Sunday, September 20, 2009

Understanding China-Taiwan Relations Through Intellectual Property Law

Having lived in both Beijing and Taipei, I am often asked by acquaintances some variation on, "What's the deal with China and Taiwan, anyway?" This question usually arises in the context of China having done something provocative to maintain its claim on Taiwan as a breakaway province--like threatening to veto renewal of the UN peacekeeping force in FYR Macedonia because Macedonia recognized Taiwan, or refusing to allow Taiwan to cooperate with the World Health Organization, even during the SARS epidemic (China has recently relented on this point).

Westerners tend to be confused about why great big China cares so much about tiny little Taiwan that it would go to these lengths to maintain its claims over the island. I usually explain that it is not just a political question in China, but also an emotional one, that Chinese feel that Taiwan is a part of China which has been torn away from the mother, and that they might feel similarly if a portion of their country had been separated. However, such explanations don't account fully for China's frequent threats toward Taiwan and its seemingly petty moves to counter the slightest notion of Taiwanese independence. (Overt tensions have reduced since the election last year of the relatively pro-China Ma Ying-jeou as President of Taiwan.) A recent incident involving a film festival and a visit by the Dalai Lama in the southern Taiwanese city of Kaohsiung got me thinking about an analogy that might help explain the situation--at least for lawyers.
Recent events in Kaohsiung presented an unusual convergence of touchy Chinese political topics: not only did they involve Taiwan, but also the Dalai Lama and the Uyghurs, a Muslim people in China's western Xinjiang Autonomous Region, many of whom also agitate for independence from China. (Racially-motivated rioting rocked Xinjiang last year.) A short time ago, the Dalai Lama visited southern Taiwan to pray for the victims of Typhoon Morakot. China was, predictably, displeased. (The Dalai Lama was invited by Kaohsiung's pro-independence Mayor, which didn't help matters.) More recently, a film festival in Kaohsiung planned to screen a documentary about World Uyghur Congress president Rebiya Kadeer. Now, representatives of the local hospitality industry are petitioning the festival organizers to cancel the screening of the documentary, entitled "The Ten Conditions of Love." The reason? Huge numbers of Chinese tour groups have canceled trips to southern Taiwan, causing a crisis in the industry. Reportedly, the cancellations were at the behest of the Chinese government.
"Wow," a friend observed, "China never misses an opportunity to stick it to Taiwan." That got me thinking: when it comes to Taiwan, China is a trademark owner working to avoid genericization. A genericized trademark is a trademark or brand name which has become the colloquial description for the type of product. Some of the best-known examples are Xerox, Kleenex, Hoover (at least in Britain), and Jell-O. Owning a genericized trademark is a marker of success--the word would not enter colloquial usage unless the brand enjoyed a truly dominant market position--but it's also a source of danger. If the trademark owner does not act to prevent broad, colloquial use of its trademark, then it loses its intellectual property over the trademark and can no longer prevent others from using it: witness Google's attempts to stop people from using its brand name as a verb. Some examples of former proprietary brand names which have been ruled descriptive words in common usage and therefore lost their intellectual property status are brassiere, cellophane, thermos, and zipper.

This analogy explains China's extreme vigilance when it comes to Taiwan's status. China knows all too well that the only true marker of a state's independence is when other sovereign states recognize it as independent. It therefore acts diligently to slap down each instance in which the notion of Taiwanese independence might take root in a foreigner's mind. Taiwan's status as a breakaway province of China is a "brand name" in which China has invested a great deal of money and energy. It is likely to continue to respond aggressively to any statement or event that might--however tenuously--imply independence for Taiwan (or Tibet or Xinjiang, for that matter).

Updated--fixed a bad link.


  1. Josh, ya got this all wrong. Chinese may have been convinced by their rulers that Taiwan is a breakaway piece of their nation, but it is important to inform your friends that no ethnic Chinese emperor ever owned Taiwan.

    Hence Taiwan is not a "breakaway province" but an unincorporated island lying off China. By the San Francisco Peace Treaty, its status is undetermined, an outcome arranged by the Powers in 1951 when the treaty was signed, and which remains the policy of the US and Japan and most of the other powers to this day. Chinese never historically considered Taiwan part of China -- it was not until the late 1930s that Chinese thinkers started to imagine that they could get their hands on the island, if only Japan could be defeated. The idea that Taiwan is breaking away is a propaganda claim, not reality.

    China's goal is thus to annex the island, and you are correct in noting that its purpose with its childish tantrums is to prevent the establishment of a separate Taiwan identity in the minds of others. But at least one reason westerners are confused is because many who would set them straight do not themselves understand the situation.

    Also, the tour group cancellations have occurred because of H1N1 fears and because the mountain roads in southern Taiwan and other tourist areas are wrecked by typhoon Morakot. Pro-Beijingers in Taiwan and in the media have simply latched on to them as a club to beat the pro-Taiwan side in Taiwan's politics with. As the head of the Kaohsiung tourism organization pointed out the other day, the city has actually suffered fewer Chinese tourist cancellations than either Taipei or Hualien (east coast).

    I note you cite the news organization Agence France Presse (AFP) for this information on the cancellations. Be careful with AFP, they generally appear to be rabidly pro-Beijing I explore AFP biases here, their CEO has old China connections.


    Michael Turton

  2. Michael-

    Believe me, I know the history. Among other things, I'm married to a Taiwanese from an A-bien loyalist family who had relatives die on 2-28. But I've also lived in China and spent time with ordinary Chinese who believe to their utmost that Taiwan is and always was and will be part of China (leaving aside the issue of how they came to believe that). In any event, the history is somewhat more complicated than you present it.

    The point of this post was not to take any kind of position whatsoever on the the status of Taiwan, just to help explain the PRC's actions to those confused by the situation.


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