Chinese government and software copyright: manipulating the boundaries between public and private spheres

Abstract

China’s entry into the global networked society has raised considerable debate over what benefits are derived from the development and expansion of information and communication technologies (ICTs) locally and globally. From a global perspective, such connectivity has created the capacity for China to communicate and share information through new developments in ICTs, particularly those related to the Internet. However, such developments raise two sets of hotly debated issues critical to the credibility and stability of China’s membership to the global networked society: access and civil liberties. According to Nicol (2003), access deals with making it possible for everyone to use the Internet and other media. Meanwhile, civil liberties include “human rights such as freedom of expression, the right to privacy, the right to communicate, and intellectual property rights” (p. 11). Without diminishing the critical issues over human rights, the major concern of the international business community has been China’s failure to deal adequately with intellectual property violations. Since the mid-1990s, western countries, led by the United States, have directed criticism at China’s infringement of intellectual property rights. Even under the World Trade Organization (WTO) Agreement, which provides more transparency through laws, regulations, administrative rules and judicial decisions on intellectual property protection (Panitchpakdi & Clifford, 2002), countries have criticized China’s inability to adequately meet the standards set by international laws on intellectual property despite efforts by the Beijing government. To address the issue, China was listed in 2005 as a priority country under the “Special 301” provision of the United States Trade Act of 1974. This provision identifies foreign countries that deny adequate and effective protection of intellectual property or fair an equitable market access for United States’ business or individuals that rely on intellectual property protection (United States Trade Representative, 2005). Responding to international pressure, China has attempted to make dramatic and substantive changes in legislative, regulations and policymaking processes relating to intellectual property rights (IPR). However, Mertha (2005) argues that the Chinese government faces internal pressures that constrain IPR protection. For example, China, as a developing country, wants to increase the diffusion of new technologies, innovation and information to close the widening gap between China and the developed world (Mertha, 2005; Stein & Sinha, 2002). Meanwhile, patriotism and traditional Confucian values add to normative responses to uncontrolled private ownership, including the limited-term monopoly conferred by IPR (Mertha, 2005; Yu, 2001). This article explores the Chinese government’s strategies to deal with external and internal challenges surrounding software copyright. We focus our analysis specifically on how the government addresses public-private dimensions of software copyright in economics and politics to support these multiple and often competing objectives. To do this, we employ a triadic framework of public-private distinction to analyze the state’s strategies to manage external and internal challenges emerging from global software enforcement.