Comparative and international law scholarship places legal doctrines in context. Whether that context is helpful often depends upon one’s own disciplinary and normative commitments. Professor Fei-Hsien Wang’s Pirates and Publishers: A Social History of Copyright in Modern China challenges the view that a historic distrust of property rights undermines current efforts to import intellectual property law to the People’s Republic of China. The historical context she narrates is the main reason why this book is one I like lots. Even more pleasing is how Professor Wang’s book provides a new comparative and international context for understanding the possibilities for interdisciplinary scholarship itself.
Interdisciplinary context can fail, we are reminded, when it obscures the evolution of legal institutions. Professors Shyamkrishna Balganesh and Taisu Zhang make this point in their review of Professor Wang’s book by bringing to the foreground a critique from legal internalism. As they explain, legal internalism “refers to the internal point of view that regular participants in a legal practice usually develop toward it that sees it as normative, epistemologically self-contained, and logically coherent.”1 According to Balganesh and Zhang, Professor Wang’s social history of copyright overemphasizes social context and does not pay adequate attention to the evolving logic of legal doctrines, courts, and legal institutions. The Balganesh-Zhang review is also a work I like lots. In fact, the interplay of the book and the review increases my enjoyment of each, highlighting the importance of both the external contexts for and internal logic of copyright.2
Professor Wang’s social history supports the argument that a notion of copyright did exist in China, at least from 1890-1950. Rather than grounded in a normative commitment to individual property rights, copyright during this period was about the practices of book publishers and a commitment to the spread of learning, particularly from Japan and European countries. Book publishers in late 19th century Beijing and Shanghai included copyright imprints in books, following the model used by Japanese publishers of the Meiji Empire. The imprinted word banquan, the equivalent of copyright, means “printing blocks.” It is also distinct from the term zhuzoquan, meaning author’s rights. Delving further into Wang’s account of Chinese practices and social contexts before 1950, we can see the impetus to expand scientific and philosophic learning from both ancient and modern texts driving the book publishing industries. In addition, specific authors pushed their own claims against plagiarists who distributed unauthorized copies of their books. Social practices were attuned to writing, thinking, and publishing. Copyright had a social life that was enriched by a literary culture. As society became dominated by the party and the state, the priorities of publishing and writing were subsumed by a collectivist ideology hostile to individualistic inquiry. This shifting social context explains the loss of appeal of copyright in contemporary times.
Wang’s account of copyright as a species of social history, however, ignores copyright as a legal phenomenon. She offers no details of copyright lawyers or judges or courts. She reveals no legislative history, no presentation of political battles, and no mention of free speech concerns, as one might find in other copyright histories.3 For a reader of Wang’s book, copyright law appears in the shadows with only its social emanations placed on display. For Balganesh and Zhang, the legal core remains unnourishing for students and scholars of how copyright’s legality takes shape. This criticism perhaps is unfair to level against the intellectual product of a historian: Professor Wang is an assistant professor of history at IU-Bloomington, and she is affiliated with the Centre for History and Economics at the University of Cambridge, where she earned her doctorate. But to forget the legalities of copyright, the copyright law mindset, is to ignore the way in which copyright scholars and policymakers become enmeshed into their own inner logic or debate. Perhaps one runs the risk of naturalizing copyright as something that is a social convention, readily accepted like the rules of etiquette or collegiality, rather than the product of lawerly actors. Copyright isn’t a brooding omnipresence in the social landscape. It is the plaything of legal bureaucrats, whether in Beijing, Washington, D.C., Geneva or their emissaries in the various judiciaries.
But these doubts are what makes me like engaging with Wang and these two critics. What are we talking about when we talk about copyright? Does copyright have a life separate from copyright law? Is law just a veil after all? Are doctrinal debates peripheral to the social, cultural, and personal meaning of copyright? If the answers to the last two questions are yes, we run the risk of making lawyers of all stripes, as legislators, as judges, as professors, mere shadow actors. That can’t be true, right? At the same time, it may seem odd to view copyright (or any legal category) as purely social. The technical rules seem to inform how nonlawyers talk about the phenomenon even if the rules do not shine. Think about how often terms like fair use, or copying, or reverse engineering, show themselves in popular culture or everyday language. They seem to have a meaning that can be traced back to the legalese of the federal reporters or the United States Code, even as the translation into ordinary English distorts or dampens their legal meaning.
Reading Wang and Balganesh-Zhang together may pose a false choice of being either inside or outside the law. Logically, one might reason: you have to choose since you cannot be in both places at once. However, one might be reminded about that quote about the life of the law, logic, and experience. But Holmes’ line is poorly framed in terms of the life of the law, rather than in terms of life itself. After all, law only matters if it makes life in some sense, to some ultimately unmeasurable degree, better. When we think of copyright,4 we should ask not about the life of the law, but about the lives of artists, of creators, of readers, of storytellers, of visionaries, of influencers, of prognosticators, of agitators, of people in whatever role, parental, professional, intellectual, striving for creative release. The narrow categories of social history or of law (or of political economy, or of media studies, or of critical theory) are meaningful only to the extent they shed light on how we can live better, not whether we seek solace inside or outside a particular cathedral.
And reminding me about these points is why I like lots this book, this book review, and comparative and international law.
- Shyamkrishna Balganesh & Taisu Zhang, Legal Internalism in Modern Copyright, 134 Harvard L. Rev. 1066, 1071 (2021).
- The Balganesh-Zhang review discusses two other books subject to the internalist critique: Will Slauter, Who Owns the News?: A History of Copyright (2019)(presenting the political economy of news) and Monika Dommann, Authors and Apparatus: A Media History of Copyright (2019)(presenting a techno-social analysis of media). I have read the Slauter book and started the Dommann book and do like them lots too. But I have only so much love to share in the confines of a jot. Furthermore, the internalist critique is most salient for the Wang book for reasons the Harvard book review gets into. Therefore, I focus my attention on that one of the trilogy. Plus, I am very much interested in the social history of China.
- Compare with, for example, Benjamin Kaplan, An Unhurried View of Copyright (1967), or Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates (2010).
- Any legal field, but this is just one little jot.