The Chinese writer Yu Hua argued recently in the New York Times ("Stealing Books For the Poor") that China's famously high levels of unauthorized copying are fueled by an eager population, not by some nefarious central government plot. That's correct. But the way Yu reached that point isn't, and his errors are part of a larger, damaging climate of false equivalences and myth-making in media and government discussions of copyright. That climate helps keep the U.S. and China locked into a seemingly perpetual cycle of accusation and sham enforcement. Meanwhile, the real sources of creativity and prosperity on both sides of the world are hurt rather than helped.
We can't talk sense about copyright, or for that matter about patents, until we discard these old myths. A better framework is available. If we use it, we might be able to back out of the mutually destructive approach we've taken so far.
Let's start with the basics: copying is not theft (Yu's title notwithstanding). When one person steals a bicycle, another loses a bicycle; when someone copies a song, now they both have it. Copying, whether legal or not, is simply duplication.
Copying is also not counterfeiting. When you copy a book, the copy is the same as the original (including the author's name — attribution is preserved, which is why this is nothing like counterfeiting). If someone buys the copy, they do so to read that book. Yu refers to China's "huge demand for pirated and knockoff products... Food and housing prices have been rising, creating an enormous market for counterfeit items among those without money. They can't afford genuine, guaranteed-quality products and can buy only cheap, counterfeit goods. They live surrounded by contaminated rice, adulterated milk powder, tainted vegetables, spoiled ham, unsafe toys, even fake eggs. Day after day, year after year, they consume substandard food and rely on defective supplies. Reading offers a means to improve their condition, and low-cost, pirated books are the only ones they can afford."
Yu ennobles reading here, but he also repeats an old canard: equating illegal copies with fake goods, as though a copy of a book were the same as a knockoff Louis Vuitton handbag. But a copy of a book has all the author's words and the author's name: it may or may not be legal, but there is nothing counterfeit about it — it's the real book. The same would be true of a movie or a song. A knockoff handbag, on the other hand, is a fraud: someone who is not Louis Vuitton falsely puts Louis Vuitton's name on something that is not Louis Vuitton's work (and which if of lower quality may damage Louis Vuitton's reputation — unlike a copied book, which boosts its author's reputation). Yet Yu treats terms like "copycat", "pirated", and "counterfeit" as equivalent. The piece's pull quote even reads "In China, the demand for counterfeit products comes from below."
This confusion is pervasive in media coverage today. Picking another example at random, there's "Entrepreneur's Rival in China: The State" from 2011, which writes of how a state-backed company in China copied design techniques from a rival: "In this counterfeit-friendly nation, employees run off with manufacturing designs almost daily." Indeed, the confusion is encouraged by the very names of the laws that enforce these monopolies, like the Anti-Counterfeiting Trade Agreement (ACTA), a major multinational treaty that lumps together counterfeit goods — that is, trademark protection — with copyright and patent infringement. There's no connection; it's like having a treaty covering medical malpractice and Arctic drilling.
Our own government uses the same strategy of guilt-by-association. In 2010, Victoria Espinel, the Intellectual Property Enforcement Coordinator in the President's office, requested input from the public about the "threats to public health and safety created by infringement" and, in the very next sentence, about the "costs to the U.S. economy resulting from infringement ... both direct and indirect, including any impact on the creation or maintenance of jobs." That is, the same department polices fake medicines (counterfeits) and teenagers swapping songs (copies). Tellingly, Espinel has still never requested input on the direct and indirect costs of enforcing monopolies on copying.
The word "monopoly" is the key here. Copyrights and patents are just monopolies: a government-enforced right to control the distribution and usage of that which would otherwise be duplicatable. Once we see it as a policy choice, not a law of nature, the situation starts to look different. Is it wise, for example, for the U.S. to push China toward stricter monopoly enforcement, when China has a larger population that gets better educated every year? If anything, the U.S. should advocate a loosening of monopoly controls, as the proportion of new copyrights and patents shifts inevitably to the East. The U.S. will come to regret its current policy, when there are several Chinese authors (and Ph.D.'s, and musicians, etc) for each one in the U.S. But China will regret stricter enforcement too: the last thing a populous and increasingly educated country needs is laws that prevent cross-pollination between its citizens and the rest of the world.
Concrete recommendations abound: bring back registration requirements and renewals for copyrights; distinguish attribution law from copying law (their conflation is both the result and the servant of the monopolist's cause); do away with retroactive extensions, retroactively; shorten terms; make de-monopolization paths available; etc.
But most needed is a fundamental change in how we think and talk about these monopolies. They are not natural law, nor even rooted in the common-law doctrine of property ownership; they are just a policy choice. It's high time we started debating that policy in honest, accurate terms.
Karl Fogel is the founder of QuestionCopyright.org, author of the book "Producing Open Source Software", and an Open Internet Tools Project (OpenITP) Fellow at the New America Foundation.