Why Intellectual Property Rights In China Don't Come Naturally

I was delighted to receive the learned paper of Charles R. Stone, published in the Marquette Law Review, Vol. 92, p. 199, 2008. It is called 'What Plagiarism Was Not: Some Preliminary Observations on Classical Chinese Attitudes toward what the West Calls Intellectual Property'.

It has 32 pages and I read it in just half an hour. And a splendid half hour it was.

In this paper Charles makes it plausible that the classical Chinese authors expected their readers to be erudite enough to know what and when they quote and how to interpret these often substantial quotes within the rest of the text. By comparing Chinese classical texts with a legal text that includes references to Supreme Court opinions and quotations, Charles gives his readers (especially the ones with a legal education) the chance to actually experience that the process of interpreting a legal text has in a way many similarities with interpreting a Chinese classical text, which is of course only possible if you have had a classical Mandarin education. Charles explains that in such a cultural environment, heavily influenced by Confucianism, Buddhism where the classical texts were made for the initiated, and communism, a different development of looking at intellectual property was inevitable in China.

Gaining power from the dharani

"The reproduction of religious texts is uniquely appealing to Buddhists because it is a tenet of that religion that the copying and distribution of its sutras is a way to receive the blessings of its founder. The Buddha, it is said, once remarked, “Whoever wishes to gain power from the dharani [charms] must write seventy-seven copies and place them in a pagoda.” The underlying “religious motivation is . . . confirmed by the earliest printings of the dharani discovered in Japan and Korea.”"

Fascinating. Thanks Charles.
Using the web as a pagoda here is a chanted version of (one of) the most famous dharani the Lotus Sutra.



Picture by Peter Nijenhuis can be used with the following Creative Commons license.

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Zen And the Art Of Intellectual Property in China

I love that title (remix of perfect book title: Zen and the Art of Motorcycle Maintenance, by Robert Pirsig, which is a remix of the title Zen in the Art of Archery, by Eugen Herrigel who brought Zen to Europe after WOII), and have repeated it like a mantra. All the time I meditated until there was an occasion to use the title. That time has come now that the universe has alligned to this mantra, at last.

The occasion is an interesting article in the Shanghai Daily (one page free the rest paid) and a fine adaptation of the article on Xinhua with the same title (shorter but free) "Commercialism or industrialization is path to truth of Zen" about the world famous Shaolin Monastery turning to intellectual property to spread its ideas.

In the article the author asks whether the ideals of Zen Buddhism can be reconciled with commercialism/industrialization. Good question, my first take would be yes, because "seemingly disjunct or opposing forces are interconnected and interdependent in the natural world, giving rise to each other in turn." Here I would like to limit myself to some words on the three pillars of the Shaolin Monastary: Zen, martial arts and medicines.

Martial arts

Shaolin monks know not only how to use their hands (Plum flower fist, eigh flower fist and don't forget Dragon technique) and feet as lethal weapons. They also know how to protect their intellectual property rights assertively, as early as 1997; see the 2005 IP Dragon article about it here.

Martial arts. The Shaolin monastery tried to protect the incredible Shaolin kungfu style as an intangible cultural heritage with Chinese characteristics already in 2002, which was granted in 2006; see the 2006 IP Dragon article about it, here.

Medicines

China is keen to protect traditional Chinese medicines. My perception of traditional Chinese medicines is that the protection is difficult, since these medicines are highly personalised to each patient. Then again the medicines can be standardised. In 2007 Jia Hepeng wrote for Intellectual Property Watch that China still has problems with protecting traditional Chinese medicines, because of the gap between the patent system and the protection efforts for traditional knowledge, read here.

Zen 禪

Looking at the history of Zen Buddhism one could see this set of beliefs as an example of the benefits and appeals of remix, avant la lettre. It all started with Bodhidharma, an Indian prince, who went into China (teaching a special transmission outside normal Buddhist scripture), where the school of thought radically changed. This procedure happened again when the ideas were taken to Korea, and Japan and also to Vietnam it changed very much because of the influence of the local population. The result is that we now have an Indian version of Zen called Dhyāna, a Vietnamese version called Thiền, a Chinese version called Chán, a Korean version called Seon, and a Japanese version that obviously has become most popular in the West, called Zen and which is often used as a denominator of all these styles. I guess Zen is used in a dilutionary way for a long time.

I am doubtful if we would have such a wealth of branches in Zen Buddhism if the manifestations of Buddhism were protected and enforced by intellectual property rights after the time of the adventurous Bodhidharma, who went north to spread his ideas (Bodhidharma was not really infringing upon the intellectual property rights of Buddhism, even if there were any existent at the time, if he taught a special transmission outside scripture, as is said about him). Is remix the way to enlightenment?

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