Harry Potter & the 'Chinese' Philosopher's Stone: Deconstructing Copyright Piracy through Shanzhai

Document Type

Article

Publication Title

UIC Review of Intellectual Property Law

Abstract

Imagine being a novelist or a film director, who has created a popular series. You soon discover a series of works made in China that are pretty much fake versions of your work. You want to file suit against the authors of those "fakes." In America, courts and practitioners will determine the substantial similarity of one work of art to another, by reflecting on past relative case law, analyzing: (1) whether a work infringes upon another and the reasoning behind that determination; (2) what elements of a work are protectable; and (3) what viable defenses does one have. Such blatant copies of prior works are usually considered infringing, and often labeled as knock-offs, ripoffs, and counterfeits. By contrast, China-a nation known for its shanzhai culture may not see this copying as infringement. This is due to their copyright law's differences in historical development and cultural tradition, which have been debated to be adverse to intellectual property enforcement and harmonization with the U.S. As a result, the two nations are still at a disconnect with one another on intellectual property piracy. China's unique shanzhai culture may actually be the key to debunking this debate and improving foreign policy. The peculiar traits of shanzhai copyrightable works, such as its hybridization and transformativeness, make these works different from the Western notions of piracy, yet they are often given a false light. Thus, despite leaning more toward Westernized models, China's copyright law system still needs improvement, especially with regards to enforcement, fair use, and shanzhai culture. Parts II will discuss the importance of piracy and shanzhai in China. Part III will layout the copyright regimes of both China and the U.S. with an analysis of the philosophies and legislative histories between the two countries. Part IV will discuss shanzhai's potential effect on copyright reform in China. Part V will propose solutions for Chinese copyright development to curb the amount of piracy in the Celestial Empire and improve the creativity of shanzhai works and how the works are perceived.

First Page

101

Last Page

124

Publication Date

2020

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