It seems you can’t look at the news these days without the word “China” being in a headline. Will a Biden Administration be as tough on China as Trump? How will Justin Trudeau deal with the continued detention of Canadian citizens in China? What will Australia do about new Chinese trade retaliation? How will China’s actions in Hong Kong affect UK-China relations?
Whether it is these issues or accusations of cyber or research theft, planning to plant a “Trojan Horse” inside the critical telecoms infrastructure in the West, or hijacking intellectual property (IP) through forced knowledge transfer or just plain copying, China is getting lots of (negative) coverage. When it comes to IP, it is a popular view that China has an ingrained copycat culture, based on intellectual property free-riding, copying and otherwise appropriating brand-names, pirating copyrighted content and even stealing patents. The “West”, so the argument goes, is much more respectful of intellectual property rights (IPR) and is therefore more original and more innovative. There are no doubt elements of truth in these generalizations, as indeed there usually are in such assumptions, but how valid are they? There is plenty of anecdotal evidence to support the copycat theory; lack of innovation perhaps not so much.
Recently I came across an interesting book recommended by a friend, Bianca Bosker’s, Original Copies: Architectural Mimicry in Contemporary China,which seems relevant to this debate. Is this “mimicry” yet another example of China’s penchant for copying, or does it rather demonstrate that inspiration can be taken from many sources?
The book is not new, having been published in 2013, but I just stumbled across it. As reported by the BBC at the time, in a marketing ploy Chinese property developers came up with a new promotional device; make their custom designed communities look just like a town from somewhere else in the world. Thus, “Thames Town”, located in a suburb of Shanghai, has English pubs, a statue of Winston Churchill, red phone booths, an English-style cathedral, half-timbered buildings, and security guards dressed up in outfits that are probably supposed to resemble the guards at Buckingham Palace. What it doesn’t have, at least according to fairly recent reports, is people. There are places in China that recreate the canals of Venice, the chateaux of Versailles, the Eiffel Tower, a Scandinavian village, and so on. It’s a little bit like having the Epcot Center dropped down on the edge of town, but with no ticket entrance and closing time.
In a 2013 interview about her book, Bosker opined on what drives this mimicry;
“China, at least traditionally, has viewed copying with far greater nuance and tolerance than we have in the West. This perspective has helped create a copy-friendly climate where knockoff White Houses and Monet-manufacturing centers can flourish. In the United States…copycats are seen as cheats. Yet in China, where there’s a long tradition of replicating everything from architecture and artwork to natural landscapes, copying isn’t viewed with such hostility. Traditionally, people saw there as being many distinct types of copies, each with certain merits and purposes. Being able to copy well could actually be a sign of one’s skill or ability — a good copier would be celebrated as a talent, not a thief, and a well-done replica could be a testament to achievement.”
Sounds like an endorsement for counterfeiters!
China is no stranger to copying, as this example shows. It has been argued that the penchant for copying is culture-based, relating to Confucian culture where knowledge and education were commodities to be “shared”. While there may be some loose connection to Confucian values, much of the current IP rip-offs in China are driven purely by commercial advantage, or greed by another name. In a recent blog, Why is Piracy so Common in China? Confucian Cultural Traditions or Just Plain Commercial Advantage? (A Historical Perspective)I examined this question using the example of Chinese publishing houses in the early 20th century in Shanghai. At that time, Chinese copyright laws were basically non-existent or at least non-operative but the Shanghai publishers did not let any vague concept of Confucian values get in their way when it came to self-policing of copyright infringement. Printing and publishing were regulated by their guild and discipline was enforced on those who reproduced the works of guild members without permission. Of course foreign publishing houses were not admitted to the guild so pirating their works was fair game!
Other examples of copying and free riding are found in the area of trademarks. China is awash in knock-offs from fake watches and luggage to auto parts and medicines. USTR’s annual Special 301 report on foreign IP practices always has a long chapter on Chinese transgressions. The current edition is no exception with the report noting that; “China continues to be the world’s leading source of counterfeit and pirated goods, reflecting its failure to take decisive action to curb the widespread manufacture, domestic sale, and export of counterfeit goods.” This widespread counterfeit problem has shifted from largely outdoor markets (although still a problem) to online markets, actually compounding the problem by expanding the reach of fake goods to consumers outside China.
Apart from counterfeiting, use of confusingly similar trademark names is also a problem. In a well-known case a few years ago, Starbucks successfully sued a Chinese coffee chain that was using a very similar logo and a Chinese translation of the Starbucks name that was confusingly similar. The case was one of the first where a western brand was successful in a Chinese court, but it seems to have been the exception rather than the rule. I once asked a Chinese friend why Chinese companies didn’t just invest in promoting their own brand image (as a few have done), instead of confusing consumers by pretending to be something else. His answer was revealing to me. He said that a company or product copying another through a similar mark was not trying to fool the consumer; rather the message was “our product is just like and just as good as Brand X” (and probably a lot cheaper). This is a classic advertising free-riding technique. In the West however, the tactic is for the new product to compare itself favourably to Brand X, using the reputation of Brand X to attract consumers to the new, competing product.
So are the Chinese a nation and culture of copycats, unable to innovate without copying either illicitly or openly? That characterization seems hard to square with the contribution that China has historically made in the area of inventions, including paper-making, movable type, gunpowder, the compass, silk, umbrellas, iron-smelting, and porcelain. Oh, and I forgot golf. Aha, you say, but that was all a long time ago. What have they invented lately? Actually, quite a lot. China is far ahead of most western countries in terms of e-commerce and mobile payments and is competitive if not leading in areas such as AI, 5G, biotech and solar energy. While some parts of the Chinese business ecosystem are content to sit back and copy–or in some cases steal–technology, in other areas cutting edge research is putting China at the forefront of technology.
But back to architectural mimicry and what it proves, or does not prove. Copying of architectural styles is hardly something new. In the 19th century many North American cities adopted various European architectural styles, from neoclassical Greek and Roman (think the US Capitol building and state and provincial legislatures across North America) to French Third Empire to Victorian Gothic. We have transplanted Italian gardens, Chinese classical gardens, Germanic castles and French chateaux in North America. We even have an original London Bridge. And then there is Las Vegas, with its Eiffel Tower, Venice and its canals, and Luxor with the Sphinx and pyramids (the real pyramids and Sphinx are over 500 kilometers from Luxor but, hey, why sweat the details?). So copying famous architectural features is not just a Chinese phenomenon, but the cloning of an entire community to create a “Truman Show”-like environment certainly takes mimicry to a new level.
While copying copyrighted architectural designs could get you in trouble, as I wrote about in a blog posting on alleged architectural design infringement in Toronto (“So You Admire Your Neighbour’s House: Best Not to Copy the Design”), Monsieur Eiffel or his heirs are not going to be suing anyone in China, or Las Vegas either for that matter. He passed away in 1923 and all designs and reproductions of his famous tower entered the public domain in 1993, seventy years after his death in accordance with EU copyright law. Thus it is perfectly legal to photograph, copy and sell reproductions of the Eiffel Tower. As an aside, I would note that in a quirk of copyright law, it is a potential copyright infringement to take photos of the tower at night since the night-time light show was added only in 1985 and still falls under copyright protection. As explained in this article, “it’s illegal to share, sell, or publish photos and videos of the night-lit Eiffel Tower without prior permission from the Société d’Exploitation de la Tour Eiffel.” That said, owing to the practicality of enforcement, no case of infringement of this right has ever ended up in court, but if a commercial publisher were to infringe the Societé’s copyright, I can’t predict what would happen.
Returning to the original question, does China have a copycat culture, or at least more of a copycat culture than in the West, the answer depends on your perspective. There is lots of copying in China, some legal like “Thames Town” and some infringing. There is also a lot of innovation and domestic R&D, and a historical tradition of invention to build on. The West does not have completely clean hands either when it comes to copying. The case of the copyright wars of the 19th century, where US publishers routinely “pirated” and reprinted without authorization British writers is often cited as an example of how attitudes to copying evolved in the West, and will change in China. In another recent blog, I examined this historical question. US, British (and Canadian) publishers pirated each other on a regular basis, but at the time this was all perfectly legal as copyright protection extended only to works published domestically. So technically it wasn’t piracy.
Respect for intellectual property (IP) in all its dimensions—patents, copyright, trade secrets, designs, trademarks—is a foundation stone of innovation and creativity. However, within the framework of IP there is plenty of scope to take inspiration from the work of others without infringing, although staying onside is not always clear-cut. This is what keeps IP lawyers and courts in business, including in China. China’s IP laws and practices are changing given the growth of more domestically-produced IP in recent years, but copying will undoubtedly continue, driven in some cases by short-cutting and achieving unfair commercial advantage but in others by admiration for “something different” with a western allure.
I hear properties in “Thames Town” are still available if anyone is interested.
© Hugh Stephens 2020. All Rights Reserved
