Google and China Conflict: Intellectual Property Case

Introduction

Creations of the human mind in various fields like science, industries, literature and arts which have legal rights attached to them are commonly regarded as intellectual property. These creations can be broadly classified into two main classes. The first class is known as copyright while the second class is industrial property. Industrial property occurs in different forms. These may include patents to protect inventions, industrial designs, trademarks, service marks, commercial names and designations.

Copyright on the other hands deals with the protection of creative products like the works done by artists, authors, musicians, painters, sculptors and people involved in the production of films or technology-based works such as computer programs and electronic databases. Google is an international company that mainly offers various web based services and computer software. The company operates a subsidiary company in china called Google china which was founded in the year 2005.

At the beginning of March 2010, Google began to redirect most of its internet traffic from Google china to Google Hong Kong which allows free flow of information and is not restricted by Chinese laws. As a result, Google was perceived by Chinese authorities as having by passed regulations set out by the Chinese government concerning internet censorship. By doing this, Google was allowing people in mainland china to access uncensored search results on china through Google’s search engine against the wishes of the Chinese government.

The Chinese government in turn blocked Google’s you tube service and has since then been restricting some of the online services offered by Google. Sometimes back, the company reported that it had experienced some hacking attacks which were believed to come from china.

The conflict between the Chinese government and Google serves as a good contemporary example on intellectual property conflict occasioned by differences in law and infringement of intellectual property that have been increasing of late. This essay will explore how the conflict between the Chinese government and Google began then proceed to discuss the government’s policy in regard to cyber space protection and finally will project on the future impacts of the conflict. Improvements in communication and transport media are likely to result in difficult conflicts of law in the field of intellectual property.

Background and Nature of the conflict

According to Timothy and Liu, 2002, pare 1, Chinese culture has been slow in adopting internet unlike places like the United States and Europe where there has been full adoption of the internet and e-commerce¹. The use of the internet in the United States and many of the European countries is firmly developed whereas in china there is lack of trust on part of both users and merchants of internet related services and products. The development of a strong e-commerce industry in china has also been hindered by other factors like lack of a workable regulatory frame work and problems of privacy and defamation that are commonly associated with e-commerce.

In response to the above challenges, Timothy and Liu, 2002, para 7, explain that the Chinese government came up with legislation meant to regulate access and register internet users². In addition to these regulations, there were also numerous legislations put in place and are used for regulatory purposes in the entire telecommunications industry. In their article, Timothy and Liu note that the Chinese government also extended laws covering consumer protection, products liability, advertising, and contract law in regard to the Internet. These regulations also include numerous provisions on how to deal with privacy and defamation.

It’s known that companies offering web based services collect various forms of information about people who use their products; the accumulation of personal information is a big concern among the Chinese people because such information can threaten their privacy. Similarly, the ease with which such information can be released against individual wishes or knowledge has deepened defamation concerns among the people.

In regard to the conflict between Google and the Chinese Government, Mackinnon, 2006, p.53 ³ explains that the conflict can be traced back to the year 2002 when the Chinese government t blocked the search engine google.com from many of the Internet service providers in the country. As a result of this action, it became hard for internet users to access Google’s search engine without using a proxy server or by circumnavigating the.

Users who typed restricted key words on the Google search engine were directly linked to Chinese search engines. The stalemate was temporarily resolved after two weeks when Google officials went and met with officials from the Chinese government. A statement by Google’s co- founder, Mr. Sergey Brin following the lift of the ban said that the ban was lifted because of popular demand and not because the company had negotiated a deal with the Chinese authorities.

During the year 2004, test findings by companies like open net initiative established that while Google was accessible to Chinese users, most of the functions of the search engine could not be accessed by the users because the Chinese government was using sophisticated content filtering technologies at the service router level that made it very difficult for users to access the “cache’ (related link to a search on Google).

Test results released by Open Net Initiative⁴ revealed that the Chinese censorship system did not allow thousands of search results through Google to be displayed. This was done in two main ways. On the first one, incase the search results yielded banned words or phrases, the user would encounter an error page without any warning or explanation. In most cases when such a problem occurs, the user is notified in advance and an explanation for the occurrence is given (for example a technical error has occurred). In the second way, when the user types in important keywords on the Google search engine, the connection to Google would automatically be cancelled and the user would not get any results. This, according to Open net Initiative⁵ this happened again without a warning or any plausible explanation.

In the month of September in 2004, Google went ahead to launch a Chinese based edition of Google news.This was seen by many analysts as the first step by Google to compromise with Chinese censorship policies.At this time, when a user typed in key words or phrases that gave banned results, Chinese Google news results did not display them because the Chinese government and Chinese internet service providers were directly involved in the censorship. As time went by, Google in turn chose not to display result links that would lead to error pages or possibly lead to the termination of a search session on Chinese Google news (voluntary censorship).

According to an explanation by Mackinnon, 2008, p.31-46 ⁶, what can be regarded as active censorship on Google china came a year later after the company had received the license to operate as a Chinese internet service provider in the year 2005.It is important to note that at this point that Google became the censor and not the Chinese government or the internet service providers as it was the case before.

Mackinnon explains that it is in the year 2006, following the launch of the censored Chinese version of Google search that Google staff managed to create a list of blocked sites based on their own testing and not based on information supplied to the company from either the government or the internet service providers.

Pertaining to the reason why Google made the decision to adhere to the censorship rules imposed by the Chinese Government, Weiss 2008, p.474⁷, explains that the position held by the company in launching a censored version of the Google search engine was that the company wanted to be able to provide better internet services to people using the internet in china.

Weiss adds that the commonly held view among the company’s executives was that working under censor ship was a way of showing consideration for the Chinese customers compared to the disadvantages the customers would suffer if Google refused to operate under censorship. During all this time, the Google search was still accessible but could only yield a limited number of results. Majority of the users who tried to search using Google’s search engine encountered the risk of their browser stalling all together.

In addition to the above, Weiss 2008, p.474⁸, opines that the other probable reason that could have led to Google’s compromise was the feeling on the part of the company that it was going to lose its market share to its rival company named Baidu which catered for the majority of the customers when Google had problems.

Because Google china commonly delists politically sensitive websites, it provides some additional information at the bottom of the page that indicates that the search results are not likely to be complete as per the user’s expectations.

However, in doing this, Google china does not notify the owners of the said websites that their websites are delisted or makes the list known to the public. It’s known that Google has acted in a similar ways in other countries for example France, Germany and in the United States where it has altered some search results in order to comply with the local rules and regulations. When the company removes some of the results in these countries for example, Google offers some detailed explanation regarding the removal of the particular results and even links the user to the legal clauses or notices that relate to the removal of certain results and at times, at the same time, the company specifies the umber of results that have been removed.

At the beginning of year 2006, Mackinnon, 2008, p.31-46⁹, notes that Google started providing Chinese users with an alternate link on the censured results as a way of ensuring that all the search results are available to Chinese internet user’s.Together with these developments, Google china would also offer local business information and map services in order to appeal to the Chinese customers who were using Google. The other Google products like Gmail and blogger are expected to have additional variations so that the private information regarding the users can be more secure before the products are introduced through Google china.

Reactions to the censorship on Google china

Different opinions surrounded the launch of Google’s censured Chinese version. In explaining these reactions ,Duthel,2008,p.35¹⁰ notes that some Chinese bloggers saw the introduction of the Chinese version of Google search as an official restriction on the Chinese people to their freedom of expression through speech.This section of people therefore saw Google’s compromise as unacceptable and went ahead to condemn the move strongly. They felt that the new censored Google search engine would offer limited benefits to the Chinese people. When Google announced that it would not censor its search results in china, most of the employees went on paid leave with security being reinforced at the company’s head quarters in Beijing.

At this moment, some of the employees reported that they were unable to access some of their work resources between the china office and the Google offices in California. Following this announcement, some of the customers went and assembled outside the company’s offices at Beijing to show their support for the company and internet freedom.

Duthel continues to explain that some bloggers on the other hand took a level minded approach on their opinions citing that Google had perhaps made a careful analysis of the current situation and that the company’s decision would save goggle employees from the constant bother from the government, like being arrested or incarcerated. According to them, this was a good decision that would minimize the chances of the scale of the between the Chinese government and Google conflict going high than it was necessary.

Questions were raised by some people who saw the company’s decision as going against what the company had strongly advocated in the past. The interpretation of Google’s action among these people was that the company was helping the Chinese government to succeed in internet censorship.

In addition to the above, Duthel, 2008, p.35¹¹, further notes that a section of Chinese bloggers raised a concern on the possibility that Google’s compromise would open the lee way and make it easier for internet services providers to block Google search engine without much public outcry because the government censures always try to ensure that there is some limited form of access to Google and other Google hosted services like Gmail. The big concern among this group of people was that Google’s exit from china would be interpreted as a win on the part of the government and that this would motivate the government to continue with internet censorships.

These people brought flowers to the company’s head quarters in Beijing throughout the day as a sign to mourn the probable exit of Google from china. Some people were also angered by the apparent reluctance of Google managers to provide users with detailed information on the apparent difficulties that Google search was experiencing when compared with the Chinese version which wasn’t experiencing much difficulty.

Government policy and censorship

Globalization has brought new changes in the information communication technologies, the internet being the most revolutionary of these communication technologies.The Chinese governments has been very strict in enforcing internet censorship for a number of reasons. The government has particularly been concerned with political, religious content which it regards to be sensitive and other critical opinions or comments posted through the internet.

The government not only regulates wed content alone, at times the Chinese authorities also monitor internet access for individuals. Apart from political control and concerns for national security, censorship by the Chinese government is meant to protect the Chinese citizenry from pornography and online gambling as noted by Gamble, 2007, p. 139 ¹². Generally, these issues have been considered as morally subversive by the Chinese authorities.

The Chinese government is also keen to preserve the cultural identity of its people and this could be the reason why through censorship legislation, the government wanted Google china and other companies like yahoo to use the Chinese language. In line with this, Smith and Boardman, 2007, p. 927 ¹³ , explain that the Chinese Ministry of public security introduced new computer information networks and internet security, protection and management guide lines in 1997.These guide lines were revised in 1997 and are used to regulate information flow and management through the internet.

In the same regard, Abbot, 2004, p.15¹⁴ , outlines that a section of the new regulations provides that individuals are not allowed to produce, transmit or retrieve various types of information considered as sensitive by the Chinese government, these kind s of information include; information likely to incite resistance to constitutional laws or the implementation of administrative regulations, information inciting people to overthrow the government or likely to bring disharmony in the country. The regulations also ban information regarded to create hatred and discrimination among the people or unfairly discrediting state organs.

In addition, information that promotes sexually explicit materials, gambling, violence or murder is also banned. Furthermore, information that promotes terrorism or incites people to engage in criminal activities and other activities that contravene the constitution, state laws and administrative regulations are banned as well. Lastly, the state bans information that is regarded as false or distorted and which would destroy the order within various Chinese communities.

Besides what has been outlined above , Torremans, Shan and Erauw,2007,p.11 ¹⁵ add that apart from these regulations, china is committed to implementing an agreement by the world trade organization on trade related intellectual rights (TRIPS) made in 2001.At the local level, china has amended some laws and promulgated different regulations in order to deal with issues related to intellectual property.

Before the country accented to the WTO(World Trade Organization) agreement, the patent law of 1992, trademarks law of 1993 and the copyright right law of 1990 were amended so that internet related -cases pending in court could be resolved. The new regulations that were formulated alongside the amended laws include; regulations pertaining to the protection of the layout designs of integrated circuits and regulations relating to customs protection of intellectual property. These regulations have added details on how they are supposed to be implemented or interpreted in judicial proceedings.

Future developments

As of now, according to Delta and Matsuura, 2002, p. 9¹⁶, the Chinese intellectual protection laws are able to offer protection at a level that is consistent with the requirements set out in TRIPS, however it should be noted that the existence of these intellectual property laws corresponds directly with proper implementation because it is normal for any to experience some difficulty in designing effective solutions to problems related with the infringement of intellectual property rights. As the country continues to improve on its intellectual property protection frame work, the capacity to implement the relevant laws and regulations keeps growing stronger.

Besides of meeting the requirements set out in TRIPS, it is important that local intellectual property laws be adjusted appropriately t o take into consideration the emerging social changes and technological advances.This for example may require some serious reconsideration on provisions regarding the dissemination of various types of information through information networks in the current copy right law of 2001.

Delta and Matsuura,2002,p.9¹⁷ continue to explain further that it was expected that , the country would be able to officially join the World Intellectual Property Organization copy right treaty (WCT) and the WIPO performance s and phonograms treaty (WPPT) if Chinese law makers would promulgate the regulations on the protection of the right of dissemination through information networks.

According to Hughes and Wacker 2003, p.58¹⁸, the number of internet users in china is likely to increase due to the rapid expansion in the information technology field. Consequently the number of intellectual property conflicts may be on the increase due to the diverse interests that exist among the diverse groups of people living in china. Similarly, the importance of China as an investment destination is also growing and it is reasonable to expect that more multinational companies will be coming to set up local subsidiaries in the country.

This could be followed by a rise in illegal conduct, infringements and internet related crimes that will endlessly appear in Chinese courts. Disputes relating to trademarks and net work copyrights will gain prominence if intellectual property laws and regulation are interpreted or enforced differentially.

Owing the promulgation of the Chinese version of the American DMCA (digital millennium copy right Act),china was able to put into place an internationally acclaimed legal mechanism for managing cases relating to copy right infringement. The need for the government to develop a suitable environment that enables the orderly development of the information technology industry lead to the government being more involved in regulating the entire telecommunication industry. This kind of government involvement is bound to create tensions that may result in groups of companies, civil societies groups, investors and academics spending a substantial amount of time in protecting and advancing for freedom of expression within various areas in the IT sector.

Similarly, Delbert, Palfrey, Rohonzinski &Zittran, 2010, p.88¹⁹, anticipate that human rights groups are also likely to join in advocating for less censorship by the government. The activities of the parties mentioned above have the common aim of making the use of the internet more rewarding than it seemingly is now, therefore china will continue to experience pressure from within and outside the country to be less strict on censorship and be a ‘responsible’ global citizen.

Conclusion

China is considered the leading country in the world as far internet repression is concerned. The country has an extensive and elaborate system for blocking web content on key subjects’ form being displayed to the users or only allowing limited access to the information.At times the government censures monitors individual access to the internet and sometimes terminate the search if the user tries to create or disseminate information over the internet which is considered as sensitive by the Chinese government.

This information relates to matters of national security, preservation of culture and morality. The conflict between Google and the Chinese government was due to the company’s decision to allow uncensored results to be accessible to users in mainland china through the Google Hong Kong link whereas Google opted for this after its systems were frequently hacked and the attacks traced tot china.

In accordance with government legislation, Google at some point had opted for voluntary censorship in which the company deliberately refused to display some results linked to some political websites, blogs or specific chat rooms. At one point when Google felt that it could not cope with censorship from the Chinese government and started to consider with drawing from the Chinese market.

This occurred in the year 2006.in reaction to the compromise by Google in introducing a Chinese based version search engine and the company’s possible departure from china, users raised differing opinions; some thought Google had taken the correct action, others thought that the company had not made a good decision in introducing the new product, some regarded Google as helping the Chinese government to continue with internet censorship.

China has amended numerous laws and drafted numerous regulations in order to ensue that the growth of the IT industry occurs in orderly way.similarly these amended d laws and regulations have been used as a frame work used to implement measures meant to protect various forms of intellectual property and also offer guidance on the way the laws and regulations should be interpreted in judicial proceedings. The amended laws include the copyright law of 1990, the patent law of 1992and the trademarks l aw of 1993.the current intellectual property laws offer protection at a level similar to the trade related intellectual rights(TRIPS) set out by the world health organization to which china is a signatory.

The rapid development of the IT industry in china coupled with the country’s emergence as and investment destination is attracting many multinational companies to china, this together with increased usage of the internet among different population groups will result in increased cases of illegal conduct and cases of infringement on copy right s and trademarks.this will spur government action in regulation of information flow and management through information netwrorks,as a result this will create tension between the government and concerned individual groups like groups of companies, academicians,investors,civil society groups and human rights activists advocating for freedom of expression. This will lead to pressure building up on the government from booth within the country and outside as well for china to reduce censorship on information transfer across information networks.

Despite this, it is most unlikely that the Chinese government will be backing down on filtering web content because the government is keen to control political activities and comments posted via the internet as they have been used in the past to organize violent protests against the government.

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Footnotes

1. Fort, Timothy and Liu, Junhai, Chinese business and the Internet: the infrastructure for trust. Vanderbilt Journal of Transnational Law. 2002. Web.
2. Timothy, Fort and Junhai, Liu, Chinese business and the Internet: the infrastructure for trust. Vanderbilt Journal of Transnational Law. 2002. Web.
3. Rebecca, Mackinnon , CHINA – Race to the Bottom Corporate Complicity in Chinese Internet Censorship(New York: Human Rights Watch,2006)53.
4. Open Net Initiative, Bulletin 006.Google Search & Cache Filtering Behind China’s Great Firewall, 2004. Web.
5. Open Net Initiative, Bulletin 006.Google Search & Cache Filtering Behind China’s Great Firewall, 2004. Web.
6. Rebecca, Mackinnon, Flatter world and thicker walls? Blogs, censorship and civic discourse in China, (Public Choice. Volume 134, Numbers 1-2 / 2008) pp. 31-46.
7. Weiss, Joseph, Business Ethics: A Stakeholder and Issues Management Approach. 5^th Edition. (New York: Cengage Learning, 2008) 474.
8. Weiss, Joseph, Business Ethics: A Stakeholder and Issues Management Approach (474).
9. Rebecca, Mackinnon, Flatter world and thicker walls? Blogs, censorship and civic discourse in China..(pp. 31-46).
10. Duthel, Heinz, Google Inc. Services – Google Tools – What is Google? , (North Carolina: Lulu. 2008) 35.
11. Duthel, Heinz, Google Inc. Services – Google Tools – What is Google? (35).
12. Gamble, William, Freedom: America’s competitive advantage in the global market, (Connecticut: Greenwood Publishing Group, 2007) 139.
13. Smith, Graham and Boardman, Ruth, Internet law and regulation, 4th Edition, (London: Sweet & Maxwell, 2007) 927.
14. Abbott, Jason, The political economy of the Internet in Asia and the Pacific: digital divides, economic competitiveness, and security challenges,(Michigan: Praeger Publishers, 2004)15.
15. Torremans, Paul, Shan, Hailing and Erauw, Johan, Intellectual property and TRIPS compliance in China: Chinese and European perspectives (Cheltenham: Edward Edgar Publishing, 2007)11.
16. Delta, George and Matsuura, Jeffrey, Law of the Internet.2^nd Edition( USA: Aspen Publishers,2002)9.
17. Delta, George and Matsuura, Jeffrey, Law of the Internet.2^nd Edition( USA: Aspen Publishers,2002)9.
18. Hughes, Christopher and Wacker, Gudrun, China and the Internet: politics of the digital leap forward( London: Routledge.2003) 58.
19. Delbert, Ronald, Palfrey, John, Rohonzinski, Rafal and Zittrain, Jonathan, Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace, (USA: MIT Press, 2010) 88.