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Intellectual Rights Alien Experience to Chinese

By William A. Babcock. William A. Babcockassociate director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota, is a former Asia news editor of the Monitor. / October 26, 1995



TO STEAL A BOOK IS AN ELEGANT OFFENSE: INTELLECTUAL PROPERTY LAW IN CHINESE CIVILIZATION

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By William P. Alford

Stanford University Press

222 pp.,$35

Intellectual property has been the subject of recent sticky negotiations between the United States and the People's Republic of China (mainland China), and to a lesser extent between the US and the Republic of China (Taiwan). Defined principally to encompass copyright, patent, and trademark, intellectual property is an evolving concept in China.

Confucius said, ''I transmit rather than create; I believe in and love the Ancients,'' and in the world's largest socialist state, creativity is considered a group activity that enhances and enriches the state. So one conclusion seems inevitable: Intellectual property is given far less importance and credence in China than it is in Western societies.

But whether dealing with the various dynasties of the Middle Kingdom, with the wrenching disruption of the Cultural Revolution (1966-1976), or with the current post-Tiananmen Square era of an aging Deng Xiaoping, the state's emphasis appears always to have been more on political order and stability than on issues of ownership and private interests. And although many Western entrepreneurs are justifiably concerned that their intellectual property has been misappropriated throughout China, indigenous Chinese face even greater challenges than do foreigners.

It is within this timely framework that William P. Alford sets his current work, ''To Steal a Book is an Elegant Offense: Intellectual Property Law in Chinese Civilization.'' The book's title is taken from an old Chinese saying.

Indeed, the book clearly focuses on the issue dealt with in its final chapter, the thorny problem of US policy on intellectual property in China. Alford points out that counterfeiting in China - whether it be of American computer software or compact discs - had been a problem for some time, but that key domestic industries in the US only recently succeeded in fostering a politically potent perception that their losses were somehow linked to the nation's larger trade difficulties.

Politicians, he says, jumped on this bandwagon, shifting attention from America's domestic economic problems onto foreigners who neither purchased our goods in abundance nor showed compunction about misappropriating the fruits of our technology. And politicians of both parties found it all the more appealing that a sizable number of the key industries raising these concerns were located in such electorally important states as California, Texas, and New York.

Alford contends that US policy, consisting in large measure of the use of extensive pressure to secure formal modifications in China's doctrine of intellectual property, is flawed, because it fails to take into consideration China's political culture, which mandates controlling the flow of ideas.

Political culture, Alford argues, has impeded the growth of modern intellectual property law in the Chinese world, and without further political liberalization, refinements in intellectual property doctrine itself will be of limited value. And it follows, according to the author, that a state that has difficulty protecting its citizens' basic civil and political rights is unlikely to be able to protect their property rights. It in turn will, have problems protecting the highly sophisticated property interests of foreigners.

Alford insists: ''...The United States would, in the end, have been far more pragmatic in advancing its intellectual property interests during May 1989 had it not expended considerable political capital on computer software protection, but instead used what leverage it had to more vigorously seek a resolution of the occupation of Tiananmen Square compatible with respect for fundamental human rights, even while recognizing the limits of its ability to shape such events.''

As with most top Sinologists, Alford (a Henry L. Stimson professor of law and director of East Asian Legal Studies at the Harvard University Law School) has an enviable grasp of the history, literature, and intellectual currents that make up China. Where he falls short is in building upon this impressive superstructure.

Alford is indeed correct that intellectual property violations are not high on China's list of pressing priorities. But his book leaves one with the impression that until the West is able to somehow help improve Beijing's political culture, it may be fruitless to deal with the flagrant copyright violations.

Other than a call for more open markets between the US and China, Alford has no practical solutions for preserving the integrity of Mickey Mouse and Rolex watches.

Alford's book, in the final analysis, would have seemed more credible had he framed it as a historical work examining the societal roots that make it an ''elegant offense'' to extensively ''borrow'' from another's creative work.