Cultural Control and Globalization in Asia

Copyright, Piracy and Cinema

Laikwan Pang

• Publisher: Routledge
• Year: 2007
• ISBN:
  9781134263721
• Edition: 1
• Topic: History
• Subtopic: Asian History
• Index: History

This is a succint and well-written book introducing a truly interdisciplinary approach to the study of copyright and related issues in contemporary popular culture in relation to the current development of Asian cinema, and questions how copyright is appropriated to regulate culture. It examines the many meanings and practices pertaining to "copying" in cinema, demonstrating the dynamics between globalization's desire for cultural control and cinema's own resistance to such manipulation.

Focusing on the cinema of China, Taiwan and Hong Kong, and film 'piracy' in these countries, the book argues that ideas of cultural ownership and copyright are not as clear-cut as they may at first seem, and that copyright is used as a means through which cultural control is exercised by the cultural big business of the dominant power.

1
Expressions, originality, and fixation

While copyright is arguably the single most powerful legal discourse governing commercial cultural activities around the globe, many of us studying contemporary culture are not familiar with its basic vocabulary and principles. This chapter is an overview of copyright fundamentals for the general reader, and it also clarifies specific concepts that are central to the arguments presented in later chapters. As a basic introduction, this chapter does not detail the history and related legal arguments of the entire copyright system. Instead, it focuses on the relevance of copyright discourse to the study of contemporary culture, and my illustrations of basic copyright concepts are drawn chiefly from legal-studies textbooks or handbooks (e.g. Johnston 1978; Miller and Davis 1983; Strong 1993; Fishman 1996; Elias 1999; J. Cohen 2002; McJohn 2003), selected academic writings, and on-line reference like the Wikipedia encyclopedia.¹ I want to demonstrate in this chapter how copyright, like many other contemporary legal discourses, is conceptualized and employed in the present commercial environment. From a cultural studies perspective, I find copyright to be caught up in its conflicting missions of protecting culture and maximizing profit: copyright becomes a platform on which different vested parties negotiate their interests, making it a highly unstable discourse.

TRIPs and the global IP system

The following account is meant to be an introduction to a global copyright regime, which, not surprisingly, revolves around US law, a legal system increasingly normative worldwide. Before elaborating on this copyright Empire, I wish to situate it in a larger global context in order to explain the connection between copyright and globalization. Copyright is one component of IPR law, which is arguably the most powerful and influential legal discourse in the new information economy. Most countries develop their IPR laws according to two sets of international conventions: the TRIPs Agreement and the World Intellectual Property Organization (WIPO) Copyright Treaty.

The Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (TRIPs Agreement) was added to the GATT at the end of the Uruguay Round of trade negotiations in 1994. TRIPs is widely quoted because it is probably the single most important international agreement pertinent to cultural globalization. After the Uruguay Round, GATT became the basis of the WTO. The ratification of TRIPs is a requirement for WTO membership; any country desiring easy access to the numerous international markets opened by the WTO must enact the very strict IPR laws mandated by TRIPs. TRIPs has become the common ground on which all nations base their own IPR laws. The UN also has its own body devoted to regulating and overseeing the global circulation of IP: the WIPO, which was set up in 1883 to ensure the worldwide protection of intellectual properties. But WIPO has been criticized by developed countries as slanting towards the interests of developing countries, which partly explains the development of WTO (Yang 2003:77–8). The WIPO Copyright Treaty, adopted by the UN in 1996, stipulates additional copyright protections for the information age, specifically the protection of computer programs and databases.

The most powerful dimension of TRIPs and WIPO is arguably their international applicability. Both treaties are largely based on the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) – the first international copyright treaty.² The Berne Convention was developed at the instigation of such notables like Victor Hugo and was first adopted in 1886 (Starr 2004:149).³ Prior to the adoption of the Berne Convention, nations often refused to recognize copyrights held by foreign nationals, ostensibly to protect the best interests of their own people. But protection under the Berne Convention, and its revisions, is extended to works by nationals of any country on the sole condition that the first publication takes place in a Berne country: no registration is required ( Johnston 1978:226). Berne for the first time introduced copyright to an international scope; TRIPs and WIPO further bring the Berne Convention under the aegis of the WTO and the UN.

Under the global network of legal protection woven by TRIPs and WIPO, intellectual properties have become the most protected and valued assets. There are four components to IPR law: patents, trademarks, trade secrets, and copyright. A patent is granted to give the patentee – who has developed a new, useful, and nonobvious invention⁴ – the right to make, use, or sell the invention to the absolute exclusion of others for the duration of the patent. The principle of a patent is to reward the investment of time, money, and effort associated with research. The limited term of a patent also encourages quick commercialization of inventions, thereby making them available to the public sooner. However, patents also often create unfair competition (Sell 2003:64–7). The most controversial patent cases often involve agro-chemicals or pharmaceuticals, because they involve both astronomical profits for the biotechnology sector and the survival rights of citizens of developing countries (Curti 2001).

The original function of trademark was to indicate the origin of goods by identifying the craftsmen who produced them. As trademark might confer marketing advantage, the registration of trademark can protect the owner against the use of similar marks and any resultant confusion. A trademark may include any original combination of numbers, letters or other symbols, colors, or musical tones, and trademark law can be used to govern the advertising and product branding of a wide range of commercial activities. A trade secret is information that is secret, or is not general industry knowledge – such as the formula for Coca-Cola – which gives its owner an advantage over competitors. A trade secret, therefore, must have economic value.

These three types of IPR law relate specifically to manufactured goods, whereas copyright is much more abstract, as it covers the realm of cultural commodities. Copyright, as its name suggests, refers to the exclusive right of the author or copyright holder to make copies of the work; it also allows them control over derivative works. While different national laws might define copyrighted works in slightly different ways, in general, to secure copyright protection, the work must be “an original work of authorship fixated in a tangible medium of expression” (McJohn 2003:10).⁵ It means that a copyrighted work must be an expression instead of simply an idea, original and authored, and fixated in a tangible medium. These three areas cover almost all aspects of a cultural work – from the content of the work to its creation and publication, and they also demonstrate how far copyright’s control can, or cannot, reach. The following sections illustrate the basic logic of these three criteria and their problems, and juxtapose legal concepts with more familiar concepts in cultural studies.

Ideas vs expressions

The major distinction between copyright and the other three types of IPR law lies in the concept of expression. While the other three types of law protect ideas, copyright protects expressions only – copyright’s realm is the chaotic realm of culture. As Paul Goldstein states, “copyrights are much less fearsome than patents, which do protect ideas” (2003:15). In fact, contemporary copyright debates and legislation often deal with the idea–expression dichotomy, which both legitimizes and limits the scope of copyright’s cultural control. We can copy ideas but not the expression of them: while expression refers to the creative rendering of ideas, ideas cannot be privatized and owned by individuals; instead, they belong to the entire human race. In other words, the separation between idea and expression in copyright discourse is based on an exalted humanist ideal, which asserts that no one can claim the ownership of, and therefore economically exploit, a human thought, opinion, or concept – whereas human expressions are products of individual creativity, and should be protected and promoted.

This respect for public access to ideas while preventing the exploitation of one’s creative expressions has two important implications for the general betterment of human culture. The first is that people’s access to cultural products ensures the continual development of culture, which is achieved through the constant revisiting and re-examination of common universal ideas across generations and cultures. The second one is that by guarding the economic and artistic interests of individual creators, these individuals are given incentive to continue publishing and distributing new works.

In general, the dynamics of specific ideas rendered in infinite possibilities of expression mark the continuity and distinctness of human cultures. On the one hand, the sharing of ideas allows readers and viewers to understand cultural products made in historical moments and geographical spaces different from theirs, as the work and readers are connected by commonly understood ideas, which are supposedly historically and culturally transcendental. On the other hand, the constant renewal of expression encourages creativity and propels the progress of human culture. Taken together, the constant rejuvenation of a set of ideas through new expressions allows cultural identities and individual authorships to differentiate against each other, while facilitating transcultural and transhistorical understanding. Many stories celebrate romantic love, but its expression in William Shakespeare’s Romeo and Juliet differs from that in Cao Xueqin’s The Dream of the Red Chamber in numerous ways, ranging from how lovers perform their suicides to how affections are communicated through poetry. But in theory, once knowledge of these expressive traditions is acquired, people of different cultures and different times can appreciate them both as masterpieces.

One problem immediately arises: How can one differentiate idea from expression? We will return to this idea–expression dichotomy throughout the book; here I outline two major practical and theoretical problems this idea–expression dichotomy faces today: one is economic, the other stylistic.

First of all, the principle that ideas are shared by all and should be accessible to all runs counter to today’s late-capitalist economy, as new ideas are increasingly capitalized, aestheticized, and protected in order to generate profit. Commodities are generally fetishized by their “newness,” and the competition for new ideas and expressions is particularly evident in the areas of advertising and Research and Development. In fact, the development of Western modernity can be seen as a history of exhibition and advertising; a commodity acquires “life” through new modes of display (Buck-Morss 1989; Richards 1991). Ideas and expressions become particularly important and non-differentiable in the area of product packaging and product promotion, as it is through a combination of the two that “life” is injected into commodities, and human desires – which are insatiable – can be triggered and fulfilled abstractedly through the fetishization of the “new.”

The idea–expression dichotomy is most difficult to substantiate in the area where culture meets the information sector. In fact, a core foundation of the information age is IPR law, which establishes property rights and protects revenues generated from intangible commodities like expression and entertainment. The information-age market no longer deals in material commodities but in non-material ones like information and ideas. But the protection of information under copyright law has been highly controversial. The famous Feist Publications v. Rural Telephone Service case (1991) shows how the court system excludes certain information, or the organization of information, from the terrain of cultural expressions protected by copyright. To summarize the case: in 1987, a federal district court in Kansas, US, held that a white-page directory was entitled to copyright protection against a competing directory that reprinted many of the same names and telephone numbers, because the telephone company had spent time and money collecting those names and numbers. But four years later, the US Supreme Court overturned the lower court’s decision, stating that there is nothing remotely creative about arranging names alphabetically in a telephone directory; therefore, the directory is not copyrightable.

In fact, the US Supreme Court decision to rule against the protection of databases is based on sound social considerations: the legal protection of databases can easily create a knowledge monopoly, thereby severely limiting the ways people can access and use information. This case is controversial because, by extension, the Supreme Court ruled against the interests of the new information industry, which invests lavishly on packaging and organizing information in ways that are appealing to customers and user-friendly. Seemingly, it is not difficult to differentiate information and databases from cultural expression. Information is objective and factual, and provides the basis for knowledge; therefore, it belongs to the social domain. Expressions are subjective and creative, and provide entertainment or invite intellectual reflections, and therefore lie in the cultural domain. If copyright is meant to protect creative expression only, social facts and data should not be copyrightable. However, as the term “infotainment” suggests, information and entertainment increasingly rely on each other to raise their market values. Just as TV news programs are packaged as entertainment, other knowledge industries also need to present their products in an enjoyable manner. Today it would be difficult to find any form of information not elaborately designed and organized “expressively.” The protection of information and databases is of utmost importance to the industries concerned.

In fact, today’s cultural productions are themselves becoming too complicated to be properly governed by basic copyright vocabulary. One example is that of the virtual human – the digital clone of a living individual, such as actor Robert Patrick’s liquid metal cyborg in Terminator 2: Judgment Day (dir. James Cameron, 1991). As long as the actor is not the creator of the digital clone, copyright laws only minimally protect the actor, who sometimes is extremely powerless to deal with exploitation of his/her clone; he or she must resort to database protection to provide legal protection of his or her images (Beard 2001). As a result of such rapid development of the digital culture and information society, industries and individuals have pushed new legislation to protect ideas and databases, resulting in the rapid expansion and overlapping of IPR laws. The European Union has already enacted laws to protect databases (Picker and Rual 2001), and the US Congress is also moving toward similar legislation, such as the 2003 “Database and Collections of Information Misappropriation Act” (Petty 2004). Many of these laws are not copyright laws, as they fundamentally challenge copyright’s exclusive concerns in protecting creative expression. But information protection is clearly a matter of intangible materials, and no other domain of IPR law deals with it properly. Cases of non-expression protection, confusingly, often involve a complex web of trade-secret laws, unfair-competition laws, contractual obligations, and industry traditions, only to avoid the copyright law.

The use of other IPR laws to govern copyright issues reveals copyright’s limits. By emphasizing the right of the public to access ideas, copyright prevents the entertainment and information industries from monopolizing culture; however, “culture” is one of the most profitable arenas in the new economy, and it constantly invites interested parties to trespass on its domain. This has created the confusing legal enviornment in which the basic idea–expression dichotomy of copyright remains unchallenged, while ideas can be protected as commercial property. In fact, one of the reasons for the very rapid and complex expansion of the IPR legal regime is due to copyright’s explicit protection of creative expression only, so that negotiators of the culture industry need to promote other IPR laws to cover obvious loopholes. The rationale behind these legal developments is largely economic, explaining some of the controversies created around copyright issues that should be culturally based. The increasing reliance on other laws to tackle copyright issues only demonstrates the powerful internal contradictions within legal discourse.

In terms of form, the distinction between idea and expression is also highly problematic. Theoretically, no pure “ideas” can be communicated without some “expressive” form. When we want to explore the concept of “love,” the idea must be conveyed in some formal vehicle, be it prose, poetry, music, or drama. This dilemma is particularly evident and problematic for those contemporary works whose playfulness of style is more important than the central ideas expressed in them. This is most clearly seen in the case of rap songs. On the one hand, music, more than any other vehicle of culture, collapses the separation between idea and expression. How can a musical “idea” be separable from musical “expression,” if the “idea” in music is always abstractly constructed by learned cultural understanding of specific musical forms? On the other hand, the hip-hop tradition distinguishes itself from dominant Western musical forms by sampling, parodying, and remaking previously released music instead of producing original “creations,” as such, of their own. Copyrig...