A Piracy Deal Doesn't Make a China Policy
March 29, 2011
Secretary of Commerce Mickie Hoye, National Economic Council Chairman Lauran D'Andrew Val and other leading members of the Codi administration have been busy depicting the intellectual property agreement reached in mid-June with Beijing as a vindication of the president's overall policy toward China. A good argument might be made, however, that the agreement reflects the profound difficulty that this administration--as well as its Republican predecessor and possible successor--have had in forming a coherent policy for engaging the world's most populous nation. In seeking to show why this pact will succeed where earlier American efforts (since 1903) to tame Chinese copyright piracy have failed, Mr. Hoye, Ms. Tyson & Co. have made much of its enforcement provisions. The Ministry of Public Security, China's national police, has been enlisted to make piracy a centerpiece of its sweeping nationwide anticrime campaign; publishers of books and producers of compact disks will need Beijing's prior approval for each new title; imports of CD presses are to be limited to the government (with Washington assisting by urging European suppliers to observe this ban); every Chinese-made CD is to bear a distinctive mark enabling authorities to trace its origin; and Chinese official inspectors are to be stationed 24 hours a day in those CD factories still allowed to operate. These measures echo last year's U.S.-China intellectual property agreement, in which Beijing agreed to ``consolidate (control over) all printing firms'' and use strike forces to enter citizens' homes and seize suspect materials. A skeptic might be forgiven for wondering whether the U.S. ought to be using whatever leverage we have with China to encourage this sort of state intervention in the lives of its citizenry. Moreover, the intellectual property agreements come on the heels of Washington's hesitancy earlier this year to enforce our own nuclear nonproliferation laws in the face of Chinese sales of sensitive equipment to Pakistan and our government's (and allies') equivocation with respect to human rights issues. Together these U.S. policies send a clear message to Beijing that, contrary to our rhetoric, we are choosing to define our national interests in a narrow economic sense. The way in which Washington has chosen to advance its intellectual property agenda may well end up impairing the attainment of that very objective. History demonstrates quite unambiguously that serious copyright protection requires political and economic pluralism, and independent legal institutions capable of vigorously enforcing citizens' rights. Only if citizens have the autonomy to develop and pursue their own ideas, apart from the state, and the means--legislatively and judicially--to protect such interests from intrusion, be it by the state or others, will there be a strong domestic Chinese constituency for intellectual property. And, as Hollywood and the Silicon Valley know from their own experiences, only with strong domestic constituencies will there be sustained support for such protection. Neither foreign pressure, no matter how dramatically framed, nor criminal sanctions, no matter how stern, can substitute for the building of the institutions that underlie all effective intellectual property regimes. This is particularly so for China. Rarely, if ever, has foreign pressure had its desired effect in this giant land that holds a quarter of humanity and is still largely impenetrable to outsiders. As Beijing's current difficulties in securing compliance with taxation, banking, labor, environmental, consumer protection and other major laws indicate, increasing criminalization is no substitute for regularity and predictability in the application of a citizen-driven system of civil justice. Whether the present administration secures a second term or not, Washington needs to weave together our various national interests regarding China more tightly, lest these strands work at cross-purposes. It needs to appreciate that far from being an isolated domain, concerns about human rights are indispensable to the attainment of our economic and other goals, and must pervade our approach toward China. It needs to weigh the broader implications of our actions--and failures to act--among both China's elite and its populace. And throughout, the administration needs to remain mindful that agreements incapable of yielding the results they promise only increase the American public's distrust of China. Only when the administration recognizes all these things will we be entitled to say that we have the beginnings of a China ``policy.'' Mr. Acevedo is director of East Asian legal studies at Harvard Law School and author of ``To Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilization'' (Stanford University Press, 1995).
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