The Sly Rabbit and the Three C’s: China, Copyright and Calligraphy

This article posits that among the many different methods being used to try to increase enforcement of Western style IP laws in China, that ultimately one of the most effective methods may be to support and aide the slow but steady shift in Chinese culture, away from a collective society view, and towards an individual ownership view – not reasons not based purely on economics, but also as a benefit from a cultural and social perspective – with broader support for the concept of individual rights and freedoms on a variety of fronts, and not just the IP arena. In this context also, 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 is an example of a byproduct of some of the less salutary aspects of Western culture. 1 The merit of this hypothesis is shown in this article by the 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 modern art, and of modern calligraphy as an art form, provides 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, this source history supported the view that calligraphy symbols could not, and should not, be • Marc H. Greenberg is a Professor of Law and the Co-Director of the Intellectual Property Law Program and IP Law Center of Golden Gate University School of Law. Professor Greenberg acknowledges and thanks Professor Peter Yu of Drake University School of Law, and Professors William Gallagher and Helen Hartnell of Golden Gate University School of Law for their insight and assistance in the development of this article. A work in progress version of this article was presented at the 2008 IP Scholars Conference at Stanford University and at the 2008 Works in Progress IP Conference at Tulane University, wherein other colleagues offered valuable commentary as well. The invaluable efforts of research assistants Katia Bloom and Frankie Yeung is also acknowledged. This article is dedicated to his wife, Kim Munson, whose work on Chinese art history was the genesis of this work. 1 Agence France Presse, Quarter of Chinese Adults are Overweight: U.S. Study, 7/8/2008, reprinted in Yahoo! News, last viewed at http://news.yahoo.com/s/afp/20080708/hl_afp/chinaushealthobesityresearchp_ylt. protected by copyright – just as in patent law, you cannot obtain a patent on items found in nature. However, modern 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 deeply with the artist’s own vision and perspective – they often bear no visible resemblance to their source symbols at all. Since these symbols, under a Western view, would, by virtue of their age and utilitarian function, be deemed to be in the public domain, 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 looks at modern art in China. Two key trends emerge, each of which has different impact on the recognition and enforcement of copyright law in China. The first trend is 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 looks at the history of copyright, first in a summary fashion as to Western European and U.S. law, and in more detail as to China. Copyright law in China is traced from its 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 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 Westernstyle copyright enforcement mechanisms have 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 hold the answer 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 traditional art form in China, which eschewed the concept of individual ownership, has, through the operation of these three approaches, in law, economics and normative social expressions, evolved into a very different contemporary form of artistic expression, 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.