September 12, 2006
Pirated Editions and American Copyright Law: Part I
[Editor's Note: This paper was commissioned by the Chinese-American Librarians Association and presented in a talk given at the Queens Public Library in New York City. Anyone interested in pirated products and copyrights may find this a worthwhile read.]
Pirated Editions and American Copyright Law:
Implications for Libraries Building a Chinese Language Collection
ABSTRACT: This paper discusses the phenomenon of pirated Chinese publications, relevant aspects of American copyright law and the implications for libraries building Chinese collections.
Part I
I. Introduction
There is a large bookstore on Hongqiao Road (虹桥路) in Shanghai which takes up an entire floor of a major electronics mall. It is not nearly as prolific as the 6 floors of Shanghai Shucheng (上海书城 -- Shanghai Book City) on Fuzhou Lu Road (福州路), nor does it have the specialty books such as the reproductions of ancient works, like the bookstore Shanghai Guji Shudian (上海古籍书店), but it is still extensive and modern, and since it was close to where I was living at the time, I visited it often.
One day I decided to walk all the stacks, and quickly noticed the computer books section – several walls stocked to the brim with textbooks – all pirated, that is, printed without permission of the copyright holder.
I then walked through the business section where a large number of best sellers in the US had been translated and put into print in China, again without permission of the copyright holder. Then I traveled over to the CD section, where I could choose from the genuine Deutsche Grammophon CDs imported from Germany at 300 RMB (about US$40) and up, or, the illegal copies made in China, at 1/10 that price. Then over to the VCD section (as DVDs are known in China), where…well you get the picture.
It is not just the traditional street sellers who are the distribution channel for counterfeit book materials. Mainstream bookstores in China carry huge inventories of unlicensed works of copyrighted material for sale to the domestic market. Pirating is a mainstream in China. And it is everywhere.
II. Pirated Chinese Editions and Copyright Infringement in the U.S.
What concerns us today is the purchase of Chinese book materials (books, audio CDs and DVDs) by US library buyers, and its implications. We’ll examine this question: Does library use of unauthorized Chinese publications, commonly known as “pirates” or “pirated editions,” constitute an infringement of intellectual property rights? If so, when and to what extent? And what, if anything, can be done to protect a library from claims of infringement that may be made against it?
What is intellectual property, anyway? There are many definitions. Let us describe it generally, the easy way. Very briefly, it refers to just about anything you can think up and express, and which you might be able to make some money from. In this country, and in most others, government protects assets created by the intellect in a variety of forms, for example, in patents for inventions and designs and the like; in trademarks, like brand names and logos; and in copyrights, of stories, songs, films, etc., even of pantomimes. In other words, the person who comes up with these imaginative inventions of the mind has certain rights in them and others can not make use of them, generally speaking, without permission, usually procurable by the payment of money. This discussion will focus on copyrights, leaving aside patents and trademarks.
How do people protect themselves against the theft of intangible assets, such as these? You can put valuables, like coins and jewelry, in a safe deposit box in the bank. But to make commercial use of them, by selling them, for example, they must be displayed, and you would go to great lengths to ensure that physical valuables are not easily stolen by someone who sees what you have got. Intellectual property laws and the mechanisms to enforce them are the means by which intangible assets are protected. While there are similarities between Chinese and American intellectual property law, there are differences; but enforcement of the law is so very different in effect that where one may be well protected in the U.S., one may be virtually unprotected in China.
Who hurts and who gains when copyright is infringed? The copyright holder is not paid for his work; the seller of an unauthorized work profits while failing to uphold the law. The purchaser usually receives a poor quality substitute, but saves money, and may run the risk of infringing upon the rights of the copyright holder as well. Infringement, in the larger scheme of things, is an attack upon the system of laws and enforcement established to maintain market order and to encourage invention and creation.
Despite a Copyright Act in existence since 1790, America has seen significant book pirating in its history. 19th century American publishers pirated thousands of popular English works without obtaining permission from copyright holders across the Atlantic. One often sees on the cover or title page of works of the time the label “Authorized Edition,” which the reading public may have considered a signal as to the quality and integrity of the text. These days, book pirating in the U.S. is negligible. In modern China, despite the existence of intellectual property laws, albeit in their infancy, and a regime that professes to their enforcement, there is, similar to 19th century America, little check on the infringement of intellectual property rights.
It is cheaper not to pay the rights holder and then force him to sue. The rights holder who sues finds that his chances of success are much more doubtful in China than in the U.S. The infringer in China is more likely to get away with it. Besides, someone else will do it if you do not, creating a cheaper product that will take market share away from you. What is important in understanding this phenomenon is that mainland Chinese, who have only recently been introduced to the idea of personal rights in any form, have not yet gotten their minds around their fundamental nature, which is that rights, which are abstractions, can have finite value in and of themselves. Intellectual property is a complex bundle of intangible rights with real value. This is a difficult concept to grasp.
When I first sold computer hardware into China in the early 1990s, Chinese buyers would not think of paying extra for service (maintenance) on the machines. After a few years, they began to realize the value of service, and began paying for it with greater willingness. It took a combination of the customer’s inability to reproduce the service, as well as their recognition of its value to them, for them to willingly pay for it. Gradually, some intangible services are now recognized by mainland Chinese as having such value that people are willing to pay for it. A similar change may come in the area of intellectual property in China.
But in the short term, one can not expect rapid and radical change in intellectual property rights consciousness. Mainland Chinese seem to recognize that they may have certain legal rights, but apparently they have not yet extended that idea to the general public. In more traditional Chinese parlance, we might even say there remains a serious lack of social ethics (公德心).
In other words, “I have rights,” but there is little recognition that “you as well have rights.” A further complication finds the modern extension of an historically traditional disrespect Chinese generally feel towards the concept of rule of law, in great contrast to their more respectful attitude towards (or perhaps fear of) the rule of man. In such an environment, one can expect relatively lethargic and stuttering progress towards the development of a consciousness in China that equates the unauthorized use of intellectual property with theft; that the theft itself is unlawful and unethical; and is, as well, an attack upon the developing structure of legal rights. With greater exposure to the ideas of intellectual property and the rights involved, China may see progress over the next few generations. It took the United States a long time before a system of intellectual property rights became well established, not only in law, but in the American consciousness. However, even now, as we all know, digital technologies and the ease of cheap copying have once again posed a challenge in the American mindset.
TO BE CONTINUED
Posted by Richard at 4:52 PM | Comments (2)March 16, 2005
China's Crescendo
Even business readers will want to read this piece on music – because that’s not what it's entirely about.
THE PERFORMANCE
Lang Lang （郎朗）, the 22 year old Chinese pianist-sensation, performed here in New York over this past weekend. As much as half of the audience was of Chinese descent, as one could clearly tell by the Mandarin and Cantonese spoken by the crowds loitering in the lobby and then surging up the stairs.
The brilliant performance -- some said the orchestra was rather a bit too loud – was greeted by listeners who gave the performers an enthusiastic standing ovation. One might temper this with the comment that Americans, unfortunately, give just about everyone a standing “O;” but Chinese don’t. [The New York Times article is archived and must be purchased.]
Other than an extraordinary expression of artistry and beauty, this concert was most assuredly a statement of arrival and of pride. “We, Chinese, have made it: we have met the westerners on their ground and on their terms. And we will show them the glory of Chinese culture as well.”
Western and Chinese music was played on the same program: Rimsky-Korsakov and Rachmaninoff as well as the traditional songs of Blind A-bing (瞎子阿炳). I will posit that Yu Long (余隆), the CPO's artistic director, wished to display the orchestra’s command over portions of the classical western repertoire; to please his Chinese audience with traditional favorites; and to educate his western audience by displaying what Chinese consider to be the grandeur of a Chinese musical heritage unknown in the west. Indeed, a success on all counts.
But perhaps they went a bit too far.
Auf vs.Von: Like a Fake Louis Vuitton Handbag?
Accompanied by the China Philharmonic Orchestra (CPO), the virtuoso premiered “Das Lied auf der Erde” [The Song From the Earth], composed by Ye Xiaogang. Those who listen to Mahler will at once notice the similarity in name to “Das Lied von der Erde” [The Song Of the Earth], lieder which set Tang dynasty poetry to music.
[For those of you who wish to learn more about Mahler, I would recommend friend and fine writer David Hurwitz’s book and CD entitled, The Mahler Symphonies: An Owner's Manual.]
The management company of the CPO notes that
…at the suggestion of Yu Long, music director of China Philharmonic Orchestra, composer Xiao Gang Ye was commissioned to create this Chinese version of The Song of the Earth. Gustav Mahler’s The Song of the Earth, or Das Lied von der Erde, is an irreplaceable masterpiece. Instead, The Song from the Earth, or Das Lied auf der Erde, reflects a different geographic and cultural background. The dawn of this ambitious re-creation, just like New China, signals the foundation of a symphony culture for China and its auspicious future.”
A copy with minor changes, much like a deluxe fake bag remade in the image of luxury parent? Not at all -- although one is forced to consider such an unfortunate idea.
THE STATEMENT
The creation of Ye Xiaogang’s piece is a statement that China intends to reclaim itself from the mind of the West, to re-create itself as it wishes. However, its target, in this case, was merely a harmless and delightful fancy in the mind of an imaginative western musician.
From the point of view of the non-Chinese audience, was such a statement necessary or even worthwhile? It was probably not even understood.
For Chinese, that the statement involves a re-creation of a western piece points up the extraordinary value the Chinese artists and the audience place on Things Western. “We have arrived – the West must stand up and take notice – and we are taking back what is ours.”
RECLAMATION: A MAJOR IDEA IN CHINESE LIFE
Reclamation from the West is a major topic for modern Chinese: antiques held in western collections, a demand for repayment of moneys allegedly stolen by an American business in the first half of this century, of China’s place in the world as a major business and political power [search Google for 中国强大国家 and read the Chinese language bulletin boards].
This lifetime student of China respectfully suggests: Chinese must learn what is and what is not theirs to reclaim -- what is and what is not important to reclaim. As Chinese wend their way into the international community, the increasing friction generated by their demands may produce a clamor that exceeds the splendor of the music they so well express.
Posted by Richard at 2:31 PM | Comments (1) | TrackBack
