{"id":18542,"date":"2017-04-06T10:00:00","date_gmt":"2017-04-06T09:00:00","guid":{"rendered":"http:\/\/blog.journals.cambridge.org\/?p=18542"},"modified":"2017-04-11T09:31:05","modified_gmt":"2017-04-11T08:31:05","slug":"a-chip-of-controlling-free-expression-why-china-wants-to-trade-its-copyright-protection","status":"publish","type":"post","link":"https:\/\/www.cambridge.org\/core\/blog\/2017\/04\/06\/a-chip-of-controlling-free-expression-why-china-wants-to-trade-its-copyright-protection\/","title":{"rendered":"A Chip of Controlling Free Expression: Why China Wants to \u201cTrade\u201d its Copyright Protection?"},"content":{"rendered":"
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Last Friday, the Office of the United States Trade Representative (USTR) published its annual\u00a0National Trade Estimate Report on Foreign Trade Barriers<\/a>. As usual, the issue of intellectual property (IP) protection stands at the top of the key trade barriers in China. This time, however, the report points out a different underlying reason for incessant online piracy in China: a bunch of censorship rules that prescribe content review of cultural products are \u201ccounterproductive\u201d, because they create \u201cconditions that allow for pirated content to displace legitimate commerce online\u201d.<\/p>\n

As in 2016, the report explicitly lists China\u2019s Great Firewall<\/a>, which carries out extensive functions of web filtering and blocking, as one of the major impediments to digital trade in China. The 2017 report also labels China\u2019s Internet regulations including its new Cybersecurity Law<\/a> as \u201crestrictive and non-transparent\u201d. In other words: controlling public discourse may be one motivation behind China\u2019s censorship regime \u2013 the other may be to keep foreign competition at bay.<\/p>\n

In fact, China has been adept at using its IP law as a chip to work on Sino-US relations to enhance the effect of its restrictive policies at home. In February, China awarded<\/a> Donald Trump valuable trademark of his name days after he agreed to honor \u201cOne China\u201d policy. Trump\u2019s statement did seem to help assuage<\/a> the tension across the Taiwan Strait for the time being. But many people see<\/a> China\u2019s recent decision as an exchange for Trump\u2019s statement, which causes a bunch of ethical<\/a> and legal<\/a> concerns. Apparently, discussions about this sort of strategic \u201cquid pro quo<\/em>\u201d will keep propping up in future Sino-US relations.<\/p>\n

That China uses its IP law as a chip to leverage foreign relations against cacophony at home is not a new phenomenon. The most distinct case is the intricate relationship between copyright and freedom of expression. In my book Copyright and International Negotiations: An Engine of Free Expression in China?<\/em><\/a>, I try to enunciate China\u2019s systematic approach of using both copyright law and international negotiations as its legitimate basis to clamp down efforts of free expression. The subtlety of China\u2019s unique censorship system provides a completely new understanding of the relationship between copyright and freedom of expression.<\/p>\n

China\u2019s notorious system of censorship is anchored in a variety of laws and regulations including its copyright law. In particular, the Copyright Act presupposes censorship as a precondition for granting copyright protection. This cultural policy, in conjunction with other censorship rules, targets both authors and publishers. Not only have numerous writers including a Nobel Peace Prize winner<\/a> been jailed because of their allegedly \u201csubversive\u201d works, but publishers and editors are also invariably involved: just weeks ago, a Chinese editor was sentenced<\/a> to five years for selling \u201cforbidden\u201d books from Hong Kong and Taiwan.<\/p>\n

Moreover, China\u2019s copyright law requires the international community to \u201ccooperate\u201d with its censorship, which not only bars domestic works dealing with \u201cforbidden topics\u201d from circulation, but also affects import of cultural products from abroad considerably. In 2016, Apple had to remove<\/a> New York Times (NYT) Apps from its store in China due to censorship of foreign contents, while Chinese retailers could keep selling its products via alternative channels. This might cause huge loss of copyright income for the NYT. In practice, this is why, in numerous Sino-US trade negotiations, the US has always defined China\u2019s censorship regime as a severe trade barrier, whereas China has developed its sophisticated approach of suppressing freedom of expression under its copyright law.<\/p>\n

One of such disputes went to the WTO in 2009: the Sino-US copyright dispute<\/a> reflects a fundamental clash between the cultural policy of a communist Party-state and a global free market. An eminent example of the market power that works against China\u2019s censorship system is the film industry<\/a>. In an earlier Global Constitutionalism<\/em> article<\/a>, I argued that different subsystems of international law including the world trade law might aggregate to have a boomerang effect against China\u2019s censorship regime. Despite China\u2019s de facto<\/em> refusal to ratify the International Covenant of Civil Rights and Political Rights, the US continues to struggle against China\u2019s Internet censorship in its IP-related trade negotiations with China.<\/p>\n

Yet, the complexity of international relationships may also pull back such efforts: the US even withdrew from the Trans-Pacific Partnership earlier this year (see my recent China-File article<\/a>). The colossal economic benefits of the Chinese market present another factor that may thwart efforts to promote freedom of expression. While IP income makes only part of the entire commercial profits of multinational corporations, it could even be difficult for Facebook<\/a> to say no to China\u2019s censorship and turn its back to a huge market like China. Also President Trump\u2019s recent trademark disputes in China may aggravate this centrifugal force of China\u2019s enforcement of its fledgling IP law, which assumes a political tinge by patronizing the Chinese government\u2019s political allies and sanctioning its political foes. True, as a trade-IP-linkage, China\u2019s copyright law has to nourish both domestic and international market needs, beckoning a spirit of free expression. But it is unlikely for China\u2019s copyright law to remain an unalloyed commercial turf without facing formidable political challenges.<\/p>\n

Read more about the complexities of\u00a0China’s copyright system in Ge Chen’s new book,\u00a0Copyright and International Negotiations:\u00a0An Engine of Free Expression in China<\/span>?<\/em><\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Last Friday, the Office of the United States Trade Representative (USTR) published its annual\u00a0National Trade Estimate Report on Foreign Trade Barriers. As usual, the issue of intellectual property (IP) protection stands at the top of the key trade barriers in China. This time, however, the report points out a different underlying reason for incessant online […]<\/p>\n","protected":false},"author":587,"featured_media":18644,"comment_status":"open","ping_status":"open","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8,17,7],"tags":[2353,256,726,83,2277],"coauthors":[],"class_list":["post-18542","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-law","category-politics","category-social-sciences","tag-censorship","tag-china","tag-copyright","tag-law-2","tag-social-sciences"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/posts\/18542","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/users\/587"}],"replies":[{"embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/comments?post=18542"}],"version-history":[{"count":0,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/posts\/18542\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/media\/18644"}],"wp:attachment":[{"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/media?parent=18542"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/categories?post=18542"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/tags?post=18542"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/www.cambridge.org\/core\/blog\/wp-json\/wp\/v2\/coauthors?post=18542"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}