Reporter | Hu Chen
Edit | Lin Zi people
In recent years, news related to copyright and intellectual property rights has repeatedly attracted attention.
On the last day of 2020, Guo Jingming formally apologized for plagiarizing Zhuang Yu's work "Inside and Outside the Circle" in "How Much Flowers Fall in Dreams", recalling that 15 years ago, the case of Zhuang Yu v. Guo Jingming caused extensive public discussion, and also underwent a complete legal process, and has been repeatedly mentioned in copyright disputes since then.
On January 1, 2021, classics such as Fitzgerald's The Great Gatsby, Kafka's The Trial, and Hemingway's In Our Time ended their 96-year conservation period and entered the field of public publishing, meaning they became public cultural treasures that anyone could flip through for free. However, in the past, the public edition market was frequently chaotic, and some publishers flocked to publish public edition books in order to save costs, and there were problems such as uneven translation quality and washing.
Recently, the Shanghai police reported that the "Renren Film and Television Subtitle Group" provided online viewing and offline download of suspected infringing film and television works, suspected of copyright infringement. Instead of being on Weibo's hot search at the same time, it is "NetEase Cloud Music responds to Kugou plagiarism again", netEase Cloud Music accuses Kugou of providing irrelevant patents and design plagiarism.
The issue of copyright does not seem to be far away from each of our lives, and it frequently affects people's nerves. In this article, we will review how copyright, a fairly recent concept, first arose; how the original concept of authorship and the view of works as intellectual property came into being; and how developed countries profited from the copyright system.
Returning to the historical scene, we can find that the world's first copyright law, the Anne Act, which was born in 1706, was the result of the promotion of British booksellers, and its and subsequent precedents mainly adjusted the conflict of interests between booksellers, and because capital must set an acceptable starting point for rights, coupled with the natural connection between the author and the work, capital regarded the author as the source of copyright rationalization. At the same time, an industrial chain of literary publishing is gradually taking shape, but the interests of authors are actually subordinate to the interests of the industry. It was not until the second half of the 19th century that the author was valued, and the Romantic view of the author gradually formed, and people began to emphasize the originality of the work and the authorship as an intrinsic personality right, and also gave intellectual labor a higher status than other labor. Modern copyright, which presupposes the encouragement of individual ingenuity, does not adequately take into account the protection of folk works of art in the collective creative model and is difficult to apply to all cultural types, but this concept and system extends globally through the rules of world trade.
To this day, copyright originating in the West still faces a series of questions, is it a property right or a personality right? Does it create some sort of distortion when it overemphasizes originality, and does this "mandatory scarcity" really encourage innovation? Does it hinder knowledge sharing and public welfare?
<h3>The Birth of Copyright: How Did Works Become "Intellectual Property"? </h3>
Compared with rights such as property rights and land rights, the history of copyright is actually quite short. The work has been around for a long time, so why was it not regarded as an intellectual property until modern times?
In ancient Greece, people thought that the truth of nature was the most sublime. At that time, the concept of art focused on "seeking truth", so the work should be an imitation of nature - imitation is the highest form of learning, and Plato believed that the artist was an "imitator". Once the laws of beauty have been found, they should be repeated rather than adapted. Due to the limitations of writing instruments and literacy rates, it is difficult for most folk cultures to achieve accurate textual recording and dissemination, and many works are considered collective achievements, and individuals have no moral justification for considering themselves or exclusive.
During the Renaissance, the meaning of the artist was rediscovered and elevated to the position of being with God. They believe that God created nature and that the poet created another kind of nature. The idea that man is the creator began in this period, when people became aware of their independence, freedom, and creativity, and their view of creation changed.
In 16th-century England, in order to strengthen control, Elizabeth I adopted a monopoly policy on publishing, granting the right to print works to carefully selected printers, monopolizing printing and publishing for nearly a hundred years. At the same time, the advent of the printing press reduced the cost of printing, and works and literary works gradually became a commodity that could be profitable. The old monopoly system prevented small printers from profiting from book publishing, and they felt compelled to find some justification to oppose the publishing monopoly.
As the original provider of the manuscript, the natural connection between the author and the content attracted the attention of the bookseller. In 1706, publishers filed a petition with Parliament claiming that the author would not write new works without guaranteeing an enforceable property right. After three years of intensive lobbying, the world's first copyright law, the Anne Act, was born, establishing the principle of awarding copies of printed books to authors and their copies buyers within a specified period of time to encourage scholarship. For the first time in history, the enforcement of literary property rights was separated from the monopoly of publishers, thus freeing up a free market of literature and ideas.
The birth of Anne's Law marked a major shift in the concept of the work, and the capitalist mode of production propertyized the work, transforming it from a non-utilitarian pleasant thing into a successful industrial element. Defoe described the system in 1725, "writing—which became a sizable branch of English commerce." A bookseller is the total manufacturer or employer. A number of writers, writers, copywriters, amateur writers and all others who make a living in pen and ink are labourers employed by the so-called chief manufacturers. ”
By this time, most of the elements of modern Anglo-American copyright law were in place. But in reality, the Anne Frank Act is only a trade regulation law, which regulates the industrial interests between booksellers and does not directly recognize that the right to benefit from the publication of works comes from the creative activities of authors. So are the rights of booksellers and authors a "civil right" or a "government-granted privilege"? Should the author's rights be permanent? These questions have not yet been fully answered, and copyright has not yet become a universally accepted social concept of "protecting the fruits of intellectual creation."
<h3>"Eternal Life in Great Works": The Invention of the Romantic View of the Author</h3>
If intellectual labor is still striving to acquire property status similar to land rights in the above-mentioned literary property rights, in the romantic era that followed, authors and booksellers gradually regarded writing as a special labor that transcended other forms of labor, and people began to regard the author as a "genius" and sought the sanctity of the writer's status. Unlike the past era when writing was seen as the product of collective creation, the writers of the 18th century were portrayed as extremely individual creators who used their intellectual labor and creative ideas to create, and the work was also seen as a complete reflection of the creator himself, part of the individuality.
Unlike in English law, where copyright is regarded as a pure property right, the idea that works reflect personality was first popular in Germany. Germany was divided until 1870, with the unification of language and writing and the division of the legal system leading to a rampant book piracy. In order to overcome the division of the legal system, German scholars hope to find a transcendent and universal theory that supports the conceptual legitimacy of the copyright system. German copyright theory, with the help of the transcendental idealism that prevailed at the time, considered copyright from the perspective of the personality of the subject. Kant was the first to advocate that "the author's right is the right of personality", and he proposed in his article "On the Injustice of Counterfeit Books" published in 1785 that the work is the realization of the author's personal endowment, and the author's right is the inherent personality right.
Encouraged by Romanticism and promoted by booksellers, writers also gradually realized the value of their works and threw themselves into the social movement for the protection of the rights of authors after death. In 1837, Thomas Noon Talfourd, who was both author and member of the British Parliament, began to promote the revision of the copyright law, actively advocating for the extension of the right period to the author's lifetime plus 60 years after his death. In 1839, Wordsworth organized a petition to support the extension of the term of protection, and the petition was signed by a series of well-known writers: Wordsworth, Dickens, Browning, Arnold.
Considering the balance between the author and the public interest, there is constant debate about the time limit set by ownership. It was not until 1842 that the German Parliament finally adopted a compromise clause of protection: the term of protection was extended to 42 years after publication or 7 years after the author's death. Although the law does not fully meet the requirements of the writer, the author's posthumous rights are recognized, and the image of "literary value" and "writer" is incorporated into the imaginary world of the law.
When ownership is required to extend to the author's personal demise, the basis of his rights can no longer be found at the level of the author's personal rights, that is, copyright is no longer a simple property right, but the law recognizes the work as a recognition of the writer's physical life and compensates the dead author's "value". A writer at the time wrote, "The reward of copyright is no longer just material, it is spiritual." It should be offered as a sacred sacrifice to the deceased. In 1819, Wordsworth refused to raise money for the monument to the poet Robert Burns and explained that gifted writers did not need monuments because their works were already standing on earth.
<h3>There is no conclusion, but there are rules: the global expansion of the copyright system</h3>
Copyright was first born in the UK and has since expanded to other countries. With the advancement of the process of globalization, the transnational flow of literary works and intellectual property has become increasingly frequent, and a worldwide copyright system has gradually taken shape. The Berne Convention for the Protection of Literature and the Arts, the world's first international copyright convention promoted by Victor Hugo in 1886, and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), concluded by World Trade in 1994 and with the greatest impact on national intellectual property laws and systems to date, are widely recognized today to regulate international trade related to intellectual property rights.
However, many aspects of copyright remain inconclusive, and the understanding of copyright in different cultures still varies greatly. In 1986, media entrepreneur Ted Turner paid a fortune for mgm Films, which has a collection of more than 3,600 films, including classics like Gone with the Wind and The Wizard of Oz. At the time, engineers had just developed a computer technology that could transform black-and-white films into brightly colored films, and Turner saw an opportunity. So he made a film from the MGM Film Collection, American director John Houston's "The Night Is Not Quiet", into a color film, and licensed it to be broadcast on French television channel Five. Unexpectedly, this clashed with French copyright law.
In French copyright law, the rights of authors are sacred, and the principle of the personal right of copyright gives authors the right to control the results of their creations, preventing anyone from modifying their works in any way that may affect their artistic reputation. The U.S. Congress, on the other hand, has resolutely resisted the introduction of the principle of personal rights into U.S. copyright law. Gostin, author of The Tao of Copyright, argues that the core of American copyright culture is a shrewd, utilitarian calculation that balances the needs of copyright producers and copyright consumers while placing authors on the margins. So Turner might be able to say, "I think movies look better in color, and they're my movies." In France, this statement is quite debatable. Eventually, the French Supreme Court found that "The Night's Silence" violated the author's personal rights. Because only a flesh-and-blood natural person like Houston, not a legal person such as a film company, can become an author.
This case fully demonstrates that copyright is not a fixed and unique procedure, and even in developed countries, the understanding of the relationship between authors and works, the degree of marketization of knowledge, and the degree of benefit from the intellectual property system are not the same, not to mention that there are many differences in the understanding of the meaning of "works" and "copyright" (Article 62 of Chapter 62 of the Copyright Law of the People's Republic of China: Copyright as referred to in this Law is copyright). In his book "Pirates and Publishers: The Social History of Copyright in Modern China", Feixian Wang, associate professor of the Department of History of History at Indiana University, traces the history of the development and evolution of the concept of copyright in China, which was originally used as "ownership of engravings", proposing that copyright is not only a legal definition, but also involves the knowledge economy and publishing culture behind it, as well as the habits of property rights and market order.
Many countries had refused to grant protection to foreign imports of works for the protection of their own interests, Belgium had refused to grant copyright protection to foreigners in the early 19th century when it faced more competitive french works, and the United States had refused to sign the Berne Convention on the pretext of not being ratified by Congress, and did not join the Berne Union until March 1, 1989. And when these developed countries became net importers of copyright, their powerful lobby groups created a worldwide copyright system in order to safeguard their own interests, and they made people believe that all intellectual property rights would benefit the public at large and promote technological progress. They package copyright as a discourse that encourages creativity and the development of civilizations, and strongly influence ip policies in developing countries through trade sanctions. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the most important agreement on intellectual property rights in the 20th century, may have no more than 50 formulators (they often represent the interests of large european and American companies), but it has caused more than 100 net intellectual property importers to give up their sovereignty over property laws, bringing huge benefits to net intellectual property exporters led by the United States, especially large companies with large intellectual property portfolios.
<h3>Mandatory Scarcity and Innovation Anxiety: Can Copyright Really Drive Innovation? </h3>
From the above discussion, we can see that copyright was originally promoted by booksellers, but for a long time afterwards, the creator did not become the core of the interest. The book "Information Feudalism" argues that in reality, the most powerful intellectual property owners are commercial entities, especially enterprises, who obtain intellectual property rights through rights transactions or legal provisions. The vast majority of intellectual property is not in the hands of the original creators, but in the hands of large companies. Li Chen, a professor at the Law School of Chinese Min University, further proposed that the stipulation of works as the property of authors is not a system invention made by legislators to encourage creation, but only an endorsement of existing transaction methods.
A prerequisite for the establishment of a modern copyright system was that the IP system was conducive to innovation and wanted to promote creative activities through laws. But some philosophers and psychologists have proposed that it is human nature to create. Historically, authors, publishers and booksellers have not always maintained social and economic relations through the modern copyright system. In ancient times, both Chinese literati and Western intellectuals regarded creation as a hobby rather than a tool for making a living, and the self-enjoyment and prestige they brought were enough to support them to carry out creative activities, and the resulting cultural and social capital could also help them obtain financial support from the rich. Thus, even after the advent of copyright in the 16th century, many writers in Western Europe preferred to resort to the traditional line—that is, to rely on the patronage of aristocratic and wealthy merchants—rather than accept new channels of livelihood.
Another important criterion for the establishment of the modern copyright system is originality and uniqueness, and equating literary creativity with originality is largely a legacy of the Romantic era. Many classic works of the past have been developed on the basis of inheriting their predecessors. Classical Chinese literary works such as "Romance of the Three Kingdoms", "Water Margin", and "Journey to the West" all belong to the cumulative novels of generations, which are gradually accumulated and stereotyped on the basis of past historical stories and folklore, and the main characters and plots in them have already taken shape in the writings of predecessors. And in Western works of art, as Richard Posner, author of Law and Literature, observed, Shakespeare's typical theatrical writing was to borrow plots and most of the characters from an extant historical, biographical, or dramatic work, and then enrich the plot and refine its description. This practice was fairly common at the time. In the art world, parodies also abound: Duchamp added a moustache to the Mona Lisa, Rauschenberg created The Mona Lisa with Pneumonia, Yves Saint Laurent imitated Manet's Lunch on the Grass, changing the phrase "men dressed, women nude" in the original painting to "women dressed, men naked." ”
Posner argues that for "unoriginal writers" such as Chaucer, Shakespeare, and Milton, although today they may be considered plagiarism or copyright infringement, what they do today reflects a higher level of creativity than is usually attained in literary works that are completely original in the sense of copyright. He went on to argue that the literary imagination is not a volcano of pure inspiration, but rather a need to weave the author's life experience into the existing literary tradition. The more widely copyright protection, the more likely it is that literary imagination will be limited.
Hayek once called intellectual property a kind of "mandatory scarcity", because the object of intellectual property rights can actually be shared, sharing does not affect self-use, but will affect transactions, so intellectual property rights must be legally prevented from sharing. Copyright, as a type of intellectual property, regulates the relationship between authors, communicators and the public, but ignores the relationship between authors and authors, and does not provide further explanations for the relationship between existing works and subsequent creations. Vidianasan, a professor at New York University, also pointed out that the law gives back to existing works, but limits works that have not yet been produced.
When we overemphasize innovation, it may bring about the extreme worship of originality and the excessive abandonment of imitation in the modern view of works, resulting in psychological tension and distortion of latecomers. Any innovation must be based on what is already there, but when the industry seeks to maximize its own interests, the impulse that may arise is to maintain a monopoly and prevent others from using it. This leads to a huge paradox that copyright may not always be true in favor of authors – expanding copyright may lead to excessive monopolies, and inhibiting copyright will lead to free-rider behavior. It is undeniable that intellectual property rights have their rationality and necessity, but we need to be vigilant about the negative effects that may be brought about by the commercialization of intellectual property rights. The logic of law and the logic of cultural development are not necessarily consistent, and how to balance the relationship between the two is still a difficult problem that we need to face.
Resources:
By Paul Gosteen; translated by Jin Haijun. The Way of Copyright: From Gutenberg to Digital On-Demand Machine[M]. Peking University Press, 2008.
Chu Huijuan. Storytellers and DreamWorks[M]. Beijing:Social Sciences Academic Press, 2019.
Li Chen. Criticism of basic theory of copyright[M]. Beijing:Intellectual Property Press, 2013.
(Australia) Peter Davo house, (Australian) by John Braswaite; translated by Liu Xuetao. Information feudalism knowledge economy who is the main ups and downs[M]. Beijing:Intellectual Property Press, 2005.09.
(Us) Richard M. A. Posner, translated by Li Guoqing. Law and Literature Revised Edition[M]. Beijing:China University of Political Science and Law Press, 2002.09.
F.A. Hayek, von Klee et al. The Fallacy of Fatal Conceited Socialism[M]. Beijing:China Social Sciences Press, 2000.09.
"Wang Feixian on Copyright and Modern China", Shanghai Book Review
https://m.thepaper.cn/newsDetail_forward_11179530
Public Copyright 2021: How to Revisit the Cultural Heritage of the Golden Age of 1925? "Yanjing Book Review"
https://mp.weixin.qq.com/s/36jgbyReIQKLrirDpVw98w
"15 years later, Guo Jingming chose to apologize to Zhuang Yu", Interface News
https://www.jiemian.com/article/5479778.html