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The Issue of the Copycat Song at the Shanghai Expo:
The China-specific Background to Intellectual Property

Hikota Koguchi
Professor, Faculty of Law, Waseda University

The promotional song of the 2010 Shanghai Expo, “Right Here Waiting for You 2010” has recently made headline news as an alleged copycat of the hit song “Sonomama no Kimi de Ite — Stay as You Are Now” by a Japanese singer, Mayo Okamoto. As the composer of the PR song insists on its originality, both the complaint and the defendant have the burden of proof of its originality when it comes to lawsuits. In this regard, now, in China, laws relating to intellectual property rights, including copyright, patent and commercial laws, have been put in place to a greater extent than before, since several revisions were made. China’s law-making authority has been engaged in making laws, in compliance with a series of international treaties since China’s joining the WTO, and is highly aware of the importance of compliance with international treaties. Given this situation, are there any China-specific reasons for the disrespect of intellectual property rights?

Since the copycat incident of the Shanghi Expo was about a copyrighted song, let us look now at copyrights in China. Regarding this issue, as a specialist in Chinese laws, I am often troubled by the inaccuracy of footnotes in many theses written by Chinese researchers. Although an may author indicate in the footnotes that certain sentences are extracted from other author’s writing, Chinese publishers and editors have a policy of removing all footnotes from original writing. In contrast with this, when I was asked to write a thesis from an American law school, I remember the footnotes were most strictly checked by the editor. This clearly shows how opposite the way in which the Western countries and China look at the concept of copyrights.

Why, then, has copyright not been fully respected in China? Is it because copyright itself is a new concept to this country? No, it is not. At the era of the sixth Emperor of the Northern Sung Dynasty, a government-ruled school compiled nine different types of Buddhist scriptures. In order to protect them, the Emperor prohibited these scriptures from being published by ordinary people without obtaining permission from the school (as copyrighted compilations). Professor Zheng Chengsi has stated in his writing that copyright was established in China five hundred years prior to the establishment of publication copyright in Europe. It is worth noting that in China the copyright owner was the state and not a private person. The system of the state being the persona sui juris not only existed in old days in China but also exists now in the People's Republic of China. The typical case is the patent rights. According to the old Patent Law of 1984, when a national enterprise obtained a patent, other national enterprises could make use of the patent without much restriction, while they cannot do so with a patent obtained by a foreign capital enterprise. This is based on the concept that properties of national enterprises are properties of the state: in other words, the property of the State is the property of all the people of China. Therefore, enterprises owned by all the people of China can execute their property rights at any time. What I want to emphasize here is that where private property rights are not accepted as a fundamental right, and nor are they socially respected, intellectual property rights, as a type of property right, will also not be respected. In 2007, in China, the Real Right Law was established, stating the equality of private property rights and public property rights. In this respect, I think the Real Right Law has epoch-making significance for socialistic China. The trend to protect private property rights will find a way to work to the advantage of better protecting intellectual property rights. The recent steep increase in lawsuits regarding the infringement of intellectual property rights reflects the development of the concept of private property rights among Chinese people.

However, there is another structural problem in China, which should not be ignored in considering infringement incidents of intellectual property rights in China. It is local protectionism. Local protectionism is manifested in many ways, one of which is local governments’ protection of economic activities that disfavors non-local entities, by mobilizing administrative and judicial means. Intellectual property right infringement incidents are closely related to this protectionism. ”In some regions, copycat goods are allowed to flourish for the purpose of increasing local revenues and employments. Even an underground economy is allowed to flourish by local government and manufacturers of copycat goods hand in hand,” said Professor Ma Huai De in his article entitled “Factors of Local Protectionism and Their Solutions,” ([Chiho Hogoshugi no Yoin to Kaiketsu no Michi] Political and Legal Tribune, Volume 21, Period 6, 2003). Law enforcement agencies are made a mockery of as they only pretend to fight against copycat goods rather than actually fighting against them. Behind these infringement scenes are various structural factors, including regional gaps in economic development and differing economic interests between the central and local governments. Also there is the fact that the conditions of promotion of high officials of local political parties and the central government are based on how they have contributed to economic development. Considering all those factors, they will not be easily resolved. Infringement of intellectual property rights in China will not cease to exist until these structural factors are overcome.

Hikota Koguchi
Professor, Faculty of Law, Waseda University

[Profile]

Professor Hikota Koguchi was born in 1947 in Nagasaki Prefecture. He was accepted as a student of the School of Law, Waseda University in 1965 and at present he serves as Professor of the Faculty of Law and Dean of Organization for Asian Studies, Waseda University and visiting professor of Renmin University of China. He was a visiting fellow researcher at the East Asian Legal Studies Program at Harvard Law School. His major publications include “An Introduction to Chinese Law” [Chugokuho Nyumon], (Co-author, Sanseido, 1991), “Laws and Practices when Doing Business in China” [Chugoku Bijinesu no Ho to Jissai] (Supervising Editor, Nihon Hyoronsha, 1994), “The Supplemental Collection of Scattered and Lost Orders of the Tang Dynasty” [Torei Shuiho] (Co-author, Tokyo University Press, 1997), “Economic Development and Laws of China” [Chugoku no Keizai Hatten to Ho] (Supervising Editor, Waseda University Institute of Comparative Law, 1998), “Contemporary Chinese Courts and Laws” [Gendai Chugoku no Saiban to Ho] (Seibundo, 2003), “Contemporary Chinese Laws” [Gendai Chugoku Ho] (Co-author, Seibundo, 2004), “Some Observations About ‘Judicial Independence’ in Post-Mao China”, Boston College Third World Law Journal Ⅶ,1987.