Innovation rarely falls from the sky. Interview with Harro von Senger

Sinologist Harro von Senger on Confucius, Chinese cunning and western prejudices

By Simone Achermann

Internet piracy is flourishing and innovative, open-source models are conquering the software market. Will the notion of intellectual property survive the 21st century?

The notion of intellectual property remains valid for the 21st century. But it will evolve further, and will no longer depend so heavily on Western conceptions of intangible property rights. European interest in the traditions and remedies of Africa and Asia has grown as a result of globalisation. So these are now to be patented. That way, South Africa seeks to protect its traditional art, folklore and medical knowledge before the law. And in similar vein, there is the People’s Republic of China, where there are complaints that Hollywood made 2 billion US dollars from the film “Mulan”, whilst China, whose legend the film tells, did not receive a penny. In future, China will be at pains to protect its traditional Chinese wisdom at both international and national level.

According to “The Economist”, some 70 per cent of all plagiarism stems from China. Why are so many copies produced in China, particularly?

Although statistics of goods seized by the Swiss customs confirm this figure, it is nevertheless misleading. For the statistics do not distinguish between copies that can be legally manufactured and sold in China – because foreign manufacturers have not taken steps to protect their intellectual property rights in the original products – and copies that are protected by patent in the People’s Republic. Copies that fall into this second category may neither be manufactured nor sold in China, whilst there is no restriction on those in the former category. From this point of view, China does indeed copy a great deal, but not always illegally. Quite apart from the fact that Migros was well known in Switzerland for copying: they responded to “Nescafé” with “Zaun Kaffee” and to “Ovomaltine” with “Eimalzin”. In order to prevent the German tabloid newspaper “Bild” spreading its wings into Switzerland, the Ringier-Verlag publishing house didn’t take long before they “copied” the concept and brought “Blick” onto the market. Copying is a business practice that can be observed all over the world. No sooner has the competition brought something new onto the market than there is somebody with something similar to undermine them. If nobody copied at all, then there would only be one make of car in the world.

So you reject the common claim that the Chinese “copy culture” is to be put down to the Confucian idealisation of the imitation of the master?

The People’s Republic of China is a Marxist-Leninist state. Just as we would not use the bible to justify the protection of intellectual property in the EU, we should not seek to explain the value placed on intellectual property in the People’s Republic of China with reference to the teachings of Confucius. In any case, it is a moot point as to whether it makes sense to talk of “imitation” in Confucian philosophy. What passed for imitation in ancient China was in reality often something new. Except that what was new was gilded with quotations from Confucius’ works and given out as imitation – because the invocation of the “ancient” when uttering something new, in fact gave great weight to what one was saying. One man, for example, well known for spreading new ideas under cover of a Confucian mantle is Kang Youwei, a leading Chinese reformer of the 19th century. Supporting his arguments with quotations taken from ancient Confucian writings, he sought to justify equal rights for women. It is only on very careful reading that the trickery became apparent – what appeared to be a copy was not a copy. Moreover, there certainly was a notion of intellectual property in ancient China, both in medicine and the martial arts. Many healers possessed secret recipes, which they shared only, say, with their son. Masters of certain martial arts also carefully selected a single student, to whom to pass on their tricks of combat. Even the production of silk is supposed to have been kept secret by the Chinese for centuries, until spies brought the secret out of China.

You speak in your book “Die Kunst der List” (The Art of Deception) of the role of “pro-active cunning” in China. Ought the West to be learning from this?

In the sense that the West should become more aware and study Chinese legislation more closely, yes. Because the People’s Republic profits in particular from the fact that European companies do not legally safeguard their products in China – even though it has been entirely possible to get

brands and patents protected in China since the nineties. Hardly any Westerners know their way around the complex Chinese legal system. And so representatives of Swiss machine manufacturers visit a Chinese trade fair, discover an exact copy of their machine, including the name of the Swiss factory, and complain about the Chinese technology theft. In fact, the truth is that the Swiss firm hasn’t done its homework, because it hasn’t legally protected its machine’s patents and brand in China. As far as China is concerned, no intellectual property rights have been infringed – the copy is legal. Any company that moans about China and reproaches them for “piracy” should first check to see whether they have made arrangements to protect their brand and patents over there. Blind to “cunning”, many westerners do not reckon with the astuteness of the Chinese business community, which has the presence of mind and the know-how to exploit any opportunity in order to turn a profit.

Everyone wants to own a fake Louis Vuitton bag and to download free music from the internet, and yet piracy is condemned right across the world. Why?

Because people lack an adequate knowledge of the law. Neither in the People’s Republic of China nor in the West is the man in the street familiar with legislation on intangible property rights. That is why they behave thoughtlessly as far as fakes are concerned, because they are ignorant of the issues. Added to that, many people fall prey to the appeal of a “bargain”. And to a certain extent, they are right, because many so-called “fakes” are of no lesser value, quality-wise, than the originals. A well-known Swiss lawyer and I recently visited Beijing’s Silk Street. My companion bought a whole pile of “fake” shirts, because the quality of the shirts he had bought at the same spot years before had won him over. Many of these fakes were also actually not copies but branded goods with a tiny fault. So the word “fake” cannot automatically be equated with poor quality.

How damaging to business is China’s own national piracy? The Chinese software company, Kingsoft Corp., has recently complained that revenues from their Chinese-English dictionary are being heavily sabotaged as a result of Chinese internet piracy.

The problem is that over 90 per cent of Chinese companies don’t have any patents of their own. Although China is the fourth largest national economy in the world, still only 0.3 firms in a thousand are in possession of any patents. Investment in independent research and development is often minimal. The developed nations and multinational companies are often accused of hindering Chinese development by refusing to export key technologies to China. The technologies that can still be imported are, it is claimed, obsolete and, because of their heavy energy consumption, lead to environmental pollution. That is why China now wants to free itself from its dependence on imports and secure its future with its own independent technology as well as with a national strategy, announced in 2008, to protect intellectual property rights.

Nevertheless, political scientist, Martin Dimitrov, claims that the Chinese state profits from product piracy – with expensive raids, financed by international firms, on Chinese villages which live from the production of fakes.

Is Dimitrov trying to say that the state deliberately organises product piracy, in order to get paid from abroad for combating it? I don’t really think so. Even in Switzerland or in the USA, the mobilisation of the authorities to stop unlawful activities costs money. I assume that – as so often happens – we have a perfectly normal set of circumstances which appear to Westerners, however, as a Chinese phenomenon worthy of comment.

What does innovation mean to you today?

Innovation doesn’t as a rule fall out of a clear blue sky and rarely amounts to something that has never existed before. In fact, what appears to be new is very often, if not always, based on what existed before. Innovation is therefore a combination of something that already exists and something that has been newly discovered – in the West as in China, before as now. Contrary to the assumption that China just imitates what has gone before, the spirit of invention is even being fostered in children. Last November, the “Chinese Children’s Newspaper” reported on the inventions of 10 to 12-year-olds. These included the idea of a washing machine incorporated into the treadmills of a fitness centre, so that the drum was turned by the people running. That way you would be able to wash sweaty sports tops with cleaner energy, commented the children – cleaner because it is generated by your own body.

Harro von Senger, born in 1944, is a Swiss lawyer and sinologist. He completed his law studies with a doctorate and gained further post-doctoral recognition (Habilitation) in law at the University of Zurich. After spending a considerable time in Taiwan, the People’s Republic of China and Japan, he gained another doctorate (Dr. phil.) at the University of Freiburg in 1981. Also in that year, he was appointed lecturer in Chinese Studies at the University of Zurich and from 1981 to 1989 he was an Academic Associate of the Swiss Institute of Comparative Law in Lausanne. From 1989 until his retirement (and emeritus status) in 2009, he was Professor of Chinese Studies at the Albert-Ludwigs-Universität in Freiburg im Breisgau. Harro von Senger is the author of various specialist publications, including “Supraplanning: NonPerceived Dimensions of Thinking in the People’s Republic of China” (Munich 2008) and “36 Strategems for Business” (Munich 2009), the first book to appear in the West on the 36 Chinese strategies. www.36strategeme.ch