Don't Stop Thinking about Yesterday--Why There Was No Indigenous Counterpart to Intellectual Property Law in Imperial China


Don't Stop Thinking About... Yesterday

Why There was No Indigenous Counterpart
to Intellectual Property Law in Imperial

China

WILLIAM P. ALFORD"

"The Master [Confucius] said: I transmit rather than create; I believe in
and love the Ancients."

-The Analects of Confitcius
Book VII, Chapter 1

The notion that copyright arose soon after the advent of printing
enjoys wide currency in the scholarly world. Chinese historians date
copyright from the rise of printing during the Tang Dynasty (A.D. 617-
906)V while Western theorists of economic development contend that
the inexpensive dissemination of texts necessitated the formal legal

Henry L. Stimson Professor and Director of East Asian Legal Studies, Harvard Law
School.

This essay is dedicated to my teacher and friend Jerome Cohen, for, as any student of
Confucian thought knows, our debt to our teachers is inestimable. It is adapted from my
monograph entitled To Steal a Book is an Elegant Offense (forthcoming Stanford University
Press). I would like to acknowledge the firm of O'Melveny & Myers, which in awarding me its
Centennial Grant provided the support necessary to conduct the initial research for this essay, and
the Chiang Ching-kuo Foundation for International Scholarly Exchange, a grant from which has
helped support research on Chinese legal history at Harvard Law School. I would also like to
thank my wife Shen Yuanyuan for her many helpful contributions to this article.

I. See, e.g., Zou Shencheng, Baohu banquan shi yu he shi heguo? [The Protection of
Copyright Started Where and in what Country?), 6 Faxue Yanjiu [Research in Legal Studies] 63
(1984); Zheng Chengsi and Michael Pendleton, Copyright Law in China (1991); Hok-lam Chan,
Control of Publishing in China, Past and Present, Address for the G.E. Morrison Lecture Series
at Australia National University (1983) (transcript on file with the author).



JOURNAL OF CIHNESE LAW

protection that copyright is intended to provide.2 In short, the accepted
wisdom among "intellectual property scholars .. . [is] that copyright
emerged with the invention of printing," as Zheng Chengsi and Michael
Pendleton declare in their recent monograph on copyright in the People's
Republic of China (PRC).3

This essay takes issue with the accepted wisdom, at least as
concerns imperial China. After first endeavoring to delineate an
appropriate scope for inquiring into imperial Chinese legal history, this
essay considers whether there was indigenous formal legal protection for
intellectual property in China prior to the twentieth century introduction
of Western notions of such law.4 It finds evidence of restrictions on the
unauthorized reproduction of certain books, symbols and products but
determines that it would be erroneous to see these as constituting what
we in the United States now typically understand intellectual property to
be, for they were little concerned with the protection of property or

2. The point is perhaps most explicitly made in Richard P. Adelstein and Steven 1. Peretz,
The Competition of Technologies in Markets for Ideas: Copyright and Fair Use in Evolutionary
Perspective, 5 Int'l Rev. of Law & Econ. 209 (1985). Adelstein and Peretz's views may be seen
as a specific application of the broader contention of economic historians such as Douglass North
and Robert Paul Thomas that innovation spurs the need for well defined private property rights
which, in turn, provide the incentive needed to foster further innovation. Douglass C. North and
Robert Paul Thomas, The Rise of the Western World: A New Economic History (1973). See also
Gary D. Libecap, Property Rights in Economic History: Implications for Research, 23
Explorations in Economic History 227 (1986); Richard T. Rapp and Richard P. Rozek, Benefits
and Costs of Intellectual Property Protection in Developing Countries, 24 J. World Trade 75
(1990); Edwin Mansfield, Intellectual Property, Technology, and Economic Growth, in Intellectual
Property Rights and Capital Formation in the Next Decade 3-26 (Charls E. Walker & Mark A.
Bloomfield eds., 1988).

3. Zheng and Pendleton, supra note 1, at 11.
4. For purposes of this study, "intellectual property" is defined principally to encompass

copyrights, patents and trademarks. Copyright protects original literary and artistic works, with
the notion that the expression of the underlying idea, rather than the idea itself, is protected. The
protection provided, which in the West is said to have first been officially introduced in early
eighteenth-century England through the Statute of Anne, typically provides the author with the
exclusive right to reproduce, prepare derivative works, and distribute, display or perform the work
in question. Melville B. Nimmer, Nimmer on Copyright: A Treatise on the Law and Literary,
Musical and Artistic Property, and the Protection of Ideas (1978 -). "Patent" is a limited term
monopoly typically granted by a government to an inventor of a novel, non-obvious, and useful
product, manufacturing process, machine, chemical composition, design or plant in exchange for
the public disclosure of the pertinent innovation. Patent protection in the West is said first to have
been granted in fifteenth-century Venice. Peter D. Rosenberg, Patent Law Fundamentals (2d ed.
1980 -). As used herein, a "trademark" is a word or symbol that identifies the source of goods
(or services in the case of a servicemark). Trademark emerged as a common law right, though
since 1881 it fundamentally has been protected statutorily in the United States. A general treatise
in this field is J. Thomas McCarthy, Jr., Trademarks and Unfair Competition (2d ed. 1984 -).



INTELLECTUAL PROPERTY IN IMPERIAL CHINA

other private interests. Their real purpose was the maintenance of
imperial legitimacy and power. Accordingly, this essay turns in its final
section to a consideration of Chinese political culture and, particularly,
its engagement with the past in the effort to illuminate why China did
not respond to the introduction of printing and other major technological
advances in the manner that both Chinese and Western scholars would
have us believe.

Chinese treatment of intellectual property is, of course, an issue of
considerable attention in contemporary Sino-American relations. As
recently as the early 1990s, the United States government labelled both
the PRC and the Republic of China (ROC) as principal culprits in the
infringement of billions of dollars of American intellectual property.5

In consequence, the United States Trade Representative launched trade
actions against both the PRC6 and ROC,7 resulting, after bitter

5. The United States International Trade Commission [ITC], which is a semi-independent
federal agency charged with responsibility, inter alia, for preparing a range of reports regarding
the international economic activity of the United States, estimates that foreign infringement of
American intellectual property annually costs this country more than 133,000 jobs and from US
$23.8 to US $61 billion in lost profits, and that the PRC and ROC account for a substantial
portion of that infringement. The first figure comes from ITC, The Effect of Foreign Product
Counterfeiting on U.S. Industry (U.S.I.T.C. Pub. No. 1479, 1984) and the second from ITC,
Foreign Protection of Intellectual Property Rights and the Effect on U.S. Industry and Trade,
Reportto the U.S. Trade RepresentativeInvest. No. 332-245 (U.S.I.T.C. Pub. No. 2065, 1938);
see also Eduardo Lachica, White House Boosts Campaign to Fight Patent Violations, Wall St. J.,
Feb. 29, 1988, at 6. These figures should not be taken at face value. They are based on data
supplied by domestic industries hopeful of en- listing governmentassistance against infringers and
typically calculate loss by multiplying estimated instances of infringement by market prices. Even
assuming the accuracy of estimates of the numbers of infringers, there is no reason to presume
that each infringer would prefer to pay a market price rather than cease usingthe item in question,
were these the only two alternatives available. It seems far more likely, to take but a single
example, that law teachers in the PRC, who typically live on less than US S50 a month, would
cease using pirated American texts rather than pay for such books, which typically cost more than
US $50 each. Nonetheless, even taking account of the limitations surrounding American
government figures concerning lost intellectual property profits, there is little doubt that
infringement of United States intellectual property not only exacts a great cost in terms of lost
revenues and jobs, but also has a deleterious impact upon unwitting consumers here and abroad
of a range of substandard products from improperly constituted polio vaccine to fake automobile
parts to defective contraceptive devices. See, e.g., Jed S. Rakoff and Ira B. Wolff, Commercial
Counterfeiting and the Proposed Trademark Counterfeiting Act, 20 Am. Crim. L. Rev. 145
(1982).

6. The People's Republic of China's (PRC) formal undertaking to revise its intellectual
property laws is contained in a memorandum between the PRC and the United States signed in
Washington, D.C. in 1992. Memorandum of Understanding Between the Government of the
People's Republic of China and the Government of the United States on the Protection of
Intellectual Property (Jan. 17, 1992) (available from the office of the United States Trade
Representative) (on file with the author). The pressure brought to bear by the United States

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negotiations, in the conclusion by each of agreements in 1992 to revise
their intellectual property laws to meet American concerns.

The purpose of this essay, in delving into China's imperial legal
history regarding such matters, is not to suggest that China ought
necessarily to have followed the path of the United States or other
nations in developing intellectual property law.' Rather, it is instead to

government on the PRC is treated in William Alford, Perspective on China: Pressuring the Pirate
- which argues that people who largely lack fundamental rights cannot be expected to embrace
complex property rights L.A. Times, Jan. 12, 1992, at M5.

7. An insightful overview of the 1992 negotiations is contained in Chiung-hui Shao, The
Internalization of Copyright Protection in Taiwan (1993) (unpublished L.L.M. thesis, Harvard
University). The background of United States-ROC relations regarding intellectual property is
portrayed in William Alford, Intellectual Property, Trade and Taiwan: A GATT-Fly's View, I
Colum. Bus. L. Rev. 97 (1992). Even with the agreement reached in 1992 between the United
States and the ROC, this remains an area of much contention. Susan Yu, ROC Avoids Trade
Sanctions: No Retaliation Now, but Taiwan Returned to Priority Watch List, Free China J., May
4, 1993, at 1.

8. The United States was notorious through much of the 19th century for its lack of respect
for authors' rights. In one of the more celebrated examples, Charles Dickens' work was sold In
the United States in numerous pirated editions. A Christmas Carol, for instance, was offered for
as little as six cents in the United States (as opposed to the equivalent of $2.50 in Great Britain)
and altered in different parts of the United States to suit local tastes. For more on the early history
of copyright law in the U.S., see Aubert J. Clark, The Movement for International Copyright in
Nineteenth Century America, (1960). Although it took the United States over a century to
recognize foreign copyrights, even that step was limited by the "manufacturing clause." In an
effort to boost the American publishing industry, the manufacturing clause specifically limited
protection to those foreign copyrighted works actually produced within the United States. The
requirements of the clause remained in effect for almost a century. Chinese officials and scholars
on both sides of the Taiwan Straits have been quick to note the experience of the United States
during the nineteenth century in explaining China's hesitancy in offering protection for foreign
copyrighted material. For more on the concern of developing countries regarding the expenditure
of limited foreign exchange holdings for royalty payments in order to obtain access to needed
foreign intellectual property, see Shen Yuanyuan, To Copy or Copyright: China's International
Copyright Relations (1989) (unpublished LL.M. thesis, Harvard University). It should be noted
that tough questions as to the extent to which intellectual property law achieves its stated aims
anywhere remains the subject of much controversy. George Priest, What Economists Can Tell
Lawyers About Intellectual Property: Comment on Cheung, 8 Res. in L. & Econ. 19 (1986);
Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies,
and Computer Programs, 84 Harv. L. Rev. 281 (1970); William W. Fisher, III, Reconstructing
the Fair Use Doctrine, 101 Harv. L. Rev. 1659 (1988); and Robert P. Merges, Commercial
Success and Patent Standards: Economic Perspectives on Innovation, 76 Cal. L. Rev. 803 (1988).
Also worth considering are empirical efforts by economists, including Edwin Mansfield, Patents
and Innovation: An Empirical Study, 32 Mgmt. Sci. 173 (1986); Richard C. Levin et al.,
Appropriating the Returns from Industrial Research & Development, 3 Brookings Papers on Econ.
Activity 783 (1987); Richard C. Levin, Appropriability, R & D Spending, and Technological
Performance, 78 Am. Econ. Rev. 424 (1988). The question of the effectiveness of intellectual
property law in fostering inventiveness and creativity is no more easily resolved with respect to
developing nations. A number of commentators, some in the employ of developed world



INTELLECTUAL PROPERTY IN IPERIAL ChIINA

seek to understand why a civilization, which was for centuries the
world's most advanced scientifically and which, by any standard has
long been one of the most sophisticated culturally, did not of its own
accord generate more comprehensive protection for its rich bounty of
scientific and artistic creation.

I. DELINEATING THE SCOPE OF INQUIRY

Sinologists have long characterized the law of imperial China from
the first dynasty, the Qin (221-206 B.C.), through the last, the Qing
(A.D. 1644-1911), as "overwhelmingly penal in emphasis," in the
words of Derk Bodde and Clarence Morris, authors of the most
celebrated Western work on Chinese legal history.9 Focusing on the
imperial codes that were promulgated during each dynasty, such as the
Da Qing li li [The Laws of the Great Qing Dynasty], 0 the
conventional wisdom holds that positive law, in Joseph Needham's

enterprises that stand to profit through increased protection for intellectual property globally,
contend that the benefits for developing nations of embracing greater formal legality far outweigh
the costs. See, e.g., Intellectual Property Rights in Science, Technology, and Economic
Performance (Francis W. Rushing & Carole Ganz Brown eds., 1990); Robert M. Sherwood,
Intellectual Property and Economic Development (1990); Richard Rapp and Richard Rozek,
Benefits and Costs of Intellectual Property Protection in Developing Nations, 24 J. World Trade
75 (1990). Certain of these writers deploy extensive statistics in making their case, although in
many instances, such data rest on questionableassumptions (as, for example, when Rapp & Roze!:
essentially conflate legislative enactment and enforcement) and fail to prove whether intellectual
property law spawned prosperity or prosperity spawned intellectual property law. Other
commentators are somewhat more skeptical as to the impact of intellectual property protection on
the economic and political situation of developing nations. See, e.g., Susanthan Goonatilake,
Aborted Discovery: Science and Creativity in the Third World, (1984); A. Samuel Oddi, The
International Patent System and Third World Development: Reality or Myth?, 1937 Duke L. J.
831 (1987); Arman S. Kirim, Reconsidering Patents and Economic Development: A Case Study
of the Turkish Pharmaceutical Industry, 13 World Dev. 219 (1985).

9. Derk Bodde & Clarence Morris, Law In Imperial China 3 (1967).
10. These are discussed id. at 52-75. See also Lidai xinafa zhi [The Penal Law Treatise of

the Successive Dynasties] (Chiu Hanping ed., 1986) which reproduces the section on law of the
official dynastic histories from the Han to the Ming. Portions of the Qing Code have been
translated by George Staunton into English and Guy Boulais into French. Set Guy Boulais,
Manuel du Code Chinois (1966). Professor William Jones of Washington University has recently
completed a modem translation. A useful guide to the Da Qing lii Ii [Qing Code] is Xue
Yunsheng, Duli cunyi [Thoughts About Uncertain Matters Gleaned While Perusing the Statutes],
(Huang Chinghua ed., 1970).

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words, was confined "to purely penal (criminal) purposes.""' As a
consequence, the "civil law remained extremely underdeveloped," and
the concerns typically addressed through it in the modern West were
instead the domain of village and clan elders acting pursuant to
custom. 12

The foregoing image requires serious reconsideration. The
emphasis on public, positive law and the dichotomy between civil and
criminal law so deeply ingrained in contemporary Western society, have
led to a mischaracterization of the role and nature of imperial Chinese
law. The Chinese neither saw public, positive law as the defining focus
of social order nor divided it into distinct categories of civil and
criminal. Rather, traditional Chinese thought arrayed the various norms
by which the society might be administered and social harmony
maintained into a hierarchy ranging downward in desirability from
heavenly reason (tianli), morality (de), ritual propriety (It), custom
(xixu) to the community compacts (xiang yue), and family rules (ia
xun).13 These public, positive law rules were meant to buttress, rather
than supersede, the more desirable means of guiding society and were
to be resorted to only when these other means failed to elicit appropriate
behavior.

Far from being indifferent to the concerns we now address through
civil law, the imperial Chinese state accorded them great prominence,
paying particular attention to the family, which was both a social and
economic unit. As befits an agrarian state self-consciously organized
along the model of an extended family, the standards embodied in the
various norms from heavenly reason down to public, positive law
focused to a very substantial degree on matters encompassed in the
"modern" West under the rubric of civil law. 4 The singular emphasis
of both Chinese and foreign legal historians on the written law's
penalties has obscured the very values that said penalties were designed
to promote and, in so doing, prevented us from fully appreciating the

11. Joseph Needham, 2 Science and Civilization in China (1954-) 519. Professors Philip
Huang and Kathryn Bernhardt of UCLA have launched a major and impressive research project
delving into the question whether there was a "civil law" in late imperial and early Republican
China.

12. Needham, supra note 11, at 524-530.
13. Chang Wejen, Chuantong guannian yu xianxing fazhi weishemma yao xue zhongguo

fazhi shi [The Traditional Perspective and the Contemporary Chinese Legal System: Why Study
Chinese Legal History?], Guoli Taiwan Daxue Faxue Luncung [National Taiwan University Law
Review], December 1987 at 1, 6.

14. For more on the prominence of the family, see the text accompanying notes 25-27 infra.



INTELLECTUAL PROPER7Y IN IMPERAL CIHNA

role they were intended to play in Chinese life." We must not, after
all, lose sight of the fact that more than half of the ten most serious
offenses (the so-called ten abominations or shi e)'6 under imperial
Chinese law consisted of misdeeds involving the family. Impiety toward
one's senior relatives, for example, carried far greater repercussions
than the murder of a stranger.

The idea that the state's reliance on unofficial actors, such as
family, village and guild leaders connotes Chinese indifference to civil
law also needs revision. The state's reliance upon such figures to apply
local custom - as embodied in family rules,' guild charters (hang
zhang)8 and other less formal expressions of such practices - should
instead be seen as akin to a controlled delegation of authority. It was
reminiscent of, if far less formal than, tax farming, pursuant to which
local private merchants were crucial to the collection of state
revenues. 9 As such, it ingeniously allowed the state's influence to
reach far further than would have otherwise been the case, given the
range of dialects and customs, poor communications infrastructure and
persistent budgetary problems2" that by the late Qing provided no more
than a single local representative of the emperor (known as the district
magistrate) for every 200,000 subjects. 21

The suggestion that the imperial state's reliance on family, village,
and guild leaders to administer local custom was a sign of state concern
for, rather than indifference to, family and economic matters seems less
radical if one appreciates that in making their decisions, those leaders
were likely to have been applying basic values that were at least broadly
consistent with those that the state's official representatives would have

15. This extraordinary emphasis on the imperial codes' penalties seems attributable to a
number of factors. These include the Confucian ideological antipathy toward formal legality which
discouraged scholars from considering the "civil" side of such law, widespread popular
perceptions of the legal system and early reports by foreign observers as to the quality of Chinese
justice relative to that of their home jurisdictions.

16. The so-called Ten Abominations are listed in Article 2 of the General Principles Section
of the Qing Code. Da Qing lli huitong xinsuan [Comprehensive New Edition of The Code of the
Great Qing Dynasty] (Yao Yuxiang ed., Taipei reprint, 1964).

17. The classic work on clan rules is Liu Hui-chen, The Traditional Chinese Clan Rules
(1959).

18. Guild charters are discussed in detail in William T. Rowe, Hankow: Commerce and
Society in a Chinese City, 1796-1889 (1984).

19. Susan Mann, Local Merchants and the Chinese Bureaucracy, 1750-1950 (1937).
20. Hsiao Kung-ch'uan, Rural China: Imperial Control in the Nineteenth Century (1960).
21. John Watt, The District Magistrate in Late Imperial China (1972).

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employed had they been directly involved.2 2 The delegation of
authority "required continuing adherence to the social guidelines set
down in the Four Books [i.e., the great Chinese classics]," 23 in the
words of the historian Ray Huang. 4 The emphasis in the family or
guild on the acceptance of one's position in the hierarchy (be it as a
child or an apprentice)25 and on the performance of those obligations
that went with each position had clear parallels vis- -vis the state. So it
was, for example, that local magistrates were known as thefumu guan
- or "father/mother official" - of the populace. 26 As Confucius
observed in The Analects when questioned about the fact that he was not
then in public service, "be filial, only be filial [towards your parents]
and friendly towards your brothers, and you will be contributing to
government. 27

Further assurance that family, village and guild leaders were acting
as responsible, albeit informal, delegates of the state emerges from the
consistent patterns of interaction between them and their local
magistrates throughout the imperial era. Magistrates charged guild and
clan leaders with a range of tax collection and related obligations and,
as well, held them responsible for the conduct of their members. 8

Indeed, in some instances, magistrates went so far as to require the
certification of guild chiefs and to review the rules that they and clan
heads drafted.29 The leaders of these family and economic units were
also required to refer difficult cases to their local magistrates -
particularly if they involved challenges to clan or guild rules, or to the

22. Susan Mann's study of local merchants suggests that this was the case with respect to tax
farming and related fiscal issues. Mann, supra note 19.

23. The Four Books are the LrInyu [The Analects of Confuius], the Mengzi [The Book of
Mencius)], the Daxue [The Great Learning)] and the Zhongyong [The Doctrine of the Mean)].
They are considered among the chief classics of the Chinese tradition.

24. Ray Huang, 1587: A Year of No Significance: The Ming Dynasty in Decline 149 (1981).
25. On the role of hierarchy, see William P. Alford, The In- scrutable Occidental:

Implications of Roberto Unger's Uses and Abuses of the Chinese Past, 64 Tex. L. Rev. 915
(1985).

26. The Chinese vision of world order also mirrored family structure, with the Chinese at
the apex exercising fiducial responsibilities toward less civilized peoples.

27. The Analects of Confucius 93 (Arthur Waley trans., 1938) (Bk. II, Ch. 21). For a
critique of the manner in which our society has divided public and private, personal and political,
see Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96
Harv. L. Rev. 1497 (1983).

28. Rowe, supra note 18, at 292-99; Mann, supra note 22,
passim.

29. Rowe, supra note 18, at 292-99; Mann, supra note 22, passim.



INTELLECTUAL PROPERTY IN DIPERIAL CHINA

authority of their leaders.30 Conversely, magistrates, who appear to
have been confronted with many more legal matters than the
conventional wisdom would have us believe, were quick to dispatch
appropriate cases back to the leaders of such units - especially as
administrative regulations penalized these officials if they had to reach
a formal resolution of more than a modest number of cases.31

In view of the foregoing, consideration of topics having to do with
legal regulation in imperial China ought not to be limited to the penal
sanctions found in dynastic codes. It must, at a minimum, also address
the following: the remainder of imperial China's public, positive law;
means other than public, positive law through which the state directly
sought to maintain social order; the ways in which the populace sought
to invoke the state's authority; and the elaborate and varied fabric of
indirect ordering through family, village and guild.

Il. STATE AND PRIVATE EFFORTS TO CONTROL UNAUTHORIZED

COPYING

Considering the full scope of Chinese legal history, it is apparent
that the Chinese were not indifferent to issues of the unauthorized
reproduction of texts and other items. There is evidence preceding the
establishment of the Zhou dynasty in 1122 B.C. of interest in the ways
in which commodities were identified,32 concern from the Qin with the
distribution of Written materials33 and attention from the Han (206 B.C.
- A.D. 220) to barring the unauthorized reproduction of the classics. '
Nonetheless, it is with the advent of printing3 s during the Tang that one

30. Liu, supra note 17.
31. That the volume of legal matters was far greater than previously assumed is suggested,

for example, by the work of Philip Huang & Kathryn Bernhardt. See Civil Law in Qing and
Republican China (1993).

32. Shangbiaofajiaocheng [A Course of Study in Trademark Law] 17-18 (Zhang Xujiu ed.,
1985).

33. Derk Bodde, China's First Unifier: A Study of the Ch'in Dynasty as Seen in the Life of
Li Ssu. 280?-208 B.C., in 3 Sinica Leidensia (1938).

34. Chang Wejen and William Alford, Maior Issues in Chinese Legal History (1992)
(unpublished course materials, on file with the author).

35. Historians locate the invention of woodblock printing between 590 and 650 and the
development of movable type by Bi Sheng at around the year 1000. Zheng and Pendleton assert
that whereas in the West "the adoption of woodblock printing was not sufficient to dramatically
speed up the publication of books, [iln China the situation was different," due to the use of
Chinese characters rather than a phonetic alphabet. Zheng and Pendleton, supra note 1, at 11-12.
The history of printing in China is discussed in T.H. Tsien, 5 Paperand Printing- Part 1 (1936);

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first finds substantial, sustained efforts to regulate publication and
republication. What appears to have been the first such measure was
issued in A.D. 835 by the Wenzong Emperor in the form of an edict,
which, as was routine, became a part of the Tang Code.36 The decree
prohibited the unauthorized reproduction by persons of calendars,
almanacs, and related items, which, it observed, were being reproduced
in great quantity in the Southwest and distributed throughout China. Far
from being arcane, matters of time and astronomy were central to the
emperor's assertion that he was the link between human and natural
events - and so were to be tightly controlled by court astronomers.
This initial ban on the pirating of officially promulgated works soon
expanded. Before its collapse, the Tang also banned the unauthorized
copying and distribution of state legal pronouncements37 and official
histories, and the reproduction, distribution or possession of "devilish
books and talks" (cao yaoshu yaoyan) and most works on Buddhism and
Daoism.38 Unfortunately, evidence as to the effectiveness of these
various provisions is scant.

Spurred by advances in printing technology and a relative rise in
literacy, the early years of the Song dynasty (A.D. 960-1279) saw a
marked increase in the production of printed materials by both the
Imperial College and "private" persons, many of whom, in fact, were
government officers carrying on sideline activities.39 Concerned about

Thomas F. Carter, The Invention of Printing in China and Its Spread Westward (L Carrington
Goodrich ed., 2d ed. 1955); Paul Pelliot, Les Debuts de l'imperimerie en Chine, in 4 Oeuvres
Posthumes de Paul Pelliot (Robert des Rotours ed., 1953); and Denis Twitchett, Printing and
Publishing in Medieval China (1983).

36. Chan, supra note 1, at 2. See also Qi Shaofu, Zhongguo gudai de chuban he danxing de
chuban faling [Ancient Chinese Publishing and Pertinent Laws of that Time], Shanghai chuban
gongzuo [Publishing Work in Shanghai], Aug. 1980. Wallace Johnson has published a translation
of the General Principles section of the Tang Code and has recently completed translations of
other major portions of the Code. Wallace Johnson, The T'ang Code: Volume 1: General
Principles (1979).

37. Printed versions of state laws were rarely disseminated widely in pre-imperial and
imperial China. Although the populace's limited literacy was obviously a factor, the notion that
law ought not to be widely distributed may have been attributable more to a sense that the
populace had no need for the law, as those persons who had properly cultivated their virtue would
know how to behave without resort to legal rules, while those of lesser character would simply
study the written law in order to find ways around its strictures. Interestingly, the PRC
government continues to restrict access by both Chinese nationals and foreigners to laws to which
they are potentially subject.

38. Chan, supra note 1.
39. The Imperial College, which housed China's "first officially-run publishing house" is

discussed in Zheng and Pendleton, supra note 1, at 12.



INTELLECTUAL PROPERTY IN IMPERIAL CHINA

the proliferation of undesirable printed materials, in 1009 the Zhencong
Emperor ordered private printers to submit works they would publish to
local officials for pre-publication review and registration.40

The principal goal of pre-publication review was to halt the private
reproduction of materials that were either subject to exclusive state
control or heterodox. By the Song, the former category included both
those items covered in Tang Wenzong's edict of 835 and authorized
versions of the Classics (which were only to be reproduced under the
auspices of the Imperial College), model answers to imperial civil
service examinations, maps, and materials concerning the inner workings
of government, politics, and military affairs.41 That deemed heterodox
expanded as well to include the pornographic broadly defined, and
materials that used the names of members or ancestors of the imperial
family, that were written in "inappropriate" literary styles, or that were
"not beneficial to scholars." 42

The penalties crafted by the state to enforce the pre- publication
review system underscored its objectives. Persons failing to obtain
official approval prior to printing works that were neither subject to
exclusive state control or banned altogether might suffer one hundred
blows of the heavy bamboo and the destruction of their printing blocks.
Those who reproduced such controlled or prohibited items risked far
greater punishment.43 The unauthorized reproduction of astronomical
charts, for example, called for a 3,000 1i exile. This was a severe
penalty, indeed, given that one would not only be sent off to a desolate
border region, but would also largely be cut off from one's family,
ancestral burial grounds and linguistic and cultural home base.

One interesting by-product of the Song's pre-publication review
system was that persons who obtained its approval appear at times to
have included in works they printed notices of such state action in an
effort to combat unauthorized reproduction. Typical of these vras a
notice contained in a twelfth-century Sichuan work of history stating that
"This book has been printed by the family of Secretary Cheng of
Meishan which has registered it with the government. No one is

40. Ye Dehui, Shulin Qinghua [Quiet Words in a Forest of Books] 145 (1957).
41. Twitchett, supra note 35. Ye Dehui, supra note 40, at 14345. The penalties contained

in Song's publication laws are discussed in detail in Niida Noboru, Chugoku hoseishikenkyu [The
Legal History of China] (Tokyo: Tokyo University Press, 1964).

42. Lu Guang and Pan Xianmou, Zhongguo xinwen falil gailun, A General Survey of Press
Law in China] 4 (1965).

43. Niida, supra note 41.

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JOURNAL OF CHINESE LAW

permitted to reprint it." 44 Unfortunately for the Cheng family and
others similarly situated, the same laws that so carefully and stringently
penalized unauthorized reproduction of the Classics and banned the
heterodox, neither explicitly forbade the pirating of more mundane
works nor set forth sanctions for so doing. There is some evidence of
printers of the innocuous seeking the assistance of local officials to
combat unauthorized use of their works and even of signs being posted
to that effect - but these efforts appear scattered, 45 ad hoc and may
well have been attributable to the fact that as with Secretary Cheng,
private printers and local officials were often one and the same. Indeed,
by the late Song, the dynasty appears to have had difficulty in securing
enforcement of the bans on unauthorized reprinting of works intended
to be under exclusive state control.46

The Song's imperial successors and especially the Ming (1368-
1644) endeavored to strengthen state control of publication, although
relatively few changes were made to the formal structure of regulation
until the Qing.47 Each post-Song dynastic code specifically forbade the
unauthorized republication of governmental works on astronomy, the
civil service examinations, and other subjects that had long been
considered sensitive. Additionally, each contained provisions banning
"devilish books." These provisions were supplemented periodically by
special decrees - as may be seen, for example, in the Hongwu
Emperor's (1368-1392) orders that all works disparaging the newly
founded Ming dynasty even indirectly through the use of homophonic
puns be eliminated, 4" and in the Qianlong Emperor's (1732-1799)
famous decree of 1774 requiring that all literature be reviewed so that
any containing heterodox ideas could be destroyed.49

44. The original colophon is reproduced in Poon Ming-sun, The Printer's Colophon in Sung
China, A.D. 960-1279, 43 Libr. Q. 39 (1973). Ye Dehui discusses local efforts to bar
unauthorized reproduction at supra note 40, at 37-41, 143-45. See also Twitchett, supra note 35,
at 65.

45. Ye, supra note 40, at 143-45.
46. Yuan Yi, Zhongguo gudai banquan shi kaolile [A Con- sideration of the History of

Copyright in Classical China], 3 Faxue zazhi [The Journal of Legal Studies] 40 (1985).
47. Ye Dehui, supra note 40. See also Ku Chieh-kang, A Study of Literary Persecution

During the Ming, 3 Harv. J. Asiatic Stud. 254 (L. Carrington Goodrich trans., 1938). For a
thorough treatment of mid-Qing efforts to control publication, see L. Carrington Goodrich, The
Literary Inquisition of Ch'ien-lung (rev. ed. 1966).

48. Charles Hucker, The Ming Dynasty: Its Origins and Evolving Institutions 70 (1978). Wu
Kuang-ch'ing, Ming Printing and Printers, 7 Harv. J. Asiatic Stud. 230 (1942-43).

49. Goodrich, supra note 47.



INTELLECTUAL PROPERTY IN IMPERL4L CHINA

Notwithstanding the Ming's goal of exercising more control over
publication, the formal pre-publication review system developed by the
Song appears to have lost much of its vitality. Efforts were made during
the mid- and late Ming to revitalize official control principally at the
local level, but seem not to have been particularly successful, judging
from extensive accounts of the unauthorized reproduction and alteration
of texts for commercial reasons.5" As a consequence, the Qing moved
to strengthen this function of local officials, going so far in 1778 as to
direct the reinstitution of a strict system of local pre- publication
review.51

The high degree of state interest in the control of publication was
not mirrored with regard to the unauthorized reproduction of that which
we now protect through trademark or patent. Although prior to the 20th
century, the Chinese state oversaw matters of commerce and industry
more closely than has typically been recognized,52 it did not develop
comprehensive, centrally promulgated, formal legal protection either for
proprietary symbols or inventions.

The dynastic codes did, through elaborate sumptuary laws, restrict
the use of certain symbols associated with either the imperial family
(such as the five-clawed dragon) or officialdom.53 They also barred the
imitation of marks used by the ceramists of Jingdezhen and others
making goods for exclusive imperial use, 5 and made it illegal for
certain craftspersons to send information about their work out of
China.55 These prohibitions did not, however, presage a broader
pattern of centralized legal regulation.

The absence of direct imperial legal regulation of trademarks and
inventions did not wholly foreclose the development of concern for their
protection against unauthorized use. Northern Song (960-1127) records
reveal that a family named Liu of Jinan, Shandong, used a mark

50. Wu, supra note 48, at 229.
51. Chan, supra note 1, at 23-24.
52. Paolo Santangelo, The Imperial Factories of Suzhou: Limits and Characteristics of State

Intervention during the Ming and Qing Dynasties, in The Scope of State Power (Stuart Schram
ed., 1985). See also Mann, supra note 19.

53. These are described in detail in Ch'u T'ung-tsu, Law and Society in Traditional China
(1961).

54. Gary Hamilton & Lai Zhigong, Jinshi zhongguo shamgbiao yu guanguo dushi shichang
[Trademark and national urban market in late imperial China], in Proceedings of the Conference
on Regional Studies of Modem China (1986).

55. R. Randle Edwards, Imperial China's Border Control Law, 1 J. Chinese L. 33, 57-58
(1987).

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JOURNAL OF CHINESE LAW

containing both a drawing of a white rabbit and an accompanying legend
to extol the virtues of its sewing needles. 56 Nor were the Lius and their
white rabbit alone. Guild regulations, clan rules, and other sources
indicate that producers of tea, silk, cloth, paper, and medicines, among
other products, from at least the Song onward, sought to maintain the
brand names and symbols they had developed by marking their goods,
by declaring that others could not use the marks involved, and by
registering them with guilds and, at times, local officials. 7

Additionally, some - such as the producers of the celebrated Tongren
Temple line of medicines - sought to maintain the confidentiality of
their manufacturing process by only employing family members or
eunuchs, or by keeping vital parts of the process secret from non-family
employees .58

The same documents that yield data regarding efforts to protect
proprietary marks and processes also, however, indicate the great
difficulty of accomplishing that end.59 There appears to have been
massive counterfeiting of famous brand names and marks, as well as
extensive attempts to imitate secret manufacturing processes - often
with questionable results. Merchants and producers endeavored to deal
with these problems both directly and through guild and comparable
organizations, but when all else failed - as appears often to have been
the case - they turned to local officialdom. Help was sought from local
officials not on the basis of any code provision specifically outlawing
such imitating, but instead by imploring their "father-mother" figures to
prevent unfairness and deception.6" Thus, for example, sericulturists
whose "trade-marked" silk in the Shanghai area had been improperly
copied were able in 1856 to seek the assistance of their district
magistrates, who ordered the infringers to stop. 61 Such appeals,
however, do not appear to have been large in number, even taking
account of the anecdotal nature of the evidence available. Nor do they
seem to have been consistently successful.

Although the characterization of imperial Chinese law as wholly
penal obscures the degree to which such law addressed civil matters, it

56. The original mark is reproduced in Zhang Xujiu, supra note 31, at 19.
57. Hamilton and Lai, supra note 53, at 4-15. See also Zhongguo jindai chuban shiliao

[Historical Materials on Chinese Publishing in Recent Times] (Zhang Jinglu ed., 1954-57).
58. Hamilton and Lai, supra note 53.
59. Zheng Chengsi, Chinese Intellectual Property and Technology Transfer Law 21 (1987).
60. Hamilton and Lai, supra note 53, at 4-15.
61. Id.



INTELLECTUAL PROPERTY IN IMPERAL CHINA

does not follow that intellectual property law existed in China centuries
before it arose in the West. Virtually all extant examples of efforts by
the state to provide protection for intellectual property in China prior to
the twentieth century seem to have been directed overwhelmingly toward
sustaining imperial power. These official efforts were only tangentially,
if at all, concerned with either the creation or maintenance of property
interests of persons or entities other than the state, or with the promotion
of authorship or inventiveness. This is perhaps most obvious with
respect to provisions of the dynastic codes barring ordinary people from
reproducing symbols, such as the five-clawed dragon, associated with
the throne or officialdom. It is also evident in the fact that although the
Tang and later dynasties went to considerable lengths to restrict the
unauthorized reproduction of government materials and to ensure the
accuracy of those it licensed, they seem to have been unconcerned about
the pirating or improper editing of other works. Indeed, it is more
accurate to think of pre-publication review and the other restrictions on
reprinting described above, together with the absolute bans on heterodox
materials, as part of a larger framework for controlling the dissemination
of ideas, rather than as the building blocks of a system of intellectual
property rights, whether for printers, booksellers, authors, or anyone
else.

Only the efforts of printers, booksellers and other guilds or
merchants to establish their particular monopolies seem to presage that
persons or entities other than the state might enjoy an interest in what
we now term intellectual property akin to the protection enjoyed
throughout much of imperial Chinese history with respect to tangible
personal property or real property.62 Even this limited interest in
intellectual property appears to have been tolerated by the state and its
local representatives chiefly because it advanced other objectives. It is
no coincidence that official expressions of concern about unauthorized
copying often focused either on the textual distortions and errors
contained in pirated editions of the Classics, dynastic histories, and other
orthodox works, or on the fact that pirates were violating monopolies
granted to local officials or to influential gentry in their districts, and so
were disrupting local peace. Similarly, one need not be unduly cynical

62. The best source for evidence of these efforts is Ye, supra note 40. For more on the
history of real property in China, see Niida, supra note 41. Also Professor James Feinerman of
the Georgetown University Law Center is now doing research on the mortgage-like transaction
known as the dian.

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JOURNAL OF C-HNESE LAW

to view the motivation behind the state's implicit and occasionally
explicit support for guild efforts to maintain the exclusive use of trade
names and marks as the preservation of social harmony by keeping order
among business persons and reducing instances of deception of the
populace.

III. THE POWER OF THE PAST

The Chinese, obviously, were not alone in linking the assertion of
state interest and the protection of what we term intellectual property.
In both the common and civil law worlds, the idea of limiting the
unauthorized copying of books first arose not from a belief that the
contents of such works were the property of their authors, but from the
crown's desire to provide printers with an incentive not to publish
heterodox materials. 3 So, too, the early history of patent law in the
West illustrates the crown's desire to consolidate its position through a
strengthening of the state, rather than acknowledgment of any inherent
property interest of the inventor.' Thus, for example, the English
throne awarded patents to foreigners who introduced new products,
processes, or inventions to England even if those persons were not the
inventors of the innovation in question.65

But the seventeenth and eighteenth centuries witnessed the
development in Europe of approaches toward intellectual property that
had no counterpart in imperial China. Simply stated, there developed in
England and on the Continent the notion that authors, inventors and
other innovators had a property interest in their creations that could be
defended against the state.66 Society, growing numbers of people came
to believe, would benefit by providing such persons with the incentive

63. With respect to England, see Lyman Patterson, Copyright in Historical Perspective36-41
(1968). See also Elizabeth Eisenstein, The Printing Press as an Agent of Change (1979). With
regard to France, see Robert Darnton, The Literary Underground of the Old Regime (1982).
Others would link copyright far more to the rise of the romantic construct of "authorship." See
Martha Woodmansee, The Genius and the Copyright: Economic and Legal Conditions of the
Emergence of the "Author," 17 Eighteenth-Century Studies 425 (1984).

64. Fritz Machlup, Patents, in 11 The International Encyclopediaof the Social Sciences 461,
462-63 (David Sills ed., 1968).

65. W. R. Cornish, Intellectual Property: Patents, Copyright, Trademarks and Allied Rights
(2d ed. 1989).

66. See Patterson, supra note 63; Machlup, supra note 64, at 462-467; Nathan Rosenberg
and L.E. Birdzell, Jr., How the West Grew Rich: The Economic Transformation of the Industrial
World (1986); North and Thomas, supra note 2.



INTELLECTUAL PROPERTY IN IMPERIAL CHNA

to engage in such work and disseminate their results. This stood in stark
contrast to China, which continued to regulate this area predominantly
with respect to how it might best maintain the state's authority.

To take heed of this distinction is not to suggest that the Chinese
ought to have followed the same course as the West.67 Instead, it is to
ponder why a civilization that for centuries paid particular attention to
the regulation of publication, that for long was a world leader in science
and technology, and that celebrated at least certain types of
innovation" did not provide more comprehensive protection for its rich
bounty of creation.

Neither Chinese nor foreign scholars of intellectual property law
contribute much to such an inquiry. The former, for example, typically
treat imperial efforts to control the dissemination of ideas as limited to
copyright, and so end the inquiry there.69 They see little need to
consider why - if China had copyright from the Tang dynasty -
enforcement appears to have been negligible, subsequent foreign efforts
to foster such law were unavailing, and other forms of intellectual
property law were not forthcoming in a sustained fashion. Foreign
scholars also provide scant assistance. Surprisingly few of the Western
scholars who write about intellectual property have endeavored
analytically to trace the development of such law in the West, let alone
elsewhere. Instead, most recent scholarly writing touching on such
development either consists chiefly of historical narrative70 or portrays
intellectual property law solely in terms of economic development - be
it as a concomitant of industrialization in general or as a response to
particular technological breakthroughs."

Clearly, economic development cannot be excluded from the list of
important factors as one ponders why imperial China did not provide
systematic protection for the fruits of innovation and creation. In terms
of overall levels of development, China may well have been as
technologically advanced and as generally prosperous throughout much

67. Alford, supranote 25; William Alford, On the Limits of "Grand Theory" in Comparative
Law, 61 Wash. L. Rev. 975 (1986).

68. RobertTemple, The Genius of China: 3,000 Years of Science, Discovery and Invention
9-12 (1986); Frank Ross, Jr., Oracle Bones, Stars and Wheelbarrows: Ancient Chinese Science
and Technology (1982); Needham, supra note 11.

69. See, e.g., Zou, supra note I or any of the witings of Zheng Chengsi.
70. A fine example of such work is Patterson, supra note 63.
71. See, e.g., Adelstein and Peretz, supra note 2.

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JOURNAL OF CHINESE LAW

of the Tang and Northern Song as any area in the world.72

Nonetheless, it was still pre-industrial and so had little of the
inexpensive mass production that industrialization facilitates and that is
typically viewed as a precursor to the creation of intellectual property
law.73

The same point might be made even with respect to those fields -
such as printing - in which China was for long far ahead of the West
technologically.74 To be sure, contrary to what general theorists of the
growth of intellectual property would posit, the Tang invention of
printing and the Song development of movable type did not generate law
designed to restore the "exclusionary barriers to the inexpensive
appropriation of intellectual goods" made possible by this technological
breakthrough.75 This does not mean, however, that economic factors
are of no use in illuminating the history of intellectual property law in
China. As the Cheng family's twelfth-century notice about book
registration or the Liu family's crude white rabbit drawing imply, at
least some people whose livelihood emanated from "intellectual goods"
were concerned with securing protection for them. Moreover, other
factors of an economic nature may have some explanatory force. These
the size of the market for books in a society with no more than
approximately twenty percent literacy by the twentieth century76 and
the absence of corporate bodies capable of generating capital needed for
large-scale commercial innovation.77

If economic considerations are not wholly irrelevant to
understanding imperial Chinese attitudes towards intellectual property,
nor do they fully explain them. What might be described as political
culture clearly has much to tell us about the inquiry at hand. Lying at
the core of traditional Chinese society's treatment of intellectual property

72. Joseph Needham, Science and Society in East and West, in The Grand Titration (Joseph
Needham ed., 1969).

73. Adelstein and Peretz, supra note 2.
74. Tsien, supra note 35.
75. Adelstein and Peretz, supra note 2. Similar views are voiced by Zheng and Pendleton

who assert that the "fact that the concept of copyright was formed after such a leap [to movable
type] shows that the development of law always follows the development of technology." Zheng
and Pendleton, supra note 1, at 14.

76. Richard J. Smith, China's Cultural Heritage 201 (1983). The wide variety of vernacular
works circulated in the Ch'ing Dynasty contributed to the growth of basic literacy in China -

estimated by some to be as high as 30-45% for males and 2-10% for females.
77. Lloyd Eastman, Family, Field and Ancestors: Constancy and Change in China's Social

and Economic History 1550-1949 (1988).



INTFILECTUAL PROPERTY IN IMPERIAL CHINA

was the dominant Confucian vision of the nature of civilization and of
the constitutive role played therein by a shared and still vital past.'

The dominant Confucian vision saw civilization as defined by a
paradigmatic set of relationships, each bearing reciprocal, though not
necessarily equal, responsibilities and expectations that the parties
thereto were morally bound to fulfill. 79 Typically, individuals found
themselves in a number of such relationships - the most important of
which were those between ruler and subject, father and son, and
husband and wife.s" Only through encountering the past - which
provided unique insight into the essence of one's own character,
relationships with other human beings, and interaction with nature -
might individuals, guided by nurturing leaders, understand how properly
to adhere to those relationships of which they were a part.8'

The dual functions of the past - as the instrument through which
individual moral development was to be attained and the yardstick
against which the content of the relationships comprising society was to
be measured - posed a dilemma. The indispensability of the past for
personal moral growth dictated that there be broad access to the common
heritage of all Chinese. Yet the responsibility of senior members of
relationships for the nurturing of their juniors82 - together with the
fact that reference to the past, far more than public, positive law or
religion, defined the limits of proper behavior in what was a series of
unequal relationships - militated toward more controlled access. As will
be explained in detail below, however, both functions fostered concerns
that not only had little to do with thinking of the fruits of intellectual
endeavor as private property, but, indeed, worked against such an idea.

The relationship of ruler and ruled exemplified the power of the
past while also illustrating the rationale for providing measured access
to it. The notion of the people as a family, with the ruler as parent, is
one that has had great and enduring currency from pre-imperial days.8 3

In that capacity, the ruler had a fiducial obligation to provide for both

78. For a compelling discussion of the importance of the idea of the past in Chinese
civilization, see Stephen Owen, Remembrances: The Eaperience of the Past in Chinese Literature
(1986).

79. The importance of these relationships is discussed in Alford, supra note 25.
80. Donald J. Munro, The Concept of Man in Early China 24 (1969).
81. Hsiao Kung-ch'uan, A History of Chinese Political Thought 89-92 (F. W. Mote trans.,

1979), at 90-94.
82. Tu Wei-ming, Centrality and Commonality: An Essay on Confucian Religiousness

(1989).
83. Alford, supra note 25.

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JOURNAL OF CHINESE LAW

the spiritual and physical well-being of the populace, who, in turn, were
to be loyal and productive. Although the Chinese early on had a far
more sophisticated legal system than has typically been recognized at
home or abroad, the very nature of this relationship was such that
public, positive law could serve neither as the primary instrument for
ensuring that the people genuinely understood what was expected of
them nor as a means for encouraging rulers to discharge their
responsibilities in a suitable fashion. As Confucius indicated in The
Analects, "Govern the people by regulation, keep order among them by
chastisements, and they will flee from you, and lose all self-respect.
Govern them by moral force, keep order among them by ritual, and they
will keep their self-respect and come to you of their own accord." 84

The standards meant to govern the ruler-subject relationship -

virtue and the rules of propriety - derived their content and legitimacy
chiefly from the common heritage of the Chinese people, rather than
from any action, be it political, legal or otherwise, of contemporaneous
figures, including the ruler himself. Indeed, much the same point might
be made with respect to the entire moral ethos that underlay Chinese
civilization. 5 Nowhere is this more apparent than with the 1i - the
"rites" that defined morality and propriety. Having evolved from a set
of rituals to a code of conduct well before the time of Confucius, 6 the
1i at once embodied and expressed the most profound insights and
experience of the so-called Ancients who established society and
compiled the Classics. 7 As such, the 1i fostered a mutually reinforcing
personal and social ordering that simultaneously joined the present with
that which came before and that which was to follow.

This sense of the power of the past was also manifested in the
concept of the rectification of names (zhengming) which Confucius
indicated would be the "first measure" he would advise a ruler to
institute upon assuming power.88 In essence, it involved the expectation
that current rulers would carry out their responsibilities in a manner
consistent with the moral standards set by their most worthy

84. The Analects, supra note 27, at 88 (Bk. II, Ch. 3).
85. David L. Hall & Roger T. Ames, Thinking Through Confucius (1987).
86. Alford, supra note 25.
87. Id.
88. The Analects, supra note 27, at 171-72 (Bk. XIII, Ch. 3). The idea of a "rectification

of names" has had enduring currency with China, as evidenced, for example, by the use of that
term by the leadership of the Chinese Communist Party to describe efforts in the early 1980's to
encourage the retirement of certain cadres resistant to Deng Xiaoping's policies.



3 IIIELLECTUAL PROPERTY IN IMPERIL CHINA

predecessors. The idea of the Mandate of Heaven (tianming) embodied
a similar expectation. It, in effect, provided that rulers failing to
discharge their responsibilities in keeping with such standards - which
had their genesis in pre-imperial days8 9 and, presumably, were known
in general form to all9" - might lose the Mandate and, with it, their
claim to rule.91 In short, a shared past defined the limits of legitimate
power in the present.

Given the potential validating - and invalidating' - force of the
past, those with or aspiring to power, sought to cloak themselves in the
past, while also tailoring it to suit their particular needs. The desire to
draw upon the legitimating capacity of the past is evident in the degree
to which the basic structure, forms and images of imperial governance
persisted, even as their content may have changed, throughout two
millennia of growth, upheaval and violent transitions of power. Indeed,
even rebels seeking to dislodge those in power consistently structured
the alternatives they proposed so as to gain legitimacy from the past.'

89. David N. Keightley, The Religious Commitment: Shang Theology and the Genesis of
Chinese Political Culture, 17 History of Religions 211, 220 (1978).

90. Hok-lain Chan, Legitimation in Imperial China: Discussions under the Jurchen-Chin
Dynasty, 1115-1234 (1984).

91. In the words of the Shu Jing (The Book of Documents), one of the great classics of the
Chinese tradition, the last Shang (1700-1122 B.C.) ruler had "no clear understanding of the
respect due the people; he maintained and spread far and wide resentment and did not change.
Therefore, Heaven sent down destruction on Yin [and replaced it with the next dynasty, the
Chou] .... It was due to [such] excesses. Heaven is not tyrannical." The Announcement About
Drunkenness, translated in Bernhard Karlgren, Book of Documents, Museum of Far Eastern
Antiquities Bulletin, at 1.

92. The invalidatingpower of the past, was evidenced, for example, by Kang Youwei (1858-
1927), the controversial late Qing scholar and reformer. Believing that the state orthodoxy of his
day impaired China's modernization, in his book Xinxue weijinq kao [A Study of The Forged
Classics of the Xin Period], Kang sought to expose as inauthentic certain of the key Confucian
Classics relied upon heavily by conservatives surrounding the Guangxu emperor. In turn, he
argued that an accurate reading of authentic Confucian texts provided unmistakable support from
the Master himself (who Kang claimed had written, rather than edited, the texts in question) for
a host of reforms. These included a curtailing of imperial power, the introduction of elections, and
the abolition of the family in favor of voluntary cohabitation arrangements that could be altered
annually. Kang's efforts to appropriate and recast the past earned him wide-spread denunciation
and an imperial ban (later briefly lifted) on much of his writing. Among his critics was the
conservative scholar Ye Dehui, whose book on Song publication practices is relied on elsewhere
in this study. "K'ang Yu-wei's face," wrote Ye, "is Confucian... but his heart is barbarian."
Immanuel Hsu, The Rise of Modern China 382 (3d ed. 1970).

93. Philip Kuhn, The Taiping Rebellion, in 10:1 Cambridge History of China: Late Ch'ing
1800-1911 264 (John King Fairbank & Denis Twitchett eds., 1978).

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JOURNAL OF CI-INESE LAW

The power of the past was also to be found in the reliance of
Chinese rulers from the Sui (A.D. 581-618) onward for thirteen
centuries on the world's first civil service.' 4 At least in theory, from
its earliest days, officials were to be identified through an examination
system that viewed knowledge of the past - both in terms of the
questions asked and the manner in which they were to be answered -
as evidencing the attributes requisite to resolving the problems of the
present.95 This, in turn, greatly influenced the character of education.
After all, a thorough immersion in the Classics would surely do more
for the development of character and, with it, the ability to serve in
government effectively than would more technical training. The latter,
by its very nature, had little to say about morality and therefore, could,
be left to those whose virtue had not developed to the point where they
could benefit fully from a classical education.96

The legal system displayed this same concern with deriving
legitimacy through association with the past. Thus, the basic conceptual
and classificatory framework for the imperial code continued largely
unchanged from its pre-imperial precursors through the Sui, during
which it was modified only in part.97 This revision, in turn, set the
basic format for imperial codes through to the end of the imperial era,
with the result that "30 to 40 percent of the statutes in the Ch'ing Code
[operative until the twentieth century] go back unchanged to the T'ang
Code of 653. "" Once again, as was the case with the structure of
government and, as we shall see, with literature and the arts, this
unswerving employment of the past ought not to mask the fact of
enormous change but should instead highlight the context within which
that change occurred. After all, the remaining 60 to 70 percent of "the
statutes in the Ch'ing Code" did change, while even the 30 to 40 percent
that remained unchanged on their face were in fact transformed through

94. Teng Ssu-yd, Chinese Influence on the Western Examination System, 7 Harv. J. Asiatic
Stud. 267 (1943). In this article, Professor Teng traces the impact of the Chinese method for
selecting imperial officials upon the British civil service system.

95. Id.
96. Thomas H. C. Lee, Government Education and Examinations in Sung China (1985).
97. Bodde and Morris, supra note 9.
98. Id. at 63. Bodde and Morris rely on the Duli cunyi in reaching this estimate.



99VTELLECTUAL PROPER7Y IN AMPERAL CHINA

an extensive additional body of law, including an ever-evolving array of
sub-statutes. 99

Contrary to what one might initially expect, the imperial Chinese
legal system did not adhere to a formal system of binding precedent,
although, in fact, magistrates and other officials involved with the law
did draw upon compilations of prior cases as they reached and sought
to justify their decisions.'00 But upon reflection, the absence of binding
precedent may actually have connoted an even greater embracing of the
past - as the Confucian morality and wisdom of the ages that officials
were assumed to have cultivated in preparing for and taking the imperial
examinations were surely seen as a truer and more historically valid
guide for making decisions than any set of rules formulated or cases
resolved by one's predecessors in office.' 0'

99. The use of sub-statutes is discussed at Bodde and Morris, supra note 9, at 63-63.
Evocation of the past was, of course, not the only way in which the Chinese state used its legal
system to evidence its majesty. Centuries before Foucault, the Chinese state displayed a keen
appreciation that a symbolic infliction of punishment might carry an even greater force than its
actual counterpart. Michel Foucault, Discipline and Punish: The Birth of the Prison (1977). At
least from the Han dynasty (206 B.C. - A.D. 220) onward (and some would suggest long before
the formation of imperial China in 221 B.C.), the death penalty was divided so that execution of
all but the most egregious offenders was to be delayed until "after the autumn assizes." Although
this procedure may have had its genesis in the effort to align human and natural affairs by
deferring executions until the time of greatest death in the natural world, the Chinese soon took
to using it simultaneously to display the state's awesome power and its great benevolence.
Individuals often were sentenced to death after the assizes (or following two years) only to be
spared by a state wishing to appear magnanimous once the requisite time had elapsed.

A comparable appreciation of the value of symbolic punishment is also evident in the Qing
Code directive that officials only inflict but a small fraction of the blows of the bamboo (be it
heavy or light) to which criminals might be punished. Again, it %as presumed that those so
sentenced would both understand the severity of the punishment due them and appreciate the
state's decision to accord them leniency.

As these examples and this essay more generally illustrates, many of the ideological and
psychological devices that Jurgen Habermas suggests result from the efforts of modem states to
legitimate themselves appear to have had clear antecedents in imperial China. Jurgen Habermas,
Legitimation Crisis (Thomas McCarthy trans., 1975).

100. One such compilation was the Xing'an huilan. It v-as comprised of cases in posession
of the Board of Punishments compiled on an unofficial basis by officials of the Board for the
benefit of magistrates.

101. Much has been made of what Ch'u T'ung-tsu three decades ago termed the
"Confucianization" of the law, by which he meant the absorption during the Han of Confucian
values into the law. This process led, for example, to the law's mandating of far harsher penalties
when juniors struck their seniors than vice versa. Work remains to be done, however, on what
might be termed the "legalization" of the Confucians - by which I mean the impact that use of
the law had on the thinking of Confucian oriented scholar-officials for whom formal legality was
said to be an inferior social norm. It is hard to imagine that such officials could have used the law
as extensivelyand adroitly as many in fact did without its ways of lookingat the world influencing

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Use of the past to mold the present also took a darker form. Early
on, the Chinese came to recognize that those who controlled the
compilation of history, the interpretation of its lessons and the
characterization of the current dynasty for historical purposes wielded
great influence. This led to the establishment by the Han and emulation
by subsequent dynasties of elaborate state historiographic offices that
engaged in the world's most systematic continuous gathering of
historical data prior to the twentieth century. 10 2 But, less positively, it
also lay behind repeated attempts throughout imperial history to shape
the content of the historical record. Small wonder, then, that, in an
ominous foreshadowing of future efforts at such control, the Han
subjected the epochal historians Sima Qian and Pan Ku to castration and
imprisonment, respectively, for engaging in unsanctioned historical
work.1 3 Nor ought it to be surprising that rulers from Qin Shihuang
in the earliest years of the first dynasty" to Qianlong °5 in the
ebbing years of the last should endeavor to eradicate all they deemed
heterodox. As Li Ssii, China's first prime minister and advisor to Qin
Shihuang, is reported to have said, "Anyone referring to the past to
criticize the present should, together with all members of his family, be
put to death.""0 6

As important as the acquisition and maintenance of imperial power
may have been, there was more to efforts to regulate intellectual
endeavors than the desire to buttress such claims. Coinciding with and
obviously reinforcing these secular concerns was the idea of the ruler as

them, consciously or otherwise. For a brief further discussion of this, see William Alford, Law,
Law, What Law? Why Historians and Social Scientists Have So Little to Say About the Law of
China, in Justice and Discretion in Chinese Law (Karen Turner et al. eds., forthcoming).
Extremely interesting work on related concerns is being done by Professor Karen Turner (focused
on notions of legality in early China) and by Adam Alfert and Mary Buck (each of whom is
exploring the interaction between formal legality and Confucian ideals in magisterial decision-
making).

102. Historians of China and Japan (W.G. Beasley and E.G. Pulleyblank eds., 1961).
103. Burton Watson, Records of the Grand Historian of China: Translated from the Shih-chi

of Ssu-ma Ch'ien (1961); Edward G. Pulleyblank, The HistoriographicalTradition, in The Legacy
of China 143, 152-53 (Raymond Dawson ed., 1964).

104. Bodde, supra note 33. In a fascinating example of the vitality of the past for
contemporary discourse, articles published about the Qin in the PRC in the wake of the June 1989
suppression of the pro-democracy movement attempt to play down the number of persons executed
2,200 years ago and suggest that they were unworthy individuals. See, e.g., Wang Ningjun, Talo
of Qin Scholars Being Buried Alive is Challenged, China Daily, Aug. 1, 1989, at 5.

105. Goodrich, The Literacy Inquisition, supra note 47.
106. Shi ji 87, 66-67a, quoted in Watson, supra note 103.



IN9]TTECTUAL PROPER7Y IN IMPERIAL CHINA

fiduciary. In that capacity, the ruler not only had the authority, but also
the responsibility, to ascertain how best to nurture the populace. Central
to that responsibility was the need to determine which knowledge
warranted dissemination and which ought to be circumscribed in the best
interests of the commonwealth. The strength of this vision of the ruler's
parental-like posture vested imperial efforts at controlling the flow of
ideas with a legitimacy beyond that of a desire to retain power, while
suggesting that there was a greater coherence to such regulation than
scholars have typically assumed. 07

"Lacking," as Thomas Metzger has put it "John Stuart Mill's
optimistic view that good doctrines would emerge victorious out of a
free marketplace of ideas, Chinese political philosophers since Mencius
and Xunzi have instead emphasized the human tendency to become
deluded through the interplay of 'false' and 'correct' doctrine." 103 in
his role as fiduciary, the ruler, consequently, had an affirmative
obligation to filter out and destroy harmful knowledge, such as that
found in "devilish books and talks," which might contain pornographic,
as well as politically and religiously suspect materials, rather than permit
it to delude his charges. By the same token, there were certain types of
information, such as that contained in maps, calendars, and astronomical
texts, for which the emperor and his officials alone had use in their
fiduciary capacity. Conversely, the spread of other knowledge, such as
that embodied in the Classics, might benefit society and, not
coincidentally, enhance the imperial position. This, in turn, justified
assistance to persons having the Imperial College's permission to reprint
approved versions of such works, especially in their attempts to stem the
production of "butchered summaries" and otherwise inaccurate copies.
And, finally, there was further knowledge - neither orthodox,
heterodox, nor official - that the imperial government did not endeavor
directly to protect, bar, or otherwise regulate, with the result that its
treatment varied even more widely according to local circumstance.

The throne's ongoing efforts to define and supervise the realm of
acceptable ideas was not as avowedly totalitarian as they might initially
have seemed, given that the shared past that placed a premium on such

107. Goodrich, The Literary Inquisition, supra note 47.
108. Thomas Metzger, Foreword to Moral Behavior in Chinese Society xiv (Richard Wilson

etal. eds., 1981).
This same mentality may be evident in the principal PRC translation of United States

Supreme Court cases that excludes all dissenting opinions on the ground that they represent
incorrect views and so do not warrant study.

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control perforce harbored a collective memory of the outer limits of
power.1"9 Nonetheless, the state's emphasis clearly was focused far
more on political order and stability than on issues of ownership and
private interests. This did not, to be sure, preclude state support for
persons seeking to prevent others from infringing on their monopoly
over the reproduction of certain materials and symbols. Through its pre-
publication review procedures, the state protected the monopoly of
printers to whom it had entrusted reproduction of authorized versions of
certain materials such as the Classics. So, too, as has been discussed
above, the state, both directly through local magistrates and indirectly
through its tacit delegation to specified local groups of considerable
responsibility in the commercial area, supported families, guilds and
others in their efforts to maintain the integrity of their trade names and
marks. But in each instance, this protection emerged from and was,
ultimately, to be defined by the state's interest in fostering overall social
harmony.

The rationale for imperial Chinese protection of intellectual
property dictated the character of that protection. Neither formal nor
informal bodies of law provided families, guilds and others seeking to
preserve their monopoly over particular items with "rights" that might
be invoked to vindicate their claims against the state or against others
throughout China. Nor was the provision of state assistance, whether
direct or indirect, merely a matter of privilege. In keeping with the tenor
of the fiducial bond underlying the relationship between ruler and ruled,
there existed among civilized persons expectations as to what was
appropriate and fair, and, with that, a sense that efforts could be made
to invoke the assistance of magistrates and other representatives of the
state in the event those expectations went unfulfilled. So it was that
printers charged with responsibility for printing certain texts, or guilds
which had developed particular medicines might seek to invoke
magisterial discretion with respect to persons appropriating what fairness
and custom dictated was theirs. And so it was that magistrates might
choose to exercise their discretion to redress such grievances and to

109. Attempts to stretch that collective memory included not only the denunciation of texts
as unauthentic (as Kang Youwei did) but also the "discovery" of what were said to be long lost
versions of classics. Indeed, by the late Qing, there were so many key texts being "rediscovered"
that Liang Qichao (who commenced his public career as an ally of Kang's) later deplored what
he saw as efforts retroactively to add passages to ancient texts and then claim their discovery.
Liang Qichao, Yinbingshe heji quanji [Collected Works and Essays from the lee-drinkers' Studio]
(Beijing reprint, 1989).



INTELLECTUAL PROPER7Y IN IMPERIAL CINA

maintain harmony both by vindicating the aggrieved and preventing
abusers from injuring the public through the dissemination of improper
products." 0

The content of expectations as to the appropriateness of individuals
and groups exercising control over the expression of particular ideas
derived, in turn, from the critical role that a shared past played in the
Confucian understanding of both individual moral and collective social
development. Simply stated, the need to interact with the past curtailed
sharply the extent to which it was proper for anyone other than persons
acting in a fiducial capacity to restrict access to its expressions.

The power of the past and its consequences for possession of the
fruits of intellectual endeavor are well-captured in the passage in The
Analects in which Confucius indicates that "The Master [i.e., Confucius
himself] said 'I have transmitted what was taught to me without making
up anything of my own. I have been faithful to and loved the
Ancients.'""' The essence of human understanding had long since
been discerned by those who came before and, in particular, by sage
rulers collectively referred to as the Ancients who resided in a distant
and, no doubt, idealized "golden age."" 2 Subsequent generations
could avail themselves of it and employ it as an exemplar for their own
behavior only through interacting with the past in a sufficiently thorough
fashion so as to be able to transmit it." 3 Yet, as Confucius himself
demonstrated in undertaking to edit the Classics and to comment on
them in The Anaects, the very act of transmission, far from being a
passive endeavor, entailed selection and adaptation if it was to be
meaningful to oneself, one's contemporaries and one's successors." 4

110. The evaluation of magistrates was based, in part, on the extent to which they maintained
"harmony" within their districts - thereby providing them with a strong incentive to discourage
litigation and other actions that would be seen as disharmonious by their superiors. Bodde and
Morris, supra note 9.

111. The Analects, supra note 27, at 123 (Bk. VII, Ch. 1).
112. Benjamin I. Schwartz, The World of Thought in Ancient China 63-64 (1935).
113. Owen, supra note 79, at 18.
114. As Zhu Xi (1130-1200), the progenitor of Neo- Confucianism, observed "at that time

[i.e., when Confucius lived], the work of creation was fairly complete; the Master [i.e.,
Confucius] therefore made a Great Synthesis [dacheng] of the various Sages and struck a Mean.
Although this was 'transmission,' his merit was twice that of 'making.' One must understand this
also," quoted in Christian F. Murck, Introduction to Artists and Traditions xii (Christian F.
Murck ed., 1976). See also Ju-hsi Chou, Through The Disciples' Eyes: Transmission of Art and
Group Interactions in the Ming and Qing Periods, in Heritage of the Brush: The Roy and Marilyn
Papp Collection of Chinese Painting, 11-21 (1989).

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This sense of the past's compelling pertinence and of intellectual
endeavor as the medium through which interaction with and transmission
of it was possible permeated virtually all facets of Chinese civilization.
As the noted scholar of Chinese literature Stephen Owen has observed
"[i]n this [i.e., the Chinese literary] tradition the experience of the past
roughly corresponds to and carries the same force as the attention to
meaning or truth in the Western tradition." . 5 Thus, in classical
Chinese literature, the past survives and warrants consideration not
merely as an obvious foil for contemporary activity," 6 but more
importantly, because "the Confucian imperative insists that in
encountering the ancients, we ourselves must be changed [for] we
discover in the ancients not mere means but the embodiment of
values. "117

The process of transformative engagement with the past was, in
turn, made possible through reliance in Chinese literature and especially
classical Chinese poetry upon a common body of allusion and reference
commencing with the Classics and built up over time. To be sure, as
T.S. Elliot has observed, all poetry"' - and, one might add, all
literature - draws upon and therefore owes an obligation to the past.
And yet this use of shared imagery in Chinese literature is
distinguishable from its seeming counterparts elsewhere. In Joseph
Levenson's words, "to cite the Classics was the very method of
universal speech""1 9 to a further reaching and more enduring degree
than even the Bible in the Judeo-Christian world or the Quran in Islam.
As the "very method of universal speech," such allusion and reference,
in effect, constituted a sophisticated cultural shorthand that was
potentially accessible, at least in theory, throughout the civilized (i.e.,
sinicized) world, facilitating access from the present to the past or, for
that matter, the future.

To speak of the relative omnipresence of the past and the existence
of a unique, shared intellectual vocabulary is not to suggest that classical
Chinese poetry was lacking in originality any more than it is to dismiss
transmission as but a mechanical process. Rather, it is to underscore the
context within which originality arose and was expressed and, in so
doing, to heed what the fourteenth-century poet Kao Ping (1350-1423)

115. Owen, supra note 79, at 2.
116. Id. at 14-15. See also Alford, supra note 26.
117. Owen, supra note 79, at 15.
118. T.S. Eliot, Notes Toward the Definition of Culture 117-18 (1949).
119. Joseph Levenson, I Confucian China and Its Modern Fate xvii (1958).



INTELLECTUAL PROPERTY IN IMPERIAL CHINA

termed "innovation within the bounds of orthodoxy" (chengzhong zhi
bian).120 Indeed, over time, Chinese poets and literary theorists have
expressed a myriad of views as to the very question of what constituted
appropriate interaction with the past. Some, such as the influential late
Ming advocate of a return to antiquity (fligu) Li Mengyang (1472-1529),
argued for a fairly literal following of the past, saying that "prose (wen)
must be like that of the Ch'in (221-207 B.C.) or the Han (206 B.C.-220
A.D.), and poetry (shih) must be like that of the High T'ang."12 1 This,
they contended, was justified because the rules used by the ancients
"were not invented by them, but really created by Nature... (so that]
when we imitate the ancients, we are not imitating them but really
imitating the natural law of things."12 Others, such as Yuan Zhongdao
(1570-1624) of the Gongan school, took a very different view,
suggesting that in their desire to "imitate words and lines" of earlier
literature, Li Mengyang and his colleagues missed the more essential
"meaning and flavor" (yiwei) animating the great poetry of the
Tang."~ But what united such disparate views - and indeed, classical
literature more broadly - was the need to address in so central a
fashion the past and approaches to it.

Poetry, of course, was but one literary form in which this concern
was evidenced. In the much prized discipline of history, the model not
only for the standard dynastic histories (zheng shiz) compiled for almost
two millennia, but for "history writing of all kinds," was, in the words
of the historiographer Edward Pulleyblank, "a patchwork of excerpts,
often abridged but otherwise unaltered, from [the historian's] . . .
sources, with any personal comment or judgment kept clearly
separate.""2 This structure, suggests Pulleyblank, grew out of the
belief that "the work of the historian was to compile a set of documents
which would speak for themselves rather than to make an imaginative
reconstruction of past events."" As was the case with the
transmission of the Ancients by Confucius himself, or the heavy

120. Richard J. Lynn, Alternate Routes to Self-Realizationin Ming Theories, in Theories of
the Arts in China 317, 322 (Susan Bush & Christian F. Murck eds., 1983).

121. Id. at317.
122. Jonathan Chaves, The Panoply of Images: A Reconsiderationof the Literary Theory of

the Kung-an School, in Theories of the Arts in China, supra note 120, at 341, 357.
123. Id. at 343.
124. Edward Pulleyblank, The Historiographic Tradition in The Legacy of China 134

(Raymond Dawson ed., 1964).
125. Id.

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employment of allusion and references to the Classics in poetry and
other literary forms, this manner of historical inquiry should not be
construed as connoting a lack of originality. As Pulleyblank observed,
"the selection and arrangement of [the historian's] . . . material called
for the exercise of critical judgment, and conclusions about the causes
of events or the characters of historical persons could be expressed
separately in the appropriate place. "126

The concern with the past evidenced in classical poetry and
literature was mirrored in Chinese painting and calligraphy. As with
poetry, engagement with the past validated the present 2

' by posing
"the resource of [the] past to renew ... life repeatedly in the recurrent
present."' 28 For many, the artistic process itself, accordingly, was
understood as a "spiritual exercise" through which one's moral sense
might be both expressed and enhanced. 29 This was particularly true
for the literati (wenren) who, at least in theory, subscribed to the notion
of the famed Song artist Mi Fu (1051-1107) when he wrote that "[i]n
matters of calligraphy and painting, one is not to discuss price. The
gentleman is hard to capture by money."' 3 °

Although later in its genesis and less catholic in its force, a
common vocabulary emerged in painting and calligraphy that facilitated
communication across time and space.' As was the case with
literature, there was much debate among both artists and theorists 3 2

as to the most appropriate way in which to relate to the past. Some,
such as the "orthodox school" of the early Qing, saw a "lineage" in
painting parallel to "the succession of Confucian philosophers from
Confucius himself down to Wang Yang-ming in the Ming dynasty"' 33

and to which they advocated fairly literal adherence, at least as a
departure point.'34 As Wu Li (1632-1718) put it, "paint without taking
the Sung and Yuan masters as one's basis is like playing chess on an

126. Id.
127. Frederick W. Mote, The Arts and the "Theorizing Mode" of Chinese Civilization, in

Artists and Traditions, supra note 114, at 7.
128. Susan Bush, The Chinese Literati on Painting: Su Shih (1037-1 101)to Tung Ch'i ch'ang

(1971).
129. Levenson, supra note 119, at 21.
130. Artists and Traditions, supra note 127.
131. Bush, supra note 128.
132. Id.
133. James Cahill, The Orthodox Movement in Early Ch'ing Painting in Mucrck, supra note

114, at 180.
134. Id.



INELLECTUAL PROPERTY IN AIPERL4L CHINA

empty chessboard, without pieces."135 Others took a far more
expansive view, arguing that painting should be less literal and should
instread strive to capture the ideas that animated earlier work."3 6 As
Shen Gua (1030-1094) wrote:

The excellence of painting and calligraphy should be
sought through sympathetic identification [with the essence of
any given work of art] (shenhut) and not through formal
elements ....

When the Ancients studied calligraphy, they did not copy
exactly. They spread out the writing of a predecessor on the
wall and looked at it in complete absorption. Then, when they
put brush to paper, it was in accordance with the writer's
idea.

137

Again, as with poetry, however much artists and scholars may have
been divided as to the best stance toward and use of the past, they were
one in their focus on it.

Given the extent to which "interaction with the past is one of the
distinctive modes of intellectual and imaginative endeavor in traditional
Chinese culture,""3 the replication of particular concrete
manifestations of such endeavor by persons other than those who first
gave them form never carried, in the words of the distinguished art
historian and curator Wen Fong, the "dark connotations... it does in
the West." 139 Nor, as was often the case in the West, was such use
accepted grudgingly and then only because it served as a vehicle through
which apprentices and students developed their technical expertise,
demonstrated erudition, or even endorsed particular values, although
each of these phenomena also existed in imperial China.1 40 To the
contrary, in the Chinese context, such use was at once both more
affirmative and more essential. It evidenced the user's comprehension

135. James Cahill, The Compelling Image: Nature and Style in Seventeenth Century Chinese
Painting 57 (1982).

136. Wai-kam Ho, Aspects of Chinese Painting from 1100 to 1350, in Eight Dynasties of
Chinese Painting: The Collections of the Nelson Gallery-Atkins Museum, Kansas City, and the
Cleveland Museum of Art -xv, xxix (Sally W. Goodfellow ed., 1980).

137. Bush, supra note 128, at 50.
138. Artists and Traditions, supra note 114, at xi.
139. Wen Fong, The Problem of Forgeries in Chinese Painting, 25 Artibus Asiae 95, 99

(1962).
140. Id. at 100.

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JOURNAL OF CHINESE LAW

of and devotion to the core of civilization itself, while offering
individuals the possibility of demonstrating originality within the context
of those forms and so distinguishing their present from the past.

In view of the foregoing, there was what Wen Fong has termed a
"general attitude of tolerance, or indeed willingness, shown on the part
of the great Chinese painters towards the forging of their own
works."'' 41 Such copying, in effect, bore witness to the quality of the
work copied and to its creator's degree of understanding and civility.
Thus, Shen Zhou (1427-1509) is reported to have responded to the
suggestions that he put a stop to the forging of his work142 by
remarking, in comments that were not considered exceptional, that "[i]f
my poems and paintings, which are only small efforts to me, should
prove to be of some aid to the forgers, what is there for me to grudge
about?"143 Much the same might be said for literature, where the
Confucian disdain for commerce fostered an ideal, even if not always
realized in practice, that the true scholars wrote for edification and
moral renewal, rather than profit. Or, as it was expressed so compactly
in a famed Chinese aphorism, "genuine scholars let the later world
discover their work [rather than promulgate and profit from it
themselves]." If, after all, even the characters comprising the Chinese
language itself, as the famed Song statesman Wang Anshi (1021-1086)
observed, "actually come from nature . . .[and] were not created by
man; man merely imitated them," " on what basis could anyone
exclude others from the common heritage of all civilized persons?

141. Id.
142. These suggestions, of course, indicate that some persons were concerned about

unauthorized copying.
143. Wen Fong, supra note 139, at 100.
144. Shuen-fu Lin, Chiang K'uei's Treatises on Poetry and Calligraphy, in Theories of the

Arts in China, supra note 120, at 293, 307