It’s no secret that the People’s Republic of China poses an enormous challenge for proprietors of software and other intellectual property. The Business Software Alliance estimates that some 90 percent of the software running on Chinese computers is being used illegally, resulting in losses to U.S. companies that some calculate annually run into the billions. And although the Chinese government keeps saying it will address the problem, its own offices have yet to fully cease unauthorized use of copyrighted software.

For more than a decade and a half, Washington has pushed Beijing to enact better policies and practices for IP protection. In the early 1990s, the administration of George Bush Sr. joined IP protection to nuclear nonproliferation and human rights as the three keys to improving U.S.-China relations. The Clinton administration threatened to impose what then would have been the largest trade sanctions in history if China did not improve its performance, and the current Bush administration has made enforcement of IP rights a key element in former U.S. Trade Representative Rob Portman’s well-crafted "Top to Bottom Review" of the United States’ China policy. But so far, neither threats, negotiations nor charm have had their desired effect, and IP theft, software piracy and misuse continue.

The Reality on Chinese Ground

One reason for this lack of success is that all these approaches are predicated on the idea that the issue is basically one of will—that if the Chinese authorities wanted to do something about it, they could. The Chinese government’s will certainly is a part of the larger picture. The development of special intellectual property chambers in Chinese courts—staffed by some of the nation’s best-qualified jurists and lauded by the International Intellectual Property Alliance—is indicative of what can happen when the will to change is present. And the difficulties that General Motors Daewoo faced with the unauthorized copying of its automobiles by a major factory in Anhui province said to have links to Chinese government officials sadly affirm what happens when it isn’t.

And yet, will is not enough. Lying at the heart of the problem is the even more daunting challenge of China’s history and institutions. To take note of these realities is not to apologize for IP infringement but, on the contrary, a way to begin to understand what lies at the heart of the problem.

The Chinese Perspective

History does matter. As I discuss in my book To Steal a Book Is an Elegant Offense (parts of which have recently been used without attribution or authorization by a Chinese professor of intellectual property law!), there was nothing comparable to our idea of intellectual property protection in China prior to its introduction by the West in the early 20th century. The emperors who ruled China prior to the 20th century were, indeed, concerned about unauthorized publication—but solely for the purpose of controlling what was disseminated, not for promoting private, individual expression.