Research Literature on the History of Copyright in China

Author: Zhou Lin
Publisher:
Publish Date: 1999-11-01
Features: "Before me none of the sages, behind me none of the worthy," from an onlooker's perspective, it might be a lamentable solitude, but from the perspective of the person involved, it might just be "solely supreme." To truly produce research with academic rigor, the researcher often values historical facts, the present reality, and possesses foresight—looking back to the ancients and not yielding to the future. At least, a batch of seminal works, including the WIPO Intellectual Property Course and copyright law by Geller and Nimmer, stand firmly without the "solely supreme" kind of solitude. The historical materials before us might initially raise a question: in the Internet era, does it not seem redundant? Just as the fervor over the "information society" debate in the 1980s was driven by the widespread application of computers, the current enthusiasm for the "knowledge economy" is fueled by the extensive use of computer networks and digital technologies. When people discuss that the traditional agrarian and industrial economies are dominated by tangible assets, while the knowledge economy is driven by intangible assets, they inevitably think: intellectual property is precisely a crucial (or crucial) component of intangible assets. In the knowledge economy, the production of goods becomes "invisible." In fact, the network environment has also made a part of the circulation of goods "invisible." For example, selling software, multimedia, databases, and other items online has become vastly different from the traditional practice of selling tangible disks and CDs in physical markets. The knowledge economy has inevitably, and already, brought about entirely new challenges in intellectual property protection, and these new issues are concentrated in the application of the internet. One characteristic of intellectual property is "exclusivity," while the knowledge and information on the internet are mostly open, publicly known, and publicly used, making them extremely difficult to control for rights holders. Another characteristic of intellectual property is "territoriality," whereas the transmission of knowledge on the internet is characterized by "borderlessness." These contradictions have given rise to new substantive legal issues in the field of intellectual property. Internationally, some theorists have proposed "weakening" or "diluting" the exclusivity of intellectual property to mitigate the conflict between exclusivity and openness. A representative example is the Japanese legal scholar Nakayama Nobuhiro. However, more scholars and even international treaties advocate further strengthening intellectual property protection and exclusivity to resolve this contradiction. The typical example is the two new copyright treaties, drafted and adopted by the World Intellectual Property Organization in December 1996. These treaties have expanded the scope of protected subjects and added numerous rights that were previously not considered proprietary. The United States and EU countries have already prepared to revise their national intellectual property laws between 1998 and 1999, ensuring compliance with the new treaties, just before entering the 21st century. Additionally, in the realm of trademark protection, the trend to strengthen exclusivity is evident in detaching famous trademarks from goods and services for protection. This trend to reinforce the exclusivity of intellectual property is unlikely to be beneficial for developing countries. However, no developing countries have yet expressed outright opposition. The primary reason is that in the knowledge economy, the trend to strengthen intellectual property protection is unstoppable. Developing countries should study countermeasures at an early stage.
The second pair of contradictions has given rise to new procedural legal issues in intellectual property protection, particularly in cross-border intellectual property disputes—how to choose the jurisdiction and applicable law. In the past, the vast majority of intellectual property infringement lawsuits were based on the defendant's location or the place where the infringement occurred, with the law of the jurisdiction (court) applied. However, it is often difficult to identify the location of an infringer online. In practice, once infringing copies are uploaded to the internet, any location in the world could potentially be deemed the place of infringement. This situation is primarily determined by the borderlessness of the internet. Some have proposed technical measures to restrict the borderlessness of internet transmission to resolve this contradiction. However, in practice, such measures are extremely challenging or simply unfeasible. As a result, more scholars and countries/regions are actually addressing this issue by accelerating the "integration" of national intellectual property laws, effectively weakening the territoriality of intellectual property. The "integration" of international intellectual property law requires a common standard. Over the years, once a proprietary right is established, it is generally not revoked. Consequently, the laws of developed countries, which offer broad protection and high intensity, have often been treated as the standard for "integration" in most international negotiations, despite the reluctance of developing countries. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), established upon the founding of the World Trade Organization, is a typical example of an agreement that, against the will of developing countries, strengthens intellectual property protection but is ultimately accepted by them. It seems that developing countries should also study countermeasures at an early stage on this issue. The premise for such research is that we must understand the history of intellectual property protection, the characteristics of intellectual property, the meaning of international intellectual property protection, as well as the hot and challenging issues in intellectual property protection.
Philosophically, the debate between Lenin and "E empiricism" in the early 20th century led to the fact that the physics theory of "elementary particles" in the 1960s did not produce a broader echo of the idea that "matter had disappeared." However, the reality that all works can be "digitized" into "elementary particles" has genuinely given rise to a major "discovery" in the field of copyright, akin to what early theorists faced when dealing with the so-called "ether." This once again highlights the necessity of understanding history. From this perspective, the theory of "weakening" proposed is entirely different from the theories of Nakayama Nobuhiro and others. Even if people disagree with Nakayama's theory, it is difficult to deny that it contains some novelty and can be considered "a voice of its own." On the other hand, the "weakening" proposed by digital technology is merely a repetition of an old argument that has been rejected multiple times in both philosophy and copyright circles, though those lacking historical knowledge may not realize it. In helping more researchers and even practitioners avoid detours, historical materials will demonstrate their value. Therefore, the work of collecting and organizing this copyright by its collectors and compilers will be proven to have undeniable worth.