The justice of balance : understanding intellectual property from Chinese historical and philosophical perspectives

• Main Author: Shao, Ke
• Published: Queen Mary, University of London 2007
• Subjects: 346.51048; Law
• Online Access: https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.438983

In today's world, intellectual property is widely viewed as a threat to the public interest in using knowledge. As many scholars have argued, a theoretical reason accounting for this phenomenon is that traditional understanding of intellectual property emphasizes strong property rights rather than the public interest. As historical studies have shown, this understanding is fundamentally influenced by the practice of printing monopoly of sixteenth-seventeenth century England, which gave overwhelming attention to appropriation. This thesis tries to join the above debates by examining the intellectual property history of pre-modern China. Based on the historical inquiry, it further makes several theoretical suggestions to the ongoing development of intellectual property theories. This thesis argues that intellectual property practice as a tool of stimulating creativity emerged in China when the commercialization of knowledge products made the intellectual property protection a must. A more important finding is that, in a relatively non-monopolistic atmosphere, tremendous efforts were made to effectively disseminate knowledge to enhance the public interest; there existed no obvious conflict between stimulating knowledge creativity and promoting knowledge use. This thesis then suggests that knowledge creativity and knowledge use are inherently inter-nutritional and inter-conflicting. To promote their reciprocity, it is crucial to keep balance between maximizing knowledge use and stimulating robust knowledge creativity. This thesis further proposes a system containing `the right of accessing knowledge' and `the right of deserving reward', in which intellectual property is only a mean to the end and coexists with various alternative models. This thesis provides a firm theoretical support to the public interest but does not necessarily devalue the importance of knowledge creativity and intellectual property. In many fields, well-designed intellectual property laws must continue to prevail.