冯象:知识产权的终结

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  The End of Intellectual Property

  

  Challenges beyond the “China Model”*

  

  Feng Xiang**

  

  Abstract

  

  A new reef the luxury cruise ship “Rule of Law” has hit, called the unenforceability of intellectual property rights. This article argues that instead of the often misnamed and misunderstood scapegoat, the “China model”, it is two global trends, the internet and outsourcing, that have led to the historical clashing and overcoming of the law. As a result, important revisions to our conception and use of the law and a new faith in universalism must be contemplated.

  

  Key words: intellectual property; rule of law; internet; outsourcing; revisionism; universalism.

  

  I

  

  Intellectual property is demising. Or at least, that form of intellectual property rights (IPR) as taught at our law schools and propagated by powerful state machines – a complex web of statutorily defined property and moral rights, entitled to official respect and protection in all “civilized nations”, according to a long list of treaties and international conventions signed into effect by members of global trade communities such as the World Trade Organization (WTO) – has come to its end.

  

  The fact is undeniable. Today, few people in good conscience can conduct normal business or enjoy a day of leisure without breaching a commandment of intellectual property by, for example, running a computer program, choosing a branded handbag or sharing a song with friends on the internet. This is so not only in China and other emergent economies, but increasingly in the United States and developed markets in general, as amply documented by academic researchers and industry analysts. The situation of IPR in China, therefore, is essentially no different from elsewhere on this over-wired blue planet, though for various reasons, there is often more media attention paid to it, in China as well as in the west, than deeper economic and social problems, such as what triggered the “Occupy Wall Street” demonstrations.

  

  A couple of months ago, I remember, the BBC reported a case in the city of Kunming, Yunnan Province, southwestern China, in which 22 fake Apple stores were shut down in a crackdown by the local industry and commerce administration. The tips came from a foreign tourist who discovered some alterations in the layout and “signature” features in one of those “Apple stores” (BBC news, 12 Aug 2011). Given the freewheeling business environment, however, we may reasonably expect that similar bootleg operations will soon mushroom to fill in the void, right there or in nearby towns. The consumer market demands that.

  

  So, who would purchase “genuine” software at exorbitant prices under a lawyer-drafted license in mysteriously tiny print, when there are countless free downloading sites of the same on the internet? Greed is no longer a valid justification, for open and free access to “pirate” copies has become “our daily bread” (Matthew 6:11). Let “genuine” goods and services be a luxury for the law-abiding upper classes, a marking of social status of the well-to-do. But even there, the attitude is changing. At Xiushui Street in Beijing, that pageant of piracy, western tourists as well as Chinese white-collar flock in to select their favorite counterfeit international brands, from Swiss watches to Italian shoes to French couture, what not. There, fashion-conscious consumers are having a good time, a carnival of sacrificing IPR.

  

  The demise of intellectual property is testified to by the relevant industries themselves. According to the US International Trade Commission (USITC) statistics, in 2009 alone, the US copyright and software industry suffered losses in revenue of $48 billion due to IPR infringement in China, and as a result or in connection therewith 2.1 million jobs were lost in the United States, with $500 million additional costs on US companies dealing with the said infringement (SSTN news, 19 May 2011). Similar allegations against China by US trade groups, politicians and mass media have been commonplace for over two decades.

  

  Academic researchers tend to dismiss such claims as tactics of trade negotiation and market access battles, seeing them as driven by domestic or electoral politics rather than as accurate data that indicate any meaningful trend. These claims, after all, are based on the absurd assumption that users and consumers in China (and other developing societies) are able and willing to pay the same prices for software, movies, music, video games and other copyright material that apply on the US market. Even so, I think we should allow the claimants the benefit of doubt, for as a matter of fact IPR violation is indeed widespread in China, as in many markets, east and west. What I mean to say is: such unverifiable statistics, if true, show precisely that efforts to enhance IPR protection in China and elsewhere amount to beating a dead horse.

  

  Were it not intellectual property, would Uncle Sam, or for that matter any world power,(点击此处阅读下一页)

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