The Yang Obeys, but the Yin Ignores: Copyright Law and Speech Suppression in the People's Republic of China

Abstract

Copyright law can either promote or restrict free speech: while copyright preserves economic incentives to create and pub-lish new expression, it also fences off expression from public use. For this reason, the effect of copyright law on speech in a given country depends on the particular manner in which it is under-stood, legislated, and enforced. This Article argues that copyright law in the People's Repub-lic of China (PRC) serves as a tool for speech suppression and censorship. Whereas China has engaged in official censorship for thousands of years, there has historically been little appreciation for proprietary rights in art and literature. Just as China's early twentieth century attempts to recognize copyright overlapped with strict publication controls, the PRC's modern copyright regime embodies the view that copyright is a mechanism for policing speech and media. The decade-long debate that preceded the PRC's first copy-right statute was shaped by misunderstanding, politics, ideology, and historical forces. Scholars and lawmakers widely advocated that Chinese copyright law discriminate based on media content and carefully circumscribe authors' rights. These concerns, intensi-fied by the Tiananmen Square crackdown, bore directly on the t J.D., Duke University School of Law; M.A., East Asian Studies, Duke Uni-versity; B.A., Chinese, Brigham Young University. I would like to thank Jennifer Jenkins for her invaluable guidance, suggestions, and support throughout the re-search and writing process; this Article could not have come to fruition without her help. I also thank Jonathan Ocko, Bai Gao, and Sandeep Vaheesan for their in-sightful criticisms and comments. All translations from Chinese sources are my own.