Fa Da Speech of Mark Cohen, the Intellectual Property Attache of the U.S. Embassy Beijing

I am very glad to be here, returning to Fa-da, a university with which which I have enjoyed over 20 years of cordial relationship and cooperation - by lecturing here, meeting students and faculty, and enjoying many fruitful exchanges. 

 

In fact it was nearly 20 years ago that I came to Fa da to give a talk on antidumping law and I was asked by students “give a lecture on how China should rejoin the GATT.”  It was my first education in how important and how significant GATT membership would be for China.

 

Of course the GATT is now replaced by the WTO.  And China is a member.  Moreover, I am no longer in private practice but I have become a U.S. government official.  I am now the Intellectual Property Attache at the U.S. Embassy in Beijing.

 

So I would like to talk for a few moments about legal publishing, intellectual property and the university setting.

 

In the intellectual property community, universities occupy a unique positions.  Colleges and universities are places where many talented, creative people work and study.  These people will likely be future inventors, creators, artists, writers, and business people - in a word, they will be major intellectual property owners.

 

In China especially, since ancient times, intellectuals, including students and teachers have held important and influential roles in society and government.  There are the few parallels in the world to creative and honorable poet officals like Si Maqian or Chu Yuan - great writers who also sought to serve their government, or like the May Foruth movement, whose young people and professors we just recently celebrated this month.

 

At the same time, universities are places where many types of infringing activities take place.  Students may have limited funds, but high ambitions.  Students and professors are major consumers of cultural and scientific works.  Many universities also have the capacity to support a high degree of infringing activities - through extremely fast broadband  capacity, for example, or large scale computer storage  capacities, or the abilty to break encryption or other copyright protection measures.

 

I am saddened in some ways when I visit many Chinese universities to hear how many recent American movies college students here have seen - since I know most of them are pirated.  Many Chinese college students have seen far more recent American movies than I have seen - I find it too expensive.  I hope that these people are not being taught that this is an acceptable practice.

 

In the United States we have addressed some of these problems through measures that may seem harsh to some individuals.  Many students have been sued for illegally exchanging copyrighted works over the Internet.  Some students, including several students at the U.S. Naval Academy were denied graduation for these illegal activities. Criminal copyright cases have also taken place on college campuses, where students or researchers have used the universities high technology capacities frequently to engage in sophisticated forms of infringing activity.  The results of some of those efforts thus far have in fact generally been positive.

 

Sometimese specific measures can have a very concrete effect.  Several years ago, the Chinese government closed down a publishing house in southern China that was involved in pirating academic journals.  I applaud that effort.

 

Today the problem is more complex.  The digital environment enables us to make perfect duplicates of digital documents, and distribute throughout the world with little or no cost.   Databases can be hacked and illegally used.   The problem is hard to stop.  In some cases, it has become as much a legal problem as an ethical problem.

 

When I talk to high school students about this problem I compare to a situation where you are in a candy store, and the owner is away all day.  Do you take the candy knowing you will not be caught, or do you do the honest thing and not steal? 

 

Statistics show that those who steal the copyright of others, ultimately harm the culture of their own country.  Struggling Chinese writers, musicians, software developers, have an even harder time without good copyright protection.  When Hong Kong improved its IPR protection for movies, the result was that the Hong Kong motion picture industry flourished again and 80% of the domestic market was dominated by Hong Kong productions.

 

In an introduction to a book I wrote in 1999, Prof. Jiang noted as well that "one of the key constituencies for protection intellectual property rights is the Chinese people themslves.  .. by protecting intellectual property... [Chinese] writers, artists, software programmers, engineers and manufactures will be able to secure their own intiatives .. to advance China's economy and the economy of humankind." I agreed then to publish this comment, and I agree again today.

 

 The law, as we say in the United States is a “noble calling.”  It is a profession, not a business.  We have certain ethical standards that we must adhere to maintain the community’s respect for ourselves and our profession. 

 

In China today, there is a high level of piracy.  What saddens me however, is that much of this piracy has involved legal books, including books about intellectual property.

 

How many students in your classroom duplicate textbooks on photocopying machines without paying the rights holder?  How many obtain content from the Internet without compensation?  The problem is not confined to China, it is found to a high degree in many countries in the world.  The problem however puts tremendous strain on China’s enforcement resources - last year in 2004, the copyright administrations seized 1, 821,76 journals, 18,691,831 books alone nationwide.  There was a major focus on textbook piracy by the Chinese government last year.  There is tremendous pressure being brought on China by major countries, including my own to improve the environment for copyright protection.  Many Chinese rights holders are also urging their government to take strong measures.

 

We know the problem of piracy of legal materials in particular  mostly by anecdotes.  In the  mid 1990’s Zheng Chengsi’s books on intellectual property were pirated.  The publishing house, as many of you will recall, was the Supreme People’s Procuratorate Publishing house.  This was quite an embarrassing situation.  Some years ago I met an official from this publishing house who revealed his own embarrassment over this situation. He was unaware of the law regarding copyright.

 

In a sign of changed times, last year and Prof. Zheng had several books digitized and made available in a digital library.  The authors won a civil law suit with 56,000 Yuan in compensation. One of the books that was pirated: “Knowing the Enemy and Yourself; Winning the Intellectual Property War.”

 

This is but one of several examples.  This year the Intellectual Property Newspaper published a notice that there were pirated version of its newspaper being offered for sale in various localities.  Even a U.S. Embassy website adviising foreigners on how to handle trade problems with China has been copied.

 

There is no honor in pirating books. Lu Xun’s Kung Yiji said it best “Qieshu bu shi toushu” - we know that Lu Xun was being satirical.  Kung Yiji was not a hero.  Taking a book is stealing, stealing the creative works of others.

 

In closing, as we meet today to discuss the important task of legal publishing and translation of legal texts from English into Chinese,  I believe it is important for all of us not merely to focus on the words of the law themselves, but the spirit - to cultivate students and a legal profession which honors its own laws, by promoting respect for intellectual property of our own materials and those of others.