This month, iCommons' resident copyright expert, Tobias Schonwetter, discusses the antinomy between copyright law and culture in many regions of the world.


'Much of what we took for granted in our system and had grown to assume to be human nature was not nature at all, but culture.'

(Alan Greenspan, former Chairman of the Board of Governors of the Federal Reserve of the United States of America)

Acquire a CD in China and chances are that you have bought an unauthorised copy. According to the latest surveys, approximately 90% of the CDs in China are 'pirated' ' and for that reason it most certainly makes a lot of sense to ask what the underlying cause of this phenomenon is. Is it because people in China cannot afford legally distributed material? This may well be the case, but as an answer it's not good enough - it doesn't explain why unauthorised copying in some Asian countries is so much more widespread than in other (equally poor or even poorer) regions of our world. Are we witnessing a peculiar form of disrespectful behaviour in such cases? Indeed we are - but not in the manner you may think.

I believe that we have to admit that Western cultures do tend to display a disrespectful attitude towards Asian and other cultures. This is not as absurd as it might sound ' especially if you consider that our current copyright system is clearly a Euro-centric concept, as well as being a rather young one. It was only by way of colonisation that this concept started to spread into other regions of the world. In recent years, copyright protection has spread even further, as it was often made obligatory for participation in world trade by means of bilateral or multilateral trade agreements. Hence, its economic might, rather than the common belief in the core principles which makes the concept of copyright a universal one.

Against this backdrop, it is hardly surprising that copyright protection is still somewhat alien and incomprehensible to many people in some regions of the world, essentially because it openly conflicts with many of these people's old traditions and beliefs. The notion of individualism (as well as economic-driven considerations) played a determinative role for the development of copyright protection in Europe and later in the United States of America. However, neither the notion of individualism nor economic considerations have reached the same level of importance in certain other cultures as they have in the Western world.

The situation in China illustrates this problem. Clearly, China has introduced a number of intellectual property laws and regulations since the mid-1990s. Yet unauthorised reproduction remains rampant and it is commonly accepted that lax enforcement of intellectual property rights is to blame. Of course, this argument is one-sided and does not sufficiently explain why in other regions of the world with less protection and even weaker enforcement mechanisms, unauthorised copying is not as prevalent.

In this case, however, the point is the apparent incompatibility of copyright protection and fundamental cultural norms, in China's case, Confucian beliefs. The Confucian doctrine puts emphasis on the importance of sharing intellectual products with society. In fact, copying someone else's work is a high form of flattery and it is considered dishonourable for a learned person to make money by way of writing a book. Admittedly, Confucianism is not the sole reason for widespread copyright infringement and lack of enforcement in this regard. Rather, a multitude of reasons - which are to some extent interdependent - must be considered, such as the stage of economic development China has reached or the existence of a socialist economic system. Without this, it is almost impossible to explain why in other countries with equal or even stronger Confucian roots (namely Korea and Japan) copyright infringement is not as widespread or why unauthorised copying has been equally prevalent at some point in history in Western countries. However, to ignore the antinomy between the law and culture would be negligent.

To some extent, the situation in Muslim communities is comparable with that of Confucian-based societies. Nonetheless, it has to be pointed out that the individual's right to property is recognised here as an absolute right and the shari'a (the body of Islamic law including the Koran) considers property rights to be sacred. Although the shari'a does not specifically mention the protection of intellectual property as such, copyright protection does, in principle, conform with shari'a law. It is generally left to the legislators in Islamic countries to enact laws in this regard. However, one of the most important doctrines within Islam is the concept of 'sharing for the good of all' (or maslaha ' public interest). In light of this, the protection of essential knowledge becomes problematic; resulting in the fact that such knowledge is often not considered as something an individual can own because of the possible prejudicial consequences for the wider community.

In conclusion, the impact of cultural beliefs should not be underestimated. Rather they should be duly considered when dealing with the issue of unauthorised copying. An ever-decreasing minority of the world's population originates from the so-called Western world. For that reason, I am sometimes doubtful as to whether or not we have chosen the right approach by trying to harmonise all the copyright laws in the world. It was predominantly economic reasoning that made a number of countries accede to international copyright treaties in the first place. Whether the people in some of these countries can accept and consequently follow the rules is a very different question though. I have repeatedly asked myself whether it would not have been better to choose the path private international law often follows ' to enter into multilateral treaties that simply determine what national law is applicable in this or that situation ' yet leaving the material provisions of each country unaffected. The realisation of this suggestion would without any doubt cause some major problems. However, these might be problems we should try to address and solve rather than just imposing the Western concept of protection of works on other (and in some instances much older) cultures by means of economic pressure.

tags: other copyright western piracy china policy-law

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