How intellectual property and censorship have haunted a century of China-US trade talks

A Sino-US trade war emerges every few years, and Sino-US trade negotiations have reached a critical juncture yet again. Trade friction between the two nations originated towards the end of Qing dynasty, China’s last feudal government, and persists today. An underlying factor is the Chinese government’s rigorous censorship of imported cultural products, an irreconcilable challenge to free speech in the United States. Over the past century, the US Supreme Court has regularly privileged the protection of free speech against other rights and interests, including privacy and national security.

The First Amendment is also geared towards ensuring equitable conflict between individual speech and government power. The influential case of New York Times Co vs. United States in the 1970s clarifies a fundamental judicial principle: the so-called “state secret” may not erode free speech.

Based on the same idea, the US Constitution defines copyright as an instrument to “promote Science and useful Arts”. For this reason, publication and circulation of books and audiovisual commodities are not only an integral part of cultural supply and consumption, but also, more significantly, a special trade item encapsulating the spirit and value of free speech in the United States.

By contrast, analysts suggest that copyright assumed its primitive shape in China as early as the 10th century, though this protection was equivalent to censorship. Printing technology emerged at that time, and the government aimed to prevent the free flow of information. The words “unauthorised copies will be prosecuted” pointed to compulsory permission granted by the government rather than by authors. After Western powers forcefully knocked open the closed doors of the Qing government to foreign trade, the “copyright” system guided by government censorship confronted a major challenge from the US trade of copies touting the right of free speech.

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In Sino-US trade talks at the end of the 19th century, the Qing government agreed to copyright protection for books from US publishers on the condition that the government would censor politically sensitive content beforehand. The Qing government also agreed to protect the copyright of Japanese publishers, but only if Japan helped ban publications in Japan that might threaten Qing rule.

Although these trade talks yielded some superficial benefits, with the Qing government agreeing to some copyright protection for US publishers, piracy remained an enduring practice. Only during the first three decades of the People’s Republic was rampant piracy constrained, because the Communist government generally forbade the import of overseas publications. Intellectuals received limited compensation for their “labour,” and government policies suppressed creativity and free speech.

The 1980s witnessed a relatively relaxed policy of spiritual development in China, so that publications from the US, even pirated works, contributed to the dissemination of free ideas. However, US publishers suffered an inestimable loss from a tremendous unregulated cultural market that emerged. The US government resumed trade negotiations with the Chinese government, and the first step was to revive the conditions used at the end of the Qing dynasty: the Chinese government must provide legal copyright protection.

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In 1991, China implemented its first copyright code. Still, the prerequisite for intellectual works to obtain copyright protection was to survive government censorship. Many clever authors benefited from this copyright system: Yu Qiuyu, a bestselling author whose itinerary essays were criticised as “cultural lipsticks” for their absence of political topics, became China’s wealthiest writer due to royalties. Still, the desire for information resulted in sustained piracy.

In the 1990s, the US launched its “trade war” against China with a focus on intellectual property. The Special 301 clause in the US Trade Act turned into an invincible weapon with China eventually signing a memorandum to agree to intensify copyright enforcement and crack down on piracy. China soon amended its copyright law to empower the government to crack down on piracy through various campaigns. The goal was, apparently, to censor politically unqualified cultural products, as made clear in government campaigns to “purify the internet” in the name of eradicating pornography and illegal publications.

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Most countries manage general tensions between copyright and free speech through the free market. In China, however, the government regulates copyright by censorship to realise its policy goal of controlling free speech. China’s non-market approach could undermine the interests of foreign investors and benefit illegal publishers. In 2016, Apple Inc. eliminated New York Times apps to comply with Chinese censorship, although Chinese retailers sold identical or similar products.

Since the US government gave the green light to China’s accession to the WTO in 2001, Sino-US trade friction and talks have converged at the debate between free speech and censorship. In the Sino-US IP dispute at the WTO, the Bush administration brought China’s censorship in copyright law into question by challenging its harmful effects on global trade. Eventually, the WTO ran out of bullets: censorship did not contravene international trade law because the Berne Convention explicitly allows members to ban “harmful publications” that undermine “public order”.

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The Obama administration boosted Sino-US trade talks, informed by a debate over values, and freedom of information drafted into the Trans-Pacific Partnership as a fundamental principle. Recently, the US-Mexico-Canada Agreement precludes US trade partners from making deals with countries denied “market economy status,” even though the Trump administration withdrew the US from the TPP. Obviously, the Chinese government’s attempt to strangle free speech through distorted copyright laws provides strong evidence to the US government for accusing China of rendering a non-free-market environment for Sino-US copyright trade.

Intellectual property protection haunted by piracy in China remains a key problem in the Sino-US trade war. The answer is probably as follows: censorship is an “engine” that sparks public curiosity and acts as an impetus for publishers to pirate banned works. Such an entrenched system of suffocating the free flow of ideas is bound to buttress the legitimacy of piracy in China and generate conflict with any tangible or intangible products carrying free speech.

Ge Chen is assistant professor in Chinese Law and co-director of the Centre for Chinese Law and Policies at the Durham Law School. He is the author of Copyright and International Negotiations: An Engine of Free Expression in China? Reprinted with permission from YaleGlobal Online http://yaleglobal.yale.edu