al note 71 2 sup ra at 1.753 See Clark note 51 sup ra at 22.754 See Lawrence et a I note 744 sup ra at 80-81.755 See Clark note 51 sup ra at 19.756 'China Opens Up', The E c o n o m is t 353(8146), 20 Nov. 1999, at 13. China was able to regain the in itiative it lost even from the start of the battle w ith the United States.

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practice the words of Sun Tzu. "Humble words and increased preparations are signs that the enemy is about to advance. Violent language and driving forward as if to the attack are signs that he w ill retreat".757 They also knew how to interpret what Tocqueville observed in the nineteenth century:758 "[a]n American does not know how to converse, but he argues; he does not talk, but expatiates. He always speaks to you as if addressing a meeting..."759The 1999 Agreement was initially seen to benefit the Chinese Premier Zhu Rongji who had cleverly led the Chinese forces to victory. However, it became apparent that the "big w inner"760 was President Jiang Zemin who succeeded in the aim of his predecessors to solidify the relations of China with the major world powers. In this way, the 1999 accord allowed him to solemnly declare that the People's Republic of China was now regarded as "one of the great powers"761 on the planet at the end of the twentieth century. On the other hand, the nation was also seen as "one of the important players on the international stage regarding intellectual property".762Although the Agreement fundamentally changed "the location of the battlefield",763 it did not, however, necessarily alter the nature of the conflict between the world's richest nation and its most populous. As some commentators warned, "it is far too early [...] for anyone to believe that [the United States of] America and China are somehow 'strategic partners' again".764 The setting up by the U.S. authorities of a permanent commission to scrutinise human rights performance in China, after the country secured the permanent NTR treatment on

757 Sun Tzu, T he A r t o f W a r , Deli Publishing, New York, 1983, at 44-45.758 Alexis de Tocqueville (1 805-1 859) was the most graceful stylist and penetrating observer of the fact that a new era dawned with the French Revolution. Lawyer, magistrate at twenty-two, visitor of the United States to study its penal system, member of the legislative opposition to king Louis- Philippe, and, for a short time, M inister of Foreign Affairs, he was also a gifted historian and political analyst. In 1835, the first volume of 'Democracy in America' achieved instantaneous success.759 See Turner note 177 s u p ra at 68.760 See note 654 sup ra at h t t p : / /w w w . n b r . u r a / p u h l i c a l i u n s / b r i e f i n f t T r a z ie r h a n s e n 9 9 / in d e x . h tm l761 ibid762 See Gao note 675 su p ra at 6.763 See note 655 sup ra at h t t p : / / b r ie . b e r k e le y .e c lu / ~ b r ie w w w /T o m m /b e r k e le y 2 / s t o k e s .h tm l764 See note 758 sup ra at 14.

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May 22, 2000, illustrated this ongoing tension.76S The USTR has soon assured sceptics that no other nation w ill be subjected to such a broad array of monitoring and enforcement tools as China. To the Chinese Foreign Ministry, the setting up of such a commission was described as constituting direct interference in China's internal affairs. "This is something we cannot accept [...], [w]e reserve the right to take further actions", a commentator from the Ministry said.766 Six months after the signing of the 1999 Agreement, the 2000 Agreement was seen as a new victory won by the Chinese forces over the U.S. troops. By a massive 83-15 margin, unthinkable a year ago, the U.S. Senate ended years of annual congressional reviews on China. It was the conclusion of a recurring irritant in relations between the two countries, facilitating the accession of China's economy into the new international trading system. In addition, most other major allies of the United States (particularly Europe and Japan) also struck trading deals with China, now expected to join the WTO at the end of the year 2000.767 The "most consistent [and] bipartisan foreign policy that the U.S. has concluded"768 was now regarded as the start of the "equally arduous work"769 of implementation and dispute resolution, notably in the field of intellectual property rights. The U.S. troops entered the battlefields again with confidence. As the U.S. high command put it, "America has more influence in China [now] with an outstretched hand than with a clenched fist".770 China's authorities also entered the new round with confidence. The Chinese intellectual property system was described as falling in line with both the provisions of the TRIPs Agreement and internationally accepted practice. A representative from China's Ministry of

765 This leg islation removed the twenty-year-old requirem ent for China's trade status to be reviewed by the Senate each year. Six American Presidents of both parties had concluded that co­operative relations w ith China.766 See A lcorn et al note 741 su p ra at 12. Despite objections from organised groups, the House endorsed the measure by a 237-197 vote.767 To obtain W T O admission, China made trade concessions. The country w ill cut tariffs on U.S. industrial goods from about 25% in 1997 to 9% by 2005. Most im port quotas w ill end. Restrictions on foreign investment w ill be relaxed. In return, the United States made its low tariffs permanent as a routine benefit that W TO members extend to each other. See Samuelson note 306 supra at 20.768 Joanne Gray, 'China W ins Presidential Backing', T he A u s tra lia n F in a n c ia l R e v ie w , 11 May 2000, at 15.769 See note 652 sup ra at h t t p : / / w w w . nbr.org/public a t i o n y'hriefing/frazierha nsen99/i ndex.html

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Foreign Trade and Economic Co-operation to the WTO negotiations said that China was still able to meet the minimum requirements imposed by the WTO even if its intellectual property system was not revised.770 771At the end of the 1990s, respect for intellectual property rights had also became the wish of China's authorities as the country started to attach greater importance to its benefits. It was not only because of the need to fu lfil the obligations prescribed by the relevant world conventions, but also out of the need for its own development.772 The Chinese authorities had become enthusiastic about an information-based economy. As everywhere the nation turned in Asia, people were talking about the 'information revolution' and the importance of this revolution t the vitality of this region.China became aware that the value of the information technology industries, including, among other things, computer hardware, software products, and Internet services, were critical to the growth of economies in the region. Information technology industries were already worth more than US$ 1 trillion. They were said to be the first industry in the 21st century. China decided to be one of the leaders in this trend. In the Ninth five-year Plan (1996-2000) and the Perspective of National Economy and Social Development of 2010, passed by the Eighth National People's Congress, the promotion of these new industries was seen as one of the goals of China's economy long-term economic development.773 774 From 1996 to 1997, the percentage of the information economy in the GNP was about 35%. In 2010, it is expected to reach 50%.7/4

770 'China out o f the Cold', The S y d n e y M o rn in g H e ra ld , 22 Sept. 2000, at 6.771 Guo Shoukang, TRIPs and Intellectual Property Protection in the People's Republic of China', 4 G R U R I n t (1996), at 295.772 See Gao note 675 su p ra at 8.773 China's software industry created more than 61,000 jobs in 1997. If this growth is to continue, more than 42,000 new jobs w ill be created in 2001, resulting in a total of more than 100,000 jobs in the software industry and its various supporting industries, in 1997, the Chinese government received about US$ 220 m illion in tax contributions from the software industry. By 2001, the expected contribution of the software industry w ill approximately be US$ 600 m illion in revenue. See Yeh note 52 su p ra at 184. In a study entitled 'the contributions of the software industry to the Chinese economy', PricewaterhouseCooper estimated that every 10% reduction in the Chinese piracy rate can create about US$ 480 m illion in additional sales, generating parallel leaps in l a b o u r a n d r e v e n u e s n u m b e r s . Fo r m o r e d e t a i l s , see http://www.bsa.org/pressbox/policy/91 314601 j.h t m I774 See Hong et al note 695 sup ra at 7. A new word or phrase can often become very popular

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At the end of the twentieth century, software was regarded as the most rapidly developing part of the information-based industry. In 1996, the revenue of the global software trade was reported to be US$ 100 billion and was expected to increase to US$ 540 billion by the year 2000. The software industry has also been a vigorous player in China's economy since the mid-1980s. After two decades of development, it has grown by more than 50%. In 1997, although China's software market was only 1% of the world software market and took only 30% of the domestic market (foreign software products dominated the rest of it), it was already worth US$ 1.4 billion while directly affecting US$ 2.3 billion of the country's economic activity.775 Despite the relative small size of its software sector and the limited power and influence of its software companies, China remained confident of the future of its technology sector,776 which depends on the enforcement of intellectual property rights for its growth and expansion.777

suddenly in China. At the end of the 1990s, the expression 'knowledge economy' became one of such 'magic words' frequently seen in the major Chinese newspapers, such as the 'Guangming D a ily ' or 'The People's D aily ' and heard in presentations given by the Chinese authorities. In March 1998, the N inth National Congress of China elected Zhu Rongji as the new Chinese Premier. The new government established then a M in istry of Inform ation Industry, which is expected to play an important role in promoting the Chinese information industry.775 Assuming the industry grows at its projected average annual rate of 28%, the total market size of software in China should reach US$ 3.6 b illion by 2001, which should stimulate US$ 6.2 b illion in total economic activity. See Yeh note 52 su p ra at 1 84.776 See Hong et a! note 697 sup ra at 9. Generally, Chinese software enterprises are classified into five types. The first type consists of State-owned software companies, such as the 'Chinese Software Com pany'. These enterprises work on national large-scale projects. They have the support o f the government. They have neither the ab ility nor interest to participate in market competition. The second type consists of professional software enterprises. They have developed some successful software. They are under the tremendous competitive pressure from the Western software firms. The third type consists of small software enterprises. They are ignored by the large enterprises. The fourth type consists of enterprises, which make customised software for specific users. Their number is lim ited. The fifth type consists of software development bases of foreign software enterprises. The products of these enterprises are not sold in China. There are about 5,000 software enterprises in China, of which 2,000 are engaged in software development, research and marketing, and 3,000 sell software and provide other information services. A few software enterprises have more than 500 software engineers and technicians. Most software companies in China are very small, in which the number of technicians is less than 50. In contrast to other Chinese industries, private enterprises occupy a large part of the software industry.777 The in form ation technology race has gained a firm foothold in Asia. Although an increasing number o f countries are reaping the benefits of exporting software, the biggest gains made by Asian countries are from exporting intellectual capital. The strong emphasis India's government has placed on education has given it both intellectual capital and the consequent technology that has allowed it to become a software superpower. Unfortunately, this hasn't happened in China yet. See C aroline Cooper, 'Look at India, IT's W here China Wants To Be', 22 June 2000, at http ://www.chinaonIin e . c o m / r o m m e n t a r y a n a ly s is / in t e in e t / c u r r e n tn e w s /s e c u re /e O O O b 'l 241 .asp

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China's authorities became aware that unless the piracy problem was solved, or at least greatly reduced, it would be difficult for the software industry in China to reach its full potential. Addressing this complex problem would require a number of measures by the government, the industry, and the public.778 Steps had to be taken by China's government to create a healthier environment for software.As the Commissioner of the Chinese Patent Office put it, "intellectual property protection w ill become the number one vital issue in international economic, trade, scientific, and technical development for the 21st century. China actively supports the establishment of a viable world trade system. To this end, it has made unremitting efforts in perfecting its own intellectual property system and enforcing the TRIPs Agreement".779

Welcome to the club, but is China really ready?780

January 1, 2000 was a watershed date for the TRIPs Agreement. It was the day when the Agreement went into effect for developing countries. They were the real targets of TRIPs because they largely had minimal or no intellectual property regimes in place. The TRIPs Agreement required the adoption of an entire body of intellectual property rights regime, together with a framework to effectively enforce these rights.781 782 However, the real test for TRIPs was whether developing nations could rapidly meet the widely accepted minimum levels of intellectual property protection, and if they could not, whether they could hold these levels accountable until they reach full compliance with the Agreement. TRIPs did not try to make them to address the more complex policy questions, which perplexed and divided the industrialised world itself.78'In the case of China, the obligations that the nation had to undertake as a new

778 See Robertson note 42 sup ra at 55.779 See Gao note 675 sup ra at 6.780 John Schauble, 'W elcom e to the Club, but is China Really Ready?', The S y d n e y M o rn in g H e ra ld , 20 Sept. 2000, at 2.781 Charles S. Levy, 'Implementing TRIPs - A Test of Political W il l ' , 31 (3) L a w a n d P o l ic y in In te rn a tio n a l B us iness (2000), at 789.782 See McManis note 207 sup ra at 48.

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member of the WTO were spelt out in an agreement that has been under negotiation for many years. The 'Protocol of Accession' addressed modifications that have to be made in China so that the country would be able to meet the minimum requirements that all WTO members should attain.783 784 To comply with the spirit of TRIPs, China was required to enforce its laws in, at least, a "uniform, impartial, and reasonable" manner.704China's fourteen-year wait to become a member of the global organisation was expected to end around the turn of the year 2000. For China to join the WTO, the General Council of the organisation would need to agree to its application by the end of November 2000 at the latest. Its membership would become official thirty days after informing the General Council. Whether a country can implement TRIPs depends on what their previous regime protecting intellectual property rights has been.785Numerous and detailed articles in TRIPs read the procedures for domestic enforcement of intellectual property rights (articles 41 to 61).786 787 They have been characterised as perhaps the most significant milestone of the Agreement.707 Specifically, article 41-1 stated that members should ensure enforcement procedures available under their laws. National laws should permit effective action against any act of violation of intellectual property covered by TRIPs, including expeditious remedies to prevent infringements and remedies, which could constitute a deterrent to further infringements. Article 41 -2 states that procedures concerning the enforcement of intellectual property rights should be fair and equitable and should not be unnecessarily complicated or costly, or entail unreasonable time limits or unwarranted delays.Although meeting the minimum requirements of TRIPs was not an obligation that

783 See Clark note 51 sup ra at 19.784 Stanley Lubman, 'China's Accession to the W TO : Unfin ished Business in Geneva', at http://www.chinaonline.com/commentarv analysis/legaI/n irrentnews/secure/c00060641 .asp785 Ralph Cunningham, 'G lobal Trade Deal to intensify Scrutiny of Protection', 13(8) IP A s ia (2000), at 13.786 Article 50 deals w ith provisional measures (such as 'ex parte' civil search orders). Articles 50 to 60 deal w ith special requirements related to border measures. See Michael S. Schlesinger and EricH. Smith, 'PRC - 1997 Roundup: Copyright Enforcement', IP A sia, February 1998, at 41.787 See Heifer note 212 sup ra at 381.

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China had to meet in the past, its intellectual property regime has been formulated or revised by referring to the Agreement since as early as the early 1990s.788 Largely due to the passage of the International Copyright Treaties Implementation

Rules in 1992, China could claim a more or less substantial compliance with TRIPs provisions on copyrights.789 Despite the ideological slant, the language used to describe the objectives of the copyright regime in China paralleled that used in article 7 of TRIPs: the protection and the enforcement of intellectual property should contribute to the promotion of technological innovation, and the transfer and dissemination of technology. It should contribute to the mutual advantage of producers and users of technological knowledge and in a manner conductive to social and economic welfare, and to a balance of rights and obligations. It has been commonly acknowledged that President Jiang and Premier Zhu have been sincere in advancing the protection and the enforcement of intellectual property rights in China.790interaction w ith international institutions had a marked effect on the legal landscape of China.791 792 The development of domestic legal institutions has made China more conscious of the need to observe international law, notably in the field of intellectual property.797 In accordance with the protection of copyright, the country was then "completely committed to a thorough alignment of its intellectual property codes and norms with international standards".793 As an example, article 61 of TRIPs dealt with 'criminal procedures'.794 * * In July

788 Zheng Chengsi, 'W TO and Chinese IP Laws', 1 C h in a Patents a n d T ra d e m a rks (2000), at 7.789 See Schlesinger note 1 76 sup ra at 115.790 Paul Magnusson w ith Howard Gleckman, 'W ill China Follow W T O Rules?', B us iness W e e k , 5 June 2000, at 38-39. For example, after the American firm M icrosoft discovered that the 'Shenzhen Reflective Material Institute' of Shenzhen University copied more than 650,000 of its trademarked holograms in 1992, the Institute was fined RMB 2,200 in 1994.791 See Blumental note 229 sup ra at 237.792 See Lubman note 102 sup ra at 9.793 See W alder note 542 sup ra at 165.794 Penal sanctions have always been considered to belong to the sphere of the domestic publicorder o f ind iv idual States. Consequently, it has been taken for granted that international treatiescould not have a bearing on the penal system. The Berne Convention and the Universal CopyrightC onvention, fo r example, did not provide crim ina l sanctions fo r those w ho com m it an infringem ent of copyright. Since copyright infringements began to constitute a type of trans­national delinquency that was aggravated by access to modern technology, and the penal code was absent from the GATT, the international dimension of crim inal law stopped being regarded as a taboo subject. [The Convention for the Protection of Producers of Phonograms against

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1994, the Standing Committee of the National People's Congress promulgated the Resolution on the Punishment of Crimes of Copyright Infringement.795 This resolution followed article 61 of TRIPs.796 The 1994 resolution was annulled from the date that the revised Criminal Law797 came into force.798 The new Criminal

Unauthorised Duplication of their Phonograms allowed for the alternative of protecting the producer's rights by means of penal sanctions]. This state of affairs radically changed w ith section 5 o f article 61 o f TRIPs. The Contracting Parties to TRIPs undertook to introduce penal sanctions to be applied at least in cases of w ilfu l trademark counterfeiting or copyright piracy on a commercial scale. The Parties started to impose prison sentences, together w ith monetary fines sufficient to provide a deterrent, or the latter in isolation, consistent w ith the level of sanctions imposed for crimes of corresponding gravity. The Parties were also to determine when to seize and destroy the offending goods and any materials and implements used for the primary purpose of committing the offence. See Carlos A. V ilia lba, 'Penal Sanctions in the International Context: International Crim inal Law and Copyright', 26(3) C o p y r ig h t B u lle t in (1992), at 19-24.795 On July 5, 1994, the Resolution of the Standing Committee o f the National People's Congress on the Punishment of Crimes of Copyright Infringement was adopted on the 8th Session of the Standing Com m ittee of the 8th National People's Congress. This resolution have made up for the lack of crim ina l punishment in the Copyright Law and aggravated the crim inal punishment for counterfeiting goods, raising the upper lim it of fixed-term imprisonment from five years to seven years. See Gao note 675 sup ra at 8 and Guo note 773 sup ra at 295.796 The changing nature of international copyright legislation, in making increased use of crim inal sanctions to punish transgressions, was driven by the United States' growing concern over trans­national crim inal activities, together w ith a significant nationalisation of law enforcement in the country. As the unique superpower, the United States was catapulted into a leading position in addressing trans-national crime. See Ethan A. Nadeimann, 'The Role o f the United States in the International Enforcement of Criminal Law', 31 (1) H a rv a rd In te rn a tio n a ! L a w J o u rn a l (1990), at 37. In the last tw o decades of the twentieth century, the U.S. Copyright Law became increasingly c rim ina lly oriented. Prior to 1976, the w ilfu l infringement of a copyright constituted, at most, a misdemeanour penalty of not more than US$ 1,000 and one year in prison. By 1992, the w ilfu l infringement o f a copyright constituted, at most, a felony penalty of US$ 250,000 and ten years in prison. In 1897, Congress amended the federal Copyright Law, and for the first time, promulgated crim inal sanctions for those w ho infringed protected copyrights. The legislative history o f the 1976, 1982, and 1992 crim inal amendments to the U.S. Copyright Act indicated that policy makers did not make the shift in policy. It was made by industry-specific interest groups seeking to protect copyright by crim inal sanctions as a means of restricting entry in to an increasingly profitable market. As the value of intellectual property rights has increased w ith the emergence of new technology, particularly in the area of computer software, the incentives for interests to expend resources in order to gain monopolies over these products have also increased. See Saperstein note 257 sup ra at 1470-1483.797 For more details, see Cai note 548 supra at 213. The amended Crim inal Law contained 452 articles, an increase o f 260 articles from the 192 articles in the 1979 Crim inal Law. See Susan Finder and Fu Hualing, 'Tightening up Chinese Courts' "Bags" - The Amended PRC, Crim inal Law', C h in a L a w & P ra c tice , June 1997, at 35. The amended Crim inal Law specifically laid down three principles that provide for the most acute break from imperial law: the abolition of analogy stipulation, the end of special enforcement for cadres, and the uniform imposition of punishments per severity o f the crime. See Jeremy T. Monthy, 'Internal Perspectives on Chinese Human Rights Reform: The Death Penalty in the PRC', 33 Texas In te rn a tio n a l L a w J o u rn a l (1998), at 210.798 The C rim ina l Law of the People's Republic of China contained a chapter on intellectual property crimes. It was amended at the Fifth Session of the Standing Committee of the Seventh National People's Congress on March 14, 1997. It came into force on October 1, 1997. The Copyright Law and the Software Regulations did not stipulate crim inal penalties for copyright

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Law stated (Chapter 3, Part 7, article 218) that one who sold a replica stated by article 217 for profit, and thereby obtained illic it gains, could be sentenced to under three years of imprisonment or held in custody, and/or be imposed a fine.* 799 In July 1995, the State Council promulgated the Regulations for the Protection of

Intellectual Property Rights by the Customs Authority.800 In September 1995, the General Administration of Customs enacted the Implementing Measures of the

Customs of China Concerning the Protection of Intellectual Property Rights80'

Both the Regulations and the Measures were based on the provisions of articles 50-60 of TRIPs.802 However, Zheng underlined that the gap between intellectual property rights protection in China and the TRIPs Agreement remained ''evident".803To avoid another confrontation between the U.S. troops and China's forces on the eve of the entry of China into the WTO, Zheng pre-empted the critics of the 'intrepid warriors'. He acknowledged that the Chinese legislation did not protect 'databases with creativity in their compilation', as article 10 of TRIPs required.804 He also admitted that the language of the International Copyright Treaties Implementation Rules was equivocal as to whether or not copyright laws in China accorded the same kind of absolute rental right protection as TRIPs did (article

in fringem ent because when these laws were being drafted, Chinese legal academics and government officials believed that it would be too harsh to impose crim inal penalties on copyright infringement. Instead, under the Copyright Law and the Software Regulations, the acts that should be subject to crim inal penalties were subject to administrative penalties. Provisions for crim inal punishment o f copyright violators were re-introduced in the Resolution on the Punishment of Crimes of Copyright Infringement issued on July 5, 1994. See Hong et al note 695 sup ra at 234. It seems outrageous that China, rated by Amnesty International as having one of the worst human rights records of any country in the world, should be persuaded by the West to use a crim inal system. See Burrell note 6 sup ra at 219.799 See W u note 605 su p ra at 243.800 The Regulations were published on July 5, 1995, w ith effect from October 1, 1995. Chinese Customs were given the power to seize and confiscate infringing products, remove infringing trademarks, destroy pirated works and impose fines on offenders amounting to the prices o f the import/export goods. This was the first time China's Customs authorities form ally listed intellectual property rights w ith in their sphere of jurisdiction. O f the 1,200 cases of infringement the Customs o f China have tracked down since the beginning of 1996, 98% were investigated and dealt w ith on their own initiative. See Gao note 675 sup ra at 8.601 The Measures were published on September 28, 1995, w ith effect from October 1, 1995. See Shannon et al note 389 sup ra at 23.002 Zheng Chengsi, T h e TRIPs Agreement and Intellectual Property Protection in China', 9 D u k e J o u rn a l o f C o m p a ra t iv e & In te rn a tio n a l L a w { 1998), at 222.803 See Zheng note 790 sup ra at 7.

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1 1 ) 804 8 05 Art ic |e 13 of TRIPs provided for the utilisation of copyrighted works without the consent from or the payment to copyright owners so long as the uses did not conflict with the exploitation of the works or prejudiced the legitimate interests of the right holders. Although the Copyright Law (article 22)806 and the Software Regulations (article 21 )807 provided such specific uses, also called 'fair use' or 'fair dealings' provisions, Zheng recognised that the conditions of the use of such uses were quite broad in China.808 Unlike the U.S. Act, neither the Copyright Law nor the Software Regulations provided specific guidelines to determine the character and ultimate fairness of a use in China.809

804 See Zheng note 515 sup ra at 245.805 See Cheng note 84 sup ra at 1957.806 Sect 4 o f Chap 2 in the Copyright Law, dealing w ith lim itations on copyright, is the shortest section o f the Law. It consists of on ly one article (article 22), which, however, is the longest article in the Law. See Zheng et al note 95 sup ra at 154. It provides for twelve uses (or fair dealings or heli shiyong) o f copyrighted works by la w fu l holders' (hefa chiyou ren) w ithou t obtaining permission from or paying compensation to the copyright owner (zhuzuo quan ren). See Yang note 506 su p ra a t 2 7 7 .807 The notion of a fa ir use exemption is internationally recognised. China's laws are compatible w ith article 10-3 o f the Berne Convention. See Guo Shoukang, 'Some Opinions on Copyright in the People's Republic of China', 1 J o u rn a l o f C h ine se Law (1987), at 65.808 In the case o f computer programs, for example, article 22 of the Software Regulations permits their unauthorised reproduction and use in 'small quantities' for non-commercial purposes, such as classroom teaching, scientific research, and carrying out of offic ia l duties by State agencies. Software reproduced and used for any of these purposes may not be made available to others and must be collected or destroyed after use. Although the Implementing Regulations (article 29) brought China in to compliance w ith article 13 of TRIPs, the situation, regarding the State organ exemption, however, was on ly clarified in 1999. In 1995, the State Copyright Adm inistration published a directive that mandated the use of legal software by agencies, m inistries, and commissions, but it was w ithou t real effects. This situation was seen as a problem as the g o v e rn m e n t is th e m a jo r prospect i ve p u rchase r o f so ftw a re in C h in a (http://www.siia,net/news/reIeases/piracy/chinapir4899.htm). In A pril 1999, in announcing the issuance of a decree calling for the serious and thorough implementation of the '1995 Directive', the State Council took a critical step toward fighting software theft, catching up w ith a growing number of nations mandating the use of legal software in government entities. The United States on ly issued such a decree in September 1998, which is called the Executive Order on Software Piracy (http://www.bsa.org/newsrYestspool/index.htmrL/news/testpools/9235021 72.html). The 'fa ir dealings' provisions are consistent w ith the ones stated in the U.S. Copyright Act. The Act requiresU.S. courts to consider whether or not the purpose and character o f the use is 'o f a commercial nature'. The Act also requires the courts to consider whether the effects o f the use of the copyrighted work upon the potential market are fair or not.809 The Chinese copyright legislation has no provision sim ilar to Section 109 of the U.S. Copyright Act. The scope o f a fa ir use in China depends upon the interpretation o f the terms 'small quantities' and 'non-commercial purposes'. These notions are much broader in China than their foreign counterparts. See Duvanel note 37 supra at 372. They are sometimes either d irectly or ind irectly contradictory to the Berne Convention. As an example, no copyright infringement occurs where an individual borrows a piece of software from his or her friend (who has law fu lly purchased the software) and copies it for personal use. See Yang note 345 s u p ra at 278.

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Zheng also pointed out that China's enforcement structure, as well as the procedure for gaining and/or maintaining rights, had to be changed to meet the requirements of article 62-3 of TRIPs.810 Articles 42 to 49 of TRIPs deal with civil and administrative remedies and procedures.811 Zheng underlined then that China's copyright laws had to extend the scope of application of civil liabilities for damages on offenders of copyright and related rights that were set forth in articles 45 and 46 of the Copyright Law.812 Furthermore, he stressed that China's authorities had to make more flexible the scope of the discretion of copyright in respect of administrative penalties.813 In China, statutory amount of damages for copyright infringement was not included in the copyright laws814 815 while some foreign countries contained statutory damages.813Finally, Zheng acknowledged that there was a lack of provisions concerning the burden of proof in China's laws. Article 32 of the Software Regulations imposed liability on pirates on the condition that they knew or had 'reasonable grounds' for what they did.816 If 'knowingly' was taken to mean 'intentionally', it was

810 This article provides that almost all the finai administrative decisions shall be subject to review by a judicial or quasi-judicial authority. See Zheng note 804 sup ra at 224.811 See Feder note 29 sup ra at 229.812 The seizure o f infringing copies was not expressly provided for as a remedy in China's legislation.813 See Hong et a! note 695 sup ra at 243.814 Damages are calculated in accordance with the actual loss suffered by the copyright owner, or the illegal income gained by the offender. However, copyright owners and the judicial authorities have often faced the embarrassing situation where it was impossible to accurately calculate both the loss and the illegal income. See Luke M inford and August Zhang, 'Intellectual Property Developments in the PRC 1998 to 1999', IP P ro file s (1999), 28.815 The U.S. Copyright Act, for example, provides that the statutory amount of damages for an infringement o f the copyright of a work shall be, at least, no less than US$ 250, and, at most, no more than US$ 10,000. The U.S. courts may decide to increase the amount of damages to no more than US$ 50,000 or decrease it to no less than US$ 100, depending on actual circumstances. In China, in order to raise the public awareness of the copyright law and to seriously punish intentional offenders, it may be determined that the highest statutory damages compensation is RMB 500,000 (about US$ 60,000) and the lowest no less than RMB 1,000. See Shen Rengan, Thoughts on Revision of the Current Chinese Copyright Law', 1 C h in a P aten ts & T ra de m arks (2000), at 56.816 Artic le 106 o f the General Principles of Civil Code states that in most areas o f c iv il law, including intellectual property, 'the principle of liab ility w ith fault' applies. This means that the possession o f infringing software is an infringing act if the holder o f the unauthorised software knows or has reason to know that the software is an in fringem ent. W hen the holder of unauthorised software does not know or has no reasonable grounds for knowing that the software is an infringement, then he or she should not be regarded as an offender, nor shall the activities constitute an infringement. Many countries clearly denote which provisions are governed by 'strict

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difficult to prove intent. It was quite subjective.817 When infringement activities were investigated and handled, offenders often escaped from their legal liability for being faultless. This made it difficult for courts and administrative authorities to render their treatment thereof.018 For example, China's had to consider article 45- 2 of TRIPs.819However, Zheng saw these gaps groundless for another confrontation because, as stated in article 142 of the General Principles of Civil Law, if international treaties contained provisions that differed from the provisions of Chinese laws, the provisions of the former applied.820 To him, the real danger came from a 'loophole' in China's laws, which did not say what to do if there was no provisions for what international treaties have provided.821 For example, the protection of 'layout-design of integrated circuits' was required in TRIPs, but there was no actual treatment of this in China's legal system.Another potential danger came from the accession of China into the WTO, which could result in a movement in the wrong direction. The consensus, during the revisited 'Battle of the Frogs and Mice' or the 'Battle of the Booksellers', has always clearly been that the Western idea of justice was to be expanded to a new territory, the Chinese jurisdiction. However, it could equally be argued that the Chinese jurisdiction and the Chinese idea of justice have also been expanded to the rest of the world.For example, Zheng amongst others has speculated on the future of the relations

liab ility ', and w hich carry only lia b ility w ith fault'. In general, direct infringement is governed by 'strict lia b ility , w h ile indirect, contributory, or vicarious infringements require fault. For example, see section 121 o f the 1994 New Zealand Copyright Act or articles 97-101 o f the 1993 German Law on Copyright and Neighbouring Rights. See Zheng note 804 su p ra at 225.8,7 See Duvanel note 37 sup ra at 382.818 For more details, see the rule o f liab ility w ith fault by Xu Chao, 'O n Several Problems Encountered in the Course of Enforcing the Copyright Law (I), 49 (2) C h in a P aten ts & T ra d e m a rks (1997), at 89-92.819 This article states that, in appropriate cases, the judic ia l authorities should order recovery of profits and/or payment of pre-established damages even where the offender 'did not know ' or 'had no reasonable grounds to know' that he was engaged in infringing activity.820 " I f any international treaty concluded or acceded to by [...] China contains provisions differing from those in the c iv il laws of [...] China, the provisions o f the international treaty shall apply, unless the provisions are ones on which [...] China has announced reservations." See Joseph Simone, 'People's Republic of China - Intellectual Property - Copyright - Software Copyright Regulations Issued', 3 (6) A s ia L a w a n d P ra c tice (1991), 29, at 30.821 See Zheng note 790 sup ra at 11.

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between China and Taiwan.822 China regards Taiwan as one of its provinces.823 In fairness, China always wanted it back. The new WTO member has been suspected then to selectively evade its new obligations.824 Tensions could rise from the intellectual property ground. Taiwan has never been a member of the four related treaties of TRIPs, such as the Paris, Berne and Rome Conventions, and the Washington Treaty.825 China could choose not to respect article 4 of TRIPs, relating to the 'most-favoured-nation treatment'. Thus, the direct application of TRIPs by China could run into difficulty and commercial barriers could remain.By "putting its faith in the rule of law", the Western world believed that the force of this legal concept was so infectious that it would necessary spur voluntary compliance by the rest of the international community, notably developing countries, to implement effective legislation. Western nations believed that the developing world would feel bound by its commitments in the TRIPs Agreement, and would make honest efforts to meet them. No one knows the consequences of the participation into the WTO of developing nations. In the case of China, with resignation and/or fatalism, one declared that "China's entry into the WTO may help somewhat".826As the most populous nation joins the world's trading system, international trade is the freest ever. Rather surprisingly, the 'intrepid warriors' started mobilising again, claiming that "[o]ur headaches with China w ill now increase rather than decrease".827 At the same time, the West underestimated the power of domestic political and economic forces that complicate developing countries' ability to comply with international treaties.828The second part of this thesis is about a paradox assumption. Just as the Western

822 Robert Kaiser, 'If this Brings Home the Bacon, Taiwan M ay Get the Sizzle', T he S y d n e y M o rn in g H e ra ld , 23 June2000, at 12.823 Settled for centuries by Chinese people, Taiwan was sighted by the Portuguese in 1590. The island was ceded to Japan by Imperial China in 1895, but was returned to Republican China after the Second W o rld War. Chiang Kai-shek, leader of the Kuomintang, w ithdrew there in 1949 with 500,000 nationalist troops, towards the end of the c ivil war. Taiwan became the headquarters of the Kuomintang, which has held power continuously since then. See note 2 su p ra at 1468.824 See Samuelson note 306 sup ra at 20.825 See Zheng note 790 sup ra at 11.826 See Roberts et a I note 28 sup ra at 23.827 See Kaiser note 824 sup ra at 12.

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concept of justice was expanded to the Chinese jurisd iction, China's administration of (its idea of) justice was also extended to the rest of the world. Just as strong as the drive to globalisation was the drive to regionalism.828 829 To some observers, China added in the new global world without borders a Confucian conceptual confusion.As Zheng and Pendleton advised, rather than criticise the aspects of China's copyright legislation, it is better to become familiar with it830 to discover what is correct and what is wrong in it.831 This careful thought would help people to sort out what can be called the idea of 'Chinese intellectual property frontier'. It would not simply help people to reach fairer considerations of the Chinese copyright laws, but it would also help them to better understand the other laws protecting intellectual property rights in the country and their application. As Pendleton put it, China presents a different approach to the protection of intellectual property compared to the rest of the world.832The Chinese path toward establishing an effective copyright system has been "a constant" struggle between conflicting interests from abroad and within.833 While the international impact of the software piracy problem in China remains severe, one should not overlook the domestic repercussions that this issue presents.834 It is to this issue that the discussion now turns.

828 See Levy note 783 sup ra at 790.829 See Riesenfeld note 709 sup ra at 407.830 Zheng Chengsi, 'The First Copyright Law of the People's Republic of China', 12(10) E uropean In te lle c tu a l P ro p e r ty R e v ie w (1990), at 376.831 See Zheng note 604 sup ra at vii.832 See Pendleton note 614 sup ra at 326.833 See Cheng note 84 sup ra at 1964.834 See Yeh note 52 sup ra at 184.

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Part Two:

The Domestic Front

[Looking Back, Looking Ahead]i

In 1989, when Zheng Chengsi asked himself what was meant by 'intellectual property', his answer corresponded to the standards of the WIPO. To him, this notion includes both 'industrial property' and 'copyright'.1 2 He took into consideration that industrial property principally includes "patents, trademarks and unfair competition", and copyright mainly includes "the rights of an author and the rights of disseminators".3 His definition roused old quarrels. For this reason, it came'up against many obstacles in China. In the instance of copyright, he first recognised that it is a type of 'property'. He also considered that it is a type of 'right', which can be owned by an individual. He finally acknowledged that it is a type of 'exclusive right'.4Detractors in China claimed that the concept of copyright is a 'legal transplant'.5 As such, Chinese people can hardly assimilate it. One reason lay in the two types of relationship covered by copyright: that between authors and publishers, and that between publishers, authors, and users.6 As Zheng noted, socialist laws tend to give more attention to the first relationship and capitalist legal systems to the second. Historically, the combined impact of Confucianism with Communism in China created a specific type of society that rested heavily on the idea that

1 Jiang Ying, 'Looking Back and Looking Ahead', 2 C h in a Patents & T ra d e m a rks (1993), at 5.2 Zheng Chengsi, 'Intellectual Property and Inform ation Property', 11(9) E u ro p e a n In te l le c tu a l P ro p e rty R e v ie w (1989), at 327.3 ib id .4 Zheng Chengsi, 'The Future Chinese Copyright System and Its Context', 15(2) /CC(1984), at 142.5 ^ 'Iggal transplant' is 3 not'on or ru*e w^ r ^' a er I’fh'fi developed in a source body of law, is then Introduced Into another, host body of law

See Paul Edward Geller, 'Legal Transplants in International Copyright: Some Problems of Method', 13(1) U C L A P a c if ic B asin L a w J o u rn a l (1994), at 199.

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individual accomplishments belonged to all of society.6 7 Thus, the Western complex theories of property, with the alien economic and cultural baggage they entail,8 were in sharp contrast to Chinese belief. The idea of individuals holding exclusive intellectual property rights, as well as money-seeking tendencies, and individualism, such as rights might foster, were Troublesome' for the Chinese society w ith a traditionally low tolerance for rapacious profit-seeking and a tradition of favouring State control over any individual enterprise.9 Moreover, the word 'right' is 'quanli' in Chinese. In the late nineteenth century, this term was first used in Japanese and means 'power' and 'profit'; two concepts people in China "were taught to despise and avoid".10 As early as the Qin dynasty,11 the individual pursuit of economic gain was categorised as a threat to the State and was actively discouraged. Copyright royalties were seen as endangering social equality by enriching authors at the expense of the whole community.12 Therefore, intellectuals always thought it shameful to value their literary works in terms of money, following the motto that "a real member" of the gentry should not "bow to a small bag of food".13 The Three Dynasties were like this [...] and the Qing Dynasty was still like this".14Under the slogan "the life of law has not been logic, it has been experience",15 resistance was organised around the central theme that China should not "merely

6 See Zheng note 4 su p ra at 143.7 Scott A. McKenzie, 'Global Protection of Trademark Intellectual Property Rights: A Comparison o f infringem ent and Remedies Available in China Versus the European U n ion ', 34(3) G o n za g a L a w R e v ie w (1998-99), at 551.8 Glenn R. Butterton, 'Pirates, Dragons and U .S. Intellectual Property Rights in China: Problems and Prospects o f Chinese Enforcement', 38(4) A r iz o n a L a w R e v ie w (1996), at 1107.9 Brian Barron, 'Chinese Patent Legislation in Cultural and Historical Perspective', 6(1) In te lle c tu a l P ro p e rty J o u rn a l (1991), at 330.10 Herbert H. P. Ma, 'The Chinese Concept of the individual and The Reception of Foreign Law', 9(2) J o u rn a l o f C h in e s e L a w ( 1995), at 21 7.11 The Q in dynasty lasted from 221 to 206 BC.12 June Cohan Lazar, 'Protecting Ideas and Ideals: Copyright Law in the People's Republic of China', 27(4) L a w a n d P o lic y in In te rn a tio n a l B usiness (1996), at 1202.13 Jiang W andi, G u a rd ia n o f C o p y r ig h t, Beijing Review, 1-7 June 1998, at 15.14 Liang Zhiping, 'Explicating "L aw ": A Comparative Perspective of Chinese and Western Legal Culture', 3(1) J o u rn a l o f C h in e se L a w (1989), at 89.15 Suli Zhu, 'Paradoxes of Legal Development in 20th Century China from the Perspective of Modernisation', 28(3) H o n g K o n g L a w Jo u rn a l (1 998), at 438-439.

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copy a rule of law from another country and transplant it".16 The Tang Code,

which was written in 653 AD, was held up as an example. By encompassing reports of laws of the sixth century BC, the code was "the product of some thousand years" of Chinese cultural legal development.17 As it was underlined, some elements of it were still playing a role in the twentieth century in such areas as the emphasis on confession in trials.18 Since laws, through the succeeding Chinese dynasties, remained essentially "unchanged",19 resistance centred on a belief that laws of the past were "timeless, universal, and workable in new situations".20 Why should a copyright system be transplanted in China?China's elite had long nursed a dream of modernisation for China21 and supported such a manoeuvre. In fact, China's elite embarked on the campaign at the dawn of the twentieth century. It was decided on destroying the old social order, based on a 'confucianisation'22 of law, with the intent of building a new one in its place.23 The strategy was to counteract Chinese "norms [that were] different from those obtained through logical generalisation of abstract interpretations of meaning [and included] ethical imperatives, utilitarian, and expediential rules, and political maxims".24At that time, the country was profoundly rooted in a predominantly agricultural economic system where commerce was disdained.25 The nation was described as

16 I b id at 438.17 W allace Johnson, 'Status and Liability for Punishment in the T'ang Code', 71(1) C h ic a g o -K e n t L a w R e v ie w (1995), at 21 7-218.18 I b id at 21 7.19 See Ma note 10 s u p ra at 213.20 Karen Turner, 'W ar, Punishment, and the Law of Nature in Early Chinese Concepts of the State', 53(2) H a rv a rd J o u rn a l o f A s ia t ic S tud ie s (1993), at 316.21 See Zhu note 15 sup ra at 429.22 The absorption during the Han dynasty (206 BC until AD 220) of Confucian values into the law has been termed the 'Confucianisation' of the law by Ch'u T'ung-tsu in the 1970s. This process led, for example, to the law's mandating of far harsher penalties when juniors struck their seniors than vice versa. See W illia m P. Alford, 'Don't Stop Thinking about... Yesterday - W h y There was no Indigenous Counterpart to Intellectual Property Law in Imperial China', 7(1) J o u rn a l o f C h in e se L a w (1993), at 25.23 See Zhu note 15 sup ra at 429.24 Edward J. Epstein, 'Codification o f C ivil Law in the People's Republic of China: Form and Substance in the Reception of Concepts and Elements of Western Private Law', 32(1) U n iv e rs ity o f B rit is h C o lu m b ia L a w R e v ie w (1998), at 157.25 I b id at 161.

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having had its legal development and scientific progress blunted.26 Because autonomous groups and/or situations, such as a Western-style nobility or church never challenged China's imperial power, and classical Chinese theorists did not conceive of transcendent laws, which could provide universalistic standards,27 China's elite estimated it "much easier" to transplant a whole foreign legal discourse into China's legal organisation.28 As the leader of the 1895 reforms put it,29 China had to initiate a total change and had to do it fast.30 At the turn of the twentieth century, the forces of the elite (the reform view) attacked the two central bastions of the forces of resistance (the orthodox view), named as 'long-past history' and 'heavy cultural mentality'. The war, which could be described as internecine quarrels of sorts, began to tear the nation apart, from country level down to village level. As a multitude of sub-groupings and attitudes comprised contemporary Chinese society, they created variations w ithin the regime and society, as well as regional differences.31 To hinder the assaults of the forces of the elite, the reception of foreign law,32 the forces of the resistance recommended that people should only "strive to conform with the laws of antiquity".33Considering the history of the 'legal borrowings'34 of the late Qing dynasty (1895- 1911), the Republican period (1911 -1949), and the era of 'imported Soviet ideas'

26 See Turner note 20 supra , at 287.27 Ib id .28 See Epstein note 24 sup ra at 161.29 The controversial late Qing scholar and reformer, Kang Youwei (1 858-1927), believed that the state orthodoxy o f his day impaired China's modernisation. In his book X in x u e w e i j in g k a o (A Study of the Forged Classics of the Xin Period), Kang sought to expose as inauthentic certain of the key Confucian Classics relied upon heavily by conservatives surrounding the Cuangxu emperor. In turn, he argued that an accurate reading of authentic Confucian texts provided unmistakable support for the Master himself (who Kang claimed had w ritten, rather than edited, the texts in question) for a host o f reforms. These included a curtailing of imperial power, the introduction of elections, and the abolition of the fam ily in favour of voluntary cohabitation arrangements that could be altered annually. Kang's efforts to appropriate and recast the past earned him wide spread denunciation and an imperial ban (later briefly lifted) on much of his writing. Among his critics was the conservative scholar Ye Dehui. "K'ang Yu-wei's face", wrote Ye, "is Confucian... but his heart is barbarian." See Alford note 22 sup ra at 23.30 See Zhu note 1 5 s u p ra at 429.31 Pitman B. Potter, 'Riding the Tiger: Legitimacy and Legal Culture in Post-Mao China', 138 T h e C h in a Q u a r te r ly ( 1994), at 327.32 See Ma note 10 su p ra at 207.33 See Turner note 20 sup ra at 314-315.

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(1949-1959)34 35; the fighting was cruel. Things did not immediately turn out fine for the forces of the elite because as China turned to the West for the modernisation of its legal system, the nation had not yet adopted the Western concept of the individual.36 A commodity economy and democracy developed relatively slowly in China compared to the West. As the feudal and semi-colonial society lasted for a considerably long period, people remained confined by feudal ideas for a long time.37 Time then became an important dimension in the fight. In a general sense, " [a] 11 rules need time to be tested, selected, and eventually accepted by the population as a whole".38In the case of intellectual property rights, fights were even more deadly. As copyright or intellectual property law in general are an outcome of a market economy, "China simply did not have the basic conditions" for intellectual property concepts.39 The assaults of the forces of the elite at the turn of the twentieth century, and again in the 1920s, and in the 1940s through to the 1970s to press the Chinese society to adopt an idealised version of intellectual property rights failed.40 The principal reason lay in the quasi-impossibility of fitting traditional Chinese laws that were based on completely alien sets of assumptions, into Western frameworks.41 42 Another reason lay in the fact that intellectual property laws did not possess substantial influence upon the behaviour of people. They remained then mere words.43 A change, however, occurred in the late 1970s.On the face of it, the forces of resistance appeared to have triumphed during the Cultural Revolution as numbers of the forces of the elite were sent to the

34 See Epstein note 24 sup ra at 158.35 M atthew H. Hurlock, 'Social Harmony and Individual Rights in China', 93(5) C o lu m b ia L a w R e v ie w (1993), at 1319.36 See Ma note 10 s u p ra at 207.37 See Butterton note 8 sup ra at 1107-1108.38 See Zhu note 15 su p ra at 431.39 See Butterton note 8 sup ra at 1107-1108.40 W illia m P. A lford, 'H ow Theory Does - And Does Not - Matter: American Approaches to Intellectual Property Law in East Asia', 1 3(1) U C L A P a c if ic B as in L a w J o u rn a l (1994), at 23.41 See Epstein note 24 sup ra at 161.42 See Zhu note 15 s u p ra at 431.

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countryside, imprisoned, or subjected to physical abuse.43 However, their triumph was short-lived and the Chinese internal strife was revived at the very end of the 1970s. The modernising forces counter-attacked by switching to a program of all- out 'westernisation'. As the results of Chinese economic development became apparent, public spheres expanded, and a more energetic society emerged.44 The forces of the elite rapidly had the advantage. The orthodox forces, subscribing to Confucius' teachings, failed in their reappraisal.45 Perhaps in desperation, they captured 'Copyright', one of the muses of the forces of the elite.Held hostage, 'Copyright' was then violated by fierce Chinese pirates under the orders of Confucius the Dragon, and sent to the hold of a junk. A ransom was set. With this started the other side of the revisited 'Battle of the Frogs and Mice' or 'Battle of the Booksellers' the domestic front.Bitter negotiations between the resistance or orthodox forces and the elite or modernising forces revolved around the terms of the violation of 'Copyright' and its future protection w ithin "the Chinese intellectual property frontier".46 Negotiations were difficult because "[ejach society reveals through its law[s] the innermost secrets of the manner in which it holds men together".47 Attention in Chinese circles centred on the fact that laws premised on the values and/or institutions of econom ically advanced capitalist States do not always automatically generate identical results when they are transplanted to a different setting.48 It has been very difficult for the Chinese nation to bridge the gap in the social-economic conditions existing between itself and its powerful Western trading partners,49 merely by translating into Mandarin concepts, practices, which are characteristic of capitalism, such as private enterprise and ownership of

43 W illia m P. Alford, To S tea l a B o o k is an E leg an t O ffe n c e - In te l le c tu a l P ro p e rty L a w in C h in e se C iv ilis a t io n , Stanford University, Stanford, California, at 64.44 See Zhu note 15 su p ra at 434.45 A lice E.-S. Tay, T h e Struggle for Law in China', 21(2) U n iv e r s ity o f B r it is h C o lu m b ia L a w R e v ie w (1987), at 562.46 Glenn R. Butterton, 'Norms and Property in the M iddle Kingdom', 15(2) W is c o n s in In te rn a tio n a l L a w J o u rn a l (1997), at 284.47 W illia m P. A lford, 'The Inscrutable Occidental? Im plications of Roberto Unger's Uses and Abuses of the Chinese Past', 64 Texas L a w R e v ie w { 1986), at 919-920.48 W illia m P. Alford, P re ssu ring the P ira te , L.A. Times, 1 2 Jan. 1992, at M5.49 That is to say Japan, the European Union, and the United States.

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information.50

[1] To do what should not be done,^ interfering

with the concrete lessons of the past or drafting

a Chinese Copyright Law^

[a] Traduttore, traditore - translator, traitor5 1 52 53

[i] A puzzling question: 'Banquan' or 'Zhuzuoquan'

A man who has no acquaintance with foreign languages knows nothing of his own (Johann Wolfgang von Goethe)54

To begin with, the discussion between the modernising forces and the forces of reaction to allow Copyright to "whirl through the mad mazes of the glamorous ball[s]"55 of 'trans-national justice' once more, revolved around an issue of translation. How to name the 'Cinderella of intellectual property law' in Chinese? Everyone who goes to China might traditionally receive a translation of his or her name. That is the custom. 'Copyright' was not to go against China's established

50 Assafa Endeshaw, 'M ore Turm oil in US-China Relations in Intellectual Property', 26(3) H o n g K o n g L a w J o u rn a l (1996), at 283.51 See Ma note 10 s u p ra at 213. This sentence is from the Code of the Tang Dynasty (618 AD to 905 AD).52 See Turner note 20 sup ra at 323.53 See Geller note 5 s u p ra at 209.54 Kai Schadbach, 'The Benefits of Comparative Law: A Continental European V iew ', 16(2) B oston U n iv e rs ity In te rn a t io n a l L a w J o u rn a l (1998), at 344.55 "Copyright is the Cinderella of the Law, Her rich older sisters, Franchises and Patents, long crowded her into the chimney-corner. Suddenly the fairy godmother, invention, endowed her with mechanical and electrical devices as magical as the pumpkin coach and the mice footmen. Now she w hirls through the mad mazes of the glamorous ba ll." Mary L. M ills , 'New Technology and the Limitations o f Copyright Law: An Argument for Finding Alternatives to Copyright Legislation in an Era of Rapid Technological Change', 65 C h ic a g o -K e n t L a w R e v ie w (1989), at 307.

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procedure. Yet, however ungracious it was for Chinese translators to do so,56 they admitted to have failed to accurately express the original meaning of 'copyright' in Chinese.57Copyright is the paradox, which lies in intellectual property.58 Copyright, from the Latin 'copia' (plenty), means the right to copy, to make plenty. In its specific application, it means the right to multiply copies of those products of the human brain.59 It is above all the right given to or derived from the original expression of the idea of authors to prevent other persons to copy their works.60 The explanation of China's translators was that "Chinese is a language more appropriate for the expression of poetic literary fancies than for the conveyance of legal and scientific thought".61 In saying so, Chinese specialists of the language made a breach in the defence of the modernising forces for the forces of reaction to leap into.Because Chinese language and Chinese law did not fully enjoy the benefits of a parallel development and simultaneous conception,62 63 the orthodox forces found in Chinese word-symbols a vast pattern-system made of culturally ordained forms and categories, which conveniently channelled China's consciousness against the manoeuvres of the forces of modernisation.61 At the dawn of the 1980s, the two forces started up again to fight with a renewed vigour.Under the Italian maxim 'traduttore, traditore', the orthodox forces won numerous people over to their way of thinking, by especially updating the words of the Qianlong Emperor to King George III of England at the very end of the eighteenth century. "We possess all things" it was reminded. Moreover, we "set no value on

56 David Finkelstein, L a n g u a g e o f C o m m u n is t C h in a 's C r im in a l L a w ', c h a p te r 6 o f 'C o n te m p o ra ry C h in e se L a w : R esea rch P ro b le m s a n d P e rsp ec tive s , Jerome Alan Cohen, Harvard University Press, Cambridge, Massachusetts, 1970, at 203.57 See Liang note 14 su p ra at 55.58 Susan Tiefenbrun, 'Piracy of Intellectual Property in China and the Former Soviet Union and its Effects Upon International Trade: A Comparison', 46(1) B u ffa lo L a w R e v ie w (1998), at 3.59 A .J .K . Robinson, 'The Evolution of Copyright, 1476-1776', 22 T he C a m b r ia n L a w R e v ie w (1991), at 55.60 Michael F. Flint and Clive D. Thorne, A U se r's G u id e to C o p y r ig h t , Fourth Edition, Butterworth, London, Edinburgh, Dublin, 1997, at 6.61 See Finkelstein note 56 s u p ra at 188.62 Ib id at 209.63 See Geller note 5 sup ra at 207.

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objects strange or ingenious, and have no use for your country's [things]".64 In short, the 1980 Provisional Regulations on Book Royalties (or the ' Royalty

Regulations') were still seen as the most comprehensive administrative legislation China's Communist Party had issued to protect copyright, such as it was interpreted by the Party. The concept 'copyright', in this manner, already had an appropriate Chinese name.The two rival factions threw all their troops into the battle again when a Copyright

Study Group was established in 1979 within China's Publishers Association at the suggestion of, and with support from, both the Chinese government65 and the U.S. government after signing the Agreement on Trade Relations. Tensions rapidly became so intense between the modernising forces and the orthodox ones that, "to speed up the process of copyright legislation and to strengthen the administration of copyright",66 the highest authority of the country, the State Council, established the National Copyright Administration (NCA) in July 1985,67 Due to the fact that the Chinese drafting process combined a great number of experts with various Chinese governmental departments,68 the membership of the drafting committee frequently changed until a regular one was formed at the end of 1988.69 Then, a group of fifteen experts in total composed the Drafting

Committee that would write the Copyright Law.70In the absence of an official body, which could formulate a 'name' of general application for 'Copyright' in order to rectify the situation in favour of the modernising forces,71 the specialists of linguistics in China chose to resort to the approach of their predecessors. At the beginning of the twentieth century,

64 See Alford note 43 sup ra at 30.65 Song Muwen, L e tte r f ro m C h in a , Copyright (1991), Feb., at 45.66 Ib id .67 As prescribed in its statute, the NCA received the responsibility of drafting a copyright law, the overall administration of the protection of copyright, the collection and dissemination of copyright knowledge, and the handling of external copyright relations on behalf o f the Chinese government.b8 Zheng Chengsi, T h e First Copyright Law of the People's Republic of China', 12(10) E uropean In te lle c tu a l P ro p e rty R e v ie w (1990), at 376.69 Zheng Chengsi and M ichael Pendleton, C o p y r ig h t L a w in C h in a , CCH Australia Limited, Sydney, 1991, at 64.70 Ib id .71 Claudia Ross and Lester Ross, 'Language and Law: Sources o f Systematic Vagueness and Ambiguous Authority in Chinese Statutory Language', 31(1) U n iv e rs ity o f B r it is h C o lu m b ia L a w

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characters had been stretched to symbolise a new legal concept that gave "certain very limited exclusive rights to Chinese authors",72 that is 'authors' rights.To tone down the attacks of the forces of reaction, it was proposed to utilise the wording 'banquan', literally the 'right to copy', as the translation of the English term 'copyright'. 'Banquan' first appeared in China in 1902.73 It was used in an article to protest against the signing by Imperial China of a copyright treaty with Imperial Japan.74 It had also been used in the 1979 Sino-U.S. Trade Agreement, in other bilateral treaties, and in diverse Chinese laws up until 1986.75 This fact gave enough confidence to China's specialists to propose it. After all, the State

Copyright Bureau (or 'Guojia Banquan Ju'), set up in 1985 by China's government, chose the term 'banquan' rather than other terms to name itself.76 Rather than being appeased, the orthodox forces were thrown into greater animosity, and proposed that the Chinese term employed to name 'copyright' had to be 'zhuzuoquan', literally 'the rights in the work'.77The term 'zhuzuoquan' first appeared in 1910 in China when the imperial government, in promulgating the first Chinese copyright legislation, borrowed it from Japanese scholars who translated the term 'author's right' into characters for use in Japanese legislation.78 It was a translation from the French 'droit d'auteur', the Spanish 'derecho de autor', and the German 'urheberrecht'.79 To back up their assaults, the orthodox forces reminded people of what the jurist, Zhang Youyu, had suggested in the final stages of consideration of the 1985 Inheritance Law. He had proposed that the characters for 'copyright', utilised in Article 2 of the law, be changed from 'banquan' to 'zhuzuoquan'.80 The orthodox forces also reminded people that 'zhuzuoquan' was employed in the General Principles of Civil Law of

R e v ie w 9 9 7 ), at 207-208.72 See A lford note 43 su p ra at 42.73 See Zheng note 68 sup ra at 376.74 Shen Rengan, '"Copyright" and "Author's Right" as They Are Understood in China', 1 (20) C h in a Patents a n d T ra d e m a rks (1990), at 55.75 See Zheng note 68 sup ra at 376.76 Guo Shoukang, 'Some Opinions On Copyright in the People's Republic of China', 1 J o u rn a l o f C h in e se ta w (1987), at 64.77 Ib id at 63-64.78 See Shen note 74 sup ra at 55.79 Ib id at 56.

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1986 reading in article 94 that "[cjitizens and legal persons shall enjoy rights of authorship (copyrights) and shall be entitled to sign their names as authors, issue and publish their works and obtain remuneration in accordance with the law".80 81 From a foreign point of view, the translation and use of copyright terms by China became highly questionable. 'Copyright' and 'author's right' are two different notions in Western countries. In China, because they were indifferently used in institutions and jurisdictions, Westerners would have to guess what 'banquan' and 'zhuzuoquan' really meant.82 Even if numerous Chinese spheres used the character 'zhuzuoquan' for 'author's right', it was inaccurate because, as Zheng stressed, television broadcasters, filmmakers, or computer programmers, for example, were also 'authors' in an extended sense of the word. As the term 'zhuzuoquan' just focuses on an individual, it was seen as being too restrictive to be used extensively in Chinese legislation.83Thus, foreign commentators could not help themselves from thinking of what the Consul General of the United States in Shanghai reported to his ambassador after the signing of the Renewed Sino-American Treaty of Commerce and Navigation of 1903.84 The treaty had used the word 'copyright' for the first time in a document in China. According to the Consul General, it seemed then nearly impossible to make Chinese people understand the difference between a patent and trademark. They appeared to have confused a trademark with a patent.85 86 * The 1950 Publishing

Resolution ('Resolution on the Improvement and Development of Publishing

Work') contained in article 17 two different terms to express copyright ('zhuzuoquan' and 'chubanquan') also reflected a terminological weakness in the definition of copyright by China.88 Because of the use of these two separate Chinese characters persisted in the 1 980s, observers proclaimed that Chinese

80 See Guo note 76 su p ra at 64.81 See Zheng et al note 69 su p ra at 257.82 See Guo note 76 su p ra at 63.83 See Zheng et a I note 69 su p ra at 68.84 See Shen note 74 sup ra at 55.85 See A lford note 43 sup ra at 45.86 Mark Sidel, T h e Legal Protection of Copyright and the Rights o f Authors in the People'sRepublic o f China, 1949-1984: Prelude to t h e Chinese Copyright Law', 9 C o lu m b ia J o u rn a l o f A r ta n d th e Law (1985), at 480-481.

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people had confused 'copyright' with 'publishing rights'.87 This was not, however, necessarily the case.Manoeuvring under Confucian views, the orthodox forces had diabolical plans that went beyond the sole translation of the alphabetic writing of the Western term 'copyright' into Chinese characters. The bitter struggle between the two camps was also about the nature and the uniqueness of a notion that magnifies the relationship between both Chinese law and Chinese society under the socialist organisational structure.88In a general sense, the forces of reaction were against intellectual property rights because they contained terms sent by the West, in an aim to subject the Chinese sphere to its rule again. The orthodox forces proposed 'zhuzuoquan', but only if it came to reinforce the control of the Chinese Communist Party over the Chinese print media.89 In their aim to control the flow of ideas to the Chinese populace, members of the forces of the resistance believed that this control was to be exercised by a 'small group of people' for the benefit of the Chinese society as a whole.90 In this respect, it was thought that by using the notion 'author's right' in its Chinese version, they could "obscure" at w ill the demarcation line between political rights (such as the freedom of speech or freedom of the press) and civil rights (such as the right of the author).91 * 93 Many of the members of the orthodox forces had also used this concept when they studied in France or Germany in the thirties and in the Soviet Union in the fifties.9 Some members among the orthodox forces did not know any foreign languages, and used Taiwanese statutes as reference materials to argue about this issue, in which there was no mention of 'copyright', but simply 'author's right'.91

87 See Zheng et a I note 69 sup ra at 10.88 The printing restrictions in Imperial China were grounded in a belief that rulers had a duty to stop their subjects from being misled by 'incorrect' ways of thinking, rather than stemming from a desire to protect the labour and expenditure of authors and publishers. Robert Burrell, 'A Case Study in Cultural Imperialism: The Imposition of Copyright on China by the West', 4 P erspec tives o n In te lle c tu a l P ro p e r ty (1998), at 201.89 See Alford note 43 sup ra at 78.90 Ib id at 57.91 See Shen note 74 sup ra at 56.32 See Zheng note 68 sup ra at 376.93 See Zheng et al note 69 sup ra at 70.

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The most effective weapon of the forces of reaction proved to be "the power of words".94 Through their creation, evolution, and/or definition, 'banquan' and 'zhuzuoquan' are two products of the Chinese culture. In this way, they reflect the distinguishing features of the Chinese culture overall.95 They encompass China's 'social phenomena'.96 Consequently, they were not immune from manipulation.97 The degree of vagueness and/or ambiguity of Chinese characters was the best conservative ally of the forces of resistance.98 Characters are more 'ingestible'99 than the words from other languages. They remain defined, by and large, in the context in which they are used.100 Due to this particularity, which accounted for a considerable elasticity of meaning, the orthodox forces generally had the upper hand on the front.On the domestic front, one of the greatest challenges rapidly centred on the field of what can be called 'contextualisation'. In other words, the conflict became about the "central terms [...] [of the future copyright legislation] within the words of significance in which they attained meaning".101 The Chinese struggle was also about "the relations of power in which [these central terms] legitimated forms of authority".102

The most complicated drafting process in China's recenth i S t o r y " / Wang Hanbin - Vice President of the National People's Congress)103

94 See Finkelstein note 56 s u p ra at 190.95 See Liang note 14 sup ra at 55.96 Ibid97 See Finkelstein note 56 s u p ra at 208.98 See Ross et al note 71 sup ra , at 209.99 See Finkelstein note 56 s u p ra at 207-208.100 As an example o f the complexity of China's language (also understood as a great flexib ility), the term 'renshen quanli' refers to the 'rights of the person' (the right to be not arrested unlaw fully, for instance). On the other hand, the wording 'renquan' has the broader meaning of 'human rights' or the 'rights o f people' (that is, the right to vote, the right to freedom of religious belief and so forth). Interestingly, the wording 'renquan' can also be used as a contraction o f the term 'renshen quanli'.101 Rosemary J. Coombe, 'Challenging Paternity: Histories of Copyright', 6-7 Y a le J o u rn a l o f L a w a n d H u m a n it ie s (1994-1995), at 398.102 Ibid103 See Alford note 43 sup ra at 77.

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The discussion to allow Copyright to whirl through the mad mazes of the glamorous balls of trans-national justice once more, also revolved around an issue of registration. When to date the entry of the 'Cinderella of intellectual property law' into China?More than twenty drafts followed one another in the 1980s until December 1989, as the D irector General of the NCA was called to give some additional explanations of the draft at the Standing Meeting of the State Council'04 Many of them had substantially differed, as power shifted among the two fratricide Chinese forces.104 105 A first draft of the Copyright Law was submitted to the Bureau of

Legislative Affairs of the State Council for review in 1986.106 Reflecting the bitter conditions of infighting inside of the drafting process, it was revised and readjusted by the Bureau until the very last weeks of 1989 when a final draft was approved and signed by the Chinese Premier.107However, China's internecine quarrels "continued to rage"108 as to whether the title of the Copyright Law should be using the characters 'banquan' or 'zhuzuoquan' until late May 1990, when the Legal Working Commission finally decided that it was time for the two factions to make some 'concessions'.Indeed, fighting conditions became particularly unclear as another group emerged in the struggle arguing that, in fact, the term 'zuozhequan', hitherto never used in China's laws, should be used, as it appeared to be the proper translation for 'author's right'.109 As the three groups110 were equally stubborn,111 and as the two conventional terms, 'banquan' and 'zhuzuoquan', were traditionally and similarly connoted,112 the fact that Article 94 of the General Principles of Civil Law uses 'banquan' and 'zhuzuoquan' side by side was to decide the outcome.It was decided that the title of the Copyright Law should be in the same characters

104 See Song note 65 sup ra at 45.105 See Aiford note 43 su p ra at 77-78.106 See Song note 65 sup ra at 45.107 Ibid108 See Zheng note 68 sup ra at 376.109 See Shen note 74 sup ra at 56.110 See Alford note 43 sup ra at 78.111 See Zheng et al note 69 sup ra at 70.112 See Finkelstein note 56 su p ra at 209.

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as the Japanese and Taiwanese laws that respectively protect copyright.113 It was clearly meant that the official name of the Copyright Law of the People's Republic

of China was to be 'zhuzuoquanfa'. It also meant that the notion 'author's right' was to be employed in the title as well as the text.114 The official English translation of the Law was to be headed as the 'Copyright Law'.115 Who was it that said that if languages can be translated, there is good reason to believe that other obstacles are surmountable?116The final draft of the Copyright Law was officially submitted to the Eleventh Session of the Standing Committee of the Seventh National People's Congress for final review after eleven years of bitter fighting.117 The Law was enacted by order No. 31 of the President of the PRC after being adopted at the fifteenth Session of the Standing Committee of the Seventh National People's Congress on September 7, 1990.118 The Law was published on September 8 in the People's Daily.119 The Law was effective as of June 1, 1991,120 and as stated in article 54 of the Law, the Regulations for the Implementation of the Copyright Law were to be drawn up by the NCA under the State Council. The latter approved the Implementing Regulations on May 24, 1991,121 They were enacted by decree No. 1 of the NCA

113 See Zheng note 68 sup ra at 376.114 See Zheng et a I note 69 su p ra at 70.115 Ibid.116 See Geller note 5 su p ra at 208.117 See Zheng note 68 sup ra at 376. The text contained six chapters w ith fifty-six articles and eight thousand words.118 Ibid119 Gregory S. Feder, 'Enforcement of Intellectual Property Rights in China: You can lead a horse to water, but you can't make it drink', 37 V irg in ia J o u rn a l o f In te rn a tio n a l L a w ( 1996), at 238.120 Zheng Chengsi, In te l le c tu a l P ro p e r ty E n fo rc e m e n t in C h in a - L e a d in g Cases a n d C o m m e n ta ry , The China Law Series, Hong Kong - Singapore, Sweet & M axw e ll Asia, 1997, at 143. In accordance w ith article 55 of the Law, the Chinese legislation had a retroactive effect. Sylvia Song, 'Copyright Law in China - A Comparative Analysis of the Emerging Intellectual Property Right', In te l le c tu a l P ro p e r ty F o ru m J o u rn a l o f th e In te l le c tu a l P ro p e r ty S o c ie ty o f A u s tra lia a n d N e w Z e a la n d In c . (1999), Sept., at 45. Article 1 8-1 of the Berne Convention provides that all works that have not fallen into the public domain as of the date a country jo ins the treaty is protected by that country. M ichael N. Schlesinger, 'A Sleeping Giant Awakens: The Development o f Intellectual Property Law in China', 9 J o u rn a l o f C h in e se L a w (1995), at 11 7.121 Amy E. Simpson, 'Copyright Law and Software Regulations in the People's Republic o f China: Have the Chinese Pirates Affected W orld Trade?', 20(3) T he N o r th C a ro l in a J o u rn a l o f In te r n a t io n a l L a w a n d C o m m e rc ia l R e g u l a t i o n (1995), at 587. The Regulations themselves comprise seven chapters and fifty-six articles.

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on May 30, 1991.122Although it was made clear (article 51) that 'zhuzuoquan' is synonymous to 'banquan',123 copyright experts, like Wang Heng or Zheng Chensi, could not be totally satisfied by this solution.As a member of the Chinese Publishing Administration, Wang Heng had been in charge of the modernising forces that had explored the possibility of the future system of China's copyright protection since the end of the 1970s. By having taken part in the discussions as to what terminology should be chosen for the Law,124 Wang knew that a clear wording is both a source of justice and equality. It increases the "likelihood that legal rules w ill be uniformly applied with regard to similarly situated persons".125 On the other hand, Zheng saw another apparent problem126 with using the term 'zhuzuoquan' and naming China's Copyright Law 'zhuzuoquanfa'. To him, Japanese scholars had mistranslated this concept into Chinese characters at the end of nineteenth century. "If these Chinese characters are retranslated to English [today], they would not only denote an 'author's right', but would also embrace rights in the carrier or medium of a work, such as the paper in a book",127 Zheng explained. The fact that Taiwan had changed the characters in its statutes in 1985 to mean 'author's right' and not include the carrier or medium of a work in its Author's Right Law/28 129 supported Zheng's view. As many people in China, however, believed that the translation by the Japanese scholars was capable of the two meanings,120 Zheng finally agreed on 'Author's

Right Law'130 as the title of the Copyright Law.Article 1 of the Copyright Law promotes the development and flourishing of the socialist culture and sciences of China. It reflects the nature of the bitter negotiations, which had surrounded the adoption of the Law from its inception.

122 See Zheng note 120 su p ra at 155.123 See Zheng et al note 69 sup ra at 70.124 See Zheng note 68 sup ra at 376.125 See Ross et al note 71 sup ra at 207.126 See Guo note 76 sup ra at 64.127 See Zheng et al note 69 sup ra at 70.128 Ibid129 Ibid130 Zheng Chengsi, T h e Protection of Computer Programs under the Chinese Copyright Law',

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Above all, the Chinese copyright legislation is the result of "a mix of [Chinese] politics and [communist] ideology".131

[ i i ] B a ck to bas ics : W h a t is the m a tte r?

Running the risk of being a-historical: China and royalty

The discussion to allow Copyright to whirl through the mad mazes of the glamorous balls of trans-national justice once more, also revolved around an issue of assessment. How to determine when China's pirates first violated the Cinderella of intellectual property law?Although Chinese historians generally date copyright, known as the "offspring of printing technique",132 from the rise of printing during the Tang dynasty,133 Zheng, supported by the rest of the modernising forces and their Western allies, maintained another idea. The beginning of an awareness of Chinese copyright protection only occurred in the 1980s.134 Copyright protection in China was virtually non-existent because the laws were "loosely constructed and rarely enforced".135Caught by the effectiveness of the attacks of the modernising forces, the orthodox forces were left defenceless in 1982 as articles 19 through 24 of the new Constitution initiated to protect copyright.136 It was stipulated in the Constitution (article 47) that citizens had the freedom to engage in scientific research, literary or artistic creation, and other cultural pursuits. The Constitution was to encourage

1 7(7) E u ro p e a n In te lle c tu a l P ro p e rty R e v ie w (1995), at 344.131 See Simpson note 121 su p ra at 587.132 See Shen note 74 su p ra at 56. The Song Dynasty ruled China from AD 960 to 1279. The Southern Song Dynasty ruled from 1127 to 1279.133 See A lford note 43 su p ra at 9. The Tang dynasty was founded by Emperor Li Yuan and ruled China from 618 AD until 907 AD.134 Zheng Chengsi and Michael D. Pendleton, T h e Quan Jui-de Drama - The Beginning of an Awareness o f Chinese Copyright Protection', 8 C o p y r ig h t W o r ld (1990), at 40.135 See Simpson note 121 sup ra at 579.136 Geoffrey T. W illa rd , 'An Examination of China's Emerging in te llectual Property Regime: H istorical Underpinnings, the Current System and Prospects fo r the Future', 6(2) In d ia n a In te rn a tio n a l & C o m p a ra t iv e L a w R e v ie w (1996), at 423.

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and assist creative endeavours conductive to the interests of people, made by citizens who were engaged in education, literature, art, science, technology, and other cultural work.137 Another groundwork for a copyright law was laid in 1986. A whole section (Chapter 5, Section3) dealing with intellectual property rights was comprised in the General Principles of Civil Law.138 Although an increasing number of copyright disputes arose then,139 it was not until 1991 that "China's first true copyright law"140 was adopted. On its adoption, a well-known Chinese composer said that in its absence, it was like driving in a city without any traffic signs.141 142 The USTR also said that until the Copyright Law was enforced, there was effectively no copyright protection in China.143Intellectual property was of negligible consequence until the 1880s.143 It was not until the twentieth century that a copyright legislation appeared in the Chinese market, by then of four hundred million customers.144 Bilateral treaties at the very beginning of the twentieth century with Britain and Japan in 1902, and the United States in 1903, satisfied no one.145 The forces of modernisation, duly encouraged by the forces of the barbarian powers from the West, pushed to pass a copyright legislation in the country.Although the Law of Author's Right of the Great Q/ng,’46 enacted in 1910,147

137 Yuanyuan Shen, 'China's Protection of Foreign Books, Video Tapes and Sound Recordings', 12(1) L o y o la Los A n g e le s In te rn a tio n a l & C o m p a ra tiv e L a w J o u rn a l 0 9 8 9 ) , at 79.138 Article 94 and 118 deal w ith copyright or the rights of authorship. See Song note 65 sup ra at 46.139 See Zheng et al note 134 sup ra at 40.140 Rafael A. Declet, Jr., 'Protecting American Intellectual Property in China: The Persistent Problem o f Software Piracy', 10(2) N e w Y ork In te rn a tio n a l L a w R e v ie w 0 997), at 61.141 See Song note 65 sup ra at 51.142 Mark E. W o jc ik and Michael J. Osty, 'Promises to Keep: American Views o f Developments in Chinese Copyright Law', 6(2) S o ftw a re L a w J o u rn a l (1993), at 290.143 Jonathan Ocko, 'Copying, Culture, and Control: Chinese Intellectual Property Law in Historical Context', 8 Y a le J o u rn a l o f L a w a n d th e H u m a n it ie s (1996), at 563.144 See Lazar note 12 sup ra at 11 86.145 See Ocko note 143 sup ra at 563. These treaties did provide reciprocal protection for Chinese copyrights.146 Editor's Note, 'China and Copyright', Excerpts from a book by Shen Rengan and Zhong Yingke, 20 C o p y r ig h t (1984), at 258. The Law contained fifty-five articles in five chapters protecting works o f literature and art, pamphlets, calligraphy, photographs, sculptures, and models.147 Li Xiang Sheng, 'W aiting for Supplements: Comments on China's Copyright Law', 13(5) E urop ea n In te lle c tu a l P ro p e rty R e v ie w (1991), at 171.

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played a fundamental role in reforming the "antiquated"148 imperial measures, it was in fact never implemented as the Qing dynasty was overthrown by the Revolution of 1911.149 The Law contained substantive clauses similar to those found in the copyright laws of other nations at that time.150 Various Laws of Author's Right were introduced subsequently.151 They were principally derived from the 1910 legislation and adhered to its basic principles.152 However, the political unrest between 1911 and 1949 made it impossible for China153 to vigorously protect the rights of authors where many governments coexisted at the same time in the country.154 Enforcement was lax. Because a copyright consciousness did not exist in China at the time, the forces of reaction had no difficulty to reduce the efforts of the modernising forces to nothing.When the Communist Party took power in 1949, all previous laws were abolished on the ground that "New China"155 would not inherit any aspect of its illegitimate predecessors. Law and the judicial system became secondary to State interests and government policy. As evidenced by the 1954 Constitution, China has sought to abolish the system of human exploitation.156 Marxism came at the question of intellectual property rights from a very different angle than did Confucianism, but they both arrived at the same conclusion.157 In short, intellectual creation is

148 See Alford note 43 sup ra at 47.149 Yiping Yang, T h e 1990 Copyright Law of the People's Republic o f China', 11(2) U C L A P a c if ic B as in L a w J o u rn a l (1993), at 263.150 See Feder note 119 sup ra at 234.151 Note 146 s u p ra at 259.152 See Yang note 149 sup ra at 263.153 See Tiefenbrun note 58 sup ra at 20.154 Between 1910 and 1950, China was in p o litica l tu rm o il and d ivided. M any o ffic ia l governments coexisted at the same time and promulgated copyright and publication laws and regulations in 1915, 1925, 1928, 1930, 1937, and 1943. See Sidel note 86 s u p ra at 478. The Beiyang Government of the Northern Warlords introduced a Copyright Law in 1915 (substantially s im ilar to the 1910 Law) and then in 1925. The N ationalist Governm ent (the Kuomintang) assumed power in 1928 and set about creating "a modern government for a new China". The Kuomintang's legal advisors were generally foreign-trained and believed that one of the keys to developing a new legal system was the development o f laws regulating creative and inventive endeavours. The substance of their 1928 Copyright Law and 1930 Publication Law was taken largely from Germany and Japan. Elizabeth Chien-Hale, 'Asserting U.S. Intellectual Property Rights in China: Expansion of Extraterritorial Jurisdiction?', 44-45 J o u rn a l o f th e C o p y r ig h t S o c ie ty o f th e U .S .A . (1997), at 215.155 See Alford note 43 sup ra at 56.156 See Yang note 149 sup ra at 269.157 See Feder note 119 sup ra at 235.

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fundamentally a product of the larger society from which it emerged, and thus neither Marxism nor Confucianism elaborated a strong rationale for treating it as establishing private ownership interests.158 In order to rebuild the economy, China "entered the era of the People's Republic" without an established system of legal protection for copyright and other rights of authors and with no national consensus on the protections to be offered under the new regime.159 Although the Communist Party indicated its intention to create laws protecting the rights of authors, copyright guarantees were never issued.160 The 1950 Publishing

Resolution, the 1958 Royalty Regulations, and the 1961 Royalties Directive were

an empty promise. They just developed a system of publishing contracts to regulate the relationship between authors and publishers.161 In order to bridge the income gap between mental and manual labour, the notion was that from each according to his or her ability, to each according to his or her work.162 This meant that every individual might work and was rewarded for his or her efforts, but no one could profit more than another one due to a greater ability or a better situation. The orthodox forces repeatedly proclaimed that literary and artistic works should be afforded no higher status than the efforts of manual labourers and/or peasants. If special rights were accorded to creative individuals, the forces particularly feared that a literary elite would emerge and would widen the gap between workers and intellectuals. The total elim ination of the forces of modernisation was then planned as "political winds [were] sweeping China".163 The Cultural Revolution,164 as its name indicates, was rooted in both literary and

158 See Ocko note 143 su p ra at 564.159 See Sidel note 86 su p ra at 479.160 I b id161 Limited remuneration to authors was based on quality rather than quantity.162 See Simpson note 121 su p ra at 584.163 The failure o f the system was due to the intervention of the Anti-Rightist Campaign, launched in autumn 1957, and then subsequently the Cultural Revolution. See Sidel note 86 su p ra at 486-487.164 The Cultural Revolution [1966-1976] was triggered by criticism o f an historical play entitled 'Hai ju i Dismissed from Office'. Hai Jui was a high-ranking official in the M ing dynasty during the reign of Jiajing (1522-1567) who was famous for his righteousness and outspokenness. He dared to express his disagreement w ith the emperor and was eventually dismissed for his dissenting views. The author o f the play, W u Han, the then-Peking Deputy M ayor and a w ell-know n historian in China, was accused of insinuating that Chairman Mao Zedong was self-w illed and arbitrary in the Anti-Rightist movement launched in 1957. See Yang note 149 su p ra at 272.

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artistic controversy,165 eliminating copyright protection by administrative practice and dissolved administrative agencies responsible for publishing.166 Following it, China was faced with a faltering economy and an ineffective and unproductive bureaucratic system plagued by unfulfilled demand and an overall dissatisfaction with the State of affairs.167 By surprise, the modernising forces re-emerged at the end of the 1970s.In 1977, the Royalty Directive (or 'Circular for Trial Implementation Method of

Author's Remuneration and Subsidy in Newspaper Offices and Publishing

Houses')168 was issued to stimulate and protect creativity and innovation. Although, the law was still dominated by Leninist ideas, the forces of modernisation were w illing to move to set up some rights for authors.169 The directive granted rights similar to the restrictive 1961 Directive.170 The protection was ad hoc, informal, and limited to quasi-copyright relationships. Citizens in China still worked for a single firm whether products were created during spare time or in the course of work.171Rapidly, such an organisation of State determination of which ideas could or could not be published was seen as incompatible with one of strong copyright protection. The forces of modernisation were pushed to slowly move to a system in which individuals have the unique authority to determine how expressions of their ideas can be used and access to private legal remedies to vindicate such rights.172 In July 1980, after taking into account two years of experience gained in the utilisation of the 1977 Directive, the Provisional Regulations on Book

Royalties { '1980 Royalty Regulations') were issued.173 They restored a cumulative

165 Theatres were banned, all activities o f scientists, writers, and other intellectuals were disrupted, and many so-called dissident creators of art and science were imprisoned.166 A ll payments for works beyond the base salary of authors were elim inated; the system of publishing contracts was abolished. The use of previously copyrighted works became a monopoly o f the State. Unauthorised reproduction increased. The right of China's authors to approve the transfer of rights to publish was abolished. See Sidel note 86 sup ra at 487.167 See Simpson note 121 sup ra at 585.168 Note 146 s u p ra at 263.169 See Sidel note 86 sup ra at 488.170 Ibid171 See Song note 120 sup ra at 41.172 See Ocko note 143 sup ra at 574.173 See Sidel note 86 sup ra at 489.

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royalty based on the number of copies printed, combined the per-copy royalty with the per-word royalty, and raised all royalty rates.For three decades, the terms and rules to protect copyright in China had been irrelevant and discarded. Regarding the accepted definition of copyright based on the idea that "the expression of the underlying idea, rather than the idea itself", is protected; there had been no copyright law in China.174 For this reason, the modernising forces sought that "the first Copyright Law of the People's Republic of China"175 should have a high level of modern sophistication to be compared favourably to the copyright laws of other countries.176

Running the risk of being a-typical: China and Berne

The discussion to allow Copyright to whirl through the mad mazes of the glamorous balls of trans-national justice once more, also revolved around an issue of relationship. How to clarify the identity of the Cinderella of intellectual property law in China?The modernising forces did "not wish the [legislation protecting copyright] to be merely a scrap of paper".177 For this reason, while both the Copyright Law and the Implementing Regulations were being drafted, they received a logistical support from abroad. Through the NCA, the modernising forces established relations with the world agencies concerned with the treatment of copyright, as well as the copyright institutions of a large number of countries.178 Moreover, more than thirty copyright laws and statutes were translated for study.179 This long-term friendly relationship helped China to adopt a copyright regime, which was "likely to be the most up-to-date"180 and said to be likely "the most fair [...] in the world".181

174 See Zheng et a I note 69 sup ra at 19.175 See Zheng note 68 sup ra at 376.176 See Yang note 149 sup ra at 264.177 See Zheng et a I note 69 sup ra at 71.178 See Song note 65 sup ra at 45.179 Zheng Chengsi, 'Copyright in China, in Ancient Time, Today and in the Future', 7 In te rn a t io n a l C o p y r ig h t S o c ie ty (1990), at 78.180 Jianming Shen, 'The P.R.C.'s First Copyright Law Analysed', 14 H a s tin g s In te rn a t io n a l & C o m p a ra t iv e L a w R e v ie w (1991), at 529-530.

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The modernising forces thought that China's copyright system should not violate the very minimum requirements of the Berne Convention,181 182 but the forces of reaction favoured an accession to the Universal Copyright Convention.183 The effectiveness of the attacks of the modernising forces eventually pushed their enemy to agree that, at least, China should conform to the three fundamental princip les of 'Berne' ('national treatment', 'automatic protection', and 'independence of protection').184The principle of a system of copyright protection is to protect both "the legitimate rights and interests of authors deriving from the works they create". The purpose of the Chinese copyright system did not differ from this purpose. The Drafting Committee confirmed the ownership of the copyright.185 As stated in article 11 of the Copyright Law, the copyright in a work belongs to its author (the word 'author' is 'zuozhe' in Chinese).186 However, instead of simplifying this issue, the Drafting Committee made it more complicated.187 Because of the economic structure of China at the time, the subject matter of copyright also included (apart from 'natural persons') 'legal persons' and 'other non-legal entities' (article 9 of the Copyright Law).188 As a source of tension between the two forces, these two terms were not defined in Chinese laws. They equally received protection whether or not their works were 'published' (fabiao) within China (article 2 of the Law).189

181 Ib id .182 See Zheng et al note 69 su p ra at 66.183 Guo Shoukang, 'TRIPs and Intellectual Property Protection in the People's Republic of China', 4 G R U R In t. (1996), at 293.184 See W o jc ik et al note 142 s u p ra at 286.185 See Song note 65 sup ra at 46.186 See Zheng et al note 69 su p ra at 218.187 Xue Hong and Zheng Chengsi, S o ftw a re P ro te c tio n in C h in a - A C o m p le te G u id e , The China Law Series, Sweet & Maxwell Asia, Hong Kong (1999), at 66.188 Although individual employers existed in China and recognised by Chinese laws, their status, under the Copyright Law, was unclear. Article 2 of the Law said nothing meaningful about them. See Li note 147 sup ra at 173. Market share statistics in 1995 confirmed an erosion of the State enterprises' position in industrial output given the 60% share enjoyed by private firms and farm collective. In the commercial, retail, catering, and service industries, the private sector dominated 80% o f the market share at the end of the 1990s. Joaquin F. Matias, 'From W ork-U n its to Corporations: The Role of Chinese Corporate Governance in a Transitional M arket Economy', 12(1) N e w Y o rk In te rn a tio n a l L a w R e v ie w ( 1999), at 6.189 Jia Zhao, 'People's Republic of China - New Copyright Law', 6(1) P a c if ic B a s in L e g a l

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In serving in the ranks of the modernising forces as "one of the chief drafters",190 Zheng persistently maintained that only natural persons have creative ability and should always be regarded as authors. To him, this was not really a question of law, but one of common sense.191 The orthodox forces disagreed w ith this statement, artfully arguing that it was also possible in China to consider a 'legal person' or an 'entity without legal personality' as the copyright owner in some instances.192 Representatives from the Chinese Academy of Social Sciences and certain universities in Beijing pointed out that, in between 'natural persons' and 'legal persons', there were also a great numbers of 'units' that wished to put their names (or titles) on the works they published.193In adding 'units' as copyright owners, the Copyright Law was, as Zheng argued, in direct conflict with the General Principles of Civil Law, the Civil Litigation Law, and a series of other Chinese laws and regulations.194 The reason is that only natural and legal persons have the ability to sue or to be sued in China. In other to support their argumentation that a legal person could be seen as a copyright owner in China, the forces of reaction based their manoeuvres on several provisions from other foreign copyright laws.For example, they argued that the Copyright Law of Japan stated that the authorship of a work, which arose from the initiative of a legal person, although made by natural persons under its direction in the course of their duties, was solely attributed to that legal person (article 15-1).195 The forces of reaction also

D e v e lo p m e n ts B u lle t in (1991), at 5.190 See Zheng note 68 su p ra at 377.191 See Zheng et al note 69 su p ra at 124.192 See Song note 65 sup ra at 47. Ownership of copyright in works created by employees has always been a d ifficu lt issue for China. This stemmed from the fact that a vast number of the Chinese population was still 'employed' (through this word is used in "a very extended sense") by the State w hen the Copyright Law was being drafted. K. H. Pun, 'A Critique o f Copyright Protection fo r Computer Software in the People's Republic o f China', 16(6) E u ro p e a n In te lle c tu a l P ro p e rty R e v ie w 994), at 231.193 A 'unit' is an imprecise, but extremely common word, for a group o f workers in China. It can be as small as a performing troupe or as large as a factory. For example, the Law Institute o f the Chinese Academy o f Social Science is seen as a legal person, but the Crim inal Law Section o f the Institute is not. However, the latter has published several books under the name of the Law Institute. W h y could this un it not be treated then as the orig inal copyright owner under the Copyright Law? See Zheng et al note 6 9 sup ra a t 1 2 5 .194 I b id at 126.195 Ib id at 124.

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noted that the Copyright Act of the United Kingdom stated that the author specifically meant the publisher, in the particular case of the copyright in the typographical arrangement of a published edition (section 9-2d).196 Finally, they focused their attention on the U.S. Copyright Act. As section 201 (b) stated, in the case of 'a work made for hire'; employers or other person for whom the work was made was granted the copyright ownership.197It was eventually decided that in China natural persons were not to enjoy any right under the Copyright Law if the work was to be created under the 'sponsorship of the employer', embodying his or her w ill, and when he or she was going to be answerable for the work. If the employer was to bear responsibility for the creation of a work, such as software,198 and the work was to be completed by using material support provided by the employer, all rights were to be vested in the employer as the relevant 'legal person'.199 On the other hand, article 16 of the Copyright Law stated that any employee (a natural person) who created a work in the course of his or her employment was to be the copyright owner. Employees were to stay copyright owners even if the content of the work was to reflect the function or purpose of the task set by their employer (the legal person) that facilitated the creation of the work. W ithin the first two years, however, the employer could enjoy exclusive rights to utilise the work within the scope of its business. Employees could not licence a third party to exploit the work, in the same way as the employer, without the latter's consent.200The quarrel continued until May 1990 when it was eventually decided that only a 'natural person' was to be regarded as an author under the Copyright Law. As

196 See Zheng note 68 sup ra at 377.197 Patrick H. Hu, '"M ickey M ouse" in China: Legal and Cultural Implications in Protecting U.S. Copyrights', 14(1) B o s to n U n iv e rs ity in te rn a t io n a l L a w J o u rn a l (1996), at 90-91.198 Artic le 14 o f the Software Regulations on ly provides an unsatisfactory guideline for the copyright ownership of job-related software. If the software developed by the employee is the result of performing his or her duty, two criteria apply to vest the copyright o f the software in the employing unit. The software should be either the result of performing the task 'explic itly' assigned in the line o f duty, or the 'foreseen' or 'natural result' o f carrying out the employee's duty. If the software developed by the employee is not the result of performing his or her duty, w ith no direct connection w ith the employee's work and w ith no use of the materials and technical facilities of the unit, the copyright of the software vests in its developer.199 The paternity rights stay, however, w ith the employee who has the right to affix his or her name to the work. See Zhao note 1 89 su p ra at 5.

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articles 2, 9, and 11 of the Law mentioned legal persons' or 'work units', they were seen as authors, but they were not strictly deemed to be 'authors'.200 201 It was also indicated that works created through the collaboration of two or more authors were to belong to these authors jointly. Unlike the UK Act, works could be referred to as works of joint authorship under the Copyright Law even if the contribution of each author was clearly distinguishable from that of the others.202 Where there was to be a dispute procedure (yiyi chengxu) (article 13 of the Copyright Law) over the work's authorship, the persons whose names appeared on the work as authors, were presumed to be authors unless otherwise could be proved.203As far as the types of copyright works were concerned, Zheng showed in a comparative study that almost all works listed in article 2-1 of the Berne

Convention were included in the Copyright Law.204 Copyright was granted in nine types of works expressly prescribed in article 3 of the Copyright Law.205 Also included, although not specifically required by Berne, was computer software (article 3-8).206

[b]: The special problem of computer software

The discussion to allow Copyright to whirl through the mad mazes of the glamorous balls of trans-national justice once more, also revolved around an problem of context. How to identify the circumstances in which China's pirates

200 See Hu note 197 su p ra at 91.201 A difference should be noted between an author that was seen as a legal person under article 11-2 and a salaried author under article 16. One of the reasons to establish a legal person as an author was that during the Cultural Revolution, many Chinese authors were found gu ilty of offences m erely because they had created under orders from their superiors. In future, should sim ilar events occur, the creator w ould no longer be regarded as the author, but rather the department. See Zheng et a I note 69 sup ra at 125-126.202 See Li note 147 su p ra at 173. Consistent w ith the provisions of the Copyright Law, article 11 of the Software Regulations stipulated such copyright ownership in detail.203 Yuankuo Wang and Mark Davison, T h e New Law on Copyright in the People's Republic of China', 2(4) In te lle c tu a l P ro p e rty jo u rn a l (1991), at 1 74.204 See Zheng note 68 sup ra at 376.205 See Wang et al note 203 sup ra at 169.206 See Zheng et a I note 69 sup ra at 216.

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violated the 'Cinderella of intellectual property law'?

[ i ] D e lin e a t in g a sco p e o f in q u iry

Because of the relatively new nature of the software industry and like many other nations, China had no precursor legislation governing the protection of computer programs before June 1991.207 208 As the fighting raged between the modernising and orthodox forces during the drafting of the copyright legislation in the 1980s, the question of how software should afford protection emerged for the first time in mid-1984.200 A chief engineer of the then Ministry of Electronic Industry called for the establishment of a system that could protect software in China. The reason why he suggested such a protection was that the absence of software protection in China made it difficult for the emerging Chinese software industry to develop.209 Many Chinese software institutes or enterprises did not put their goods on China's market for fear of pirating. To Zheng, this caused a lack of incentive, duplicating writing of similar software by different units. It had an adverse effect on China's software industry.210On the other hand, in the course of the economic modernisation, China's industries were importing a substantial amount of software from abroad. Western suppliers, among them the U.S. software industry, became worried about the Chinese lack of software protection and they began to lim it the most advanced software products from being exported to the Chinese market.211 Early in October 1984, the then biggest U.S. computer manufacturer (IBM) prepared a draft for an Interim Copyright Law for Software Protection. The top executives of IBM presented the draft to the Chinese Ministry of Electronic Industry, expressing the urgent desire of the whole Western software industry for the establishment of a

207 See W illa rd note 136 sup ra at 425.208 See Zheng et al note 69 sup ra at 193.209 I b id210 See Xue Hong et al note 187 sup ra at 31.211 See Simpson note 121 sup ra at 595-596.

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Chinese software protection system.212At that time, a software registration procedure was implemented, but it could not provide any protection for registered software in China. Consequently, developers of software did not apply for registration of their products in either Beijing or Shanghai centres, awaiting the appearance of a concrete software protection system. Zheng described that situation with a Chinese proverb. "[I]t is better to choose wine tomorrow rather than water today, if both are there for the taking".213 To restore the confidence of foreign software exporters and China's software developers, it became imperative for the forces of modernisation to start considering it as essential to prepare a protection regime for software.214 Late in August 1985, a meeting was held in Beijing.215 It was attended by more than fifty Chinese experts from various backgrounds. In the ranks of the forces of modernisation, everyone agreed that law or regulation should protect software. The State Council appointed the then Ministry of Electronic Industry to organise a working group.216 Rapidly, there was a three-way split among members of the forces of modernisation on whether software should be protected. The forces of reaction exploited this "spirited controversy"217 to their advantage then.At a conference on computer software convened by the WIPO in Geneva in March 1985, most countries expressed a preference for copyright protection, but some did not.218 Thus, indecisiveness among the modernising forces as to whether software protection should be handled through a patent protection, a copyright law, or a 'sui generis' legislation delayed any progress on the creation of a comprehensive legislation.219 Software was not included in early drafts of the Copyright Law as a copyrightable subject matter.220 In this situation, the high command of the modernising forces saw its efforts, to adopt a system to protect

212 See Xue Hong et ai note 187 sup ra at 32.213 Ibid214 See W o jc ik et al note 142 sup ra at 288.215 See Guo note 76 sup ra at 67.216 See Zheng et al note 69 sup ra at 194.217 See Sidel note 86 su p ra at 500.218 See Guo note 76 s u p ra at 67.219 See Simpson note 121 sup ra at 596.220 See the Copyright Law Draft of 1988 translated in C h i n a L a w & P ra c tice , March, 1989, at 40.

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software even before the Copyright Law, ruined.221

An uncertain scope of protection: A patent, copyright, or separate legislation:222

By then, intellectual property for 'computer hardware', which consisted of

complicated electrical apparatus, was exclusively based and without controversy

on patent law.223 However, on the proper extent of copyright protection for

'computer software', there was a great controversy on whether patent law should

be applicable to software.

Even after it was determined that software was 'unpatentable' under the 1984

P a te n t L a w (it denies patent protection to computer programs under article 25 to

"rules and methods of mental activities");224 members of the modernising forces

failed to agree that software should receive protection under the Copyright Law.225

Under the belief that copyright law did not protect the novelty and content of a

work but more the manner in which the work is expressed,226 members of the

221 See Zheng et al note 69 supra at 194-195.222 Philip H. Lam, 'Copyright Protection of Foreign Computer Software in the People's Republic of China: Significant Progress in Two Years', 1 7(4) Loyola of Los Angeles International and Comparative Law Journal (1995), at 876.223 John M. Griem, Jr., 'Against a Sui Generis System of Intellectual Property for Computer Software', 22(1) Hofstra Law Review (1993), at 145.224 See Sidel note 86 supra at 500. The form of expression of software is also the crystallisation of mathematics, information, control, and engineering, the contents of which should be patentable. Due to the difficulties presented by problematic rules regarding mathematical algorithms and mental activity, the intellectual property circles in various countries initially excluded software from the scope of patent law protection. The Chinese practice in this respect was consistent with the international trend. However, in recognition during the 1980s of the needs for industry development, many countries reinterpreted the relevant legal provisions and revised their examination standards. These changes were based on guiding cases and led to provisions for software patent protection. Where an invention containing software had technical effects considered a complete technical solution, it might be granted patent rights, regardless of whether it was a computer program, which involved the handling of a technological process by automation, or operation of a computer system in a new mode. Henry Hong Liu, 'Legislative Update - Legal Aspects of Software Protection in China: The Computer Software Protection Regulations', 9 Computer & High Technology Law Journal (1993), at 485-486.225 Fonda Y. Duvanel, 'The Evolution and Enforcement of Computer Software Copyright in the People's Republic of China', 16(3) New York Law School Journal of International and Comparative Law (1996), at 344.226 See Hong Liu note 224 supra at 470.

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modernising forces, notably Zheng,227 argued that "a pure copyright protection"

should not be adopted in China. They said that the very nature of computer

software made applying either of these two traditional forms of intellectual

property conceptually inappropriate.

They proposed that the best method to protect computer programs would be a

totally new statutory framework, a 'sui generis' law specifically tailored to the new

technology. The unique dual nature of computer software demanded such a

solution.228

The 'convergence zone (or 'sui generis') theory' (a special treatment for software

in the form of a separate copyright regulation) was put forward by Zheng as early

as 1985 at the In te rn a t io n a l In te lle c tu a l P ro p e rty S y m p o s iu m held in Hong

Kong.229 As he presented it; "if copyright protection is envisaged as a red circle,

and industrial property protection as a yellow circle, then the orange border zone

formed when the two circles intersect (but do not coincide) is the kind of

protection most suited to computer software".2™ This theory was also called

'industrial copyright'. It should be established at the intersecting part of copyright

and industrial property.231 As Zheng said, "ft]his idea did not occur out of the

blue".232

The United Kingdom, which enacted in 1968 the In d u s tr ia l C o p y r ig h t A c t, gave a

special protection to industrial designs, which are similar to computer programs,

as being works of art on the one hand and having industrial applications on the

other hand.233 The WIPO published in 1978 a set of 'M o d e l P ro v is io n s o n the

P ro te c tio n o f C o m p u te r S o ftw a re ', in which it was also proposed that computer

programs should be given special protection.234 in 1985, the C o m p u te r P rogram

P ro te c t io n L a w o f Japan also placed computer programs precisely under the

intersecting protection of industrial property and copyright. Under the revised

227 See Zheng note 130 supra at 344.228 See Griem note 223 supra at 148-149.229 See Zheng et al note 69 supra at 195.230 Ibid.231 See Xue Hong et a I note 187 supra at 33.232 Ibid.233 See Zheng et a I note 69 supra 195.234 See Duvanel note 225 supra at 344-345.

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Japanese Copyright Law of 1985, article 47(2) is a special and separately inserted

provision applicable to computer programs.231 The revised F rench A u th o r 's R ig h t

L a w of 1985 placed 'computer programs' in a class by itself, located after

'neighbouring rights', and far away from 'literary and artistic works' in general.235 236

Respectively, in 1986 and in 1987, South Korea237 and Brazil238 formulated

separate regulations on software, outside of the mode of protection provided by

their copyright laws. Finally, in 1987, the S pan ish in te l le c tu a l P ro p e rty L a w

followed the French practice by isolating software from works in general. Software

protection was included within a separate section.239

The main reason put forward for such a practice was that computer software has a

certain number of properties identical to literary and artistic works as well as

those of industrial products. Software was seen as an intellectual result produced

in an industrial process and as a tool used (or mainly used) by industry.240

However, the international situation dramatically changed at the end of the 1980s

as both Brazil and South Korea, which were seen as models in the establishment

of independent software protection outside the copyright system, included the

protection of software as copyrightable subject-matter,241 In 1988, the Soviet

Union also followed the "copyright trail".242 The revised C o p y rig h t, D es igns, a n d

P a ten t A c t o f th e U n ite d K in g d o m of 1988 listed computer programs side by side

235 Mark S. Lee, 'Japan's Approach to Copyright Protection for Computer Software', 16(3) Loyola of Los Angeles International and Comparative Law Journal (1994), at 691 -693.236 Huang Zhen, 'Analyse de jurisprudence Relative au Droit d'Auteur en Chine (Quelques Comparaisons avec ie Droit Francais) (1990), Memoire de DESS - Propriete Intellectuelle, Universite Pantheon Assas, at 55.237 Sang Hyun Song, 'Experimenting with Copyright Protection of Computer Software in the Republic of Korea', 27(4) Seoul Law Journal (1986), at 41, and James M. West, 'Korea - Progress and Problems in Combating Computer Piracy', 1 Asia Law{ 1994), at 19.238 Theodore G. Bryant, 'The History, Development and Changing Environment of Protecting Computer Software Against Copyright Violation in Brazil', 8(2) The Transnational Lawyer (1995), at 394.239 See Hong Liu note 224 supra at 471.240 See Xue Hong et al note 187 supra at 34.241 See Zheng et a I note 69 supra at 195.242 Corien Prins and Irina V. Savel'Eva, 'Computer Program Copyright Law in the Russian Federation: International Experience and Russian Reality', 19(1) Review of Central and East European Law (1993), at 31, and Andrei Yakovlev, 'Legal Protection of Computer Programs in Russia', 18(5) European Intellectual Property Review! 1996), at 292.

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with copyrightable works in general.'43 Therefore, an increasing number of the

copyright drafters in China began to point out that if China persisted with drafting

a 'specific software protection system'; it would be isolated in this intention.243 244

In 1988 and 1989, two separate delegations245 made of members of both the

modernising forces and the orthodox forces visited the United States.246

Compatibility with overseas intellectual property systems was regarded as crucial

to the global success of the Chinese software industry, an industry in which the

United States leads the world today.247 The fact that the U.S. government listed

computer programs among the list of works subjected to copyright protection in

1980248 influenced the two delegations.249 The total change of attitude, marking

the end of the influence of the 'sui generis' thinking that predominated the schism

within the camp of the modernising forces since the beginning of the drafting of

the Software Regulations in 1985, came from the 1992 MOU.250

Article 3-4 of the S in o -A m e ric a n M e m o ra n d u m o f U n d e rs ta n d in g stated that the

Chinese authorities would pass new regulations to comply with the Berne

Convention, the G eneva C o n ve n tio n , and the MOU by October 1, 1992. Article

3-6 stipulated that the government of China would agree "to recognise and

protect computer programs as literary works".251 On 30 September 1992, the

243 See Hong Liu note 224 supra at 471.244 See Zheng et al note 69 supra at 195.245 One delegation was from the Legislative Bureau of the State Council and the other was from the then Ministry of Electronic Industry, now called the Ministry of Electronics and Machinery.246 See Zheng et al note 69 supra at 195.247 See Griem note 223 supra at 158.248 See Hong Liu note 224 supra at 471.249 Although computer software is unique, each aspect of its dual nature can be understood separately in the context of prior technologies and forms of expression. Since the innovative aspect can be understood in the context of prior patentable technologies, and the expressive one can be understood in the context of earlier copyrightable works, the application of each kind of conventional intellectual property is appropriate. See Griem note 223 supra at 150.250 Zheng Chengsi, The Software Copyright Protection and Software Licensing in China - Current Legislation and Development', 1(2) Journal of Chinese and Comparative Law (1995), at 153.251 Instead of acceding to the Berne Convention before the Copyright Law came into force, the State Council published these Rules for bridging the gap between the Copyright Law and 'Berne'. The key provisions included the protection of unpublished foreign works under the Copyright Law, the protection of foreign works of applied art for a term of twenty-five years, the protection of foreign computer programs as literary works without requiring their registration. Moreover, they included the protection of foreign works that were created by compiling non-protectable materials, but which possessed originality, the elimination of certain limitations imposed by the Copyright Law on the copyright owner's rights to comply with the Berne Convention. Finally, they

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country fulfilled its obligation under the MOU by publishing the In te rn a t io n a l

C o p y r ig h t T rea ties Im p le m e n t in g R u les.252 The distinction that existed in the

Copyright Law regarding software as a special case was abolished.253 It meant that

the clan led by Zheng had failed.

Zheng was one of the experts led by the then Ministry of Electronic Industry who

went to the United States. According to him, the fact that many countries have

brought software into the orbit of copyright laws should not be a matter for China.

As he said, China "must consider [its] own situation and take foreign models as

references".254 He "still adhere[d] to the opinion which [he] expressed in the mid-

1980s".255 To him, software protection by industrial copyright includes more

economic rights, than a protection by 'pure' copyright, even if the duration of the

protection is shortened.256 There are no practical disadvantages as software has an

extremely high replacement cost. As he added, even if China chose the route of

copyright to protect computer software, it will come back full circle to the point of

departure, that is to say 'industrial copyright'.257 Interestingly, as Zheng

underlined, as China changed its attitude regarding a 'sui generis' legislation in

1992,258 the methods of the U.S. Federal courts in judicial interpretations of

copyright disputes involving software leaned more heavily on industrial copyright

than the legislative approach envisaged. In 1992, the U.S. courts have

included the protection of foreign works, which, at the moment when the international conventions come into force in China, had not yet fallen into public domain in the country of origin after the expiration of the term of protection. Jianyang Yu, 'Protection of Intellectual Property in the P.R.C: Progress, Problems, and Proposals', 13(1) UCLA Pacific Basin Law Journal (1994), at 143.252 See Zheng note 130 supra at 346.253 Chinese lawmakers 'chose' to handle computer software protection through the Copyright Law because a computer program is also a form of writing, a fixation of words, phrases, numbers, or other indicia in various media that can be followed by human beings.254 See Zheng note 130 supra at 348.255 "[H]e also agrees that "China should go the way which [the Chinese nation] has gone". He accepts the fact that it is contradictory, but deeply believes that "there is nothing strange about it". Just as in the drafting of the Copyright Law, "although [he] finally agreed to use 'Author's Right Law' as the title, [he did] not [...] abandon the 'Copyright Law' theory". See Zheng note 130 supra at 344.256 See Zheng et a I note 69 supra at 199.257 Ibid at 200.258 The influence of 'sui generis' remained only on the statute book for treating software differently to common literary works in judicial practice. However, such difference became de minimis. See Zheng note 250 supra at 155.

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significantly retreated from the position taken in earlier decisions, admitting the

problems of protecting functionality and technological efficiency under

copyright.259 They have been applying an 'industrial-copyright-like approach' to

the interpretation of the 1976 U.S. Act.260

As the E u ro p e a n C o m m u n ity D ire c t iv e of May 14, 1991 on computer software

protection provided that as of January 1993 all computer programs within the EC

boundaries would enjoy the same copyright protection as that enjoyed by literary

works,261 China passed the R e g u la tio n s fo r the P ro te c tio n o f C o m p u te r S o ftw a re .

The Copyright Law empowered the State Council to establish the separate

Regulations in article 53. Thus, adopted at the 83rd regular meeting of the State

Council on May 24, they were promulgated by the latter on June 4. They became

effective from October 1, 1991.262

To deal with the procedure to register the copyright in computer software, the

M in is t r y o f M a c h in e -B u ild in g a n d E le c tro n ics promulgated on April 6, 1992 the

C o m p u te r S o ftw a re C o p y r ig h t R e g is tra tio n P ro ce d u re s and became effective on

April 18, 1992.263 To protect the security of computer data systems, the M in is tr y o f

259 Charles R. McManis, 'International Intellectual Property Protection and Emerging Computer Technology: Taking TRIPS on the Information Superhighway - Part 1', 13 Nihon University Comparative Law (1996), at 63.260 The Court of Appeals for the Second and Third Circuits came down with 'Computer Associates International, Inc. v Altai, Inc.' in 1992. For example, the criterion to determine infringement by reverse engineering introduced in 'Apple v. Franklin', and the one by structure sequences and organisation introduced in 'Whelan Associates, Inc. v. jaslow Dental Laboratory, Inc.', have been regarded by scholars as criteria of patent law and unfair competition law. They contributed to the growing crisis in, or Balkanisation of, the classic bipolar structure of the Paris-Berne regime. The two conventions divided the intellectual property universe into two conceptually distinct categories ('industrial property' and 'literary and artistic works'). This bipolar structure began to collapse under the pressure of a growing number of hybrid intellectual products, such as computer programs. Because computer programs function both as literary works and as machine parts, the inevitably blur the historic line of demarcation between patent and copyright protection.261 See Ffong Liu note 224 supra at 471.262 Although the State Council initially decided that software should be protected under the Copyright Law, many of the legal and technical authorities involved in the drafting effort pushed for the creation of a separate framework for the protection of computer software. The result demonstrated that the experts were only partially successful in their efforts. Thus, although separate rules were promulgated for computer software protection, they were enacted under, and as a supplement to, the Copyright Law. Geoffrey T. Willard, 'The Protection of Computer Software in the People's Republic of China: Current Law & Case Developments in the "One-Copy" Country', 14 Journal of Computer & Information Law (1996), at 699-700.263 Tan Loke Khoon, 'Recent Developments in Intellectual Property Law in the People's Republic of China', 15(5) European Intellectual Property Review (1993), at 1 78.

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P u b lic S e c u r ity was empowered to formulate the M easu res fo r the P ro te c tio n o f

th e S e c u r ity o f C o m p u te r D a ta Systems. The Measures were promulgated on and

effective from February 18, 1994.

Together, with the Copyright Law and its Implementing Regulations,264 the

International Copyright Treaties Implementing Rules, the General Principles of

Civil Law, and the Decision on Punishment of Crimes of infringement of

Copyright,265 they provided the first comprehensive means of protecting software

in China.

To make the Copyright Law work effectively, the modernising forces thought the

more detailed the regulations the better. Thus, the Regulations for the Protection

of Computer Software comprised five chapters and forty articles. The Computer

Software Copyright Registration Procedures contained seven parts and fifty

articles. The Measures for the Protection of the Security of Computer Data System

included five parts and thirty-one articles. The difference between similar

legislation in other nations and the protection of copyright in China was that a

number of essential provisions that should have been in the Copyright Law

appeared in the various regulations. As Zheng stressed, the only way to

understand how computer software was protected in China was by reading the

Copyright Law and its various regulations.266 This statement is particularly true

concerning the core of the copyright regime.

The story of 'moral' and 'economic' rights or the moral to the story

According to Zheng, article 10 of the Copyright Law was the core267 of China's

copyright protection. It outlined five basic rights.268 Although the groundwork for

these rights was already comprised in article 94 of the General Principles of the

264 Liu Song, The Role of the Chinese Government in the Protection of Copyright', 4 China Patents & Trademarks (1992), at 64.265 The Decision was adopted at the 8th Meeting of the Standing Committee of the Eighth National People's Congress on July, 5 1994 and issued for implementation the following day.266 See Zheng et a I note 69 supra at 71.267 Ibid at 87.268 See Simpson note 121 supra at 589.

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Civil Law,269 they became the centre of a bitter fight between the modernising and

orthodox forces as the Copyright Law was being drafted.

The cornerstone to the concept of copyright is the idea of property rights. As

reflected in the Kantian philosophy, any literary creation is fused with the

personality of the author and the mere act of creation provides the author with

rights. The selection of terminology to differentiate these rights was extremely

contentious between the forces of reaction and the modernising forces. The

orthodox forces argued that China should use 'personal rights' (renge quan in

Chinese) in place of 'moral rights' (jingshen quanli) and 'property rights' (caichan

quan) instead of 'economic' rights (jingji quanli).270

The struggle was between those drafters who had studied civil law jurisdictions271

such as Japan, France, or Germany, together with those who did not speak a

foreign language, but only read the Taiwan Copyright Law, and those who had

studied common law.272 Zheng, as one of the chief commanders of the

modernising forces, was opposed to the utilisation of 'personal rights' as

employed in civil law systems to connote tangible personal rights with intangible

rights such as copyright.273 As the forces of modernisation argued, people only

acquire general personal rights at birth and they can only enjoy moral rights after

the creation of a work. As software is a type of industrial wealth, the question of

attribution of these rights was "even more sensitive"274 as compared with

traditional works. Despite of the comments of the forces of modernisation, the

Drafting Committee decided that the terms utilised in article 10 of the Copyright

Law and article 9 of the Software Regulations would be respectively 'personal

rights' and 'property rights'.

Resulting from a concession, these rights were defined in an overlapping

269 See Zheng note 1 79 supra at 77.270 See Zheng et al note 69 supra at 88.271 The legal systems of the so-called civil law countries are originally based on Roman law. These legal systems are characterised by a primary law making approach of comprehensive codifications.272 The common law family is an organically grown body of case law supplemented by relatively unextensive statutes with a narrow scope.273 See Zheng et a I note 69 supra at 88.274 See Hong Liu note 224 supra at 474.

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manner.275 They were stated together, as Zheng put it, in the Copyright Law

(article 10), and the Software Regulations (article 9), without really indicating

which were economic rights and which were moral rights.276 Thus, there was 'no

clear line' between these two kinds of different rights. Read literally, both article

10 and article 9 did not give copyright right owners any exclusive rights.277 China

conferred rights in software upon copyright owners rather than software

developers (that are authors). As such, the modernising forces argued that these

rights were not moral rights, but merely moral right-like aspects of the rights of

copyright owners.278 However, the fact that the legislation referred to 'personality

rights' was "one of the merits"279 of the legislation. Software copyright owners

were given "two kinds of moral rights"280 or 'personal rights', the 'right of

publication'281 and the 'right of attribution'282 and a bundle of exclusive economic

rights or 'property rights',283 the rights of 'exploitation'.284

The Copyright Law merely affirmed that authors of a work had the right to decide

if their work should be made available to the public, stipulating that they had the

right to decide the form in which their works should be made available to the

public for the first time.285 However, the Law did not mention in what way and by

what means to make it public.286 The reason was that the two rival forces strongly

fought on whether it was necessary to include such a right in the legislation.287

275 See Zheng et al note 69 supra at 88.276 See Zheng note 68 supra at 377.277 See Li note 147 supra at 175.278 See Pun note 192 supra at 237.279 See Yang note 149 supra at 264-265.280 See Xue Hong et al note 187 supra at 137.281 In the case of software, the right of 'publication' (chuban quan) (article 9-1 of the Software Regulations) is also expressed as the right of 'disclosure' or 'divulgation'.282 In the case of software, the right of 'authorship' (zuozhe quan) (article 9-2 of the Software Regulations) is also expressed as the right of 'attribution' or 'signature'. It is the right for authors to have their names appearing on a program, or the right for a person to be identified as the author of a computer program.283 Zheng Chengsi, 'The Berne Convention and the Moral Rights in the Chinese Copyright Law', 4 China Patents and Trademarks (1992), at 68.284 The right of 'exploitation' (shiyong quan) (article 9-3 of the Software Regulations) is the economic right to permit the use of software w ithout prejudice to the public interest. It is expressed as the right to license and receive remuneration.285 See Zheng note 283 supra at 69.286 See Zheng et a I note 69 supra at 89.287 Ibid at 89.

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The principal reason for opposing the inclusion of the right of publication laid in

the fact that the Berne Convention did not mention it in its chart and some

countries did not have it in their laws. The forces of reaction wondered then why

China should adopt a standard equivalent, if not superior, to article 6bis of the

Berne Convention or to section 106(a) of the U.S. Copyright Act enacted as part of

the U .S . V is u a l A rtis ts R igh ts A c t o f 1 9 9 0 288 Another reason why the orthodox

forces were opposed to it was that some of its members strenuously took the view

that it was essentially an 'economic right', saying that authors must first disclose a

work in order to enjoy economic rights.200

In acting as spokesperson for the modernising forces, Zheng argued equally

strongly that, "whatever the merits or otherwise" the arguments of the

conservative forces, "virtually everyone else in the world" regarded the right to

make a work public as a moral right.200 The driving force in the conflict was

C h in a 's P u b lis h in g A s s o c ia t io n .29' Since authors in China have never been entitled

to disclose or withhold a work before, the adoption of this right was to mark an

important change in China's practice. A face-saving concession was thought

out.292 It was admitted that this right would not be classified as a moral or

economic right.293 294 It was listed in the copyright legislation as a sort of right, which

had the character of moral and economic rights.204

The right of attribution was understood by the two rival camps as corresponding

to the first half of paragraph 1 of article 6bis of the Berne Convention, including

three different aspects.295 296 The two forces agreed to write the Copyright Law in

accordance with these aspects.206 Thus, authors in China were entitled to put their

name on their work or copies of their work, to withhold it (to publish their work

under a pseudonym or anonymously). Second, authors were entitled to object to

288 See Yang note 149 supra at 265-266.289 See Zheng et al note 69 supra at 89.290 See Zheng note 68 supra at 377.291 See Zheng et al note 69 supra at 89.292 See Zheng note 68 supra at 377.293 Ibid294 See Zheng et a I note 69 supra at 89.295 See Zheng et al note 69 supra at 89-90.296 See Xue Hong et a I note 187 supra at 138.

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anyone filching the name of another by adding it to the work they never created.

Finally, they were entitled to refuse to have their name applied to a work that was

not their work.297

Under the Copyright Law, copyright owners were to enjoy the right of

'alteration'298 and the right of 'integrity'.299 Reflecting the bitter fights between the

orthodox forces and the modernising forces, the position of software copyright

owners in China was to be inferior to the position of copyright owners of other

works. Neither the 'alteration right' nor the 'integrity right' was included in the

Software Regulations.300

At the time the copyright statutes were being drafted, a very small number of

countries did recognise the right of alteration. For this reason, the forces of

reaction refuse to list it in the Software Regulations.301 As an example, members of

the orthodox forces said that the Australian and UK Copyright Acts did not

recognise it.302 Even the French Author's Right Law (moral rights occupy the

superior place in the intellectual property regime of France) did not include it.303

The forces of reaction wondered why such a right should be included in the

Chinese copyright legislation then.304

The right of integrity was also not listed in the Software Regulations because

software is rarely the embodiment of the personality of authors305, as compared

297 See Zheng et al note 69 supra at 90.298 The right of 'alteration' (xiugai quan), also expressed as the right to 'assign' or authorise others to review, revise, or correct the work of an author that has already been published, was not included in the Software Regulations.299 The right of 'integrity' (baohu zuopin wanzheng quan), also expressed as the right to protect a work from being distorted, mutilated, or altered, was not included in the Software Regulations.300 See Zheng note 130 supra at 345.301 See Zheng note 283 supra at 69.302 See Yuankuo Wang et al note 203 supra at 172. Such a right was recognised in 1989 in Australia.303 See Xue Hong et al note 187 supra at 139.304 See Zheng et al note 69 supra at 91.305 Except for the least sophisticated computer programs, the development of software works usually involves a team of programmers, system analysts, and management personnel as joint authors with the copyright vested in the software house as their employer. At the time the copyright legislation was being drafted, if this right is extended to a large group of authors, it is impracticable for employers to exercise their economic rights in certain situations, such as customising their software to suit their clients. Customisation involves making adaptations that may impinge on the right of integrity. The difficulty here is to get the consent of every author. See Pun note 192 supra at 237.

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with other literary or artistic works.306 This right was not even found in article 6bis

of the Berne Convention307 and few nations did include it in their statutes.

In the case of software, copyright owners were given less protection with regard to

moral rights than copyright owners of other works. However, by placing more

emphasis on the right of 'withdrawal' (shouhui quan),308 China's legislation was

somewhat 'broader' than Western systems of copyright protection.309 The notion

of contract was still incomplete in China at the time the laws were being drafted.

Authors had always published their works without any publishing contract with

the publishers. Where the copies of the first edition of a work were sold out, the

publisher invariably reprinted it without asking the author if it was necessary to

revise the original manuscript.310

In accordance to the Software Regulations, the right of exploitation was

understood as the rights to copy, reveal, distribute, alter, translate, annotate, and

so on. It was defined in a similar manner as to those granted to copyright owners

under the Copyright Law.311 Due to bitter combats between the two rival camps,

there were, however, semantic differences between the nature of this right under

the China's copyright legislation and the provisions found in the Berne

Convention.312

As an example, software copyright owners were granted by the Software

Regulations the 'right to display the software'.313 However, it led to confusion. In

all the rights stipulated by the Copyright Law, there was no such a right. In

China's intellectual property legal framework, the Software Regulations were

regarded as subsidiary to the Copyright Law. Software copyright owners could

306 Ibid.307 See Zheng note 283 supra at 70.308 In China, if one wants to alter a work of his/her own, which have already been put into circulation and is still in circulation, he/she cannot do so unless he/she withdraw it first. A work, which has been sold out, can be altered soon after its first publication if the author wants to make some corrections that can be regarded as beneficial to him/her or to the users. See Li note 147 supra at 175.309 Joseph Simone, 'People's Republic of China - Intellectual Property - Latest Draft of Copyright Law', 1 (7) Asia Law and Practice (1989), at 30.310 See Zheng et al note 69 supra at 92.311 See Duvanel note 225 supra at 368.312 See Zheng et al note 69 supra at 92.313 See Xue Hong et al note 187 supra at 119.

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only enjoy rights within the scope of the Law. Among the rights stipulated by the

Law, the right of 'exhibition' was the most similar right to the display right in the

Software Regulations. However, in the Implementing Regulations, the term

'exhibition' was the public display of original or reproduced copies of works of

fine art or photography.314

As a property right, copyright also provides a certain number of 'negative' rights in

order to protect the work from interference.

[ii] What is software piracy?: The legal definition o f an offence

The bitter negotiation between the modernising forces and the forces of reaction

to allow Copyright to whirl through the mad mazes of the glamorous balls of

trans-national justice again, revolved around an issue of definitions too. How to

define the violation by China's pirates of the 'Cinderella of intellectual property

law'?

Software is not an antonym of 'hardware'

To understand the scope of software protection provided by China's copyright

laws, it is necessary to understand how software is created and what is it.

Problem definition, solution planning, coding, testing, and documentation315 are

the five phases in the creation of a computer program. The most time-consuming

and expensive aspect of it is the development of the structure and sequence of the

program rather than the coding.316

The birth of the independent software industry can be considered in June 1969

when IBM announced that it was "unbundling" software from the sale of

314 Ibid at 120.315 Toh See Kiat, 'How Software is Created', 2 Asia Business Law Review (1993), at 76.316 Manender Crewai, 'Copyright Protection of Computer Software', 8 European Intellectual Property Review (1996), at 454.

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hardware.317 Before the 1970s, computers were developed for special purposes.

They were based on a fixed control system that controlled the basic sequence of

operations or the program that the mechanical parts or hardware performed.318

During the seventies and the eighties, the electronic technology advance gave

large teams of developers, each working on their own separate portion of

computers, the possibility to change the nature of the machines to make them

useful. As computers became smaller,319 their interconnections paradoxically

increased. Expanded tasks were made possible in a very short time (at very high

speeds)320 with as little interference from users as possible. In order to perform

very complex and varied tasks, the design of the control system of the machines

stopped being 'fixed' to become 'changeable'. This novelty developed its own

jargon. The machines required then a changeable control system, regarded as

'soft', thus 'software'.

Software is "the changeable control system of the hardware" or the infrastructure,

which "maintains an interface with the user and an interface with the [...]

hardware".321 Two elements make up a computer. 'Central processing units' (or

hardware) store information in internal memory, and 'devices' (or software) store

information externally to transfer it to and from the internal memory.322 The term

'hardware' also includes both the physical embodiment and structures associated

with the computer, such as the screen, keyboard, mouse, or output devices.323

Software performs the functions desired by the programmer, the hardware

receives instructions to perform various tasks from the software.324

The instructions a computer receives to perform symbolic tasks and manipulate

317 See Griem note 223 supra at 146.318 John E. Appleton, 'What is Software?', Computer Law & Practice (1986), Jan./Feb., at 82-84.319 Ibid at 84.320 E. Brendan Magrab, 'Computer Software Protection in Europe and the EC Parliamentary Directive on Copyright for Computer Software', 23(3) Law and Policy in International Business (1992), at 710.321 See Appleton note 318 supra at 84.322 See Magrab note 320 supra at 71 0.323 Celine M. Guillou, 'The Reverse Engineering of Computer Software in Europe and the United States: A Comparative Approach', 22(4) Columbia, ULA Journal of Law and the Arts (1998), at 534.324 Ibid at 535.

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symbols in a specified order are collectively known as a computer program.325

The term 'software' is a generic term to describe a collection of one or more

programs.326 They can be stored on 'floppy disks' or diskettes (a flexible

removable magnetic disk for the storage of data) or on 'semiconductor chips' or

'firmware'327 (a permanent kind of software programmed into a read-only

memory).

There are three categories of software: applications/28 systems/29 and utilities

software.330 Curiously, the third category of software causes many problems for

copyright in its aim to protect works from interference.

Installed inside computers, 'compilers', 'interpreters', or 'assemblers' are the 'next

level' of software.331 The process to run this third category of software begins with

an idea that is expressed as a flowchart, setting out various routines. These

routines themselves have sub-routines and sub-sub routines.332 When the routines

are joined together, they form a complete version of software referred to as the

'source code'.333 Source code programs are written in specialised alphanumeric

languages, such as BASIC or C++.334 They are unintelligible to computers. To

make computers operate; source code programs must be converted into a form

that can be understood by the hardware. Compilers, interpreters, or assemblers

carry out the process of conversion in compiling the source codes into a machine-

325 See Magrab note 320 supra at 710.326 See Cuillou note 323 supra at 535.327 See Kiat note 315 supra at 75.328 'Applications Software' are programs, which are designed to perform specific tasks, such as word processing, spreadsheet operations, graphical presentations, desktop publishing, accounting, and so on. This category of software makes computers useful, providing business, educational, and entertainment programs. Declet note 140 supra at 70. Unlike other categories of software, it ignores the components of the computer. It manages information for users. See Magrab note 320 supra at 711.329 The 'Operating System' ('System Software') interacts with the hardware. It is generally unseen by the users. This software enables programs to run, such as telling the machine when to call up instructions from a word-processing program, when to load data from an input device, where to store the results, when to print or how fast the operations should run. See Kiat note 315 supra at 75.330 Ibid331 Ibid332 See Grewai note 316 supra at 454.333 See Declet note 140 supra at 70.334 See Guillou note 323 supra at 535.

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readable form or 'object codes'.335 Object code programs are written in binary

form, consisting of a series of zeroes and ones. "Software is a machine whose

medium of construction happens to be text".336

Devices called 'disassemblers' or 'decompilers' can reverse this process by

"reading" the electronic or magnetic signals and translating object codes into

source codes for research and education.337 Disassembly is then the primary

technique for 'reverse engineering'. It is the process of starting with a finished

product and working backwards to discover how programs operate or how they

were produced.338 The reason to resort to this technique is that the knowledge

contained in programs is not readily extractable. No human being can easily

understand and examine them in their complex form.339 However, this technique

is a vital aspect of creating interoperable programs.340 It is a valuable activity

encouraging innovation. New ideas emerge as subsequent programmers make

'transformative uses' of portions of pre-existing works in the course of

commenting on earlier works.341

This technique was seen as a contentious process because of claims that it

infringed on the reproduction rights of copyright owners of underlying

programs.342 Unlike the reverse engineering of traditional technological works,343

a disassembly technique of a program requires literal copying of the portion of the

program that is being examined. "Copying an entire work is precisely the problem

copyright was designed to protect against".344 It was duly argued that it

335 See Grewal note 316 supra at 454.336 Michael F. Morgan, 'Trash Talking: The Protection of Intellectual Property Rights in Computers Software', 26(2) Ottawa Law Review (1994), at 433.337 See Guillou note 323 supra at 535.338 See Morgan note 336 supra at 437.339 Dennis S. Karjala, 'Recent United States and International Development in Software Protection (Part 1)', 16(1) European Intellectual Property Review (1994), at 1 7.340 The term 'interoperability' refers to the technological necessity for a computer programmer who seeks to develop a program that will successfully inter-operate with another program to make use of details of the other program's interface in constructing a second program. In this way, the latter can successfully exchange information with the first program so as to execute the desired commands. See Morgan note 336 supra at 434.341 Pamela Samuelson, 'Intellectual Property and Economic Development: Opportunities for China in the Information Age', at http://sims.berkeley.edu/~panvpapers/chinaip.html (page5).342 See Guillou note 323 supra at 536.343 See Morgan note 336 supra at 437.344 See Karjala note 339 supra at 58.

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discourages innovation in eliminating the economic incentive of exclusivity.345

However, this controversial process is widely utilised within the software industry.

Although it is the central question surrounding the protection of software,346 if the

process of 'decompiling' object codes into source codes is disallowed, industries

will totally be deprived of the "primary technique" by which the most functional

elements of copyrighted works are examined.347

Although the TRIPs Agreement codified the settled practice under the Berne

Convention that copyright protection extends only to expressions and not to ideas,

processes, methods of operation or mathematical concepts as such,348 the Chinese

copyright statutes did not expressly contain such a provision.349 However, the

Software Regulations (article 7)350 did clearly exclude from their scope of

protection ideas, concepts, discoveries, principles, algorithms, processing

methods, and operation methods used in the development of the software.351 In

doing so, the Software Regulations adopted a similar position as Section 102(b) of

the U.S. Copyright Act.352 353 Moreover, the Software Regulations (article 31) read

that similarities between new and pre-existing software, because of the limited

number of expressible forms available, could not constitute a copyright

infringement in the existing software.3,3 As far as software was considered, the

position of the Chinese drafters duly resembled to the 'merger doctrine' in the

United States.354

345 See Griem note 223 supra at 155-156.346 In the United States, the Second Circuit Court postulated an understanding of this sensitive balancing task. "The copyright law seeks to establish a delicate equilibrium. On the one hand, it affords protection to authors as an incentive to create, and, on the other, it must appropriately limit the extent of that protection so as to avoid the effects of monopolistic stagnation." Michael Castner, 'Copyright Law: The Software User Interface', 12 The Adelphia Law Journal (1997), at 45.347 See Morgan note 336 supra at 439.348 Laurence R. Heifer, 'Adjudicating Copyright Claims Under the TRIPs Agreement: The Case for a European Human Rights Analogy', 39(2) Harvard International Law Journal (1998), at 380.349 See Samuelson note 341 supra at http://sims.berkeley.edu/~pam/papers/chinaip.html (page4).350 The Beijing Copyright Office acknowledged the principle that copyright does not exist in an idea, only in its expression. For more details, see the case known as 'Xing Buotao v. Heh Jiping'.351 Computer Software Law', 'Intellectual Property Protection in China - The Law, Asia Law & Practice, Hong Kong, 1996, at 189.352 See Karjala note 339 supra at 17.353 See Pun note 192 supra at 232.354 Ibid. The merger provision of the Software Regulations, by denying copyright protection to the expression of a computer program where it has merged with the program's unprotected idea(s),

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At the time the copyright laws were being drafted, due to the fact that a large

majority of the members of the forces of reaction had not "come into contact with

software itself",355 'reverse engineering' was seen as constituting an infringement

of copyright in China.356 Under the Copyright Law, copyright owners in China

received the right to exploit works translation. To Zheng, converting source codes

into object codes, or vice versa, was fall within the translation right of the

software copyright owner.357

The source code and the documentation are the most important elements of a

program.358 They are protected in China.

Between the two Chinese rival forces, it was finally decided after bitter

confrontation that the term 'computer software' (jisuanji ruanjian), quoted in the

Copyright Law, would be defined in the Software Regulations.359 It would be

referred to both 'computer programs' (jisuanji chengxu) and 'related

documentation' (wen dang) in article 2.360 361 Article 3-1 of the Software Regulations

defined computer program as comprising 'a series of coded instructions'

(daimahua zhiling xulie) executed on information processing equipment, such as

computers, to obtain a certain result/61 or on a series of symboled instructions or

sentences. The latter could be automatically converted into a series of coded

instructions. It was stated that computer program included 'source code programs'

was conformed to the U.S. Act. However, it a iso provided that similarities between new and existing copyrighted software that resulted from the necessity of implementing relevant policies, laws, rules, and regulations of the State or State technical standards could not be used to establish infringement of the copyrighted software. See Duvanel note 225 supra at 380.355 See Zheng et al note 69 supra at 200.356 Courts in China were often required to find any copying of a program's source or object code during the process of reverse engineering to be an infringing act. However, because the legislation said nothing about that process, it was not clear whether they found, as U.S. courts had, it for the purpose of identifying and using the program's unprotected idea(s) constituting a 'fair use'. See Duvanel note 225 supra at 378.357 See Xue Hong et al note 1 87 supra at 1 24. A number of decisions in the United States invoked the 'fair use' provision to allow decompilation for purposes of achieving interoperability. The EU, whose member States did not have the American style 'fair use' exception, reached the same result. See Samuelson note 341 supra at http://sims.berkeley.edu/~-pam/papers/chinaip.html (page5).358 See Kiat note 315 supra at 76-77.359 See Pun note 192 supra at 227.360 See Zheng et al note 69 supra at 313.361 Article 17, section 101 of the U.S. Copyright Law states that "[a] 'computer program' is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a

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(yuan chengxu) and 'object code programs' (mubiao chengxu). The source code

text of a work and its object code text were seen as the same work.362 In article 3-

2, the term 'related documentation' referred to written materials and diagrams,

using natural or formalised language, used to describe the contents, composition,

design, function specifications, development, testing results and methods of use of

the program.363

Software was then seen as encompassing "a whole range of copyright-prone

elements",364 especially susceptible to piracy.365 Understanding what constitutes

software piracy is now crucial.366

Piracy is the misappropriation of the tangible expression of an idea367

Generally, piracy, in the context of intellectual property, is the reproduction, for

seeking a profit, of the property of copyright-owners without their permission.

'Software piracy' or 'ruanjian daoban' is the unauthorised duplication of computer

software.

Software developers face five types of computer software piracy in China.

'Softlifting' is the duplication of software for use in offices, at home, or sharing

software among friends. It is by far the most pervasive form of piracy, causing

more than half of all losses to the software industry. The second most damaging

certain result."362 See Zheng et a I note 69 supra at 313.363 Ibid.364 See Declet note 140 supra at 70.365 See Guillou note 323 supra at 533.366 See Xue Hong et al note 187 supra at 1 57. Article 30 of the Software Regulations defined infringing activity to include eight acts. The first four infringe the software copyright owner's moral rights of publication and/or attribution. The four other acts infringe the software copyright owner's economic right of exploitation. The first act is to publish software without the consent of the software copyright owner. The second act is to publish software developed by others as one's own work. The third act is to publish co-authored software as a work developed by oneself. The fourth act is to sign one's own name on software developed by others or obliterate the name on software developed by others. The fifth act is to alter, translate, or annotate software without the consent of the software copyright owner or its lawful assignee. The sixth act is to copy, or copy in part, software without the consent of the software copyright owner or its lawful assignee. The seventh act is to distribute or display software without the consent of the software copyright owner or its lawful assignee. Finally, the eighth infringing activity is to licence or assign software copyright to a third party without the consent of the software copyright owner or its lawful assignee.

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type of computer software piracy in China is what it is known as 'hard disk

loading' piracy. It is when a manufacturer, distributor, or retailer of a computer

loads unauthorised copies of computer software onto the computer and 'gives it

away for free' as an inducement to buy its computer rather than one loaded with

licensed software. It is also a consumer fraud issue because consumers don't

always know that they are purchasing a computer with illegal software that is

unsupported by the software publisher. 'Counterfeiting' is also a real concern to

the industry and consumers in China because the consumers who purchase the

software believe that it is legal and in return pay full price for it, thinking that they

get original product. Another form of piracy of software, where producers of CD-

ROMs or recordable CDs load multiple programs on a single optical disk and sell

them for a tiny fraction of the price of the authorised copies, represents

significantly less than half the losses to the piracy of software. While Internet-

based piracy comes last on this list, it is growing rapidly. It is the transmission

(upload or download) of copies of computer software via modem to bulletin

board services, on-line service providers or the Internet or supply specially

designed software enabling end users to violate copyright.360 What does copyright

protect in China?

Having precedence over the Software Regulations, the Copyright Law created a

notable pre-condition for the subsistence of copyright in works. To be protected,

works 'must' be 'created' (chuangzuo).

In early drafts issued by the Drafting Committee, as the battle between the two

fratricide Chinese factions raged, the term 'chuangzuo' was simply defined as 'not

copied' and 'not plagiarised'. It was close to the term 'originality' in most foreign

copyright laws,367 368 369 but the drafts did not include such a notion. From a foreign

point of view, the absence of the term 'originality' in the discussions of the

Drafting Committee became questionable. The West wondered then whether any

367 See Grewal note 316 supra at 454.368 See Tom Robertson, 'Steps Toward a Stronger Software Industry in China', 62(3) China Patents & Trademarks (2000), at 56. See also Mark Traphagan and Anne Griffith, 'Software Piracy and Global Competitiveness: Report on Global Software Piracy', 12(3) International Review of Law Computers & Technology (1998), at 431.369 See Zheng et al note 69 supra at 107.

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work would be protected in China so long as it was not copied or plagiarised.370 If

so, it would mean that any translation without the permission of the author's work

would also be protected under China's laws for instance. This was not acceptable.

In article 2 and 3 of the Implementing Regulations, some details were given

regarding the term 'created'. Article 2 referred to 'unique results of intellectual

creation' in the field of art, literature or science. Article 3 also defined the term as

directly taking part in activities to make a complete work resulting from

intellectual endeavour.371 372 It was also stated that organising the creation of the

work, providing material conditions for its creation, and doing any action that was

not dispensable for the work's creation, could not be regarded as 'creation'.

As the term 'originality' was seen as a requirement if works were to qualify for

copyright protection in Western nations,377 the forces of modernisation decided to

introduce it in the battle in order to define the term 'created'. Rapidly, the forces

of reaction, not conversant with intellectual property issues, became unable to

distinguish the term 'duchuangxing' ('originality' in Chinese) from the term

'novelty'. They wrongly concluded that the pre-condition for copyright protection

in China was the same as for patent protection.373 On the other hand, the forces of

reaction did not accept any mention of the words 'capital' or 'time' to define the

term 'originality'. To the modernising forces, the fact that, in Anglo-American

copyright legislation, 'labour, skill and judgement', 'selection, judgement and

experience' or 'labour, skill and capital' expended by authors to create their

works were regarded as a criteria of originality in the work,374 these terms should

be expressed in the legislation.

In the middle of the conflict, the issue of 'permanent form' or the criterion of

'fixation' ('guding') was also introduced. It became the subject o f bitter

confrontation between the orthodox and the modernising forces, as there was no

370 Ibid at 107-108.371 See Zheng et al note 69 supra at 108.372 See Wang et al note 203 supra at 169.373 Article 11 of the Chinese Patent Law prevented unauthorised exploitation of an invention. In order to avoid confusion with 'patentability' concepts, all attempts to define the term 'chuangzuo' were omitted in the final draft of the Copyright Law. Only the term 'chuangzuo' or 'created' itself survived. See Zheng et al note 69 supra at 108.374 See Zheng et a I note 69 supra at 108.

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common standard internationally. In Anglo-American legal systems, it was the

'pre-condition' for copyright protection. For example, article 3-2 of the UK Act

was stating that copyright did not subsist in a literary, dramatic, or musical work

unless and until it was recorded, written, or otherwise.375 The U.S. Act (Section

101) was stating that works were created as they were fixed in a copy or recorded

for the first time.376 In continental Europe, no such requirement existed. For

example, article 10-1 of the Spanish Author's Right Law was stating that literary,

artistic or scientific creations expressed in any manner or medium, whether

tangible or intangible constituted 'protectable' subject matter. The Berne

Convention was occupying a middle position between both approaches as

provided in article 2-2.

Owing to the fact that 'reproducibility in a tangible medium' was principally

related to computer programs,377 the criterion of 'fixation' was eventually included

in the Software Regulations. As article 5 stated, a program had to be fixed onto a

certain tangible medium (youxing jiezhi) to qualify for copyright protection in

China.378

Article 5 of the Software Regulations also stated that software should be

'independently developed' (duli kaifa) by the developer to receive protection.

Insofar as originality and creativity were concerned, article 5 lent itself to at least

two possible interpretations. The first one was that it specified a 'sufficient'

condition for software to attract copyright: the work must be independently

developed. Consequently, this meant that article 5 satisfied the requirements

imposed by both the Copyright Law and the Implementing Regulations. The

second interpretation was that it specified independent development as a

'necessary' condition to trigger copyright protection for software. In order to

satisfy the requirements stipulated by the Copyright Law and the Implementing

Regulations, a work had, at least, to be independently developed by the creator.

Article 5 did not follow that 'independent development' alone was sufficient to

375 See Zheng et al note 69 supra at 103.376 See Xue Hong et al note 187 supra at 43.377 Ibid378 See Pun note 192 supra at 229.

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meet the requirements of China's copyright regime regarding software

protection.379

During the battle, members of the forces of reaction became particularly disturbed

by the 'look and feel' expression used in U.S. copyright cases.380

American copyright legislation has long recognised the distinction between the

literal and non-literal aspects of copyrighted works. In the context of a dramatic

work, for example, the distinction was made between the text itself and abstract

elements, such as the various characters. As applied to software, the literal

elements of a program were seen to include the source code and object code. The

non-literal elements of a program were to comprise its internal structure, the

functions it performs, and its user interface. It was often referred to the external

elements of a program, such as those that comprised its operational flow and user

interface, as the 'look and feel' of the program.381 The dilemma arose from the fact

that copyright did not protect ideas but the expression of the ideas. Courts had

then the difficult task of determining where ideas stop, and expressions of ideas

start. In short, mere functional similarity between two programs was not indicative

that the underlying codes of the two programs were similar.382

Although it is was clear that copyright laws ought to protect both 'form' and

'content' of a work, not merely its form of expression, the orthodox and

modernising forces could not find an area of agreement as to whether

379 Ibid380 The leading case in which non-literal copying was examined was Whelan Associates Inc. v Jaslow Dental Laboratory Inc. The U.S. courts were loath to allow copying and to that extent have been willing to extend the scope of protection beyond the confines of literal copying or adaptation by defining ideas narrowly. The danger inherent in this approach was the risk that the development of competing and possibility better products might be stifled. See Crewal note 316 supra at 458. The 'look and feel' expression clearly troubled the courts. Even the U.S. Supreme Court was troubled by the matter in Lotus Development Corp. v Borland International, Inc. See Castner note 346 supra at 34.381 David Zimmerman, 'Global Limits on "Look and Feel": Defining the Scope of Software Copyright Protection by International Agreement', 34(2) Columbia Journal of Transnational Law (1996), at 505. The U.S. courts adopted the expression to recognise copyright protection of the 'forest' (the overall expression) even when the 'trees' (individual elements of a work) were not themselves copyrightable. See Castner note 346 supra at 50.382 The courts did not want to give copyright owners a monopoly over ideas and methods for performing certain tasks, yet at the same time the courts did not want plagiarists easily to avoid liability for copyright infringement. See Grewal note 316 supra at 455.

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'creativeness' applied to the 'form' and 'content' of a work.383 384 There was a failure

to appreciate that 'ideas' and 'expressions' have areas of significant intersection.

'Content', in some minds of the members of the orthodox forces, was seen as

different to 'ideas'.304 Thus, the drafters indicated that the scope of software

copyright protection would be determined on a case-by-case basis through

application of the idea-expression dichotomy.385 386 387

Due to the situation between the two rival forces, the perception of the level of

creativity sufficient to protect software in China was obscured far more than

illuminated at the end of the 1990s. The situation on the terrain was even

gloomier when it came to enforcing the legislation.

[2] Riding a tiger that is difficult to dismount,m

creating a history of the present^ or particular

aspects of China's computer protection

In 1998, when Duan Ruichun, the Director General of the In te lle c tu a l P ro p e rty

E x e c u tiv e C o n fe re n c e S ta te C o u n c il o f C h in a , defined the term 'intellectual

property', his definition came to reinforce the one given by Zheng ten years

earlier. The forces of modernisation were eventually in a position of strength.

They were to impose intellectual property as "a symbol of human civilisation, the

outcome of scientific advancement, a legal system and intangible assets, and one

of the rules of hi-tech co-operation and competition".388 This definition met the

world standards. At the end of the 1990s, on the face of it, the standard of

protection offered to software, as Zheng put it, was then considerable.389 For its

383 See Zheng et a I note 69 supra at 68.384 See Wang et al note 203 supra at 169.385 See Duvanel note 225 supra at 350-351.386 English translation for the Chinese aphorism 'qi hu nan xia'. See Potter note 31 supra at 325.387 See Hurlock note 35 supra at 1319.388 Duan Ruichun, 'China's Intellectual Property Rights Protection Towards the 21st Century', 9(1) Duke Journal of Comparative and International L iw (1998), at 215.389 See Zheng note 250 supra at 152.

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change from nothing to everything...the whole world admired what China has

achieved in a very short time, said Arpad Bogsch, the Director-General of the

WIPO.390

However, the battle was far from certain. "Law is a social practice of a nation".391

Owing to the absence of a well-defined relationship or consistent co-ordination

among China's intellectual property laws and regulations,392 ambiguities were the

rule on the terrain. The problem was exacerbated by the fact that separate bodies

drafted the numerous copyright laws.393 The situation on the terrain was an

amalgam of both Marxist-Leninist theory and traditional Chinese legal philosophy

and a product of both domestic necessity and foreign pressure.394 395 396 One could only

await the interpretation of the justice39"’ to link theory with practice', in the words

of Mao Zedong.

[a]: The guardians of copyright^

A legal system is more than a series of rules and principles for their interpretation;

it also includes the institutions intended to translate these rules and principles

from the pages of statute books into the everyday life of society.397 After the

passage of the copyright laws, the principal obstacle for the modernising forces on

battlefields, "shifted from drafting a sufficient body of laws to implementing

390 See Hu note 197 supra at 81.391 See Zhu note 15 supra at 439.392 See Jianyang Yu note 251 supra at 151.393 Ibid at 154. Government agencies in China always limited expertise and experience in drafting laws and regulations. They also had a limited view of the legal system in general and the drafted laws or regulations in particular. They rarely considered the position of the laws or regulations in the legal system or how they were co-ordinated with other laws and regulations. Finally, they often drafted laws or regulations in such a way as to benefit their own agencies. This was why some laws in China were read like administrative regulations and why agencies often fought over who would be designated drafter of such legislation.394 See Yang note 149 supra at 284.395 See Pun note 192 supra at 229.396 See Jiang note 13 supra at 15. For years, the Committee for Protecting Writers' Rights and Interests under the Chinese Writers' Association has been wrestling with piracy, becoming a watchdog of Chinese intellectual property.397 Karen Turner, 'Contemporary Studies in Chinese Legal History', 4(1) Legal History (1998), at 36.

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them".398 Although individuals or entities within China were given the choice to

pursue offenders in three ways;3'9 namely 'mediation'400, 'administrative

proceedings'401 402, and 'civil litigation'403 (article 48 of the Copyright Law), and eight

acts were defined as infringing acts (article 30 of the Software Regulations), the

conditions of fighting were difficult.

398 The Practical realities of enforcing intellectual property rights are less encouraging than the status of relevant legislation in Asia. Mary L. Williamson and Kim Newby, 'Intellectual Property Issues - Intellectual Property Protection in Asia', AsiaLaw Supplement (1996), Oct., at 7.399 Under the Software Regulations, disputes over copyright infringement may be resolved by mediation (article 34), administrative proceedings (article 35), and civil litigation (article 33). See Pun note 192 supra at 235.400 Although mediation (article 48 of the Copyright Law) never constituted a legal procedure or a mandatory procedure in China, it has always been very popular because it was faster than litigation. However, these procedures did not contain the effectiveness of the mediation procedure stipulated in article 101 of the Civil Litigation Code. Three different mediations existed. The first one was independent mediation by a commonly chosen mediator. The second one (that was enforceable) was mediation in the courts of justice. See Mary L. Riley, Protecting Intellectual Property Rights in China, The China Law Series, Sweet & Maxwell, Asia (1997), at 75. The third one was mediation in arbitration proceedings. Settlements out of this kind, in the form of an award, were also enforceable. See Shaojie Chi, 'Administrative Action in China for IPR Cases', 32(1) Les Nouvelles - Journal of the Licensing Executive Society (1997), at 31. If mediation failed or if one party changed its mind after the conclusion of an agreement, proceedings could always be instituted in the courts. They could also he instituted in the courts directly if the parties do not wish to settle the dispute in this way. See Hong Liu note 224 supra at 484.401 Paralleling the organisation of the courts, the protection by administrations was one of the two major enforcement mechanisms in China. The origination of the administrative enforcement mechanism for the protection of intellectual property rights in China could be traced back to the establishment of the so-called central planning economy copied after the erstwhile Soviet pattern. This unique enforcement mechanism was something indispensable in a transition from centralised economy to a market one. See Shaojie Chi note 400 supra at 31. For those who found the courts slow, unresponsive, or difficult to navigate, administrative enforcement institutions were a fundamental addition. See Jeffrey W. Berkman, 'Intellectual Property Rights in the PRC: Impediments to Protection and the Need for the Rule of Law', 15(1) UCLA Pacific Basin Law Journal (1996), at 42. If administrative enforcement was seen a quick and effective means to act, the sanctions were widely feared as they were imposed without the formality of the court procedures. Moreover, the procedures under which such enforcement occurred were almost never publicised. It was impossible to obtain sufficiently reliable information about them. See Riley note 400 supra at 93. Consequently, when a party was not satisfied with the administrative sanctions imposed by the administrative authority for software copyright affairs, it could always institute proceedings in the People's Courts within three months from the date of receipt of the relevant notification. Where the party neither executed the sanction's requirements, nor institute proceedings in the courts within the time limit, the appropriate administrative authority applied to the courts for compulsory execution. See Hong Liu note 224 supra at 484. Although administrative bodies continued to resolve more than 80% of disputes in the 1990s, in the long run, court adjudication was expected to emphasise. Administrative proceedings were predicted to gradually phase out within China. See Yu note 251 supra at 156.402 Throughout the 1990s, the traditional disdain for litigation declined in China. Changingeconomic and social relationships meant that disputes increasingly involved parties who were at arm's length. Mediation was seen as less effective in such circumstances. Notes, 'Class Action Litigation in China', 111(6) Harvard Law Review (1998), at 1 532.

Page 1 81

As a slogan, the modernising forces often claimed that a system of uniformly

applicable copyright rules needed both an institution and people ready and able

to undertake the task of enforcing it.403 Despite the proliferation of agencies to

protected copyright in China in the 1990s, the forces of modernisation still found

it difficult to obtain enforcement action because no entity had the power to

enforce the copyright rules within the territory.404 As it became obvious that the

copyright laws could not enforce themselves,405 the strategy of the modernising

forces dramatically changed. They decided to focus their assaults on the will of

China's judges, lawyers and administration officers, and the Chinese people.

[i] New laws and olds problems: judges and lawyers in China

Judges, lawyers, administrative officers, and the whole Chinese population

became then the four bastions, ferociously held by the forces of reaction, that the

modernising forces had to win over. The high command of the modernising forces

first decided to tackle the fortress of the judiciary. It saw it as the easiest to

infiltrate.406 As the President of China's S uprem e P e op le 's C ourt, Zheng Tianxiang,

described the situation, the failure to enforce the decisions of the P e op le 's C ourts

of justice were the most outstanding problem in the administration of justice in

403 The formal attributes of a unitary Chinese legal system have always been insisted upon in the country. However, the practice that have emerged after 1978 include some of the worst disadvantages of federal legal systems without the appropriate legal and political machinery even to resolve the resulting conflicts and tensions, far less to unify the law. Anthony R. Dicks, 'CompartmentaIised Law and Judicial Restraint: An Inductive View of Some Jurisdictional Barriers to Reform', 141 The China Quarterly (1995), at 84. State intervention was just as necessary to a complex market economy as it was to a planned economy. Local State power made the commerce clause necessary; Federal State power was needed to enforce it. Donald C. Clarke, 'What's Law Got to do with it? Legal Institutions and Economic Reform in China', 10(1) UCLA Pacific Basin Law Journal (1991), at 76.404 See Riley note 400 supra at 61.405 See Berkman note 401 supra at 31.406 Donald C. Clarke, 'The Execution of Civil Judgements in China', 141 The China Quarterly (1995), at 66. Two principles, 'tiao' and 'kuai', govern the flow of power in the Chinese political system. 'Tiao' is the principle of vertical control. Superiors in a given bureaucratic hierarchy dictate to inferiors. 'Kuai' is the principle of horizontal control. A particular body at a given level of administration (say, the Party committee) has control over certain other bodies at the same level of administration in a given jurisdiction. People's Courts are subject to both in varying degrees. Donald C. Clarke, 'Power and Politics in the Chinese Court System: The Enforcement of Civil Judgments', 10(1) Columbia Journal of Asian Law (1996), at 85.

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China's economic sphere.407

The most outstanding problem: the judiciary

The People's Courts were described as the weak link in the orthodox forces'

defence. The modernising forces noted that while courts were hampered, in one

sense, in being too far in front of the rest of the reform of the economy, in other

ways, they suffered from being too far behind.408

Chinese judges had never possessed the power and prestige their counterpart

command in common-law or continental European countries.409 In an

increasingly 'de-bureaucratised' economy, they were, and were perceived, as just

one bureaucracy among many at the end of the 1990s. They were still a part of

the State organ. They were co-ordinated with other bureaucratic agencies rather

than in any way being superior to them.410 In socialist China, they had little social

status, as part of the State's government functionaries. Judges were no different

from other States cadres in status and identity.411 At the end of the twentieth

century, their salaries were still extremely low.

407 See Turner note 397 supra at 44.408 See Clarke note 406 supra at 85.409 An important tenet of Confucian philosophy rooted in the traditional legal system was the notion of 'amity above all'. Kenyon S. Jenckes, 'Protection of Foreign Copyrights in China: The Intellectual Property Courts and Alternative Avenues of Protection', 5(3) Southern California Interdisciplinary Law Journal (1997), at 553-554. This, combined with the principle of 'selflessness' and the traditional Chinese philosophy discouraging the self-motivated pursuit of money, led to a cultural view antithetical to the concept of an adversarial civil law system. Consequently, Chinese people avoided litigation whenever possible. In fact, this aversion was so strong that "going to court was seen as shameful" and "the last result of vulgar people only". Resort to litigation was seen as both barbaric and uncivilised, and written law was viewed as a moral and political danger because it served to promote lawsuits and destroy social harmony. The legendary founder of Taoism and traditional author of the Tao-te-Ching, Lao-tzu (6th century BC), remarked that "[t]he more laws and ordinances are promulgated, the more thieves and robbers there will be". See Lazar note 12 supra at 1203. The normative tradition against litigation has been referred to as the "preference for death rather than bringing a lawsuit". See Berkman note 401 supra at 39. Harmonious resolution of disputes through 'mediation' and compromise was the aim of the government. As the tradition remained, about 70% of civil cases were still resolved through mediated settlements in the 1990s. Benjamin Gregg, 'Law in China: The Tug of Tradition, the Push of Capitalism', 21(1) Review of Central and East European Law (1995), at 78. In the 1990s, however, litigation has grown at a much faster rate than mediation. See note 402 supra at 1531.410 Stanley Lubman, 'Introduction: The Future of Chinese Law', 149 The China Quarterly (1997), at 20.

411 Ibid at 6.

Page 183

In the mid-1990s, China's courts had a staff of approximately 215,000, including

125,000 judges.412 The modernising forces decided to mass recruit in the

profession. Although the task was wide, it was made possible because China's

judges had the reputation of being poorly educated. They generally lacked a

formal legal education and/or experience.413 By then, it required no special

process for someone to become a judge in China. One-third of all judges lacked

post-secondary training in any subject. Before the promulgation of the Software

Regulations, they were not encountering cases regarding software piracy.414 To the

modernising forces, 'judicial ignorance'415 was devastating in China's legal system

as "so few ways exist[edl to remedy it".416

Even experienced and highly trained, judges still seemed to have difficulties

keeping tabs on the new statutes. They "[were] learning to administer laws, which

[had] little cultural grounding, in a booming economy, which ha[d] little

412 See Clarke note 403 supra at 21. In the 1990s, they handled about a million cases a year, of which approximately 85% were civil or economic cases. See Turner note 397 supra at 39. Many of the courts remained understaffed. See Willard note 136 supra at 430.413 See Berkman note 401 supra at 26.414 'Beijing Wei Hong Computer Software Research Institute v. Beijing Zhong Ke Yun Wang Technology Co.', decided in 1993, was reportedly the first case resolved by a court since the implementation of the Software Regulations. From that time onwards, various levels of courts have handled a large number of software copyright cases. For example, in 'China Golden Dawn Safety Technology Co. v. Beijing Shijingshan District Zhiye Electronics Limited', decided in early 1994, the Intellectual Property Division of the Beijing Intermediate People's Court rendered its first decision concerning software infringement. At the end of 1995, the Beijing First Medium Court dealt with the first software matter that was more complicated. This case (Xin jian Di Institute v. Flying Company of Shanxi) has been regarded as the beginning of software copyright enforcement in China keeping pace with courts in certain developed countries. This case has been referred to the 'Altai' and the 'Lotus' cases (both U.S. cases). See Zheng note 120 supra at 52.415 Broad Mind Computer Company, a Hong Kong-based manufacturer, was the first foreign software copyright owner to file a claim of software copyright infringement in China. Broad Mind alleged that the Beijing-based Hai Wei Electronic Engineering Company sold infringing copies of the plaintiff's copyrighted computer software. Broad Mind has criticised the initial court proceedings and asserted that "the judges and court officials [have] limited knowledge of intellectual property matters and even less knowledge of the technical matters addressed in [its] case". Although Broad Mind was able to submit as evidence a computer terminal and software manufactured by Hai Wei, and to demonstrate that the 'bugs' in the Hai Wei terminal and its terminal "could only be identical", the court did not accept this evidence as establishing infringement by the defendant. The court ordered each party to submit its program's source code. Broad Mind did not believe the judges had "a clear understanding of how best to compare the parties' source codes". The Hong Kong company also stated that the judges appeared unable to render a decision and close the case. See Duvanel note 225 supra at 390.416 See Clarke note 403 supra at 58.

Page 1 84

tolerance for them".417 In the field of copyright, it was hard for them to deal with

the challenge of interpreting the rapidly growing body of this new legislation.418

Judges lacked the qualifications and experience necessary to tackle the rapidly

evolving issues in copyright matters. On the top of that, as a 'source code',

software could be sometimes seen as a written language, like a book. As an

'object code', software could also be considered as a string of binary numbers,

like a numeration. As a 'user interface', software could be regarded as a graphic

image, like a painting or movie, or background tones and music, like a sound

recording too. Finally, as a 'utilitarian tool', software could be also referred as an

invention.419 That was not at all surprising that judges in China were unable to

cope. However, all along the 1990s, their working conditions improved.

The People's courts were set up in accordance with the provisions of the

Constitution and the relevant laws.420 Internally, they were organised into

departments with responsibility for particular type of cases (the criminal chamber,

civil chamber, administrative chamber, and so on). Courts with special

jurisdictions existed, such as M a rit im e , M a rt ia l, Forestry, or In te lle c tu a l P ro p e rty

C o u rts *2' In recognition of the very special nature of intellectual property cases,

both highly specialised and technical, the Supreme People's Court set up an

In te lle c tu a l P ro p e rty R ights O ff ic e to strengthen guidance to and supervision of

trials of intellectual property cases422 all over China in October 1996.423

417 Joshua R. Floum, 'Counterfeiting in the People's Republic of China - The Perspective of the "Foreign" Intellectual Property Holder', 28(5) Journal of World Trade (1994), at 59.418 See Lubman note 410 supra at 1. The problems are increased by the fact that crucial policy is often being set by officials with little or no education or experience in the area they are regulating, such as intellectual property rights.419 See Castner note 346 supra at 39. Software can be simultaneously protected under a combination of patent, trademark, trade dress, and trade secrets laws.420 Ren Jianxin, 'China's Judicial System for the Protection of Intellectual Property - Speech at the Regional Forum on the Judiciary and the Intellectual Property System', 1 China Patents & Trademarks (1987), at 7-8. See articles 18, 19, 20, and 21 of the Civil Procedure Law. At the top of the structure is the Supreme People's Court (zuigao renmin fayuan). Below it, at the provincial level, are the 30 Higher-Level People's Courts (gaoji renmin fayuan), one for each Chinese province, autonomous region, and centrally administered city. Below them, are the 389 Intermediate-Level People's Courts (zhongji renmin fayuan), which are established in prefectures (diqu) and provincially administered cities. At the bottom (the county level), are the approximately 3,000 Basic-Level People's Courts (jiceng renmin fayuan). See Turner note 397 supra at 37-38.421 See Shaojie Chi note 400 supra at 30.422 Li Guoguang, 'China's Courts Strengthened Power on Judicial Protection of IPR - Speech at the

Page 1 85

In addition, China's government commissioned the establishment of S p ec ia l

In te l le c tu a l P ro p e r ty D iv is io n s in the People's Courts. The H ig h e r and

In te rm e d ia te P e o p le 's C ou rts successively set up special intellectual property trial

divisions, beginning with the B e ijin g M u n ic ip a l In te rm e d ia te P e o p le 's C o u rt, in

December 1990.423 424 Then, in August 1993, a S p e c ia l In te l le c tu a l P ro p e rty C o u rt

was first established in Beijing in the M u n ic ip a l H ig h P e o p le 's C o u rt.425 Since july

1994, the National People's Congress also authorised the establishment of over

twenty such courts426 in a number of other cities and provinces.427 * The Higher and

Intermediate People's Courts of these regional entities also set up a set of collegial

panels in the economic and civil trial divisions to deal with intellectual property

cases.

In order to make the work of China's judges easier; the forces of modernisation set

up the courts and panels to create unity in execution of the law. They were

granted the putative authority to issue orders, which cut across bureaucratic and

territorial boundaries.426 No other institution had this kind of formal authority in

China.429 They were to improve and strengthen the quality of the judicial system

in dealing with intellectual property issues.430 However, although the intellectual

property chambers received jurisdiction over disputes on patents, trademarks,

copyrights, and technological achievements and contracts, there was no

legislation promulgated to govern them. The procedures for bringing action were

Press Conference on Judicial Protection of Intellectual Property Rights', China Law, at 57.423 Lu Guoqiang, 'Protection of Intellectual Property in the People's Republic of China: Current Status and Trends', IP Asia (1997), Oct., at 47.424 Kristie M. Kachuriak, 'Chinese Copyright Piracy: Analysis of the Problem and Suggestions for Protection of U.S. Copyrights', 13 Dickson Journal of International Law (1995), at 609.425 Gregory S. Kolton, 'Copyright Law and the People's Courts in the People's Republic of China: A Review and Critique of China's Intellectual Property Courts', 17(1) University of Pennsylvania Journal of International Economic Law( 1996), at 436.426 Wu Shulin, 'The Conditions of the Judicial and Administrative protection of Copyright in China', 9(1) Duke Journal of Comparative and International Law (1998), at 243.427 In 1995, sixteen intellectual property divisions were already established in China, including three in Beijing, three in Shanghai, five in Guangdong, two in Hainan, and one each in Fujian, Xiamen and Dalian. See Schlesinger note 120 supra at 120-121.420 See Clarke note 403 supra at 32. An administrative agency can only take action against offenders located in the same area. Yiqiang Li, 'Evaluation of the Sino-American Intellectual Property Agreements: A Judicial Approach to Solving the Local Protectionism Problem', 10(2) Columbia Journal of Asian Law{ 1996), at 414.429 See Clarke note 406 supra at 4.

Page 1 86

the same as for the People's Courts/11 as intellectual property disputes were seen

as civil cases/32 On July 14, 1992, China's C iv il P ro ce d u re L a w was promulgated

to govern the conduct of the chambers' cases/33

As the modernising forces started manoeuvring, the terrain was full of traps. One

of the obstacles to the development of intellectual property rights was to bring a

case to trial. In the context of copyright, the first problem was collecting the

evidence. The party whose rights were being violated had to resort to raid430 431 432 433 434 the

premises of the infringing parties in order to seize the illegal material to have

concrete proof of piracy.435 Where the evidence was not available/36 private

Chinese investigators had to be hired to assist in collecting information about the

illegal operations and the people behind the infringing activities. In general,

information gathering could take a while.437 Case documents and hearings had to

430 See Kachuriak note 424 supra at 609.431 Henry J. H. Wheare and Lovell White Durrant, 'Intellectual Property: China's Unrewarded Efforts?', China Law & Practice (1996), June, at 41.432 See Lu Guoqiang note 423 supra at 45.433 The People's Courts followed the system of public trial, withdrawal of judicial personnel, collegiate bench, judges' committee, final judgement by trial of the second instance, and supervision over a trial.434 Undertaking investigative work in China can be a difficult task, as the details of the suspected companies are often hard to trace, and other shortcomings, such as poor telecommunications, inadequate infrastructure, and the sheer size of the country, further compounds the problems of the investigators. In order to organise a successful raid, the intellectual property owner, the investigative agency, the representative agents and lawyers, and the Chinese enforcement officials are needed to work together. Kenneth Ho, 'A Study into the Problem of Software Piracy in Hong Kong and China', at http://www.houston.rom.hk/hkgipd/piracy.html (page 12).435 In order to obtain evidence, the injured party had to investigate on its own and then convince the court and the police to conduct a raid on the pirate factory. The court ruled on whether or not the evidence obtained was sufficient to conduct a hearing. See Jenckes note 409 supra at 561. Nothing in the Software Regulations suggested that courts, in adjudicating a claim of copyright infringement, engaged in a qualitative analysis of the similarities between the copyrighted and the allegedly infringing computer programs. However, the definition of infringing acts in the Software Regulations suggested that courts engaged, at least, a quantitative analysis of such similarities. See Duvanel note 225 supra at 381.43b See Wheare et al note 431 supra at 40. Under article 64 of the Civil Procedure Law, the courts had to undertake collection of evidence that a litigating party was unable to obtain due to objective reasons, such as information withheld by the opposing party. See Li note 428 supra at 407.437 See Riley note 400 supra at 65. In October 1995, the first significant court decision (the Beijing Juren Computer Company Case) involving the infringement of software held by foreign computer programs makers (Microsoft Corporation, Lotus Development Corporation, Autodesk Incorporated, and Novell Incorporated), represented by BSA, was handed down in China. They alleged that the defendants, five Beijing-based computer companies, had committed ten separate acts of copyright infringement. In order to obtain evidence on which to base its suit, BSA, working with the Intellectual Property Rights Chamber, a judicial authority under the direction of the Beijing

Page 1 87

be written in Chinese.

Under the Civil Procedure Law (article 24),438 the usual rule has always been that

a court action had to be brought in the locality of the defendant. However, this

rule could vary.439 For example, in the case of a contract dispute, the case would

be heard in the place where the contract was performed (article 25 of the Civil

Procedure Law). However, courts had broad discretion to refuse cases.440 Often a

reason was that the diverse parties were still negotiating a settlement. A party who

did not wish to be sued could 'negotiate' for a long time. The way to persuade a

recalcitrant court to accept a case was to present it with the support of local

officials for hearing the case.441

Cases were heard in the first instance at an Intermediate People's Court at a

municipal or prefectural level. If the amount in dispute was high, the case was

first heard at a higher court at a provincial level.442 Cases relating to intellectual

property infringement were heard in an intellectual property division of the court

if there was such a division, or otherwise in the economic division of the court. If

the case was serious enough to warrant criminal sanctions,443 the criminal portion

was considered in the criminal division of the court.

In the middle of the battle opposing the forces of modernisation to the forces of

reaction, Su Chi, Chief of the Beijing Special Intellectual Property Court, claimed

for all the forces of modernisation that the Chinese system of justice treated

foreign and Chinese parties on the basis of fair judgement.444 All judgements, in

I n t e r m e d ia t e P e o p l e 's C o u r t , r a id e d t h e f iv e c o m p a n i e s a n d s e i z e d m o r e t h a n 3 0 0 p i e c e s o f

s o f t w a r e in m i d - 1 9 9 4 . It t o o k " m o n t h s o f p r e p a r a t io n a n d t h o u s a n d s o f d o l l a r s to m o u n t " th e ra id .

S e e D u v a n e l n o t e 225 sup ra at 3 9 0 - 3 9 1 .438 S e e W h e a r e et a l n o te 4 3 1 sup ra at 4 1 .

439 F o r e x a m p l e , in t h e c a s e 'N e w W o r l d E le c t r o n ic In f o r m a t io n In s t i t u t e v . T y s o n C o m p u t e r

L im it e d C o m p a n y ', t h e c a s e w a s a c c e p te d b y th e B e i j in g In t e r m e d ia t e P e o p l e 's C o u r t , a l t h o u g h

t h e d e f e n d a n t 's r e s i d e n c e a n d th e p la c e o f in f r in g e m e n t w e r e in T a i y u a n , S h a n x i P r o v in c e . T h e

c o u r t h e ld th a t t h e p la c e o f in f r in g e m e n t i n c lu d e d p la c e o f s a le a s w e l l a s p la c e o f m a n u f a c t u r e o f

t h e i n f r i n g in g a r t ic le s . T h e T y s o n B r a n c h h a d s o ld i n f r i n g in g p r o d u c t s in B e i j in g . S e e R i l e y n o te

4 0 0 supra a t 8 3 .

440 S e e L u b m a n n o t e 4 1 0 sup ra at 1 3 .

441 S e e R i l e y n o t e 4 0 0 sup ra at 7 8 .

442 A r t ic le s 3 6 , 3 7 , a n d 3 9 o f th e C i v i l P r o c e d u re L a w .443 S e e R i l e y n o t e 4 0 0 sup ra at 7 8 .

444 A r t ic le 8 o f C h i n a 's C i v i l L a w p r o v id e d th a t th e p r o v is io n s o f t h is l a w c o n c e r n in g c i t i z e n s w e re

a p p l i c a b l e t o f o r e ig n n a t io n a ls a n d S ta te le s s p e r s o n s w i t h i n t h e t e r r it o r y o f t h e P R C , u n l e s s w h e r e

t h e la w p r o v id e d o t h e rw is e . S e e F io u m n o te 41 7 supra a t 5 7 .

Page 1 8 8

copyright cases for instance, were made without subjectivity and according to a

strict interpretation of China's civil prosecution and copyright laws.445 When the

intellectual property courts were trying cases involving foreign parties, they

adhered to the principles of both national treatment and reciprocity, regarding

Chinese legislation446 and relevant international treaties to which the People's

Republic of China was a party.447

As parties argued cases at an open or closed hearing to the public,448 mediation

could be initiated at any point during the trials. Lobbying could occur in the

course of assisting the judges who investigated the facts of the case on their own.

Witness testimony was always presented either before or during the trial. As

courts decided cases,449 decision were first discussed with the court's president

who was in charge of the substantive, administrative, and the Party affairs at the

court.450 Every software copyright piracy case involved two questions. First,

whether the evidence supported the conclusion that the defendant copied the

plaintiff's program. Second, whether the copying was wrongful.451 In general,

445 S e e S i m p s o n n o t e 1 2 1 su p ra at 5 9 4 . A c c o r d i n g to t h e p r o v i s i o n s o f t h e C i v i l P r o c e d u r e L a w ,

w h e n h e a r i n g in t e l le c t u a l p r o p e r t y r ig h t s c a s e s , t h e P e o p l e 's C o u r t s e x e r c i s e j u d i c i a l p o w e r

i n d e p e n d e n t l y , f r e e f r o m in t e r f e r e n c e b y a n y a d m in i s t r a t i v e o r g a n s , p u b l i c o r g a n i s a t i o n s o r

in d iv id u a l s . S e e L u n o t e 4 2 3 s u p ra at 4 5 .

446 S u i t s b e t w e e n s in o - f o r e ig n jo in t v e n t u r e p a r tn e r s w e r e h a n d le d u n d e r P a rt I o f th e C h i n e s e C i v i l

P r o c e d u r e L a w (e f fe c t iv e a s o f A p r i l 9 , 1 9 9 1 ) , w h i l e o t h e r f o r e ig n - r e la t e d c a s e s w e r e h a n d le d

u n d e r P a rt IV . C a s e s w e re , b u t n o t n e c e s s a r i ly , s t a y e d in C h i n a if t h e y w e r e c o n c u r r e n t l y b e in g

h e a r d in a f o r e i g n c o u r t ( u n d e r a r t ic le 3 0 6 o f t h e O p i n i o n o f t h e S u p r e m e P e o p l e 's C o u r t o n

Q u e s t i o n s C o n c e r n i n g th e Im p le m e n t a t io n o f th e C i v i l P r o c e d u r e L a w ) . S e e R i l e y n o t e 4 0 0 sup ra at 7 8 .

447 S e e K a c h u r i a k n o t e 4 2 4 su p ra at 6 1 0 .

448 T h e P e o p l e 's C o u r t s t r ie d c a s e s f o l l o w in g th e p r i n c ip l e o f 'n o s u it n o t r ia l ' (a c a s e w a s b r o u g h t

b y a p a r t y w i t h s t a n d in g to su e ).

449 P e o p l e 's C o u r t s r e g a r d e d t h e m o r a l a n d e c o n o m i c r ig h t s d i s t in c t io n a s a m a t te r o f p r o c e d u r e .

T h e y d e t e r m in e d w h e t h e r m o r a l r ig h t s w e r e in f r in g e d b e fo r e th e d e t e r m in a t io n o f th e in f r in g e m e n t

o f e c o n o m i c r ig h t s . T h e i s s u e o f r e m e d ie s d e p e n d e d o n w h e t h e r t h e s e r ig h t s w e r e in f r in g e d . T h e

r e m e d ie s f o r e c o n o m i c r ig h t s in f r in g e m e n t s in C h i n a w e r e s im i l a r t o t h o s e o f o t h e r c i v i l la w

c o u n t r i e s ( c o m p e n s a t i o n fo r e c o n o m i c lo s s e s o r i l l e g a l p ro f it s ) . H o w e v e r , th e n o t i o n o f m o r a l

r ig h t s a t t ra c te d a r a n g e o f r e m e d ie s p e c u l ia r to C h in a , s u c h a s th e u s e o f t h e 'a p o l o g y '. S e e S o n g

n o t e 1 2 0 s u p ra a t 4 4 .

450 T h e in t e r n a l o r g a n i s a t io n o f C h i n a 's c o u r t s re f le c te d t h e ir p r io r it ie s . E a c h c o u r t h a d a n u m b e r o f

v i c e - p r e s i d e n t s w h o s u p e r v i s e d c a s e s ( t h e y t o o k c h a r g e o f c i v i l a d j u d ic a t io n ) , a n d a p p r o v e d

im p o r t a n t c a s e s in s t e a d o f th e p r e s id e n t w h o t o o k c h a r g e s o f c r im in a l a d j u d ic a t io n . D i v i s i o n c h ie f s

a p p r o v e d o r d in a r y c a s e s . T h e p re s id e n t , v ic e p re s id e n t s , d i v i s i o n c h ie f s , a n d d e p u t y d i v i s i o n c h ie f s

a l s o sa t o n t h e t h re e j u d g e p a n e ls . S e e R i le y n o te 4 0 0 s u p ra at 7 9 - 8 0 .

451 S e e Z i m m e r m a n n o t e 3 8 1 sup ra at 5 1 1 . T h e d i f f i c u l t p o i n t in d e t e r m in i n g c o p y r i g h t

in f r in g e m e n t is t h e d e t e r m in a t io n o f 'o r i g i n a l i t y '. W h e n a n a c c u s e d w o r k h a s o r ig in a l i t y , e v e n if it

Page 1 8 9

much was decided prior to the hearing of the parties or the announcement of the

decision. After deliberation, the judges announced their judgement.452 It was

confirmed in writing.453 A judgement was rarely published,454 although in high

profile cases the brief details of the case455 could be reported to the press.456

If the copying was wrongful, the court could serve admonitions, order the pirates

to sign a pledge of repentance457and confiscate the property used to carry out the

illegal acts and the illegal income obtained therefrom.458 The court could also

i s t h e s a m e a s o r s im i l a r to a n o t h e r 's w o r k , it is n o t a n in f r in g e m e n t . A s f o r t h e o r i g i n a l i t y o f a

w o r k , th e c o u r t s c o n s id e r e d w h e t h e r th e a u t h o r w a s i n v o l v e d in in t e l le c t u a l l a b o u r a n d w h e t h e r

t h e l a b o u r w a s c r e a t iv e . In th e U n i t e d S ta te s , th e s t a n d a r d o f 's u b s t a n t ia ! s im i l a r i t y ' w a s a p p l ie d in

c o u r t s ' p r o c e d u r e s a s th e c o p y r ig h t in f r in g e m e n t s t a n d a rd . W h e r e th e p o r t io n o f th e s o f tw a re b e in g

u s e d c o n s t i t u t e d t h e n e c e s s a r y pa rt, m a jo r part, o r s u b s t a n t ia l p a r t o f t h e a c c u s e d s o f tw a re , a n d

o r i g i n a l i t y w a s n o t p r o v e d , in f r in g e m e n t w a s e s t a b l i s h e d . S e e L u n o t e 4 2 3 su p ra a t 4 8 . T h e

c o n c e p t o f s u b s t a n t ia l s im i la r i t y d id n o t a p p e a r in th e C o p y r i g h t L a w o r t h e S o f t w a r e R e g u la t io n s .

S e e D u v a n e l n o t e 2 2 5 sup ra a t 3 8 1 . H o w e v e r , in o n e c a s e , d e c id e d p r io r to t h e e n a c t m e n t o f th e

C o p y r i g h t L a w , a C h i n e s e c o u r t h e ld th a t th e q u a n t i t y r e q u i r e d to c o n s t i t u t e 's u b s t a n t ia l s im i la r i t y '

o f a w o r k w a s 1 0 % o f th e w h o l e w o r k . In a d d it io n to q u a n t it a t iv e s u b s t a n t ia l s im i la r i t y , t h e r e w a s

a l s o q u a l i t a t iv e s im i la r i t y o r t a k in g . T h i s c o u ld b e d e f in e d w it h p r e c i s i o n a n d v a r ie d f r o m c a s e to

c a s e . In o t h e r w o r d s , it w a s i n e x t r i c a b ly b o u n d u p w it h th e s e n s e o f f a i r n e s s o f th e j u d g e s . S e e

Z h e n g et a I n o t e 6 9 sup ra at 1 4 9 .

452 O n e o r t h r e e j u d g e s h a n d le d c a s e s in a C h in e s e c o u r t . In im p o r t a n t c a s e s , in o r t h o s e i n c l u d in g

c a s e s i n v o l v i n g f o r e ig n e r s , t h re e ju d g e s h a n d le d t h e c a s e . T h e P e o p l e 's C o n g r e s s c h o s e C o u r t

p r e s id e n t s a t t h e s a m e le v e l, b u t t h e c o r r e s p o n d in g P e o p le 's C o n g r e s s S t a n d in g C o m m it t e e c h o s e

v i c e - p r e s id e n t s a n d o t h e r ju d g e s . T h e e x c e p t io n to t h i s r u le w a s th e In t e r m e d ia t e L e v e l P e o p l e 's

C o u r t s , w h e r e t h e p r o v i n c i a l l e v e l P e o p le 's C o n g r e s s S t a n d i n g C o m m i t t e e s u s u a l l y c h o s e a il

j u d g e s , i n c l u d in g t h e c o u r t p re s id e n t . S ee C la r k e n o te 4 0 3 su p ra a t 1 9 - 2 0 .453 C o n f u c i a n i s m a n d th e c o n c e p t o f ' y i n ' a n d 'y a n g ' s t r o n g l y i n f lu e n c e d j u d g e s a n d m a g is t r a t e s in

t h e t r a d it io n a l C h i n e s e le g a l s y s te m . I t w a s v e r y im p o r t a n t fo r t h e m to u s e c a u t io n w h e n r e n d e r in g

j u d g e m e n t s in o r d e r to p r e s e r v e s o c ia l o r d e r a n d p r e v e n t d i s c o r d w it h t h e n a t u ra l o r c o s m i c o rd e r .

T h i s c a u t i o n c r e a t e d a p la c e fo r th e a c c e p ta n c e o f 'd o u b t ' in t h e C h i n e s e le g a l s y s t e m . If a c a s e

w a s d o u b t f u l b e c a u s e e v id e n c e w a s l a c k in g ( o r b e c a u s e th e c a s e f a i l e d to fit u n d e r o n e o f t h e

f o r m a l c o d e p r o v i s i o n s ) , j u d g e s w e r e h e s i t a n t to p u n i s h t h e p o s s i b l y in n o c e n t . In th e c o s m i c

s c h e m e , it w a s b e t te r to e r r in le t t in g t h e g u i l t y o ff. w h i c h le ft o n e c r im e u n p u n i s h e d , t h a n

c o n d e m n t h e in n o c e n t a n d t h u s c r e a te a s e c o n d c r im e a g a in s t n a tu re . S e e L a z a r n o te 1 2 s u p ra at

1202.454 T h e l o n g s t a n d i n g p o l i c y in C h i n a w a s t h a t f o r e ig n e r s m ig h t b e g i v e n a g o o d im p r e s s i o n o f

C h in a . T h u s , d e t a i l s o f C h i n e s e e n f o r c e m e n t h a v e n o t a lw a y s b e e n m a d e a v a i la b l e f o r d i s c l o s u r e

t o f o r e i g n e r s . H o w e v e r , l e g i s l a t i o n m o v e d f o r w a r d s i n c e f o r e i g n e r s o w n e d m a n y k i n d s o f

in t e l le c t u a l p r o p e r t y r ig h t s in C h in a . F o re ig n e r s ip s o f a c t o h a d a n in te re s t in a ll o f th e C h i n e s e

m e t h o d s a v a i l a b l e f o r th e e n f o r c e m e n t o f t h e i r r ig h ts. S ee R i le y n o t e 4 0 0 sup ra at 9 1 .

455 T h e d e a t h p e n a l t y h a s b e e n im p o s e d in s o m e e x t r e m e c a s e s . S e e W h e a r e et a l n o te 4 3 1 supra at 4 1 .

456 S e e R i l e y n o t e 4 0 0 sup ra at 7 8 - 7 9 .

457 T h e P e o p l e 's C o u r t s o f te n o r d e r e d a p o lo g ie s . T h e y w e r e p u b l i s h e d in n e w s p a p e r s w i t h a w id e

e n o u g h d i s t r ib u t io n to e l im in a t e th e a d v e r s e e f fe c t o f t h e in f r in g e m e n t . W h e r e a n a p o l o g y w a s n o t

c a r r ie d o u t v o lu n t a r i l y , th e c o u r t u s u a l l y d ra f te d a n d p u b l i s h e d it a n d t h e n c h a r g e d th e e x p e n s e s to

t h e w r o n g d o e r . S e e S o n g n o te 1 2 0 supra a t 4 4 .458 Fe i Z o n g y i , 'P r o t e c t io n fo r I n t e l le c t u a l P r o p e r t y b y th e P e o p l e 's C o u r t s ', 3 0 ( 3 ) C h in a P aten ts & T ra d e m a rks ( 1 9 9 2 ) , at 2 1 .

Page 1 9 0

impose fines or detentions as stipulated by law.459 In some software copyright

piracy cases, the courts have ordered the destruction of the infringing copies of

the copyrighted works. However, such orders were often destined for failure for

lack of legal basis460 as there were no provisions for a measure of destruction of

infringing products under China's legislation.461

The remedies for infringement of copyrighted software could be effected in two

different ways. The first way was by civil remedies. The second one was by

criminal sanctions.462 The remedies for infringements under the Copyright Law

(articles 45 and 46) have been derived from the General Principles of Civil Law

(articles 118 and 1 20).463 As activities, such as plagiarism, mutilation, and

counterfeiting infringed the copyright of authors, the latter were given the right to

require the cessation of the infringing acts,464 the elimination of the effects of the

acts,465 and compensation (article 1 1 8).466 However, nothing has been provided

regarding the question of statutory amount of damages.

Compensation for loss was regarded as a fundamental remedy for copyright

459 S e e X u e H o n g et a l n o te 1 8 7 s u p ra at 2 3 3 .

460 D e s t r u c t i o n o f p i r a t e d g o o d s w a s p r o h ib i t e d u n d e r C h i n e s e la w . In a d d it io n , a d j u d i c a t i n g

b o d i e s w e r e n o t o b l i g e d to d e s t r o y i n f r in g in g g o o d s a n d re la te d m a c h in e s . T h e y w e r e g e n e r a l l y

r e lu c t a n t t o r e n d e r s u c h s e v e re r e m e d ie s . T h e y w e r e r e lu c ta n t t o d e s t r o y a n y g o o d s w it h e c o n o m ic

v a lu e , r e c o g n i s i n g t h e p u b l i c 's t r a d it io n o f f r u g a l i t y a n d g e n e r a l v i e w o f t h e u t i l i t a r ia n v a lu e o f

e v e n p ir a t e d p r o d u c t s . P r io r to 1 9 9 5 , d e s t r u c t io n o f g o o d s a n d m a c h in e s w a s o n l y a v a i l a b l e in

t r a d e m a r k i n f r i n g e m e n t c a s e s . T h e 1 9 9 5 M O U e x p a n d e d t h e s c o p e o f r e m e d ie s t o c o p y r i g h t

c a s e s . S e e L i n o t e 4 2 8 sup ra at 4 0 9 - 4 1 0 .

461 In a c c o r d a n c e to t h e T R I P s A g r e e m e n t , th e j u d ic ia l a u t h o r i t ie s r e c e iv e d t h e a u t h o r i t y to o r d e r

t h e g o o d s t h e y h a v e f o u n d to b e d e s t r o y e d , w i t h o u t c o m p e n s a t i o n o f a n y so rt . S e e X u e H o n g et al

n o t e 1 8 7 supra a t 2 3 3 .

462 N e i t h e r t h e C o p y r i g h t L a w n o r t h e S o f t w a r e R e g u la t io n s , a s e n a c t e d , a u t h o r i s e d t h e im p o s i t io n

o f c r im in a l p e n a l t ie s fo r c o p y r ig h t in f r in g e m e n t . S e e D u v a n e l n o te 2 2 5 s u p ra a t 3 8 5 .

463 U n d e r a r t ic le 1 1 8 o f th e C i v i l C o d e , a c o p y r ig h t in f r in g e m e n t w a s c l a s s i f ie d a s tort. S e e Li n o te

4 2 8 supra a t 4 1 5 .

464 In m o s t s o f t w a r e in f r in g e m e n t a c t io n s , c e s s a t io n o f in f r in g e m e n t w a s t h e m o s t u r g e n t r e q u e s t o f

t h e c o p y r i g h t o w n e r . U n d e r t h e C o p y r i g h t L a w a n d t h e S o f t w a r e R e g u la t i o n s , c e s s a t i o n o f

in f r in g e m e n t w a s o n e o f th e m e t h o d s o f im p o s in g l ia b i l i t y fo r c o p y r i g h t in f r in g e m e n t , s o t h e c o u r t

o n l y e n j o in e d a d e f e n d a n t to c e a s e th e in f r in g in g a c t iv i t ie s a fte r th e d e f e n d a n t 's l ia b i l i t y w a s f o u n d

a n d t h e j u d g e m e n t w a s p r o n o u n c e d . S e e X u e H o n g et a l n o te 1 8 7 s u p ra a t 2 2 8 .

465 Ibid at 2 3 0 . E l im in a t io n o f ill e f fe c ts a n d e x t e n s io n o f a n a p o l o g y w e r e a l s o t w o m e t h o d s o f

r e m e d y f o r c o p y r i g h t in f r in g e m e n t . E l im in a t in g th e ill e f fe c t s c a u s e d b y t h e in f r in g e m e n t w a s a n

e f f e c t iv e m e t h o d to m a k e u p th e c o p y r i g h t o w n e r 's lo s s o f b u s i n e s s g o o d w i l l . F o r s o m e la rg e

s o f t w a r e e n t e r p r i s e s , a p u b l i c a p o l o g y in n e w s p a p e r s o r p e r i o d i c a l s w a s a m o r e p a in f u l

p u n i s h m e n t t h a n p a y i n g c o m p e n s a t io n fo r lo s s .

466 S e e S h e n n o t e 1 3 7 supra at 7 9 .

Page 191

infringement. However, in China, it has always been a problem for the courts.467

Neither the Copyright Law nor the Software Regulations provided rules for

deciding the level of damages.468 Courts followed the general principle of civil

compensation then. The Supreme Court469 provided for three methods to calculate

damage (plaintiff's loss, fee of licensing contract as a reference, and defendant's

profit). As the damage was calculated, courts applied the principle of sufficient

compensation and punitive fine. Software copyright holders were compensated

for whatever amount they lost due to the infringement.470 Damages decided in

accordance with such principle could be, however, extremely unreasonable.471

Because actual losses were difficult to calculate,472 the criterion for deciding them

was particularly vague. In a case where the loss of the copyright owner was

difficult to calculate,473 courts qualified the damages in accordance with the

467 In a la te Q i n g d y n a s t y c a s e , t h e d e fe n d a n t , a m e m b e r o f th e p la in t i f f 's c la n , e n c r o a c h e d u p o n

t h e p la i n t i f f 's c e m e t e r y a n d t o re d o w n h i s w a l l . T h e m a g i s t r a t e f o u n d t h e d e f e n d a n t 's c o n d u c t

m a l i c i o u s a n d u t t e r ly d e te s ta b le . N e v e r t h e le s s , in v ie w o f th e fa c t th a t th e d e f e n d a n t w a s p o o r , th e

m a g is t r a t e o r d e r e d t h e p la in t i f f to d o n a t e 1 6 Y u a n to t h e d e f e n d a n t w it h th e p u r p o s e o f p r e s e r v in g

h a r m o n y w i t h i n t h e c la n . In a re c e n t t r a d e m a r k in f r in g e m e n t c a s e , a C h i n e s e c o m p a n y p r o d u c e d

r a z o r s t h a t im it a t e d t h e p a c k a g i n g o f r a z o r s m a n u f a c t u r e d b y G i l l e t t e 's j o in t v e n t u r e . T h e c o u r t

im p o s e d f in e s o n th e C h in e s e o f f e n d e r t o t a l l in g U S $ 6 , 8 0 0 . W h i l e a c k n o w l e d g i n g th a t G i l le t t e lo s t

R M B 1 m i l l i o n in s a le s r e v e n u e a n d th e p ir a t e s e n j o y e d p r o f i t s o f R M B 1 2 0 , 0 0 0 , t h e c o u r t

d e f e n d e d it s d e c i s i o n o n th e r a t io n a le th a t RMB 1 m i l l i o n w a s a s m a l l s u m o f m o n e y to a f o r e ig n

c o m p a n y . H o w e v e r , it w a s a n a m o u n t , w h i c h w o u l d f o r c e a n e n t e r p r is e in t o b a n k r u p t c y a n d p u t

p e o p le o u t o f w o r k in C h in a . S e e L i n o t e 4 2 8 sup ra at 3 9 7 .

468 T h e Im p le m e n t in g R e g u la t io n s p r o v id e d f in e s u p to R M B 1 0 0 , 0 0 0 o r t w o t o f iv e t im e s th e 'to ta l

f ix e d p r i c e ' ( z o n g d i n g jia ) fo r m o r e s e r io u s in f r in g e m e n t s .

469 S e e L i n o t e 4 2 2 s u p ra at 5 8 .

470 I b id471 S e e X u e H o n g e t a I n o te 1 8 7 sup ra at 2 3 1 .

472 In a c a s e i n v o l v i n g a d i s p u t e b e t w e e n t w o B e i j i n g - b a s e d c o m p u t e r c o m p a n i e s in w h i c h th e

d e f e n d a n t w a s a l l e g e d to h a v e d is t r ib u t e d the p la in t i f f 's c o p y r i g h t s o f t w a r e w i t h o u t its p e r m is s io n ,

t h e c o u r t f o u n d th a t th e d e f e n d a n t h a d in f r in g e d t h e la w . T h e c o u r t im p o s e d b o t h c i v i l a n d

a d m in i s t r a t i v e s a n c t io n s to th e o f f e n d e r . A l t h o u g h th e c o u r t a w a r d e d th e p la in t i f f a p p r o x im a t e l y

U S $ 7 , 5 0 0 , a n a m o u n t in e x c e s s o f th e in f r in g in g s a le s t h e p la in t i f f c o u l d e s t a b l i s h , th e a w a r d m a y

h a v e b e e n t o o s m a l l to c o m p e n s a t e th e p la in t i f f f o r its lo s s e s a n d l i t ig a t io n c o s t s o r p r o v id e a n

e f fe c t iv e d e t e r re n t to c o p y r ig h t in f r in g e m e n t . S e e D u v a n e l n o te 2 2 5 s u p ra at 3 8 7 - 3 8 8 .

473 S o m e t im e s , t h e c o u r t s a w a r d e d m o r e s u b s t a n t ia l d a m a g e s to o w n e r s o f in f r in g e d c o p y r i g h t e d

c o m p u t e r p r o g r a m s . In t h e c a s e 'D o n g F a n g R e s e a r c h In s t i t u t e v . H e n g K a i E l e c t r o n i c s

D e v e l o p m e n t C o m p a n y ', t h e c o u r t c o n c l u d e d th a t t h e d e f e n d a n t H e n g K a i h a d c o p i e d th e

p la i n t i f f 's s o f t w a r e a n d d i s t r ib u t e d it a s p a rt o f its o w n c o m p u t e r c h i p s y s t e m . A l t h o u g h th e

d e f e n d a n t h a d o n l y s o l d 2 3 s y s t e m s c o n t a in in g c o p i e s o f th e p la in t i f f 's p r o g r a m , a n d th e re ta il

p r i c e o f t h e p la i n t i f f 's p r o g r a m w a s a p p r o x im a t e l y U S $ 7 2 , t h e d e f e n d a n t w a s o r d e r e d to p a y th e

p la in t i f f a b o u t U S $ 2 3 , 5 0 0 fo r its lo s s e s , a s w e l l a s a n a d m in i s t r a t i v e f in e , a n d c o u r t s c o s t s . In th e

c a s e 'J in c h e n C o m p a n y v. Z h i y e C o m p a n y ', a l t h o u g h th e d e f e n d a n t w a s f o u n d to h a v e m a d e a n d

d i s t r ib u t e d a s i n g l e c o p y o f th e p la in t i f f 's v i r u s s c r e e n i n g p r o g r a m , h e w a s o r d e r e d to p a y th e

p la in t if f a p p r o x im a t e l y U S $ 1 8 , 0 0 0 . S e e D u v a n e l n o te 2 2 5 su p ra at 3 8 8 - 3 8 9 .

Page 1 9 2

illegal gain of the offender.474

When the infringement of copyright was so serious that it jeopardised China's

interests in social or economic order and so constituted a crime; the courts could

investigate and affix criminal liability according to the statutes. "Criminal

sanctions must be imposed on those who commit intellectual property rights

offences to safeguard the integrity of law", one of the commander-in-chiefs of the

forces of modernisation, Justice Minister XiaoYang, said.475

Under article 217 of China's 1 9 9 7 C r im in a l Law , the acts of reproducing and

distributing computer software without the authorisation of copyright owners were

subject to criminal penalties.470 The question of what size of infringement

constituted a crime was addressed in S e v e ra l Q u e s t io n s c o n c e rn in g the

In te rp re ta t io n o f th e D e c is io n o n the A p p l ic a t io n o f th e N a t io n a l P e o p le 's

C ongress S ta n d in g C o m m itte e on P e na lties fo r the C r im e o f In fr in g e m e n t u p o n

C o p y rig h ts (1994). Battle after battle, the modernising forces disclosed where they

stood in the question of copyright breach in China. Pirating software became a

crime highly sentenced.

When the illegal gains were relatively large or there were other serious

circumstances, the pirates could also be sentenced to up to three years of fixed-

term imprisonment or penal detention, or a penal fine could be imposed

exclusively or concurrently. When the illegal gains were very large, or there were

other very serious circumstances,477 the pirates could be sentenced to three to

474 S e e X u e H o n g e t a i n o te 1 8 7 sup ra at 2 3 1 .

475 See Floum note 417 supra at 55.476 In J u ly 29, 1999, t h e D i a n n a o R i b a o ( C o m p u t e r D a i l y ) r e p o r t e d C h i n a 's f irs t s o f t w a r e p i r a c y

c a s e . T h e H a n g z h o u In t e r m e d ia t e P e o p le 's C o u r t s e n t e n c e d W a n g A n t a o to f o u r y e a r s in p r i s o n .

T h e c o u r t a l s o o r d e r e d h im to p a y R M B 2 0 , 0 0 0 in f in e s a n d R M B 2 8 0 , 0 0 0 in c o m p e n s a t i o n to th e

s o f t w a re d e v e l o p e r . H e h a s b e e n c o n v ic t e d fo r h a v i n g s o ld a 's l i g h t l y ' m o d i f ie d s o f t w a re v e r s io n

w i t h o u t p e r m i s s i o n o f th e s o f t w a r e d e v e l o p e r a n d r e a p e d R M B 2 0 0 , 0 0 0 in i l l e g a l p ro f it s . S e e

h t t p : / / w w w . c h in a o n l in e . c o m / in d u s t . . ./ se cu re / 1 9 9 9 / ju ly/ it c 9 P 7 2 9 0 9 . a s p

477 S e e X u e H o n g et a l n o te 1 8 7 su p ra at 2 3 6 - 2 3 7 . T h e t e rm 'o t h e r s e r i o u s c i r c u m s t a n c e s ' re fe rre d

t o th e c a s e w h e r e a c i v i l l i a b i l i t y o r a n a d m in i s t r a t i v e p e n a l t y f o r c o p y r i g h t i n f r in g e m e n t w a s

im p o s e d to t h e o f f e n d e r s m o r e t h a n tw ic e . It a l s o r e fe r re d to th e a m o u n t i n v o l v e d in th e i l le g a l

b u s i n e s s o f a n i n d i v i d u a l th a t w a s u p to R M B 1 0 0 , 0 0 0 o r m o r e , a n d to a n a m o u n t o f R M B

5 0 0 , 0 0 0 o r m o r e in t h e c a s e o f a w o r k u n it. It f in a l l y re fe r re d to th e i n f r i n g in g a c t iv i t ie s c a u s i n g

o t h e r s e r i o u s c o n s e q u e n c e s o r h a v i n g o t h e r s e r io u s c i r c u m s t a n c e s . T h e t e rm 'o t h e r v e r y s e r io u s

c i r c u m s t a n c e s ' r e fe r r e d to th e c a s e w h e r e th e o f f e n d e r w h o c o m m it t e d t h e c r im e o f c o p y r i g h t

in f r i n g e m e n t w a s l i a b le f o r a c r im in a l p e n a lt y . T h e t e rm a l s o r e f e r r e d to a n a m o u n t o f R M B

1 , 0 0 0 , 0 0 0 o r m o r e i n v o l v e d in t h e i l le g a l b u s in e s s o f a n in d iv id u a l , o r R M B 5 , 0 0 0 , 0 0 0 o r m o r e in

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seven years of fixed-term imprisonment, and a penal fine could be imposed

concurrently. In accordance with article 218 of the Criminal Law, an offender

who knowingly sold copies (article 21 7 of the Criminal Law), in case of enormous

illegal gains, could be sentenced to up to three years of imprisonment.* 478 On the

other hand, the same offender could be sentenced to detention or have a penal

fine imposed exclusively or concurrently.479 Regarding a seller who sold copies

without reproducing them, she or he could be only sentenced to criminal

penalties if the illegal gains were enormous. The liability was, however, less

severe than that of an offender who reproduced, distributed the infringing copies.

Under article 220 of the Criminal Law, penal fines could punish a work unit,

which had committed any crime of copyright breach. The administrative staff and

other staff who were directly responsible for the crime against copyright could be

punished in accordance to the Copyright Law.480

When a judgement was issued and a party did not accept it,481 the party had a

limited time within which to appeal. The appeal court could either accept or

reject the case. Upon an acceptance, it could simply review the documents or

hold a new hearing. The order of the appeal court was usually final, following

European or Japanese practices,48' but there was a right to petition the next higher

court to reconsider the judgement. If no further appeal was available, if the losing

party was still refusing to accept or abide by the judgement of the court,483 the

th e c a s e o f a w o r k u n it . It f in a l ly re fe r re d to the in f r in g in g a c t iv i t ie s c a u s i n g o t h e r e x t r e m e ly s e r io u s

c o n s e q u e n c e s o r h a v i n g o t h e r e x t r e m e ly s e r io u s c i r c u m s t a n c e s .

478 I b id a t 2 3 6 - 2 3 7 . In a c c o r d a n c e w it h th e c o n s t r u c t io n m a d e b y t h e C h i n e s e S u p r e m e C o u r t , th e

r e la t i v e ly l a r g e a m o u n t o f u n la w f u l g a in s re fe r re d to R M B 2 0 , 0 0 0 o r m o r e o f i l le g a l g a i n s o f a n

i n d i v id u a l , o r R M B 1 0 0 , 0 0 0 o r m o r e o f i l le g a l g a i n s o f a w o r k u n it . V e r y la r g e a m o u n t o f i l le g a l

g a i n s r e fe r r e d to R M B 1 0 0 , 0 0 0 o r m o r e in i l le g a l g a in s f o r a n i n d i v id u a l o r R M B 5 0 0 , 0 0 0 o r m o r e

in i l l e g a l g a i n s f o r a w o r k u n it . E n o r m o u s i l le g a l g a i n s re fe rre d to R M B 1 0 0 , 0 0 0 o r m o r e o f i l le g a l

g a i n s o f a n i n d i v i d u a l , o r R M B 5 0 0 , 0 0 0 o r m o r e o f i l le g a l g a i n s o f a w o r k u n it . H o w e v e r , th e

c a l c u la t io n o f t h e v a lu e o f in f r in g in g p r o d u c t s w a s d if f ic u lt .

479 Ib id a t 2 3 5 .

480 T h i s is in a c c o r d a n c e w it h a r t ic le 1 3 0 o f th e G e n e r a l P r in c ip le s o f C i v i l L a w , w h i c h p r o v id e d

th a t if p e r s o n s j o in t l y in f r in g e d u p o n th e r ig h t s o f o th e r s , t h e y b o r e j o in t r e s p o n s ib i l i t y .

481 In C h i n a , t h e r e w e r e v e r y f e w c o p y r i g h t c a s e s w h e r e b o t h th e p la in t i f f a n d th e d e f e n d a n t w e r e

s a t is f ie d b y t h e f irs t i n s t a n c e c o u r t d e c i s io n . S e e Z h e n g n o te 1 2 0 sup ra a t 2 0 .

482 S e e C l a r k e n o t e 4 0 3 sup ra at 2 0 .

483 M o n e t a r y a w a r d s w e r e d if f ic u lt to o b t a in . S e e L i n o te 4 2 8 sup ra a t 4 0 9 . E x e c u t io n a g a in s t la rg e

S t a t e - o w n e d e n t e r p r is e s w a s g e n e r a l l y n o t a p r o b le m . T h e y w e r e le s s l i k e l y t h a n s m a l l e n t e rp r is e s

t o b e s h o r t o f r e a d y c a s h . H o w e v e r , w h e n th e y d id n o t h a v e th e m o n e y o r fo r s o m e o t h e r r e a s o n

Page 1 9 4

winning party could always apply to the courts for enforcement.484

Under the assaults of the troops of the modernising forces, the judiciary fortress

began to fall as the Special Intellectual Property Courts pushed to reform the

Chinese traditional adjudication method within the framework of China's

Procedure Law. The Intellectual Property Divisions strengthened the collective

responsibility of tribunals that heard cases. In the past, only the chief judge

handled cases while the other judges followed his or her opinion. In assailing the

judiciary fortress from all sides, the Divisions also changed the Chinese traditional

system of questions by judges and answers by the parties during trial into an

adversarial system in which the parties started asking and answering each other's

own questions. Additional changes included the announcement of trial dates to

the public (particularly the media) to increase the trial's disclosure and

adjudication process, and the encouragement of parties to seek the most

experienced intellectual property lawyers to represent them in the courts of

j ustice.485

At the end of the 1990s, the fact that the defence of the forces of reaction

commenced to weaken on the judiciary ground gave enough self-confidence to

the modernising forces to tackle the citadel of the legal profession, which was also

held by the forces of reaction.

On the growing corps of litigation tricksters

In the 1990s, "[i]f the courts [werej underdeveloped, the bar seem[ed] even more

so".486 Compared to the situation encountered on the judiciary ground, the task of

the forces of modernisation was then even wider. On the field of the legal

d id n o t w i s h to p a y , e x e c u t io n c o u ld b e v e r y d if f ic u lt . A m o n g S t a t e d - o w n e d e n te rp r is e s , t h o s e ru n

b y t h e m i l i t a r y w e r e p a r t ic u la r l y re s is ta n t to e x e c u t io n . S e e C la r k e n o t e 4 0 6 su p ra at 7 4 - 7 5 .

484 S e e R i l e y n o t e 4 0 0 sup ra at 8 0 . U n d e r a r t ic le 1 0 2 o f th e C o d e o f C i v i l P r o c e d u r e , f in e s o r

a d m in i s t r a t i v e d e t e n t io n w e r e o r d e r e d w h e r e a p a r t y re fu s e d to o b e y a c o u r t o rd e r . S e e B e r k m a n

n o t e 4 0 1 s u p ra a t 2 5 . L o c a l p o l i c e c o u ld b e se n t to k id n a p o p p o s i n g p a r t ie s a n d h o ld t h e m

h o s t a g e , w i t h t h e c o - o p e r a t io n o f lo c a l c o u rt s , u n t il t h e y p a id th e a m o u n t d e m a n d e d b y th e lo c a l

p la in t iff . S e e T u r n e r n o te 3 9 7 supra at 4 3 .

405 S e e Y u n o t e 2 5 1 sup ra at 1 4 8 .

486 S e e L u b m a n n o te 4 1 0 sup ra at 6.

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profession, as Alford noted, Chinese lawyers, as Chinese judges, were also

confronted to a new range of challenges, for which neither the Chinese tradition

nor twentieth century China had prepared them.487 The forces of reaction had the

advantage of being on a ground that they were particularly familiar with. The

orthodox forces have held the citadel of the legal profession for a very long period

of time.

In 1820, the emperor of China issued an edict deploring the trend488 toward

"unbridled litigation" and pinning the blame for it on a growing corps of

"litigation tricksters". As he wrote, these "rascally fellows entrap people for the

sake of profit. [...] At their bidding plaintiffs are induced to bring up stupid

nonsense in their accusations". He concluded that those "who made a profession

of preparing legal petitions for others" must be "severely" punished.489 This

Chinese traditional official disrespect for the law490 and its practitioners did not

disappear with the imperial era. It reached a head in the mid-1950s and became

an enticing slogan for the forces of reaction.

On the other hand, commencing in the late Qing Dynasty and running through

the tenure of the Republic of China, Chinese people began to study law, initially

abroad and then in China itself in institutions that had experienced foreign

influence. The modernising forces encouraged them. However, due to a powerful

resistance, lawyers in China were limited in influence and never numbered more

than a few thousand. They lacked professional identity.491 After 1949, China

487 W i l l i a m P. A l f o r d , T a s s e l l e d L o a fe r s fo r B a r e fo o t L a w y e r s : T r a n s f o r m a t io n a n d T e n s i o n in th e

W o r l d o f C h i n e s e L e g a l W o r k e r s ', 1 4 1 The C h in a Q u a r te r ly {*\ 9 9 5 ) , at 3 6 .

488 I b id at 2 6 . Im p e r ia l C h i n a lo n g h a d a s u b s t a n t ia l a n d s o p h i s t ic a t e d b o d y o f p u b l ic , p o s i t iv e la w

a n d , w i t h it, a c o n s id e r a b l e c o r e o f i n d i v i d u a l s n o t in th e S t a t e 's e m p l o y w h o a d v i s e d t h e ir f e l l o w

s u b j e c t s a b o u t h o w to w o r k w it h , t h r o u g h a n d , p r e s u m a b ly , a r o u n d t h e la w , p a r t i c u la r l y w it h

r e f e r e n c e to c r im in a l m a tte rs. T h e r e w e r e l it ig a t io n e x p e r t s , o r 's o n g s h i ', w h o o f fe re d le g a l a d v ic e

a n d d r a f t e d p le a d in g s , b u t t h e y w e r e f o r b id d e n f r o m r e p r e s e n t in g t h e ir c l ie n t s in c o u r t a n d w e re

n o t c o n s i d e r e d r e s p e c t a b le p e r s o n s . T h i s l a c k o f r e s p e c t a b i l i t y s t e m m e d f r o m t h e v i e w th a t

's o n g s h i ' w o u l d s t ir u p l i t ig a t io n in o r d e r to f i n a n c ia l l y b e n e f it t h e m . S e e L a z a r n o t e 1 2 sup ra at

1 2 0 3 .

489 T im o t h y A . G e la t t , 'L a w y e r s in C h i n a : T h e P a s t D e c a d e a n d B e y o n d ', 2 3 ( 3 ) N e w Y o rk U n iv e rs ity J o u rn a l o f In te rn a tio n a l L a w a n d P o lit ic s ( 1 9 9 1 ) , at 7 5 1 .

490 C h i n a s o u g h t to a d d r e s s its p r o b le m s p r im a r i l y t h r o u g h r e l ia n c e u p o n m o ra l it y , c u s t o m k in s h ip

o r p o l i t i c s , r a t h e r t h a n f o r m a l le g a l it y , w it h th e r e s u lt th a t t h e r e w a s r e la t iv e ly litt le n e e d fo r

i n d i v i d u a l s w h o s e w o r k la y in th e la w . S e e A l f o r d n o te 4 8 7 supra at 2 2 .

491 I b id at 2 6 - 2 7 .

Page 1 9 6

started to initiate 'new socialist legal specialists' and to train a corps of socialist

legal specialists to serve the new China. By 1957, there were about 800 legal

advisory offices in the country, with approximately 3,000 lawyers. They were the

products of the legal institutions of the previous regime.

However, by launching the anti-rightist movement of 1957, the forces of reaction

brought this initiative to an abrupt halt. Denounced as bourgeois rightists,

members of the small corps of legal experts, with many other members of the

modernising forces, were sent to the countryside to be re-educated through

labour. Although law, and to some extent, legal experts, enjoyed a brief and fitful

renaissance in the early 1960s, the legal profession and the rest of the

modernising forces were singled out as a target for attacks by the orthodox forces

during the Cultural Revolution.40' As part of the modernising forces, lawyers were

persecuted and law schools were shut down. Law in China took a back seat to

politics as the troops of the forces of reaction relied on mass mobilisation

campaigns, Party policies, administrative regulations, and the military rather than

law' to govern the country.403

In the latter half of the 1970s, as things turned out better for the forces of

modernisation, on battlefields, the legal profession emerged from the long

national nightmare initiated by the orthodox forces. However, the legal profession

was even weaker than its counterpart in the aftermath of the foundation of the

People's Republic three decades earlier. Though the Chinese population had

grown by more than 235,000,000 between 1957 and 1980,492 493 494 the number of

lawyers remained constant at 3,000 individuals.495 To win, the advance of the

forces of modernisation was made extremely difficult because members of the

492 S e e G e la t t n o t e 4 8 9 sup ra at 7 5 2 - 7 5 4 .

493 R a n d y P e e r e n b o o m , 'C h i n a 's D e v e l o p i n g L e g a l P r o f e s s i o n : T h e Im p l i c a t i o n s f o r F o r e ig n

In v e s t o r s ', 1 2 ( 5 ) C h in a L a w & P ra c tic e ( 1 9 9 8 ) , at 3 7 .

494 In 1 9 8 0 , C h i n a 's a u t h o r i t ie s a d o p t e d th e In t e r im R e g u l a t i o n s o n L a w y e r s . B y 1 9 8 2 , t h e r e w e r e

5 , 5 0 0 f u l l - t im e l a w y e r s a n d 1 , 3 0 0 p a r t - t im e l a w y e r s w o r k i n g in C h i n a . B y 1 9 8 6 , t h e r e w e r e

1 3 , 0 0 0 l a w y e r s in t h e c o u n t r y (w it h h a l f w o r k i n g a s p a r t - t im e la w y e r s ) . B y 1 9 8 9 , t h e y w e r e

a p p r o x im a t e l y 3 3 , 0 0 0 . B y 1 9 9 1 , t h e y w e r e a r o u n d 5 0 , 0 0 0 . S e e G r e g g n o te 4 0 9 su p ra at 7 9 .

495 S e e A l f o r d n o t e 4 8 7 sup ra at 2 7 . T h i s n u m b e r r o s e to 9 0 , 0 0 0 b y t h e m i d - 1 9 9 0 s . T h e

g o v e r n m e n t s t r e s s e d t h e n a n e e d fo r 6 0 0 , 0 0 0 le g a l p r o f e s s i o n a l s ( 1 5 0 , 0 0 0 a t t o rn e y s ) b y th e e n d o f

t h e tw e n t ie t h c e n t u r y . S e e B e r k m a n n o te 4 0 1 sup ra at 2 9 .

Page 1 9 7

legal profession were poorly trained and ageing.496 Furthermore, lawyers were not

required to have a formal certificate of legal education.497

Owing to a certain number of battles won by the modernising forces, legal

institutions in China slowly re-emerged. Consequently, the right to defence

counsel was returned to the Constitution in 1978. The modernising forces needed

the assistance of Chinese lawyers in the monumental task of rebuilding a shattered

economy. Their assistance was also sorely needed to secure the foreign

technology. Although they were far from being a "match for the task",498 the

modernising forces established government owned and run legal advice offices

(falu guwenchu) as institutional units (shiye danwei) under the supervision of the

M in is t r y o f Jus tice499 500 501 and its affiliates.900 Lawyers were to be State legal workers

(guojia falu gongzuozhe) in China. ’01 Legal advice offices were to be financed by

the State.502 In addition, the forces of modernisation established non-State owned

law firms in the late 1980s. The modernising forces won an important victory in

1992 when the 'co-operative law firms' (hezuozhi lushi shiwusuo) became

authorised503 and they made their presence felt.504 At the same time, foreign

parties had to utilise local lawyers since foreign lawyers were not allowed to

496 S e e P e e r e n b o o m n o te 4 9 3 supra at 3 7 ,

497 It w a s n o t r a r e f o r a f o rm e r o f f ic e r o f th e P e o p l e 's L ib e r a t io n A r m y to b e a p p o in t e d j u d g e o r

d i r e c t o r o f a l a w f irm . S e e T u rn e r n o te 3 9 7 supra at 3 1 .

498 S e e P e e r e n b o o m n o te 4 9 3 supra at 3 7 .

499 T h e M i n i s t r y o f J u s t ic e ( M O J ) w a s a b o l i s h e d in 1 9 5 9 . S e e G e la t t n o t e 4 8 9 sup ra at 7 5 4 . W h e n

t h e M O J w a s r e - e s t a b l i s h e d in 1 9 7 9 , it b e g a n to re c a s t its r o le in t o th a t o f a 'm a c r o - a d m in i s t r a t i v e '

e n t it y , m e a n i n g tha t, a t le a s t in t h e o r y , it a s p i r e s to r e g u la t e t h e p r o f e s s i o n b r o a d l y r a th e r t h a n

e x e r c i s e a m o r e d ir e c t d a y - t o - d a y s u p e r v i s o r y ro le . S e e A l f o r d n o te 4 8 7 s u p ra at 3 1 .

500 T h e s e le g a l a d v i c e o f f ic e s w e r e d e s ig n e d to s e r v e th e S t a t e 's e n t e r p r i s e s a n d p e o p l e at f ix e d

ra te s w h i c h , w i t h th e e x c e p t io n o f th e fe e s c h a r g e d th e o c c a s i o n a l f o r e ig n b u s i n e s s r e q u i r in g th e ir

s e r v ic e s , w e r e lo w . S e e A l f o r d n o t e 4 8 7 supra at 2 8 .

501 T h e r o l e o f le g a l w o r k e r s c o n s i s t e d p r i n c i p a l l y o f f a c i l i t a t i n g t h e a c c o m p l i s h m e n t o f

a d m in i s t r a t i v e l y d i r e c t e d u n d e r t a k in g s . O n th e e c o n o m ic s id e , it m ig h t e n ta i l w o r k o n th e t y p e o f

s im p le d o c u m e n t s n e e d e d to r e c o r d a t r a n s a c t io n , t h e c o n t o u r o f w h i c h h a d a l r e a d y b e e n d e f in e d

b y a d m in i s t r a t iv e a u t h o r it y . S e e A l f o r d n o te 4 8 7 supra at 2 9 .

502 S e e P e e r e n b o o m n o te 4 9 3 supra at 3 8 .

503 Ibid. T h e 1 9 9 7 L a w y e r s L a w s a n c t io n e d th re e t y p e s o f l a w f i r m s in C h in a . A t t h e e n d o f th e

1 9 9 0 s , t h e c o u n t r y b o a s t e d a b o u t 8 , 3 0 0 la w f irm s ( t h e y w e re t w ic e a s m a n y a s in 1 9 9 3 ) , o f w h i c h

7 0 % w e r e S t a t e - o w n e d , 1 0 % w e r e c o - o p e r a t iv e s , a n d 2 0 % w e r e p a r t n e r s h ip s . T h e n u m b e r o f

p a r t n e r s h ip f i r m s in c r e a s e d fa ste r t h a n th e n u m b e r o f th e o t h e r t w o fo rm s .

504 Ibid at 3 7 . In 1 9 9 5 , t h e r e w e r e 2 . 7 m i l l i o n c i v i l c a s e s , 5 7 0 , 0 0 0 c r im in a l c a s e s , 5 2 , 0 0 0

a d m in i s t r a t iv e l i t ig a t io n c a se s , a n d 1 , 2 7 8 , 8 0 6 e c o n o m ic c a s e s h e a r d in C h in a .

Page 1 9 8

practice before China's courts of justice.505 Foreign lawyers were just allowed to

represent their clients as 'agents' of the defendant rather than lawyers.506 It was,

however, quite frustrating for foreign parties since local lawyers were often under­

trained, especially in the field of intellectual property rights, such as copyright.507

Things needed to be changed.

The forces of modernisation realised then that China's legal profession had to

confront new challenges. China's new liberal economy required far more

extensive, complex, and far-reaching legal rules than a command economy in

which the nation was perceived to have a single economic interest and much

could therefore be left to administrative diktat, which need not be or made widely

available beyond the bureaucracy.508 China initially sought to meet needs mainly

through what might be described as more of the same; by increasing the body of

lawyers without modifying either professional roles or institutional structures that

already existed across the country. However, it rapidly became apparent to the

forces of modernisation that the Chinese legal profession would be inadequate for

a country such as China, an economy determined to take its place in the world

marketplace of the twenty-first century.

The advance of the forces of modernisation was made particularly difficult

because at the very beginning of the 1990s, only one-fifth of China's lawyers had

505 T h e P R C ' s d i f f i c u l t y in r e a c h in g a d e c i s i o n o n h o w to h a n d le f o r e ig n la w y e r s s t e m m e d f r o m

h i s t o r i c a l a n d p o l i t ic a l f a c to r s , i n v o l v i n g th e e x i s t e n c e t h r o u g h th e 1 9 4 0 s o f e x t r a te r r it o r ia l le g a l

p r i v i l e g e s f o r f o r e i g n e r s in C h i n a a n d th e i d e o l o g i c a l s e n s i t i v e p o s i t i o n o f l a w y e r s a fte r th e

f o u n d i n g o f t h e P e o p le 's R e p u b l ic . S e e C e la t t n o te 4 8 9 s u p ra at 7 7 3 .

506 E a g e r to p le a s e t h e f o r e ig n in v e s t o r in h o p e s o f s e c u r i n g fu t u re b u s i n e s s , m a n y lo c a l l a w y e r s

i s s u e d v i r t u a l l y a n y o p i n i o n th e c l ie n t w a n t e d , m u c h to t h e a m a z e m e n t o f th e f o r e ig n i n v e s t o r 's

m o r e c a u t i o u s f o r e ig n l a w y e r s w a r y o f p o s s i b l e m a lp r a c t i c e c l a im s . S e e P e e r e n b o o m n o t e 4 9 3

supra at 4 1 .

507 S e e S i m p s o n n o t e 1 21 s u p ra at 5 9 4 . F o r e ig n in v e s t o r s o f te n e x p e c t e d C h i n e s e la w y e r s to d r e s s

a c e r t a in w a y , a n a l y s e p r o b l e m s a c e r t a in w a y , a n d p r e s e n t t h e ir c o n c l u s i o n s in a c e r t a in w a y

( l i n g u i s t i c a n d c u l t u r a l g a p ). M a n y C h i n e s e la w y e r s a n d la w f i r m s d id n o t p a y e n o u g h a t te n t io n to

a p p e a r a n c e s . D u r i n g n e g o t ia t io n o r l i t ig a t io n , m a n y e x p r e s s e d o p i n i o n s w i t h o u t le g a l b a s is , fe ll

b a c k o n g e n e r a l c l a i m s a b o u t C h i n e s e la w u n s u p p o r t e d b y c i t a t i o n s to s p e c i f i c c l a u s e s , o r

a p p e a l e d t o g e n e r a l n o t i o n s o f f a i r n e s s a n d w h a t s h o u ld , at le a st, in t h e e y e s o f t h e p a r t ic u la r

la w y e r , b e t h e c a s e . W h e n t h e y d id c it e s p e c i f ic p r o v i s io n s , t h e re w a s o f te n n o a n a l y s i s o f h o w th e

p r o v i s i o n s a p p l i e d t o th e p a r t ic u la r f a c tu a l s i t u a t io n o r s u p p o r t t h e ir c o n c l u s i o n s ( la c k a s e n s e o f

t h e g r a v i t y o f t h e ir r e s p o n s ib i l i t y ) . M a n y C h in e s e la w y e r s f o u n d it e a s ie r a n d o f te n m o r e e f fe c t iv e

t o r e ly o n p e r s o n a l r e la t io n s a n d c o n n e c t i o n s ra th e r t h a n le g a l a n a l y s i s a n d a r g u m e n t s to a c h ie v e

t h e ir g o a ls . S e e P e e r e n b o o m n o te 4 9 3 sup ra at 3 9 - 4 1 .

508 S e e A l f o r d n o t e 4 8 7 sup ra at 2 9 - 3 0 .

Page 1 9 9

earned university law degrees, and many of them studied law for a centrally

planned economy.509 Although law schools reopened during the 1980s510 and the

Ministry of Justice instituted a national bar examination in 1986,511 it was still

possible to qualify as a lawyer in China without any college education in law, or

even a college education at all, and without passing the bar exam.512 Moreover,

even if one attained a college degree in law, it hardly meant one was qualified to

practice. Legal education still tended to stress memorisation513 of black letter law

rather than critical reasoning and the ability to analyse and solve problems, the

forces of modernisation stressed. Graduates from even the very top schools were

less prepared to assume responsibilities as practising lawyers than their

counterparts from foreign legal systems because of the lack of good models in the

country.514 There were then complaints about the fact that professors had only

limited knowledge of current laws and important cases, especially in intellectual

509 S e e B e r k m a n n o t e 4 0 1 sup ra at 2 9 . F r o m 1 9 8 5 to 1 9 9 2 , f e w e r t h a n 5 0 , 0 0 0 le g a l p r o f e s s io n a l s

g r a d u a t e d f r o m u n i v e r s i t y l a w d e p a r t m e n t s . In 1 9 9 4 , ju s t o n e - f i f t h o f C h i n a 's 3 0 , 0 0 0 l a w y e r s

g r a d u a t e d f r o m u n i v e r s i t y p r o g r a m s . M o s t p r a c t i s i n g l a w y e r s p a s s e d b a r e x a m i n a t i o n s a fte r

c o m p le t i n g a s h o r t e r , le s s f o rm a l le g a l e d u c a t io n b y c o r r e s p o n d e n c e c o u r s e . S e e T u r n e r n o t e 3 9 7

s u p ra a t 3 1 . In 1 9 9 6 , 1 2 7 , 0 0 0 p e o p le t o o k th e n a t io n a l l a w y e r s ' q u a l i f i c a t io n e x a m in a t io n , 1 0 , 0 0 0

m o r e t h a n in 1 9 9 5 . Y e t, C h i n a still l a c k e d a s u f f ic ie n t p o o l o f p r o f e s s i o n a l l y l a w y e r s w i t h s t r o n g

e x p e r ie n c e . A t t h e e n d o f t h e 1 9 9 0 s , le s s t h a n 3 % o f u n iv e r s i t y s t u d e n t s w e r e s p e c ia l i s e d in la w .

C h i n a h a d a p p r o x im a t e l y 1 0 0 , 0 0 0 la w y e r s . S e e P e e re n b o o m n o te 4 9 3 s u p ra at 3 7 .

510 S e e G e la t t n o t e 4 8 9 sup ra at 7 5 5 . C h i n a e s t a b l i s h e d in t e l le c tu a l p r o p e r t y d e p a r t m e n t s at s e v e ra l

o f its t o p u n iv e r s i t ie s , s u c h a s in B e i j in g U n i v e r s i t y a n d S h a n g h a i U n iv e r s i t y . O n D e c e m b e r 15 ,

1 9 9 3 , B e i j i n g U n i v e r s i t y b e c a m e h o m e to t h e f ir s t C h i n e s e s c h o o l to t e a c h a n d r e s e a r c h

in t e l le c t u a l p r o p e r t y . S e e K o l t o n n o t e 4 2 5 sup ra at 4 5 7 . B e s id e s , m o r e t h a n 1 0 0 u n iv e r s i t ie s a n d

c o l l e g e s a c r o s s th e c o u n t r y b e g a n to o f fe r e le c t iv e a n d r e q u i r e d c o u r s e s in in t e l le c t u a l p ro p e r t y .

C h e n M e i z h a n g , 'N e w M o v e s T o w a r d s t h e P r o t e c t io n o f I n t e l le c t u a l P r o p e r t y in C h i n a ', 5 1 ( 4 )

C h in a P a ten ts & T ra d e m a rks ( 1 9 9 7 ) , at 1 3 .

511 T o s it f o r t h e e x a m , a c a n d id a t e h a d to c o m p le t e a t m in im u m a t w o o r t h re e y e a r s t u d y c o u r s e

( d a z h u a n ) t h r o u g h s e l f - s t u d y , a d u l t e d u c a t i o n p r o g r a m s , c o r r e s p o n d e n c e c o u r s e s , p a r t - t im e

u n i v e r s i t i e s o r f u l l - t im e c o l l e g e s o r u n iv e r s i t ie s . T o o b t a in a c e r t i f ic a t e , t h e c a n d id a t e h a d to

c o m p le t e a o n e - y e a r t r a in e e - s h ip a t a la w f irm , b e o f g o o d c o n d u c t , a n d b e w i l l i n g to u p h o ld th e

C o n s t i t u t io n . P r a c t ic e c e r t if ic a te s w e r e r e n e w e d e v e r y y e a r . S e e P e e r e n b o o m n o te 4 9 3 sup ra a t 3 8 .

512 A s o f 1 9 9 6 , o n l y 2 5 % o f C h i n a 's l a w y e r s h a d t h e e q u i v a le n t o f a c o l l e g e le v e l b a c h e l o r 's

d e g r e e , w h i l e a n o t h e r 4 6 % h a d c o m p le t e d 'd a z h u a n ' d e g r e e s . T h u s , a lm o s t 3 0 % o f C h i n a 's

l a w y e r s h a d n o f o rm a l e d u c a t io n b e y o n d h ig h s c h o o l . S e e P e e r e n b o o m n o te 4 9 3 sup ra at 4 1 .

513 T r a d i t io n a l l y , t h e e n t ir e C h in e s e e d u c a t io n s y s t e m w a s b a s e d o n t h e ro te le a r n in g o f th e w o r k s

o f e s t a b l i s h e d l i t e r a r y m a s t e r s b y f a u lt le s s r e p r o d u c t io n o f th e c l a s s ic a l w o r k s o f th e p a st . A n y o n e

w h o c o u l d m e t i c u l o u s l y re c it e th e h u n d r e d s o f w o r k s c o u ld le a d t o a life o f w e a lt h a n d p o w e r in

t h e g o v e r n m e n t . T h e s e p r in c ip le s a re st ill v e r y m u c h a l i v e n o w a d a y s . S e e H o n o t e 4 3 4 su p ra at

h t t p : / / w w w . h o u s t o n . c o n i. h k / h k g ip d / p ir a r y .htrril ( p a g e 7).

514 M a n y le c t u r e r s le ft t h e c l a s s r o o m in th e m i d - 1 9 8 0 s . S o m e t u r n e d to b u s in e s s , s o m e w e r e

t r a n s fe r r e d t o a d m in i s t r a t i v e w o r k , a n d s o m e w e n t a b r o a d . M o n e y , p o w e r , a n d m o r e l u x u r i o u s

l ife s ty le s e e m e d to b e d e c id in g f a c to r s in t h e ir e x o d u s . S e e P e e r e n b o o m n o te 4 9 3 sup ra a t 4 1 .

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property issues. The old, rigid concepts in books could not improve the students'

ability to adjudicate.515 The forces of modernisation noted then that to reform

China's universities was much harder than to reform State-owned enterprises. The

latter faced fierce competition from private enterprises. If State enterprises were

not to reform, they could not survive. Since universities had no competition, they

could rest easy.516

The modernising forces identified the training of legal professionals as a priority in

their manoeuvres. It was the only possibility to provide better legal and consulting

services to the approximately 6.5 million Chinese businesses and the

approximately 110,000 foreign-funded enterprises throughout the country.517

Thus, on top of reinforcing the special legal training of judges,518 the forces of

modernisation focused their manoeuvres on training a Chinese legal profession

whose lack of trained and experienced lawyers had a deleterious effect on the

People's Courts proceedings. Inexperienced judges seeking guidance in very

complex cases, such as software, could expect to learn too little from unqualified

Chinese lawyers,519 as judges were heavily dependent on the court.

In the same way as the Chinese Supreme People's Court and numerous provincial

higher courts took several measures to train judges520 and to improve the overall

quality of their work, training and lecture courses, conferences, and other

measures became the only way to create an autonomous legal profession in

China. Lawyers were also duly encouraged to study foreign legal systems, while

515 In th e 1 9 9 0 s , t h e p r o f e s s o r 's t a s k in C h i n a w a s s t ill to p r e s e n t 'c o r r e c t ' id e a s ra th e r t h a n to

e n c o u r a g e s t u d e n t s t o q u e s t io n a n d e x p lo r e a lt e rn a t iv e a r g u m e n t s . T h i s w a s n o t b e c a u s e C h in e s e

le c tu re r s d i d n o t w i s h to u s e th e S o c r a t ic m e th o d , b u t b e c a u s e t h is m e t h o d w o u l d h in d e r s t u d e n t s

w h o w e r e t r a i n i n g f o r t h e b a r e x a m in a t i o n a d m in i s t e r e d b y t h e M i n i s t r y o f J u s t ic e , w h i c h

s t a n d a r d i s e d a n s w e r s . R e s t r ic t iv e l ib r a r y r u le s a n d in a d e q u a t e c o l l e c t i o n s a l s o m a d e it d i f f ic u lt fo r

s t u d e n t s to u s e t h e ir a b i l i t y to a d ju d ic a t e . S e e T u r n e r n o te 3 9 7 su p ra a t 3 2 - 3 3 .

516 Ib id at 3 6 .

517 S e e B e r k m a n n o t e 4 0 1 sup ra at 3 0 .

518 F r o m 1 9 8 5 t o 1 9 9 2 , 7 0 , 0 0 0 j u d g e s rec e iv e d d ip l o m a s a fte r c o m p le t i n g t r a in in g p r o g r a m s in th e

p a r t - t im e u n i v e r s i t y o f th e S u p r e m e C o u r t . T h i s c e r t i f ic a t io n w a s e q u i v a le n t to c o m p le t i n g th re e

y e a r s o f u n i v e r s i t y w o r k . T h e q u a l i t y o f j u d g e s s t e a d i l y im p r o v e d . J u d ic ia l o f f ic ia l s r e c e iv e d t h e n

b e t te r t r a i n i n g in t h e f ie ld o f in t e l le c t u a l p r o p e r t y r ig h t s t h a n o f f i c i a l s f r o m t h e a d m in i s t r a t i v e

a g e n c ie s a n d d e p a r t m e n t s .

519 S e e B e r k m a n n o t e 4 0 1 sup ra at 3 0 .

520 J u s t ic e C h e n g Y o n g - S h u n , 'J u r id ic a l P r o t e c t io n o f In t e l le c t u a l P r o p e r t y in C h i n a ', 9 ( 1 ) D u k e J o u rn a l o f C o m p a ra t iv e a n d In te rn a t io n a l L a w ( 1 9 9 8 ) , at 2 6 8 . In c o n t r a s t , t h e r e w e r e n o s im i la r

le g a l e d u c a t io n p r o g r a m s in th e a d m in is t r a t iv e sy s te m . S e e Li n o te 4 2 8 s u p ra at 4 1 3 .

Page 201

an increasing number of them decided to bolster their education by attending

foreign law schools.521 In the field of intellectual property rights, the C h ina

In te lle c tu a l P ro p e rty T ra in in g C en tre was founded on April 1st, 1996.522

In the field of copyright, the C o p y r ig h t P ro te c tio n C e n tre (CPC) was established in

late September 1998. Independent under the N a tio n a l C o p y r ig h t A d m in is tra t io n

(NCA),523 it took up many functions previously discharged by the NCA. The CPC

became responsible for registering software copyright. As the Centre also became

involved in duties like the development of copyright assignment and licensing

agency business, it started playing an important role in the promotion of China's

complex copyright regime and the training of personnel.524

After decades of bitter infighting, the modernising forces eventually gained over

the forces of reaction as a growing number of Chinese lawyers became

increasingly willing to undertake cases, notably in the intellectual property field.

They began to clash with the jealously defended interests of the forces of reaction.

Non-State owned law firms appeared in many respects to be functionally

equivalent to private law firms in market economy countries, with principals

exercising major responsibility, at least in the context of the Chinese legal history,

for their own finances, benefits, operations, or work product. Consequently, many

became extraordinary wealthy by Chinese standards and began to infuse a new

aggressiveness into the manner in which law was practised in China. Lawyers

were then able to represent clients whose interests were not wholly synonymous

with the Chinese State's in an unprecedentedly vigorous manner.

The increased willingness of the Chinese legal profession to challenge the

interests of the orthodox forces suggested that a higher education accelerated the

521 O f t h e l a w y e r s w h o w e n t a b r o a d , th e m a jo r i t y n e v e r r e tu rn e d . If s o m e m a d e t h e ir w a y b a c k , it

w a s o f te n w i t h a g r e e n c a r d o r f o r e ig n c i t i z e n s h ip in h a n d a s s e c u r i t y . S e e P e e r e n b o o m n o te 4 9 3

s u p ra a t 3 7 .

522 S e e C h e n M e i z h a n g n o te 5 1 0 s u p ra at 1 3 .

523 H o w a r d T s a n g , 'C u r r e n t D e v e l o p m e n t s - A s i a - C h i n a - C o p y r i g h t P r o t e c t io n C e n t r e ', J o u rn a l o f th e IP S o c ie ty o f A u s tra lia a n d N e w Z e a la n d In c , M a r c h , 1 9 9 9 , at 6 4 .

524 A s p r e l i m i n a r y p r o o f o f o w n e r s h i p o f c o p y r ig h t , r e g i s t r a t io n o f w o r k s h e lp e d t h e P e o p l e 's

C o u r t s a n d t h e a d m in i s t r a t i v e a u t h o r i t ie s in t h e ir h e a r in g o f c a s e s o f d i s p u t e s o v e r th e o w n e r s h i p o f

c o p y r i g h t in w o r k . T h e C e n t r e h a s r e g is t e re d o v e r 5 , 3 0 0 p ie c e s o f c o m p u t e r s o f t w a r e s i n c e its

c r e a t io n . S h e n R e n g a n , 'T h o u g h t s o n R e v i s i o n o f th e C u r r e n t C h i n e s e C o p y r i g h t L a w ', 1 C h in a P aten ts & T ra d e m a rk s ( 2 0 0 0 ) , at 5 7 .

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development of a more independent legal profession.525 526 527 However, the defence

was still as strong as ever in the two last bastions ferociously held by the troops of

the forces of reaction.

[ii] Those who use the past to criticise the present should be

put to dea thLoca l i sm and poor education on the difficult

road to enforcement'a-

A stubborn societal resistance: 528 When judgements are not executed, the law is worth nothing529

With the progress of economic reform, judges and lawyers, newly recruited by the

forces of modernisation, came up against a number of issues never encountered

before.530 They found themselves called on to do what they had almost never

been called on to do before, such as enforcing judgements against powerful State

and collective-owned enterprises,531 under the control of the orthodox forces.

Before, judges and lawyers never had neither the resources nor the will to take

energetic enforcement actions against the entrenched and powerful local interests

of the orthodox forces.532 Judges and lawyers avoided "upsetting"533 major local

525 S e e n o t e 4 0 2 s u p ra at 1 5 3 9 .

526 J e ra m y T . M o n t h y , 'In t e r n a ! P e r s p e c t iv e s o n C h i n e s e H u m a n R ig h t s R e fo rm : T h e D e a t h P e n a l t y

in t h e P R C ', 3 3 Texas In te rn a t io n a l L a w J o u rn a l ( 1 9 9 8 ) , at 1 8 9 . Li S h i, C h i n a 's f irst P r im e M in i s t e r

in t h e t h ir d c e n t u r y B C a n d a d v i s o r to Q i n S h ih u a n g d i , th e f irst e m p e r o r o f t h e M i d d l e K in g d o m ,

h a s b e e n r e p o r t e d to h a v e s a id s u c h w o r d s .

527 S e e W i l l a r d n o t e 1 3 6 sup ra at 4 2 7 .

528 S e e H u n o t e 1 9 7 s u p ra at 1 0 4 .

529 S e e C la r k e n o t e 4 0 6 sup ra a t 6 5 .

530 X u C h a o , 'O n S e v e r a l P r o b le m s E n c o u n t e r e d in t h e C o u r s e o f E n f o r c in g th e C o p y r i g h t L a w (I) ',

4 9 ( 2 ) China Patents & T ra d e m a rks ( 1 9 9 7 ) , at 8 9 .

531 S e e C la r k e n o t e 4 0 6 sup ra at 8 0 .

532 C o u r t s w e r e o f te n h e s it a n t to c r a c k d o w n o n in t e l le c t u a l p r o p e r t y p i r a t e s b e c a u s e t h e y c re a te d

jo b s . T h e i r i n t e r v e n t io n c o u ld d a m a g e th e e c o n o m ic in te re s t s o f t h e ir r e g io n , e s p e c ia l l y w h e n th e

r e g io n w a s le s s d e v e l o p e d . W h e r e u n e m p lo y m e n t w a s a p r o b le m , it w a s n o t a lw a y s e a s y to c l o s e

f a c t o r ie s th a t p r o d u c e d p ir a te d g o o d s . T h e d i le m m a w a s in t e n s i f ie d w h e n m a n u f a c t u r e r s p r o d u c e d

le g it im a te a n d i n f r i n g in g p r o d u c t s a t th e s a m e t im e . C l o s i n g th e f a c t o r ie s in e v i t a b l y d r o v e th e lo c a l

p o p u la t io n o u t o f t h e ir j o b s a n d c r e a te d s o c ia l d i s t u r b a n c e . D a v i d S h a n n o n a n d T a n L o k e - K h o o n ,

'In t e l le c t u a l P r o p e r t y D e v e l o p m e n t s a n d E n f o r c e m e n t C h a l l e n g e s in H o n g K o n g a n d t h e P e o p le 's

R e p u b l i c o f C h i n a ', 8 ( 1 ) C a lifo rn ia In te rn a tio n a l P ra c t it io n e r ( 1 9 9 7 ) , a t 2 5 . 'D o n 't e x e c u t e w h e r e it

Page 2 0 3

employers,534 by choosing no to act against firms controlled by, or connected

with, politically powerful persons.535 The power of the local despots in the

Chinese countryside,536 supporters of the orthodox forces, hung "like the sword of

Damocles" over all the ones who would do things according to law.537 The

defence of the forces of reaction was based on the Chinese political organisation

that contained two contrasting images.

One was that of the omnipotent centre.538 In the 1990s, the PRC remained

organised and led from the top where leaders had the power to ensure

compliance from lower levels on most issues at any time. As the Chinese legal

system was characterised by its inability to render impartial judgements,539 the

high command of the orthodox forces capitalised then on this flaw. Although

courts theoretically exercised judicial power 'independently',540 and they were not

w i l l m e a n c l o s i n g t h e d e f e n d a n t e n t e rp r is e a n d t h r o w in g w o r k e r s o n t o t h e s t re e t '. S e e C la r k e n o te

4 0 6 supra at 6 2 .

533 In s o m e c a s e s , j u d g e s f o u n d e x c u s e s f o r n o t a c t in g , b e c a u s e t h e re w a s 'in su f f ic ie n t , e v id e n c e ',

o r t h e y t o o k lit t le o r d id n o f o l l o w u p a c t io n a fte r r a id s in o f f e n d in g f a c to r ie s . In o t h e r c a s e s , t h e y

w a r n e d f a c t o r ie s o f im p e n d i n g r a id s , o r t h e y f a i le d to d e s t r o y s e iz e d p r o d u c t s . F in a l ly , t h e y a l s o

r e t u r n e d p ir a t e d p r o d u c t s to t h e o f f e n d e r s a fte r th e in v e s t ig a t io n . S e e W h e a r e et a l n o t e 4 3 1 supra at 4 2 .

534 S e e R i l e y n o t e 4 0 0 sup ra at 2 . j u d g e s w e r e r e lu c t a n t to a c c e p t c a s e s o r to i s s u e u n f a v o u r a b le

o r d e r s a g a in s t 'c o n n e c t e d ' e n te rp r is e s . S e e B e r k m a n n o te 4 0 1 sup ra at 2 4 .

535 C o u r t s d e p e n d e d o n lo c a l g o v e r n m e n t s fo r r e s o u r c e s . T h e i r p e r s o n n e l w e r e b e h o ld e n to lo c a l

p o l i t i c o s f o r t h e i r jo b s , h o u s i n g , a n d e m p lo y m e n t o p p o r t u n i t ie s o f t h e ir c h i l d r e n . S e e B e r k m a n

n o t e 4 0 1 supra a t 2 4 .

536 S e e L u b m a n n o te 4 1 0 sup ra a t 1 5 .

537 C o u r t s r e m a in e d e s s e n t i a l l y t h e c r e a t u r e s o f t h e le v e l o f g o v e r n m e n t t h a t a p p o in t e d t h e ir

p e r s o n n e l . O n e c o m m e n t a t o r q u o t e d th e s a y in g , 'i f y o u e a t f r o m h i s b o w l , h e h a s c o n t r o l ; if y o u

e a t h i s r ice , t h e n y o u t a k e h i s a d v i c e ' ( d u a n s h e i d e w a n , s h o u s h e i g u a n ; c h i s h e i d e fan , w e i s h e i

g a n ) . S e e C la r k e n o t e 4 0 3 s u p ra at 6 4 .

538 T h e g o v e r n m e n t p o l i c y w a s t o rn b e t w e e n a d e s i r e to in c r e a s e t h e im p o r t a n c e o f th e P e o p le 's

C o u r t s , in p a r t to f o r c e lo c a l o f f i c i a l s to o b e y la w , a n d t h e f a c t t h a t t h e s y s t e m w a s s t ill

i n h o s p i t a b le t o p la in t if f s . T h e g o v e r n m e n t p o l i c y w a s a l s o t o rn b e t w e e n its d e s i r e to h a r n e s s a

m a r k e t - d r iv e n le g a l p r o f e s s io n to fu r th e r la w im p le m e n t a t io n a n d its d e s i r e to c o n t in u e to r e g u la t e

la w y e r s t ig h t ly . T h e g o v e r n m e n t p o l i c y w a s f i n a l l y t o rn b e t w e e n its e f fo r t s to s h a p e th e le g a l

s y s t e m a n d t h e p lu r a l i t y o f f a c t o r s th a t c o n t r ib u t e d to th e e v o lu t io n o f th a t s y s t e m . S e e n o t e 4 0 2

supra at 1 5 2 4 .

539 J u l ia C h e n g , 'C h i n a 's C o p y r i g h t S y s t e m : R i s i n g to th e S p ir it o f T r i p s R e q u i r e s a n In t e rn a l F o c u s

a n d W T O M e m b e r s h i p ', 2 1 (5 ) F o rd h a m In te rn a tio n a l L a w J o u rn a l ( 1 9 9 8 ) , a t 1 9 9 2 .

540 Autonomy, independence, and the other elements generally seen in the West as constituting legal professionalism have never been distinctive features of the Chinese legal landscape. See Alford note 487 supra at 26. Judicial independence in China referred to the independence of the court as an institution rather than the independence of an individual judge. Yet, despite this departure from the liberal notion of 'judicial independence', the official Chinese ideal still required the court

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subject to interference by any administrative organ, public agency, or individual,

the reality was totally different. In the 1990s, the People's Courts remained

particularly weak institutions under heavy influence from the forces of reaction,

such as the Chinese Communist Party and regional interests.541 For these reasons,

the defence of the bastion of the administration was as strong as ever.

The second image was that of a bickering and fragmented polity across the

country. Sub-central levels542, under the control of the forces of reaction, had a

great deal of power in practice. In the 1990s, they were willing and able to thwart

and subvert the demand of the central government,543 the headquarters of the

forces of modernisation. The idea of legal fragmentation permitted different parts

of the Chinese bureaucracy to interpret the same rules, causing a multiplication of

logically inconsistent rules of substantive law.544 Even before the commencement

of the economic reforms,545 China was, in many ways, highly decentralised.

However, the O p e n -d o o r p o l ic y added power to local authorities vis-a-vis the

as an institution to decide cases free from external pressures. Moreover, President Jiang Zemin claimed that he was the President of China "and not the chief judge of the Supreme Court of China". C h in a - A S lo w M o v e to Jus tice , 354(8156), The Economist, 5 Feb. 2000, at 25. The concept of legality' in China remained an ideal only inconsistently supported by the leadership, and had still not been clearly distinguished from bureaucratic regularity. See Lubman note 410 supra at 20.541 K e v in T. S. K o n g , 'P r o s p e c t s f o r A s s e t S e c u r i t i s a t io n in C h i n a ', 3 2 ( 1 ) C o rn e ll In te rn a t io n a l La w journal ( 1 9 9 8 ) , at 2 5 0 . T e n s i o n s in th e C h i n e s e le g a l s y s t e m s t e m m e d f r o m t h e fa c t th a t C h i n a 's

le a d e r s s t r u g g l e d to d e t e r m in e w h e t h e r t h e y c o u l d f o s t e r a l a w - b a s e d s o c ie t y w i t h o u t l o s i n g

c o n t r o l . S e e n o t e 4 0 2 supra at 1 5 2 4 . U n d e r th e C h i n e s e i a w s y s t e m , th e c o u r t s w e r e v e s t e d w it h

t h e a u t h o r i t y t o a p p l y th e C o p y r i g h t L a w a n d th e S o f t w a r e R e g u l a t i o n s in i n d i v i d u a l c a s e s .

H o w e v e r , t h e S t a n d i n g C o m m i t t e e o f t h e N a t i o n a l P e o p l e 's C o n g r e s s ( a r t ic le 1 2 6 o f th e

C o n s t i t u t io n ) , t h e S ta te C o u n c i l , a n d a g e n c ie s w e r e le g i s l a t i v e l y d e s i g n a t e d a s th e in t e r p r e t in g

a u t h o r i t ie s v e s t e d w it h th e a u t h o r i t y to in te rp re t, a d m in is t e r , a n d e n f o r c e th e c o p y r ig h t le g is la t io n .

S e e D u v a n e l n o t e 2 2 5 supra at 3 8 6 .

542 C h i n a v i e w e d t h e d e v o t io n o f c e n t r a l g o v e r n m e n t a u t h o r i t y to lo c a l r e g i o n s a s a n e c e s s a r y

m e t h o d o f f o s t e r in g e c o n o m ic g r o w t h . L o c a l g o v e r n m e n t s w e r e e m p o w e r e d to e s t a b l i s h th e

in s t i t u t io n s n e c e s s a r y to im p le m e n t , g u id e , a n d r e g u la t e in v e s t m e n t . S e e B e r k m a n n o t e 4 0 1 supra at 1 7 .

543 S e e C la r k e n o t e 4 0 3 supra at 1 3 - 1 4 .

544 S e e L u b m a n n o te 4 1 0 supra a t 5.

545 In a n a t t e m p t to a d d r e s s s o m e o f th e a d v e r s e c o n s e q u e n c e s o f o p e r a t in g w i t h in a r ig id c e n t ra l

p la n , t h e p o s t - M a o g o v e r n m e n t b e g a n s h i f t in g e c o n o m i c d e c i s i o n - m a k i n g p o w e r to l o w e r le v e l

g o v e r n m e n t a l b o d ie s , a n d , in s o m e c a s e s , o u t s id e o f th e b u r e a u c r a t i c h i e r a r c h y a lt o g e t h e r . T h i s

d e v o l u t i o n p o l i c y p e r m it t e d t h e d e v e l o p m e n t o f t o w n a n d v i l l a g e e n t e r p r is e s , s m a l l - s c a l e

in d i v i d u a l a n d h o u s e h o ld b u s in e s s e s , p r iv a t e e n te rp r is e s , a n d f o r e ig n in v e s t m e n t s , a ll o f w h i c h a re

c o m p o n e n t s o f C h i n a 's m o d e r n e c o n o m y . S e e M a t i a s n o t e 1 8 8 su p ra at 1 1 .

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central government.546 Since the country opened its borders to foreign investment,

the departmental and geographical diversity of law and decision making bodies

has become a problem for the forces of modernisation in their assaults against the

forces of reaction in order to impose a modern legal system,547

The battle over the control of the bastion of the Chinese administration was

notably cruel for the forces of modernisation. The forces of reaction had the upper

hand on battlefields. Decentralisation within the Chinese territory led to the

erosion of Beijing's control,548 the headquarters of the forces of modernisation.

The growing weakness of China's apparatus of State and the declining legitimacy

of the Party rapidly became signs that the power of the central government over

the rest of the country had steadily decreased.549 It led to the rise of 'corruption'550

and the enormous growth in power of local officials and cadres551 who joined the

ranks of the forces of reaction. At the same time, the P e o p le 's L ib e ra tio n A rm y

(PLA) grew as a major economic force in the provinces,552 government functions

546 T h e n e w p o w e r o f th e lo c a l a u t h o r i t ie s s t e m m e d f r o m t h e w i l l i n g n e s s a n d a b i l i t y o f lo c a l

g o v e r n m e n t s t o i g n o r e c e n t ra l r e g u la t io n s a n d d i r e c t iv e s w h e n it s u it e d th e m . S e e C la r k e n o t e 4 0 6

s u p ra a t 8 1 .

547 S e e D i c k s n o t e 4 0 3 sup ra at 8 4 .

548 D u r i n g t h e 1 9 9 0 s , t h e U n i t e d S t a t e s c r i t i c i s e d th e C h i n e s e g o v e r n m e n t 's l a c k o f c o n t r o l o f

p i r a c y in t h e c o u n t r y s a y in g th a t it w a s n o t a q u e s t io n a b o u t C h i n a 's c a p a b i l i t y , b u t it w a s m o r e a

s im p le m a t t e r o f p o l i t i c a l w i l l . H o w e v e r , B e i j in g s e e m e d to h a v e le s s p o w e r t h a n U . S . o f f ic ia l s

u n d e r s t o o d . D e c e n t r a l i s a t i o n o f p o w e r f r o m B e i j i n g to p r o v in c i a l a n d l o c a l g o v e r n m e n t s m a d e

C h i n a 's e c o n o m i c r e f o r m s p o s s ib l e . T h i s d e v o t io n o f p o w e r le ft B e i j i n g w i t h o u t t h e m u s c l e to

c o n t r o l m a n y a c t iv i t ie s o u t s id e th e c a p it a l . B e i j i n g t r ie d to e x e r c i s e its c o n t r o l , b u t at t h e s a m e

t im e , w a s r e lu c t a n t to b e s e e n a s b o w in g to U .S . p re s s u re . S e e L a z a r n o t e 1 2 sup ra at 1 1 9 9 .

549 S e e L u b m a n n o t e 4 1 0 sup ra at 1 5 . T h e c e n t r a l g o v e r n m e n t r e c o g n i s e d t h e g r a v i t y o f lo c a l

p r o t e c t io n i s m in t h e m id - 1 9 8 0 s , b u t it h a s b e e n i n c a p a b le o f r e s o l v i n g th e p r o b le m , w h i c h s p r e a d

f r o m th e s o u t h - e a s t c o a s t a l p r o v in c e s to th e re st o f t h e c o u n t r y . S e e L i n o t e 4 2 8 sup ra a t 3 9 8 .

550 O f f i c i a l c o r r u p t i o n w a s a s e r i o u s p r o b le m . H o w e v e r , its e x t e n t c o u l d n o t b e q u a n t i f ie d in a

r i g o r o u s w a y , p r o v i d i n g m e a n in g f u l c o m p a r a t i v e p e r s p e c t iv e . In t h e a b s e n c e o f r e l ia b le d a ta , th e

e x i s t e n c e o f t h is o b s t a c le to la w im p le m e n t a t io n c o u l d b e n o te d , b u t s p e c i f i c a t io n o f its d e g r e e

w a s n o t p o s s ib le . S e e C la r k e n o te 4 0 3 sup ra at 5 9 .

551 S e e B e r k m a n n o t e 4 0 1 su p ra at 1 7. T h e lo c a l P a r ty u s u a l l y t o o k c a r e o f j u d ic ia l m a tte r s t h r o u g h

its P o l i t i c a l - L e g a l C o m m it t e e ( z h e n g f a w e iy u a n h u i ) . T h e la tte r h a s t r a d i t io n a l l y b e e n in c h a r g e o f

t h e p o l ic e , t h e p r o c u r a c y , th e c o u r t s , o t h e r a s p e c t s o f j u d ic ia l a d m in i s t r a t io n , a n d c iv i l a ffa ir s . T h e

le a d e r o f t h e lo c a l p o l i c e o r th e le a d e r o f t h e lo c a l P a r t y o r g o v e r n m e n t o fte n h e a d e d t h e P o l i t ic a l -

L e g a l C o m m i t t e e . It h a s l o n g b e e n th e p r a c t ic e in C h i n a fo r lo c a l P a r t y s e c r e t a r ie s o f p a r t y

c o m m it t e e t o r e v ie w a n d a p p r o v e th e d i s p o s i t io n o f c a s e s b y th e P e o p l e 's C o u r t s . S e e T u r n e r n o te

3 9 7 su p ra a t 4 2 .

552 S e e W i l l a r d n o t e 1 3 6 su p ra at 4 2 9 . M i l i t a r y f u n d s c a n n o t b e in v e s t ig a t e d . T h e r e is n o r u le

a d d r e s s in g t h i s i s s u e in la w o r p o l ic y . S e e C la r k e n o te 4 0 6 sup ra at 6 3 .

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were perverted by the use of existing institutions for purposes of private gains/53

at the price of leaving, for example, legitimate copyright interests unprotected.553 554

Losses in the camp of the modernising forces were staggering.

'Local protectionism' (difang baohuzhuyi)555 was by far the most frequently

mentioned obstacle556 against which the modernising forces stumbled in their

assaults557 in their aim to establish a concept of the 'supremacy of law',558 at least

as that was conceived in the West. Since 'law' in China has always been

conceived as "a tool of State administration" within close reach of the Communist

Party,559 the advance of the modernising forces was held up. The reason was that

traditional Chinese legal culture never recognised a concept of 'separation of

powers' or 'checks and balances'.560 On the other hand, their advance was

553 T h e g o a l s o f C h i n a 's c e n t ra l g o v e r n m e n t w e r e at o d d s w it h a g r o w i n g p o p u l a r o p i n i o n th a t

t h o u g h t th a t p e o p l e s h o u ld m a k e m o n e y a n y w a y t h e y c o u ld . " T o g e t r ic h is g l o r i o u s " ( d e c la r a t io n

b y D e n g X i a o p in g ) . S e e B u t t e r to n n o t e 4 6 s u p r a at 2 8 7 . T h e P r e s id e n t o f t h e T ia n j in N e w S ta r

E le c t r o n ic s C o . , w h i c h s o ld m o r e t h a n 3 0 0 p ira te d v id e o g a m e s in 1 9 9 3 , w a s a l s o th e d i r e c t o r o f a

d e p a r t m e n t in t h e M i n i s t r y o f M a c h i n e - B u i l d i n g a n d E le c t r o n ic s . T h e M i n i s t r y r e c e iv e d t w e n t y

p e r c e n t o f t h e c o m p a n y 's p r o f i t s a l t h o u g h it p r o m u l g a t e d t h e C o m p u t e r S o f t w a r e C o p y r i g h t

R e g is t r a t io n P r o c e d u r e s a y e a r b e fo re . S e e S im p s o n n o t e 1 2 1 sup ra at 6 0 0 - 6 0 1 .

554 S e e H u n o t e 1 9 7 supra at 1 0 6 .

555 In t h e 1 9 9 0 s , c e n t r a l g o v e r n m e n t o f f i c ia l s s t i l l m a in t a in e d c e r t a in c o n t r o l o v e r p e r s o n n e l

m a n a g e m e n t , b u t t h e y n o lo n g e r d ic t a t e d th e d e c i s i o n s o f lo c a l o f f ic ia l s . In th e n e w C h i n e s e

p o l i t i c a l s t r u c t u r e , e a c h j u r i s d ic t io n h a d its o w n L o c a l P e o p l e 's C o n g r e s s . T h e 1 9 8 2 C o n s t i t u t io n

c o n f e r r e d t o t h e m t h e p o w e r to e le c t a n d d i s m i s s o f f i c ia l s a s its o w n le v e l. T h e e le c t o r a l p r o c e s s

a l s o a lt e re d th e f u n c t io n in g o f lo c a l g o v e r n m e n t s . P r e v io u s ly , m o s t lo c a l le a d e r s w e r e n o n - n a t i v e s

a p p o i n t e d b y c e n t r a ! a u t h o r i t ie s . T h e n , c a n d id a t e s w e r e u s u a l l y s e le c t e d f r o m th e lo c a l p o o l ,

i n c l u d in g n a t iv e p o l i t i c a l e l ite s a n d s e n io r o f f ic ia l s w o r k i n g in lo c a l g o v e r n m e n t w h o o f te n h a d a

c o m p e t i t i v e a d v a n t a g e t h r o u g h w e l l - e s t a b l i s h e d p e r s o n a l c o n n e c t i o n s ( g u a n x i ) . S e e L i n o t e 4 2 8

supra a t 3 9 9 .

556 S e e C l a r k e n o t e 4 0 6 sup ra at 4 1 a n d 7 2 . T h e p r i n c ip a l c a u s e o f lo c a l j u d ic ia l p r o t e c t io n i s m

a p p e a r e d to b e t h e c o m b in a t i o n o f th e lo c a l g o v e r n m e n t 's d i r e c t in t e r e s t in th e f i n a n c ia l w e l l ­

b e in g o f lo c a l e n t e r p r is e s w it h its p o w e r o v e r c o u r t p e r s o n n e l a n d f in a n c e s .

557 L o c a l g o v e r n m e n t s p la y e d a c a t a n d a m o u s e g a m e w it h th e c e n t ra l g o v e r n m e n t to d e f e n d th e ir

s o v e r e ig n t y . T h e s i t u a t io n w a s re f le c t e d in th e p o p u la r m a x im o f 's h a n g y o u z h e n c h e , x ia y o u d u i

c h e ' ( w h e n e v e r t h e c e n t r a l g o v e r n m e n t in s t i t u t e s a n a t io n a l p o l i c y , t h e lo c a l g o v e r n m e n t s

o v e r c o m e it w it h p r o v in c ia l s t ra te g ie s) . S e e L i n o te 4 2 8 s u p ra at 4 0 1 .

558 T h e s u p r e m a c y o f l a w o r 'r u l e o f l a w ' w a s s e e n a s a s o u r c e o f s t a b i l i t y , p r e d ic t a b i l i t y , a n d

l im it a t io n o n t h e a r b i t r a r y p o w e r o f g o v e r n m e n t . T h e e s t a b l i s h m e n t o f a s t r o n g le g a l s y s t e m fre e

f r o m e x t e r n a l in t e r f e r e n c e w a s a m o n g th e m o s t im p o r t a n t in s t i t u t io n a l d e v e l o p m e n t s th a t C h i n a

r e m a in e d c o n f r o n t e d to. T h e N a t i o n a l P e o p l e 's C o n g r e s s at its a n n u a l m e e t in g in M a r c h 1 9 9 9

a m e n d e d th e C o n s t i t u t io n to in c o r p o r a t e th e 'r u le o f la w '.

559 W i l l i a m P. A l f o r d , '" S e e k T r u t h F r o m F a c t s " - E s p e c ia l l y W h e n T h e y a re U n p le a s a n t : A m e r i c a 's

U n d e r s t a n d i n g o f C h i n a 's E ffo rts at L a w R e f o r m ', 8 ( 2 ) U C L A P a c if ic B as in L a w J o u rn a l ( 1 9 9 0 ) , at

1 8 2 .

560 T h e 's e p a r a t i o n o f p o w e r s ' d o c t r in e , o r ig in a t in g w it h M o n t e s q u i e u a n d re a l i s e d in c o n s t i t u t io n s

o f t h e W e s t e r n c o u n t r ie s , is d e s c r i b e d a s b e in g th e a u t o n o m y o f le g i s la t u r e , e x e c u t iv e , a n d

j u d ic ia r y . T o d d R . B e n s o n , 'T a k i n g S e c u r i t y in C h in a : A p p r o a c h i n g U . S . P r a c t ic e s ? ', 2 1 ( 1 ) The Yale

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checked by the fact that Marxism-Leninism has always insisted that only

legislatures could interpret statutes and not the courts of justice.561

The advance of the modernising forces was also held up by the fact that the

Open-door policy led to a trend of uncontrolled legislation and a confusing body

of law.562 Since the launch of the economic reform, there have been about 1,700

legislative acts promulgated within China. Autonomous regions, provinces have

passed many of these laws. Although these local bodies were theoretically under

China's central leadership's control, and their actions had to conform to the

Party's will, in fact, that was rarely the case.563 At the end of the 1990s, law in

China became so local and ephemeral as to defy rational organisation or

understanding of what was currently in forced64 Finding the applicable law

became an impossible task for members of the forces of modernisation, such as

judges and lawyers, to attack the forces of reaction. It was argued that people did

"not know which rule they [were] supposed to follow".565 566

More precisely, concerning the aim of the modernising forces to protect

copyright, their troops were harmed, as the principal copyright administration

department was uncertain about its role. An infringement, falling under article 46

of the Copyright Law, rendered a defendant liable not only for the civil remedies

under article 45 of the Copyright Law,560 but also to sanctions imposed by

J o u rn a l o f In te rn a t io n a l L a w ( 1 9 9 6 ) , at 1 9 4 . O n e o f th e m a j o r c r i t i c i s m s o f C h i n a 's c o u r t s y s t e m

w a s th a t its d e c i s i o n - m a k in g p r o c e s s e s w e r e n o t in s u la t e d f r o m p o l i t ic a l i n f lu e n c e a n d , in fact, w a s

s u b j e c t to d i r e c t p o l it ic a l a n d e c o n o m ic in f lu e n c e s .

561 O f t e n , t h e r e w a s n o d i s t in c t io n b e t w e e n 'o f f i c ia l p o l i c y ' a n d 'o f f i c i a l s ' r e f e r e n c e s ' in C h in a .

L a w y e r s r e p o r t e d tha t w h e n t h e y c o n t a c t e d s o m e b u r e a u to a s k a b o u t c h a n g e s in th e la w , o r in th e

a b s e n c e o f la w s , a b o u t c la r if ic a t io n s , t h e y o b t a in e d ju s t t h e a r b it r a r y in t e r p re t a t io n o r w h i m o f th e

o f f ic ia l a s k e d . S e e L u b m a n n o te 4 1 0 su p ra at 1 3 - 1 4 .

562 S e e J e n c k e s n o t e 4 0 9 sup ra at 5 5 5 .

563 Y o n g Z h a n g , 'A n O v e r v i e w o f th e S o u r c e s o f C h i n e s e A d m in i s t r a t i v e L a w , 2 1 ( 6 ) R e v ie w o f C e n tra l a n d East E u rop ea n L a w ( 1 9 9 5 ) , at 6 0 3 . T h e p r e a m b le to t h e 1 9 8 2 C o n s t i t u t io n d e c la r e d

th a t t h e C h a r t e r w a s th e f u n d a m e n t a l l a w o f t h e S ta te a n d p o s s e s s e d s u p r e m e le g a l a u t h o r i t y .

S e c t io n s 2 . a n d 3 o f A r t ic le 5 p r o c l a im e d tha t " n o la w o r a d m in i s t r a t iv e r e g u la t io n s o r lo c a l r u le s

s h a l l c o n t r a v e n e th e C o n s t i t u t i o n " . A l l S ta te o r g a n s , t h e a r m e d f o r c e s , a ll p o l i t i c a l p a r t ie s a n d

p u b l i c o r g a n i s a t io n s , a n d a ll e n t e rp r is e s a n d u n d e r t a k in g s h a d to a b id e b y th e C o n s t i t u t io n a n d th e

la w s .

564 S e e J e n c k e s n o te 4 0 9 supra at 5 5 5 .

565 S e e C la r k e n o te 4 0 3 sup ra at 5 8 .

566 T h e C o p y r i g h t L a w e n u m e r a t e d 1 5 s o r t s o f a c ts , i n f r i n g in g t h e c o p y r i g h t o w n e r 's e x c l u s i v e

r ig h t s , r e m u n e r a t io n r ig h t s , a n d m o r a l r ig h t s u n d e r a r t ic le s 4 5 a n d 4 6 . A r t ic le 4 5 s ta te d th a t to

m a k e p u b l i c a w o r k o r to d i s c l o s e it w i t h o u t th e a u t h o r i s a t io n o f t h e r e le v a n t c o p y r i g h t o w n e r

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copyright administrations at various levels.567

The National Copyright Administration, the highest regulatory authority in China,

was set up in 1985. As a copyright administration department under the State

Council, it was responsible for rulemaking, investigating, managing domestic and

foreign copyright affairs, and supervising lower-level China's copyright agencies

(article 8 of the Copyright Law).568 Its functions were set by the Implementing

Regulations. The latter empowered the NCA to order the pirates to cease their

actions, to publicly apologise to the copyright owners, to pay compensation to

them for loss sustained, to confiscate any illegal profits, resulting from the

violation, and to levy fines against the offenders.569 To fulfil its various tasks, the

NCA established a copyright department as its functional organ and a series of

copyright administration departments in each of the provinces, autonomous

regions, and municipalities570 of the country under the State Council.571 As the

NCA was responsible for the investigation, handling of illegal activities that were

c o n s t i t u t e d a n i n f r in g e m e n t o f t h e r ig h t o f d i v u l g a t i o n a s s ta te d in a r t ic le 1 0 -1 o f t h e C o p y r i g h t

L a w . H o w e v e r , t h e a u t h o r m ig h t n o t n e c e s s a r y b e th e c o p y r i g h t o w n e r a s in th e c a s e o f a w o r k

f a l l i n g w i t h i n c l a u s e s 1 a n d 2 o f a r t ic le 1 6 o f th e C o p y r i g h t L a w . T h i s p o s i t io n w a s q u i t e d if fe re n t

t o th a t in m o s t A n g l o - A m e r i c a n c o p y r i g h t la w s w h e r e t h e re w a s n o o b v i o u s p r o t e c t io n o f th e r ig h t

o f d i v u l g a t i o n . T h e p r o h ib i t i o n s in a r t ic le 4 6 la r g e ly f o l l o w e d th e r ig h t s c o n f e r r e d in a r t ic le 1 0 . T h e

r e a s o n fo r t h e s e a c t s f a l l i n g in t o a s e p a r a t e a r t ic le w a s th a t t h e y d id n o t o n l y in f r in g e th e r ig h t s o f

th e c o p y r i g h t o w n e r , b u t a l s o v io la t e p u b l i c o rd e r. S e e Z h e n g et a l n o te 6 9 su p ra at 1 4 3 - 1 4 5 .

567 Ib id a t 1 8 8 . T h e r e a s o n fo r t h e s e a d d i t i o n a l s a n c t io n s l ie d in t h e r a t io n a le t h a t in f r i n g in g

a c t iv i t ie s l i s t e d in a r t ic le 4 5 w e r e n o t o n l y s e e n to in f r in g e th e r ig h t s o f t h e c o p y r ig h t o w n e r , b u t

a l s o to h a r m t h e p u b l i c in te re st.

568 S e e H u n o t e 1 9 7 s u p ra at 9 1 .

569 C h e n g Y o n g - S h u n , 'J u d ic ia l P r o t e c t io n o f In t e l le c tu a l P r o p e r t y R ig h t s in C h i n a ', C h in a Law , at

6 8 . A r t i c l e s 5 0 - 5 3 ( c h a p t e r s i x o f t h e Im p le m e n t in g R e g u la t i o n s ) a l s o s ta te d th a t t h e c o p y r i g h t

a d m in i s t r a t i v e a g e n c ie s , at b o t h t h e c e n t r a l a n d lo c a l le v e ls , h a d t h e a u t h o r i t y to im p o s e c iv i l

p e n a l t ie s f o r v io l a t i o n s s p e c i f ie d u n d e r a r t ic le 4 6 o f th e C o p y r i g h t L a w . In a c c o r d a n c e w i t h a r t ic le

5 1 o f t h e Im p le m e n t i n g R e g u la t i o n s o f th e C o p y r i g h t L a w , th e a m o u n t o f t h e f in e im p o s e d fo r a n

i n f r i n g i n g a c t a g a in s t c o p y r i g h t e n u m e r a t e d in a r t ic le 4 6 o f t h e C o p y r i g h t L a w d e p e n d e d o n th e

s e r i o u s n e s s o f t h e c a s e . A n in f r in g in g act, a s m e n t io n e d in a r t ic le 4 6 -1 o f t h e C o p y r i g h t L a w , w a s

l ia b le t o a f in e o f R M B 1 0 0 - 5 , 0 0 0 . A n i n f r in g in g act, a s m e n t io n e d in a r t ic le 4 6 - 2 to 4 6 - 6 o f th e

C o p y r i g h t L a w w a s l ia b le to a f in e r a n g in g f r o m R M B 1 0 , 0 0 0 - 1 0 0 , 0 0 0 o r a n a m o u n t o f t w o to f iv e

t im e s t h e p r i c e in to ta l v a lu e o f th e i n f r in g in g c o p ie s . A n i n f r in g in g a c t a s m e n t io n e d in a r t ic le 4 6 -

7 o f t h e C o p y r i g h t L a w w a s l ia b le to a f in e o f 1 , 0 0 0 - 5 0 , 0 0 0 . S e e C h i n o t e 4 0 0 sup ra at 3 3 .

570 C h e n Z h a o k u a n , 'A d m in i s t r a t i v e M a n a g e m e n t a n d E n f o r c e m e n t o f C o p y r i g h t in C h i n a ', 9 ( 1 )

D u k e J o u rn a l o f C o m p a ra tiv e a n d In te rn a tio n a l L a w ( 1 9 9 8 ) , at 2 5 0 .

571 T h e S t a t e C o u n c i l o r g a n i s e d a n d c o - o r d in a t e d th e A d m in i s t r a t i o n o f In d u s t r y a n d C o m m e r c e ,

p o l i c y , c o p y r i g h t a d m in i s t r a t i o n , e l e c t r o n i c s in d u s t r y , o t h e r r e le v a n t d e p a r t m e n t s a n d th e

e n f o r c e m e n t t a s k f o r c e s ( w h e r e t h e y e x i s t e d ) to c o n d u c t c o m p r e h e n s i v e i n s p e c t i o n s o f

e s t a b l i s h m e n t s , c o m m e r c i a l l y r e p r o d u c i n g , w h o l e s a l i n g , r e t a i l in g , o r r e n t in g o u t c o m p u t e r

s o f t w a re w i t h in t h e ir r e s p e c t iv e j u r i s d ic t io n s . S e e X u e H o n g et a l n o te 1 8 7 su p ra at 2 4 0 .

Page 2 0 9

important on a national level, and other larger cases it was deemed necessary to

pursue,572 local agencies were simply responsible for handling illegal acts under

their regional jurisdiction.573 The NCA and the local agencies were also

responsible for revoking the licences of the copyrights violators, and responsible

for publicising copyright.

The NCA and the local departments became uncertain about their role in dealing

with the infringement and disputes of copyright, as they had not been granted

jurisdiction by law. China's legislation, in fact, provided only vague instructions to

most of the administrative agencies, which "were left to fill the gaps with their

own enactment".574 Moreover, there were no regulations stipulating whether the

People's Courts could enforce the decisions of the NCA or the local administrative

departments.575 The issue was that they remained particularly 'short-staffed'576 and

'under-resourced',577 exacerbating the pernicious effect of localism. Both local

agencies and departments were lax in their efforts because, by the reality of the

Chinese bureaucracy, they were beholden of the same cadres who wished to

impede enforcement.578 Finally, the lack of co-ordination among responsible

institutions also hampered the work of the NCA and the local departments when

the Chinese pirates acted in different localities.579 Their orders were technically

572 Where a d m in i s t r a t i v e e n f o r c e m e n t w a s l i k e ly to fa il a n d c r im in a l l i a b i l i t y w a s i n v o l v e d , th e

People's Procurate ( t h e P u b l i c P r o s e c u t o r ) o r t h e P u b l i c S e c u r i t y B u r e a u ( t h e p o l i c e ) w a s

approached. See W h e a r e et a! n o te 4 3 1 sup ra at 4 2 .

573 Tan Loke-Khoon, 'C h i n a - N e w L a w s G e t T o u g h o n In t e l le c t u a l P r o p e r t y In f r in g e m e n t ', 13(1) Asia Pacific L e g a l D e v e lo p m e n ts B u lle t in ( 1 9 9 8 ) , at 7.

574 David Blumental, ' " R e f o r m " o r " O p e n i n g " ? R e f o r m o f C h i n a 's S t a t e - O w n e d E n t e r p r i s e s and W TO Accession - The D i l e m m a o f A p p l y i n g G A T T to M a r k e t i z i n g E c o n o m i e s ', 1 6(2) UCLA Pacific Basin Law journal (1998), at 2 3 7 .

575 Wan Fei, 'C o p y r i g h t P r a c t i c e in t h e T w o R e g i m e s o f O n e C o u n t r y : A p r o s p e c t i v e

Harmonisation P r o c e s s in H o n g K o n g a n d th e P R C ', 1 9 (7 ) E u ro p e a n In te l le c tu a l P ro p e r ty R e v ie w (1997), at 361.576 As of May 1 9 9 4 , t h e N a t i o n a l C o p y r i g h t A d m in i s t r a t i o n h a d o n l y f i v e o f f ic e r s r e s p o n s ib l e fo r

copyright e n f o r c e m e n t in a ll o f C h i n a . B e s i d e s t h e l a c k o f a d m in i s t r a t i v e p e r s o n n e l , th e

administrative s y s t e m w a s c r i t i c i s e d f o r i n s u f f i c i e n t k n o w l e d g e o f c o p y r i g h t a n d a r b i t r a r y

performance of in v e s t ig a t io n s . S e e K a c h u r ia k n o te 4 2 4 su p ra at 6 1 1 .

577 See Ho note 4 3 4 sup ra at h t t p : / / w w w . h o u s t o n . c o m . h k / h k g ip d / p i r a c y . h tm l ( p a g e 12 ).

578 The power o f e n f o r c e m e n t s t a y e d in t h e a g e n c i e s ' r e g io n a l b r a n c h e s , w h e r e o f f i c i a l s w e r e

subject to local p re s s u re s . S e e Li n o te 4 2 8 s u p ra , at 4 0 2 .

579 Due to historical r e a s o n s , th e c o m p e t e n t a d m in i s t r a t iv e a u t h o r i t ie s f o r in d u s t r ia l p r o p e r t y a ffa ir s

in China were d is p e r s e d w it h t h e P a te n t O f f i c e (in c h a r g e o f p a te n t s ) a n d th e S ta te A d m in i s t r a t io n

for Industry and C o m m e r c e ( in c h a r g e o f th e r e g is t r a t io n o f t r a d e m a r k s a n d e n t e rp r is e n a m e s ) . T h e

competent a d m in i s t r a t iv e a u t h o r i t ie s fo r c o p y r ig h t w e r e th e N a t i o n a l C o p y r i g h t A d m in i s t r a t i o n (in

Page 2 1 0

binding on losing parties in any jurisdiction within China, but to get an

enforcement authority in another jurisdiction to honour a judgement from another

locality was problematic. For example, local police were often unwilling to co­

operate.580 Officials and/or cadres were very reluctant to allow 'foreign'

departments to act against local pirates. Members of the orthodox forces often

opposed cross-locality enforcement on the theory that 'fertile water should not be

allowed to flow into the fields of others'.581

In February 1995, the W o rk in g C o n fe re n c e o n In te lle c tu a l P ro p e rty R ig h ts582

adopted an action program throughout China called ' L o c a l Task Forces '583 under

the auspices of the 1995 MOU. This national network was established to co­

ordinate various administrative enforcement agencies. It received broad powers to

search and seize, fine and shut down a large number of illegal factories.584 In

addition, contact persons were appointed to speed up complaint processes.585

Petitions by both foreign and domestic right holders had to be answered within 15

days.586 Under the action program, audio-visual goods and software in any format

c h a r g e o f c o p y r i g h t a ffa ir s ) a n d t h e S o f t w a r e A s s e s s m e n t a n d R e g i s t r a t io n C e n t r e ( in c h a r g e o f

c o m p u t e r s o f t w a r e ) . U n d e r t h e s e a u t h o r i t ie s , m a n y l o c a l a d m i n i s t r a t i v e a u t h o r i t i e s w e r e

e s t a b l i s h e d , f o r m in g a v a s t n e t w o r k c o v e r i n g t h e w h o l e C h i n e s e t e r r it o r y . " [ C J o n s t a n t c o ­

o r d in a t i o n is n e c e s s a r y b e t w e e n th e a d m in i s t r a t iv e a u t h o r i t ie s in t h e s a m e f ie ld in o r d e r to h a v e a

r e l a t i v e l y c o n s i s t e n t s t a n d a r d in t h e h a n d l i n g o f d i s p u t e s . " " [ C ] o - o r d i n a t i o n b e t w e e n th e

a d m in i s t r a t i v e a u t h o r i t i e s a n d t h e c o u r t s is a l s o n e c e s s a r y . " W a n g Z h e n g f a , 'A d m i n i s t r a t i v e

R e s o lu t io n o f In t e l le c t u a l P r o p e r t y In f r in g e m e n t in C h i n a - A n A l t e r n a t iv e to L i t ig a t io n ', 3 ( 3 ) C h in a P atents & T ra d e m a rk s ( 1 9 9 2 ) , at 1 3 .

580 S e e C la r k e n o t e 4 0 6 s u p ra at 7 1 .

581 T h e s u b o r d i n a t i o n o f th e c o u r t s to h ig h e r p o l i t i c a l c o n c e r n s w a s m a n i f e s t e d b y t h e l im it s o n

t h e ir j u r i s d ic t io n . S e e L u b m a n n o te 4 1 0 sup ra at 1 0 . In th e C h i n e s e p o l i t ic a l s y s te m , C o u n t y A in

P r o v i n c e X c o u l d n o t te ll C o u n t y B in P r o v in c e Y w h a t to d o in a n y m a tte r. S e e T u r n e r n o t e 3 9 7

s u p ra a t 4 5 .

582 T h e C o n f e r e n c e , a n o n - g o v e r n m e n t a i c e n t re , w a s in s t it u te d in S e p t e m b e r 1 9 9 4 in B e i j in g . Its

p r im a r y f u n c t io n w a s t o m o n i t o r th e e n f o r c e m e n t o f in t e l le c t u a l p r o p e r t y r ig h t s n a t io n a l l y a n d

r e g io n a l l y .

583 A l l t a s k f o r c e s h a d t h e n e c e s s a r y le g a l a u t h o r i t y t o in v e s t i g a t e in f r i n g e m e n t s , i m p o s e

a d m in i s t r a t i v e p e n a l t ie s , a n d tu rn c r im in a l c a s e s o v e r to p r o s e c u t o r s . S e e H u n o te 1 9 7 su p ra at

1 0 7 .

584 T h e a c t io n p r o g r a m w a s in t e n d e d to s p e c i f i c a l l y t a rg e t lo c a l g o v e r n m e n t a l o f f ic ia l s w h o o fte n

b e n e f i t f r o m c o p y r i g h t v io l a t i o n s . T h e a c t io n p r o g r a m w a s in c o n f l i c t w i t h C h i n a 's le g i s la t io n

b e c a u s e u n d e r C h in e s e la w , o n l y th e c o u r t s , th e P r o c u r a t o r O f f ic e , a n d t h e P u b l i c S e c u r i t y B u r e a u

h a v e th e r ig h t to c o n d u c t s e a r c h e s . S e e Li n o te 4 2 8 sup ra at 4 0 5 .585 S e e W h e a r e et a I n o te 4 3 1 su p ra at 4 1 .

586 T h e p e t i t io n s n o t o n l y t re a te d f o r e ig n a n d C h i n e s e c o p y r i g h t h o ld e r s e q u a l l y fo r e n f o r c e m e n t

p u r p o s e s , b u t a l s o s t r e n g t h e n e d f o r e ig n c o p y r i g h t h o ld e r s ' e n f o r c e m e n t p o w e r . T h e y i n c l u d e d th e

n a m e , o c c u p a t i o n , a n d a d d r e s s o f e a c h p a r ty to th e c a s e o r, w h e r e t h e p a r t y w a s a le g a l p e r s o n o r

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or form, including video games, diskettes, hard drives, CD-ROMs or other media

became the focus of copyright enforcement.587 These Local Talk Forces have been

patchily implemented, though successful in some areas.

Under the 1 9 9 5 A c t io n P lan, the State Council also enacted the 1995 R egu la tions

fo r th e P ro te c t io n o f In te lle c tu a l P ro p e rty R igh ts b y th e C u s to m s A u th o r i ty to

strengthen the protection of intellectual property rights of all imports588 and

exports.589

In June 1996, the 1996 M O U enlisted the Chinese national police, the M in is tr y o f

P u b l ic S e c u r ity , in the effort to enforce intellectual property legislation,

"presumably because its well-known toughness would enable it to do a better job

than civil authorities in rooting out piracy".590 In 1997, the Im p le m e n tin g

M e a s u re s fo r A d m in is t ra t iv e P e n a ltie s a g a in s t C o p y r ig h t In fr in g e m e n ts were

passed by the NCA on January 28 and came into effect on February 1.591 In

a n y o t h e r o r g a n i s a t io n , its n a m e , a d d re s s , a n d th e n a m e a n d p o s i t io n o f its le g a l r e p r e se n t a t iv e o r

its m a i n p e r s o n n e l . T h e y a l s o i n c l u d e d th e r ig h t c e r t if ic a t e d o c u m e n t o r t h e in f r in g e d w o r k , o r

s a m p l e o f o t h e r p r o d u c t s , a n d th e f a c t s a n d g r o u n d s o n w h i c h t h e d e m a n d fo r a d m in i s t r a t i v e

p e n a l t ie s a n d c o m p e n s a t i o n w a s b a se d . T h e y f in a l ly in c lu d e d a n y e v id e n c e a n d its s o u r c e , a s w e l l

a s th e n a m e s a n d a d d r e s s e s o f w it n e s s e s . S e e X u e H o n g et a! n o te 1 8 7 s u p ra a t 2 4 5 .

587 Ib id at 2 4 0 .

588 N e i t h e r t h e C o p y r i g h t L a w n o r th e S o f t w a r e R e g u la t io n s a d d r e s s e d t h e im p o r t a t io n o f in f r in g in g

o r u n a u t h o r i s e d g o o d s .

589 In a c c o r d a n c e w it h th e R e g u la t io n s , im p o r t s a n d e x p o r t s th a t w e r e d e t e r m in e d to b e in f r in g in g

r ig h t s h a d t o b e s e iz e d , f o r fe it e d , a n d d e s t r o y e d o r e x c l u d e d f r o m t h e c h a n n e l s o f c o m m e r c e .

In f r i n g in g a r t ic le s s e i z e d a n d fo r fe it e d fo r v io la t io n o f C h i n a 's c o p y r i g h t l a w s h a d to b e d e s t r o y e d .

T h e G e n e r a l A d m in i s t r a t i o n o f C u s t o m s h a d to n o t i f y a n a p p l i c a n t o f its d e c i s i o n w it h in 3 0 d a y s o f

r e c e i v i n g a c o m p le t e a p p l i c a t i o n . If a p p r o v e d , th e a p p l i c a n t w a s i s s u e d w i t h a n In t e l le c t u a l

P r o p e r t y R i g h t s C u s t o m s P r o t e c t io n R e c o r d i n g C e r t if ic a t e . If r e fu s e d , t h e G e n e r a l A d m in i s t r a t i o n

f o r C u s t o m s h a d to s ta te t h e g r o u n d s fo r re fu sa l. A r e c o r d in g w a s v a l i d f o r s e v e n y e a r s a n d w a s

e x t e n d a b le f o r f u r t h e r s e v e n - y e a r p e r io d s . T h e C u s t o m s R e g u la t io n s e m p o w e r e d C h i n e s e C u s t o m s

t o im p o s e a f in e e q u iv a le n t to t h e C IF p r ic e o f th e Im p o r t g o o d s a g a in s t a c o n s i g n o r o r c o n s i g n e e

w h o k n e w o r o u g h t to h a v e k n o w n th a t h i s o r h e r im p o r t/ e x p o r t g o o d s in f r in g e d th e in t e l le c t u a l

p r o p e r t y r i g h t s o f o t h e r s . A s im i l a r f in e c o u ld b e im p o s e d a g a in s t a c o n s i g n o r o r c o n s i g n e e w h o

d id n o t t r u t h f u l l y r e p o r t r e le v a n t in t e l le c t u a l p r o p e r t y r ig h t s o f im p o r t / e x p o r t g o o d s o r d e l i v e r

in t e l le c tu a l p r o p e r t y r ig h t s d o c u m e n t s fo r in s p e c t io n . S e e S h a n n o n et a l n o t e 5 3 2 sup ra a t 2 3 .

590 T h e M i n i s t r y o f P u b l i c S e c u r i t y h a d b e e n at th e h e a r t o f 'S t r ik e H a r d ', t h e s w e e p in g n a t io n w id e

a n t i - c r im e c a m p a i g n th a t in 1 9 9 6 , a c c o r d i n g to A m n e s t y In t e r n a t io n a l , p r o d u c e d t h o u s a n d s o f

a r r e s t s a n d a t le a s t 3 , 5 0 0 e x e c u t i o n s . W i l l i a m P. A l f o r d , 'M a k i n g t h e W o r l d S a f e f o r W h a t ?

I n t e l le c t u a l P r o p e r t y R ig h t s , H u m a n R ig h t s a n d F o r e ig n E c o n o m ic P o l i c y in t h e P o s t - E u r o p e a n

C o ld W a r W o r l d ', 2 9 In te rn a tio n a l L a w a n d P o lit ic s ( 1 9 9 6 - 1 9 9 7 ) , at 1 4 3 .

591 U n d e r t h e s e M e a s u r e s , t h e N C A in v e s t ig a t e s a n d h a n d le s i n f r i n g e m e n t s a g a in s t c o p y r i g h t

( i n f r i n g e m e n t s t h a t a re o f n a t io n a l i n f l u e n c e a n d th a t a re th e r e s p o n s i b i l i t y o f th e N C A ) . T h e

l im it a t io n p e r i o d r e g a r d in g th e im p o s in g o f a d m in i s t r a t iv e p e n a l t ie s is t w o y e a r s , r u n n in g f r o m th e

d a te w h e n t h e i l l e g a l a c t s f in i s h e d . T h e n e w M e a s u r e s b r o u g h t a s i g n i f i c a n t c h a n g e f o r f o r e ig n

c o p y r i g h t o w n e r s , a s f o r e i g n n a t io n a l s n o l o n g e r n e e d to b r i n g c o m p l a i n t s to t h e N C A fo r

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August 1998, an intellectual property section was established within the Ministry

of Public Security. Some provinces then followed by setting up similar sections in

the latter half of the year.

In June 1998, the State In te lle c tu a l P ro p e rty O ff ic e was established on the basis of

the C h in a P a te n t O ff ic e .592 The new administration was set up to take over the

responsibility of the Working Conference on Intellectual Property Rights593 to

eliminate interference by local protectionism and to ensure effective law

enforcement throughout the country594 to punish copyright violations.

In the fight against the orthodox forces to adopt a comprehensive copyright

organisation, the forces of modernisation stressed that the obstacle was, in fact,

that "China consisted] of segments - the coast vs. the hinterland, urban vs. rural.

Each segment ha[d] a different culture, tastes and history".595 The modernising

forces revelled that to enforce intellectual property rights, such as copyright, in

China was too often a function of power, influence, politics, and culture. To the

modernising forces, it was a classic chicken and egg problem. They often found it

difficult to determine whether localism was responsible for making the

administration unable to enforce the copyright legislation or the systematic

weakness of the administration was responsible for allowing localism to

flourish.596

To the modernising forces, both laws and judgements were part of China's

institutional framework within which the Chinese economic modernisation was

h a n d l i n g . F o r e i g n c o p y r i g h t o w n e r s n o w lo d g e c o m p la i n t s w i t h L o c a l C o p y r i g h t A d m in i s t r a t i o n

D e p a r t m e n t s . It e x p e d i t e s t h e p r o c e s s o f u n d e r t a k in g e n f o r c e m e n t a c t i o n s c o n s i d e r a b l y a n d

p r o v id e s c o p y r i g h t o w n e r s g r e a te r p r o t e c t io n at th e lo c a l le ve l. S e e L o k e - K h o o n n o te 5 7 3 sup ra at

9 .

592 T h e 'S t a t e IP O f f i c e ' w a s a l s o k n o w n a s th e 'C h i n e s e In t e l le c t u a l P r o p e r t y A d m in i s t r a t i o n '. T h e

C h i n a P a t e n t O f f i c e w a s r e s p o n s i b l e f o r p a te n t a p p l i c a t i o n s a n d t h e ir a d m in i s t r a t io n . W h i l e th e

S ta te In t e l le c t u a l P r o p e r t y O f f i c e m a in t a in e d t h is ro le , it w e n t f u r t h e r b y a s s u m in g a n u m b r e l la

f u n c t io n in r e s p e c t o f a l l f o r e ig n - r e la t e d in t e l le c t u a l p r o p e r t y i s s u e s . L u k e M i n f o r d a n d A u g u s t

Z h a n g , 'In t e l le c t u a l P ro p e r t y D e v e l o p m e n t s in th e P R C 1 9 9 8 to 1 9 9 9 ', IP P ro file s ( 1 9 9 9 ) , at 2 9 .

593 T h e S t a t e C o u n c i l ' s In t e l le c t u a l P r o p e r t y R ig h t s W o r k i n g C o n f e r e n c e O f f i c e ( p r e v i o u s l y th e

r e s p o n s i b i l i t y o f t h e S ta te C o m m i s s i o n fo r S c i e n c e a n d T e c h n o l o g y ) w a s se t u p in J u ly 1 9 9 4 to

in it ia te a n a c t io n p r o g r a m fo r in t e l le c tu a l p r o p e r t y r ig h t s e n f o r c e m e n t a n d p r o t e c t io n a c r o s s C h in a .

S e e D u a n n o t e 3 8 8 su p ra at 21 7.

594 S e e X u e H o n g et a l n o te 1 8 7 su p ra at 2 3 9 .

595 U e s h i m a S h i g e j i , A s i a w e e k , F o ru m - C h in a 's P ro s p e c ts - In S h a n g h a i, a c o n fe re n c e o f c a p ita lis ts p o n d e rs th e c o u n try 's fu tu r ', A s ia w e e k , 1 5 O c t . 1 9 9 9 , a t 4 2 .

596 S e e B e r k m a n n o t e 4 0 1 su p ra at 2 3 .

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being carried out.597 As decisions were not enforced, the rules that they purported

to implement had very little significance.598 According to some commentators, if

law was defined as the decisions of local forces, then perhaps 'law' in China

"meant something much different" to what it did in the West at the same time.599

The issue to enforce China's copyright legislation stemmed, above all, from a

widespread ignorance of the Copyright Law among the whole Chinese

population.

On the problem of widespread ignorance of the law: China has too much law and too little legality600

The forces of modernisation finally decided to tackle the consciousness and

behaviour of the many million of far more ordinary Chinese people for whom

intellectual property was essentially remaining a foreign concept in every sense of

the word.601 In the tactics of the modernising forces, education (jiaoyu) rapidly

became the "cure for cultural disincentives against protecting copyright".602

The general understanding of China's population of intellectual property matters

was still very vague and weak in the 1990s.603 More than 10% of the population

was semi-illiterate, or illiterate. Additionally, more than 250 out of over 2000

counties of the country had no public libraries. The annual personal income of

5% of rural families was less than 200 RMB (approximately US$ 40).604 Given

597 S e e C la r k e n o t e 4 0 6 sup ra at 6 5 .

598 T h e C h i n e s e t e rm 'z h i x i n g n a n ' m e a n s th e 'd i f f ic u l t y in e x e c u t in g j u d g e m e n t s '.

599 S e e B e n s o n n o t e 5 6 0 su p ra a t 1 9 2 .

600 S e e A l f o r d n o t e 4 0 sup ra at 2 1 .

601 S e e A l f o r d n o t e 5 9 0 sup ra at 1 4 2 .

602 S e e C h e n g n o t e 5 3 9 sup ra at 2 0 0 8 .

603 Z h e n g S o n g y u , 'In t e r v ie w : E d u c a t io n V it a l f o r In t e l le c t u a l P r o p e r t y P r o t e c t io n in C h i n a ', 9 IP Asia ( 1 9 9 2 ) , N o v . , at 3 0 . It w a s m o r e t h a n l ik e ly tha t p e o p le d id n o t p e r c e iv e c o p y i n g a C D a s a n

i l l e g a l a c t in C h i n a . T h e y g e n e r a l l y d id n o t u n d e r s t a n d t h e v e r y n a t u r e o f t h e o w n e r s h i p o f a

c o p y r i g h t o r p o s s e s s i o n o f a p r o p r ie t a r y in te re s t in p ro p e r t y . S e e T ie f e n b r u n n o t e 5 8 su p ra at 3 7 .

P e o p le w e r e a c c u s t o m e d to r e c o g n i s in g m a te r ia l p r o p e r t y a n d t o o k it f o r g r a n t e d to p a y f o r rent,

e le c t r ic it y , o r w a t e r s u p p ly . H o w e v e r , t h e y w e r e n o t y e t u s e d to r e c o g n i s i n g in t e l le c tu a l p ro p e r t y ,

a s if o n l y t h e in t e l le c t u a l k n o w l e d g e c o u ld b e u s e d f re e o f c h a r g e . X u C h a o , 'O n S u p e r - n a t io n a l

T r e a tm e n t - D i s c u s s i o n o n th e R e v i s i o n o f th e C h i n e s e C o p y r i g h t L a w ( I) ', 5 6 ( 1 ) C h in a P aten ts a n d T ra d e m a rks ( 1 9 9 9 ) , at 5 1 .

604 S e e Y a n g n o t e 1 4 9 sup ra at 2 6 8 .

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China's vastness in size and being the most populated country in the world,605 the

task of the modernising forces was wide. The fourth bastion hold by the forces of

reaction was hardly alterable. The high command of the forces of modernisation

believed then that to educate the Chinese population about intellectual property

matters would "take time".606

The modernising forces decided to tone down the social atmosphere, making light

of legal obligations. Although Chinese people had little trouble understanding the

need for laws proscribing murder or robbery, they were not seeing activities that

infringed intellectual property as morally wrong because most people perceived

that the copying of software, for example, was not causing very much harm to

anyone.607 Consequently, they did not regard intellectual property laws as

enforcing important interests.608 Second, given the low level of legal knowledge

throughout Mainland China, Chinese holders of intellectual property rights were

unable to understand their legal options when their rights were being violated.

Moreover, those who could understand such rights had little faith that the legal

system could protect them.609 The lack of legal awareness among the citizenry610

resulted in an unresponsive public to the call, predominantly by distant foreigners,

for rigorous enforcement of abstract and complex property rights. These claims

were frequently viewed with considerable suspicion. 611 Third, legal obligations

were placed secondary by people to considerations of 'who you know' or they

were treating such obligations as a matter of luck (in whether they got caught)

rather than a matter of pride or social obligation. This particularity gave rise to the

view that only the unlucky pirates, or more precisely the ones without 'guanxi'

605 T h e P e o p le 's R e p u b l i c o f C h i n a m a in t a in e d p o s i t i v e p o p u la t io n g r o w t h w it h o v e r 1 . 2 3 b i l l i o n

p e o p le c o v e r in g m o r e th a n 3 . 6 m i l l i o n s q u a r e m ile s .

606 S e e Z h e n g S o n g y u n o t e 6 0 3 sup ra at 3 1 . " T h e r e is s i m p l y n o b a s i s f o r a s s u m in g th a t a v a s t

p o p u la t io n , s p r e a d o v e r a c o n t in e n t - s i z e d la n d , u n c e r t a in a b o u t v e r y b a s i c a n d im m e d ia t e r ig h t s o f

its o w n , w i l l a c c o r d a h ig h d e g r e e o f p ro t e c t io n to fa r m o r e a b s t r a c t e d a n d c o m p le x p r o p e r t y r ig h t s

c l a i m e d p r e d o m i n a n t l y b y d i s t a n t f o r e i g n e r s , t h e m s e l v e s n o t i n f r e q u e n t l y v i e w e d w i t h

c o n s id e r a b le s u s p i c i o n . " S e e A l f o r d n o te 5 9 0 supra at 1 4 5 .

607 S e e H o n o t e 4 3 4 supra at h t t p :/ / w w w .h o u s t o n .c o m ,h l< / h k g ip d / p ir a c y . h t m l ( p a g e 7).

608 S e e B u r r e l l n o t e 8 8 supra at 2 0 7 .

609 S e e B e r k m a n n o te 4 0 1 sup ra at 3 1 .

610 S e e C h e n g n o t e 5 3 9 supra at 2 0 0 9 .

611 S e e Li n o t e 4 2 8 sup ra at 3 9 7 .

Page 2 1 5

('connection' in Chinese) in high places, would be punished if caught.612

The forces of modernisation placed then heavy emphasis on Chinese business

people and the general population who had to recognise that legal systems

generally create rights, but also impose obligations beyond those rights arising

from normative expectations of social interaction.613 No legal system is self-

enforcing. Legal systems rely on social forces, such as public opinion, peer

pressure, self respect, the shame of being branded a criminal, and so forth, as the

primary mechanism for enforcement. The enforcement of copyright would only

work if a large majority of people complied with the rules voluntarily.614

To launch their offensive, the forces of modernisation received logistical support

from abroad, particularly from their Western allies.

In the West, the existence of intellectual property rights agents, societies, and

groups,615 composed of individual members, have long worked to enforce

intellectual property laws alongside the State, whose only mission has been to lay

down rules and a court system to implement them. Proprietors of intellectual

612 S e e R i l e y n o t e 4 0 0 supra at 6 0 . T h e c h a r a c t e r s th a t c o m p r i s e t h e w o r d 'g u a n x i ' m e a n a j u n c t io n

o r c h e c k p o i n t (a s in S h a n h a i g u a n , t h e p la c e in H e b e i P r o v in c e w h e r e t h e G r e a t W a l l m e e t s th e

s e a ) a n d to t ie u p o r c o n n e c t (a s in th e c o m m o n v e r b 'l i a n x i ', to c o m m u n ic a t e ) . In its n o u n fo rm ,

'x i ' a l s o m e a n s 'a s y s t e m ', s o 'g u a n x i ' c o n v e y s s o m e t h in g l i k e 't y i n g u p in t e r fa c e s y s t e m ', th e

s t a n d a r d t r a n s la t io n s a re 'c o n n e c t i o n s ' o r 'r e l a t i o n s '. S h u h e l i a n d S h a o m i n Li, 'T h e E c o n o m i c s o f

G u a n x i ' , J u l y 1 2 , 2 0 0 0 , a t

h t t p : / / w w w . c h in a o n i in e . c o m / c o m m e n t a r y a n a ly s i s / e c o n o m ic s / c u r r e n t n e w s / s e c u r e / c 0 0 0 7 1 1 4 1 .a sp

a n d P i t m a n B . P o t te r , 'G u a n x i a n d t h e P R C L e g a l S y s t e m : F r o m C o n t r a d i c t i o n to

C o m p l e m e n t a r i t y ' , F e b r u a r y 9 , 2 0 0 0 , a t

h t t p : / / w w w . c h in a o n l in e . c o m / c o m m e n t a r y a n a l y s i s / le g a l/ c u r r e n t n e w s / s e c u r e / C 0 0 0 2 1 5 9 9 W i l s o n -

S . a s p

613 S e e B e r k m a n n o t e 4 0 1 sup ra at 3 1 .

614 S e e R i l e y n o t e 4 0 0 supra at 6 0 .

615 S i n c e u s e r s o f c o p y r ig h t e d p r o d u c t s w e r e m a n y a n d w id e l y lo c a t e d g e o g r a p h i c a l l y ; it w a s h a rd

f o r a n a u t h o r to a u t h o r i s e e a c h o f t h e m , a n d fo r u s e r s to r e c e iv e a u t h o r i s a t io n b y e a c h a u t h o r . A

b r id g e w a s n e e d e d in b e tw e e n , a n d th e b r id g e w a s th e 'C o l l e c t i v e A d m in i s t r a t i o n O r g a n i s a t i o n o f

C o p y r i g h t '. P r a c t ic e p r o v e d th a t th e e s t a b l i s h m e n t o f s u c h a n o r g a n i s a t io n w a s a n e f fe c t iv e m e a n s

t o p r o t e c t t h e la w f u l r ig h t s a n d in t e r e s t s o f t h e a u t h o r s . In C h i n a , t h e a u t h o r s , t h e g e n e r a l

p o p u l a t i o n , a n d t h e l e g i s l a t o r s w e r e r e la t i v e l y u n f a m i l i a r w i t h c o l l e c t i v e a d m in i s t r a t i o n

o r g a n i s a t io n o f c o p y r ig h t . T h e 1 9 9 0 C o p y r i g h t L a w h a d n o p r o v i s i o n s in t h is r e g a rd . O n l y th e

Im p le m e n t in g R e g u la t io n s h a d a n a r t ic le in th e S u p p le m e n t a r y P r o v i s i o n s r e la t in g to t h e m a tte r,

w h i c h p r o v i d e d th a t a c o p y r i g h t o w n e r e x e r c i s e d h i s o r h e r c o p y r i g h t in t h e m o d e o f c o l l e c t i v e

a d m in i s t r a t io n . S e e S h e n n o t e 5 2 4 su p ra at 5 5 - 5 6 . T h e M u s i c C o p y r i g h t S o c ie t y o f C h i n a c a m e

in t o b e in g in 1 9 9 2 . F o r la c k o f p r o v i s i o n s c o n c e r n in g t h e e s t a b l i s h m e n t p r o c e d u r e , le g a l s ta tu s,

a n d m a in f u n c t io n o f th e c o l le c t iv e a d m in i s t r a t io n o r g a n i s a t io n o f c o p y r i g h t in th e C o p y r i g h t L a w ,

it w a s d i f f ic u l t to la u n c h s u c h o r g a n i s a t io n s fo r o t h e r c a t e g o r ie s o f c o p y r ig h t . S e e C h e n n o t e 5 7 0

s u p ra a t 2 5 2 .

Page 21 6

property rights were assisted by State bodies to enforce the rules. For nearly three

hundred years, jurisprudence and scholarship in the West about intellectual

property rights have been inextricably linked to debates about the nature of both

real and personal property. In the context of copyright, the West recognises three

prominent justifications for the recognition of legal rights to protect creative

works. The first justification is based on philosophical notions of natural rights.616

The second one focuses on a common-sense conception of fairness.617 The third

one sees copyright as a public policy instrument for the encouragement of the

production of creative works for the good of the society.618

Similar views were not as easily made in China's context because the Chinese

tradition lacked the essential starting point;619 620 that is an explicit analysis, of

property and property rights.670 China was as technologically advanced, and as

generally prosperous throughout much of the Tang and Northern Song621 as any

area in the world,622 but it did not witness the development of approaches towards

the concept of 'copyright' as the West did in the eighteenth century. China's

technological breakthrough623 did not generate a counterpart to what the West

had termed 'copyright'. To Alford, two reasons explain this gap.624 Either formal or

616 C o m m o n l y c i t e d a s a n e x a m p l e o f t h e n a t u ra l r ig h t s t h e o r y o f c o p y r i g h t is th e s t a t e m e n t o f

J u d g e W i l l e s in M i l l a r v . T a y l o r ( 1 7 6 9 ) . " I t is c e r t a in l y n o t a g r e e a b le to n a t u r a l j u s t ic e th a t a

s t r a n g e r s h o u l d r e a p th e b e n e f ic ia l p e c u n ia r y p r o d u c e o f a n o t h e r m a n 's w o r k . "

617 In s h o r t , t a k in g m a t e r ia l s th a t h a v e b e e n a c q u i r e d b y o t h e r s a s t h e r e su lt o f o r g a n i s a t io n a n d

e x p e n d i t u r e o f la b o u r , s k i l l , a n d m o n e y w a s e n d e a v o u r in g 't o r e a p w h e r e it h a s n o t s o w n '.

618 T h i s a p p r o a c h s a w th e b r o a d e r r o le o f in t e l le c tu a l p r o p e r t y . A s a s o c i a l p o l i c y t o o l, c o p y r i g h t

s t o o d b e t w e e n th e in t e re s t s o f c o m p e t in g g r o u p s , t h o s e o f c o p y r i g h t o w n e r s a n d t h o s e o f t h e

c o n s u m i n g p u b l ic .

619 T h e w a y in w h i c h C o n f u c i a n s p e r c e iv e d a u t h o r s h ip m a d e it p o s s i b l e to s e e c o p y r ig h t a s f o r e ig n

to , a n d c a p a b l e o f c o n f l i c t in g w it h , C h i n e s e c u lt u r e . A l f o r d c h a l l e n g e d t h is a c c o u n t . H e p o in t e d to

t h e n o n - p r o p r i e t a r y n a t u re o f th e r e s t r ic t io n s in Im p e r ia l C h in a , th e la c k o f a n y s p e c i f i c r e m e d ie s

a g a in s t c o p y i s t s o f p r i v a t e l y o w n e d w o r k s a n d , m o s t im p o r t a n t ly , t h e e m p h a s i s p l a c e d o n

r e in t e r p r e t in g t h e p a s t in C h i n e s e c u lt u r e a n d th e r e s u l t in g a b s e n c e o f a f i rm n o t io n o f p la g ia r i s m .

S e e B u r r e l l n o t e 8 8 sup ra at 2 0 1 .

620 S e e O c k o n o te 1 4 3 sup ra at 5 6 7 .

621 A f t e r t h e T a n g d y n a s t y e n d e d in 9 0 7 A D , th e p e r io d o f th e F iv e d y n a s t ie s s ta rte d . T h e L ia n g ,

t h e T a n g , t h e J in, th e H a n , a n d th e Z h o u w e re lo c a l k i n g d o m s , w h i c h d i v i d e d C h i n a u n t i l 9 6 0 A

D . a s t h e S o n g d y n a s t y w a s f o u n d e d .

622 S e e A l f o r d n o te 2 2 sup ra at 1 9 - 2 0 .

623 T h e T a n g in v e n t io n o f p r in t in g a n d th e d e v e l o p m e n t b y th e S o n g o f m o v a b l e t y p e b y B i S h e n g

in 1 0 4 2 c h a r a c t e r is e t h is b r e a k t h r o u g h .

624 S e e A l f o r d n o t e 2 2 sup ra at 3 . A n o t h e r r e a s o n w h y th e t e c h n o l o g i c a l b r e a k t h r o u g h d id n o t

g e n e r a t e a C h i n e s e c o u n t e r p a r t to w h a t t h e W e s t h a d t e rm e d 'c o p y r i g h t ' c o u ld b e e x p l a in e d in

p u r e l y s t r u c t u r a l te rm s. Z h e n g a r g u e d f r o m a M a r x i s t p e r s p e c t iv e th a t to t h e e x t e n t th a t C h i n e s e

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informal bodies of law provided families, guilds, and/or others seeking to preserve

their monopoly over particular items with what the West called 'rights' that might

be invoked to vindicate their claims against the State or against others. Nor was

the provision of State assistance, direct or indirect, merely a matter of privilege.625

Although the successors of the Song, mainly the Ming,626 endeavoured to

strengthen a State control of publication and republication,627 these measures

were not meant to protect intellectual property per se, but rather to censor authors

in an attempt to preserve imperial power. The measures were occasional and

were more publication rights rather than ownership rights of the original

creator.628 The Chinese absence of exclusionary barriers to the inexpensive

appropriation of intellectual goods was due to these factors.629 It can explain why

China did not have such a tradition of explicit analysis of property and property

rights for more than eight hundred years.630

In the 1990s, individual proprietors had not emerged yet in China.631 On the other

hand, the modernising forces estimated that to evolve appropriate Chinese social

institutions and policies to support private property in intellectual property was a

complex process.632 Right holders lacked a basic understanding of the legislation

and enforcement institutions of intellectual property rights in China.633 Moreover,

many people could not afford to pay China's lawyers.634 People viewed the

culture failed t o s u p p o r t p r o p e r t y b a s e d r e s t r ic t io n s o n th e r e p r o d u c t io n o f w o r k s , t h is w a s b e c a u s e

t h e forces of ( r e ) p r o d u c t io n (th e la c k o f a d e v e l o p e d s y s t e m o f f i n a n c e in Im p e r ia l C h i n a o r th e

relatively low levels o f l it e r a c y ) w e r e in s u f f ic ie n t ly d e v e l o p e d to c r e a te m o r e t h a n a m a n a g e a b le

tension between t h e d o m in a n t m o d e s o f e x p r e s s io n a n d th e p r o p e r t y s y s t e m . S e e B u r r e l l n o t e 8 8

supra at 201.625 S e e Alford n o t e 2 2 supra at 2 8 .

626 The Ming dynasty b e g a n to r u le C h i n a in 1 3 6 8 a n d e n d e d in 1 6 4 4 a s th e Q i n g f o r c e s e n te re d

Beijing and founded t h e Q i n g d y n a s t y , w h i c h e n d e d in 1 9 1 1 w i t h t h e a b d ic a t i o n o f t h e la s t

emperor Pu Yi.627 See Alford note 2 2 supra at 18 .

628 S e e C h i e n - H a l e n o t e 1 5 4 sup ra at 2 1 5 .

629 See Alford note 2 2 supra at 2 0 .

630 See Zheng note 1 7 9 supra at 76 .

631 Assafa Endeshaw, 'T h e U S - C h i n a In t e l le c t u a l P r o p e r t y D i s p u t e - A n o t h e r V i e w ', 9 Asia Business Law Review ( 1 9 9 5 ) , at 5 2 .

632 See Samuelson note 3 4 1 supra a t h t t p : / / s im s . b e r k e le y . e d u / ~ p a m /p a p e r s / c h in a ip . h tm l (p a g e 2 ) .

633 Berkman n o t e 4 0 1 supra at 2 6 .

634 See note 4 0 2 supra at 1 5 3 9 . S o m e o f th e lo c a l l a w f i r m s s ta rte d to c h a r g e m o r e t h a n U S $ 2 5 0

per hour for services r e n d e re d . S e e A l f o r d n o te 487 supra at 3 2 .

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litigation process as "expensive, time-consuming, and ineffective".635 Despite

increased litigation rates, there was little evidence concerning whether individuals

were increasingly bringing suit in courts instead of, or in addition to, bringing

their grievances to relevant administrative authorities. Academics commented that

most people with a grievance did not distinguish between courts and other

government actors. In many cases, plaintiffs appeared to resort to the courts only

after complaints to the relevant administrative authorities failed. In other cases,

plaintiffs appeared to pursue a dual-edged attack, using the courts and the

administrative system concurrently.

From their U.S. ally, the modernising forces received a strong support in the mid-

1990s. The 1995 MOU mandated popular education on intellectual property.636

While education could not eliminate the economic interests driving the

widespread piracy of software in China, it could increase awareness of intellectual

property rights among a population that previously had little exposure to notions

of private property and no exposure at all to the alien nature of intellectual

property rights.637

The modernising forces invited foreign intellectual property owners to join them

in their assaults against the forces of reaction. The idea was to encourage China's

own efforts at "self-education" in the field of intellectual property rights,638

635 S e e L i n o t e 4 2 8 s u p ra 4 1 2 .

636 T h e A c t i o n P la n in i t ia t e d e d u c a t i o n a n d t r a in in g c o n c e r n in g in t e l le c t u a l p r o p e r t y p r o t e c t io n ,

h e i g h t e n e d a w a r e n e s s o f in t e l le c t u a l p r o p e r t y r ig h t s t h r o u g h th e m e d ia , a n d p u b l i c i s e d e f fo rt s

c o n c e r n i n g t h e p r o t e c t io n o f t h e s e r ig h t s w h i l e e x p o s i n g in f r in g e m e n t a n d lo c a l p r o t e c t io n i s m . It

a l s o r e q u i r e d a la r g e p u b l i c a t i o n o f in t e l le c t u a l p r o p e r t y la w s a n d r e g u la t io n s . S e e B e r k m a n n o te

4 0 1 sup ra a t 3 3 .

637 A f t e r t h e S ta te C o u n c i l d e c id e d to se t u p th e s y s t e m o f h o l d i n g r e g u la r m e e t in g s to d e a l w it h

in t e l le c t u a l p r o p e r t y m a tte r s , m o r e t h a n 3 0 p r o v in c e s , a u t o n o m o u s r e g io n s , a n d m u n i c ip a l i t i e s

s u c c e s s i v e l y e s t a b l i s h e d th e s a m e s y s t e m o r c o n s t i t u t e d l e a d i n g g r o u p s r e s p o n s i b l e f o r c o ­

o r d in a t i n g a n d d i r e c t in g th e lo c a l w o r k o f in t e l le c t u a l p r o p e r t y p r o t e c t io n . S e e C h e n n o t e 5 1 0

s u p ra a t 1 3 .

638 S e e F l o u m n o t e 4 1 7 sup ra a t 5 9 . It c o n t i n u e d to b e a f o r e n s ic x e n o p h o b i a , u n d e r m in i n g th e

w i l l i n g n e s s o f m a n y f o r e ig n e r s to u s e C h i n a 's le g a l s y s t e m . F o r e ig n r ig h t h o ld e r s c o u ld n o t s im p ly

h o p e th a t d i p l o m a t i c p r e s s u r e w o u l d e l im in a t e p i r a c y . B y s e e k in g r e d r e s s t h r o u g h t h e d o m e s t i c

in s t i t u t io n s , f o r e i g n e r s p u t p o t e n t ia l v io l a t o r s o n n o t i c e o f t h e ir i n t e n t io n to p ro t e c t t h e ir r ig h t s .

L o c a l c a d r e s w e r e le s s l i k e ly to in te r fe re in a c t io n s i n v o l v i n g f o r e ig n e r s b e c a u s e o f th e n o t o r ie t y o f

t h o s e c a s e s . M o r e o v e r , u t i l i s a t io n o f t h e C h i n e s e le g a l s y s t e m b y e x p e r i e n c e d f o r e ig n e r s h e lp e d

u n c o v e r p r o c e d u r a l o b s t a c le s to th e a d j u d ic a t io n o f r ig h t s a s w e l l a s t h e s u b s t a n t iv e w e a k n e s s e s in

le g a l c o d e s . C h i n e s e r ig h t h o ld e r s w e r e a l s o e x p o s e d to W e s t e r n s t r a t e g ie s a n d t e c h n iq u e s fo r

a p p l y i n g l a w to p ro te c t in te l le c tu a l p r o p e r t y r igh ts. S e e B e r k m a n n o te 4 0 1 su p ra a t 4 1 .

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because the high command of the modernising forces, the Chinese government itself, was not able to carry out such large-scale legal training and mass education across China. Therefore, active involvement by both foreign firms639 and lawyers, through 'special' seminars for example, exchange programs, mock proceedings, and other assistance to media, was welcomed to expedite the hard training process.640 For the future development of intellectual property rights in China, foreign companies were encouraged to continue bringing lawsuits in the People's Courts specialised in intellectual property disputes. By engaging China's judicial system, the foreign troops were not only considered to help the system to mature, but also educate the Chinese public.641 As the forces of modernisation claimed, "[i]f the Copyright Law is a textbook from which people acquire an awareness of copyright and use it to regulate their behaviour, then the occurrence and resolution of disputes is a classroom in which to learn about the law".642 To fight the consciousness and behaviour of Chinese people, the forces of modernisation also took advice from jurists who viewed criminal sanctions as a means for educating the whole Chinese public to recognise the importance of intellectual property principles and laws.643 In this way, one of the great offensives launched by the forces of modernisation occurred on July 11, 1998. The first live broadcast ever from inside a People's Court, the Beijing No. 1 Intermediate

People's Court, was transmitted in co-operation with China's Supreme People's Court. The hearing related to a claim of both breach of contract and copyright infringement in respect of the replication and distribution of popular Chinese

639 J o in t v e n t u r e s c r e a t e d a n im m e d ia t e e c o n o m ic in c e n t i v e fo r C h i n a 's e n f o r c e m e n t o f in t e l le c tu a l

p r o p e r t y r ig h t s a n d i n c r e a s e d m a r k e t a c c e s s f o r in t e r n a t io n a l t r a d e p a r tn e r s . T h e y a l s o a s s i s t e d

f o r e ig n e n t e rp r is e s in o v e r c o m in g lo c a l p r o t e c t io n ism . S e e C h e n g n o t e 5 3 9 sup ra at 2 0 0 9 .

640 S e e H u n o t e 1 9 7 su p ra at 1 1 1 .

641 P e g g y Y e h , 'Y o , H o , H o a n d a C D - R O M : T h e C u r r e n t S ta te o f S o f t w a r e P i r a c y in t h e P R C ',

3 1 ( 1 ) L a w a n d P o lic y in In te rn a tio n a l B usiness ( 1 9 9 9 ) , a t 1 9 2 .

642 L iu C h u n t i a n , 'T h e C u r r e n t S i t u a t i o n o f C h i n a 's C o p y r i g h t - R e l a t e d L e g a l S y s t e m V i e w e d

T h r o u g h C a s e s ', 3 3 ( 2 ) C h in a P aten ts & T ra de m arks ( 1 9 9 3 ) , at 7 7 .

643 A P e o p l e 's C o u r t in C h e n g d u , S i c h u a n P r o v in c e , j a i le d fo r t w o a n d h a l f y e a r s th e o w n e r o f a

lo c a l c o m p u t e r f i r m fo r s e l l i n g U S $ 3 6 1 , 0 0 0 w o r t h o f p ir a te d s o f tw a re . A c c o r d i n g to th e C h in e s e

a u t h o r i t ie s , t h e d e c i s i o n o f t h e c o u r t w a s t h e t o u g h e s t c r im in a l s e n t e n c e y e t f o r c o u n t e r f e i t in g

c o m p u t e r s o f t w a re . T o m K o r s k i , 'S i c h u a n S o f t w a r e P ir a t e G e t s 2 _ Y e a r s in J a i l ', S o u th C h in a M o rn in g Post, 31 M a r c h 1 9 9 7 , at 1.

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movies on videodiscs. The transmission lasted over four hours.644 Battle after battle, the forces of modernisation became conscious that their most effective weapon proved to be the 'propaganda weapon'.645 Propaganda could make people aware of the fact that if they broke the law, punishment would be harsh.646 Propaganda control was saying what a particular party did was wrong, so that the people knew what to do the next time they faced the same situation.647 To win, the forces of modernisation then made use of the copyright administration agencies, empowering them to publicise copyright across the country. They were asked to open special columns on newspapers, radio, and television and to offer lectures and contests on copyright matters. Moreover, they had to organise training courses to popularise copyright knowledge, providing legal counsel and mediate copyright disputes for the population.648China's associations of software industries also considered to launch a 'China Software Day', a project, which received positive response from the related government agencies and software enterprises in China and abroad.In the middle of the battle opposing the two rival forces, one of the commander- in-chiefs of the modernising forces, the Chief Director of the Chinese United

Intellectual Property Protection Centre, Li Changxu, analogised the long conflict. To him, "you can have the house structure all set up, very beautiful[, b]ut then, you need electricity and water pipes. That takes more time".649 As Alford put it, there was still in China "far too little" of the human, political, economic, and legal infrastructure that is necessary if the intellectual property laws drawn from foreign examples are to yield concrete results remotely comparable to those produced by such models in their original jurisdictions.650At the very end of the twentieth century, as the defence of the orthodox forces

644 C l i f f o r d B o r g - M a r k s , ' I P C a s e is F ir s t L iv e T V B r o a d c a s t f r o m a P e o p l e 's C o u r t ', IP A s ia ( 1 9 9 8 ) ,

A u g u s t , a t 3 . T h e c a s e w a s b r o u g h t b y 1 0 le a d in g C h i n e s e f i lm s t u d io s a g a in s t t h re e o t h e r C h in e s e

f i lm s t u d io s .

645 S e e Z h e n g n o t e 6 0 3 sup ra at 3 1 .

646 S e e R i l e y n o t e 4 0 0 sup ra at 9 1 .

647 S e e Z h e n g n o t e 6 0 3 sup ra at 3 2 .

648 S e e C h e n n o t e 5 7 0 sup ra at 2 5 1 .

649 S e e L a z a r n o t e 1 2 sup ra at 1 1 9 0 .

650 S e e L i n o t e 4 2 8 sup ra , at 4 2 3 .

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was being weakened, the attention of the forces of modernisation was then focused on the future of China's copyright legislation.

[b]: A discussion on the revision of the copyright

legislation and cautionary tales from 'Dot.com Land':

^ Lessons for the future of the Chinese copyright

system in the 21st century

To win, the high command of the forces of modernisation decided to focus on the future of the Chinese copyright regime. The future of the conflict between the forces of reaction and the forces of modernisation depended then on how the Chinese nation could maintain a balanced approach to promote innovation. The forces saw that the development of certain copyright principles could facilitate ongoing innovation, such as the idea-expression dichotomy, the standards of originality, and certain exceptions and limitations to the rights of authors. As the main products of the economy of the twenty-first century were likely to be protected by copyright regimes, maintaining a balance in copyright law to foster innovation became an important issue to the modernising forces.651 652 As Zheng put it, China seemed to have finally realised that copyright protection is not only relevant to the interests of writers and artists, but is also relevant to industry, science, education, culture, and foreign trade.653 654

[i] Revision of the copyright legislation: suiting the medicine to the illness—

651 2 6 ( 6 ) A s ia w e e k , 1 8 Feb . 2 0 0 0 , at 5.

652 S e e S a m u e l s o n n o te 3 4 1 sup ra at h ttp :// sim s.b e r k e ie y .e d u / ~ p a m / p a p e r s / c h in a ip . h t m l (p a g e 3 ) .

653 S e e X u e H o n g et a l n o te 1 8 7 sup ra at 1 9 7 .

654 W a n g Z h e n g fa , T h e C h i n e s e In t e l le c t u a l P r o p e r t y S y s t e m at t h e T u r n i n g P o in t ', 2 8 ( 1 ) C h in a Patents a n d T radem arks ( 1 9 9 2 ) , at 2 6 .

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Stronger rights are not always better rights655

The modernising forces moved quickly to exploit the opportunity that presented itself, considering a certain number of amendments to all three China's intellectual property statutes.656 Since the Copyright Law was promulgated, fundamental changes have taken place in China and in the world. One of the changes that had great impact on China was the transition from a socialist planned economy to a socialist market economy. Drafted during the 1980s, laws protecting copyright in China carried the deep imprints of the socialist planned economy. They attested the bitter struggle between the orthodox forces and the modernising forces. Because the copyright laws particularly ran "counter to the principles of equal civil rights and fair market competition in a civilised society, and impede[d] the establishment and development of the system of socialist market economy",657 the forces of modernisation called for their revision.658 As a first assault, the modernising forces launched hearings on revisions to the Copyright Law in January 1996, after stressing that several enforcement problems were "beyond the scope of the Law".6™ In continuing serving in the ranks of the modernising forces, Zheng justified the new assault launched by its camp. China's "general approach [to intellectual property law] is not a fixed one, but w ill evolve progressively".660In the tactics of the modernising forces, the case for reviewing China's copyright statutes did not arise solely with a view in order to protect software.661 The

655 S e e S a m u e l s o n n o t e 3 4 1 su p ra at h t t p :/ / s im s .b e rk e le v .e d u / ~ p a m / p a p e r s / c h in a ip .h tm l (p a g e 3 ) .

656 Z h e n g C h e n g s i , 'T h e T R I P S A g r e e m e n t a n d In t e l le c t u a l P r o p e r t y P r o t e c t io n in C h i n a ', 9 D u k e jo u r n a l o f C o m p a ra t iv e & In te rn a t io n a l L a w ( 1 9 9 8 ) , at 2 2 3 . T h r e e d r a f t in g g r o u p s f o r p r e p a r in g

d ra f t s o f t h e r e v i s e d v e r s i o n s o f t h e P a te n t, T r a d e m a r k , a n d C o p y r i g h t L a w s w e r e se t u p in th e

1 9 9 0 s . T h e y b e g a n to in v e s t ig a t e a n d s t u d y to s o l i c i t o p i n i o n s in 1 9 9 6 . T h e P a te n t L a w a n d th e

T r a d e m a r k L a w w e r e to b e r e v i s e d fo r th e s e c o n d t im e . T h e C o p y r i g h t L a w w a s b e a m e n d e d fo r

t h e f irs t t im e . S e e C h e n n o t e 5 1 0 sup ra at 1 2 . O n A u g u s t 2 5 , 2 0 0 0 , C h i n a f in a l i s e d t h e s e c o n d

r e v i s io n o n th e P a te n t L a w . T h e r e v is e d P a te n t L a w e n te re d in to f o r c e o n J u ly 1 st, 2 0 0 0 .

657 S e e S h e n n o t e 5 2 4 su p ra at 5 1 .

658 S e e X u C h a o n o t e 6 0 3 su p ra at 4 9 .

659 'C h i n a t o R e v i s e C o p y r i g h t L a w to M e e t In t e r n a t io n a l S t a n d a r d s ', 1 1 ( 8 1 ) W o r ld In te lle c tu a l P ro p e rty R e p o r t ( 1 9 9 7 ) , a t 8 2 .

660 S e e Z h e n g n o t e 4 s u p r a at 1 6 7 .

661 'S e p a r a t e l y ' e s t a b l i s h e d , t h e 1 9 9 1 S o f t w a r e R e g u l a t i o n s s u f f e r e d f r o m m a n y s i g n i f i c a n t

d i f f e r e n c e s b e t w e e n th e p r o t e c t io n o f c o m m o n w o r k s a n d th a t o f s o f tw a re . S e e Z h e n g n o t e 2 5 0

Page 2 2 3

copyright legislation, as a whole, was scattered and in a state of disharmony.662 Tension arose from the fact that the Copyright Law, unlike the other Chinese intellectual laws, such as the Patent Law or the Trademark Law, had its own set of regulations. The 'International Copyright Treaties Implementing Rules' also affected it. The Copyright Law was also related to the Criminal Law and special Supreme Court documents.663 As the forces of modernisation put it, this state of affairs was not common in other areas of China's legal system. The new strategy of the high command of the modernising forces was to develop a unified Copyright Law in order to consolidate and to codify the scattered laws, regulations, rules, and documents into a unique harmonious whole. Zheng described the situation before the initial assault by the forces of modernisation. "[Ejven the Chinese cannot understand what the Chinese Copyright Law says".664 In their preparations, the forces of modernisation strongly focused on the nullification of the Software Regulations and on the absorption of the necessary provisions of the latter into the new Copyright Law.665 To remedy to the "rough and general"666 treatment of copyright software in China, the forces of

s u p ra a t 1 5 2 . F r o m a c o m p a r i s o n o f a r t ic le 1 0 o f t h e L a w a n d a r t ic le 9 o f t h e R e g u la t io n s , s o f tw a re

d i f f e r e d f r o m w o r k s in g e n e r a l in r e s p e c t o f p r o t e c t io n fo r m o r a l a n d e c o n o m i c r ig h t s . F r o m a

c o m p a r i s o n o f a r t ic le 2 2 o f th e L a w a n d a r t ic le 21 a n d 31 o f t h e R e g u la t io n s , t h e l im i t a t io n s o n

e c o n o m i c r i g h t s d i f f e r e d in r e s p e c t o f s o f t w a r e a n d w o r k s in g e n e r a l . F r o m a c o m p a r i s o n o f

a r t ic le s 3 2 , 3 5 , 3 7 , 4 0 , a n d 4 3 , o f t h e L a w a n d a r t ic le 1 3 o f t h e R e g u la t io n s , s t a t u t o r y l i c e n s i n g

w a s a p p l i e d to w o r k s in g e n e r a l a n d S ta te P la n L i c e n s i n g w a s a p p l i e d to s o f tw a re . W h e r e th e

c o p y r i g h t o f c o m m o n w o r k s w a s in f r in g e d , th e p r e m is e o f l i t ig a t io n in c o u r t o r in t e r v e n t io n b y th e

a d m in i s t r a t i v e a u t h o r i t ie s d if fe re d f r o m th a t in re s p e c t o f s o f tw a re , e s p e c ia l l y c o m p u t e r (a r t ic le 2 4 ).

F r o m a c o m p a r i s o n o f a r t ic le 21 o f t h e L a w a n d a r t ic le 1 5 o f t h e R e g u la t i o n s , t h e t e r m s o f

p r o t e c t io n f o r e c o n o m ic r ig h t s w e r e d if fe re n t w it h r e g a rd to w o r k s u n d e r c o p y r i g h t p r o t e c t io n in

g e n e r a l a n d s o f t w a r e r e sp e c t iv e ly . F r o m a c o m p a r i s o n b e t w e e n a r t ic le 1 9 o f t h e L a w a n d a r t ic le

2 0 o f th e R e g u la t io n s , w h e r e t h e re w a s n o s u c c e s s o r , th e c o p y r i g h t a t t r ib u t io n o f g e n e r a l w o r k s is

c o m p le t e l y d if fe re n t f r o m th e d e s t in a t io n o f th e c o p y r i g h t in s o f t w a r e in t h e s a m e c i r c u m s t a n c e s .

F r o m a c o m p a r i s o n o f a r t ic le s 11 a n d 1 6 o f th e L a w , a n d a r t ic le 1 4 o f t h e R e g u la t i o n s , th e

a t t r ib u t io n o f c o p y r i g h t o f j o b - r e la t e d w o r k s in g e n e r a l w a s d i f f e r e n t f r o m th a t o f j o b - r e la t e d

so f tw a re . S e e X u e H o n g et a l n o te 1 8 7 sup ra at 2 4 7 .

662 W h e r e t w o le g a l r e la t io n s h ip s e x is t e d at th e s a m e t im e in a c a s e (th e c a s e w a s re la te d to m o r e

t h a n t w o la w s ) , a s i t u a t io n a r o s e in w h i c h th e le g a l p r o v i s i o n s a p p l i c a b l e to t h e t w o w e r e n o t

e x a c t ly t h e s a m e , o r e v e n d ia m e t r ic a l ly o p p o s e d . S e e X u C h a o n o te 5 3 0 su p ra a t 7 8 .

663 F o r e x a m p l e , o n D e c e m b e r 2 4 , 1 9 9 3 , t h e S u p r e m e C o u r t i s s u e d a d o c u m e n t e n t i t le d

'C i r c u l a t i o n o n C e r t a in Q u e s t i o n s f o r t h e F u r t h e r Im p le m e n t in g o f t h e C o p y r i g h t L a w o f t h e

P e o p le 's R e p u b l i c o f C h in a '.

664 S e e Z h e n g n o t e 2 5 0 supra at 1 5 6 .

665 T h e S o f t w a r e R e g u la t io n s re p e a te d m o s t p r o v i s i o n s o f th e C o p y r i g h t L a w . S u c h r e p e t it io n s w e r e

la r g e ly u n n e c e s s a r y . S e e X u e H o n g et a l n o te 1 8 7 sup ra at 2 4 7 .

666 S e e W a n g et a l n o te 2 0 3 sup ra at 1 6 8 .

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modernisation had two alternatives.667 One was not to treat software as a 'special object' to be protected in the new Copyright law, but to provide certain special stipulations concerning limitations on economic rights and moral rights. The other was to treat software as a special object in a unified Copyright Law, and to put software in a separate chapter or section in the revised Copyright Law. The forces of modernisation chose the first alternative. However, due to a resistance from the forces of reaction, computer programs were "still listed as a type of work independent of literary works" in the 1998 draft.668The forces of modernisation received a strong logistical support from a large majority of countries which protect software under statute law, did so under their copyright law, and treated software as common literary works. One of the slogans of the modernising forces was that "China should not retain its special position. [Tjhere is [then] a need to keep our [Copyright] Law in line with world trends".669 To the forces of modernisation, China had become a member of the international community of copyright. China was then expected by it to play an important role therein.670 To win, the high command of the modernising forces decided to attack 26 of the 56 articles of the Copyright Law. Due to an awesomely strong resistance from the orthodox forces, the forces of modernisation had problems to amend, revise, or abolish the articles of the Law.671In January 1998, however, the modernising forces had undeniably won a tactical victory over the forces of reaction. They received an important logistical support from the NCA, which sponsored the drafting work. The State Council reportedly approved in principle at its 10th Meeting the Report on the Revision of the

Copyright Law. A lthough the Report "was not published for public consultation",672 strategically, the issue was in the favour of the modernising forces. In November 1998, the Act of Amendment to the Copyright Law was then submitted by the State Council to the Second Meeting of the Standing Committee

667 S e e X u e H o n g e t a l n o te 1 8 7 sup ra at 2 4 8 - 2 4 9 .

668 I b id a t 46.669 S e e Z h e n g n o t e 2 5 0 s u p ra at 1 5 6 .

670 S e e S h e n n o t e 5 2 4 sup ra at 5 1 .

671 S e e M i n f o r d et a l n o te 5 9 2 sup ra at 2 7 .

672 Jo C h a n , 'P R C D ra f t C o p y r i g h t L a w A p p r o v e d ', 1 2 (1 ) IP A s ia ( 1 9 9 9 ) , at 8.

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of the 9th National People's Congress for both consideration and review.673 Despite the fact that the draft copyright amendment bill was rejected in 1999, the NCA decided to continue concentrating the efforts of the modernising forces on eliminating a set of 'double standards that were said to ingrain or weaken China's copyright protection.

On the 'double standard(s)'

In addition to the creation of a system of statutory damages, one of the tasks the forces of modernisation set themselves, to revise China's copyright system, was to eliminate what they called the 'double standard' problem with regard to the term of protection of foreign and domestic software.In their assaults against the orthodox forces, the forces of modernisation sought to secure the situation of foreign copyright holders. In accordance with the principle of 'national treatment' under TRIPS and the Berne Convention, each contracting party should accord to the nationals, that are residents of other members, the same treatment as it accords to its own nationals with regard to the copyright protection.674 In China, the subject matter of copyright included works by foreigners that was subjected to the requirements of 'first publication' ('shouxian fabiao') to be eligible for protection (article 2 of the Copyright Law).675 It first put foreign copyright holders at a decided disadvantage.676 The Copyright Law granted protection to the works by Chinese authors whether they are published. The Implementing Regulations (article 25) did clarify this disadvantage, in stating that works by foreigners published in China within thirty days, after their first publication in another country, are now protected.677

673 S e e S h e n n o t e 5 2 4 sup ra at 5 2 .

674 S e e W o j c i k et a l n o te 1 4 2 sup ra at 2 8 6 - 2 8 8 .

675 S e e L o k e - K o o n n o te 2 6 3 sup ra at 1 7 8 . A r t ic le 6 o f t h e S o f t w a r e R e g u la t i o n s p r o v id e d s o f tw a re

d e v e l o p e d b y w o r k u n i t s a n d C h i n e s e c i t i z e n s e n j o y e d c o p y r ig h t , r e g a r d le s s o f w h e t h e r it w a s

'd i s c l o s e d ' a n d w h e r e it w a s d i s c l o s e d . A p ie c e o f s o f t w a r e b y f o r e i g n e r s e n j o y e d c o p y r i g h t

p r o t e c t io n if it w a s first d i s c l o s e d in C h in a .

676 S e e F l o u m n o te 41 7 sup ra at 4 7 .

677 T h i s w a s in c o n f o r m i t y w i t h a r t ic le 3 - 4 o f th e B e r n e C o n v e n t i o n . X i a o - L i n Z h o u , 'U . S . - C h i n a

T r a d e D i s p u t e a n d C h i n a 's In t e l le c t u a l P r o p e r t y R ig h t s P r o t e c t io n ', 2 4 ( 3 ) N e w Y o rk U n iv e rs ity

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On the other hand, the modernising forces set themselves to secure the rights of domestic copyright owners.678 Ever since the International Copyright Treaties Implementing Rules came into force, the Software Regulations have been pushed into an awkward position.679 The Rules stipulated that foreign software was duly protected w ithout being subject to the registration requirement, which became merely applicable to Chinese software copyright owners. China's software industry protested against this 'double standard'. The industry urged the nation to remove the registration requirement completely. This double standard was detrimental to China's image in the international community.680 It meant that China's copyright holders were inferior to those outside the country681 (that included the overseas Chinese from Hong Kong and Macao). In 1993, China's Supreme Court issued a circular to China's courts at all levels. It clarified that software registration was no longer a pre-condition in China to the filing of actions with the People's Courts.682Another task the forces of modernisation set themselves, in order to eliminate the 'double standard' issue, concerned the moral and property rights enjoyed by owners of copyright. The modernising forces principally launched attacks on 'article 10' of the Copyright Law, which provided that the term 'copyright' included both moral and economic rights. Moral rights in China were generally better protected than economic rights. The level of protection of the latter needed to be raised.683For example, the TRIPs Agreement provides that software shall be protected for a term of the author's life and 50 years after his or her death.684 The Software

J o u rn a l o f In te rn a t io n a l L a w a n d P o lit ic s ( 1 9 9 2 ) , at 1 1 2 2 .

678 Z h e n g Y i n g , ' I P R to b e B e tte r P ro t e c t e d w it h R e v i s i o n o f C o p y r i g h t L a w ', C h in a D a i ly ( 1 9 9 8 ) ,

A u g u s t 1 st, at 1.

679 S e e X u e H o n g et a l n o te 1 8 7 su p ra a t 6 0 .

680 I b id at 28.681 S e e X u C h a o n o te 6 0 3 su p ra at 5 0 .

682 S e e X u e H o n g et a l n o t e 1 8 7 s u p ra at 6 0 .

683 S e e S h e n n o t e 5 2 4 sup ra at 5 3 .

684 A r t ic le 6 b i s - 2 o f t h e B e r n e C o n v e n t i o n f ix e d th e d u r a t io n o f a c o p y r i g h t at life p lu s f ifty y e a r s .

T h e U n i v e r s a l C o p y r i g h t C o n v e n t i o n f ix e d d u r a t io n at life p lu s t w e n t y - f iv e y e a r s o r n o t le s s t h a n

life p lu s t w e n t y - f iv e y e a r s . S e e G u o n o t e 7 6 supra at 6 7 .

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Regulations provided the term of software protection was initially 25 years,685 and the total term of protection could not exceed 50 years at the longest.686 The moral rights of software developers were protected unlimitedly (article 15).687 The modernising forces also concentrated their efforts on clarifying the place of computer programs in China's copyright regime. Computer programs were explicitly protected as literary works in China. However, the Copyright Law considered them a separate works' category governed by special provisions.688 The modernising forces pressured members of the drafting committee to include the term 'software' in article 21-3 of the new Law. In this way, the term of software protection was to be the same as that for television, videographic, cinematographic, and photographic works.689In their new tactics, the forces of modernisation also set out to diminish the use of confusing terminology in the copyright laws.690 In the Chinese version of the Copyright Law, the scope of protection for foreign works was stated to be wider than under other foreign copyright laws because the forces of reaction thought that the words 'publication' and 'divulgation' ('making public' or 'disclosing') were similar.691 As early as 1986, the word 'disclosed' was substituted by the word 'published' in the English version of the Copyright Law. Zheng suggested that the Berne Convention should be used as a model. The orthodox forces were finally persuaded only five days before the end of the meeting of the Standing Committee of the National People's Congress. Although they agreed that the term 'publication' as used by many countries should also be used in China, it was too late to change the text of the Copyright Law. The word 'disclosure' in article 2 of

685 T h e term o f p r o t e c t io n o f th e e c o n o m i c a n d p u b l i c a t i o n r ig h t s e n d e d o n D e c e m b e r 31 o f th e

2 5 th year after the f irs t p u b l i c a t io n o f th e s o f tw a re . L iu G u s h u , 'Q u e s t i o n s o f W o r l d - w i d e In te re s t s

in Connection w it h th e C h in e s e C o p y r i g h t L a w ', 2 7 (4 ) C h in a Patents & T ra d e m a rks ( 1 9 9 1 ) , at 2 2 .

686 Before expiration o f t h is t e rm o f p r o t e c t io n , s o f t w a r e c o p y r i g h t o w n e r s h a d to apply to th e

Centre of Software R e g is t r a t io n ( d e p a r t m e n t fo r a d m in i s t r a t iv e a n d r e g is t r a t io n o f s o f tw a re ) (article 3 9 of the Software R e g u la t io n s ) to o b t a in a n e x t e n s io n o f 2 5 y e a r s . S e e X u e H o n g et a l n o t e 1 8 7

s u p ra at 1 4 3 .

687 I b id a t 141.688 Gao Linghan, 'R u l e s fo r th e Im p le m e n t a t io n o f th e B e r n e C o n v e n t i o n in t h e P e o p le 's R e p u b l i c

of China', 2 4 I IC - In te rn a tio n a l R e v ie w o f In d u s tr ia l P ro p e rty a n d C o p y r ig h t L a w ( 1 9 9 3 ) , at 4 7 8 .

689 See Xue Hong et a I n o te 1 8 7 sup ra at 1 4 3 .

690 See Zheng n o te 2 5 0 supra 1 5 2 .

691 S e e Z h e n g e t a I n o te 6 9 sup ra at 1 1 2 .

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the Law means 'publishing'. This is a different meaning to the same word used in article 10 of the Law where it means 'disclosure' in the sense of 'making public'. The word 'publication' ('chuban') in the copyright legislation has the same meaning as the word 'publication' in the Berne Convention.692 Another task the forces of modernisation set themselves, in order to eliminate the 'double standard' problem, was to restructure China's system of software registration. In line with TRIPs, software was protected as a literary work without going through any formalities,693 but in the Software Regulations if registration was not a pre-condition for subsistence of copyright in software, the registration of software (ruanjian dengji) was voluntary.694 The registration of software was a pre­condition to the filing of infringement.695 Article 24 of the Software Regulations provided the Software Registration Centre issued certificates attesting the copyright validity.696The forces of modernisation also set themselves to clarify the issue of 'assignability'697 of copyright. Most copyright regimes in the world provide the property right contained in copyright can be transferred through assignments or

692 I b id at 1 1 3 - 1 1 4 .

693 T h e " n o f o r m a l i t y p r i n c ip le " o f a r t ic le 5 - 2 o f th e B e r n e C o n v e n t i o n p r o h ib i t e d th e im p o s i t io n o f

a n y f o r m a l i t ie s a s a c o n d i t io n fo r p ro te c t io n .

694 In t h e C h i n e s e c o p y r ig h t le g i s la t io n , th e k e y w a s r e g is t r a t io n , ju s t a s p a y i n g t a x e s o n a h a n d

t r a n s a c t io n in im p e r ia l C h in a m a d e a c l a im fo r l it ig a t io n , p r e - p u b l i c a t io n r e g is t r a t io n w a s t h e m a rk

o f t h e s o c i a l i s t S t a t e 's c o g n i s a n c e o f o w n e r s h i p a n d th e r ig h t to s e e k p r o t e c t io n o f it in C h i n a 's

c o u r t s o f ju s t ic e . S e e O c k o n o te 1 4 3 sup ra at 5 7 4 .

695 A l t h o u g h it w a s u n c le a r w h e t h e r t h is p r e s u m p t io n o f v a l id i t y w a s c o n c l u s i v e a n d ir r e fu t a b le in

i n f r i n g e m e n t a c t io n s , t h e r e g i s t r a t io n p r o v i d e d 'p r i m a f a c i e ' e v i d e n c e t h a t a s o f t w a r e w a s

'e f f e c t i v e ' ( y o u x ia o ) . A s Z h e n g u n d e r l i n e d , t h i s w a s , h o w e v e r , o n l y a m a t t e r o f p r o c e d u r e .

C o p y r i g h t e x i s t e d w h e t h e r o r n o t t h e r e w a s r e g i s t r a t io n . It w a s e x p l i c i t l y s ta te d in b o t h th e

C o p y r i g h t L a w a n d t h e S o f t w a r e R e g u l a t i o n s tha t, o n c e a w o r k ( o r a p i e c e o f s o f t w a r e ) w a s

c o m p le t e d ( a n d p o s s e s s e d 'o r i g in a l i t y ') , c o p y r ig h t 'a u t o m a t i c a l l y ' c a m e in t o b e in g . S e e Z h e n g n o te

1 3 0 s u p ra a t 3 4 5 .

696 A p p l i c a t i o n s h a d to in c lu d e a c o m p le t e d a p p l i c a t io n fo rm , a n u n s p e c i f ie d a p p l i c a t io n fee , a n d

w h a t w a s c a l l e d id e n t i f y in g m a t e r ia ls . S u p p o r t i n g d o c u m e n t s h a d to v e r i f y t h e id e n t it y o f th e

i n d i v i d u a l o r e n t it y f i l i n g f o r r e g is t r a t io n a n d e s t a b l i s h c o p y r i g h t o w n e r s h i p a n d th e i d e n t i f y in g

m a t e r ia l s h a d t o in c lu d e th e first, m id d le , a n d la st t w e n t y c o n s e c u t i v e p a g e s o f t h e s o u r c e c o d e o f

t h e c o p y r i g h t e d p r o g r a m . F o r m o r e d e t a i l s , s e e H o n g L iu n o t e 2 2 4 s u p ra a t 4 8 7 . E x c e p t io n a l

d e p o s i t s w e r e a v a i l a b l e w h e r e t h e p r o g r a m c o n t a i n e d t r a d e s e c r e t s o r o t h e r c o n f id e n t i a l

i n f o r m a t io n th a t th e a p p l ic a n t d id n o t w i s h to d i s c lo s e . F o r a d i s c u s s i o n o n th e p r o t e c t io n o f t ra d e

s e c r e t s in C h in a , s e e Y u n o te 2 5 1 su p ra at 1 4 4 - 1 4 6 .

697 C o p y r i g h t is a p r o p r ie t a r y r ig h t c o n t a i n i n g m o r a l r ig h t s . U n l i k e t a n g ib le r ig h t s , c o p y r i g h t is a

r i g h t th a t e x i s t s w i t h a t t a c h m e n t to , b u t w i t h o u t d e p e n d e n c e o n a t a n g ib l e m a t e r ia l c a r r ie r .

C o p y r i g h t c a n b e d i v i d e d in t o v a r i o u s c a t e g o r ie s o f r ig h t s . Its i n t a n g i b i l i t y a n d d i v i s i b i l i t y

d e t e r m in e th a t t h e r ig h t s c a n e it h e r b e a s s ig n e d w h o l l y o r p a r t ia lly . S e e S h e n 5 2 4 at 5 5 .

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licences.698 However, the Copyright Law evaded this issue. It only provided that anyone who intended to exploit a work of another person should conclude a contract with or obtain authorisation from the copyright owner (article 23), with the main contents of such contract being spelt out.699 Eventually, it was argued that a copyright owner in China could license others to use works,700 but could assign his or her ownership to others.701 However, in accordance with article 9-5 of the Software Regulations, a copyright owner in China enjoyed the right of assignment, but only the economic rights in the software could be assigned.702 The author's moral rights could not be assigned. To Zheng, China had to introduce uniform rules703 to that contained in Section 203-3 of the U.S. Copyright Act.704The modernising forces also set themselves to clarify the right of succession in copyright. Article 16 of the Software Regulations concerned this right of succession. As far as moral rights were concerned, the legal successors exercised

698 C o p y r i g h t o w n e r s h i p o r o w n e r s h i p o f a n y o f t h e e x c l u s i v e r i g h t s in t h e s o f t w a r e m a y b e

t r a n s fe r r e d t o o n e o r m o r e p e r s o n s . A t ra n s fe r m a y o c c u r t h r o u g h a n a s s ig n m e n t , l ic e n c e , o r o t h e r

c o n v e y a n c e o f a c o p y r ig h t o r a n y o f th e e x c lu s i v e r ig h t s . In a n in t e l le c t u a l p r o p e r t y a s s ig n m e n t , a ll

r ig h t , t itle , a n d in te re s t in a n in t e l le c t u a l p r o p e r t y r ig h t is c o n v e y e d to t h e a s s ig n e e . In a l i c e n s e

a g r e e m e n t , t h e in t e l le c t u a l p r o p e r t y o w n e r g r a n t s e i t h e r e x c l u s i v e o r n o n - e x c l u s i v e r ig h t s fo r

s p e c i f i e d u s e s o f its in t e l le c t u a l p r o p e r t y in e x c h a n g e fo r r o y a l t ie s o r o t h e r c o n s id e r a t i o n . S e e

W i l i i a m s o n et a l n o te 3 9 8 sup ra at 8.

699 S e e S h e n n o t e 5 2 4 sup ra at 5 5 .

700 S e e X u e H o n g et a l n o t e 1 8 7 su p ra at 9 0 , In 'C o p y r i g h t L i c e n s i n g C o n t r a c t s ', w h i c h w a s

C h a p t e r I I I o f t h e C o p y r i g h t L a w ( a r t ic le s 2 3 to 2 8 ) , C h i n a l im it e d t h e d u r a t io n o f l i c e n s i n g

c o n t r a c t s to te n y e a r s . T h e N C A p r o p o s e d th e d e le t io n o f s u c h p r o v i s i o n s fo r t h e r e a s o n th a t th e

t e rm o f t h e l i c e n s e s h o u ld b e d e c id e d b y th e c o n t r a c t in g p a rt ie s , a n d th a t l im it in g t h e t e rm to ten

y e a r s w a s c o n t r a d ic t o r y to C h in e s e b u s in e s s a n d in t e r n a t io n a l p r a c t ic e

701 Ib id at 8 5 .

702 I b id a t 8 5 - 1 0 1 . U n d e r a r t ic le 2 7 o f th e S o f t w a r e R e g u la t io n s , th e a s s i g n e e o f a w o r k , w h i c h h a d

p r e v i o u s l y b e e n re g is t e re d w i t h in C h in a , h a d to r e c o r d th e a s s i g n m e n t w i t h in t h re e m o n t h s a fte r

t h e e x e c u t i o n o f t h e a s s i g n m e n t c o n t r a c t . F a i lu r e to r e c o r d a n a s s i g n m e n t w i t h in t h i s p e r io d

r e n d e r e d t h e a s s i g n e e u n a b le to a d d r e s s in f r in g e m e n t b y t h ir d p a r t ie s . A r t ic l e 2 8 s ta te d th a t th e

C h i n e s e a u t h o r i t ie s ' a p p r o v a l h a d to b e o b t a in e d to p e r m it C h i n e s e p a r t ie s to a s s i g n o r l i c e n s e

t h e ir s o f tw a re c o p y r ig h t s to f o re ig n e r s .

703 I b id at 8 7 . T h e d ra ft o f t h e r e v i s e d C o p y r i g h t L a w a m e n d e d C h a p t e r III ( 'C o p y r i g h t L i c e n s i n g

C o n t r a c t s ') o f t h e C o p y r i g h t L a w , w h i c h w a s c h a n g e d to 'C o p y r i g h t C o n t r a c t s '. T w o n e w

p r o v i s i o n s c o n c e r n in g th e a s s i g n m e n t o f c o p y r i g h t w e r e a d d e d to it. T h e p r o p o s e d m o d i f i c a t io n

w a s c o n s i s t e n t w i t h th e c o r r e s p o n d i n g p r o v i s i o n s o f t h e S o f t w a r e R e g u la t io n s , e x c e p t fo r t h e p a rt

in r e s p e c t o f th e a s s i g n m e n t r e g is t r a t io n . A r t ic le 2 7 o f t h e S o f t w a r e R e g u la t io n s , w h i c h d e a lt w it h

t h e v a l id i t y o f th e r e g is t r a t io n o f a s s i g n m e n t a n d th e c o n s e q u e n c e o f u n r e g i s t e r e d a s s ig n m e n t , w a s

r e m o v e d .

704 A f t e r a c e r t a in p e r io d ( 3 5 y e a r s o r m o r e a fte r th e a s s ig n m e n t ) , t h e a u t h o r h a d a r ig h t to c l a im

b a c k h is o r h e r c o p y r ig h t f r o m th e a s s i g n e e if h e o r s h e w i s h e d , e v e n if t h e a s s i g n m e n t p o s s e s s e d a

Page 2 3 0

them, but they were not part of the rights of succession.705 This was based on the copyright laws of the Soviet Union.706 If there was no successor in title, copyright passed to the State (in the case of a legal person or unit). China's statutes, however, did not mention the important question of who should be entitled to protect a late author's moral rights where no one was regarded as successor or heir to such rights. In other national copyright regimes, although moral rights cannot be succeeded together with the economic rights, the persons who are entitled to protect these rights are clearly stated.707Finally, the modernising forces set themselves to clarify the ownership of rights in works created in the course of employment.708 As an example, when a software created by a person was not the work of employment, but its function had a direct connection with the business of the employing unit in which the citizen worked, the copyright ownership was decided by the contract between the author and the unit. If the contract did not clearly decide the copyright ownership or no contract was concluded; the copyright was vested in the author, but the unit had the priority right to exploit the software within the scope of its business activities.709 To Zheng, article 14 of the Copyright Law had to be amended in favour of the unit.At the end of the 1990s, in order to amend, revise, or abolish a certain number of articles in China's copyright regime, the fighting conditions between the forces of modernisation and the orthodox forces was particularly ruthless. However, far more costly conflict was being fought out with regard to the information technology and its landmark, the Internet.

c l a u s e to t h e c o n t ra r y . S e e Z h e n g n o t e 2 5 9 supra at 1 5 7 - 1 5 8 .

705 S e e Z h e n g et a I n o te 6 9 su p ra at 1 3 9 .

706 O n l y t h e e c o n o m ic r ig h t s s u r v iv e d , a n d w e r e c a p a b l e o f p a s s i n g o n d e a th , in C h in a . T h i s w a s

in s t r ic t a c c o r d a n c e to C h i n a 's L a w o f S u c c e s s i o n o f 1 9 8 5 . S e e X u e H o n g e t a l n o te 1 8 7 sup ra at

8 3 .

707 S e e Z h e n g et a I n o te 6 9 su p ra at 1 4 1 .

708 F o r e x a m p l e , t h e 'S t a t e P la n l i c e n c e S y s t e m ', s t i p u la t e d in a r t i c le 1 4 o f t h e S o f t w a r e

R e g u la t io n s , w e r e n o t re p l ic a t e d in th e C o p y r i g h t L a w . It w a s c o p ie d f r o m th e C h in e s e P a te n t L a w .

T h e P a te n t O f f i c e o f C h i n a w a s p r e p a r e d to r e p e a l t h a t s y s t e m in 1 9 8 9 , b u t t h e S o f t w a r e

R e g u la t i o n s t o o k th e o ld C h i n e s e P a te n t L a w a s a m o d e l in 1 9 9 1 . S e e Z h e n g n o t e 2 5 0 sup ra at

1 5 6 .

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[ii] From geographical piracy to cyberspace pirates: An uneasy case for copyright

The word 'network' was not included in the provisions of the 1990 Copyright Law. This has brought some difficulty to the judicia l and administrative enforcement authorities and inconvenience for the public to comply with the Copyright Law.709 710 Ignoring infringement on the Internet makes the general public wrongly think that any work can be uploaded as one wishes and used free.

On the challenge presented by 'multimedia': the danger of protecting

too much711

To keep the initiative, the high command of the forces of modernisation decided to focus on 'multimedia'. In their assaults, the modernising forces suggested that the new Chinese copyright regime should include information technology in its scope of protection. They believed that information technology would become a core technology, as significant to the twenty-first century as steam power was to the nineteenth century or electrical power and the internal combustion engine to the twentieth.712 From the perspective of copyright, they saw in information technology and the Internet, notably in its 'digital' nature, new vulnerabilities constituting an emergent threat to international peace and security.713 The forces of reaction put up a fierce resistance to the manoeuvres of the modernising forces, notably regarding the digital context.In contrast to traditional analogue methods of recording copyrighted works,

709 S e e X u e H o n g et a I n o te 1 8 7 supra at 6 9 .

710 S e e X u C h a o , 'A C o m m e n t o n a n In t e r n e t C o p y r i g h t D i s p u t e ', 6 2 ( 3 ) C h in a P a te n ts & T ra d e m a rks ( 2 0 0 0 ) , at 6 5 .

711 M i c h a e l D . P e n d le t o n , T h e D a n g e r o f P r o t e c t in g T o o M u c h : A C o m p a r a t i v e A n a l y s i s o f

A s p e c t s o f In t e l le c t u a l P r o p e r t y in H o n g K o n g , B r it a in a n d th e U n i t e d S t a t e s ', 2 2 ( 2 ) E uropean In te lle c tu a l P ro p e r ty R e v ie w ( 2 0 0 0 ) , at 6 9 .

712 S im o n F it z p a t r ic k , 'C o p y r i g h t Im b a la n c e : U .S . a n d A u s t r a l ia n R e s p o n s e s to t h e W I P O D ig i t a l

C o p y r i g h t T r e a t y ', 2 2 ( 5 ) E urop ea n In te lle c tu a l P ro p e rty R e v ie w ( 2 0 0 0 ) , a t 2 1 4 .

713 L u c in d a J o n e s , 'A n A r t i s t 's E n t ry in t o C y b e r s p a c e : In t e l le c tu a l P r o p e r t y o n t h e In t e r n e t ', 2 2 ( 2 )

E urop ea n In te lle c tu a l P ro p e rty R e v ie w (2 0 0 0 ) , at 8 4 .

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digitalisation converts words, images, sounds, graphics, and films into binary numbers, either 1s or Os. Digitally stored works, as bits grouped in bytes, disassociated from their physical form, are transferred over the networks to be reconstructed into recognisable art by reference to their binary values. The transformation this represents for intellectual property law is that people no longer transfer fixed expressions of works, as they would buy a book or license a video, but the digital representation of those works. The 'de-materialisation' of works, which comes as a result of digitalisation makes now possible to convey ideas from one mind to another without ever making them physical.714In converging literary works, sound, pictures, and motion pictures on the same platform, the digital age created a lucrative market, calling for the creation of a comprehensive new international intellectual property framework. In their initiatives, the modernising forces sought to keep China's new copyright regime in line with world trends.At the same time, in response to the challenge brought about by the new technologies, the world community thought, "[i]f software can be protected by copyright, then why not on-line interactive communications, such as the Internet?"715 This was the reasoning, which culminated in the international copyright treaties passed by the WIPO Geneva Diplomatic Conference at the end of 1996. The W IPO Copyright Treaty (WCT)716 and the W IPO Performances and

Phonograms Treaty (WPPT) both brought the international copyright system, especially the Berne Convention, into the digital age.717 The contracting parties to

714 S e e F it z p a t r ic k n o t e 7 1 3 sup ra at 2 1 8 .

715 M i c h a e l D . P e n d le t o n , 'C o m p u t e r P ro g ra m s , In te rn e t C o p y r ig h t a n d T R IP s B o r d e r C o n t r o l ', 7 (1 )

A s ia P a c if ic L a w R e v ie w ( 1 9 9 9 ) , at 1 3 4 . T h e r e a s o n in g w a s that, a l t h o u g h t h e In te rn e t w a s a n e w

m e d iu m f o r t r a n s m it t in g in f o r m a t io n , th e c o n te n t r e m a in e d w o r d s , s o u n d s , a n d im a g e s . T h e y ju s t

h a p p e n e d to b e c o n v e y e d a s n o u g h t s a n d o n e s .

716 T h e 'W o r l d In t e l le c t u a l P r o p e r t y O r g a n i s a t i o n P r o v i s io n a l T r e a ty o n P r o t e c t io n o f L i t e r a r y a n d

A r t i s t ic W o r k s ' o r 'C o p y r i g h t T r e a t y ' w a s a d o p te d o n D e c e m b e r 2 0 , 1 9 9 6 . It u p d a t e d t h e B e r n e

C o n v e n t i o n b y e x p r e s s l y r e c o g n i s in g c o m p u t e r p r o g r a m s a s lit e ra ry w o r k s a n d b y r e c o g n i s in g th e

r ig h t o f r e p r o d u c t i o n , c o m m u n i c a t i o n , a n d m a k in g a v a i la b l e to t h e p u b l i c . It e n d e d n e a r ly te n

y e a r s o f d e b a t e s o v e r t h e d e v e l o p m e n t o f d ig ita l t e c h n o l o g y a n d o p t ic - f ib r e t e c h n o lo g y . T h e g l o b a l

i n f o r m a t io n s u p e r h i g h w a y w a s t h e n a v a i la b le a n d a b a s ic c o n s e n s u s a r r iv e d at o n th e le g a l i s s u e

r e la t in g t o t h e t r a n s m i s s i o n o f c o p y r ig h t e d w o r k s o n th e In te rn e t. T e m p o r a r y d ig i t a l c o p y i n g w a s

n o t c o n s i d e r e d a s a n i n f r in g in g a c t iv it y . C la r k D . Stith , 'In t e r n a t io n a l In t e l le c t u a l P r o p e r t y R ig h t s ',

3 1 ( 2 ) The ln te m a t io n a lL la w y e r ( '\9 9 7 ) , at 3 1 1 .

717 T h e U n i t e d S t a te s a d o p t e d th e D ig i t a l M i l l e n n i u m C o p y r ig h t A c t in O c t o b e r 1 9 9 8 to a d h e r e to

Page 2 3 3

the Treaty all agreed to five fundamental norms relating to the application of copyright law in a digital environment, seemingly free of regulation.718 The goal was to protect the balance between copyright rights and copyright limitations, and the rationale underlying that balance. However, the 1996 Conference failed to adopt any agreement relating to the protection of databases. Delegations representing developing countries were against such protection. The Chinese delegation was one of them. An approach of guided development was simply adopted to assist national legislatures in the development of national laws to respond to the challenges of the new technologies.The Chinese delegation contained a bitter conflict between the forces of reaction and the modernising forces. China's delegates at the 1996 Conference were torn between two options regarding the protection of databases.719 The forces of modernisation wanted to increase the protection for databases to promote the development of public databases and regulate the country's database market.720 The forces of reaction were opposed to the 'information monopoly', as both the European Union and the United State were pushing to raise the level of database

t h e s e t/vo t re a t ie s . T h e E u r o p e a n U n i o n f o l l o w e d th e U .S . w i t h t h e s a m e a im in m in d . S e e X u e

H o n g ft a! n o t e 1 8 7 su p ra at 2 9 .

718 T h e f ir s t m a j o r n o r m w a s a c le a r s ta te m e n t th a t th e r e p r o d u c t io n r ig h t , a s se t o u t in a r t ic le 9 o f

t h e B e rn e C o n v e n t i o n , a n d it e x c e p t i o n s p e r m it t e d t h e r e u n d e r , f u l l y a p p l i e d in t h e d ig i t a l

e n v ir o n m e n t , in p a r t ic u la r to t h e u s e o f w o r k s in d ig i t a l fo rm . T h e s e c o n d m a jo r n o r m p e r t a in e d to

a n a d a p t a t io n o f f a m i l i a r b r o a d c a s t a n d d i f f u s io n r ig h t s in to a s i n g l e r ig h t a p p r o p r ia t e t o t h e m o r e

f le x ib le m a n y - t o - m a n y d e l i v e r y p la t f o r m s o f a c o n v e r g e n t d ig i t a l e n v i r o n m e n t . A r t ic l e 8 o f t h e

W C T p o v i d e d w i t h o u t p r e j u d ic e to t h e p r o v i s i o n s o f a r t ic le s 11 a n d 1 4 o f th e B e r n e C o n v e n t i o n ;

a u t h o r s o f l i t e r a r y , a r t i s t ic w o r k s w o u l d e n j o y t h e e x c l u s i v e r i g h t o f a u t h o r i s i n g a n y

c o m m j n i c a t i o n t o t h e p u b l i c o f t h e ir w o r k s , b y w i r e o r w i r e le s s m e a n s . It m e a n t th a t a u t h o r s

w o u l d m a k e a v a i l a b l e to th e p u b l i c t h e ir lite ra ry , a r t is t ic w o r k s in s u c h w a y th a t th e p u b l i c c o u ld

a c c e s s t h e s e w o r k s f r o m a p la c e a n d a t a t im e i n d i v id u a l l y c h o s e n b y th e m . T h e th ird n o r m re la te d

to l im i: a t io n s a n d e x c e p t i o n s to t h e r ig h t s c o n f e r r e d o n a u t h o r s . T h e fo u r t h n o r m d e a lt w i t h th e

p o t e n t a l f o r t a m p e r in g w it h t e c h n o l o g i c a l m e a n s o f p r o t e c t in g c o p y r i g h t e d w o r k s . T h e fifth n o r m

re la te c to a n o t h e r t e c h n o l o g i c a l m e a s u r e , 'R i g h t s M a n a g e m e n t I n f o r m a t io n ( 'R M I ') . F o r m o r e

d e t a i l s s e e h t t p :/ / w w w .w ip o .o r g / e n g / d ip lc o n t 7 d is t r ib / 9 4 d c .h tm

719 In t ie m i d - 1 9 9 0 s , t h e r e w a s in t e n s e d e b a te a m o n g C h i n e s e in t e l le c t u a l p r o p e r t y a c a d e m ic s in

r e s p e c o f t h e n a t u r e o f d ig i t i s a t io n . S o m e a c a d e m ic s c o n t e n t e d th a t d ig i t i s e d w o r k s w e r e d if fe re n t

f r o m c r ig in a l w o r k s a n d th a t d i g i t i s a t i o n c o n s t i t u t e d in t e l le c t u a l c r e a t io n . O t h e r s a r g u e d th a t

d ig it is a t io n c o n s t i t u t e d r e p r o d u c t io n o f t h e o r ig in a l w o r k . In th e U n i t e d S t a te s a n d in E u r o p e , th e

n a t u r e o f d ig i t i s a t io n is r e p r o d u c t io n . S e e X u e H o n g et a l n o te 1 8 7 s u p ra at 1 1 0 .

720 A b t u t 9 0 % o f t h e e x i s t in g C h i n e s e d a t a b a s e s p u t o n t o th e n e t w o r k w e r e c o n t r o l l e d w i t h in th e

v a r io u ; C h i n e s e m in i s t r ie s . O n l y 1 0 % o f t h e m w e r e o p e n to d o m e s t i c a n d f o r e ig n u s e r s . T h e y

w e r e i s u a l l y p o o r l y c o n s t it u t e d .

Page 2 3 4

protection/21 The orthodox forces gained the support of the Chinese public. China had many reasons to be wary. Europeans and Americans wanted to change the scope of protection of databases from expression to contents to protect their unique interests, as they became the world's largest database-producers.721 722 Other nations, such as China, were in the user's position. During the Conference, the conflict took place between the information 'haves' and 'have-not'. Consequently, as many other countries, China decided not to establish a protection for databases. China believed that its already existing copyright statutes could adequately protect databases.723Databases are not expressly mentioned in the Software Regulations.724 As 'compilations', they fall within article 14 of the Copyright Law, which provided that 'compilers' enjoyed the copyright in compilations. However, the exercise of such a right prejudiced copyright in the pre-existing works included in the compilation. "Other than this",725 not much was said about China's official position on the more specific aspects of database protection. In the third revised

721 T h e p o w e r f u l A m e r ic a n a n d E u r o p e a n d a t a b a s e s in d u s t r ie s h a v e l o n g b e e n l o b b y i n g f o r a 's u i

g e n e r i s ' p r o t e c t io n o f d a t a b a s e s , a s th e m a rk e t fo r e le c t r o n ic d a t a b a s e s c o u ld e a s i l y b e d e s t r o y e d

b y p ir a c y , a n d c o p y r i g h t p r o t e c t io n w a s b o th in a d e q u a t e a n d in e f fe c t iv e . In 1 9 9 6 , a n E C D i r e c t i v e

o n t h e L e g a l P r o t e c t io n o f D a t a b a s e s w a s a d o p te d . T h e E U m e m b e r s b r o u g h t it in t o f o r c e b y

d o m e s t i c l e g i s la t io n b y J a n u a r y 1, 1 9 9 8 . In A p r i l 1 9 9 8 , th e C o l l e c t i o n s o f In f o r m a t io n A n t i - p i r a c y

A c t , w h i c h w a s d e v e l o p e d f r o m s e v e r a l b i l l s o n d a t a b a s e p r o t e c t io n , w a s p a s s e d b y t h e U . S .

C o n g r e s s . T h e y f a i l e d to im p o s e s u c h a n in t e r n a t io n a l le g is la t io n . S e e X u e H o n g et a l n o t e 1 8 7

s u p ra a t 5 3 .

722 It is u n d e r s t a n d a b le th a t t h e d a t a b a s e m a k e r s w is h to p r e v e n t o t h e r f r o m p i r a t in g a n d 'f r e e ­

r i d i n g ' t h e ir p r o d u c t s .

723 'D i g i t i s a t i o n ' f a c i l i t a t e s t h e u s e o f w o r k s . H o w e v e r , in a c c o r d a n c e w i t h t h e c u r r e n t la w s , it

im p a i r e d t h e in t e r e s t s o f t h e c o p y r i g h t o w n e r s . F o r e x a m p le , a r t ic le 5 2 o f t h e C o p y r i g h t L a w

p r o v i d e d t h a t t h e t e rm 'r e p r o d u c t i o n ' u s e d in th e L a w re fe r re d t o t h e o n e - c o p y o r m u l t i - c o p y

p r o d u c t i o n o f a w o r k b y w a y o f p r in t in g , p h o t o c o p y in g , im it a t in g , s o u n d a n d v id e o r e c o r d in g ,

l i t h o g r a p h in g a r e c o r d in g , o r d u p l i c a t i n g a r e c o r d in g a n d a p h o t o g r a p h i c w o r k . In a c c o r d a n c e to

t h i s p r o v i s i o n , a c t s o f u n a u t h o r i s e d d ig i t i s a t io n a n d r e p r o d u c t io n in t h e f o r m o f C D o f a n o t h e r

p e r s o n 's w o r k w e r e l i k e l y to g i v e r is e to d if fe re n t a n s w e r s . M o r e o v e r , a r t ic le 5 - 3 o f th e

I m p l e m e n t i n g R e g u l a t i o n s o f t h e C o p y r i g h t L a w d e f i n e d t h e t e r m 'b r o a d c a s t i n g ' a s t h e

'd i s s e m in a t i o n o f a w o r k b y r a d io w a v e s a n d c a b le t e le v i s io n s y s t e m s '. C o n s e q u e n t l y , th e s e a r c h

f o r d a ta o f a c e r t a in d o c u m e n t a t io n a n d in f o rm a t io n c e n t re o n th e In t e r n e t c o u ld n o t b e r e g a r d e d

a s 'b r o a d c a s t i n g '. If o n e p e r s o n c o l le c t e d a n o t h e r p e r s o n 's w o r k in t o h i s o r h e r d a t a b a s e w i t h o u t

h i s o r h e r a u t h o r i s a t io n , a n d t h e n m a d e it a v a i la b le o n th e In te rn e t to h i s o r h e r u n f ix e d u s e r s to

s e e k p ro f it s , th e c u r r e n t c o p y r ig h t le g is la t io n c o u ld no t a n s w e r w h o in f r in g e d . It c o u ld n o t a n s w e r

w h a t r ig h t w a s b e in g in f r in g e d a s w e l l , e v e n if s u c h act o b v i o u s l y i n f r in g e d th e e c o n o m ic in te re s t s

o f th e c o p y r ig h t o w n e r . S e e S h e n n o te 5 2 4 supra at 52.

724 S e e P u n n o te 1 9 2 sup ra at 2 3 6 .

725 I b id

Page 2 3 5

edition proposed by the NCA in July 1997, digitisation was added to the means of reproduction stipulated in article 52 of the Copyright Law. Nonetheless, as the forces of reaction successfully resisted to the manoeuvres of the modernising forces, such proposal was deleted in the 1998 draft.726On this ground, the orthodox forces had undeniably won a tactical victory over the forces of modernisation. Despite their glaring defeat, the modernising forces did not lose heart. They attacked again because they strongly believed that databases should be protected in the revised Copyright Law, as article 10 of TRIPs and article 5 of the WCT required. The issue of the battle became then how to protect them. To the forces of reaction, databases should be protected under unfair competition law rather than under copyright law.727 To the forces of modernisation, where databases possess originality, they should be added to article 3 of the Copyright Law.728In the middle of the conflict for the revision of the Copyright Law, the situation appeared paralysed on the multimedia ground. At the same time, the situation did not get any better on the other ground as the Internet started operating in a way that rejects the tradition.729

On the challenge presented by the Internet: the new frontier for

'warez'730

Due to the fact that the Internet became a marketplace of both ideas and information731 and that Chinese people started thinking it was "the greatest thing

726 S e e X u e H o n g e t a I n o te 1 8 7 sup ra at 1 1 0 .

727 Z h e n g C h e n g s i , 'T R I P s a n d In t e l le c t u a l P r o p e r t y P r o t e c t io n in C h i n a ', 1 9 ( 5 ) E uropean In te lle c tu a l P ro p e r ty R e v ie w ( 1 9 9 7 ) , at 2 4 5 .

728 A r t ic l e s 3 a n d 6 o f th e C o p y r i g h t L a w lis te d te n c a t e g o r ie s o f l it e ra ry , a rt is t ic , a n d s c ie n t i f ic

w o r k s u n d e r c o p y r i g h t p ro te c t io n . S e e S h e n n o te 5 2 4 su p ra at 5 3 .

729 T o d d G . H a r t m a n , 'T h e M a r k e t p la c e v s . th e Id e a s : T h e F ir st A m e n d m e n t C h a l l e n g e s to In te rn e t

C o m m e r c e ', 1 2 (2 ) H a rv a rd J o u rn a l o f L a w & T e c h n o lo g y ( 1 9 9 9 ) , at 4 2 3 - 4 2 4 .

730 T h e te rm 'w a r e z ' is th e In te rn e t c o d e w o r d fo r i l le g a l c o p ie s o f s o f tw a re .

731 K a t r in S c h a t z B y f o r d , 'P r i v a c y in C y b e r s p a c e : C o n s t r u c t in g a M o d e l o f P r i v a c y fo r t h e E le c t r o n ic

C o m m u n i c a t i o n s E n v i r o n m e n t ', 2 4 ( 1 ) R utgers C o m p u te r a n d T e c h n o lo g y L a w J o u rn a l ( 1 9 9 8 ) , at 1 -

4 0 .

Page 2 3 6

that ever happened to them "/32 the struggle between the forces of reaction and the modernising forces rapidly turned to be merciless on this question.The infighting conditions were rendered particularly difficult by the fact that the Internet was "born global".732 733 The forces of reaction intrinsically denounced such a "vehicle and venue for expression"734 that crosses national boundaries and answers to no sovereign/35 as another initiative from the Western countries in their aim to subjugate China again. By consisting of a system of interconnected computers (networks)736 and facilitating the free exchange of information on a global le ve l/37 this network of networks represented a feared challenge to the orthodox forces. To the modernising forces, in providing such a cultural context for social interaction, shaped and defined by the people moving in it, in which information became simultaneously available to everyone, the open architecture of the Internet was ideally suited for criminal activity.738 In the context of dealing with the impact of the information technology, to regulate the Internet became a powerful impetus common to the modernising forces and to many governments. The conditions of fighting were reflected in the drafts of the revised Copyright Law that remained silent to the intellectual property protection in the context of the Internet.739 As Zheng noted, even the NCA was utterly perplexed. It provided no explanation concerning what 'communicating through networks' meant. Article 46-1 of the 1998 draft of the new Copyright Law provided anyone who would exploit a work without the authorisation of copyright owners would bear civil

732 S u s a n V . L a w r e n c e , 'In t e r n e t - W i d e n i n g W e b ', 1 6 2 ( 4 6 ) Far E astern E c o n o m ic R e v ie w ( 1 9 9 9 ) ,

at 5 5 .

733 M a . R o w e n a R . G o n z a l e s , 'A B r a v e N e w W o r l d : N o t e s o n t h e 1 9 9 6 W I P O D i p l o m a t i c

C o n f e r e n c e ', 1 3 ( 3 - 4 ) W o r ld B u lle t in ( 1 9 9 7 ) , at 9 7 .

734 H a r t m a n n o t e 7 3 0 sup ra at 4 2 3 - 4 2 4 .

735 B e n j a m in R . K u h n , 'A D i l e m m a in C y b e r s p a c e a n d B e y o n d : C o p y r i g h t L a w fo r In t e l le c t u a l

P r o p e r t y D i s t r i b u t e d o v e r t h e In f o r m a t io n S u p e r h i g h w a y s o f T o d a y a n d T o m o r r o w ', 1 0 ( 1 ) T e m p le In te rn a tio n a l a n d C o m p a ra tiv e L a w J o u rn a l ( 1 9 9 6 ) , at 1 7 1 .

736 B r a n d o n K . M u r a i , 'O n l i n e S e r v i c e P r o v id e r s a n d t h e D ig i t a l M i l l e n n i u m C o p y r i g h t A c t : A r e

C o p y r i g h t O w n e r s A d e q u a t e l y P r o t e c t e d ? ', 4 0 (1 ) Santa C la ra L a w R e v ie w ( 1 9 9 9 ) , at 2 8 5 .

737 S e e S c h a t z B y f o r d n o te 7 3 2 sup ra at 1 -4 0 .

738 W a l t e r G a r y S h a r p , S R . , 'R e d e f i n i n g N a t i o n a l S e c u r i t y in T o d a y 's W o r l d o f I n f o r m a t io n

T e c h n o l o g y a n d E m e r g e n t T h r e a t s ', 9 ( 2 ) D u k e J o u rn a l o f C o m p a ra t iv e a n d In te rn a t io n a l L a w ( 1 9 9 9 ) , at 3 8 4 .

739 L i Y in g , 'P r o s p e c t s fo r In t e l le c t u a l P r o p e r t y R e s e a r c h in C h i n a in th e 2 1 st C e n t u r y ', 5 6 ( 1 ) C h in a Patents & T ra d e m a rks ( 1 9 9 9 ) , at 6 .

Page 2 3 7

liability. It was unclear, however, if such limitation on the rights of software would also be applied to other copyrighted works in digital form on the Internet.740 Although the 1998 draft made certain stipulations in principle in respect of digital technology,741 it appeared to Zheng that the NCA had deliberately hidden the most contentious provision of the drafting process.742 To the forces o f modernisation, this was dangerous as "disputes in China over online copyright have increased as problems in this sector have increased".743 To Zheng, the modernising forces rapidly found themselves up against a great wall. Most of the members of the orthodox forces, Chinese copyright academics or officials, did not realise that the Internet would become a great means of communication of copyrighted works. The orthodox forces were without any technological background and few of them could read English without difficulty. They were frightened by the computer and related digital technology, and they were frustrated by the vast amount of English material on the Internet.744 To resist the attacks of the forces of modernisation, the orthodox forces found a logistical support in numerous Chinese technical, commercial, and regulatory restraints to retard the development of the Internet.745 Consequently, the necessary infrastructure in order to develop the Internet in China was much less developed in China at the end of the 1990s than in other countries in Asia, such as Singapore or Japan.746 Thus, the Internet in China was said to need at least ten years to reach the same level as that of the developing countries. Moreover, enterprises in China did not realise the opportunities of the Internet. For these reasons, the modernising forces were driven into a corner. Copyright protection on the Internet has could

740 F o r a m o r e d e t a i le d d i s c u s s i o n o n th e In te rn e t in f r in g e m e n t , s e e X u e H o n g et a l n o te 1 8 7 sup ra at 1 9 6 - 2 2 6 .

741 Ib id a t 1 9 7 .

742 Ib id .

743 ' C h i n a t o F o r m u l a t e O n l i n e C o p y r i g h t P r o t e c t i o n s ' , a t

h t t p :/ / w w w .c h in a o n l in e . c o m / is s u e s / in t e r n e t p o l ic v / n e w sa r c h iv e / s e c u r e / 2 0 0 0 / m a y / c .0 0 0 5 Q 1 7 0 . a s p

744 S e e X u e H o n g e t a l n o te 1 8 7 sup ra at 1 9 6 .

745 In t h e la te 1 9 9 0 s , th e S ta te m o n o p o l y o v e r t h e t e l e c o m m u n ic a t i o n s s e c t o r in C h i n a h a r m e d th e

d e v e l o p m e n t o f t h e In te rn e t. B e c a u s e o f th e m o n o p o l y , c o m m u n i c a t i o n o n th e In t e rn e t w a s v e r y

e x p e n s i v e . M o r e o v e r , C h i n a 's t e l e c o m m u n ic a t i o n s e r v i c e w a s v e r y p o o r . N e t w o r k s e c u r i t y w a s

a n o t h e r p r o b l e m th a t t h re a te n e d th e d e v e lo p m e n t o f e - c o m m e r c e in t h e c o u n t r y .

746 V o l k e r P a s t e r n a k , 'C h i n a - T h e N e w F r o n t ie r fo r E - C o m m e r c e (P a rt I o f II) ', 1 2 (8 ) IP A s ia ( 1 9 9 9 ) ,

a t 4 1 .

Page 2 3 8

not be fully considered by China. This situation was regarded as dangerous as the Internet changed the conventional form of piracy in the country.To the forces of modernisation, piracy in China could not be completed and regulated by the existing copyright legislation.747 At the end of the 1990s, most of the Chinese Internet laws only concentrated on the administrative management of network communications.748 To the modernising forces, the danger came then from the fact that young Chinese people became interested in the Internet.749 As more and more people were on-line, infringement spread.750 For example,

747 T h e f ir s t c a s e i n v o l v i n g c o p y r i g h t in f r i n g e m e n t o n t h e In t e r n e t w a s c l o s e d in C h i n a o n

D e c e m b e r 1 4 , 1 9 9 9 . T h e c a se , in w h i c h s ix f a m o u s C h i n e s e w r it e r s a c c u s e d th e 'B e i j i n g o n L in e '

h o s t e d b y t h e C e n p o k C o m m u n i c a t i o n T e c h n o l o g y C o . , Ltd., o f i n f r in g e m e n t u p o n t h e ir c o p y r ig h t ,

w a s v e r y c o n t r o v e r s ia l . It w a s f irs t r u le d in f a v o u r o f t h e p la in t i f f s b y t h e f irs t in s t a n c e c o u r t , th e

P e o p l e 's C o u r t o f t h e H a i d i a n D is t r ic t , o n 1 8 S e p t e m b e r 1 9 9 9 . D i s s a t i s f ie d , th e d e f e n d a n t h a s

a p p e a le d to t h e B e i j in g N o . 1 In t e r m e d ia t e P e o p l e 's C o u r t , w h i c h h a s m a d e , u p o n its h e a r in g , t h e

f in a l j u d g e m e n t to s u s t a in th e r u l i n g m a d e b y t h e P e o p l e 's C o u r t o f t h e H a i d i a n D is t r ic t . S e e S h e n

n o t e 5 2 4 s u p ra a t 5 8 .

748 O n F e b r u a r y 1, 1 9 9 6 , t h e S t a t e C o u n c i l p r o m u l g a t e d t h e ' I n t e r i m R e g u l a t i o n s o n th e

M a n a g e m e n t o f In t e r n a t io n a l N e t w o r k in g o f C o m p u t e r I n f o r m a t io n ', w h i c h b e c a m e e f f e c t iv e o n

M a y 2 0 , 1 9 9 7 a fte r b e in g a m e n d e d . In D e c e m b e r 1 9 9 7 , th e In f o r m a t io n W o r k i n g G r o u p o f th e

S t a t e C o u n c i l i n t r o d u c e d t h e 'I m p l e m e n t i n g M e t h o d s o f t h e In t e r im R e g u l a t i o n s o n t h e

M a n a g e m e n t o f In t e r n a t io n a l N e t w o r k in g o f C o m p u t e r I n f o r m a t io n '. B o t h t h e R e g u l a t i o n s a n d

M e t h o d s r e g u la t e d C h i n a 's In t e r n e t s e r v ic e a n d a c c e s s . W i t h o u t q u e s t io n , t h e y r e p r e s e n t e d a n

a t t e m p t to c o n t r o l a n d c e n s o r C h i n a 's In te rn e t . Z i x i a n g ( A le x ) T a n , M i l t o n M u e l l e r , a n d W i l l

F o s t e r , 'C h i n a ' s N e w In t e r n e t R e g u l a t i o n s : T w o S t e p s F o r w a r d , O n e S t e p B a c k ', 4 0 ( 1 2 )

C o m m u n ic a t io n s o f th e A C M ( 1 9 9 7 ) , at 1 1 - 1 6 . In m i d - 1 9 9 7 , t h e 'C h i n a In t e r n e t N e t w o r k

In f o r m a t io n C e n t r e ' w a s e s t a b l i s h e d u n d e r th e a u s p i c e s o f th e C o m p u t e r N e t w o r k i n f o r m a t io n

C e n t r e o f t h e C h i n e s e A c a d e m y o f S c i e n c e s to a s s is t t h e In f o r m a t io n W o r k i n g G r o u p o f t h e S ta te

C o u n c i l in a d m in i s t e r i n g th e d o m a in n a m e s y s t e m in C h in a . T h e le g a l b a s i s f o r th e C e n t r e w a s th e

'P r o v i s i o n a l M e a s u r e s f o r A d m i n i s t r a t i o n o f t h e R e g i s t r a t io n o f D o m a i n N a m e s o n C h i n a 's

In t e r n e t '. Jo C h a n , 'P r o t e c t in g A g a i n s t P ira te s in C h i n e s e C y b e r s p a c e ', 1 2 ( 7 ) IP A s ia ( 1 9 9 9 ) , a t 2 3 -

2 4 .

749 E s t im a te s f o r A p r i l 2 0 0 0 s a id t h a t t h e re w e r e b e t w e e n 1 3 a n d 1 5 m i l l i o n u se rs , p r e d o m in a n t l y

u n d e r a g e 3 5 . J o h n S c h a u b le , N e t-h e a d M i l l io n s S ign o n th e D o t .C o m m u n is t L ine , T h e S y d n e y

M o r n i n g H e r a ld , 2 5 M a y 2 0 0 0 , at 6 . A c c o r d i n g to C h in e s e o f f ic ia l s ta t is t ic s , a b o u t 1 0 % o f C h in e s e

'N e t i z e n s ' w e r e a g e d b e t w e e n 1 6 a n d 2 0 . 6 7 % w e r e b e t w e e n 21 a n d 3 0 . S e e L a w r e n c e n o t e 7 3 3

s u p ra at 5 5 .

750 B y 1 9 9 6 , t h e In te rn e t l in k e d t w e n t y - f iv e to th ir t y m i l l i o n p e o p le in o v e r 1 4 6 c o u n t r ie s , w i t h th e

n u m b e r o f u s e r s i n c r e a s i n g e x p o n e n t i a l l y e v e r y m o n t h . T h e a n n u a l in c r e a s e ra te o f t h e o n - l i n e

p o p u l a t i o n w a s 1 6 5 % . S a n j i v N . S in g h , 'C y b e r s p a c e : A N e w F r o n t ie r f o r F i g h t in g W o r d s ' , 2 5 ( 2 )

R utge rs C o m p u te r a n d T e c h n o lo g y L a w J o u rn a l ( 1 9 9 9 ) , at 2 8 7 . In 1 9 9 9 , t h e r e w e r e a n e s t im a t e d

2 0 0 m i l l i o n p e o p le w h o u s e d th e In te rn e t. S e e M u r a i n o te 7 3 7 s u p ra a t 2 8 5 . In A p r i l 1 9 9 4 , C h i n a

b e c a m e t h e 7 1 st n a t io n o f f ic ia l l y l i n k e d to th e In te rn e t . B y J u ly 1, 1 9 9 9 , 1 . 4 6 m i l l i o n c o m p u t e r s

h a d h o o k e d u p w i t h th e In te rn e t a n d th e n u m b e r o f In t e rn e t u s e r s h a d r e a c h e d 4 m i l l i o n . A t th e

b e g i n n in g o f 1 9 9 9 , t h e re w e r e o n l y 2.1 m i l l i o n In t e r n e t u s e r s in t h e c o u n t r y . A t th e e n d o f 1 9 9 9 ,

t h e r e w e r e a l r e a d y a b o u t 8 . 9 m i l l i o n . B y 2 0 0 5 , A s i a n In te rn e t u s e r s w i l l e x p a n d b y 4 2 2 % to 2 2 8

m i l l i o n , w i t h C h i n a b e c o m in g t h e le a d in g c o u n t r y in t e rm s o f n u m b e r o f u s e r s . S o m e p e o p le

b e l ie v e d t h a t in 2 0 0 5 t h e re c o u ld b e a s m a n y a s h a l f a b i l l i o n C h i n e s e p e o p le u s i n g t h e In te rn e t,

t w ic e th e e n t i r e p o p u la t io n o f t h e U n i t e d S ta te s. In t h e la te 1 9 9 0 s , C h i n a w a s s e c o n d in A s ia , o n l y

Page 2 3 9

offenders downloaded shareware or freeware from the Internet, loaded it onto CD-ROMs or floppy disks, and then sold the software on the black market, as many people believed that there was no intellectual property protection for shareware or freeware on the Internet. Consequently, people in China believed that they were free to do anything they liked.751At the end of the twentieth century, it was ironic that within the Internet lay the greatest threat to the economic viability of this industry and all creators of intellectual property. The software industry long suffered from the impact that traditional forms of piracy had on its markets, its ability to create new products, and its very survival.752 However, the unauthorised electronic distribution of copyrighted works over the Internet was to make this problem almost quaint by comparison.The term 'software piracy' long referred to the unauthorised reproduction or distribution of copyrighted software programs. For many years, the problem of software piracy was confined to unauthorised copying, installation, or physical distribution of disks and CDs. Thus, many people thought software piracy was only limited to the making and selling of CD-ROMs loaded with unauthorised copies of computer software. While it was one form of piracy, it was not the only one. In fact, it stopped being the most significant at the end of the 1990s.The emergence of the 'Web' added another dimension to software piracy by permitting electronic sales and transmission of illegal software on a large scale. Internet piracy referred to the use of the Internet to transmit, to download, or to upload unauthorised digitised copies of software.753 Internet Piracy also referred to the use of the Internet to advertise and market pirated software, delivered on physical media through the mails or other traditional means. Finally, Internet piracy referred to the use of the internet to offer and to transmit codes or other technologies used to circumvent copy-protection security features.754

to J a p a n . S e e S c h a u b le n o te 7 5 0 su p ra at [...].

751 S e e X u e H o n g e t a I n o te 1 8 7 sup ra at 1 5 .

752 T h e C o n t r i b u t i o n s o f S o f t w a r e I n d u s t r y to C h i n e s e E c o n o m y ', 8 D e c . 1 9 9 8 , a t

h t t p :/ / w w w .b sa .o r g / p re s s b o x / p o l ic v / 9 1 3 1 4 0 0 1 3 .h tm l

753 S e e T r a p h a g a n et a l n o te 3 6 8 sup ra at 4 3 1 .

754 T h e r e w e r e v a r io u s m e t h o d s u s e d b y s o f tw a re p ir a te s to o f fe r a n d d i s t r ib u t e p ir a t e d s o f tw a re .

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Internet piracy, compared to traditional piracy, was "as simple as clicking a mouse".* 755 Nearly anyone possessing widely available technology could make unlimited numbers of perfect copies of copyrighted works. The new technologies caused a decrease in marginal costs of duplication. Internet piracy was much faster, covered a greater distance, entailed less risk, and brought significant harm to copyright holders756 because cyberspace pirates could act to ta lly anonymously.757 From the perspective of the victims, not only were their personal rights violated, but also their property rights were infringed. With the traditional type, the quantity of unlawful duplication was limited. W ith the Internet, it became hard to calculate the quantity of the creative work stolen.758 As the Wall

Street Journal noted, never has there been "a threat quite like the Internet", described as a medium capable of making endless copies of material-songs, software, text, films, at virtually no cost.759 For these reasons, the forces of modernisation decided to act.The first confrontation between the forces of modernisation and the forces of reaction on the Internet ground took place on August 25, 1999. Beijing held China's first symposium dealing with issues regarding the Internet and intellectual property. The conflict was cruel among the twenty combatants who attended the confrontation. For example, the Deputy Director of the Copyright Department of

the State Copyright Bureau, Xu Chao, felt that the Copyright Law was not

T h e B S A id e n t i f ie d 11 m e th o d s , s u c h a s b u l le t in b o a r d s , e - m a il s , n e w s g r o u p s , In te rn e t R e la v C h a t

( IR C ) , F i l e T r a n s f e r P r o t o c o l (F T P ) , s ite l in k s , d i r e c t l in k s , r e m o t e l in k s , 'E l i t e ' ( ' 3 1ite ' o r '3 l 3 3 t ' )

a c t iv it ie s , c i r c u m v e n t i o n in f o r m a t io n , a n d In te rn e t a u c t io n s ite s, h t t p :/ / w w w .n o p ir a c v . c o m

755 Jo D a l e C a r o t h e r s , 'P r o t e c t io n o f In t e l le c t u a l P r o p e r t y o n th e W o r l d W i d e W e b : Is t h e D ig i t a l

M i l l e n n i u m C o p y r i g h t A c t S u f f ic ie n t ? ', 41 (3 ) A r iz o n a L a w R e v ie w ( 1 9 9 9 ) , a t 9 3 7 .

756 M o s t In t e r n e t p i r a c y c o u l d b e a c c o m p l i s h e d in o n e 's h o m e o r o f f ic e w it h v e r y lit t le r i s k o f

d e t e c t io n . U n l i k e th e p h y s i c a l d i s t r ib u t io n o f p i r a t e d s o f tw a re , th e g o o d s w e r e t r a n s fe r r e d f r o m

h o s t c o m p u t e r to P C , u n t o u c h e d b y h u m a n h a n d s a n d o f te n w i t h o u t a n y o n e 's k n o w l e d g e . T h e

v e r y n a t u r e o f t h e In te rn e t r e q u i r e d th e u s e r to r e ly o n se lf - r e s t r a in t a n d m o r a l p e r s u a s io n to re s is t

t h e t e m p t a t io n to d o w n lo a d p ira te d so f tw a re .

757 T h e n o v e l t y o f t h e In t e r n e t w a s th a t it a l l o w e d u s e r s to r e m a in e f f e c t iv e ly a n o n y m o u s . T h i s

r a p i d l y p r e s e n t e d p r o b le m a t ic c o n s e q u e n c e s f o r t h o s e s e e k i n g to e n f o r c e in t e l le c t u a l p r o p e r t y

r ig h t s . S e e J o n e s n o t e 7 1 4 s u p ra at 8 3 .

758 http://www.chinaonline.eom/features/legal/nevvsaichive/secLire/1999/december/b2-99121718- s s . a s p f

759 L a n ie r S a p e r s t e in , 'C o p y r i g h t s , C r im in a l S a n c t i o n s a n d E c o n o m i c R e n t s : A p p l y i n g t h e R e n t

S e e k i n g M o d e l to th e C r im in a l L a w F o r m u la t io n P r o c e s s ', 8 7 ( 4 ) The J o u rn a l o f C r im in a l L a w a n d c r im in o lo g y ( 1 9 9 7 ) , at 1 5 0 9 .

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appropriate to protect works on the Internet. Wei Zhi, from Peking University's

Institute of ilntellectual Property said that the 1990 Copyright Law could deal with new cases, such as piracy on the Internet. "China should work out its own way", he concluded. Li Wei, an official with the Software Registration Centre of China's State Copyright Office, declared that presenting works on the Internet involved digitising the information. China's copyright legislation should not restrain such a useful tool as the Internet. Mao Wei, director of the China Internet Network

Information Centre, voiced a similar view. Moreover, an associate professor from Peking University, Zhang Peng, said that in the digital age, the public had the right to acquire information. To him, it would be wrong to expand copyright coverage "in fin ite ly". Judges like Zhang Lumin, Chief Judge of the intellectual

Property Court of the Beijing Higher People's Court, and Liu Lanfang, Vice- President o f the Beijing Haidian District Court jointly said that the Copyright Law should be modified. Thus, judges in China would be able to "do their jobs [i.e. protecting copyright on the Internet] better".760The confrontation occurred on the two traditional characteristics of intellectual property. Intellectual property has long been characterised by its 'exclusivity', but the information contained on the Internet has always been mostly open, known to, and used by the people around the world.761 The interactivity between creators and users, and the user and a work has always been one of the most remarkable features of the Internet. Users soon became responsible for causing computers to make reproductions.762 Each user was changed into a recipient, a provider, and a disseminator of information on the Internet.763 Every time a work is transmitted from one computer to another, a transient or temporary copy of it has to be made

760 ' C h i n a ' s F i r s t S y m p o s i u m o n t h e I n t e r n e t a n d I n t e l l e c t u a l P r o p e r t y ', a t

h t t p : / / w w w .c h in a o n l in e . e o m / in d u s t r y / in f o t e c h / n e w s a r c h iv e / se c u re / 1 9 9 9 / a u g u s t / c 9 0 8 2 5 8 5 . a s p

761 S o m e I P R s p e c ia l i s t s p r o p o s e d th a t 'e x c l u s i v i t y ' s h o u ld b e 'd i l u t e d ' a n d 'w e a k e n e d ' in o r d e r to

a l le v ia t e its c o n t r a d ic t io n w it h t h e id e a s o f 'o p e n n e s s ' a n d 'p u b l i c u s e '. O n t h e o t h e r h a n d , m o r e

s c h o l a r s a d v o c a t e d th a t 'e x c l u s i v i t y ' s h o u ld b e fu r t h e r 's t r e n g t h e n e d ' a n d 'i n t e n s i f i e d '. T h e m o s t

t y p ic a l e x a m p l e s o f t h is t e n d e n c y w e r e th e t w o c o p y r i g h t t re a t ie s c o n c l u d e d u n d e r th e a u s p i c e s o f

t h e W I P O in D e c e m b e r 1 9 9 6 . S e e Li n o te 7 4 0 su p ra at 6.

762 S e e P e n d le t o n n o t e 7 1 6 sup ra a t 1 3 4 .

763 W h a t i s t h e p o s i t io n o f th e u s e r o r n e t b r o w s e r ? B y v ir t u e o f th e n a t u r e o f t h e In te rn e t, t h e u s e r

c a n n o t k n o w t h e c o n t e n t o f v ir t u a l d o c u m e n t s u n t i l t h e y a re o p e n e d , a n d e v e n th e n , t h e u s e r is

n o t a w a r e w h e t h e r th e v ir tu a l d o c u m e n t is re s id e n t o n t h e h o s t s ite o r l in k e d f r o m o t h e r s ite s.

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in the 'Random Access Memory' (RAM) of each computer through which it was switched.764 Each time an 'Internet Service Provider' (ISP) caches information in its computer, to avoid having to return to the original source each time a user calls for the information, a copy of the information is made in the ISP's computer. The controversy that arose out of the growth in on-line services, was whether an ISP or a 'Bulletin Board Service' (BBS) was to be regarded liable for infringing material it carried.765 Fears came from the fact that a digital copyrighted work can be accessed, viewed, and manipulated as it travels over the Internet, without creators being aware. To the modernising forces, the revised Copyright Law had to clarify that temporary copies fall within the reproduction right.766 767'Territoria lity ' is another characteristic of intellectual property.7b7 However, knowledge transmission on the Internet became 'borderless' in nature.768 The confrontation was then focused on how to choose the place of court when infringement occurred. Traditionally, lawsuits have been brought to courts located near the defendant's residence or where the infringement occurred.769 With the

7M S e e J o n e s n o t e 7 1 4 supra at 8 7 .

765 T h e S o f t w a r e R e g u la t io n s n e i t h e r e x p l ic i t l y e x c lu d e d 't e m p o r a r y r e p r o d u c t i o n ' f r o m t h e s c o p e

o f r e p r o d u c t i o n r ig h t s , n o r e x p l i c i t l y c o n f i r m e d its p r o t e c t io n . T h e 1 9 9 8 d ra ft d e f in e d t h e r ig h t o f

r e p r o d u c t io n a s t h e r ig h t to m a k e o n e o r m o r e c o p ie s o f t h e w o r k , w i t h o u t s p e c i f y i n g th e m e a n s o f

r e p r o d u c t io n . T h u s , C h i n a w a s st ill u n d e c id e d in t h is q u e s t io n . A c c o r d i n g to t h e C h i n e s e c o p y r ig h t

le g is la t io n , t h e n a t u r e o f th e o n l i n e t r a n s m is s io n s e e m e d n o t to b e d e c id e d b y t h e c o n d u c t o f th e

p e r s o n w h o t r a n s m i t s th e w o r k , b u t b y t h e c o n d u c t o f t h e u s e r w h o a c c e s s e s th e w o r k . S e e X u e

H o n g et a l n o t e 1 8 7 sup ra at 1 1 5 .

766 S e e R o b e r t s o n n o t e 3 6 8 sup ra at 5 7 .

767 P a u l E d w a r d G e l l e r , ' I n t e r n a t i o n a l In t e l le c t u a l P r o p e r t y , C o n f l i c t s o f L a w s a n d In t e r n e t

R e m e d ie s ', 2 2 ( 3 ) E urop ea n In te lle c tu a l P ro p e rty R e v ie w ( 2 0 0 0 ) , at 1 2 6 .

768 S o m e p e o p l e s u g g e s t e d th a t to r e s o l v e t h e i s s u e s b r o u g h t b y t h e n e w e n v i r o n m e n t o f th e

In t e r n e t w a s t o t a k e t e c h n ic a l m e a s u r e s to k e e p a c o n t r o l o f t h e 'b o r d e r l e s s ' n a t u r e o f t h e In te rn e t

t r a n s m is s io n . H o w e v e r , to a d o p t t h e p a th o f b u i l d i n g f e n c e s , a s o p p o s e d to p r e s e r v in g t h e b a r r ie r

f re e n a t u r e o f t h e In te rn e t w a s a lm o s t im p o s s ib le . P r o t e c t io n c o u ld n o t b e u s e d a s a n e x c u s e fo r

c e n s o r s h ip . O n t h e o t h e r h a n d , p r o t e c t io n c o u l d n o t g o a g a in s t in t e r e s t in p r i v a c y , in te re s t in

f r e e d o m o f e x p r e s s i o n , a n d t r a n s a c t io n c o s t s . T h e in t e r n a t io n a l c o m m u n i t y r e c o g n i s e d , t h r o u g h

t h e T R I P s A g r e e m e n t , tha t th e p ro t e c t io n , ra th e r t h a n th e p i l f e r in g o f w o r k s , w a s t h e u n i q u e w a y to

e n c o u r a g e t h e i r c r e a t io n , im p r o v e m e n t , a n d d i s s e m in a t i o n . T h e p r o t e c t io n o f c o p y r i g h t o n th e

In t e r n e t w a s t o o c c u r " b y w a y o f w e a k e n e d t e r r i t o r ia l i t y o f i n t e l le c t u a l p r o p e r t y " . A l b a n K a n g ,

A l b a n T a y M a h t a n i , a n d D e S i lv a , 'I n f r in g e m e n t a n d E n f o r c e m e n t o f I P R S o n t h e In t e r n e t ', 5 6 - 5 7

In te lle c tu a l P ro p e r ty in A s ia a n d th e P a c if ic ( 1 9 9 8 ) , at 2 5 .

769 In a c c o r d a n c e w it h a r t ic le 1 4 6 - 1 o f t h e G e n e r a l P r in c ip le s o f th e C i v i l L a w , th e la w o f th e p la c e

w h e r e a n i n f r i n g i n g a c t w a s c o m m it t e d a p p l ie d in h a n d l i n g c o m p e n s a t i o n c l a im s fo r a n y d a m a g e

c a u s e d b y t h e a c t . H o w e v e r , in a c c o r d a n c e w it h a r t ic le 1 4 6 - 2 o f t h e G e n e r a l P r in c ip le s , a n a c t

c o m m it t e d o u t s i d e C h i n a w a s n o t t re a te d a s a n i n f r i n g in g a c t u n d e r C h i n e s e la w , if it w a s n o t

c o n s i d e r e d a n in f r i n g in g a ct. In a c c o r d a n c e w it h a r t ic le 1 4 2 - 3 , in t e r n a t io n a l p r a c t ic e a p p l i e d in

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Internet, it became harder to follow this custom.770 As soon as an infringing reproduced product was put on the Internet; any spot in the world could be the place of the infringing act. The combats focused then on the revolution that occurred in the intellectual property crim inal activity. A criminal no longer needed to be at the actual scene of the crime to prey on victims.771 The combats also focused on new issues brought by the Internet, such as its transience. A web site that was ordered to cease operation could easily appear in another jurisdiction. Its contents could also be mirrored with or without permission in multiple jurisdictions.772 To the modernising forces, it soon became a serious problem for creators and copyright owners facing an unprecedented and uncompensated use and misuse of their works on a global scale. Enforcement authorities also began to face an increasing difficulty to detect unauthorised copies because of their quality and the geographic extent of dissemination. Due to the tricky situation, the forces of modernisation and the orthodox forces were unable to stop the direct intervention of the fairy godmother on the domestic front.To the modernising forces, the revised Copyright Law should then grant right holders the exclusive right to control the communication of their work to the public. This exclusive right should include though interactive networks, regardless of whether or not the person who 'posted' the work did so with a profit making motive or whether there is evidence of actual down loading taking place.773 To the fairy godmother, the negotiations to snatch 'Copyright' from the evil clutches of 'Confucius the Dragon', and its nefarious, obdurate cyberspace villains seemed to never end. The right to control the reproduction of copyrighted works

m a tte r f o r w h i c h n e it h e r th e la w o f C h i n a n o r a n y in t e r n a t io n a l t re a ty c o n c l u d e d o r a c c e d e d to b y

C h i n a h a d a n y p r o v i s i o n . T h e re w a s n o in t e r n a t io n a l p r a c t ic e c o n c e r n in g th e a p p l i c a t io n o f l a w to

th e In te rn e t. S e e X u e H o n g et a l n o te 1 8 7 supra at 2 2 5 .

770 Ib id a t v i.

771 M i c h a e l A . S u s s m a n n , T h e C r i t ic a l C h a l l e n g e s F r o m In t e r n a t io n a l H i g h - T e c h a n d C o m p u t e r -

R e la te d C r i m e a t t h e M i l l e n n i u m ', 9 ( 2 ) D u k e jo u r n a l o f C o m p a ra t iv e a n d In te rn a tio n a l L a w ( 1 9 9 9 ) ,

at 4 5 1 .

772 S e e J o n e s n o t e 7 1 4 su p ra at 8 6 .

773 S e e R o b e r t s o n n o t e 3 6 8 sup ra at 5 7 .

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was termed by the fairy godmother the fundamental copyright right.774 To protect Copyright was her unique duty. So judiciously did she claim that the overall global Internet piracy losses, estimated at nearly US$ 11 billion annually, were on the rise that a whole host of 'intrepid warriors' enthusiastically joined up for the new crusade. An armada was raised on account that on-line copyright theft was rising to epidemic proportions, threatening creative industries while inhibiting the development of e-commerce.775No one welcomed the growth and full utilisation of the Internet more than the American software industry, which estimated that by 2003-05 the global e- commerce volume would be US$ 2-3 trillion.776 By now, consumers can purchase an array of items on the Internet, including books, music, films, and almost any other subject matter.777 For example, in the late 1990s in the United States, e- commerce transaction already totalled more than US$ 6 billion annually. Simply during the 1999 holiday shopping season, e-commerce purchases totalled US$ 2.3 billion, more than double the amount of holiday sales realised during the same time the previous year. This growth was expected to continue at an exponential rate, with total e-commerce sales expected to reach US$ 78 billion annually in 2003.778 Thus, to facilitate the increasing utilisation and/or distribution of computer programs and other copyrighted works over the Internet, copyright holders should attach rights management information to inform people who purchase or license a work as to the owner of the work, purchase or license terms, and payment terms. The integrity of this information is of great importance as consumers started to accept the Internet as a forum for commerce. As the U.S. concerns for the issue was unsurpassed by any other nation, the majority of warriors were from the United States. In their very particular way of looking at things, the U.S. troops said "[w je are at war - right now. We are in a

774 S e e F it z p a t r ic k n o te 7 1 3 sup ra at 2 1 8 .

775 'I n t e r n e t P i r a c y R e a c h i n g E p i d e m i c P r o p o r t io n s , T h r e a t e n s E - C o m m e r c e ', ( S e p t e m b e r 1 4 ,

1 9 9 9 ) , a t h t tp :/ / w w w .n o p ir a c y .c o m /

776 S e e J o n e s n o te 7 1 4 sup ra at 8 0 .

777 S e e S i n g h n o t e 7 5 1 sup ra at 2 8 8 .

778 S e e H a r t m a n n o t e 7 3 0 sup ra at 4 2 2 .

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cyberwar".779As an example, the U.S. troops mobilised again on the ground that the revised Copyright Law should be amended to grant right holders in China the exclusive right to control the removal or alteration of rights management information from works or the distribution or communication of works.780 To the U.S. troops, the new Copyright Law should provide for civil remedies and criminal penalties where the defendant knows that these acts w ill facilitate an infringement of copyright in the underlying work.The President and CEO of the Business Software Alliance told an international audience of policy makers in Geneva in September 1999 the righteousness of their action. To him, " [I]ike other crim inals",781 Internet pirates should be combated as they are ingenious and adaptive, constantly finding new ways to adapt for illic it purposes the very technology, which makes the Internet possible. To him, Internet piracy began to extend far beyond the confines of the software industry, and harm economies around the world, it became clear to the intrepid warriors that the Internet was providing "a safe haven for the conduct of software piracy" for China's pirates.782 The U.S. troops emphasised then the importance of strong copyright laws, providing a sufficient basis for stopping piracy on the Internet. They called on nations to implement the WIPO copyright treaties,783 which stated that the contracting parties should develop and maintain the

779 S e e S h a r p n o t e 7 3 9 sup ra at 3 8 3 .

780 S e e R o b e r t s o n n o t e 3 6 8 sup ra at 5 7 .

781 A c c o r d i n g t o t h e P r e s id e n t a n d C E O o f B S A , t h e r e w e r e o v e r 2 m i l l i o n w e b - s i t e s o f f e r in g ,

l i n k in g , o r r e f e r e n c in g i l le g a l c o p i e s o f s o f t w a re o n th e In te rn e t . T h e y w e r e 1 0 0 , 0 0 0 in 1 9 9 7 ,

9 0 0 , 0 0 0 in 1 9 9 8 . W h i l e t h e s e s i t e s w e r e v e r y t r o u b le s o m e , s o t o o w e r e o n l i n e a u c t i o n s ite s.

I n f o r m a l m o n i t o r i n g o f t h e s e s i t e s in d ic a t e d th a t u p w a r d s o f 6 0 % o f t h e s o f t w a r e o f f e r e d o n

p o p u l a r A m e r i c a n a n d E u r o p e a n a u c t io n s ite s w e r e c o u n t e r fe it c o p ie s . T h e a u c t io n s ite s w e r e o n l y

u s e d to l in k b u y e r s a n d se lle r s , a n d n o t to d o w n l o a d s o f tw a re . P ir a t e d s o f t w a r e w a s d e l i v e r e d to

t h e p u r c h a s e r in C D f o r m a t b y m a i l o r o t h e r t r a d i t io n a l m e a n s . B e c a u s e o f t h e ir a p p a r e n t

l e g i t im a c y a n d g r o w i n g p o p u l a r i t y a m o n g c o s t - c o n s c i o u s c o n s u m e r s , In t e r n e t a u c t i o n s i t e s

a f f o r d e d s o f t w a r e p ir a t e s a u n i q u e o p p o r t u n i t y to r e a c h a m u c h b r o a d e r p o o l o f s o f t w a r e u se rs ,

m o s t o f w h o w o u l d n o t k n o w i n g l y p u r c h a s e i l l e g a l s o f tw a re . T h e p i r a t e s t y p ic a l l y d e f r a u d e d

b id d e r s b y c l a i m i n g th a t t h e i l l e g a l s o f t w a r e w a s g e n u i n e p r o d u c t o b t a in e d a t a d e e p d i s c o u n t

t h r o u g h w h o l e s a l e c h a n n e ls , http://www.nopiracy.com/782 'S o f t w a r e W a t c h d o g A t t a c k s C y b e r p i r a c y - B S A F i le s L a w s u i t A g a i n s t 2 5 In d i v i d u a l s f o r A l le g e d

P i r a c y in H i g h - S p e e d I R C C h a n n e l ; S e i z e s C o m p u t e r in C a l i f o r n i a a n d M i c h i g a n ' ( N o v e m b e r 11 ,

1 9 9 9 ) , a t h t tp :/ / w w w . n o p i ra c v . c o m /

783 In p u r s u i n g its e d u c a t io n a l o u t r e a c h , th e B u s i n e s s S o f t w a r e A l l i a n c e h a s o p e n e d a n e w C h in e s e

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protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible.784Differences in national copyright traditions have been tolerable as national regimes have regulated commerce in physical objects or physical performances that have to exist in a particular country before a dispute could arise. As the Internet has a more global and less territorial character, it rapidly seemed essential to speed up the harmonisation of national intellectual property laws and finalise a set of international laws protecting intellectual property rights.785 As one of the commander-in-chiefs of the U.S. troops said, "I consider high-tech crime to be one of the most serious issues demanding my attention, and I am doing everything in my power to ensure that the United States actively responds to these challenges".786 The words of Thomas Jefferson, first head of the U.S. Patent Office, were then echoed. As he put it, "laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinion change, with the change in circumstances, institutions must advance also to keep pace with the times".787Does this new cyber-war spell the end of "the Chinese intellectual property frontier"?

l a n g u a g e w e b - s i t e a t http://www.madefordiirui.com/bsa784 S e e F i t z p a t r ic k n o te 7 1 3 sup ra at 2 2 1 .

785 S e e X u e H o n g et a l n o te 1 8 7 s u p ra at v i.

786 U . S . A t t o r n e y G e n e r a l Jane t R e n o ( J a n u a ry 2 1 , 1 9 9 7 ) . K e y n o t e A d d r e s s to t h e M e e t in g o f th e G -

8 S e n io r E x p e r t s ' G r o u p o n T r a n s n a t io n a l O r g a n i s e d C r im e . S e e S u s s m a n n n o t e 7 7 2 su p ra at 4 5 1 .

787 C h a d G . A s a r c h , ' I s T u r n A b o u t F a ir P la y ? C o p y r i g h t L a w a n d t h e F a ir U s e o f C o m p u t e r

S o f t w a r e L o a d e d in t o R A M ', M i c h i g a n L a w R e v ie w ( 1 9 9 5 ) , V o l u m e 9 5 , at 6 5 4 . [ In s c r ip t io n at th e

Je f fe rso n M e m o r i a l , W a s h in g t o n , D .C . ]

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Conclusion

This thesis has argued that just as the western concept of intellectual property law, notably copyright, was expanded to China, the Chinese idea of intellectual property administration, the Chinese intellectual property frontier, was also extended to the rest of the world. China is on the verge of becoming a new superpower, rivalling the United States. The superpowers, which have preceded it over the ages, have all significantly shaped the world of their day. China w ill not be the exception. However at the dawn of the twenty-first century, the Internet is a bold new domain. There is much apprehension concerning how it can be regulated internationally and within China. This may jeopardise the Chinese intellectual property frontier."There may be found in the [...] Information Age a parallelism to the Age of Discovery in the 1500s where boldness and new discoveries fuelled certainty, and certainly meshed with apprehension over the unknown in the known",1 In this new age two things are now known. As Voltaire noted in the eighteenth century, true conquerors are those who know how to make laws. Their power is stable; the others are torrents, which pass. The other known thing is that the Chinese participation in the WTO w ill change the way people do business and deal with the law in China. Cases w ill be brought against the Chinese government to the new international organisation. And until recently, businesspeople worked co-operatively with the Chinese government.

1 M A . R o w e n a R . G o n z a l e s , " A B r a v e N e w W o r l d ; N o t e s o n t h e 1 9 9 6 W I P O D i p l o m a t i c

C o n f e r e n c e " 1 3 ( 4 - 3 ) W o r ld B u lle t in ( 1 9 9 7 ) , at 9 7

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Bibliography:

Law lournal Articles/Books/Reviews by the three scholars:

Zheng Chengsi and Michael D. Pendleton:'The Quan Jui-de Drama - The Beginning of an Awareness of Chinese Copyright Protection' Copyright World (1990), Issue 8, Jan./Feb., at 40 'China's First Court Decision on Copyright: Jiang v Qiao and the Film "Hospital Ward No. 16" European Intellectual Property Review (1990), Vol. 12, Issue 6, June, at 217'Copyright Law in China' CCH Australia Limited'A response to United States Government Criticisms of the Chinese Copyright Law' European Intellectual Property Review (1991), Vol. 13, Issue 7, July, at 257Zheng Chengsi:'Trade Marks in China: The First Specific Law in the Field of Chinese Intellectual Property' European Intellectual Property Review (1982), Vol. 4, Issue 10, Oct., at 278'The Future Chinese Copyright System and its Context' IIC - International Review of Industrial Property ana Copyright Law (1984), Vol. 15, No. 2, at 141 'The Chinese Patent Law of 1984' European Intellectual Property Review (1984), Vol. 6, Issue 7, July, at 193'Printing and Publishing in China and Foreign Countries and the Evolution of the Concept of Copyright (1) China Patents & Trademarks (1987), Issue 4, at 41 'Printing and Publishing in China and Foreign Countries and the Evolution of the Concept of Copyright (2) China Patents & Trademarks (1988), Issue 1, at 47 'Intellectual Property and information Property' European Intellectual Property Review (1989), Vol. 11, Issue 9, Sept., at 327'Copyright in China, in Ancient Time, Today and in Future' International Copyright Society (1990), No. 7, at 75'The First Copyright Law of the People's Republic of China' European Intellectual Property Review (1990), Vol. 12, Issue 10, Oct., at 376'The Berne Convention and the Moral Rights in the Chinese Copyright Law' China Patents & Trademarks (1992), Issue 4, at 68'The Software Copyright Protection and Software Licensing in China - Current Legislation and Development' Journal of Chinese and Comparative Law (1993), Vol. 1, No. 2, at 152'Special Features, Merits and Shortcomings of China's Laws for Intellectual Property Protection' China Patents & Trademarks (1994), Vol. 36, Issue 1, at 18 'The First Unfair Competition Law of the PRC' European Intellectual Property Review (1994), Vol. 16, Issue 4, Apr., at 1 81'TRIPs and Intellectual Property Studies in China' China Patents & Trademarks (1994), No. 39, Issue 4, at 10'The Protection of Computer Programs under the Chinese Copyright Law' European Intellectual Property Review (1995), Vol. 1 7, Issue 7, July, at 344 'First Major Copyright Case Involving a Foreign Party - Walt Disney Production v Beijing Publisher & Co." Copyright World (1996), Issue 58, March, at 19 'Intellectual Property Studies - Number 2' (Zheng Chengsi, Chief Editor) Fangzheng Publishing House, China, (1996), Dec.

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*

'Copying, O rig inality and Copyright Protection' China Patents & Trademarks(1997) , Vol. 48, Issue 1, Jan., at 47'TRIPs and Intellectual Property Protection in China' European Intellectual Property Review (1997), Vol. 19, Issue 5, May, at 243'Intellectual Property Enforcement in China - Leading Cases and Commentary' The China Law Series, Hong Kong - Singapore, Sweet & Maxwell Asia, 1997 'The TRIPs Agreement and Intellectual Property Protection in China' Duke Journal of Comparative and International Law (1998), Vol. 9, at 219 'Intellectual Property Right, Property Right and Real Right' China Patents & Trademarks (1998), Vol. 53, Issue 2, April, at 14'Intellectual Property Right, Property Right and Real Right' (Cont.) China Patents & Trademarks (1998), Vol. 54, Issue 3, July, at 5'Software Protection in China: A Complete Guide' (Xue Hong with Zheng Chengsi) The China Law Series, Sweet & Maxwell Asia, Hong Kong (1999)'WTO and Chinese IP Laws' China Patents & Trademarks (2000), Issue 1, at 7Michael D. Pendleton:'Intellectual Property Law in the People's Republic of China: A Guide to Patents, Trade Marks and Technology Transfer' Butterworths, Singapore, 1985 'Copyright - Blatant Infringement of Copyright Perpetrated against one of China's most H ighly Regarded intellectual Property Lawyers' European Intellectual Property Review (1993), Vol. 8, News Section, National Reports, at D-178 'Chinese Intellectual Property - Some Global Implications for Legal Culture and National Sovereignty' European Intellectual Property Review (1993), Vol. 15, Issue 4, April, at 119'Intellectual Property and the National Interest: What Developing Countries can learn from the Hong Kong Experience' European Intellectual Property Review(1998) , Vol. 20, Issue 9, Sept., at 325'Websites and Hyperlinks: Copyright and Conflict of Law Implications' Asia Pacific Law Review (1999), Vol. 7, No. 2, at 229'Computer Programs, Internet Copyright and TRIPs Border Control' Asia Pacific Law Review (1999), Vol. 7, No. 1, at 133'The Danger o f Protecting Too Much: A Comparative Analysis of Aspects of Intellectual Property in Hong Kong, Britain and the Unitea States' European Intellectual Property Review (2000), Vol. 22, Issue 2, Feb., at 69William P. Alford:'The Inscrutable Occidental? Implications of Roberto Unger's Uses and Abuses of the Chinese Past' Texas Law Review (1986), Vol. 64, No. 5, Feb., at 915 "'Seek Truth from Facts" - Especially when they are Unpleasant: America's Understanding of China's Efforts at Law Reform' UCLA Pacific Basin Law Journal(1990), Vol. 8, No. 2, at 1 77"Forum: Taiwan and the GATT - Panel Three: Intellectual Property, Trade, and Taiwan: A GATT's Fly View" Columbia Business Law Review (1992), Vol. 97, at 104'Don't Stop Thinking About... Yesterday - Why there was No Indigenous Counterpart to Intellectual Property Law in Imperial China' Journal of Chinese Law (1993), Vol. 7, No. 1, at 3'Zhu Q iwu and The Development of Criminal Law in the People's Republic of China' UCLA Pacific Basin Law Journal (1993), Vol. 2, No. 1-2, spring/falI, at 60 'How Theory Does - And Does Not - Matter: American Approaches to Intellectual Property Law in East Asia' UCLA Pacific Basin Law Journal (1994), Vol. 13, No.1, fall, at 8

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'To Steal a Book is an Elegant Offense - Intellectual Property Law in Chinese Civilization' Stanford, Stanford University Press, 1995'Tasselled Loafers for Barefoot Lawyers: Transformation and Tension in the World of Chinese Legal Workers' The China Quarterly (1995), No. 141, March, at 22 'Making the World Safe for What? - Intellectual Property Rights, Human Rights and Foreign Economic Policy in the Post-European Cold War World' International Law and Politics (1996-1997), Vol. 29, at 135'Law, Law, What Law? - Why Western Scholars of Chinese History and Society Have Not Had More to Say aoout Its Law' Modern China (1997), Vol. 23, No. 4, Oct., at 398'Copying, Culture, and Control: Chinese Intellectual Property Law in Historical Context' (Review of Alford's Book, 'To Steal a Book is an Elegant Offence') (Jonathan Ocko) Yale Journal of Law and the Humanities (1996), No. 8, at 559Law lournal Articles/Books/Reviews about China's intellectual property laws:about Intellectual Property Legislation in General:Michael Fawlk, Beth A. Bunnell, David C. Buxbaum, Simon P. Cheetham, Valerie Colbourn, Graeme Hall, David Ben Kay, Michael B. Lin, Paul Scholefield, Jeannie Smith, Tan Loke Khoon, and Jianyang Yu, 'Intellectual Property Protection in China - Practical Strategies', Asia Law & Practice, Hong Kong, 1996 Guo Shoukang, 'The Common Rules of Civil Law and Intellectual Property', China Patents & Trademarks (1987), Issue 3, at 98Liu Gushu, 'A Retrospect of the Chinese Intellectual Property Rights System and Some Thoughts Thereon', China Law, at 64Jianyang Yu, 'Protection of Intellectual Property in the P.R.C.: Progress, Problems, and Proposals', UCLA Pacific Basin Law Journal (1994), Vol. 13, No. 1, fall, at 140Michael Oksenberg, Pitman B. Potter, and W illiam B. Abnett, 'Advancing Intellectual Property Rights: Information Technologies and the Course of Economic Development in China', The National Bureau of Asian Research (1996) Mary L. Riley with contributions from Anna S. F. Lee, Thomas Lagerqvist, Liu Shan, 'Protecting Intellectual Property Rights in China', The China Law Series (1997), Hong Kong - Singapore, Sweet & Maxwell AsiaMichael N. Schlesinger, A Sleeping Giant Awakens: The Development of Intellectual Froperty Law in China', Journal of Chinese Law (1995), Vol. 9, at 93 Ella Shuk-Ki Cheong, Cecilia Cumming, Frances Drummond, Lindsay Esler, John Glengarry, Graeme Hall, Denise Lo, Pitman B. Potter, and Paul Scholefield, 'Intellectual Property Protection - The Law', Asia Law & Practice, Hong Kong, 1996Andrew G. A/alder, 'Harmonisation: Myth and Ceremony? A Comment', UCLAPacific Basir Law Journal (1994), Vol. 13, No. 1, fall, at 163Wang Zhengfa, 'The Chinese Intellectual Property System at the Turning Point',China Patens & Trademarks (1992), Vol. 28, Issue 1, Jan., at 22Yang Jinqi, Chinese Intellectual Property Law: Some of the issues to be resolvedand improved', China Law, at 76

about Technological Transfer:Paul B. Birdan, Jr. 'Technology Transfers to China: An Outline of Chinese Law', Loyola of Lcs Angeles International and Comparative Law Journal (1994), Vol. 16, No. 2, Feb., at 413

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Pat K. Chew, 'Political Risk and U.S. Investments in China: Chimera of Protection and Predictability?', Virginia Journal of International Law (1994), Vol. 34, No. 3, spring, at 615Tek Ling Chwang and Richard L. Thurston, 'Technology Takes Command: The Policy of the People's Republic of China with Respect to Technology Transfer and Protection o f Intellectual Property', The International Lawyer (1987), Vol. 21, No. 1, winter, at 129'Current Developments in the People's Republic of China: Has China Changed?', Janiece Marshall, The Transnational Lawyer (1988), Vol. 1, at 505 Lionel S. Sobel 'Technological Transfer and Protection of Intellectual Property in China', Loyola Los Angeles International and Comparative Law Journal (1989), Vol. 12, No. 1, at 61David L. Weller, 'The Bureaucratic Heavy Hand in China: Legal Means for Foreign Investors to Challenge Agency Action', Columbia Law Review (1998), Vol. 98, No. 5, at 1238

about Industrial Property:Brian Barron 'Chinese Patent Legislation in Cultural and Historical Perspective', Intellectual Property Journal (1991), Vol. 6, at 313Cao Zhongqiang, 'Trend of Internationalization of Trademark Protection and its Impact on the Legal System of Trademark in China', China Patents & Trademarks (2000), Issue 1, at 40Chen Zhonghua, 'Structural and Functional Characteristics of Claims in Chinese Patent Law', European Intellectual Property Review (1991), Vol. 13, Issue 6, June, at 219Louise Duncan and Wang Yanbin, 'Reflections on the Changing Face of the Chinese Patent System', Australian Intellectual Property Journal (1994), Vol. 5, No. 3, Aug., at 165Timothy A. Gelatt, 'Book Review - Joint Ventures in the People's Republic of China: Can Capitalism and Communism Coexist?, Law and Policy in International Business (1991), Vol. 22, No. 3, at 627Liu Gushu, 'An Introduction to the System of Protection for Industrial Property in China', European Intellectual Property Review (1985), Vol. 7, Issue 2, Feb., at 43 Benny Lee and Xavier Buffet Delmas, 'Welcome Changes to the Trade Mark Law of the People's Republic of China', European Intellectual Property Review (1992), Vol. 14, Issue 2, Feb., at 67Lisa Leong, 'Trademark Law in the People's Republic of China: Encouragement of Foreign Investment', Australian Intellectual Property Journal (1996), Vol. 7, No. 1, Feb., at 32Brian Parry, 'Licensing in China and the New Joint Venture Law', European Intellectual Property Review (1980), March, at 70K.H. Pun, 'Anti-unfair Competition Law in China: Still Awaiting Supplements', ICC - International Review of Industrial Property and Copyright Law (1995), Vol. 26, No. 5, at 637K.H. Pun, 'Protection of Well-known Goods in China', European Intellectual Property Review {1996), Vol. 18, Issue 10, Oct., at 537Robert E. Rosenthal, 'The Chinese Patent System', Law and Policy in International Business (1985), Vol. 17, No. 4, at 907Liwei Wang, 'China's Patent Law and the Economic Reform Today', UCLA Pacific Basin Law Journal (1991), Vol. 9, No. 1 & 2, spring, at 254.Wen Xikai, 'The Emerging Unfair Competition Repression Regulations in Certain Areas of the People's Republic of China', European Intellectual Property Review(1991), Vol. 13, Issue 1, Jan., at 21

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Jiang Ying, "Intellectual Property System inaugurated and Developed in the Reform and Opening up in China', China Patents & Trademarks (1999), Vol. 56, No. 1, Jan., at 12

about the Copyright Law and the Software Regulations:Fonda Y. Duvanel, 'The Evolution and Enforcement of Computer Software Copyright in the People's Republic of China', New York Law School Journal of International and Comparative Law (1996), Vol. 16, No. 3, at 337 Philip H. Lam, 'Copyright Protection of Foreign Computer Software in the People's Republic of China: Significant Progress in Two Years', Loyola of Los Angeles International and Comparative Law Journal (1995), Vol. 1 7, No. 4, Oct., at 861Li Xiang Sheng, 'Waiting for Supplements: Comments on China's Copyright Law', European Intellectual Property Review (1991), Vol. 13, Issue 5, May, at 171 Liu Cushu, 'Questions of World Wide Interest in Connection with the Chinese Copyright Law' China Patents & Trademarks (1991), No. 27, Issue 4, Oct., at 21 Li Jinlan, 'The Practice of Computer Software Copyright Registration in China', China Patents & Trademarks (1996), Vol. 45, Issue 2, April, at 97 Henry Hong Liu, 'Legislative Update - Legal Aspects of Software Protection in China: The Computer Software Protection Regulations', Santa Clara Computer and High Technology Law Journal (1993), Vol. 9, Nov., at 469K.H. Pun, 'A Critique of Copyright Protection for Computer Software in the People's Republic of China', European Intellectual Property Review (1994), Vol. 16, Issue 6, June, at 227K. H. Pun, 'Patentability of Computer Software in China', European Intellectual Property Review (1995), Vol. 1 7, issue 8, Aug., at 399K. H. Pun, 'Five Years Since the Software Regulations -- China's Recent Developments in Software Copyright', ICC - International Review of Industrial Property and Copyright Law (1997), Vol. 28, No. 3, at 347Joseph Simone, 'People's Republic of China - Intellectual Property ~ Latest Draft of Copyright Law', Asia Law and Practice (1989), Vol. 1, No. 7, Sept., at 29 Joseph Simone, 'People's Republic of China - Intellectual Property - Copyright - Software Copyright Regulations Issued', Asia Law and Practice (1991), Vol. 3, issue 6, July 29, at 29Sylvia Song, 'Copyright Law in China - A Comparative Analysis of the Emerging Intellectual Property Right', Intellectual Property Forum Journal of the Intellectual Property Society of Australia and New Zealand Inc. (1999), Sept., at 40 Tan Loke Khoon, 'Recent Developments in Intellectual Property Law in the People's Republic of China', European Intellectual Property Review (1993), Vol. 15, Issue 5, May, at 176Tan Loke Khoon, 'Computer Software Protection in the People's Republic of China', Asia Pacific Legal Developments Bulletin (1995), Vol. 10, No. 2, July, at 16Peggy Yeh, 'Yo, Ho, Ho and a CD-ROM: The Current State of Software Piracy in the PRC', Law and Policy in International Business (1999), Vol. 31, No. 1, fall, 173Yiping Yang, 'The 1990 Copyright Law of the People's Republic of China', UCLA Pacific Basin Law Journal (1993), Vol. 11, No. 2, spring, at 260 Ying Ming, 'The System of Software Copyright Registration in China', China Patents & Trademarks (1992), Vol. 31, Issue 4, Oct., at 77Yuankuo Wang and Mark Davison, 'The New Law on Copyright in the People's Republic of China', Intellectual Property Journal (1991), Vol. 2, No. 4, Nov., at 168

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Jia Zhao, 'People's Republic of China - New Copyright Law', Pacific Basin Legal Developments Bulletin, Baker & McKenzie (1991), Vol. 6, No. 1, at 5about Copyright in general:Guo Shoukang, 'Some Opinions on Copyright in the People's Republic of China', Journal of Chinese Law (1987), Vol. 1, spring, at 63Liu Song, 'The Role of the Chinese Government in the Protection of Copyright', China Patents & Trademarks (1992), Issue 4, at 64Song Muwen, 'Correspondence - Letter from China', Copyright (1991), Feb., at 43 Shen Rengan, 'Can Foreign Authors Seek Copyright Protection in China?1, China Law, at 93'General Studies - China and Copyright - Excerpts from a Book by Shen Renganand Zhong Yingke' (Editor's Note) Copyright (1984), Issue 20, June, at 257Shen Rengan, '"Copyright" and "Author's Right" as they are Understood inChina', China Patents & Trademarks (1990), Vol. 20, Issue 1, Jan., at 55Mark Sidel, 'The Legal Protection of Copyright and the Rights of Authors in thePeople's Republic of China, 1949-1984: Prelude to the Chinese Copyright Law',Columbia Journal of Art and the Law {1985), Vol. 9, at 477Howard Tsang, 'Current Developments - Asia - China - Copyright ProtectionCentre', Intellectual Property Forum Journal of the Intellectual Property Society ofAustralia and New Zealand Inc. (1999), March, at 64Jiang Wandi, 'Guardian of Copyright', Beijing Review, 1-7 June, 1998, at 15about Piracy:Glenn R. Butterton, 'Norms and Property in the Middle Kingdom', Wisconsin International Law Journal (1997), Vol. 15, No. 2, spring, at 281 Denis de Freitas, 'Piracy of Intellectual Property and the Measures Needed to Counter it', Copyright Bulletin (1992), Vol. 26, No. 3, at 7Joshua R. Floum, 'Counterfeiting in the People's Republic of China ~ The Perspective of the "Foreign" Intellectual Property Holder', Journal of World Trade (1994), Vol. 28, No. 5, at 35Patrick H. Hu, "'M ickey Mouse" in China: Legal and Cultural Implications in Protecting U.S. Copyrights', Boston University International Law Journal (1996), Vol. 14, No. 1, spring, at 81Tom Robertson, 'Steps Toward a Stronger Software Industry in China', China Patents & Trademarks (2000), Vol. 62, Issue 3, July, at 55Amy E. Simpson, 'Copyright Law and Software Regulations in the People's Republic of China: Have the Chinese Pirates Affected World Trade?', The North Carolina Journal of International Law and Commercial Regulations (1995), Vol. 20, No. 3, summer, at 575W. R. Swinyard, H. Rinne, A. K. Kau, 'The Morality of Software Piracy: A Cross- cultural Analysis', Journal of Business Ethics (1990), at 655Mark Traphagan and Anne Griffith, 'Software Piracy and Global Competitiveness: Report on Global Software Piracy', International Review of Law Computers & Technology (1998), Vol. 12, No. 3, at 431Geoffrey T. Willard, 'An Examination of China's Emerging Intellectual Property Regime: Historical Underpinnings, the Current System and Prospects for the Future', Indiana International & Comparative Law Review (1996), Vol. 6, No. 2, at 411N. Wingrove, 'China Traditions Oppose War on IP Piracy', Research-Technology Management (1995), Vol. 38, No. 3, May, at 6

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Mark E. W ojcik and Michael J. Osty, 'Promises to Keep: American Views of Developments in Chinese Copyright Law', Software Law Journal (1993), Vol. 6, No. 2, April, at 273

about the Revision of the Laws:Jo Chan, 'PRC Draft Copyright Law Approved', IP Asia (1999), Vol. 12, No. 1, Feb., at 8Chen Meizhang, 'New Moves Towards the Protection of Intellectual Property in China', China Patents & Trademarks (1997), Vol. 51, Issue 4, Oct., at 11 'China to Revise Copyright Law to Meet International Standards', WorldIntellectual Property Report (1997), Vol. 11, Issue 81, at 81 Luke Minford, and August Zhang, 'Intellectual Property Developments in the PRC 1998 to 1999', IP Profiles (1999), at 26Duan Ruichun, 'China's Intellectual Property Rights Protection towards the 21st Century', Duke Journal of Comparative and International Law (1998), Vol. 9, No. 1, fall, at 215Xu Chao, 'On Several Problems Encountered in the Course of Enforcing the Copyright Law' (Parts 1, 2 & 3), China Patents & Trademarks (1997), Vol. 49, Issue 2, April, at 89; China Patents & Trademarks (1997), Vol. 50, Issue 3, July, at 78; China Patents & Trademarks (1997), Vol. 51, Issue 4, Oct., at 70 Li Ying, 'Prospects for Intellectual Property Research in China in the 21st Century', China Patents & Trademarks (1999), Vol. 56, Issue 1, Jan., at 5 Shen Rengan, 'Thoughts on Revision of the Current Chinese Copyright Law', China Patents & Trademarks (2000), Issue 1, at 51Xu Chao, 'On Super-national Treatment - Discussion on the Revision of the Chinese Copyright Law' (Part 1), China Patents & Trademarks (1999), Vol. 56, Issue 1, Jan., at 49Ying Ming, 'Impact of Digital Technology on Copyright System and Revision of Chinese Copyright Law (Continued)', China Patents and Trademarks (2000), Issue 1, at 63August Zhang, 'Proposed Copyright Law Promises Better Remedies', IP Asia(1999), Vol. 12, No. 3, April, at 5Zheng Ying, 'IPR to be Better Protected with Revision of Copyright Law', China Daily, Aug. 1, 1998Law Journal Articles/Books/Reviews about the enforcement of the laws:

about the Courts of justice:David Buxbaum and Zhu Yikun, 'China Intellectual Property - IP Enforcement and Education', The New Gazette (1995), Jan., at 58Cao Ying, 'Issue of Copyright Conflicts in the Chinese Judicial Practice', China Patents & Trademarks (1999), Vol. 56, No. 1, Jan., at 58Chen Zhaokuan, 'Administrative Management and Enforcement of Copyright in China', Duke Journal of Comparative and International Law (1998), Vol. 9, No. 1, fall, at 249Justice Cheng Yong-Shun, 'Judicial Protection of Intellectual Property in China', Duke Journal of Comparative and International Law (1998), Vol. 9, No. 1, fall, at 267Cheng Yongshun, 'Judicial Protection of Intellectual Property Rights in China', China Law, at 68Shaojie Chi , 'Administrative Action in China for IPR Cases', Les Nouvelles - Journal of the Licensing Executives Society (1997), Vol. 32, No. 1, March, at 30 Fei Zongyi, 'Protection for Intellectual Property by the People's Republic of China', Cnina Patents & Trademarks (1992), Vol. 30, Issue 3, July, at 1 7

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Kenyon S. Jenckes, 'Protection of Foreign Copyrights in China: The Intellectual Property Courts and Alternative Avenues of Protection', Southern California Interdisciplinary Law Journal (1997), Vol. 5, No. 3, summer, at 551 Jiang Zhipei, 'The Characteristics of Copyright Disputes and Copyright Judicial Protection in China', China Law, at 59Gregory S. Kolton, 'Copyright Law and the People's Courts in the People's Republic of China: A Review and Critique of China's Intellectual Property Courts', University of Pennsylvania Journal of International Economic Law (1996), Vol. 17, No. 1, spring, at 415Li Guoguang, 'China's Courts Strengthened Power on Judicial Protection of IPR - Speech at the Press Conference on Judicial Protection of Intellectual Property Rights', China Law, at 56Lu Guoqiang, 'Protection of Intellectual Property in the People's Republic of China: Current Status and Trends', IP Asia (1997), Oct., at 44 Matthew A. Murphy, 'Protection of the "Widget" in China', China Law & Practice (1998), Aug., at 75Ren Jianxin, 'China's Judicial System for the Protection of Intellectual Property - Speech at the Regional Forum on the Judiciary and the Intellectual Property System', China Patents & Trademarks (1987), Issue 1, at 7Wang Zhengfa, 'Administrative Resolution of Intellectual Property Infringement in China - An Alternative to Litigation', China Patents & Trademarks (1992), Vol. 30, Issue 3, July, at 10Henry J. H. Wheare and Lovell White Durrant, 'Intellectual Property: China's Unrewarded Efforts?', China Law & Practice (1996), June, at 38 Wu Shulin, 'The Conditions of Judicial and Administrative Protection of Copyright in China', Duke Journal of Comparative and International Law (1998), Vol. 9, No.I, fail, at 241Zheng Songyu, 'Interview: Education Vital for Intellectual Property Protection in China', IP Asia (1992), Vol. 18, Issue 9, Nov., at 30about the Cases:Clifford Borg-Marks, 'IP Case is First Live TV Broadcast from a People's Court', IP Asia (1998), Aug., at 3Charles A. Chang, 'U.S. Companies' Role in Resolving China IP Disputes', Les Nouveiles - Journal of the Licensing Executives Society (1997), Vol. 32, No. 2, June, at 68Adolf Dietz, 'People's Republic of China - "Portrait of Mao Zedong" - Signature on Paintings as Copyright infringement - Higher People's Court of Shanghai, MayI I , 1996', ICC - International Review of Industrial Property and Copyright Law (1998), Vol. 29, No. 6, at 722Guo He, 'Information, Information Flow and Their IP Rights - Comment on the Case Beijing Sunlight Data Company v. Shanghai Bartech Data Information Co., Ltd.', China Patents & Trademarks (2000), Issue 1, at 73Liu Chuntian, 'The Current Situation of China's Copyright-related Legal System Viewed through Cases', China Patents & Trademarks (1993), Issue 2, at 77 Geoffrey T. W illard, 'The Protection of Computer Software in the People's Republic of China: Current Law & Case Developments in the "One-Copy" Country', Journal of Computer & Information Law (1996), Vol. 14, at 695 Zhang Guangliang, 'Microsoft Corp. v. Beijing Giant Computer Company: A Case of Infringement of Computer Software Copyright', China Law, at 62

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Law lournal Articles/Books/Reviews about China and its legal system:

Colin Mackerras, 'Sinophiles and Sinophobes - Western Views of China', Oxford University Press, China, 2000about Law in China: about Methodology matters:Donald C. Clarke, 'Methodologies for Research in Chinese Law', University of British Columbia Law Review (1996), Vol. 30, No. 1, at 201 Jerome Alan Cohen, (ed.) 'Contemporary Chinese Law: Research Problems and Perspectives', Harvard University Press, Cambridge, Massachusetts (1970)Perry Keller, 'Sources of Order in Chinese Law', The American Journal of Comparative Law (1994), Vol. 42, at 711Stanley Lubman, 'Studying Contemporary Chinese Law: Limits, Possibilities and Strategy1, The American Journal of Comparative Law (1991), Vol. 39, at 293 Claudia Ross and Lester Ross, 'Language and Law: Sources of Systemic Vagueness and Ambiguous Authority in Chinese Statutory Language', University of British Columbia Law Review (1997), Vol. 31, No. 1, 205 Kai Schadbach, 'The Benefits of Comparative Law: A Continental European View', Boston University International Law Journal (1998), Vol. 16, No. 2, fall, at 331

about the History of Chinese Law:David C. Buxbaum, 'Contracts in China during the Qing Dynasty: Key to the Civil Law', Journal of Oriental Studies (1993), Vol. 31, No. 2, at 195 Wallace Johnson, 'Status and Liability for Punishment in the T'ang Code', Chicago-Kent Law Review (1995), Vol. 71, No. 1, at 217Karen Turner, 'War, Punishment, and the Law of Nature in Early Chinese Concepts of the State1, Harvard Journal of Asiatic Studies (1993), Vol. 53, No. 2, at 285Karen Turner, 'Contemporary Studies in Chinese Legal History', Legal History (1998), Vol. 4, No. 1, at 1Zheng Qin, 'Pursuing Perfection: Formation of the Qing Code', Modern China(1995), Vol. 21, No. 3, July, at 310Guangyuan Zhou, 'Illusion and Reality in the Law of the Late Qing: A Sichuan Case Study', Modern China (1993), Vol. 19, No. 4, Oct., at 427

about the Struggle ChineseAWestern Law:Edward J. Epstein, 'Codification of Civil Law in the People's Republic of China: Form and Substance in the Reception of Concepts and Elements of Western Private Law', University of British Columbia Law Review (1998), Vol. 32, No. 1, at 153Paul Edward Geller, 'Legal Transplants in International Copyright: Some Problemsof Method', UCLA Pacific Basin Law Journal (1994), Vol. 1 3, No. 1, fall, at 199Benjamin Gregg, 'Law in China: The Tug of Tradition, The Push of Capitalism',Review of Central and East European Law (1995), Vol. 21, No. 1, at 65Carol A. C. Jones 'Capitalism, Globalisation and the Rule of Law: An AlternativeTrajectory of Legal Change in China', , Social and Legal Studies (1994), No. 3, at193Liang Zhiping, 'Explicating "Law": A Comparative Perspective of Chinese and Western Legal Culture', Journal of Chinese Law (1989), Vol. 3, No. 1, summer, at 55Herbert H.P. Ma, 'The Chinese Concept of the Individual and the reception of Foreign Law', Journal of Chinese Law (1995), Vol. 9, No. 2, spring, at 207

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about Contemporary Chinese Law:Todd R. Benson, Taking Security in China: Approaching U.S. Practices?', The Yale Journal of International Law (1996), Vol. 21, No. 1, winter, at 183 Donald C. Clarke, 'What's Law got to do with it? Legal Institutions and Economic Reform in China', UCLA Pacific Basin Law Journal (1991), Vol. 10, No. 1, fall, at 1Donald C. Clarke, 'The Execution of Civil Judgments in China', The China Quarterly (1995), No. 141, March, at 65Donald C. Clarke, 'Power and Politics in the Chinese Court System: The Enforcement of Civil Judgments', Columbia Journal of Asian Law (1996), Vol. 10, No. 1, spring, at 1'Class Action Litigation in China' (Notes) Harvard Law Review (1998), Vol. 111, No. 6, April, at 1523Anthony Dicks, 'The Chinese Legal System: Reforms in the Balance', The China Quarterly (1989), No. 119, Sept., at 541Anthony R. Dicks, 'Compartimentalized Law and Judicial Restraint: An Inductive View of Some Jurisdictional Barriers to Reform', The China Quarterly (1995), No. 141, March, at 82Curt Garbesi, 'Judicial Independence in the People's Republic of China', International Law Practicum, New York State Bar Association (1993), Vol. 6, No. 2, autumn, at 5Jeffrey W. Grove, 'China Law Symposium Introductory Essay: Tracking the Dragon', Indiana International and Comparative Law Review (1996), Vol. 6, No. 2, at 319Weng Li, 'Philosophical Influences on Contemporary Chinese Law', Indiana International and Comparative Law Review (1996), Vol. 6, No. 2, at 327 Carlos Wing-Hung Lo, 'Socialist Legal Theory in Deng Xiaoping's China', Columbia Journal of Asian Law (1997), Vol. 11, No. 2, fall, at 469 Stanley Lubman, 'The Future of Chinese Law', The China Quarterly (1997), No. 149, March, at 1Pitman B. Potter, 'Riding the Tiger: Legitimacy and Legal Culture in Post-Mao China', The China Quarterly (1994), No. 138, June, at 325 Chih-yu Shih, 'China's Socialist Law under Reform: The Class Nature Reconsidered', The American Journal of Comparative Law (1996), Vol. 44, at 627 Alice E-S. Tay, 'The Struggle for Law in China', University of British Columbia Law Review ( \ 987), Vol. 21, No. 2, at 561Xianwu Zeng, 'China Law', The International Lawyer (1997), Vol. 31, No. 2, at 509Xian Chu Zhang and Johannes Man-Mum Chan, 'China Law', The International Lawyer (1998), Vol. 32, No. 2, at 367Suli Zhu, 'Paradoxes of Legal Development in 20th Century China from the Perspective of Modernisation', Hong Kong Law Journal (1998), Vol. 28, Part 3, at 429

about Chinese A dm i n istra ti ve/L egisla ti ve Law:Perry Keller, 'Legislation in the People's Republic of China', University of British Columbia Law Review {1989), Vol. 23, No. 3, at 653Kevin J. O'Brien, 'Agents and Remonstrators: Role Accumulation by Chinese People's Congress Deputies', The China Quarterly (1994), No. 138, June, at 359 Murray Scot Tanner, 'How a Bill Becomes a Law in China: Stages and Processes in Lawmaking', The China Quarterly (1995), No. 141, March, at 39

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Murray Scot Tanner, 'The Erosion of Communist Party Control over Lawmaking in China', The China Quarterly (1994), No. 138, June, at 381Yong Zhang, 'An Overview of the Sources of Chinese Administrative Law', Review of Central and East European Law (1 995), Vol. 21, No. 6, at 597

about the Law Profession in China:Cong Ying, 'Chinese Lawyers Today - An Interview with Cong Ying', Asia Business Law Review (1994), No. 4, April, at 31Timothy A. Gelatt, 'Lawyers in China: The Past Decade and Beyond', New York University Journal of International Law and Politics (1991), Vol. 23, No. 3, spring, at 751Alex Low, 'China's Notary Offices: An Enduring Arm of Government', Deakin Law Review (1995), Vol. 2, No. 1, at 65Randy Peerenboom, 'China's Developing Legal Profession: The Implications for Foreign Investors', China Law & Practice (1998), Vol. 12, Issue 5, June/July, at 37 Thomas E Jones, 'China through Western Eyes - An Interview with Tnomas E Jones', Asia Business Law Review (1994), No. 5, July, at 30about the relation between criminal Law, human rights, and copyright:about China's Criminal Law:Clive Ansley, 'Chinese Criminal Law under Manchus and Marxists', University of British Columbia Law Review (1986), Vol. 20, No. 1, at 165 Cai Dingjian, 'China's Major Reform in Criminal Law', Columbia Journal of Asian Law (1997), Vol. 11, No. 1, spring, at 213RL Caldwell, 'Chinese Administration of Criminal Justice: Return to a Jural Model?', Lawasia - Journal of the Law Association for Asia and the Pacific, Faculty of Law, University of Technology, Sydney (1987), Vol. 121, No. 6, at 57 Hungaah Chiu, 'China's Criminal Justice System and the Trial of Pro-Democracy Dissidents', New York University Journal of International Law and Politics (1992), Vol. 24, No. 3, spring, at 1181Michael Dutton, 'The Basic Character of Crime in Contemporary China', The China Quarterly (1995), No. 141, March, at 160Susan Finder and Fu Huaiing, 'Tightening up Chinese Courts' "Bags" - The Amended PRC, Criminal Law', China Law & Practice (1997), June, at 35H. L. Fu, 'Criminal Defence in China: The Possible Impact of the 1996 Criminal Procedural Law Reform', The China Quarterly (1998), No. 153, March, at 31 Matthew FI. Hurlock, 'Social Harmony and Individual Rights in China', Columbia Law Review (1993), Vol. 93, No. 5, June, at 1318Tan Loke-Khoon, 'New Laws Get Tough on Intellectual Property Infringement', Asia Pacific Legal Developments Bulletin, Baker & McKenzie (1998), Vol, 13, No.I , March, at 7Shizhou Wang, 'The Judicial Explanation in Chinese Criminal Law', The American Journal of Comparative Law (1995), Vol. 43, at 569Margaret Y.K. Woo, 'The Right to a Criminal Appeal in the People's Republic of China', The Yale Journal of International Law (1989), Vol. 14, No. 1, winter, at 118Yang Cheng, 'Criminal Procedure in China: Some Comparisons with the English System', International and Comparative Law Quarterly (1988), Vol. 37, Jan., at 190

about the relation between Criminal Law/Copyright:

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Robert Burrell, 'A Case Study in Cultural Imperialism: The Imposition of Copyright on China by the West', Perspectives on Intellectual Property (1998), Vol. 4, at 195 Ethan A. Nadelmann, 'The Role of the United States in the International Enforcement of Criminal Law', Harvard International Law Journal (1990), Vol. 31, No. 1, winter, at 37Lanier Saperstein, 'Copyrights, Criminal Sanctions and Economic Rents: Applying the Rent Seeking Model to the Criminal Law Formulation Process', The Journal of Criminal Law and Criminology Northwestern University School of Law (1997), Vol. 87, No. 4, summer, at 1470Carlos A. Villalba, 'Penal Sanctions in the International Context: International Criminal Law and Copyright', Copyright Bulletin (1992), Vol. 26, No. 3, at 19 Ting Ting Wu, 'The New Criminal Copyright Sanctions: A Toothless Tiger?', Idea - The Journal of Law and Technology (1999), Vol. 39, No. 4, at 527about Criminal Law/Human Rights:Donald C. Clarke and James V. Feinerman, 'Antagonistic Contradictions: Criminal Law and Human Rights in China', The China Quarterly (1995), No. 141, March, at 135Victor Dawes and Sheung Lai Tse, 'Evaluating the Chinese Criminal Justice System under International Human Rights Standards', Asia Pacific Law Review (1999), Vol. 7, No. 1, at 19Daniel S. Gewirtz, 'Toward a Quality Population: China's Eugenic Sterilization of the Mentally Retarded', New York Law School Journal of international and Comparative Law (1994), Vol. 15, No. 1, at 139Asoka De Z Gunawardana, 'An Asian Perspective of Human Rights', Singapore Journal of Legal Studies (1994), at 521Mark M. Hager, 'Roots of Dissent and Repression in Deng's China', UCLA Pacific Basin Law Journal (1990), Vol. 8, No. 2, spring, at 197Chad Hansen, 'Do Human Rights Apply to China? - A Normative Analysis of Cultural Difference1, Hong Kong Law Journal (1994), Vol. 24, Part 3, at 397 Jeremy T. Monthy, 'Internal Perspectives on Chinese Human Rights Reform: The Death Penalty in the PRC', Texas International Law Journal (1998), Vol. 33, at 1989Russell H. Stern, 'China: A Most Favored Nation or a Most Feared Nation - The PRC's Latest Anti-Crime Campaign and a possible U.S. Response', The George Washington Journal of International Law and Economics (1997), Vol. 31, No. 1, at 119Tao Dehai, 'China Democracy Movement and Legal Crises', UCLA Pacific Basin Law Journal (1990), Vol. 8, No. 2, spring, at 390Law journal Articles/Books/Reviews about China and the world:about the Sino-U.S. Trade Dispute: '301' and 'MOU'Alerts and Updates, 'China Fails to Comply with the US-China Agreement', IP Asia (1996), April, at 8Angela Mia Beam, 'Piracy of American Intellectual Property in China', Journal of International Law and Practice (1995), Vol. 4, at 335Jeffrey W. Berkman, 'Intellectual Property Rights in the P.R.C.: Impediments to Protection and the Need for the Rule of Law', UCLA Pacific Basin Law Journal(1996), Vol. 15, at 1Brian Mark Berliner, 'Making Intellectual Property Pirates Walk the Plank: Using "Special 301" to Protect the United States' Rights', Loyola of Los Angeles International and Comparative Law Journal (1990), Vol. 1 2, No. 3, May, at 725

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Benedicte Callan, 'U.S. and European Efforts to Enhance Intellectual Property Protection in Asia: A Logic in Cooperation', IP Asia (1997), Nov., at 35 Elisabeth Chien-Hale, 'Asserting U.S. Intellectual Property Rights in China: Expansion of Extraterritorial Jurisdiction?', Journal Copyright Society of the U.S.A.(1997), at 198June Cohan Lazar, 'Protecting Ideas and Ideals: Copyright Law in the People's Republic of China', Law and Policy in International Business (1996), Vol. 27, No. 4, at 1185Rafael A. Declet, Jr., 'Protecting American Intellectual Property in China: The Persistent Problem of Software Piracy', New York International Law Review (1997), Vol. 2, No. 2, summer, at 57Dru Brenner-Beck, 'Do as I Say, Not as I did', UCLA Pacific Basin Law Journal(1992) , Vol. 11, No. 2, fall, at 84Assafa Endeshaw, 'The US-China Intellectual Property Dispute - Another View', Asia Business Law Review (1995), No. 9, July, at 49Assafa Endeshaw, 'More Turmoil in US-China Relations in Intellectual Property', Hong Kong Law Journal (1996), Vol. 26, Part 3, at 281Gregory S. Feder, 'Enforcement of Intellectual Property Rights in China: You Can Lead a Horse to Water, but you can't make it drink', Virginia Journal of International Law (1996), Vol. 37, at 223Bart S. Fisher and Ralph G. Steinhardt, III, 'Section 301 of the Trade Act of 1974:Protection for U.S. Exporters of Goods, Services, and Capital', Law and Policy inInternational Business (1982), Vol. 14, No. 3, at 569Tom Hope, 'A Victory for IPR?', Asia Law (1995), No. 2, March, at 12Kristie M. Kachuriack, 'Chinese Copyright Piracy: Analysis of the Problem andSuggestions for Protection of U.S. Copyrights', Dickson Journal of InternationalLaw (1995), Vol. 13, spring, at 599Dennis S. Karjala, 'Theoretical Foundations for the Protection of Computer Programs in Developing Countries', UCLA Pacific Basin Law Journal (1994), Vol. 13, No. 1, fall, at 179Yiqiang Li, 'Evaluation of the Sino-American Intellectual Property Agreements: A Judicial Approach to Solving the Local Protectionism Problem', Columbia Journal of Asian Law (1996), Vol. 10, No. 2, fall, at 391Paul C. B. Liu, 'U.S. Industry's Influence on Intellectual Property Negotiations and Special 301 Actions', UCLA Pacific Basin Law Journal (1994), Vol. 13, No. 1, fall, at 87Andrew J. McCall, 'Copyright and Trademark Enforcement in China', The Transnational Lawyer {1996), Vol. 9, No. 2, fall, at 587Frank Prohaska V., 'The 1995 Agreement Regarding Intellectual Property Rights between China and the United States: Promises for International Law or Continuing Problems with Chinese Piracy?', Tulsa Journal of Comparative & International Law (1996), Vol. 4, No. 1, fall, at 169Qiao Dexi, 'A Survey of Intellectual Property Issues in China-U.S. Trade Negotiations under the Special 301 Provisions', Pacific Rim Law & Policy Journal(1993) , Vol. 2, No. 2, at 259Michael P. Ryan, 'The Function-Specific and Linkage-Bargain Diplomacy of International Intellectual Property Lawmaking', University of Pennsylvania Journal of International Economic Law (1998), Vol. 19, No. 2, summer, at 535 David Silverstein, 'The U.S.-China Trade Dispute over Intellectual Property Protection: Timely Resolution or Time Bomb?', North Atlantic Regional Business Law Review (1995), Vol. 28, spring, at 105

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'"Fairness" and "Reciprocity" in International Trade Section 301 and the Rule of Law', Alan C. Swan, Arizona Journal of International and Comparative Law(1999), Vol. 16, No. 1, at 37Tan Loke-Khoon and Jennifer Freidenrich, 'Asia Pacific Review of the Year: China', Copyright World (1997), Issue 67, Feb., at 19Richard L. Thurston, 'Country Risk Management: China and Intellectual Property Protection', The International Lawyer (1993), Vol. 27, No. 1, spring, at 51 Michael Yeh, 'Up Against a Great Wall: The Fight against Intellectual Property Piracy in China', Minnesota journal of Global Trade (1996), Vol.5, Issue 2, summer, at 503Xiao-Lin Zhou, 'U.S.-China Trade Dispute and China's Intellectual Property Rights Protection', New York University Journal of International Law and Politics (1992), Vol. 24, No. 3, spring, at 1115about China and Internationalism:

about China and International Society:James V. Feinerman, 'Chinese Participation in the International Legal Order: Rogue Elephant or Team Player?', The China Quarterly (1995), No. 1, March, at 186Gao Linghan, 'Rules for the Implementation of the Berne Convention in the People's Republic of China', IIC - International Review of Industrial Property and Copyright Law (1993), Vol. 24, No. 4, at 475Robert Kleinberg, 'China's Foreign Economic Relations after Tiananmen', UCLAPacific Basin Law Journal (1990), Vol. 8, No. 2, spring, at 303Sheila J. Landers, 'Book Review - China Trade: Prospects and Perspectives', Lawand Policy in International Business (1982), Vol. 14, No. 3, at 963Li Ying, 'International Copyright Treaties and Chinese Implementation Rules',China Patents & Trademarks (1993), Issue 1, at 66Li Zhaojie, 'Effect of Treaties in Domestic Law: Practice of the People's Republicof China', Dalhousie Law Journal (1993), Vol. 16, No. 1, spring, at 62Joaquin F. Matias, 'From Work-Units to Corporations: The Role of ChineseCorporate Governance in a Transitional Market Economy', New YorkInternational Law Review (1999), Vol. 12, No. 1, winter, at 1Yang Guohua, 'Sino-Foreign Bilateral IP Agreements', China Patents &Trademarks (2000), Vol. 62, Issue 3, July, at 6Yongjin Zhang, 'China's Entry into International Society: Beyond the Standard of "Civilization"', Review of International Studies (1991), Vol. 17, No. 1, Jan., at 3 Zha Daojiong, 'Chinese Perspective on International Political Economy', Political Science (1997), Vol. 49, No. 1, July, 1997, at 62

about China and GATT:Wenguo Cai, 'China's GATT Membership: Selected Legal and Political Issues', Journal of World Trade (1992), Vol. 26, No. 1, Feb., at 35Thomas C. W. Chiu, 'China and GATT: Implications of International Norms for China', Journal of World Trade (1992), Vol. 26, No. 6, Dec., at 5 Monica Hsiao, 'China and the GATT: Two Theories of Political Economy Explaining China's Desire for Membership in the GATT', UCLA Pacific Basin Law Journal (1994), Vol. 12, No. 2, spring, at 431 Ya Qin, 'China and GATT - Accession Instead of Resumption', Journal of World Trade (1993), Vol. 27, No. 2, at77GuiGuo Wang, 'China's Return to GATT - Legal and Economic Implications', Journal of World Trade (1994), Vol. 28, No. 3, June, at 51

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about China and WTO:David Blumental, '"Reform" or "Opening"? Reform of China's State-Owned Enterprises and WTO Accession - The Dilemma of Applying GATT to Marketizing Economies', UCLA Pacific Basin Law Journal (1998), Vol. 16, No. 2, spring, at 198Jeremy Brooks Rosen, 'China, Emerging Economies, and the World Trade Order', Duke Law Journal (1997), Vol. 46, No. 6, April, at 1519Julia Cheng, 'China's Copyright System: Rising to the Spirit of TRIPs Requires an Internal Focus and WTO Membership', Fordham International Law Journal (1998), Vol. 21, at 1941Douglas Clarks, 'More Fakes on the Way as China Prepares to Join in World Trade', IP Asia (2000), March, at 19Douglas Clarks, 'What's Left for China to Achieve TRIPs Compliance', IP Asia(2000), Vol. 13, No. 3, April, at 28Ralph Cunningham, 'Global Trade Deal to Intensify Scrutiny of Protection', IP Asia (2000), Vol. 13, No. 8, Oct., at 12Michael Eglin, 'China's Entry into the WTO with a Little Help from the EU', International Affairs (1997), Vol. 73, No. 3, July, at 489Gao Lulin, 'China and the TRIPs Agreement', China Patents & Trademarks (1997), Vol. 48, Issue 1, Jan., at 5Guo Shoukang, 'TRIPs and Intellectual Property Protection in the People's Republic of China', GRUR Int. (1996), Heft 4, at 293Hiddo Houben, 'China's Economic Reforms and integration into the World Trading System', Journal of World Trade (1999), Vol. 3, No. 3, at 1 John S. Mo, 'China, The World Trade Organization, and the Agreement on Trade- related Investment Measures', Journal of World Trade (1996), Vol. 30, No. 5, Oct., at 89Neil Tait and Kui-Wai Li, 'Trade Regimes and China's Accession to the World Trade Organization', Journal of World Trade (1997), Vol. 31, No. 3, June, at 93 Michael N. Schlesinger and Eric H. Smith, '1997 Roundup: Copyright Enforcement', IP Asia, (1998), at 41

about Globalisation in general:David J. Berber, 'Global Technological Integration, Intellectual Property Rights, and Competition Law: Some Introductory Comments', Chicago-Kent Law Review (1996), Vol. 72, No. 2, at 357Hon. Michael Kantor, 'Keynote Address - U.S. Trade Policy in Transition: Globalisation in a New Age', Law and Policy in International Business (1994), Vol. 25, No. 4, at 1227Doris Estelle Long, 'The Impact of Foreign Investment on Indigenous Culture: An Intellectual Property Perspective', North Carolina Journal of International Law and Comparative Regulations (1998), Vol. 23, at 229Dr. Mary Lowe Good, 'Keynote Address - Technology and Trade', Law and Policy in International Business (1996), Vol. 27, No. 4, at 853Samuel K. Murumba, 'G lobalizing Intellectual Property: Linkage and the Challenge of Justice-Constituency', University of Pennsylvania Journal of International Economic Law (1998), Vol. 19, No. 2, summer, at 435 Philip M. Nichols, 'Regulating Transnational Bribery in Times of Globalization and Fragmentation', The Yale Journal of International Law (1999), Vol. 24, No. 1, winter, at 257

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Raymond T. Nimmer and Patricia Ann Krauthaus, 'Globalisation of Law in International Property and Related Commercial Contexts - Globalisation Defined', Law in Context (1992), Vol. 10, No. 2, at 250Hisashi Owada, 'Justice and Stability in the International Legal Order - An Essay in Legal Analysis of the Contemporary International Order', The Japanese Annual of international Law (1996), No. 39, at 1Stefan A. Riesenfeld, 'The Changing Face of Globalism', Chicago-Kent Law Review {1996), Vol. 72, No. 2, at 407Kojo Yelpaala, 'Strategy and Planning in Global Product Distribution - Beyond the Distribution Contract', Law and Policy in International Business (1994), Vol. 25, No. 3, at 839

about GATT, WIPO, and W TO in general:Frederick M. Abbott, 'The WTO TRIPs Agreement and Global Economic Development', Chicago-Kent Law Review (1996), Vol. 72, No. 2, at 385 Vincent Chiappetta, 'The Desirability of Agreeing to Disagree: The WTO, TRIPs, International IPR Exhaustion and a Few Other Things', Michigan Journal of International Law (2000), Vol. 21, No. 3, spring, at 333Simon Fitzpatrick, 'Copyright Imbalance: U.S. and Australian Responses to the WIPO Digital Copyright Treaty', European Intellectual Property Review (2000), Vol. 22, Issue 5, May, at 214Myles Getlan, 'TRIPs and the Future of Section 301: A Comparative Study in Trade Dispute Resolution', Columbia Journal of Transnational Law (1995), Vol. 34, No. 1, at 173Francis Gurry, 'The Evolution of Technology and Markets and the Management of Intellectual Property Rights', Chicago-Kent Law Review (1996), Vol. 72, No. 2, at 369Allen Z Hertz, 'Sharpening the Trident: Intellectual Property under NAFTA, Investment Protection Agreements and the World Trade Organization', Journal of Chinese and Comparative Law (1996), Vol. 2, Nos. 1 & 2, at 21 Camille A. Laturno, 'International Arbitration of the Creative: A Look at the World Intellectual Property Organisation's New Arbitration Rules', The Transnational Lawyer 0996), Vol. 9, No. 1, spring, at 357Micnael Lehmann, 'TRIPs, the Berne Convention, and Legal Hybrids', Columbia Law Review (1994), Vol. 94, No. 8, Dec., at 2621Ma. Rowena R. Gonzales, 'A Brave New World: Notes on the 1996 WIPO Diplomatic Conference', World Bulletin (1997), Vol. 13, Nos. 3 & 4, May/Aug., at 96Laurence R. Heifer, 'Adjudicating Copyright Claims under the TRIPs Agreement: The Case for a European Human Right Analogy', Harvard International Law Journal (1998), Vol. 39, No. 2, spring, at 357Charles S. Levy, 'Implementing TRIPs - A Test of Political W ill', Law and Policy in International Business (2000), Vol. 31, No. 3, spring, at 789 Chuck Levy, Jacques Gorlin, and Geralyn Ritter, 'Panel II A: Agreement on Trade- Related Intellectual Property Rights (TRIPs) - Presentation Summary and Comments', Law and Policy in International Business (2000), Vol. 31, No. 3, spring, at 797Charles R. McManis, 'International Intellectual Property Protection and Emerging Computer Technology: Taking TRIPs on the Information Superhighway' (Part 1 & 2), Nihon University Comparative Law (1996), Vol. 13, at 37, Nihon University Comparative Law (1997), Vol. 14, at 195

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Jennifer Mills, 'Alternative Dispute Resolution in International Intellectual Property Disputes', The Ohio State Journal on Dispute Resolution (1996), Vol. 11, No. 1, at 227Ernst-Ulrich Petersmann, 'The Transformation of the World Trading System Through the 1994 Agreement Establishing the World Trade Organization', European Journal of International Law (1995), Vol. 6, No. 2, at 161 Pamela Samuelson, 'Challenges for the World Intellectual Property Organisation and the Trade-related Aspects of Intellectual Property Rights Council in Regulating Intellectual Property Rights in the Information Age', European Intellectual Property Review (1999), Vol. 21, Issue 1, Nov., at 578Law lournai Articles/Books/Reviews about copyright and software in general:

about Copyright in general:Stephen Breyer, 'The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs', Harvard Law Review (1970), Vol. 84, No. 2, Dec., at 281Rosemary J. Coombe, 'Challenging Paternity: Histories of Copyright', Yale Journal of Law and Humanities (1994-95), Nos. 6 & 7, at 397Benjamin Kaplan, An Unhurried View of Copyright, New York, Columbia University Press, 1967Michael F. Flint and Clive D. Thorne, A User's Guide to Copyright Butterworths, London, Edinburgh, Dublin, Fourth Edition, 1997Mary L. M ills, 'New Technology and the Limitations of Copyright Law: An Argument for Finding Alternatives to Copyright Legislation in an Era of Rapid Technological Change', Chicago-Kent Law Review (1989), Vol. 65, at 307 'Protecting Computer Technology: Europe & Asia Pacific - A Specially- commissioned Report', Longman Group, Professional & Business Communications Division (1984)A.J.K. Robinson, 'The Evolution of Copyright', The Cambrian Law Review (1991), Vol. 22, at 55David R. Shannon, John F. McKenzie, Donald G. jerrard, Computers & Software, Baker & McKenzie, 1987Jayashri Srikantiah, 'The Response of Copyright to the Enforcement Strain of inexpensive Copying Technology', New York University Law Review (1996), No. 71, Dec., at 1634Neil We instock Netanel, 'Copyright and a Democratic Civil Society', The Yale Law Journal (1996), Vol. 106, No. 2, Nov., at 283about Software:'John E. Appleton, 'What is Software?, Computer Law & Practice (1986), Jan./Feb., at 82Michael Castner, 'Copyright Law: The Software User Interface', The Adel phi a Law Journal (1997), Vol. 12, at 33Catherine Gelb, 'Installing a Software Sector', The China Business Review (1997), Sept./Oct., at 28John M. Griem Jr., 'Against a 'Sui Generis' System of Intellectual Property for Computer Software', Hofstra Law Review (1993), Vol. 22, No. 1, at 145 Celine M. Guillou, 'The Reverse Engineering of Computer Software in Europe and the United States: A Comparative Approach', Columbia - ULA Journal of Law and the Arts (1998), Vol. 22, No. 4, summer, at 533Toh See Kiat, 'How Software is Created', Asia Business Law Review (1993), No. 2, July, at 75

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E. Brendan Magrab, 'Computer Software Protection in Europe and the EC Parliamentary Directive on Copyright for Computer Software', Law and Policy in International Business (1992), Vol. 23, No. 3, at 709Manender Grewal, 'Copyright Protection of Computer Software', European Intellectual Property Review {1996), Issue 8, at 454Michael F. Morgan, 'Trash Talking: The Protection of Intellectual Property Rights in Computer Software', Ottawa Law Review (1994), No. 26, at 425 David Zimmerman, 'Global Limits on "Look and Feel": Defining the Scope of Software Copyright Protection by International Agreement', Columbia Journal of Transnational Law (1996), Vol. 34, No. 2, at 503about the Internet:Jo Dale Carothers, 'Protection of Intellectual Property on the World Wide Web: Is the Digital Millennium Copyright Act Sufficient?', Arizona Law Review (1999), Vol. 41, No. 3, fall, at 937Jo Chan, 'Protecting Against Pirates in Chinese Cyberspace', IP Asia (1999), Vol. 12, No. 7, Sept., at 23Xu Chao, 'A Comment on an Internet Copyright Dispute', China Patents & Trademarks (2000), Vol. 62, Issue 3, July, at 62Trevor Cox, 'Information and the Internet: Understanding the Emerging Legal Framework for Contract and Copyright Law and Problems with International Enforcement', The Transnational Lawyer {'\ 998), Vol. 11, No. 1, spring, at 23 Ralph Cunningham, 'Fighting the Online Piracy Menace', IP Asia (2000), March, at 14Paul Edward Geller, 'From Patchwork to Network: Strategies for International intellectual Property in Flux', Vanderbilt Journal of Transnational Law (1998), Vol. 31, No. 2, March, at 553Paul Edward Geller, 'International Intellectual Property, Conflicts of Laws and Internet Remedies', European Intellectual Property Review (2000), Vol. 22, Issue 3, March, at 125Todd G. Hartman, 'The Marketplace vs. the Ideas: The First Amendment Challenges to Internet Commerce', Harvard Journal of Law & Technology (1999), Vol. 12, No. 2, winter, at 419Lucinda Jones, 'An Artist's Entry into Cyberspace: Intellectual Property on the Internet', European Intellectual Property Review (2000), Vol. 22, Issue 2, Feb., at 79Alban Kang, Alban Tay Mahtani and De Silva, 'Infringement and Enforcement of IPRS on the Internet', Intellectual Property in Asia and the Pacific (1998), Nos. 56 & 57, Jan ./June, at 25Benjamin R. Kuhn, 'A Dilemma in Cyberspace and Beyond: Copyright Law for Intellectual Property Distributed over the information Superhighways of Today and Tomorrow', Temple International and Comparative Law Journal (1996), Vol. 10, No. 1, spring, at 1 71April M. Major, 'Copyright Law Tackles Yet Another Challenge: The Electronic Frontier of the World Wide Web', Rutgers Computer & Technology Law Journal(1998), Vol. 24, No. 1,at75Volker Pasternak, 'China - The New Frontier for E-Commerce (Part 1 of 2)', IP Asia (1999), Vol. 12, No. 8, Oct., at 41Robert A. Prentice, 'The Internet and its Challenges for the Future of Insider Trading Regulation', Harvard Journal of Law & Technology (1999), Vol. 12, No. 2, winter, at 263

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Daniel Seng Kiat Boon, 'Copyright Norms and the Internet: The Problems of Works Convergence', Singapore Journal of International & Comparative Law (1998), Vol. 2, at 76Walter Gary Sharp, SR., 'Redefining National Security in Today's World of Information Technology and Emergent Threats', Duke Journal of Comparative and International Law (1999), Vol. 9, No. 2, spring, at 383Sanjiv N. Singh 'Cyberspace: A New Frontier for Fighting Words', Rutgers Computer and Technology Law Journal (1999), Vol. 25, No. 2, at 283 Clark D. Stith, 'International Intellectual Property Rights', The International Lawyer (1997), Vol. 31, No. 2, summer, at 311Micnael A. Sussmann, 'The Critical Challenges From International High-Tech and Computer-Related Crime at the Millennium', Duke Journal of Comparative and International Law (1999), Vol. 9, No. 2, spring, at 451Stephen P. Tarolli, 'The Future of Information Commerce under Contemporary Contract and Copyright Principles', The American University Law Review (1997), Vol. 46, No. 5, June, at 1639D. P. Van Der Mer We, 'Copyright and Computers, with Special Reference to the Internet', The South African Law Journal (1998), Vol. 115, Parti, at 180 Shan Yan, 'Basic Court Approach to Handling IP Disputes on the Internet', China Patents & Trademarks (2000), Issue 1, at 82law lournal Articles/Books/Reviews about other countries:

Steven Ang, 'Intellectual Property Protection in Asia: An Overview', Asia Business Law Review (1995), No. 10, Oct., at 42Robert Arnold and Tan Loke Khoon, 'Recent Developments in Hong Kong & China: The New Copyright Ordinance in Hong Kong and Recent Changes to Chinese Copyright Law', Copyright Reporter (1998), Vol. 16, No. 2, Sept., at 98 Shawn K. Baldwin, "'To Promote the Progress of Science and Useful Arts": A Role for Federal Regulation of Intellectual Property as Collateral', University of Pennsylvania Law Review (1995), Vol. 143, at 1 701Manfred Balz, 'Intellectual Property in the Russian Transition Economy', Review of Central and East European Law (1996), Vol. 22, No. 4, at 339 Theodore G. Bryant, 'The History, Development and Changing Environment of Protecting Computer Software against Copyright V iolation in Brazil', The Transnational Lawyer (1995), Vol. 8, No. 2, fall, at 375Amy Choe, 'Korea's Road Toward Respecting Intellectual Property Rights', Rutgers Computer and Technology Law Journal (1999), Vol. 25, No. 2, at 23 Daniel N. Christus, A. Jose Cortina, Robert E. Wagner, and John T. Winburn, 'Intellectual Property in the Americas', American University International Law Review (1998), Vol. 13, at 1095Frank X. Curci and Tamotsu Takura, 'Selected Aspect of Japanese Intellectual Property Law', The Tansnational Lawyer (1995), Vol. 8, No. 1, spring, at 63 Tatsuo Egami, 'How Computer Programs are Protected under Japanese Law', International Law Practicum - New York State Bar Association (1999), Vol. 12, No. 2, autumn, at 112Michel Elst, 'New Developments in the Copyright Legislation of the Russian Federation', European Intellectual Property Review (1993), Issue 3, at 95 Michel Elst, 'The Interaction of European Community and Russian Copyright Law: A Matter of Partnership and Cooperation', Review of Central and East European Law (1996), Vol. 22, No. 3, at 267Assafa Endeshaw, 'Developments in Intellectual Property Law in Asia', Asia Business Law Review (1997), No. 8, Oct., at 11

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Wan Fei, 'Copyright Practice in the Two Regimes of One Country: A Prospective Harmonisation Process in Hong Kong and the PRC', European Intellectual Property Review (1997), Vol. 19, Issue 7, July, at 360Emma C. Francisco, 'The Policy of Intellectual Property Protection in the Philippines', World Bulletin - University of the Philippines Law Center (1996), Vol. 12, Nos. 1 & 3, Jan.-June, at 1Oxana latsyk and Elena V. Kapoustina, 'Intricacies of Dealing with Intellectual Property in Russia', Intellectual Property Journal (1998), Vol. 12, No. 2, June, at 145Dennis S. Karjala, Recent United States and International Development in Software Protection' (Part 1 & 2), European Intellectual Property Review {1994), Vol. 16, Issue 1, Jan., at 13; European Intellectual Property Review (1994), Vol.16, Issue 2, Feb., at 58Stanley Lai, 'Recent Developments in Copyright Protection and Software ReverseEngineering in Singapore - A triumph for the Ultra-protectionists?', EuropeanIntellectual Property Review (1997), Vol. 19, Issue 9, Sept., at 525Daniel Lam, 'Intellectual Property Protection in Hong Kong and the People'sRepublic of China', Bond Law Review (1994), Vol. 6, No. 1, June, at 46Mark S. Lee, 'Japan's Approach to Copyright Protection for Computer Software',Loyola of Los Angeles International and Comparative Law Journal (1994), Vol. 16,No. 3, June, at 675Ruey-Long Lin, 'Protection of Intellectual Property in the Republic of China', Chinese Year Book of International Law and Affairs (1986/87), Vol. 6, at 120 Scott A. McKenzie, 'Global Protection of Trademark Intellectual Property Rights: A Comparison of Infringement and Remedies Available in China versus the European Union', Gonzaga Law Review (1998-99), Vol. 34, No. 3, at 529 Yutaka Nakamura, 'Recent Developments in Copyright Protection for Computer Software in the United States and Japan', Pacific Rim Law & Policy Journal (1993), Vol. 2, No. 2, at 221Owen D Nee Jr and Elisabeth Bowler, 'Forum - Intellectual Property Protection in Asia - China, South Korea, Australia, Malaysia', Asia Business Law Review (1995), No. 8, April, at 27Igor Pozhitkov, 'Copyright and Neighboring Rights Protection in the Russian Federation', Review of Central and East European Law (1994), Vol. 20, No. 1, at 53Corien Prins and Irina V. Savel'Eva 'Computer Program Copyright Law in the Russian Federation: International Experience and Russian Reality', , Review of Central and East European Law (1993), Vol. 19, No. 1, at 31 Paul Rawlinson, 'Enforcement of Intellectual Property Rights in Hong Kong: What's Available?', European Intellectual Property Review (1993), Vol. 15, Issue 4, April, at 126Roit, 'Soviet and Chinese Copyright: Ideology Gives Way to Economic Necessity', Loyola Entertainment Law Journal (1986), Vol. 6, at 53David Shannon and Tan Loke-Khoon, 'intellectual Property Developments and Enforcement Challenges in Hong Kong and the People's Republic of China', California International Practitioner 997), Vol. 8, No. 1, spring/summer, at 13 Michael Skrehot, 'Taiwan's Changing Patent Law: The Cost of Doing Business with the World', The International Lawyer (1996), Vol. 30, No. 3, fall, at 621 Sang Hyun Song, 'Experimenting With Copyright Protection of Computer Software in the Republic of Korea', Seoul Law Journal (1986), Vol. 27, No. 4, Dec., at 41 Toshiko Takenaka, 'Does a Cultural Barrier to Intellectual Property Trade Exist? The Japanese Example', International Law and Politics (1996-97), Vol. 29, at 153

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Susan Tiefenbrun/Piracy of Intellectual Property in China and the Former Soviet Union and its Effects upon International Trade: A Comparison', Buffalo Law Review (1998), Vol. 46, No. 1, winter, at 1James M. West, 'Korea - Progress and Problems in Combating Computer Piracy', Asia Law (1994), No. 1, Jan., at 19Mary L. W illiamson and Kim Newby, 'Intellectual Property Issues', Asia Law Supplement (1996), Oct., at 3Larry N. Woodard, 'The West German Smorgasbord Approach to Intellectual Property Protection of Computer Software', The John Marshall Journal of Computer & Information Law (1997), Vol. 15, No. 4, summer, at 6 Andrei Yakovlev, 'Legal Protection of Computer Programs in Russia', European Intellectual Property Review (1996), Vol. 18, Issue 5, May, at 247 Zhong Jianhua, ‘Border Protection of Intellectual Property Rights in Hong Kong - A Comparative Study with the Position of Mainland China', European Intellectual Property Review (1997), Vol. 19, Issue 3, March, at 153Law Journal Articles/Books/Reviews in foreign languages:

Writings in French:Daniel Becourt 'Reflections sur la Loi Chinoise du 7 Septembre 1990 - Communication faite a la Reunion des Amities Franco-Chinoises du 13 Avril 1991', Cahiers du Droit d'Auteur (1991), No. 37, Avril, at 1 Aurelie Bertrand-Doulat 'Le "Droit des Oeuvres" Chinois est-il Compatible avec les Conventions Internationales?', Actualite des Droits de Propriete Intellectuelle dans les Pays de I'Est (1991), Vol. 9, at 137Jacques Boncompain, 'Les Chinois aux Portes de Berne', La Revue de la SACD (1992), No. 2, Issue 2, at 49'Jerome Bourgon, De Quelques Tendances Recentes de la Sinologie Juridique Americaine', Toung Pao - International Journal of Chinese Studies - Revue Internationale de Sinologie (1998), Vol. 84, Nos. 4 & 5, at 380 R. Desy, 'La Protection par le Droit d'Auteur des Logiciels Crees par des Employes en Droit Compare et International', Revue Juridique Themis (1996), No. 30, at 20 'La Loi Chinoise Relative au Droit d'Auteur', La Gazette du Palais (1995), Nos.183 & 185, July 4, at 42Helene Perrin, 'La protection des Droits de la Propriete Intellectuelle en Chine: Evolution et Specificite de la Loi Chinoise', Accomex (1997), No. 18, Nov., at 63 Yvan Razafindratandra, 'Droit d'Auteur en Chine', Legipresse (1992), No. 93, 8 July, at 65Song Muwen, 'Lettre de Chine', Le Droit d'Auteur (1991), No. 2, Feb., at 45 Zhang Shu, 'Vers une Protection Adequate de la Propriete Intellectuelle: De la Premiere Loi Chinoise sur le Droit d'Auteur', Revue de Droit des Affaires Internationales (1991), No. 7, at 883Huang Zhen, 'Analyse de Jurisprudence Relative au Droit d'Auteur en Chine (Quelques Comparaisons avec le Droit Francais), Memoire de DESS-Propriete Intellectuelle, Universite Pantheon-Assas (1990). Feb.Huang Zhen, 'Informations: Chine - Reglements d'Application de la Loi sur le Droit d'auteur et Relatif a la Protection des Logiciels d'ordinateurs', Revue Internationale du Droit d'Auteur (1992), No. 1 53, July, at 224Writings in Chinese:'Practical Handbook of Laws of the People's Republic of China Governing Intellectual Property (Chinese-English)'(Ji Min, Li Qin, Chang Tian) Publishing House of Law, 1994

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Writings in lapanese:Bai Jianjun, 'Amendment of the Criminal Law of the People's Republic of China, 1997: A Review', Hosei Riron, The Journal of Law and Politics (1997), Vol. 30, No. 1, Aug., at 1He Fangchuan 'Traditional Culture and international Exchange in East Asia - Intellectual Heritage for 21st Century - Intellectual Economy Era and Cultural Exchange between Japan and China', Hosei Riron, The Journal of Law and Politics(1999), Vol. 32, No. 2, Nov., at 1 58K. Iwama and Y. Wei, 'The Idealist Philosophy of the Confucian School in the Song and Ming Dynasties', Okayama Law Journal (1999), Vol. 49, No. 1, Dec., at 293Kyushu Chinese Criminal Law Seminar, '"97-Law" and "79-Law" - Amendment of Criminal Law in China', Hosei Kenkyu Journal of Law and Politics (1998), Vol. 65, No. 1, July, at 197Ni Zheng Mao (translated by Nobuhiro Ueda), 'The Impact of Western Political Philosophy on the Development of Chinese Modern Society', Hosei Kenkyu Journal of Law and Politics (1999), Vol. 66, No. 1, May, at 261 Masaaki Miyai, 'Problems of the GATT - Approach for the International Protection of Intellectual Property Rights', Ritsumeikan Law Review (1994), Vol. 235, Issue3, at 122Alice Erh-Soon Tay (translated by Hiroshi Matsuo), "'Asian Values", Human Rights and Democracy in Asia', Yokohama Law Review (1997), Vol. 6, No. 1, Sept., at 32Dirk Trautmann, 'The Protection of Computer Software under Japanese Law: Status Quo and Suggestions for Future Protection Based on Comparative Studies', Hosei Kenkyu Journal of Law and Politics (1998), Vol. 64, No. 3, Jan., at 146 Wang Shouzhong, 'Argue on Two Stages of Modernization in Late Qing China', Ritsumeikan Law Review (1993), Vol. 229, No. 3, at 114Wu Shuchen, 'A Study on the Origin of a Chinese Character "Ho (law)"', Hosei Riron, The Journal of Law and Politics (1996), Vol. 29, No. 3, Feb., at 129 Daisuke Yoshida, 'Information Trend Concerning the Reform of Copyright System in Digital Information Age', Yokohama Law Review (1998), Vol. 7, No. 1, Sept., at 45Zhao Zhenjiang (translated by Lin Laifan), 'Legal Mechanism for Promoting Integration of Scientific and Technological Development into Economy - Theoretical Thinking in Respect of Intellectual Property (Abstract)', Ritsumeikan Law Review (1995), Vol. 243 & 244, Nos. 4 & 6, at 170Websites:

Chinese Sites:China Patent Officewww.cpo.cn.netChina Patent Info Netwww.patent.com.cnChina Patent and Trademark Agentswww.chinantd.comChina Trademark and Patent Law Officewww.cntrademark.comShanghai Patent and Trademark Law Officewww.sptl.com.cn

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China Patent Agent (Hong Kong)www.cpahkitd.comChinese Intellectual Propertywww.rutgers.edu/guides/glo-chi.htmlDatabase of Science and Intellectual Property Law in Chinahttp://162.105.148.4Summary of Intellectual Property Developments in China www.china.org.cn/cicc/1998 2 conference/english/11 .htm Intellectual Property Protection in China www.sh.com/law/IPHong Kong Intellectual Property Department www.pluto.houston.com.hk/hkgipd('A Study into the Problem of Software Piracy in Hong Kong and China' by Kenneth Ho)www.houston.com.hk/hkgipd/piracv.htmlUniversity of Hong Kong www.hku.hk/iaw/law Office of State Council www.china-embassy.org China Judge www.china-judge.comBeijing Business Service Listing of Patent & Trademark Agents www.chinabig.com/cbig/en/business/Beiiing/office/trademark China Internet Information Center www.cnnic.cnInternet Chinese Legal Research Center www.wulaw.wust.edu/Chinalaw Database on Chinese Law www.ceilaw.com.cn China Law Resourcehttp://belleweb.addr.com/clr/clrchinesesite China Law Web www.qis.net/chinalawU.S. Sites:U.S. Embassy in Beijingwww.usembassv-china.gov/english/commercial/briefs/index.htmlChinese Embassy in Washingtonwww.china-embassy.orgU.S. Copyright Officehttp://lcweb.loc.gov/copvrightU.S. Patent and trademark Officewww.uspto.govU.S. Department of Justice (Criminal Division)gopher.usdoi.gov/criminal/criminal-home.htmlU.S. International Trade Commissionhttp://usitc.govU.S. Trade Representativewww.ustr.govDirectory of U.S. Government Web Sites www.usdoi.gov/other-link.html

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Software Publishers Associationwww.siia.org.netBusiness Software Associationwww.madeforchina.com/bsaColumbia Universitywww.columbia.edu/cu/chinalawUniversity of Marylandwww.qis.net/chinalawUniversity of Washingtonhttp://phearless.law.washington.edu/cgi-bin/lwgate clnet/CLNET/archives http://www. phearless. law, wash ington.edu/cgi- bin/lwgate clnet/CLNET/archivesChicago-Kent University www.kentlaw.edu/student Berkeley University('Intellectual Property and Economic Development: Opportunities for China in theInformation Age' by Pamela Samuelson)www.sims.berkelev.edu/-pam/papers/chinaip.htmlInternet Law Libraryhttp://law.house.govLibrary of Congresswww.loc.govInternational Sites:World Intellectual Property Organisationwww.wipo.orgUNESCOwww.unesco.orgWorld Trade Organisationwww.wtQ.org/wto/intellect/intellectBerne Conventionwww.law.cornell.edu/treaties/berne/overview Paris Conventionwww.tufts.edu/departments/fietcher/multi/texts/BH004.txt International Intellectual Property Alliance www.lix.com/practice/internationalipInternational Association for the Protection of Industrial Property www.aippi.orgInternational Federation of Industrial Property Attorneyswww.ozemail.com.auIntellectual Property Exchangewww.ipei.co.ip/inaex-e.htmlCouncil of East Asian Librarieshttp://darkwing.uoregon.edu/-felsing/cealAsian Development Bankwww.austii.edu.au/au/special/dialNational Bureau of Asian Researchwww.nbr.orgThe Trade Information Center's Asia & Pacific Web Site http://infoserv2.ita.doc.gov/apweb.nsfFrench Sites:

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Institut de Recherche en Propriete Intellectuelle www.ccip.fr/irpi

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lnstitut de Recherche en Propriete lntellectuelle www.ccip.fr/irpi

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