Special Section: Asian Journeys

Digital pathways to Asia

Can law keep up with technology? Some Harvard lawyers are finding out.


John Hersey

Internet use in China is different than in most countries. There is less freedom. And there is more.

Chinese users have far greater access to unauthorized digital and software downloads—piracy is rampant, and many digital files are easily accessible without attribution or compensation for their creators.

But if you try to access a pro-Tibetan independence Web site, your browser will likely give you an error message—the result of hidden censorship. Despite early predictions that the Internet would create open-ended access to information for all users everywhere, China’s rulers (as well as those in Burma, North Korea, Thailand and Singapore) have devised ways of filtering out content they deem harmful to the state. Through censorship, surveillance and aggressive filtering, these governments (and some outside of Asia) have achieved a high degree of control over what many had thought would be an uncontrollable medium.

Researchers at Harvard Law School’s Berkman Center for Internet & Society have documented both problems and are zeroing in on them.

The Berkman Center is approaching piracy through its Digital Media in Asia project, which, among other things, promotes a digital media exchange in China. Meanwhile, the center’s OpenNet Initiative is taking a hard look at filtering, aiming to create a body of empirical, legal and technical research showing the extent to which repressive regimes block access to the Internet and practice surveillance online.

And, in its Global Voices Online project, the center’s scholars and students are emphasizing the other side of the surveillance coin, highlighting the independent voices that manage to escape the censors through blogs, podcasts and other forms of “citizens’ media.”

“As of next year, China will have more people in the world using the Internet than any other place in the world,” said Harvard Law School Clinical Professor John Palfrey, the Berkman Center’s executive director. “China will be the most important market for Internet users. We believe that a relatively open Internet is helpful to economies, democratic activism, societal development and cross-cultural understanding, and a variety of other good things.” And, he said, with the Digital Media Project, “we are looking at how international treaties and legal systems affect the way people consume digital media and figuring out if there are alternatives to the traditional intellectual property regime which could make better sense for a digital world.”

The piracy problem

In 1995, Professor William Alford ’77 published his seminal work on intellectual property rights in China, “To Steal a Book is an Elegant Offense,” in which he discussed the relationship between traditional Confucian ideology and intellectual property rights. He argued that the veneration with which the Chinese have historically regarded fidelity to tradition has made China less receptive to the idea of intellectual property rights, particularly in artistic fields. That Alford turned out to be right is both good news and bad. Good because his accurate insights have helped make him an oft-cited authority on the subject. In fact, as Alford recently told a Senate subcommittee in his testimony on intellectual property infringement, parts of the book itself (the title of which comes from an old Chinese saying) have been pirated and made available without attribution in China. Therein lies the “bad news for those who have to live in the real world,” Alford explained. Intellectual property infringement is ubiquitous in China, and present elsewhere in Asia (and the U.S.) to varying degrees. And as the number of Internet users in the region grows—China is set to surpass the United States next year, and use in South Korea and Japan is skyrocketing—the problems, and the economic damage, will only get worse.


John Hersey

The Digital Media Exchange (known as DMX), which is part of the Berkman Center’s Digital Media Project, presents a possible solution to the problem of how to generate revenue when piracy is rampant, in the form of a file-sharing cooperative which, for a nominal fee, would give consumers “all-you-can-eat” access to digital entertainment files while providing for compensation of content-creators on a per-usage basis. The DMX, originally proposed by Professor Terry Fisher ’82 in his book “Promises to Keep,” evolved into a possible Chinese pilot program when then graduate student Eric Priest LL.M. ’05 pointed out its promise for a culture like China’s. Priest, who had worked in the Chinese music industry and is now a fellow at the Berkman Center, helped organize meetings on DMX with Fisher, Berkman Fellow and York University Adjunct Professor Paul Hoffert, various representatives from the Chinese entertainment and IT industries, and government officials in Beijing.

“China provides an excellent environment for developing the DMX service for a few reasons,” Priest reported in an e-mail from Beijing. “The piracy problem in China is severe—and growing. Companies are interested in talking with us because we might provide them with a substantial new revenue stream. Second, with the growing sensitivity to intellectual property issues, Chinese companies and the government are interested in exploring innovative ways to protect copyright. Third, Internet service providers and universities are beginning to worry about being held liable for the widespread copyright infringement on their networks. Last, due in part to the piracy problem, the major record companies that are reluctant to provide content to a DMX system in the U.S. may be less reluctant to do so in China, because they simply don’t have a viable alternative business model in China.”

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