Integrating the Cultural Diversity into the Welfare Theory: What We Should Acknowledge in the Debates

IP & Creative Industry Series:

Integrating the Cultural Diversity into the Welfare Theory: What We Should Acknowledge in the Debates

Executive Summary

Other than listing out the “advantages” and “disadvantages” of each school of the IP theories, this essay tries to apply the theories into two controversial topics: (a) traditional knowledge and (b) copyright reform.

This essay argues that, while each of the four mainstream IP theories has their “functions” in policy forming, the welfare theory brings a platform for stakeholders in different sectors and countries. However, without appreciating the diversity of culture and the variety of people’s demands to the good life, it would be hard to reach consensus on basic aspects of the IP law reform, not to say building a legal system that is adaptive to the fast-developing technologies.

The next section of this essay addresses the hype in the protection of “traditional knowledge”. I will argue that, while the “fairness” theory and the “personal hood” are used to support their arguments, parties of debates appear to cite these theories with utilitarian purposes. The platform of conversation was actually built on the base of welfare theory.

The third section discusses the copyright reform by reviewing the history of Chinese copyright laws. I will argue that he driving force of copyright reform in developing countries are utilitarian purposes. Personhood and fairness theories are used by policy makers to decorate their arguments. Social welfare integrated with cultural perspectives is indeed the driving force of legal reforms.

Debates on Traditional Knowledge

Among others, debates relating to traditional knowledge focus on two aspects of sub-topics. One is about the protection or using of traditional culture heritages in contemporary arts or entertainment contents; the other focuses on using certain community’s knowledge in medical or other scientific developments.

To support their arguments in “creating new laws to protect” the indigenous communities from free use of traditional knowledge by current content industry and pharmaceutical industry, people cite theories from different schools of IP theories. For examples:

  • using labor-desert theory to argue that the culture heritages should be owned by the original group of people and their descendants;
  • using distributive justice theory to argue that enabling indigenous people with certain IP protection to their cultural expressions is a mechanism of redistribution of wealth;
  • using personhood theory to argue that because traditional knowledge manifests the personalities of their creators, the IP laws should admit the interest of the descendant’s of the creators.
  • On the other hand, people against the new exceptions and laws for the traditional knowledge also cites various theories purposely (if not randomly). For examples,
  • using the “public domain” theory (which derives from the Lockean theory) to argue that traditional knowledge protection will “encroach the public domain” and thus prevents freedom of idea and discourage the innovation;
  • using personhood theory to argue that, because all persons must be enabled to express themselves artistically, the low should recognize increasing dependence of creativity upon re-use of existing knowledge;
  • using the welfare theory to argue that, because it is hard to identify the ownership of traditional culture, creating new laws for them will not provide welfare to the whole society; and
  • using the autonomy theory under the culture school to argue that people should not be bound to choose a particular traditional culture.

By observing the above arguments, one may find that arguers on both sides appear to flip their positions on various IP theories and cite “useful” ones to support their arguments respectively. In particular, a very interesting phenomenon is that the “public domain” theory, whose arguers are generally opposing restriction of the public use of the traditional knowledge, is controversially preferred by developing countries in their arguments in favor of the exceptional IP rules for the traditional knowledge. In my view, this flipping of positions per se shows that the arguers are largely base their arguments with utilitarianism.

Then, if people are indeed mostly relying on the welfare theory, why different people have conflicting views on the protection/restriction/exception of the traditional knowledge? The answer can be found from the culture version the IP theory. Different countries have different interest given their regime, geographic location, and history. Within one country, a different group of people also have different interest as well as the preference for good life. Such matrix of diversity makes debates on the traditional knowledge complicated.

Copyright Reform

Similar to the debates on traditional knowledge, the discussion (and legislative practice in many countries) for copyright reform is also complicated due to diversity of interest and the different culture traditions, but on its surface, arguers tend to not acknowledge this reason but like to utilize the social welfare theory (as a tool but not a guiding philosophy), the fairness theory and the personhood theory to justify their positions.

This leads to flips among theories too. For example in the recent discussion on amendments to the PRC Copyright Law, arguers for a stronger power of collective management societies cite the theory of social welfare to support their points. In the meantime, the same group of people may utilize the personhood theory to support the right of lending and the right of withdrawing (with an updated version of work). The fairness theory is particularly popular in arguing that the “remuneration” right is more important than the right to prohibit public from using a work (i.e. the injunctive reliefs).

There are researches showing that even in European countries, incentive theory, instead of the “personhood rights”, is the main power driving the creation and development of copyright laws. Respect to moral rights is largely a tradition derived from the logic of the continental civil acts. In other words, traditions and cultural factors are more important in forming the social views on copyright protection and the scope of fair use.

This is also the case in China, historical evidence shows that Chinese culture does not have a tradition of “property” that stresses the prohibition rights. In the meantime, providing high remunerations to the authors (either by the government or private users) is a continuous tradition. This explains why the injunctive reliefs are less supported in Chinese courts and why China has developed remuneration rules even during the years of 1960s-1970s. This also explains why in the regulations on protection of the right of communication through information networks, the law makers have provided generous fair use exceptions to use of works for remote education and for poor regions.

Conclusion

By observing the debates in traditional knowledge and the driving force in copyright reform, this essay concludes that the social welfare theory derived from utilitarianism is the actual driving power in the legal reform.  In addition, diversity of culture and tradition brings different views on the function of the IP regime.  Acknowledging these two points will bring all the arguers to the same table and thus enable us to find the essence of debates more efficiently.

Why IP Lawyers Should be Involved in Business Strategic Decision-Making

keep-calm-and-call-your-ip-lawyer-3Just a Note: Recently, I am preparing for teaching a course for entrepreneurs and executive officers under the “Management of Cultural and Creative Business” postgraduate program held by the HKU SPACE. In addition, I myself have sat in a course of “Advanced Intellectual Property Law” led by William Fisher (Terry), the Wilmer Hale Professor of Intellectual Property Law at Harvard Law School.  These non-profit work brought me, partially, back to academic life, which is inspiring and interesting. However, after seven years full-time practice as an IP counsel, I see that my way of thinking has been more practical and industrial-oriented.

The following essay (after some edits before posting) was indeed a quick writing completed within 2.5 hours as a part of the answer book for the final exam of the aforesaid Advanced IP Law course.  Therefore, the first and biggest thank will be given to Terry, for his always enthusiastic seminars and informative contents therein.  This essay, along with the earlier blog posts and forthcoming ones, will become a series of my thoughts on IP & Creative Industry. And hopefully, it can bring something new to both academics and practitioners.

Continue reading “Why IP Lawyers Should be Involved in Business Strategic Decision-Making”

涉外定牌加工在商标法中的法律性质——兼论商标侵权构成的判定

【作者】张伟君 魏立舟 赵勇
【出处】《知识产权》2014年第2期
【中文摘要】涉外定牌加工中使用他人注册商标的行为原则上属于构成侵犯商标专用权的行为。涉外定牌加工的产品不在我国境内销售,不会导致相关公众混淆,但是,“混淆可能”并不是构成商标侵权的必要条件;且在相同商品上使用相同商标的情况下,所谓的“推定混淆”是绝对推定,不能通过相关证据来推翻。涉外定牌加工产品虽然用于出口而不在本国销售,但并不属于过境货物,因此定牌加工仍属于具有营利性质的商业活动的范畴。
【中文关键字】侵犯商标专用权;涉外定牌加工;混淆可能;商业活动中的使用;来源识别功能