George Mason University Antonin Scalia Law School

Can Copyright Help Fight Censorship in China?

cameraFree expression in China has long been a fraught concern for the entertainment industry. Last year, Chinese regulators forbade local companies from working on foreign films that could “harm national dignity and interest of China, cause social instability, or hurt the national feeling,” striking at the rapidly expanding Chinese post-production industry for Hollywood films. A further proposed regulation, now winding through China’s political—and politicized—approval process, demands “excellence in both professional skills and moral integrity” from the Chinese film business. As Chinese investors continue to acquire stakes in Hollywood studios and cinema chains, these regulations threaten to undermine global film producers striving to gain market share in China’s enormous entertainment sector.

China’s local film industry also stands to suffer from the new draft film laws, which codify the view of China’s top political advisors that movies need to be “more centered on the people, guided by core socialist values.” The national media regulator in China has already warned local entertainment and media programs not to “express overt admiration for Western lifestyles,” not to be overly commercial, and not to forget to inject communist values in their products. The results with respect to local production have been underwhelming: films with overtly communist messages have done poorly at the box office, while films that cater to audiences’ fascination with Western tastes and values remain hugely popular and in demand.

Chinese policy makers’ zeal for regulating and curtailing free expression seems unlikely to abate. Yet at the same time, Chinese audiences’ hunger for a broad array of expressive content, including works that openly embrace Western values and preferences, seems equally strong and unlikely to subside. Can this conundrum be resolved, or at least improved, anytime soon?

A fascinating paper by CPIP Senior Scholar Eric Priest offers a market-based analysis that gives hope for a way forward to gradual—and meaningful—liberalization and reform of the formal rules that govern China’s entertainment industry. Priest argues that copyright laws and practices can strengthen commercialization in the Chinese film industry, creating “complex interlocking power relations between the audience, producers, and censoring authorities.” The strength of market-backed private producers in this regime is considerable and creates leverage that can effectively push back against the authority of government censors. The concentrated strength and influence of private producers in China, underpinned and driven by market forces and economic realities, can provide a counterbalance to state censorship that Priest argues “will erode censorship practices and increase expressive diversity in Chinese media.”

Central to Priest’s analysis is the importance of copyright law as a tool for creating private property rights in original expression and thereby enabling private producers to create and commercialize new works. While many scholars argue that copyright law creates legal barriers around expressive works and thus works in parallel with state censorship, Priest argues quite the opposite. He contends that copyright bolsters private production of creative works, making it easier for film producers to push back against censors while offering popular market-based (rather than merely state-approved) creative content.

Priest’s analysis of the development of the Chinese film industry, and his exploration of the gradual way in which its state-mandated boundaries are being tested and slowly moved, is rich and detailed. He is careful to note the limits of even gradual market-based reform, pointing to films that have not been approved, sometimes for unclear reasons. Further, he recognizes that attempts by the Chinese government to allow a more open media while simultaneously seeking to maintain ideological control may create an irreconcilable dilemma for Chinese policymakers.

Priest suggests that a hardline turn is a possible outcome, but he argues that it would lead to a downturn in the Chinese film industry that would be unacceptable to Chinese authorities. He argues that Chinese censorship officials would be better off taking a “more organic, permissive, and experimental approach to censorship practice, while leaving the more restrictive formal laws intact as a baseline standard until circumstances warrant a change in formal laws.” As noted earlier, this does not appear to be the direction in which the government is currently headed, suggesting that other priorities—such as upholding socialist norms, embracing didacticism, and promoting authoritarian tenets—may remain the order of the day in China. But Priest takes the long view, and so should we: the film market will speak in China, and it will speak loudest when it is supported by market realities and the choices of the people it serves.