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This article posits that among many different methods available to improve enforcement of Western-style intellectual property (IP) laws in China, ultimately, the most effective of these may be to support and aid the slow but steady shift in Chinese culture away from a collective society view towards an individual ownership view with broader support for the concept of individual rights and freedoms on a variety of fronts, not just the IP arena. Within this context, I note in passing that the movement in China to embrace many of the attributes of Western culture is a mixed blessing, as media coverage of the rise in obesity and lung cancer in China are examples of a by-product of some of the less salutary aspects of Western culture.

The merit of this hypothesis is shown in this article's discussion of the specific example of calligraphy arts, and the more general example of modern art creation and marketing in China. The teaching and marketing of modem art, and of modem calligraphy as an art form, provide a demonstration of my hypothesis. Calligraphy symbols in China are, in essence, pictograms that draw their inspiration from things found in nature - trees, rocks, animals, elements, etc. For most of the history of calligraphy as an art form in China, history supported the view that calligraphy symbols could not, and should not, be protected by copyright - just as in patent law, one cannot obtain a patent for items preexisting in nature.

However, modem calligraphy art uses the symbols of traditional calligraphy only as a jumping-off point. The modern works contain interpretations of these classic symbols that are virtually unrecognizable, and are imbued so deeply with the artist's own vision and perspective that they often bear no visible resemblance to their source symbols at all. Under a Western view these symbols would, by virtue of their age and utilitarian function, be in the public domain, and the new calligraphy artists would face no derivative rights challenges and would be entitled to claim sole ownership of these works.

The first section of this Article examines modem art in China. Two key trendsemerge, each of which has a different impact on the recognition and enforcementof copyright law in China. The first trend is the growth of the copy art industry: the use of assembly-line techniques to produce cheap, popular artworks, often copies of traditional and contemporary art, including popular works of European and American artists. The second trend is the unexpected recognition of a burgeoning contemporary art scene in China and how its leading artists have become"rock stars" in their country and beyond, with their work bringing multi-million dollar sales and allowing them to enjoy newfound individual wealth and status,contrary to longstanding tradition for Chinese artists.

The second section provides an overview of the history of copyright in Western European and U.S. law, with greater detail given to copyright in China. Copyright law in China is traced from Imperial age origins, followed by a consideration of how copyright has been implemented during modern times in both the communist nation of the People's Republic of China (PRC) on the mainland,and the Republic of China (ROC) on the island of Taiwan.

The third section of this Article discusses why, despite efforts by both the Chinese government and Western governmental entities, the attempt to import Western-style copyright enforcement mechanisms has been largely unsuccessful to date. This section explores the need for approaches other than those rooted in the law, suggesting that changes in social norms and the migration of China into a "socialist market economy" may provide the solution to the problem of developing a cultural shift in favor of the kind of private ownership approach that best supports a vigorous copyright protection system.

The final section explores how Chinese Calligraphy, a classic and highly traditionalart form in China, which eschewed the concept of individual ownership, has, through law, economics and normative social expressions, evolved into a very different contemporary form of artistic expression. It is marked by individual expression and ownership, and offers this evolution as a basis for suggesting that as this and other forms of fine art evolve in China, they present an opportunity to convert those artists into the kind of stakeholders, to borrow the concept articulated by Professors Peter Yu and William P. Alford in many of their published works, which may provide the best opportunity to create an environment more conducive to successful enforcement of copyright protection for members of the Chinese creative community.


Posted with permission.