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.


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”

Be As Smart As A Puppy – Fast Readings for AI

Kate Crawford & Ryan Calo, There is a blind spot in AI research , Nature

We believe that a fourth approach is needed. A practical and broadly applicable social-systems analysis thinks through all the possible effects of AI systems on all parties. It also engages with social impacts at every stage — conception, design, deployment and regulation.

researchers … need to start investigating how differences in communities’ access to information, wealth and basic services shape the data that AI systems train on.

Domingos, P. The Master Algorithm: How the Quest for the Ultimate Learning Machine Will Remake Our World (Allen Lane, 2015):

“People worry that computers will get too smart and take over the world, but the real problem is that they’re too stupid and they’ve already taken over the world.”

Is Artificial Intelligence Permanently Inscrutable?

The European Union recently proposed to establish a “right to explanation,” which allows citizens to demand transparency for algorithmic decisions.

… Even if it were possible to impose this kind of interpretability, it may not always be desirable. The requirement for interpretability can be seen as another set of constraints, preventing a model from a “pure” solution that pays attention only to the input and output data it is given, and potentially reducing accuracy.


… Yosinski, for example, says he is trying to understand deep networks “in the way we understand animals, or maybe even humans.”

… Thompson was surprised, however, to discover that the circuit used fewer components than any human engineer would have used—including several that were not physically connected to the rest, and yet were somehow still necessary for the circuit to work properly.

He took to dissecting the circuit. After several experiments, he learned that its success exploited subtle electromagnetic interference between adjacent components. The disconnected elements influenced the circuit by causing small fluctuations in local electrical fields. Human engineers usually guard against these interactions, because they are unpredictable. Sure enough, when Thompson copied the same circuit layout to another batch of components—or even changed the ambient temperature—it failed completely.

The circuit exhibited a hallmark feature of trained machines: They are as compact and simplified as they can be, exquisitely well suited to their environment—and ill-adapted to any other. They pick up on patterns invisible to their engineers; but can’t know which of those patterns exist nowhere else. Machine learning researchers go to great lengths to avoid this phenomenon, called “overfitting,” but as these algorithms are used in more and more dynamic situations, their brittleness will inevitably be exposed…

Be As Smart As A Puppy 

Non-human actors in our home, that we’ve selected personally and culturally. Designed and constructed but not finished. Learning and bonding. That intelligence can look as alien as staring into the eye of a bird (ever done that? Brrr.) or as warm as looking into the face of a puppy. New nature.

The smart bots are coming and this one is brilliant

The way Mortensen sees it, there will be two classes of digital assistants, the broad and the specific, or as it he calls it, “horizontal and vertical AI.”

The next hot job in Silicon Valley is for poets

As tech behemoths and a wave of start-ups double down on virtual assistants that can chat with human beings, writing for AI is becoming a hot job in Silicon Valley.

Why Do I Have to Call This App ‘Julie’?

And why does artificial intelligence need a gender at all?

Stanford AI 100 Report 2016

Contrary to the more fantastic predictions for AI in the popular press, the Study Panel found no cause for concern that AI is an imminent threat to humankind. No machines with self-sustaining long-term goals and intent have been developed, nor are they likely to be developed in the near future. Instead, increasingly useful applications of AI, with potentially profound positive impacts on our society and economy are likely to emerge between now and 2030, the period this report considers. At the same time, many of these developments will spur disruptions in Substantial increases in the future uses of AI applications, including more self-driving cars, healthcare diagnostics and targeted treatment, and physical assistance for elder care can be expected. 5 how human labor is augmented or replaced by AI, creating new challenges for the economy and society more broadly. Application design and policy decisions made in the near term are likely to have long-lasting influences on the nature and directions of such developments, making it important for AI researchers, developers, social scientists, and policymakers to balance the imperative to innovate with mechanisms to ensure that AI’s economic and social benefits are broadly shared across society. If society approaches these technologies primarily with fear and suspicion, missteps that slow AI’s development or drive it underground will result, impeding important work on ensuring the safety and reliability of AI technologies. On the other hand, if society approaches AI with a more open mind, the technologies emerging from the field could profoundly transform society for the better in the coming decades.

Tech TalkAt WorkTech Careers Computer Vision Leader Fei-Fei Li on Why AI Needs Diversity

“No matter what data we look at today, whether it’s from universities or companies, we lack diversity,”

References on Creative Industry

Some references on Creative Industry

CHEN, Y.C.: Hong Kong Creative Industries & Cross-Border Production (PPT)

Gino Yu: Importance of IP to Hong Kong Creative Industry (PPT)

Christian W. Handke: Defining creative industries by comparing the creation of novelty (Doc)

Some references on Creative Industry

CHEN, Y.C.: Hong Kong Creative Industries & Cross-Border Production (PPT)

Gino Yu: Importance of IP to Hong Kong Creative Industry (PPT)

Christian W. Handke: Defining creative industries by comparing the creation of novelty (Doc)

Terry Flew: Creative Commons and the Creative Industries (PDF)

Creative Industry Law Group

Lucy Montgomery: Troubled waters for the development of China’s film industry (PDF)

Ned Rossiter: Report: Creative Labour and the Role of Intellectual Property

M. Keane: Innovation and creativity in digital content industries in Australia and China: policy and practice (PDF)

Andreaux, J.-P.   Durand, A.   Furon, T.   Diehl, E.: Copy protection system for digital home networks (PDF)

SJ Tepper: Creative Assets and the Changing Economy (PDF)