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26 Fordham Intell. Prop. Media & Ent. L.J. 1
Article by Eric Priest*
This Article analyzes whether copyright, which creates private rights in original expression and is therefore a legal tool for restricting the dissemination of information, exacerbates or undercuts state censorship in China’s film industry. Recent scholarship suggests that copyright law reinforces China’s oppressive censorship regime because both copyright and state censorship erect legal barriers around expressive works. The theory that copyright enhances censorship in China, however, overlooks the immense tension between state attempts at information control and market-supported information production made possible by copyright. This Article demonstrates that the Chinese government does not wield unchecked, top-down control over China’s film industry because censorship policy and practice are profoundly influenced by complex interlocking power relationships between the audience, producers, and censoring authorities. These relationships result in a constant dialog between these groups that leads to concessions on all sides. Market-backed private producers meaningfully influence censorship policy because they are key players in this power dynamic with sufficient leverage to counter the censors’ formidable heft. Drawing from political science literature on Chinese economic reform, this Article provides a theoretical basis for arguing that selective enforcement of censorship rules, combined with (or indeed driven by) market forces and economic realities, can lead to meaningful (albeit not absolute) liberalization and reform of the formal rules. The transformative power of copyright and commercialization is limited: it is not a panacea that will fully defang or obliterate censorship policies or trigger democratic reform. Nevertheless, market demands and filmmakers’ need to satisfy those demands provide a counterbalance to state censorship that can, does, and will continue to erode censorship practices and increase expressive diversity in Chinese media.
* Assistant Professor, University of Oregon School of Law. I am grateful to Justin Hughes, Lydia Loren, and Vince Chiappetta for their thoughtful comments on earlier drafts. This Article benefitted from numerous valuable comments and suggestions from participants in the Center for the Protection of Intellectual Property’s Mark Twain Copyright Fellowship Program, participants at the April 2014 Symposium on Copyright and Media Pluralism at the University of Oregon School of Law, and participants at the 2015 Pacific Intellectual Property Scholars Conference. This Article was written with the generous support of the Mark Twain Copyright Fellowship Program at George Mason University School of Law’s Center for the Protection of Intellectual Property. Lastly, I wish to thank Lili “Kevin” Zhan for his excellent research assistance.