15 May 2012


'Can Louis Vuitton Dance with Hiphone? Rethinking the Idea of Social Justice in Intellectual Property Law' by Haochen Sun in 15 University of Pennsylvania Journal of Law & Social Change (2012) 387-432 reconsiders -
the relationship between social justice and intellectual property through the lens of two conflicting cultural phenomena in China. The first cultural phenomenon, called shanzhai, legitimizes the production of inexpensive and trendy products like the HiPhone. The second phenomenon is the rise of China as the largest luxury market in the world, unleashing an unprecedented increase in the consumer demand for luxury brands such as Louis Vuitton. The shanzhai phenomenon clashes with the IP protection that forms the foundation of the successful luxury market in China. 
By exploring the conflict between these two cultural phenomena, this Article puts forward a new theory of social justice and intellectual property. This theory calls for intellectual property law to be redesigned to support the redistribution of three kinds of resources: benefits from technological development, cultural power, and sources of innovation. The focus on these three redistributive mandates functions to reorient the recent heated debate on social justice and intellectual property toward an inquiry about the redistribution of resources in intellectual property law. 
The Article further considers the substantive and symbolic values of the theory in promoting social justice through intellectual property law. With respect to its substantive value, it shows that this theory has the potential to overcome the limitations of John Rawls’s Difference Principle in dealing with redistributive justice issues within the ambit of intellectual property law. Moreover, this theory is valuable because it sets workable goals for mobilizing social movements to achieve cumulative eradication of injustice through intellectual property law.
Sun concludes that -
the shanzhai phenomenon has signaled the urgent need to organize a civil rights movement in China to combat inequality. In China, public discussion about the cause of massive nation-wide food insecurity became a sensitive political issue subject to speech control. The shanzhai phenomenon, however, has broken through speech surveillance and control by the Chinese government. It has engaged so many people and made such wide use of new social media that the government has been unable to carry out effective measures to censor shanzhai-related speech activities. This success derived from mobilizing people at the grassroots level including university students, migrant workers, and the unemployed. Moreover, the shanzhai phenomenon hugely benefited from the emergence of new social media such as online forums, blogs, and video sharing websites, which have engaged people in discussions about social issues. One commentator insightfully pointed out “the shanzhai characteristics of parody, anarchy and ridicule – all of which arise from the displacements of exile, with an ironic media and against the official declarations of social harmonization.” In many cases, a shanzhai product or activity quickly became very popular shortly after being reported on the Internet. Some copying acts of the shanzhai phenomenon, have violated Chinese IP law, but violating law has become an inevitable means of promoting social justice in China. It signals to the public that “imitation is the sincerest form of rebellion in China.” This symbolic value of the shanzhai phenomenon lies in its power to signal the need for civil disobedience to the economically poor, the politically marginalized, and the culturally weak.
Thus, the shanzhai phenomenon has conveyed Martin Luther King’s “I have a dream” message to the Chinese public. The message calls for the Chinese public to rise up and fight for social justice. The power wielded by the shanzhai phenomenon may have sown the seeds of a groundbreaking civil rights movement, pressuring the government to reform and to consider the interests of the poor more seriously.
In addition to creating new ways to fight for justice, the shanzhai phenomenon also expands the breadth of pro-justice social movements by channeling broader issues that have become problematic in society. First, the shanzhai phenomenon criticizes consumerism that is socially harmful. It presents a radical critique of the prevalence of luxury products among the rich in China by revealing to the public a host of social problems behind it. The corruption underlying the luxury market is very serious. The majority of purchased luxury goods are given between men as gifts in business transactions to create social networks. Often these actions are bribes of governmental officials or officials working in state-owned companies. The shanzhai phenomenon also critiques strong conspicuous consumerism among the rich in China who have not paid due regard to their social responsibilities. Rich Chinese consumers are now famous for their lavish spending habits. Sadly, luxury products are now commonly designed to cater to the needs of conspicuous spending behaviors, with their glamorous brands strongly protected by IP law. Luxury is simply a product packaged and sold by multibillion-dollar global corporations focused on growth, visibility, brand awareness, advertising, and, above all, profit.
By using IP assets and even violating IP law, the shanzhai phenomenon raises the question of why strong IP protection should be provided for a luxury industry that facilitates corruption and conspicuous consumerism, both of which are characteristics of the rich who disregard their social responsibilities. Silent changes have taken place in China. For example, the HiPhone, a typical shanzhai cell phone, has been hailed as “the poor man’s iPhone,” which ostensibly ridicules the high-priced iPhone. An “interesting change of attitudes in youth (in big cities like Shanghai and Beijing)” is reported to be “the diversified meaning of ‘status’; while big brands may embody a ‘status’ in conventional way, shanzhai phones may imply a ‘status’ of rebellion.” Additionally, the shanzhai phenomenon shows the stark landscape of a wide range of inequality problems that have become enormous in Chinese society. The glamour of luxury stores hides these problems, but shanzhai brings them to the forefront of public discourse on social reforms. China underwent a rapid economic reform in the past thirty years, shifting from a state-planned economy to a free market-based system. Its rapid economic growth brought a host of social problems in almost all sectors of society. The Gini coefficient, widely recognized as a yardstick to measure inequality of distribution of wealth, has increased by about 50%, from around thirty to forty-five over the past twenty-five years. A World Bank report bluntly summarizes the situation:
Not everyone has participated in the economic success equally. Income inequality in China has increased significantly since the start of economic reforms, and China is no longer the low-inequality country it was a quarter century ago ... Where China stands out is in the magnitude of the increase in inequality and the pace at which it has occurred. The rise in inequality is the result of both a widening income gap between the cities and the countryside, as well as growing inequality within rural and urban areas.
The shanzhai phenomenon reveals the harsh realities of massive inequality in China. To some extent, it runs directly counter to a strategy that has been long used by the Chinese government, which prioritizes economic growth as the top concern of social development. As the Chinese government has publicized this strategy of economic growth through major media outlets in China, it has indoctrinated people with the ideology of economic growth. Making money to pursue economic well-being has become like a religion for millions of people in China. The growth of the luxury market fits perfectly with this strategy. As people become richer, luxury products present them with the maximum rewards for religiously chasing money. By contrast, the shanzhai phenomenon reveals that the ideology of economic growth has worsened social inequality and does not do justice to the interests of the poor. It informs the public of worsening social ills and calls for the government to reform its main strategy of development.
Although social justice is a value central to humanity and civilization, we live in an unequal society polarized by the unfair distribution of resources. People still live in poverty and even die from the lack of food. Other people, however, are rich enough to shop happily in luxury stores without regard for those who die of hunger. This stark contrast questions whether we are civilized enough to call ourselves human beings or instead lack the ability to sense the pain of our peers.
Forty years ago John Rawls’s groundbreaking book, A Theory of Justice, radically transformed our vision of justice. Yet social inequality has continued to worsen in our society. Individuals who possess great resources have done little to fulfill their social responsibility to curb injustice. When a Danish artist used the legendary Louis Vuitton monograms as part of her artwork to call for global attention to the war in Darfur, Louis Vuitton moved to stop this benign action in the name of protecting its intellectual property.
Confronted with these harsh realities, we must act in concert to fight for justice and equality. In contrast to China’s large and growing luxury market, the shanzhai phenomenon has championed the cause of social justice, embodying a common pursuit for dignity and humanity in civilized society. From this perspective, the shanzhai phenomenon, as one commentator has described, might “translate best as Robin Hood culture meets British satire Little Britain or, to cross a few borders, the Australian political outlaws in The Chaser’s War on Everything meets Tina Fey’s Sarah Palin from the 2008 United States election campaign.” It encourages IP law to be redesigned to support the redistribution of three kinds of resources: benefits from technological development, cultural power, and sources of innovation. 
The goal of promoting the agenda of social justice in our society cannot come to fruition without civil movements powered by shanzhai-type cultural phenomena. A government will not take seriously a politically dormant mass sleeping quietly underneath a dead volcano. Only by exposing the government to an erupting active volcano can citizens force those in power to act for social justice.